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PLN51036 RUE Leshchinsky 092518 Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 1 of 11 BEFORE THE HEARING EXAMINER FOR THE CITY OF BAINBRIDGE ISLAND In The Matter of the Application of ) No. PLN-51036 RUE ) Tatiana Leshchinsky ) ) For Approval of a Reasonable Use ) FINDINGS, CONCLUSIONS, Exception ) AND DECISION SUMMARY OF DECISION The request for a reasonable use exception to allow the construction of a single-family residence on a vacant lot containing a wetland and associated wetland buffer, adjacent to and south of 15035 Sunrise Drive NE, is APPROVED. Conditions are necessary to address specific impacts of the proposal. SUMMARY OF RECORD Hearing Date: The Hearing Examiner held an open record hearing on the request on September 13, 2018. Testimony: The following individuals presented testimony under oath at the open record hearing: David Greetham, Senior City Planner Tatiana Leshchinsky, Applicant Don Truscott Exhibits: The following exhibits were admitted into the record: 1. Staff Report, dated September 6, 2018 2. Certification of Public Notice, dated August 31, 2018 3. Notice of Application and Public Hearing, dated July 13, 2018 4. Master Land Use Application, dated October 11, 2017 5. Summary Statement, undated 6. Wetland Delineation, AquaTerra, LLC, dated September 25, 2017 7. Memo from Fire Marshal Assistant Chief Luke Carpenter to David Greetham, dated March 31, 2018 8. Mitigation Plan, AquaTerra, LLC, dated June 14, 2018 9. Vicinity map, and Site Plan (Sheet A1.0), dated May 23, 2018; 10. Email from Don Truscott to PCD, dated August 2, 2018 11. Memo from David Greetham to Hearing Examiner, dated September 13, 2018 Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 2 of 11 12. City PowerPoint presentation (seven slides) The Hearing Examiner enters the following findings and conclusions based on the testimony and exhibits: FINDINGS Application and Notice 1. Tatiana Leshchinsky (Applicant), requests approval of a reasonable use exception (RUEX) to allow construction of a single-family residence on a vacant lot containing a wetland and an associated wetland buffer covering the entire property.1 The property is located adjacent to and south of 15035 Sunrise Drive NE.2,3 The RUEX would allow for development of a single-family residence not to exceed 1,200 square feet and a reduced wetland buffer of 25 feet with an additional 15-foot construction setback. As mitigation for the proposal, the wetland buffer on-site would be enhanced by removing invasive species and planting a variety of native plants. Exhibit 1, Staff Report, pages 1 and 7 through 9; Exhibit 4; Exhibit 6; Exhibit 8. 2. The Applicant submitted the RUEX application on March 22, 2018. The City of Bainbridge Island (City) provided Notice of Application and Public Hearing by mailing notice on July 10, 2018, publishing notice on July 13, 2018, and posting notice on July 17, 2018. The City received one comment in response to this notice. The comment requests that there be no construction in the previously disturbed wetland area, inclusion of a septic system in the development area calculations, and recognition that the property is already being used as part of adjacent residence. City staff responded to the comment prior to the hearing by stating that the wetland has been accurately delineated and that City code allows development, through a RUEX, with lot coverage limited to 1,200 square feet. Exhibit 1, Staff Report, page 4; Exhibit 2; Exhibit 3; Exhibit 10. State Environmental Policy Act 3. The City determined that the proposal is exempt from State Environmental Policy Act (SEPA), Chapter 43.21C Revised Code of Washington (RCW) threshold determination and EIS requirements under WAC 197-11-800(6)(a) and (e).4 1 The Applicant’s Summary Statement notes that the purpose of the application is to ascertain if the lot is buildable in order to inform prospective purchasers of the property. Exhibit 4. 2 The property is located to the south and adjacent to 15035 Sunrise Drive NE, a lot also owned by the Applicant. Exhibit 5. 3 The property is identified by tax parcel number 352602-3-026-007. Exhibit 1, Staff Report, page 1. 4 SEPA exemptions include WAC 197-11-800(6)(a), land use decisions for exempt projects, and (6)(e), land use decisions that grant variances “based on special circumstances, not including economic hardship, applicable to the subject property, such as size, shape, topography, location or surroundings and not resulting in any change in land use or density.” Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 3 of 11 Comprehensive Plan, Zoning, and Surrounding Property 4. The property is designated Residential-1, one unit per acre, under the City’s Comprehensive Plan. City staff analyzed the proposal for consistency with the Comprehensive Plan and identified goals and policies applicable to the proposal, including: limiting clearing and soil disturbance, promot ing low impact development and reconciling development and conservation for residential development in R-1 designations; preserving and enhancing the Island’s natural systems, natural beauty, and environmental quality; encouraging sustainable development; and protecting a nd enhancing wildlife, fish resources, and ecosystems.5 Exhibit 1, Staff Report, pages 1, 4, and 5. 5. The 1.13-acre property is within the “R-1” zoning district.6 The purpose of the R-2 zoning district is to “provide residential neighborhoods in an environment with special Island character consistent with other land uses such as agriculture and forestry, and the preservation of natural systems and open space. The low density of housing does not require the full range of urban services and facilities.” Bainbridge Island Municipal Code (BIMC) 18.06.020.B. Single-family dwellings are a permitted use in the R-1 zone at one unit per acre. BIMC Table 18.09.020. The R-1 base density is 40,000 square feet, with a minimum lot depth and width of 80 feet. Maximum allowed lot coverage is 15 percent. Setback requirements include front yard setbacks of 25 feet; side yard setbacks of 10 feet, minimum, and 25 feet, total; and rear setbacks of 15 feet. BIMC 18.12.020. Two parking spaces are required for each primary dwelling. BIMC 18.15.020. The proposed single-family residence would meet the parking requirements, as well as the dimensional standards, with a minimum 10-foot setback on the north property line to provide the greatest feasible setback from the wetland. Exhibit 1, Staff Report, pages 2 and 6. 6. Surrounding properties contain single-family residences. Zoning on the west side of Sunrise Drive NE is zoned R-1, and property across Sunrise Drive NE to the west is zone R-2, two units per acre. Exhibit 1, Staff Report, page 2. Critical Areas 7. The site is undeveloped, with an existing mowed grass area on the northerly portion of the site. AquaTerra, LLC (AquaTerra) prepared a Wetland Delineation, dated September 25, 2017, and a separate Mitigation Plan, dated June 14, 2018, for the Applicant. The 5 City staff specifically identified the following goals of the Comprehensive Plan as relevant to the proposal: Land Use Element Goal LU-14 and Environmental Element Goals EN-1, EN-4, and EN-5. Exhibit 1, Staff Report, pages 4 and 5. 6 The lot was created by a short subdivision in 1977. Exhibit 12. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 4 of 11 wetland delineation was based on fieldwork conducted on August 9, 2017. AquaTerra identified a Category III depressional wetland in the southern portion of the property, half consisting of forested canopy and half consisting of pasture grass vegetation made up of red alder, iris, salmonberry, buttercup, common rush, and blackberry. No signs of recent disturbance were noted. AquaTerra determined that the Category III wetland should receive a buffer width of 60 feet from the delineated edge, with an additional 15 feet of building setback. BIMC 16.20.140.I.4, Table 5. Senior City Planner David Greetham testified that a 110-foot wetland buffer would be applied as required by the City’s amended critical areas ordinance.7 The mitigation plan includes mitigation of temporary impacts by using standard best management practices including installing appropriate sedimentation and erosion control where necessary, such as silt fencing, to prevent materials from entering the wetland and its buffer,8 and keeping noise and artificial light to a minimum. To mitigate for permanent impacts, invasive vegetation would be removed and native plants installed. The re-established area would be monitored for no less than seven years, with plants that do not survive to be replaced at the expense of the Applicant. Exhibit 1, Staff Report, page 11; Exhibit 6; Exhibit 8; Testimony of Mr. Greetham. 8. The municipal code provides that wetland buffers must rema in undisturbed or as enhanced vegetation areas for the purpose of protecting the integrity, function, and value of wetland resources. Any buffer modification proposed must be through an approved buffer enhancement plan meeting the requirements of BIMC 16.20.180. BIMC 16.20.140.I. As described above, the mitigation plan includes a buffer enhancement plan. In addition, the Applicant would provide permanent wetland buffer signage. BIMC 16.20.140.I.6. All mitigation plan plantings would be installed prior to any final building permit inspection, or an assurance device would be provided. BIMC 16.20.160. The Applicant would submit a recorded notice to title prior to the issuance of a building permit, documenting the presence of the wetland, mitigation plans, and the aquifer recharge protection area. BIMC 16.20.070.G. Exhibit 1, Staff Report, pages 10 through 13; Exhibit 8. 