Loading...
EXHIBIT LIST AND ATTACHMENTEXHIBIT LIST Appeal of Administrative Code Interpretation Dufresne (PLN50287 ADM) Staff Contact: Christy Carr, Senior Planner Hearing Examiner: Stafford Smith Public Hearing: 02/17/2016 Location: City of Bainbridge Island City Hall Council Chambers EXHIBIT I DOCUMENT DESCRIPTION I DATED NO. ` 2 Appeal of Administrative Decision (SPT10029) Together with: Exhibit A —Administrative Decision issued by Katharine Cook dated November 6, 2015 Exhibit B — Request for Code Interpretation dated October 14, 2015\ Index of Attachments Attachment 1 — Letter from COBI Associate Planner Christy Carr to Ms. Dufresne dated July 10, 2015 Attachment 2 — Proposed lot aggregation home design Attachment 3 — Photo Attachment 4 — Assessor Maps Attachment 5 — SCUP1256 issued to Michael Fleck, April 27, 2004 Attachment 6 — Bainbridge Island Hearing Examiner Decision Dated March 25, 2004 Attachment 7 — Staff Report, March 4 2004 Attachment 8 — Mitigated Determination of Non - significance dated February 18, 2004 Attachment 9 — Final inspection approval letter from COBI Building Official Mark Hinkley to Mr. Fleck dated October 28, 2010 Attachment 10 — Turnaround Access Easement, recorded August 21, 2007 Attachment 11 — Standard release for residential construction and use Within geologically hazardous area, recorded June 7, 2006 Attachment 12 — BSA approved by Kitsap Public Health District Inspector Steven Brown on October 23, 2014 Attachment 13 — GeoEngineers, Inc. geotechnical report to Smallwood Design and Construction, Inc. dated September 25, 2003 Attachment 14 and 15 — Notices of Title for onsite septic systems, Recorded April 18, 2006 Attachment 16 — Letter from COBI Building Official Mark Hinkley to Mr. Fleck dated December 23, 2004 Notice of Public Hearing (published January 8, 2016) and Certificate of Distribution and Posting 11/15/2015 01/11/2016 3 Notice of Rescheduled Public Hearing (published January 29k 2016) and 01/27/2016 Certificate of Distribution and Posting Page 1 DUFRESNE: Petition for Review — Land Use Petition Act EXHIBIT B t l D*111GV CITY OF BAINBRIDGE ISLAND DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT November 6, 2015 Margaret Dufresne 3912 Highway 104 Poulsbo, Washington 98370 Re: Request for Administrative Code Interpretation Pile Number: PLN50287 ADM Dear Ms. Dufresne: The City has reviewed your request for an administrative interpretation regarding development on the face of a marine bluff. As discussed at the pre - application conference, the current Bainbridge Island Shoreline Muster Program (SMP) prohibits development on the face of a marine bl aff (BIMC 16.12.03(1.1 A. c.iiii). A marine bluff is defined as "slopes greater than 40 percent that exceed a. vertical height of 10 fcct" (BIMC 16.12.030.I A.c.i). In response to your specific request for a code interpretation: 1. "There is no current building permit or pending building permit application on bile with the City allowing constr-tietion of a single - family home on your property. Any building purniit application for construction of a single - family home on your property would be reviewer) for compliance with current building and land use regulations, including the City's 2014 Shoreline Master Program. 2. The: City's current GIS database indicates that almost the entirety of your property is encumbered by a marine bluff. The SMP does not contain a "special review" process for marine bluffs. J. 1 J 1­ '1, ._�`!_ B!� property because (aj the }' ap171 }' oni, to prop<rlie; "SWA,IW11;_XIII.I. shore) ine or critical area buffers," not the critical area itself and (b) development on encumbered lots must meet the landslide hazard provisions of B1MC 16.12.060, which proliibit development on the face of a marine bluff. De-velopiilent on the subject property will require a shoreline variance (SVAR) The SVAR application is available on the City's website: http://www.bainbrid ewo.gov/DoctiiiieiitContei-/Viewi 183 and requires a $8,014 fee. The City's Hearing 1✓ _xaminer makes the City's decision to approve, approve with conditions or-deny the variance request, which is then forwarded to the Department of Ecology, who makes the final decision. Submittal requirements for the shoreline variance application are enclosed. Please Irvtc you will need to subralit a oritical areas report from a licensed.geotechnical engineer, a site - specific impact niialysis prepared by a qualified professional, a drainage plan prepared by a licensed civil engineer, and a narrative of ilow the protect meets the shoreline: variance decision criteria. Site development will need to meet the geologically hi zardous area requircawnts in 1.I1e SNIP, found in BIMC 16.12.060, including meeting, 280 MADISON AVENUE NORTH • BAINBRIT)Gr-, ISLAND, WA 4* 98110 -1812 PHONE: (206) 842 -2552 e FAx: (206) 780 - 0955 • EMAIL: pcdGci.bainbridge- isl.wa.us www.ci.bainbridge- isl.wa, us factors of sal'ety. Development on the subject propetly may trigger mitigation requirements for vegetation disturbance an l new impervious surface created which may need to be located off -site. Please contact Christy Can-, Associate Planner, at 780 -3719 if you have any further questions or concerns. Sincerely, Katharine Cook Director of Planning and Community Development Plu gse now diatinformation provided in this letter reflects tlxe existing codes rend standards, currently available information about the site and environs, and the level of detail provided in your application and the City's GIs database. Comments provided Pursuant to this administrative ruyiem, shall not be construed to relieve the applicanr of conformance ,vith al applicable fees, codes, policies and standards in effect ai the time of'a compete land use permit application, The comillents on this proposal do not represent or guarantee any approval ofany project or permit. 280 MAD[sON AvI?NUI; NORTH • BAINBRIDGE ISLAND, WA o 98110 -2824 PtloNr: (206) 842 -2552 • PAX: (206) 780 -0955 + EIMAII,: pcd a ci.bainbridge- isl.wa.us Nvwtw.ci.bainbridge- isi.wa.us DUFRESNE: Petition for Review — Land Use Petition Act ExxlsiT C Dennis D. Reynolds Law Office 200 Winslow Way W Suiie 380 Bainbridge Island, WA 98110 Land Use • Fisheries Law • Environmental Law • 6usincss Law • Indian Law • fr.�_d Est- 206.780.6777 206.780.6865 fax ww.ddri.m.cr rn October 14, 2015 ley EmaiI kkkcook c bainbridgewa aov• ncd(�bainbridgewn.gov) Only Katharine Cook, Director Department of Planning & Community Development City of Bainbridge Island 280 Madison Avenue N. Bainbridge Island, WA 98110 Re: Re uest for Code _Interpretation: Margaret Dufresne File No PRE50287) Dear Kathy: Pursuant to BIMC Section 2.16.020.D.3, please treat this letter as a request for an official code interpretation relating to future residential development of a one single family owner /occupied waterfront home located on two lots. The required $382 fee is enclosed along with the City's application form. Current Staters Department of Planning and Community Development Staff ( "Staff') assets a parcel owned by Ms. Margaret Dufresne cannot be developed because of the presence of a marine slope on her property, citing the new Bainbridge Island Shoreline Master Program ( "SMP ") Section 4.1.5.8.3; BIMC § 16.12.060.K.4.c.iii ( "All proposed development on the face of a marine bluff or in the required buffer area shall be prohibited.... "). See letter dated July 10, 2015, Attachment 1. Staff suggested a code interpretation as a method to determine how to construe and apply the SMP to the actual circurnstances. Ms. Dufresne agrees but not with Staff's position. She requests that the Director review the matter and issue a Code Interpretation as set out immediately below. )lie nest Taking into account the permit history, as well at all applicable sections of the SMP, acknoWeelge that the City has already issued approvals which allow construction of a single - family home on waterfront property owned by Margaret Dufresne without regard to the new shoreline regulations cited by Staff. 