HEX Tawresey Recommendation 6-24-11SUB15353
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RECOMMENDATION OF THE HEARING EXAMINER
TO THE CITY COUNCIL
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
John and Alice Tawresey SUB15353
For a Preliminary Subdivision Approval
Introduction
John and Alice Tawresey seek preliminary subdivision approval for a multifamily
subdivision of four parcels totaling 2.39 acres located between Cave Avenue North and Highway
305 into five multifamily lots.
Hearing: An open record public hearing was held on October 1, 2010. After the close of
the hearing, additional public comment was accepted until 4 p.m. and additional City response
until October 4, 2010, 4p.m. At the request of the applicant, time for Applicants’ response was
extended until October 15th. On October 25, 2011, an order remanding the application for
additional analysis was entered. The Department of Planning and Community Development filed
its response to the order on December 8th and other parties filed comments on that response.
Applicants filed an alternative plan revising the proposed plat on March 9, 2011, and the
application was then remanded for review of the revised plat. The public hearing on the revised
plat was held May 27, 2011, at the end of which the record was closed. Heather Beckmann,
Associate Planner, and Chris Wierzbicki, PE, Deputy Director, represented the Director,
Department of Community Development. Applicants appeared for themselves.
Code References: All references to sections in this decision are to the Bain bridge Island
Municipal Code, unless otherwise indicated.
After due consideration of all the evidence in the record, testimony and written submittals,
the following shall constitute the findings, conclusions, and recommendation of the Hearing
Examiner to the City Council on the revised application.
Findings
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1. John and Alice Tawresey, hereafter “Applicants”, applied on December 23, 2009, for
approval of the preliminary subdivision (Cave Landing) of four parcels totaling 2.39 acres into
eight multifamily lots. After the remand of the matter to City departments for additional analysis
and information and the City’s response to the remand, Applicants revised the application to
propose division into five multifamily lots to accommodate up to 22 residenti al units, a smaller
buffer reduction, and a sidewalk on Cave Avenue.
2. The subject site is located largely to the west of the lots at 263 -487 Cave Avenue NE, a
dead end street, and east of State Route 305, but also includes a lot with street frontage at 439 Cave
Avenue NE. The proposal includes a geologic hazard buffer reduction and minimum lot area
reduction, along with a density bonus based on open space.
3. The subject site is currently undeveloped except for a single-family house on the lot at 439
Cave Avenue, and a pedestrian trail. The site has a moderate coverage of coniferous and
deciduous trees with some understory.
4. The Comprehensive Plan and zoning designations for the site are Urban Residential
District (UR, R-4.3) and zoning of R-4.3, 4.3 units per acre for the single lot fronting on Cave
Avenue, and Urban Multifamily District (UMF, R-8) and zoning of R-8, eight units per acre, for
the remainder. The site is within the Winslow Master Plan Study Area.
5. The site adjoins the Winslow Ravine to the north of the property and the land on the subject
site slopes about 6 percent down toward the west and south from an elevation of approximately
150 feet in the northeast corner to approximately 115 at the southern tip.
6. State Route 305 separates the site from development and uses to the west. Development of
the surrounding properties to the south, east, and north across the ravine is single family and
multi-family residential plus a preschool and daycare center.
THE PROPOSAL
7. Applicants propose that each of the five lots to be created would be developed with at least
two dwelling units for a maximum of 22 dwelling units. The allowed density based on the zoning
of the site is 17 dwelling units, including the unit for the R- 4.3 lot, however Applicants propose to
utilize the density bonus in Section 18.15.080 by providing 23,253 square feet of the proposed
open space, or 27 percent of lot area zoned R-8, i.e., proposed Lots A, B and E, to be permanent
public open space which would allow a 50 percent bonus or eight units for a total of 24 plus one
unit for the lot in the R-4.3 zone. Exhibit 133; Testimony of Beckman. The Applicants chose to
propose the lower number of units to be sensitive to neighborhood character. Testimony of J.
Tawresey. The density bonus proposal is not part of the preliminary subdivision approval but
would be considered at the time that applications for building permits exceed 17 units.
8. In addition to the residential lots, the subdivision would provide a combination of public
and private open space areas totaling 43,914 square feet or about 44 percent of the total area.