9. The City code identifies aquifer recharge protection areas (ARPAs) as critical areas that must be protected. BIMC 16.20.100.E.1 requires any proposed development or activity requiring a site assessment review located within the R-0.4, R-1 or R-2 zone to designate an ARPA. The ARPA must be documented on a site plan submitted with any future building permit and recorded on a notice of title prior to the issuance of a building permit. Exhibit 1, Staff Report, pages 12, 15, and 16. 7 Ordinance 2018-09, adopted April 23, 2018. Exhibit 1, Staff Report, page 6. 8 The Mitigation Plan refers to “stream,” but the Hearing Examiner assumes that “wetland” was meant. Exhibit 8, page 3. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 5 of 11 Reasonable Use Exceptions 10. The City code provides for a reasonable use exception (RUEX) where the City’s critical areas ordinance (Chapter 16.20 BIMC) would deny all reasonable use of the property; where there are no reasonable alternatives with less impact to the critical area or its required buffer; where the proposal minimizes the impact through mitig ation sequencing; where the proposed impact is the minimum necessary; where the inability to derive reasonable use of the property is not the result of actions by the Applicant; where the proposed total lot coverage does not exceed 1,200 square feet for residential development; where the proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the property; and where any alterations are mitigated. BIMC 16.20.080. 11. The Applicant submitted a summary statement addressing the criteria for a RUEX under BIMC 16.20.080. The project narrative suggests that the proposal would meet the criteria for a RUEX because, based on the AquaTerra Wetland Delineation, t he wetland and wetland buffer cover most of the property leaving no place to build a house outside of the wetland buffer. Exhibit 5. 12. City staff also analyzed the proposal for compliance with the RUEX criteria from BIMC 16.20.080 and generally concurred with the Applicant’s assessment . Staff specifically noted:  The wetland and the 110-foot wetland buffer cover the entire property. Buffer modification of up to 25 percent of the required width would not create a buildable area. There are no alternatives to a RUEX. The Applicant would not be able to develop a 1,200 square foot residence without the requested RUEX.  The project avoids impacts to the wetland by locating the development within the buffer and outside of the wetland itself. The project would minimize impacts by locating the development as far away from the wetland as possible, in a portion of the buffer with low function that has previously been mowed.  The proposed impact has been minimized by locating the septic drainfield on an easement on the adjacent lot to the north. A driveway would be constructed directly to Sunrise Drive NE to the east to help mitigate impacts on the wetland and buffer.  The inability of the Applicant to derive reasonable use of the property is not the result of the actions by the Applicant, or the Applicant’s predecessor.  The proposed total lot coverage would not exceed 1,200 square feet.  The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the property.  The proposal would include compensatory mitigation for permanent buffer impacts through removal of invasive species and landscaping with native plants around the development as well as protection of the buffer with signage. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 6 of 11  The wetland delineation report and mitigation is based on best available science and would adequately compensate for impacts to the critical area, resulting in no net loss of critical area functions and values. Additional plantings, however, would be required and a revised mitigation, maintenance, monitoring, and contingency action plan must be submitted to the City at the time of any building permit review.  The future development of the property is not anticipated to result in a cumulative negative impact on surrounding developed land.  