1n the alternative, interpret the Bainbridge Island SMP (including subsection 16.12.060.K.4(c)(iii)) to allow development of a single - family home on the lots in question because: (1) there is not a regulated marine bluff present; and /or (2) even if there was, the proposed home development is allowed because sufficiently far away from the crest of the slope. Ms. Dufresne is allowed to seek approval pursuant to the critical areas "special review" process, F�l SF a S' x r. N [90322.11 Katharine Cook, Director COBI Dept. of Planning & Community Development October 14, 2015 Page 2 In the Alternative, interpret the SMP to allow development of the site under the SMP's encumbered lots provisions, BIMC § 16.12.030.C. Le. Presumption You may presume when responding to the requested interpretation set out below that the two lots owned by Ms. Dufresne will be aggregated and the parcel used to construct one home. See Attachment 2 (proposed lot aggregation and home design). You may further presume that Ms. Dufresne will support her request for a shoreline exemption and critical area review with any additional geotechnical analysis or studies the City reasonably requests, and will pay for any third -party peer review required. For purposes of this Code Interpretation, Ms. Dufresne further requests that the Director presume that she can meet the development standards set out infra, pp.6 -7. In this regard; Ms. Dufresne wants to wait for submittal of any additional geotechnical reports until issuance of the requested Code Interpretation. It is recognized that the presumption does not operate as a decision that the referenced development standards necessarily have been — or can be — met. The Site The site information is: Site Address Tax Parcel Number* Primary Parcel Address* 11129 Rolling Bay Walk (Lot D) 4156 -001- 005 -0502 11131 Rolling Bay Walk NE 11139 Rolling Bay Walk (Lot C) 4156- 001 -004 -0909 11143 Rolling Bay Walk NE The current zoning is R -2. The shoreline designation is Shoreline Residential ( "SR "), The SR designation is intended "... to provide for residential development and appurtenant structures ...." BIMC § 16.12.020.B.2. The site is developed with a combination catchment/retaining a wall. See Attachment 3 (photo). The slope above the subject site is designated as being 40 percent or greater. It is a "geologically hazardous area" as defined by the SMP. See also BIMC § 16.12.080 Definitions, "high bluff," "steep slope," and "landslide hazard." In the past, there were homes on the site which Ms. Dufresne understands were taken out or substantially destroyed by slides and the remnants demolished and carried off by her predecessor Michael Fleck. [90322 -11 Katharine Cook, Director COBI Dept. of Planning & Community Development October 14, 2015 Page 3 x See Assessor Maps, Attachment 4. Ms. L3uftesile submitted building permit applications in 2005 and 2008 for a single - family home which she later cancelled. History of Approvals On April 27, 2004, a Conditional Use Permit (SCUP 1256) was granted by the Department of Ecology to Ms. Dufiesne's predecessor, Mr. Michael Fleck, for a combination catchment /retaining wall ( "the Wall "). See Attachment 5, including the site plan dated September 4, 2003. The Wall consists of two sets of parallel soldier piles walls. The upper "catchment" wall acts to collect fiiture slide debris and the lower wall serves as a retaining structure. The Wall provides protection for future residence development on the Dufresne property, plus protects nearby residential properties that were damaged by slides. Prior to Ecology's approval, the Bainbridge Island Hearing Examiner recommended approval. See Attachment 6 (Bainbridge Island Hearing Examiner Decision dated March 25, 2004). The Examiner ruled that the City's SMP in effect at the time recognized the Critical Area Ordinance "...as the primary regulation for environmentally sensitive area" such as geologically hazardous areas. (Decision, Finding No. 23, p.6). The Staff Report for the proposal noted that: "The retaining /catchment walls are proposed for the protection of single- family residences, which are permitted uses within the area." See Attachment 7, p.5. A Mitigated Determination of Non - significance ( "MDNS ") was issued and not appealed. See Attachment 8, Lgclu� the SEPA Checklist dated November 12, 2003. The original Conditional Use Permit for the proposed residence on the Dufresne included several conditions, which have been met. First, plans for the Wall had to be approved and the final construction inspected and signed off by the City of Bainbridge Island before the construction of the proposed residence could begin. See Attachment 9 (final inspection approval letter frorn Building Official Mark Hinkley), recorded November 11, 2008. 'These permit applications were for 11129 Rolling Bay Walk (Lot D) and 11139 Rolling Bay Walk (Lot Q. According to Kitsap County, these addresses do not exist. The CUP application states the addresses are 10994 and 11129 Rolling Bay Walk for the site and Tax Parcel Nos. 4156- 001 -004 -0008 and 4156 -001 -007 -0203. The Examiner in her CUP decision refers to Tax Parcel Nos. 4156- 001 - 004 -0008 and 4156 -001 -006 -0006. [90322-1] Katharine Cook, Director COBI Dept. of Planning & Conununity Development October 14, 2015 Page 4 Second, a turnaround had to be constructed for the use of the two properties in front of the Dufresne property and an easement recorded. That condition has also been met. See Attachment 10 (recorded Easement). The standard release for residential construction and use within geologically hazardous area was recorded on June 7, 2006, See Attachment 11. On October 23, 2014, the Health District issued a BSA for a four - bedroom septic system to replace the two - bedroom septic system. See Attachment No. 12. The approval is good until October 31, 2017. Significance of Prior Approv_afs Under the doctrine of finality, the approvals for construction of the Wall on the Dufresne site are binding on the City. Here, the Wall was approved and erected for the specific purpose of reconstructing residential home use. See site plan dated September 4, 2015. See also, SEPA Checklist, p.I ( "The purpose of constructing the catchment walls is to protect houses from future landslides. At some future date, a portion of the house located on the northern lot (tax parcel #0008) may be rebuilt." See also GeoEngineers' report dated September 25, 2003, Attachment 13 ( "Our services have been directed to design of a wall that will provide protection for existing and rebuilt homes along Rolling Bay Walk .... " }, On April 18, two separate Notices of Title were recorded on the property, encumbering the two parcels for onsite septic systems. See Attachments 14 and 15. The Encumbrances are to serve a proposed home and replacement home on the two lots Ms. Dufresne will. aggregate. Further, on December 23, 2004, the City allowed year round occupancy of the residency on the Fleck lot below the Wall. See Attachment 16. Thus, the City has already determined that use and occupancy of a home on the site is allowed. These approvals have the same effective status as an approved final plat: which the SMP considers vested against the new shoreline regulations. See BIMC § 16.12.030.B.3.b.ii. The SMP The SMP language cited above, Section 4.1.5.8.3 of the SMP, addresses construction on the face of the buffer or the steep slope setback or buffer. Even if there was a "marine bluff' on the project site (which is not the case as set out immediately below), under Section 4.1.5.8.3 of the SMP, no development is proposed on the "face" of the slope where the Wall is constructed or within any steep slope buffer. [90322-1] Katharine Cook, Director COBI Dept. of Planning & Community Development October 14, 2015 Page 5 (1) SMP1 se Matrix Allows Pro osd The SMP Use Matrix allows single - family homes in the Shoreline Residential designation. See BIMC § 16.12.030, Table 16.12.030 -1. Retaining walls and bluff walls are allowed as conditional uses. These structures are intended to allow residential development and use. Shoreline uses not listed as prohibited in the Table are eligible for variances or shoreline conditional use permits. See BIMC § 16.12.030.A.3. A marine bluff is not mentioned as a reason to "prohibit" residential development. See BIMC § 16.20.040.I.2(a) -(d). (2) Nn Marine Bluff The SMP provides the following definition: "Bluff, marine — means a high, steep bank or cliff" BIMC § 16.12.080 (emphasis supplied). The Wall takes the place of the dirt. The bluff is the portion above the retaining wall. The area below the Wall is essentially a pile of dirt, not a slope, and certainly not a "marine slope" because a natural steep bank or cliff no longer exists on the project site. Thus, the highly modified slope is not a natural shoreline