Exhibit 135. The triangular parcel at the south end of the site would be retained as open space,
along with additional open space to the north of the entrance roadway, along the east perimeter
north of the access roadway to the slope buffer, the northern geologically hazardous area buffer,
and the 25 ft. wide vegetative buffer next to SR 305.
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9. Lot sizes in the plat would vary from 7,006 to 28,548 square feet. The minimum lot size in
the R-8 zone is 5,400 square feet per unit (10,800 for two units) or 5,000 square feet for single
family, but an open space option is available to allow smaller lots if an additional 15 percent of
permanently protected open space above that otherwise required is provided, which Applicants
propose. Sections 17.04.082D.3 and 17.04.085D. A multifamily subdivision is not required to
provide open space beyond that required by the Critical Areas Ordinance and Shoreline Master
Plan, when applicable. The proposal meets the requirements of those code provisions.
10. Section 18.15.050 limits lot coverage to 40 percent when the bonus density provisions are
utilized. The proposed plat shows 40 percent but compliance with the lot coverage limitation
would be reviewed during the required site plan review and during building permit review.
Testimony of Beckman.
CRITICAL AREAS BUFFER
11. The south slope of the ravine, adjacent to proposed lots A and B, is designated as a
geologically hazardous area. The minimum no-disturbance buffer required from the edge of the
geologically hazardous area is 80 feet, based on the height of the slope, Section 16.20.150E(2)(a),
“except where no other reasonable alternative exists.” Applicants initially proposed a reduction of
the required buffer to 25 ft. plus the required 15 ft. building setback but amended their proposal to
provide 60 feet of buffer plus the 15 ft. building setback.
12. A critical area report (Exhibit 4) was submitted as required by Section 16.20.150. The
engineering geologist analyzed the slope’s stability and concluded that it appears to be stable now
and historically but that making cuts or fills or increasing moisture through the addition of drain
fields or stormwater ponds and runoff from impervious surfaces may increase the potential for
slope instability. The City’s technical review committee reviewed and commented on the report
and received comments from its third party geotechnical review consultant. The comments were
forwarded to Applicants’ geotechnical engineer for response. Exhibit 52. The technical review
committee observed that the proposal provides the required stream buffers and that the
development would have little impact on stream or wildlife habitat because the property is not part
of a wildlife corridor and because of the narrowness of the strip of forest between SR 305 and
existing residential development. Applicants’ consulting engineering geologist prepared an
addendum to the critical area report with information from additional subsurface exploration and
laboratory analyses and using a different computer program for stability analysis. Exhibit 56. The
additional work confirmed the initial value of 1.5 factor of safety for static conditions an d 1.2 for
dynamic conditions. Though all the samples were moist, no groundwater was encountered and the
nature of the soils suggested low permeability. It found the site isolated from the surrounding
shallow groundwater regime because of the ravine to the north and west. The addendum again
found a 25 ft. buffer with 15 ft. building setback to be adequate to protect the proposed
development and the critical area and would not decrease the factor of safety for slope failure.
13. For approval of a reduced buffer, the critical area report must demonstrate to the Director
that the reduction will not reduce the level of protection, described in Section 16.20.150E(1), to the
proposed development, adjacent properties and associated critical areas. Section
16.20.150E(2)(a)(i)(A). The report satisfied this requirement.
14. The Director recommended approval of the initial proposal for the a 25 ft. buffer
reasoning that without the buffer reduction the number of dwelling units would have to be reduced
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by approximately eight, to only 68 percent of the site’s development potential. It was explained
that the Director looks at the location of proposed structures, the proposed number of lots, and
whether there is a reasonable alternative that would allow that number without reducing the buffer.
Testimony of Wierzbicki. Because the Winslow Master Plan, a sub-element of the
Comprehensive Plan, contemplates denser residential development, the lesser density that could
be accomplished without the buffer reduction would not support the intent of that plan so the
Director found that the buffer reduction is a reasonable alternative. Exhibit 82. Staff also found
that the geotechnical report and addendum satisfied the Code’s safety requirements showing that
the buffer can be reduced without reducing the stability of the slope for the existing or proposed
development.
15. The application was remanded in part because, while the Director determined that the
buffer reduction was a reasonable alternative, the record did not indicate that the Director
determined that there was no other reasonable alternative, as required by the Code.