The proposal is consistent with other applicable BIMC regulations and standards. Exhibit 1, Staff Report, pages 7 through 10. Written Comment 13. In addition to the public comment noted in Finding 2, the City received a written comment from the Bainbridge Island Fire Department noting that the proposed use is acceptable to the Fire Marshal’s office and that the proposed project must comply with all provisions of the fire code. Exhibit 1, Staff Report, page 15; Exhibit 7. Hearing Testimony 14. Senior City Planner David Greetham testified generally about the property and the process of reviewing the proposal. At the outset of the hearing, he submitted Exhibit 11, a City memo to the Hearing Examiner requesting an amendment to the recommended conditions, and Exhibit 12, a copy of his PowerPoint presentation. He noted that the wetland and buffer cover the entire lot and that the request to allow the construction of a single-family residence on the lot is consistent with the Comprehensive Plan and zoning. He noted that the request to allow a 1,200 square foot residence would be located 10 feet from the north property line, as far from the wetland as possible. Septic drainfields would be located on the property to the north as approved by Kitsap County Health. A 1,200 square foot residence is equivalent to others in the area and the maximum the BIMC allows through a RUEX. Testimony of Mr. Greetham. 15. Applicant Tatiana Leshchinsky testified that she agrees with the conditions, but does not want a wetland buffer fence on the property because of its negative visual impact and because it may impede wildlife movement. In response, Mr. Greetham referenced his memo (Exhibit 11) request ing that Condition 3, requiring installation of a split-rail fence along the outer edge of the wetland buffer, be deleted and that the first sentence of Condition 4 be deleted and replaced with “Wetland signs indicating the pr esence of a protected wetland buffer shall be placed on posts along the outer edge of the reduced wetland buffer, with maximum 30-foot spacing between signs.” Exhibit 11; Testimony of Ms. Leshchinsky. 16. Don Truscott testified that he lives across the street from the subject property. He inquired about the buffer location and mitigation, expressing particular concern about the Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 7 of 11 impact and efficacy of signs. Mr. Greetham responded by referencing the Site Plan to show where the signs would be placed. He also referred the mitigation plan submitted by the Applicant and noted that native vegetation would be planted to enhance the existing buffer and that the proposed location of the residence would have the least imp act on the wetland. Following Mr. Greetham’s testimony, Mr. Truscott did not express further concerns. Testimony of Mr. Truscott and Mr. Greetham. Staff Recommendation 17. The City staff recommend approval with conditions. Exhibit 1, Staff Report pages 13 through 15. CONCLUSIONS Jurisdiction The Hearing Examiner has authority to hear and approve, approve with conditions, deny, or remand a request for a reasonable use exception. BIMC 2.14.030; BIMC 2.16.100; BIMC 16.20.080.E. Criteria for Review Criteria for review and approval of reasonable use exceptions are as follows: 1. The application of this chapter would deny all reasonable use of the property; 2. There is no reasonable alternative to the proposal with less impact to the critical area or its required buffer; 3. The proposal minimizes the impact on critical areas in accordance with mitigation sequencing (BIMC 16.20.030); 4. The proposed impact to the critical area is the minimum necessary to allow reasonable use of the property; 5. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant, or of the applicant’s predecessor, that occurred after February 20, 1992; 6. The proposed total lot coverage does not exceed 1,200 square feet for residential development; 7. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the property; 8. Any alterations permitted to the critical area are mitigated in accordance with mitigation requirements applicable to the critical area altered; 9. The proposal protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values; 10. The proposal addresses cumulative impacts of the action; and 11. The proposal is consistent with other applicable regulations and standards. BIMC 16.20.080.F Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 8 of 11 The criteria for review adopted by the City of Bainbridge Island City Council are designed to implement the requirement of Chapter 36.70B RCW to enact the Growth Management Act. In particular, RCW 36.70B.040 mandates that local jurisdictions review proposed development to ensure consistency with City development regulations, considering the type of land use, the level of