form or feature as envisioned by the SMP definition of a "marine bluff." As noted above, the City approved a retaining wall. Therefore, under the unique circumstances, there is no "marine bluff' present on the Dufresne site as envisioned by the SMP's use regulation language cited by Staff or defined in the City Code. (3) Buffer Compliance The SMP allows development within 50 feet of the "crest" of the marine bluff or within a distance equal to the height of the slope from the crest (measured from the top) "...whichever is greater." BIMC § 16.12.060.K.4 ..c.i. The term "crest" is not defined in the SMP. Its ordinary definition is: "the highest part of point of something (such as a hill or wave)." http:ll www. morriani- webster.coznldictionary /crest. For the slope in question, the specific buffer language is found in BIMC § 16.12.060.K.5.c.i(A)(2), which allows a reduction to 10 feet. Here, under the exemptions to critical area regulation, the buffer could be reduced to zero. See BIMC § 16.12.060.K.6.f. The proposed home will be located approximately 65 feet from the shore, It would be about 10 feet from the retaining wall and about 25 feet from the catchment wall. See Attachment No. 2. The top of the slope is about 112 feet from the proposed residence. [90322 -f] Katharine Cook, Director COBI Dept. of Planning & Community Development October 14, 2015 Page 6 (4) CAO $ 3e1 q Rt:� The SMP deals with "critical areas." See BIMC § 16.12.060.C.3. While the proposed home is exempt from shoreline permitting requirements, it must meet the requirements of the SMP for critical areas. See BIMC § 16.12.060.B.1. The SMP requires Special Reports for "....development proposed on property with marine slopes...." See, BIMC § 16.12.060.C.3. See also BIMC § 16.12.060.K.4.c.i. (The SMP allows development "...adjacent to a marine bluff..." subject to approval of a special report prepared by a licensed geotecl -mical engineer.). With due respect to Staff, Ms. Dufresne believes that the focus should be on the 40 percent or greater slope, not a "marine bluff." The following standards must be met for activities within geologically hazardous areas or associated buffers: 5. Development Standards. a. General Requirements. The city engineer shall establish administrative procedures to implement this section. The applicant shall meet the following standards for all new activities permitted in geologically hazardous areas or associated buffers: i. The proposed activity shall not create a net increase in geological instability, either on- or off-site, which is defined as follows: (A) The subject parcel shall not be less stable after the planned development than before; and (B) The adjacent parcels shall not have greater risk or be less stable after the planned development than before. ii. The proposed activity shall not increase the risk of life safety due to geological hazards above professionally acceptable levels; iii. The proposed activity shall not increase the risk due to geological hazards above professionally acceptable levels for: (A) Property loss of any habitable structures or their necessary supporting infrastructure on site; or 2 See Attachment I 1 hereto, a geotechnieal report by GcoEngineers dated April 4, 2006 [90322 -11 Katharine Cook, Director COBI Dept. of Planning & Community Development October 14, 2015 Page 7 (B) Risk to any off-site structures or property of any kind; and iv. Proposed buildings shall be constructed using appropriate engineering methods that respond to the geologic characteristics specific to the site in order to achieve the highest standard of safety feasible; v. The proposed development shall not decrease the factor of safety for landslide occurrences below the limits of 1.5 for static conditions and 1.0 for dynamic conditions. Analysis of dynamic conditions shall be based on the minimum horizontal acceleration for the probabilistic maximum considered earthquake as established by the currently adopted version of the International Building Code; vi. The proposed activity shall not further degrade the values and functions of the associated critical areas. BIMC § 16.12.060K(5)(a) (emphasis supplied). In short, the applicable regulations hold the possibility of siting a home below the slope which ends at the top of the retaining wall. Marine Buffer Ms. Dufresne is not asking at this time to establish a marine buffer. The standard buffer width is set out in Table 16.20.030 (75 feet for an undeveloped lot). See also Table 16.12.030 -3, Note ( "For high bluff properties the greater distance of 50 feet from the top of the bluff or the standard shoreline buffer. "). Here, the greater distance is from the top of the slope. She may decide to use the site specific provision set out in BIMC § 16.12.030,B.3.c.iii.A.1, including preparation of a Habitat Management Plan. Thank you for your kind attention to Ms. Dufresne's request. We are happy to meet to clarify the request and provide additional information if requested. Very truly yours, DENNIS D. REYNOLDS LAW OFFICE Dennis D. Reynolds Enclosure (fee check) (Exhibits) Cc Lisa Marshall, City attorney (w/ encls.) [90322 -11 Katharine Cook, Director COBI Dept. of Planning & Commuiity Development October 14, 2015 Page 8 Attachments (see Index, nextpage) DDR/cr [90322 -1J Katharine Cook, Director COBI Dept, of Plaruiing & Community Development October 14, 2015 Page 9 Inclax of'Attachments Attachment 1 — Letter from COBI Associate Planner Christy Carr to Ms. Dufresne dated July 10, 2015 Attachment 2 — Proposed lot aggregation home design Attachment 3 — Photo Attachment 4 — Assessor Maps Attachment 5 — SCUP1256 issued to Michael Fleck, April 27, 2004 Attachment 6 — Bainbridge Island Hearing Examiner Decision dated March 25, 2004 Attachment 7 — Staff Report, March 4, 2004 Attachment 8 — Mitigated Determination of Non - significance dated February 18, 2004 Attachment 9 — Final inspection approval letter from COBI Building Official Mark Hinkley to Mr. Fleck dated October 28, 2010 Attachment 10 — Turnaround Access Easement, recorded August 21, 2007 Attachment 11— Standard release for residential construction and use within geologically hazardous area, recorded June 7, 2006 Attachment 12 — BSA approved by Kitsap Public Health District Inspector Steven Brown on October 23, 2014 Attachment 13 — GeoEngineers, Inc. geotecluiical report to Smallwood Design and Construction, Inc. dated September 25, 2003 Attachments 14 and 15 —Notices of Title for onsite septic systems, recorded April 18, 2006 Attachment 16 — Letter from COBI Building Official Mark Hinkley to Mr. Fleck dated December 23, 2004 [90322 -1] DUFRESNE: Code Interpretation Request (File No, PRE50287) CITY OI BAINBRIDGE ISLAND DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT July 10, 2015 Margaret Dufresne 1585 Parkview Drive Bainbridge Island, WA 98110 Re: File No. PRES0287 Pre - Application Conference Summary Dear Ms. Dufresne: Thank you meetilig Nvith City staff; to discuss the proposal to construct a new, single - family residence at 11131 and 11143 Rolling Bray Will k. As discussed at tlae pre - application conference, the current Bainbridge Island Shoreline Master Program (SMP) prohibits development on the face of a marine bluff (SMP Section 4,1.5.8.3), A marina bluff is defined as "slopes greater than 40 percent that exceed n vertical height of 10 feet" (SMP Section 4.1.5.7.2), Tile City's current GIS database indicates that almost the entirety of your property is encumbered by a marine bluff. Moving forward, you are free to submit a shmellne substantial dovelopnient exemption (ME) application; however, based on the prohibition of development on marine bluffs, tha City will be unable to approve, it. Alternatively, you may request an adan inistrirtive code interpretation of the shoreline master prbgrarn in accordance with Bainbridge Island Municipal Cade (BIMC) 2.16,0200.3, Both of these are administrative review procedures that result in an administrative decision 'issued by the Director of the DepaartnienL of Planning and Community Development, These administrative decislons may bo appealed to the 1-Iaaring Examiner in accordance with BJMC 2,16.020.P. Both the SSDE application and administrative code interpretation rNuest application are available on the City's website: htttx IlwwwY ci.baainbridK- isi.wa�s /16ll oct�mesatx- Farms - p lications or from the Department of Planning and Community Development, If you have