16. In response to the requirement for further analysis as to reasonable alternatives, staff
looked for any alternative that would better serve the safety purposes of the regulations. Exhibit
104. Support was found by the Director for this interpretation in the classification as geologically
hazardous areas which provides, in part:
Areas in this category are a potential risk to public health, safety, and welfare when
construction is allowed. While some potential risk due to construction can be
reduced through structural engineering design, construction in these [geologically
hazardous] areas should be avoided when the potential risk cannot be reduced to a
level comparable to the risk if the site were initially stable prior to construction….
Section 16.20.150C. The classifications are to be based on the risk to the environment, as well as
to the development, according to the section.
17. The Director pointed out the purpose of the geologically hazardous regulations to: “prevent
the potential for personal injury or loss of life or property due to flooding, erosion, landslides,
seismic events, or soil subsidence.” Section 16.20.150B. In light of that statement, the Director
found that the intention is to regulate geologically hazardous areas to avoid impacts on
development from the critical area, unlike providing protection for the critical area such as with
other critical areas such as wetlands or fish and wildlife habitat areas. The Director interprets the
buffer requirement as a “surrogate” for safety, intended to prevent encroachment where there is no
reason to encroach but not where encroachment is needed to achieve a proposal’s objectives if
there is assurance that safety will not be compromised, i.e., the criteria allow division or
development within the buffer if the proposed development can be built safely. Exhibits 104 and
133; Testimony of Wierzbicki.
18. Section 16.20.150E(2)(b), addressing development design and location, does require that
development proposals be designed to avoid impacts to the geologically hazardous area, and that
Section 16.20.150E(1)(f) prohibits further degradation of the values and functions of the
associated critical areas.
19. The definition of “reasonable alternative” in the Critical Areas chapter is “…an activity
that could feasibly attain or approximate a proposal’s objectives, but at a lower environmental cost
or decreased level of environmental degradation.” Section 16.20.030(41).
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20. The Director viewed the proposal’s initial objective to be the creation of eight multi-family
lots, which staff concluded could not be done without buffer reduction, and now division into five
lots.
21. Applicants’ stated objective is:
…to divide the land into lots and provide a multifamily density equal to or
approximating the density allowed in the zoning code, conform to the goals of the
Comprehensive Plan and be of sufficient density to economically justify
development.
Exhibit 124. While they would have preferred the first proposal, both proposals meet their
objectives. Testimony of J. Tawresey. Mr. Tawresey also testified that if the buffer were
increased beyond the 60 feet proposed, the subdivision would have fewer lots with more
units on each.
22. The intention of the buffer exception language, according to the Director, is:
…to avoid encroachment of development in geo-hazard buffers where there is no
reason to do so, but not to prevent a proposal where its objectives can be
accommodated by technical assurance that safety will not be compromised. If the
safety requirements of the geo-hazard regulations could be better met by an
alternative approach to the proposal, it could be reasonable to require a change in
the proposal.
Exhibit 133.
23. In determining the extent of the permissible reduction, the Director compares alternatives
that balance the stability against the measures required to make the structures stable and if one
highly engineered system could be stable close to the slope and one could be built farther away
from the slope with a conventional system, the closer alternative would be unreasonable. Here, the
25 ft. buffer with 15 ft. setback would allow conventional foundation design so would have been
reasonable, according to the analysis.
24. A buffer reduction to 25 feet was approved for both the Vineyard Lane development and
the Gateway project on the opposite side of the ravine from the subject site. Testimony of J.
Tawresey.
25. Section 16.20.150 E.2 (a)(iii) requires that all buildings and structures be set back a
minimum of 15 feet from the outer edge of the buffer. This is depicted on the site plans. Section
16.20.150E.2(b-h) establishes standards regarding development design and location that apply at
the time of development proposals.
26. The proposal provides the required stream buffers. Exhibit 52.
VEHICULAR AND PEDESTRIAN ACCESS
27. Cave Avenue is classified as a residential-urban street with a standard 40 ft. wide
right-of-way except for some portions where the full width has not been dedicated, with a paved
roadway on average 19 ft. wide narrowing to just over 18 ft. at one point. Exhibit 45. The street
dead ends at the north and terminates at its intersection with Winslow Way, where it is controlled
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by a stop sign. The intersection is 160 ft. east of the intersection of SR 305 and Winslow Way. A
marked crosswalk across Winslow Way on the east side of the intersection serves pedestrians.