development, infrastructure, and the characteristics of development. RCW 36.70B.040. Conclusions Based on Findings 1. With conditions, the proposal would comply with the reasonable use exception criteria of BIMC 16.20.080.F. The City provided reasonable notice and opportunities to comment on the application. The City determined that the proposal was exempt from SEPA review. A wetland and wetland buffer covers all of the Applicant’s lot such that strict application of the City’s critical areas ordinances would deny all reasonable use of the property. Neither the City nor public comments suggested any alternative uses for the property. The Applicant is proposing lot coverage of 1,200 square feet. The Applicant submitted a wetland delineation and a mitigation plan setting out mitigation sequencing that would minimize the impact on critical areas. The mitigation plan also determined that the proposal would be the minimum necessary to allow reasonable use of the property. The lot w as created in 1977, prior to the adoption of the City’s critical area ordinances, and is not the result of any action of the Applicant. Public comment was received concerning the mitigation plan. No evidence, however, was presented that the proposal would pose an unreasonable threat to the public health, safety, or welfare on or off the property. The Applicant’s mitigation plan contains monitoring and contingency plans, along with enhancement of the remaining wetland buffer. The City determined that the wetland delineation and mitigation plan are based on the best available science and would result in no net loss of critical area functions and values. The mitigation plan addresses the cumulative impacts of the proposed development and determined that there would be no negative cumulative impacts if the request was approved. Conditions are necessary, including those to ensure that a minimum 25-foot non-clearing native vegetation buffer be retained between the wetland and the proposed residence with an additional mini mum 15-foot construction setback from the buffer edge; that a revised wetland mitigation plan be submitted to the City prior to final building inspection; that the proposed residence would meet all setback and height requirements for the zoning district; that a maintenance assurance device would be provided prior to the issuance of a certificate of occupancy; that the amount of lighting on the exterior of the residence be limited to the minimum necessary; that the Aquifer Recharge Protection Area be documented on a site plan; that the Applicant record a notice of title regarding the presence of the wetland, mitigation plan, and ARPA prior to the issuance of a building Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 9 of 11 permit; and that any future building permit comply with all provisions of the adopted fire code. Findings 1 – 17. DECISION Based upon the preceding findings and conclusions, the request for a reasonable use exception to allow the construction of a single-family residence on a vacant lot containing a wetland and associated wetland buffer, adjacent to and south of 15035 Sunrise Drive NE, is APPROVED, with the following conditions:9 1. A minimum 25-foot non-clearing native vegetation buffer shall be retained between the wetland and the proposed residence, with an additional minimum 15 -foot construction setback from the buffer edge. All remaining area with the exception of the proposed access drive shall be designated as wetland buffer on the site plan submitted with the future building permit. Construction activity shall remain outside of the minimum 15- foot construction setback from the buffer edge. 2. Prior to commencing any construction activity, the Applicant shall have the wetland buffer temporarily fenced from areas of construction activity. The fence shall be made of durable material and shall be highly visible. The fence shall be inspected as part of the building permit. The temporary fencing shall be removed once the construction activity is complete and replaced with permanent fencing (see Condition 4, below). 3. A split-rail t ype fence shall be installed along the outer edge of the wetland buffer prior to final building inspection. The rails shall be high enough to allow small mammals and wildlife to pass through. The fence shall be indicated on the building permit applicatio n and in place prior to final inspection on the building permit . 