any questions, please call me at 7803719. Sincerely,,,pp�� f�t'l Christy Carr Associate Planner PIcasa noto Illy hrrormntlon provided atllte pro- applicatia€r co:Oereace Ind In tlsis letter tp[icuts ex[alinf,codes and stnndanls, cornmlly ayallable Inforniptiols mini idle site land esrvirasts, nerd the level ofdt:iail plovidedin the pre- npgliontion eanNrenu: submittal. Connnmra prnvidcd pursuant to pre - application review $1,011 not be culstnaed na rcdeve the DWI IDent of conromumoo wlth all appilesblc fees, tlodas, policies, anti sianri€rrds ill erreci at 11te 111110 orcomploo land us>a permit appllcattiart, 7ltc eunrmmns on this ptoppmi do not mprescnt or g€ nintee npproval or anji projot or pormit. Will le we have alteirrptsd to covcr as many of tlru Planning, ftinearing, Building uld Fire related nspccu aryour larujausnl na pvssitrla dilring Mils proliminery rovlew, subsogaunt ravieiv oryoor land use perrnit nppilcation may ,cairn} issuo not identiftcd,hiring tiro is ilrki"I ravim. If the city's pro-npplI tat lot) review indfontcs that the City intends to recoinmcad or impose ano or more conditions ui'permiI upliroval, 11n41 If ills ej]l,tiCirilt atJ,{eelSlfJ tiny pf sn1St aandltifyRS, the nppllsaslt is Iteralsy regeasaed tu,d ndvl;+cd to ptovir3€: tvrrHssn €rnlice to tiro Clay of 9l9slels aondlllow, doe applicant abieals tti raid the teacnns l'tsr Ole app iatutl's objeerions, 280 MADISON AVENuRNORTH V BAINBa1DG13 ISLAND, WA * 98110-2824 PIIoNE: (206) 842 -25520 FAX: (206) 780.0955 a EMAIL: pcd ©ci.bai abridge- isl,wa,us www,ci.balnbridge,41ma,us DUFRESNE: Code Interpretation Request (File No. PRE50287) ATTA 11MENT 2 08 t,7 b Ln-7 A � C-7 -K /�- TI C) 1Z TO 7N L -R5Ta L LL-T C(N ER K-Gi E ti 4 LL-nw E t) � I b C', -,p .:p Lu T L l ERWh 6 ALL -S I kH Y-1 Pu Cn'E T -S b b hl 1) a OZ r r Vi a U cd r pD J I " pD DUFRESNE: Code Interpretation Request (File No. PRE50287) z' 1' AYl'•i1p �q, 1�, �a J +!k' T`6, WIN oil .c ' .�• r,liyw�4 r a , r "5 ,4�y {fit pit Am DUFRESNE: Code Interpretation Request (File No, PRE50287) ATTACHMENT 4 Kitsap County Parcel Search Print Map scale: 1 : 2,400 N 14)0 , i - F, I C -7 J. - 1211 4-053 4 -050 -�rj CI Page I of I Printed: Tuesday. Oct 6, 2015 0,q This map is not a substitute for field survey COMMents X 0 100 200ft https:Hpsearch.k its apgov. corn/webappa/printFrrn, html? extent— 1226 3 8 7,245 5 54,123 15 3 7,2... 10/6/2015 Kitsap County Parcel Search Print Map scale: 1: 2,400 14 - 0 15 -9/ It - 01 10 I -11.0 II I a 5 ** ThIs map is not a substitute for field survey ** x A - (3501 Page I of I Printed: Tuesday. Oct 6, 2015 0,0 O g-0 Z- I - - "= 0 i0o 200ft Comments IN w hops:llpsearch.kitsapgov.uornlwebappalprintFrm,litml?extent=1226387,245554,1231537,2... 10/6/2015 •11 CU II I a 5 ** ThIs map is not a substitute for field survey ** x A - (3501 Page I of I Printed: Tuesday. Oct 6, 2015 0,0 O g-0 Z- I - - "= 0 i0o 200ft Comments IN w hops:llpsearch.kitsapgov.uornlwebappalprintFrm,litml?extent=1226387,245554,1231537,2... 10/6/2015 DUFRESNE: Code Interpretation Request (File No. PRE50287) SFAf1 :01 WASHING70N DITAR- MENT O1- ECOLOGY Northwest Rep;onal offic•c ^ 3(9(1 16011t flvcnue y(: - Jfellevue, 141,ishing(nn 9110011 -5452 0 (425)) 649 -7000 April 27, 2004 Larry Frazier, Planning Director City of Bainbridge Island Department of Community Development 280 Madison Ave. North Bainbridge Island, WA 98110 Rob Smallwood Smallwood Design and Construction, Inc P.O. Box 1308 Bainbridge Island, WA 98110 Dear Mr. Frazier and Mr. Smallwood: ( certify that I mailed a copy of this document to the persons and addresses listed thereon, postage prepaid, in a receptncle for UI ited .(alas nn it in Bellevue, Washington on -41__, 2004. I RE: Bainbridge Island Permit # SCUP 12566 MICHAEL FLECK - Owner, Via Rob Sinalhvood- Applicaut Ecology Shol-eline Conditional Use Permit 2004 -NW -50025 CITY 9V !10 GF I "'LAW 1) DEPT O PLAWNW.) 14 COMMAITY DEVEWNJJG The Department of Ecology has reviewed the above referenced Shoreline Conditional Use Permit for: • The construction of two sets of parallel soldier pile walls, one set being 40 feet long (parcel 4156 -001 -006 -0006) and the other 100 feet long (parcel 4156 -001- 004 - 0008). The tipper walls would extend approximately 10 ft. above grade and the lower walls would be approximately five ft. above grade • The parallel walls would be approximately 14 ft. apart, with the upper, catchment walls serving to `batch" future slide debris and the lower walls serving as retaining walls to support the maintenance access between the parallel walls. • The soldier piles for these tipper, catclunent walls would consist of steel I -beam columns set in drilled holes (not hammered) 34 feet below grade. • The I -beams would be tied back into the slope and pressure treated timbers would comprise the lagging between the I -beams • The proposal includes provision for the collection and control of drainage from the slope above and the area behind the walls. Erosion and sediment controls would be required during construction • The capacity of the debris catchment area between the walls will be maintained by monitoring and removing slide and erosion debris from behind the front wall This proposal is to provide protection for residential properties that incurred damage or were tagged by the City of-Bainbridge Island as too dangerous to inhabit because of actual or possible damage from landslides, without increasing risks to adjacent properties. o Larry brazier Rob Smallwood April 27, 2004 Page 2 The project is intended to reduce the overall landslide risk to the houses and property located at the toe of the slope along Rolling Bay Walk. We concur that the proposal, as conditioned by the City of Bainbridge Island, meets the intent of the Bainbridge Island Shoreline Master Program and the criteria set forth in WAC 173 -27 -160 for granting a Conditional Use permit, provided that: All required and suggested measures for construction, maintenance and monitoring of the retaining wall, drainage and catchment structure systems shall be specifically followed and schedules adhered to. Copies of reports generated shall be sent to Ecology for this permit file. Redevelopment or rebuilding of damaged residences in the event of a landslide shall be addressed through separate shoreline substantial development, variance, and /or conditional use pei•tnits. The review of this shoreline permit by the State is for consistency with the Shoreline Management Act and the Bainbridge Island Shoreline Master Program and does not evaluate whether the property is safe to inhabit. The permit is hereby approved. This approval is given pursuant to requirements of the Shoreline Management Act of 1971. Other federal, state, or local approvals may be required. Those developments and activities authorized by the subject permit may not begin until twenty -one (21) days from the transmittal date of this approval letter, or until conclusion of any review proceeding (appeal) initiated within the twenty -one day period. The Shorelines Hearings Board will notify you by letter if this permit is appealed. If you have any questions on the above action, please contact Sandra Lange at (425) 649 -4260. Sincerely, Al Jeannie Summerhays, Section Supervisor Shorelands and Environmental Assistance Program JS:SL:rc cc: Joshua Machen, City of Bainbridge Island Michael Fleck Enclosure SHORELINE MANAGEMENT ACT OF 1971 APR 0 7 2004 PERMIT FOR SHORELINE MANAGEMENT SUBSTAN'1'IAI PT OF ECOLOGY DEVELOPMENT, CONDITIONAL USE, OR VARIANCE [X] Substantial Development Permit [X] Conditional Use [ ] Variance Application No, SCUP12566,_PRJ -12566 Administering Agency City of B�c island Date Received September 30, 2003 Approved X Denied Date of City Issuance March 25, 2ON Date of State Issuance Date of Expiration March 25, 2009 Pursuant to RCW 90.58, a permit is hereby rag�utedldenied to Smallwood Desio and Construction, Inc, Rob Smallwood Contact Michael Fleck, Property Owner)_ (Name of Applicant) P.O. Box 1308, Bainbridge Island, WA 98110 _ (Address) to undertake the following development: cons uccti[rn of retainin catchment "IN t�-ratect umi Lin single »� esidetsces f osn fru laer da age frnrrtsltGl_s " "t1 debris The proppol consists o#-(wo sets of parallel SpIffier pile walis, one set beirip, 40 fee areal U4156-{101- 006 - 0006). and Leather being 100 feet a eel #4156- 001 -004 -0008 in Ijen tlt witlr the « Ver walls extending l0 -fect above grade