28. The southern portion of Cave Avenue serves an office building and commercial parking lot
and provides access for a residential condominium/retail development on Winslow Way, among
other uses. The more northern portion serves about 20 single-family residences, a residential
condominium, a day care facility and a nursery school facility. Sidewalks extend some 300 feet
northerly from Winslow Way but the remainder of Cave Avenue does not have sidewalks and
because conditions such as brush and a steep slope lining the street, pedestrians must walk in the
street for most of the distance. Exhibit 45.
29. According to residents of the neighborhood, the posted speed limit on the street is 15 miles
per hour, contrary to the statement Exhibit 104. It is often exceeded. Exhibit 45.
30. A pedestrian trail runs through the SR 305 right-of-way next to the northern portions of the
subject site and then through the southern open space designated for Lot E. Applicants conveyed
an easement for the path in that portion of the site to the City. To connect with Cave Avenue, the
easement continues across a lot owned by Applicants to the south of the site. Testimony of J.
Tawresey.
31. There are four streetlights on the west side of Cave Avenue, but they are reported to be far
enough apart that much of the street is unlit. Exhibit 45. The pedestrian trail is not lighted.
Though described by some residents as unusable in rainy periods due to mud, the surface is
crushed rock and was not muddy after two days of rain. Exhibit 101.
32. Vehicular access to the new lots would be via a new roadway through a 40 ft. wide public
right-of-way from Cave Avenue NE across the lot with frontage on Cave Avenue (existing Lot 10)
and ending in a cul-de-sac. A sidewalk is to be installed on both sides of the new street and around
the cul-de-sac. All five lots would have at least 25 feet of frontage on the new right of way. A 5 ft.
wide pedestrian easement, with 2.5 feet on each of Lots B and C, would extend from the cul-de-sac
to the existing pedestrian trail.
33. Section 17.04.080C requires that the existing roadway character be maintained where
practical and that roads and access be consistent with the City’s Design and Construction
Standards and Specifications. The Public Works Department found that the proposed public right
of way, access easement and roadway widths are not greater than the minimum requirements. The
City Engineer has recommended conditions of approval regarding street standards, the sidewalk,
etc.
34. Applicants’ consultant provided a memorandum identifying estimated trip generation and
potential impacts of the proposed development as initially proposed. Exhibit 16. The consultant
estimated that the development would generate a total of 9 new trips during the PM peak hour and
107 in the average weekday. With a 25 percent reduction for location within the core area of
Bainbridge Island, those numbers would be 7 trips during the PM peak hour and 80 for the average
weekday.
35. Residents describe delays at the intersection, especially during ferry commuter times, due
to backup from the congested intersection of Winslow Way and SR 305. E.g., Exhibit 83.
Residents pointed out that the addition of 20 dwelling units would double the residential use of the
street; that the evaluation of impacts did not and should have considered the two children’s
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facilities’ traffic, and the impact on safety of pedestrians, both existing and future, on a street
without sidewalks. The Bainbridge Cooperative Nursery School serves 40 families in two
sessions, and estimates that 15-20 cars are using Cave Avenue at 9:00 AM, 11:15 a.m., 12:30 p.m.
and 3:00 p.m. The Bainbridge Island Child Care Center with 34 students and seven staff reports
that the students arrive between 7 and 9 a.m. with half of the students leaving at 1:00 p.m. and half
between 3 and 6:30 p.m. Staff members arrive at 6:30 a.m. and leave at 6:30 p.m. Exhibit 46.
Many residents walk to the ferry, to the bus, their children walk to the school bus stop on Winslow
Way (Exhibit 29), residents walk to the town center, etc. Those using the pedestrian trail are
forced to walk in the street as the trail joins the street before the sidewalk begins. In addition to the
residents on Cave Avenue, some residents of Vineyard Lane also use the trail. The 46 -unit
Housing Resources Board’s “Ferncliff Project,” on which construction is to begin in 2011, is to be
connected by trail to the north end of Cave Avenue as well. Exhibits 83, 89.