4. A minimum of two signs indicating the presence of a protected wetland buffer shall be placed on the fence, prior to final inspection on the building permit . Wetland signs indicating the presence of a protected wetland buffer shall be placed on posts along the outer educe of the reduced wetland buffer, with maximum 30-foot spacing between signs. Signs shall be made of metal or a similar durable material and shall be between 64 and 144 square inches in size. 5. Activities within the wetland buffer shall be limited to buffer enhancement as described in the June 14, 2018 Mitigation Plan prepared by Aqua Terra, LLC, and as amended in accordance with Condition 6, below. 6. The Applicant shall mitigate impacts to the on-site wetland and its buffer through landscaping with native plant s and removal of invasive species. Prior to final building 9 This decision includes conditions designed to mitigate impacts of this proposed project as well as conditions required by City code. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 10 of 11 inspection, the Applicant shall submit a revised wetland mitigation plan including mitigation goals and objectives, performance standards, maintenance and monitoring measures and contingency actions. The mitigation plan shall be in substantial compliance with BIMC 16.20.180 – Critical Area Reports – and may incorporate previously completed reports for the subject property and use guidance provided in Wetland Mitigation in Washington State: Part 2 - Developing Mitigation Plans (Version 1, March 2006, Publication #06-06-011b). The mitigation plan shall provide sufficient information, clarity and detail to demonstrate the proposed mitigation actions and maintenance and monitoring measures are adequate to achieve established mitigation goals and objectives. At a minimum, the June 2018 plan prepared by Aqua Terra LLC shall be amended to depict all areas north of the wetland and outside of a maximum 15 - foot construction setback around the residence and access drive as native vegetation buffer. The amended plan shall also include additional native vegetation enhancement at a minimum 1:1 ratio, equivalent to the square footage of buffer encroachment for the future access drive and 15-foot construction setback area. The Department of Planning and Community Development shall approve the revised wetland mitigation plan as part of the building permit review and plantings shall be installed prior to final building permit inspection. 7. Pursuant to BIMC 16.20.160, a maintenance assurance device shall be provided prior to the issuance of a certificate of occupancy for a period of seven years. The maintenance surety applicable to a compensation project shall not be released until the director determines that performance standards established for evaluating the effect and success of the project have been met. 8. If the performance standards in t he mitigation plan are not met, a contingency plan shall be submitted to the Department of Planning and Community Development for approval. Any additional permits or approvals necessary for contingency actions shall be obtained prior implementing the cont ingency plan. 9. To reduce impacts to the wetland, the Applicant shall limit the amount of lighting on the exterior of the residence to the minimum necessary, shall install motion sensor lights to the side of the house facing the wetland, and record a co venant to limit the use of pesticides on the properties. 10. The proposed residence shall meet the setback and height requirements for the R -1 zoning district. 11. The ARPA (Aquifer Recharge Protection Area) shall be documented on a site plan included with the building permit application. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Leshchinsky Reasonable Use Exception, No. PLN51036 RUE Page 11 of 11 12. The Applicant shall record a notice of title of the presence of the wetland, mitigation plan, and ARPA prior to the issuance of the building permit. 13. The creation or replacement of more than 5,000 square feet of hard surfaces shall require that a Stormwater Site Plan (SSP) be prepared by a licensed civil engineer in the state of Washington and demonstrate compliance with all applicable Minimum Requirements 1 through 9 of the City’s adopted stormwater manual at the time of the building permit application. If dispersion trenches are utilized as an option for stormwater management, they may be installed within the 15-foot construction setback but shall remain outside of the outer edge of the designated wetland buffer. 14. New access to the City of Bainbridge Island right -of-way shall be improved to the standard paved residential driveway approach detail DWG. 8-170. 15. The future building permit shall comply with all provisions of the adopted Fire Code. Decided this 25th day of September 2018. THEODORE PAUL HUNTER Hearing Examiner Sound Law Center