and the lower ►walls extending 5 -feet above ,grade. upon the following property: 10994 and 1112 Wpll:; homing, n.Isartio�t_ of Section 14� To►v�ish3p 25N Range 2E., W.M. Tax pareeA !1156- 0QL --P.04 -0008 , and l I56 -001- 006 -0006 described as: PARCEL A: LOT 5 IN BLOCK 1 OF MANITOU PARK, AS PER PLATRECORDED IN VOLUME 3 OF PLATS ON PAGE 31, RECORDS OF KITSAPCOUNTY, WASHINGTON; EXCEPT THAT PORTION OF SAID LOT 5 WHICHLIES SOUTHERLY OF A LINE DRAWN FROM A POINT ON THE WESTERLYLINE OF SAID LOT, 205 FEET NORTHERLY FROM THE SOUTHWESTERLYCORNER THEREOF, TO A POINT ON THE EASTERLY LINE OF SAIDLOT, 175 FEET NORTHERLY FROM SOUTHEASTERLY CORNER OF SAIDLOT 5; AND EXCEPT THE EASTERLY 25 FEET THEREOF; AND EXCEPTTHAT PORTION OF LOT 5, BLOCK 1 OF THE PLAT OF MANITOU PARK,AS RECORDED, IN VOLUME 3, PAGE 31, PLAT RECORDS OF KITSAPCOUNTY, WASHINGTON, SITUATE IN GOVERNMENT LOT 1, SECTIONI4, TOWNSHIP 25 NORTH, RANGE 2 EAST, W,M., LYWGSOUTHEASTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING ATTHE NORTH QUARTER CORNER OF SAID SECTION 14, (A CONCRETEMONUMENT); THENCE ALONG THE NORTH LINE OF SAID SECTION 14,588 *41'28 E 1319.72 FEET TO THE NORTHWEST CORNER OF SAIDGOVERNMENT LOT 1; THENCE S65 *20' 17 E 492.87 FEET, THENCES38 *24'W 40.00 FEET; THENCE S51 *36'E 26.42 FEET TO THENORTHWESTERLY LINE OF THE SOUTHEASTERLY 25.00 FEET OF SAIDLOT 5 AND THE TRUE POINT OF BEGINNING; THENCE N51 *36'W26.42 FEET; THENCE N38 *24'E 50.00 FEET; THENCE S51 *36'E36.52 FEET TO THE SOUTHEASTERLY LINE OF SAID LOT 5 OF SAIDBLOCK 1; THENCE ALONG SAID LINE N20 *28'32 E 110 FEET, MOREOR LESS, TO THE LINE OF MEAN LOW TIDE AND THE TERMINUS.PARCEL B: THAT PORTION OF LOT 4, BLOCK 1, OF MANITOU PARK,AS PER PLAT RECORDED IN VOLUME 3 OF PLATS, PAGE 31, RECORDSOF KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS,BEGINNING AT THE NORTH13AST CORNER OF LOT 4; THENCE S 14 *38' W 106 FEET; THENCE N66 *10'W TO A POINT ON A LINE 45 FEETWESTERLY, AND PARALLEL WITH EASTERLY LINE OF SAID LOT 4;THENCE NORTHERLY ON SAID PARALLEL LINE TO THE NORTHERLYLINE OF SAID LOT 4; THENCE SOUTHEASTERLY ALONG SAIDNORTHERLY LINE TO THE NORTHEAST CORNER OF SAID LOT 4 TO THETRUE POINT OF BEGINNING; EXCEPT ANY PORTION THEREOF LYINGWESTERLY OF A BOUNDARY LINE AGREEMENT, DATED AUGUST 14,1972, AND RECORDED UNDER AUDITOR'S FILE NO. 1028463; SAIDLINE DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTCORNER OF SECTION 14, TOWNSHIP 25 NORTH, RANGE 2 EAST,W.M., IN KITSAP COUNTY, WASHINGTON; THENCE S88 *40'10 E2647.10 FEET TO THE NORTH ONE QUARTER CORNER OF SAIDSECTION 14; THENCE S88 *41'28 E 1319,72 FEET TO THENORTHWEST CORNER OF SAID PLAT OF MANITOU PARK; THENCECONTINUING 588 *41'28 E 15.00 FEET; THENCE S0 *54'32 W 15,OOFEF,T TO THE NORTHWEST CORNER OF LOT 1 OF SAID PLAT; THENCES88 *4118 E 315.00 FEET TO THE NORTHWEST CORNER OF LOT 4,OF SAID PLAT; THENCE CONTINUING S88 *41'28 E 45.79 FEET ANDTHE TRUE POINT OF BEGINNING; THENCE S11 *59'32 W 101.07 FEETTO A POINT ON THE CENTERLINE OF AN EXISTING BULKHEAD;THENCE ALONG SAID BULKHEAD S50 *16' l5 E 9.53 FEET; THENCES39 *43'45 W 18.08 FEET; THENCE S11 *59'32 W 122.65 FEET TOTHE NORTH LINE OF THE SOUTH 255 FEET OF SAID LOT 4 AND THETERMINUS OF THIS AGREEMENT LINE, and E112 LOT 6 EXC SLY 175FT Tf1OF TGW TH PTN N W LY 1/2 SD LOT GLY SELY FDL BAT N1/4 COR SEC 14 TH ALG.N LN SD SECS88 *41'28E 1319.72FT TO NW COR GOVT LOT 1 TH S65* 20'17E492.87FT TH ALG SWLY FACE OF CONC BLKHD S51 *36'00E 71.25FTTH S38 *24'OOW 70FT TH S00 *39130E 98.42FT TO SELY LN OF NWLY1 /2 SD LOT 6 & TPOB TH NOO *39'30W 98.42FT TH N38 *24'OOE70FT TH CONT N38* 24'00E 10OFT M/L TO LN OF MEAN LOW TIDE &TERM SD LN BEING DESC UND AUD NO 8303090106 Within upland of Ihas;el Sound and /or its associated wetlands. (Nance of Water Area) The project will not be within shorelines of statewide significance (RCW 90.03.350) (be %tot be) The project will be located within a , Setui -rural designation. (Environment) The following master program provisions are applicable to this development: Section 111, A, Archaeological and historic resourees, B. Cfearing ated gradin D. Envirr wlientaJly sensitive areas, and Section VII Administration, J. Shoreline Candiflonal Use Permits. (State the Master Program Sections or Page Numbers): If a conditional use or variance, also identify the portion of the master program which provides that the proposed use may be a conditional use, or that portion of the master program being varied. Development pursuant to this permit shall be undertaken pursuant to the following terms and conditions: SEPA Conditions 1. In order to mitigate the aesthetic impact of the retaining walls on the shoreline bluff and to ensure future stability, water quality, and wildlife habitat, a vegetation management plan to the satisfaction of the Director shall be submitted prior to the issuance of a building permit. This plan shall include, at a minimum, the following items: a. Revegetation /L,andsca iu 131ttt� A plan for all cleared areas within 200 feet of the shoreline showing the location and size (at planting) of trees, shrubs, and groundcover selected from the Plant Selection Guide in the DOE publication "Slope Stabilization and Erosion Control Using Vegetation" [Exhibit 37]. The Page 2 of 4 Michael Fleck SCUP12566 City of Bainbridge Island plants selected should be suitable for the slope conditions and Effective for screening; the retaining walls. The plan shall atsa. noic the techniques to be used for planting (r.. + +. , seeding, staking) and measures to he used to control erosion while plants get established (e,g_ tnuich, jute matt). b. Monitorin g mid Schedule A schedule documenting when and how the health of vegetation will be monitored. Maintenance may include minor trimming of vegetation to preserve views of upper properties as long as the trimming does not threaten the health of the vegetation. Trees that are in danger of being undercut, toppling, or otherwise becoming unstable, should be removed. c. Maintenance Assurattt e A device prepared in accordance with the provision BIMC 18.85.090(D). 2. All cleared areas within 200 feet of the shoreline shall be replanted in accord with the approved revegetation /landscaping plan in the first planting season that occurs following completion of construction. 3. All graded materials removed from the site shall be hauled to and deposited at City approved locations, (Note: Local regulations require that a grade /fill permit is obtained for any grading or filling exceeding 50 cubic yards of material and that a SEPA Threshold Determination is obtained for any fill over 100 cubic yards). 4. All recornmendations of the geotechnical report (Geo Engineers, September 25, 2003) shall become conditions of approval, unless modified by the engineer and accepted by the City Engineer. 51 In order to prevent loss of significant archaeological resources, if anything of possible archaeological interest is uncovered during site activities, all work must stop immediately and notification be. promptly given to the City and State Office of Archaeology and Historic Preservation. The applicant shall receive permission from the State Office of Archaeology and Historic. Preservation prior to further disturbance of the site (RCW 27.53,070 or its successor), Prfj ect Conditions 6. A hydraulics project approval from the Department of Fish and Wildlife shall be obtained prior to the use of a barge to bring machinery and or materials to and from the site. 7. The project shall be consistent with the details and statements contained in the application date - stamped September 30, 2003. 8. Satisfactory indemnification /hold harmless agreement(s) in accordance with the Critical Areas Ordinance, BIMC 16.20.080(C)(2)(g), shall be provided to the City prior to building permit issuance. CONSTRUCTION PURSUANT TO THIS PERMIT WILL NOT BEGIN OR IS NOT AUTHORIZED UNTIL THIRTY DAYS FROM THE DATE OF FILING AS DEFINED IN RCW 90,58.140(6) WAC 173 -27 -130, OR UNTIL ALL REVIEW PROCEEDINGS INITIATED WITHIN THIR'T'Y DAYS FROM THE DATE OF SUCH FILING HAVE TERMINATED; EXCEPT AS PROVIDED IN RCW 90.58.140(5)(A)(13)(C). l'or sjgu-, tune $ he' City uF f3a nbfidge slarid Hearing, Examiner Decision si z�Maich 3, 2004. Page 3 oF4 Michael Fleck SCOP12566 City of Bainbrldgc Island (Signatta•e of Authorized Local Government) TII[S SEC'1'ION FOR DEPARTMENT OF ECOLOGY USE ONLY IN REGARD TO A CONDITIONAL USE OR VARIANCE PERMIT. Date received by the [) {:l�aruncrit ^ ^� �G7/IC'�� , r �' �'tj� t t_�'�'f 'I -Z :� -� 'K Appt'ovad �. —Denied This conditional use /variance permit is approved /denied by the Department pursuant to chapter 90.58 RCW. Development shall be undertaken pursuant to the following additional terms and conditions: - - -�1 /J ;�1% `/ ��.