36. Section 15.32.030A provides that a concurrency test is to be conducted for applications for
preliminary plats, site plans and design review, and “any other land use plan or permit the granting
of which would increase the demand for transportation facilities by 50 or more trips per day.”
Certain development permits are exempt from the concurrency requirement including applications
vested prior to the requirement and “any development permit for development that generates less
than 50 trips per day, except as provided for in subsection A of this section.” Section 15.32.030B.
37. The concurrency test is passed if the capacity of the transportation facilities affected by the
proposed development is equal to or greater than the capacity required to maintain the level of
service (LOS) standard with the addition of the trips generated by the proposed development.
Section 15.32.040B.
38. Members of the Cave Avenue neighborhood contended that the City may not informally
exempt a project that does not qualify for exemption under these provisions. A memorandum from
the city engineer in response to the contention (Exhibit 99B) provided an expanded discussion on
the issuance of a certificate of transportation concurrency explaining that in accordance with
Section 15.32.040B it reviewed the Applicants’ initial traffic study, the Island Wide
Transportation Study (2004), and the traffic analysis for the Ferry Gateway Environmental Impact
Study (EIS). The 2004 study identified Cave Avenue as a residential street within the urban zone
of the City with a standard level of service (LOS) C. LOS C is defined as a stable operating
condition with average traffic delays at intersections, with a volume to capacity ratio of 0.7 -0.8,
and an unsignalized delay per vehicle at intersections of between 15 and 25 seconds. The 2007
study for the EIS indicated that the intersection was maintaining a LOS C during the PM peak
hour. Department of Public Works determined that the proposed development would meet the
concurrency test in that: 1) little or no traffic-generating development has occurred in the vicinity
or on Cave Avenue since time of the 2007 study; 2) the addition of one vehicle every seven
minutes on average due to the proposal would not likely cause the wait times to exceed 25 seconds
per vehicle and noted that signage was added earlier this year indicating that vehicles are not
permitted to block north-bound turning movements; and 3) it is unlikely that the capacity of the
intersection would be further degraded because land along Cave Avenue will be almost fully
developed with the proposed development. The hearing examiner, understanding the evidence
that a complete transportation analysis had not been performed showed a failure to do the required
concurrency, remanded the application for that purpose, among others. In response, Planning and
Community Development Department again explained that the concurrency test was performed
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but, because the information was several years old, the city engineer asked Applicants to provide
updated information. Exhibit 104.
39. Applicants’ consultants, RTC Transportation Consulting, arranged for an updated traffic
count at the Cave Avenue-Winslow Way intersection. Data was collected between 4:15 and 6:30
PM. The peak hour for the intersection was observed to be 5:15 to 6:15 p.m. with a total of 544
trips during that hour. Ten percent of those trips utilized Cave Avenue. The Highway Capacity
Manual 2000 methodology was used to calculate the LOS with and without the proposed
development. The report of the analysis, Exhibit 123, states that the model used accounts for the
effect of traffic backed up beyond Cave Avenue from Winslow Way’s intersection with SR 305,
pedestrian traffic, etc. The current intersection operation is at LOS B with 12.9 seconds of delay.
Using the volume of trips estimated by the ITE to be generated by 25 uni ts, instead of the
maximum of 22 proposed, and with reductions for the core area, there would be nine PM peak hour
trips generated by the project. The LOS would remain B after the proposed development, with
13.0 seconds of delay. The intersection meets the City’s LOS standard and the concurrency
requirements.