�� •'1'7.1- �. ,r''�.�.�° _'��... - -. v — _ - (date) (Signature of Authorized Department Official) Page 4 of ,1 Michael fleck SCUP12566 City of Bainbridge isiand LOON U�r1: rn., s.na rr r � n 4 •U L N S J 3��� fiWne I ,! ,lA.ler1°ell Ni sf .r'f+ a 1 ; 7,� ADAM Site Pla'71. °P°' g GOLDSWOR91HY, INC, Rolling Bay (Palk Bc6 .� ;4 Covornmonl Lot I LAND SURVEWNG SNC.14, T.25N., R,2C..r W,". 1015NE11OSn(ANK Sr. J60479 -1299 Fb1nN9tan P0UL540, WA 94J70 209 -4t2 -9394 K7I EW/l5 A•„rr M�fn,r NV ul mwum•nfslb, ca 1A. p fpr,d ru NN VIAV nao 9a" 7)017 -9f $n1allwaad Da91'4n and Construction 09490G=11 JN[Er 111 Iryp. p�yet ,-& cenrtuc sc,ue l ii urdl $ow I 3��� fiWne I ,! ,lA.ler1°ell Ni sf .r'f+ a 1 ; 7,� *if mAlvA WW fY .� ;4 coge VICINITY MAP A•„rr M�fn,r NV ul mwum•nfslb, ca 1A. Sec.74, T25N., R.2E., W.M. Orr.r Naln r. r e1 l.r lr,n 11, cenrtuc sc,ue l j !1 ' cult tc bb,W. wwo L'NNtN t'°n I>a` Nllruk 4 tl Ivt ) *if mAlvA WW 1��ad. VCfi j 1, NN •ro ' ,V �ygn 1Y L7 CV N or °4 NlfAmE Vy� ANVV ' ,tr � iA9cRoo [4r; V °hf II If�CO]•t91 -!JN �i�yy OF PLANNING -Y�\ ,'r1 ua fY A•„rr M�fn,r NV ul mwum•nfslb, ca 1A. KIy„ Orr.r Naln r. r e1 l.r lr,n 11, I "a [y�•, m'ey e w un ;'�fre' eer'iu �o rr o fi:+ i 7 !NN r9f•ormoll ,n i bpi 1 W, S 1� I 19 fh . IF frvlw,lr,r Lfnlrrh It II rlhN pr,n 1��ad. VCfi j 1, NN •ro ' ,V �ygn 1Y L7 CV N or °4 NlfAmE Vy� ANVV ' ,tr � iA9cRoo [4r; V °hf II If�CO]•t91 -!JN �i�yy OF PLANNING -Y�\ ,'r1 ua DUFRESNE; Code Interpretation Request (File No, PRE50287) ATTACHMENT 6 mAR 25 AmM.OG Ile Of- DECISION 01? TOE HEARING 19XAMINEIL ��� }��aF �+ tl����; ���•���it��l CITY OF BAINBRIDGE ISLAND I =011y `' MIE?e In the Matter of the Application of 0EV o OF PLANING COMMUMN DEVELOPMENT MIXCIH A EL FLECK SCUP12566 for a Shoreline Conditipna.l L1se Permit Introduction The Applicant seeks a Shoreline Conditional Use Permit to construct retaining/catchment walls within the shoreline Semi -Rural Environment, The Hearing Examiner held a public hearing on this matter on 'March 11, 2004, Parties represented at the hearing wore the Director, Planning and Community Development 1_?epartrnent, by 1'oshtm 'Mac;hen, Associate Planner, and the applicant, Michael Fleck. After due consideration of all the evidence in the record, the following shall cowdltute the findings, conclusions, and decision of the Hearing Examiner on this application. Vindings Background 1. The project site is addreswd as 10994 & 11 129 Rolling Bay Walk and includes tax parcels 4156. 001 - 004 -0008 and 4156. 001. 006 -0006. The zoning is R -2, residential, two units per afire, The property has a Semi -Rural Environment designation under the shoreline master program. (Exhibit 33, page I ] 2, Access to the subject property is via Manitou Park Boulevard, Rolling Bay Walk, a narrow road/walkway that fronts Puget Sound, begins at the terminus of Manitou Park Boulevard, The road portion is wide enough for vehicle access for about 100 yards and then it narrows to a walkway. [tolling Bay Walk (not a public street) is developed with a row of houses built between the base of the steep slope and Puget Sound. [Exhibit 25, page 11; Exhibit 33, page 4; Testimony ofMachen and Fleck] 3. The slope above the subject site is designated in the Washington State Coastal Zone Atlas as being 40% or greater slope and unstable base [Exhibit. 33, page 4], The area has a history of landsliding and slope instability. Slides occurred in 1996 -1997 that SCUP12566 Pap 1 of kQ originaiecl from the upper portion of the steep slope and moved rapidly downslope during, cxtenciccl periods of Ideavy precipitation, [1 xhibit 25, page 3] 4. Over the past several years, the tiny beach neighborhood along Rolling Say Walk has exparien ed landslides that have damaged and destroyed some homes. Slides in 1996 -199" were particularly destructive, resulting in the death of family of four when their house was demolished by a slide. The houses at 11111 and l 1099 Rolling 13a.y Walk were also destroyed and others were so damaged as to prevent them from being; occupied. Tbc slides also forced closure of that part of Gertie Johnson Road (a public road) that had previously provided vehicular acem to the subject property from the north. [Exhibit 25, pages 3 and l 1; Exhibit 33, page 4; Testimony of Machen and Fleck} S. Some of the damaged houses along Rolling Bay Walk have been "red tagged" (i.e., considered unsafe to occupy) and some are limited to seasonal surnmCF -) occupancy due to life safety concerns. The subject proposal is intended to reduce the overall risk of landslides to the houses located at the toe of the slope, so that they could be occupied year -round and/or the property redeveloped. [Exhibit 25, pages 3 and 9; Exhibit 33, page 4; Twimony ofMachen and Fleck j 6. Smallwood Design and Construction, Tno., on behalf of the property owner, Michael Fleek ( "Applicant "), has submitted an application for a Shoreline Conditional. Use Permit ("SCUP ") for the construction of catchment/retaining walls to protect the sub }ect properties from feather damage from sliding debris.. The Planning and Community Development Department ( "Department ") deemed the application to be complete on October 13, 2003. [Exhibits 2, 8, 17, and Exhibit 33, pagers 1 and 3; Testimony of Machea and Smallwood] 7. Notice of the application was given on October 18, 2003 [Exhibits 16 and 24]. No comments on the application were submitted to the Department in response to the Notice of Application (one person requested to receive notices of any actions regarding the application [Exhibit 19]), The Director issued a SEPA Mitigated Determinatioct of Significance ( "MDNS ") on February 13, 2003 and at that time gave notice of right to appeal that threshold determination [Exhibit 31]. The MDNS was not appealed. 8. The public bearing on the applications was properly noticed with posting, mailing, and publimbon on February 19, 2004 [Exhibit 32]. Two neighbors submitted comments to the hearing record [Exhibits 35 and 36]; see Finding 24_ Proposal 9. The proposal consists of the construction of two sets of parallel soldier pile walls, one set being 40 feet long (on Parcel 4156- 001 -004 -0004) and the other 100 feet long (on Parcel 4156- 001 - 004 - 0008). The upper walls would extend approximately 10 feet above grade and the lower walla would be approximately five feet above grade, The parallel walls would be approximately 14 feet apart, with the upper (catchment) walls serving to SCUP12W Pap 2 of 10 "catch" future slide debris and the lower walls serving as rctainin$ walls to support the maintenance access between the parallel walls. The soldier piles for the upper, catchment walls would consist of steel I -beam columns set (holes drilled, not hammered) to approximately 34 feet below grade, The 1 -beams would be, tied back into the slope and pressure treated timbers would comprise the lagging between the 1- beams, (F?,xhibit 33, page 1; Exhibit 25, page 2; Exhibits 3, 4, 5, 6 and S. and Testimony of Machen, Smallwood, and Tuttle] 10. According to the consulting engineer responsible for the design of the walls, the walls would provide protection for existing and rebuilt houses from slope failures similar in nature and size to those experienced in recent years. The design is such that the walls would resist the impact of sail mass involved in a slope failure. The engineer cautions that if large trees or stumps were to be carried down slope in a landslide (as happened in the recent slides), damage to the wall could be substantial_ He recommends that trees on the upslope properties be monitored and removed when they become undermined and/or otherwise pose a risk to come down the slope. [Exhibit 6, pages] -2, and 4; Exhibit 29; Testimony of Tuttle] 11, The proposal includes provision for the collection and control of drainage from behind the walls and down the slope above the walls, Erosion and sediment controls would also be required during construction, (Exhibit 6, pages 3-41 12, 'T'he consulting engineer notes that recent slides in this area have originating front the upper portions of the slope. Construction of the proposed walls would not change the risk of instability of the upper slope. That is, there