40. Community members testified that this traffic analysis is flawed for failing to take into
account the heavy traffic associated with the preschool not at the PM peak hour and the potential
build-out of the area, given there is around seven acres still vacant on Cave Avenue. Testimony of
Johannsen. The methodology, however, properly utilized the peak hours for residential uses,
either AM or PM. Testimony of Wierzbicki. The peak hours for the pres chool and daycare would
be around the morning arrivals from 7-9 a.m. and the afternoon arrivals and departures spread from
12:30-6:30 p.m. Because the greatest number of trips generated by the new residential
development would be during p.m. commute hour that does not coincide with the preschool and
day care peak hours, the methodology used should show the greatest impact on the operation of the
intersection. Forecasting the effect of traffic generated by total build -out of the area is not a
requirement for reviewing the effect of a specific project on the existing system. Testimony of
Wierzbicki
41. The pedestrian and bicycle circulation and access to and within a subdivision are to be
consistent with the non-motorized transportation plan, Ordinance 2002-09. Staff found that plan
did not recommend any improvements for the area. However, after doing further analysis after the
remand, the Department determined that the approximately 50 percent increase in the amount of
vehicular traffic on the more southerly part of the street would impact pedestrian traffic from the
existing residences that use Cave Avenue so that improvements to pedestrian safety must be
provided. Exhibit 104. As the subject site does not have Cave Avenue frontage beyond the one
lot, the improvements need to extend beyond that frontage. Given the lack of right -of-way,
uncentered right-of-way, private structures adjacent to the paved street, etc., the city engineer
decided to require a five foot wide sidewalk on the west side of Cave Avenue north from the
existing sidewalk to the trail head and a three foot wide gravel shoulder where right-of-way is
available on the east side of Cave Avenue north from the “Maes” property for some separation
from vehicles in the travel lane. Exhibit 104.
42. Applicants responded with a proposal to provide a sidewalk from the entrance road of the
new subdivision extending south on Cave Avenue to meet the existing sidewalk on the west side of
Cave Avenue south of Gilmore Way. Though Applicants communicated with the owners of
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vacant property on the east side regarding an easement or dedication so that the sidewalk could be
extended the entire way on one side, they were unable to obtain agreement. So, the sidewalk may
start on the east side with a signed, mid-block pedestrian crossing to connect to the west side. The
Director proposes a condition to assure this improvement.
43. To comply with American Disabilities Act regulations for accessible routes, sidewalks
must provide the minimum clear width of 36 inches. Exhibits 126 and 127. Any obstructions such
as utility poles or fire hydrants in the width to be improved with a sidewalk would have to be
moved.
UTILITIES AND PUBLIC SERVICES
44. Natural drainage of the site is to the west and south toward SR 305 and runoff now flows
over the highway cut slope to a rock drain along the east edge of the highway. Storm drainage
from new impervious surfaces is proposed to be directed to the SR 305 drainage system. The
initial proposal had road surfaces first drain into rain gardens located in the cul-de-sac, south of the
access roadway, and in a portion of one of the lots. In response to community concerns about
mosquito breeding and safety of children, those rain gardens have been removed from the
proposal. Runoff from roofs and other impervious surfaces would also be conveyed to the
highway system. Exhibit 62. Concern was expressed about affect on the aquifer, however the city
engineer has reviewed and approved the preliminary drainage plans that ensure the subdivision
will not cause an undue burden on the drainage basin or water quality as meeting the standards of
Chapter 15.20. Exhibit 82. The City Engineer has approved preliminary drainage plans. Exhibit
133.
45. The City issued a Non-binding Commitment for Water and Sewer System Capacity,
Exhibit 9, determining that the property is within the City’s service areas, that water and sewer
mains are adjacent to the property, and that the mains are in service. The Commitment letter
shows that the City currently has sufficient water and sewer capacity for the proposed
development.
46. Residents of the Cave Avenue neighborhood complained of low water pressure at the
upper end of Cave and expressed concern about the effect of additional users. Ex. 47 and others.
The Public Works Department is evaluating the potential impact on water pressure and will
identify methods by which any losses in pressure can be mitigated. Exhibit 82. Proposed
Condition No. 28 is intended to address this issue.
47. The sanitary sewer line, as proposed initially, would run along the eastern side of the
southerly triangular open space parcel. The owners of two lots adjacent to the open space parcel,
317 and 327 Cave Avenue, on its east side, hold an easement, Greenbelt Easement (Ex hibit 36),
that preserves the existing condition of the area and limits the use. It allowed the pedestrian path
that is now through the area and installation of utilities under that path. The initially proposed
location of utilities may be contrary to the terms of that easement. Applicants had identified
several alternatives for locating the new sewer line such as accessing the public line on Cave
Avenue via the proposed new right-of-way, or over an existing sewer easement on Lot 8 where
there is an existing sewer line, and now propose a direct connection to the public line on Cave
Avenue. Testimony of A. Tawresey. Staff has proposed a condition requiring showing the
location on the final plat drawings.