will continue to be landslide events similar to those experienced in past years; the purpose of the walls is to provide a reasonable level of protection for the residences below (4e,, to arrest the slide debris before it reaches the residences). To provide this level of protection, the capacity of the catchment area must be maintained by removing slide debris from the behind wall, The engineer has affirmed that the project as designed would provide an adequate factor of safety for the subject property and that geotechniaal risks to adjacent properties would not be increased, [Exhibit 6; Testimony of Tuttle] Director's Recommendation 13, The Director concluded that, as conditioned, the proposal would be consistent with the applicable provisions of the Shoreline Master Program (BiMC 16.12.050, 16,12,060, 16,12.080, and 16,12.380), the Critical Areas Ordinance (BTMC 16.20,080), and the Zoning Ordinance (BiMC 18.30.070). [Exhibit 33, pages 4-61 14, The Director recommends approval with the following conditions (Exhibit 33, page 3]: SCUP12566 Page 3 of 10 SEPA Conditions 1, To mitigate the aesthetic impact of the retainin}, walls oil the shoreline }sluff and to insure future stability, water rurality, and wildlife habitat, a vegetation management plan shall bcr scibmitted prior to the issuance of a building permit, which includes at a naiuin)um the following items: a. A landscaping plan, which contains trues and naedhi n to large shmbs, which ,u•c suitable lbr the slope and that will scrMn the retaining walls. All Cleared areas within 200 feet of the shoreline shall be replanted. h. A maintenance schedule to ensure on -going health of vegetation across the bluff face. Minor tdrnming of vegetation to ,preserve views of upper properties is allowed as long at the trimming does not threaten the health of the vegetation, c. A tl+ree -yw maintenance assurance shall be provided to insure the gtablishmcnt and health of the landscaping in accordance with B1MC M85.090(D). 2, All graded materials removed from the site shall be hauled to and deposited at City approved locations. (Mote: Local regulations require that a gradrltill pertriit is obtainod for any grading or filling exceeding 50 curio yards Cal material and that a SE-PA Threshold Determination is obtained for any fill over 100 cubic yards), 3. All recommendations of the geatechnical report (Goo Engineers, September 25, 2003) shall become conditions of approval, unless modified by the engineer and accepted by the City Engineer. 4. In order to prevent loss of significant archaeological resources, the following measures shall be taken in the event phenomena of possible archaeological interest is uncovered during site activities: all work will stop immediately and notification shall be promptly given to the City and State Office of Archaeology and Historic Preservation. The applicant shall receive permission frrom the State Office of Archaeology and His-torio Preservation prior to further disturbance of the site (RCW 27.53,070 or its successor). Project Conditions S. A hydraulics project approval from the DcpWment of Fish and Wildlife shall be obtained prior to the use of a barge to bring machinery and or materials to and from the site, 6. The project shall be consistent with the details and statements contained in the application date- stamped September 30, 2003. SCUP 12566 Pa$a 4 of 10 7. An indernnification/hold harmless agreements in accordance with BIMC 16,20,080(C)(g) shall be provided prior to building permit issuance, Code Sections 15. Shoreline Master Program (SMP), BTMC Chap, 16,12, regulates development in the shoreline. 16, The SMP, at BIMC 16.12.150, Table 44, designates that single - family residential uses are permitted in the semi -rural shoreline environment. The Director his determined that the application for construction of retaining/catohment walls to protect single - family residences should be reviewed as a shoreline conditional use. [7estimony ofMachen) 17. Regarding review of an application for a shoreline conditional use permits, BIMC 16,12,3$0(C), provides as ;Fellows, 1. Uses r- Irrrsified as conditional usew may he authorized, provided, that the a. plicwit can demonstrate all of the following. a. The proposed uve will he consistent with the policies of RC:W 90, 58.020 or i1Y miceessor and the jxkcies s f the mavier program. h, 'the proposed use will not Interfere with the normal public use, of the public . shoreline x C. M proposed use of the site and design of the projee i will be comratffik with other permitted uses within the area. d The proposed ore will cause no unreasonably adverse effects to the . shoreline environment defignationin which It is located. e. The public intercAd a'ttffers no awhslantial detrimental of g :i. f, The propaved use is consistent with the provixiarty of the zoning; ordinance ... and the comprehensivo plan,,, 18. Regarding u%% which are not listed in the master program as permitted, conditional, or prohibited, BIMC 16.12.380(0)(2) provides that they; .,,may bc, authorized as condilional uses provided rho applied"I can dramonstraie, in acltlition to the criteria ,set forth in subsection C. l of thi'T ,section, Mat exerawdinary eircumstances preclude rerxwtuible ceonamic use of the property in a manner consinent with the pnlieics df ItC'W 90,58.020, or /Is ,vncccTsot,, that lite proposed use would not prcxhe,ce significant adverse effects on the shoreline environment. 19. BIMC 16,12.350 provides. than 1. the city of Bainbridge Island he >trring examiner is vested with autdwrity to: SCUP12566 Paj�c5 of 10 a. Approve, approve with conditions, or deny ,shoreline variance ami shoreline conditional m,se permit applications after a public hearing acrd after considering the findjngs and recommendations of the director, which shall be given mbstantial weight... Analysis 20, No archaeological or historic resources are known to exist on the subject site. However, the SMP protections for such resources, at BIMC 16,12,050(13)(1), include that; "All ,shoreline perinhs shall contain provisions which require developvra to immediately strip work and notify the city if any phenomena of possible archaeological rnt(re.tit are uncovered during excavattior+ ". Consistent with BIMC 16,12.050(B)(1), the SCUP would have such a provision as a condition of approval. 21, The SMP, at BIMC 16.12.060(C), requires that areas disturbed by clearing or grading "shall he replanted within the first applicable planting seaYon " after completion of construction. Consistent with this requirement, the Director recommends that a condition mandating replanting be a condition of approval [Exhibit 33, pages 3 -$]. Proper plantings would help with slope stabilizAtion and would also screen the wails to provide mitigation for possible methetic impact. As discussed at hearing, the ,plant sclmtksn and the inethods uwd for !Slanting and maintaining the plantings, should be designed and implemented following the guidance provided in the Department of Ecology (DOE) publication entitled "Slope Stabilization and Frosion Control Using Vegetation" [Exhibit 371. This booklet provides a plant selection guide and recommended planting techniques for revegetation intended for slope stabilization, The Director has consulted with DOE regarding slope stability, maintenance, and wall design (Testimony of Machen and Smallwood], A revegetation/landscape plan designed and implemented in accord with the recornmendatiom and guidance of the DOE publication is a neoes.wy condition for consistency with the SMP regulations and policies for revegetation and minimizing impacts, 22, The SMP, at BIMC: 16.12.080, notes that where environmentally sensitive areas are disturbed, "revegetation with native or other approved vegetation shall he required ", As conditioned, the proposal is consistent with this requirement. 23. BIMC 16,12.080 also refers to the Critical Areas Ordinance MYMC Cbapter 16,201 as the primary regulation for environmentally sensitive areas, The wbject site is located in a geologically baxardous area. BIMC 16,20,080 has a number of requirements including: minimizing disturbance, replanting to prevent erosion, using native plants, and requiring an indemnification or hold harmless agreement from the property owner. The project, as conditioned, complies with those requirements, The applicant's engineer and the Assistant City Engineer have determined, consistent with BIMC 16.20,080, that the proposed catchment/retaining walls are safe and that the risk to adjacent properties from the geological hazard is not increased as a result of the catchment/retaining walls. [Exhibits 6; Exhibit 33, pages 5 & 6; "testimony of Machon and Tuttle] SCUP12566 Pago 6 of 10 24, Comments from concerned neighbors were received at the public hearing (Exhibits 35 and 36; Testimony of Parker]. The fundamental concern expressed was that the project not increase risk to upslope properties, Specifically the following actions were requested; allow slide material deposited behind the walls to remain (so that the "too" of the slope be stabilized); install proper drainage system; limit construction to dry season only; remove dangerous trees; and, replant for slope stabilization, 25. The engineer looks to the proposed walls, not a build -up of slide material, to funotionally "replace" the toe of the slope and removing slide materials is necessary to maintaining catchment capacity_ The neighbors' coneera for stabilizing the toe of the slope is addressed by the walls. The proposal includes a proper drainage system, a dry- season -only limitation on construction, and replanting for stabilization. The proponent would be required to monitor and remove dangerous trees on the subject property, but the upslope neighbors themselves need to be involved regarding trees on their property. 26. As required by BIMC 16,12.3"C)(I) the appliotion, the applicant's presentation at hearing, and the information and analysis provided by the Direator demonstrates as follows: a. C;on -i tengy with the SMP: As summarized below, the proposal, as conditioned, would be consistent with the polieies of the Shoreline Management Act and with the City's Shoreline Muster Program. b� No Interference: with Normal Public 1) se; The proposed project would be on the slope, above and behind private residences, away from any area :pied for normal public access and therefore would not interfere with the normal public use of the shorelines, c, CipmQ tie i__ fits wi�1 P4 ;tmitt 77ses; The use permitted in the area is residential and the propofial, for tile. p:-otection of residences, is compatibir: with that u..". The walls can be efrWively screened with raati.ve vegetation so that the design of the structures is not 'incompatible, with the appeaxaAce of the undeveloped slope. d. No Unreasqn3ibly Adverse Eflect : The walls are designed so as not to cause adverse impacts to the slope, or to increase instability, or to increase risk to adjacent properties, The condition requiring appropriate repla3ntlug of the slope would, ensure that no unreasonably adverse aesthetic impact would occur. c, No SVi stantial DctdM lip, tie qat: providing proteM ow, t`iont destructive landslides is in the public interest. Planting to screen the proposed walls from view n1itigates aesthetic impact that could otherwise be detrimental to the public interest, SCLJP12566 Pago 7 of 10 f, C�or sistertoy with Z'+cniW and Con►,p)r itan.ivq Plan; The, walls are consistent with the residential use and height permitted in the zone and with the residential use anticipated by the Comprehensive Plan. 27, The proposal as conditioned is also consistent with l3YMC 14,12.380(CX2). Unless provision can be made to adequately address the life safety concerns, no use can be made of the subjoat property, That is, only residential use is perrr itted in the goner, and the structures cannot be occupied or redeveloped t►ntil and unless something is done to provide a reasonable level of Safety, The existing circumstances arc extraordinary as all tcsa is precluded and, as indicated in Findings 20 -25, the project would not have significant adverse impact on the shoreline environment. Conclusions 1. The Hearing Examiner has jurisdiction to hear and decido this matter and is required to give substantial weight to the Director's recommendation for approval with conditions, 2. Appropriate notice of the application was made and comments were considered. 3. As conditioned, the project proposed is consistent with the applicable provisions of the Shoreline Master Program for granting a Shoreline Conditional Use Permit and, as recommended by the Director, the application should be approved with the conditions notch in Finding 14 as modified in light of evidence presented at hearing. Decision The application of Michael Fleck for a Shoreline Conditional Uso Permit to cowtruct catchment/retaining walls in the shoreline semi rural environment, is hereby APPROVED w rru CorrglC oils as follows: l . in order to mitigate the aesthetic impact of the retaining wail, on the shoreline bluff and to ensure future stability, water quality. and wildlife habitat., a vegetation masragernent plats to 4sc satisfaction of the Director shall be submitted prior to the issuance of a building permit. This plan shall include, at a minimum, the following items; a, kev _Q__L A �g�rl A plan for all cleared areas within 200 feat of the shoveline showing the lQcatiors and size (at planting) of tress, shrubs, and groundcov+er selected from the Plant Selection Guide in the DOS SCUP12566 Page 9 of 10 publiration "Slope Stabilization and Erosion Control Using Vegetation" (Exhibit 371. The plants selected should be suitable for the slope conditions and effective for screening the retaining wails. The plan shall also note the techniques to be used for planting ��.g, seeding, staking) and measures to be used to control erosion while p ants let eftblrsbcd mulch, jute matt), b. Monitoring a�td Nlainto S_hedulc A schedule ciocurnenting when and how the health of vegetation will be monitored. Maintenance tnny in`lude ininor trimming of vegetation to pr •ve views of upper properties as long as the trimming does not threaten the health of the vegetatfon. Trees that are in danger of being undercut, toppling, or otherwise becoming unstable, should be remova c, iylafntergLio Assurance A device prepared in accordance with the prevision BTMC 18,85,490(x3). 2, All cleared areas within 200 feet of the shoreline shall be replanted in accmrd with the approved revegetation/landscap ng plan in the first planting season that occurs following completion of construction, 3. All graded materials removed from the site shall be hauled to and deposited at City approved locations. (Note: Local regulations require that a grade /fill permit is obtained for any grading or filling exceeding 50 Cubic yards of material and that a SBPA Threshold Determination is obtained for any fill over 100 cubic yards). 4. All recommendations of the gootechnical report (Gee Engineers, September 25, 20003) shall become Conditions of approval, unless modified by the engineer and accepted by the City Engineer. 5. In order to prevent loss of significant archaeological resources, if anything of possible archaeological interest is uncovered during site activities, all work must stop immediately and notification be promptly given to the City and State Office of Archaeology and Historic Preservation. The applicant shall receive permission from the State Office of Archaeology and Historic Preservation prior to further disturbance of the site (RCW 27,53,070 or its su"essar), protect Conditions 6, A hydraulics project approval from the, Departrnent of Fish and Wildlife shall be obtained prior to the use of a barge to bring machinery and or materials to and from the site, SCUP 12566 Page 9 of 1 b 7, Tho prop(A shall be consistent with the dmails and statements Wntalued ;ia th(; applicUion date - stamped September 30, 2003, 8, Satisfactory indemnifica6on/hold harmless agreement(&) in noordance with the Critical Areas Ordinance,, BIMC 16.20.080(C)(2)(g), shall be provided to the City prior to building permit issuance. ?ntcrcd this dt► of March 2004. � Y McrMith A. Getclics Hearing Examiner pro tem Concerning Further Review NOTE: It is the responsibility of a person seeking review of a Hearing Examiner decision to consult applicable Code sections and other appropriate sources, including State law, to determine his/her rights and responsibilities relative to appeal, Tho decision of the Heating; Examiner is the fuwl decision the City in this M=r, AppcW of this decision is to the Washington State Shorohei Hearings Board as provided by RCW 90.59, 180 (or its successor) and Chapter 461 -08 WAC (or its successor), To W timaly, petition for review must be filed within tho 21-day appeal period (sec (BIMC 16, 12.3701. SCUP12566 Page 10 of 10