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48. The Bainbridge Island Fire Department requires locating the proposed fire hydrant at the
entrance of the project on Cave Avenue. It found that the access to the subdivision is acceptable
and will be required to meet all City standards. Exhibit 17.
49. The Department of Public Works and the city engineer have reviewed the proposal for
consistency with the City’s Design and Construction Standards and Specifications and state and
federal regulations and have determined that the proposal is in conformance with those that are
applicable at this stage and recommended conditions to assure that the subdivision will conform to
all applicable standards and regulations.
50. The subject site is not in an aquifer recharge area or a fish and wildlife conservation area.
Exhibit 101.
51. The payment of school impact fees pursuant to Chapter 15.28 has been waived for all new
development per Resolution 2011-05. A condition is proposed to require fees if they have been
reinstituted.
52. Section 18.85.060 requires that that all trees in the perimeter landscape areas be retained
and that either 15 percent of the total number of significant trees on the entire site or 30 percent of
the significant tree canopy be retained. A tree retention plan was submitted. Exhibit 7. It shows a
total of 116 significant trees and that approximately 49 percent of those trees would be retained. A
schematic landscape plan, Exhibit 66, shows the retention of significant trees in perimeter areas,
plus other native trees and understory. A condition is required to assure those standards will be
met.
53. An open space management plan has been proposed showing proposed ownership of the
various open spaces and approved uses, Exhibit 67, but with the revised plans, staff recommends a
condition requiring a final open space management plan.
54. Comprehensive Plan policy for Winslow Residential Districts, W7.3, is to “Provide
landscape buffers between any multi-family and existing single family.” Section 18.85.070
establishes a maximum perimeter width of 20 ft. and a minimum of 15 ft. with a partial screen
buffer for urban multifamily districts abutting single-family zoning or use. The Director found
that the proposed twenty feet along the east perimeter north of the access roadway, fifteen feet
adjacent to proposed Lot E and 25 feet along the east perimeter of the bonus open space associated
with Lot E is an appropriate amount of screening between the multifamily and single family
districts.
55. SR 305 is defined in the comprehensive plan as a scenic road and by statute is designated a
scenic highway. RCW 47.39.020. For a multifamily subdivision, Section 17.04.085B establishes
the requirement for a minimum 25 ft. vegetative buffer adjacent to scenic roads. The proposal
includes a 25 ft. full screen buffer meeting the minimum requirement. Neighborhood residents
urge that a 25 ft. buffer in this location would be anomalous as wider buffers, 50 feet with a 35 ft.
minimum, are required in the abutting districts to the north and south and urge that a deeper buffer
be required to maintain the rural character of the highway and avoid aesthetic impact along SR 305
and to avoid increased highway noise and pollution from vehicles in their neighborhood. Exhibit
49; Testimony of Johansen, Schmid, and others. Staff pointed out that if the site were d eveloped
with a multifamily structure, which would not require further subdivision, only a 15-20 ft. partial
screen buffer would be required under the landscape standards of Section 18.85.070 that do not
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establish any perimeter landscape requirement specific to scenic highways in urban multifamily
districts, so the 20 ft. partial screen requirement would presumably apply. Testimony of Beckman.
Staff proposed conditions for the recording of open space easements or covenants, recording of a
management plan, and signage along its border.
COMPREHENSIVE PLAN POLICIES
56. The Winslow Master Plan targets the Winslow Master Plan Study Area to accommodate
fifty percent of the future population growth for the island through denser single-family and
multifamily development.
57. The proposed density amounts to approximately nine units per acre. The density of the
Cave Avenue single-family subdivision is approximately three units per acre. The density of the
development to the north, the Vineyard Lane condominium development, is approximately 14
units per acre; of the Cave Avenue condominiums to the south is approximately twelve units per
acre; and of the Harbor Square mixed-use development is approximately 43 units per acre.
Community members urge that the appropriate comparison is the more immediate single-family
subdivision and that the density proposed is incompatible with that.
58. The proposed preliminary subdivision is consistent with the designation in the
Comprehensive Plan’s land use map for Urban Multifamily District.
59. The Comprehensive Plan policy TR 1.5, SR 305 scenic character, is to “(r)etain the scenic
character of SR 305 by minimizing the placement of signs, discouraging new access points, and
maintaining vegetative buffers.” There are no signs or new access points proposed and a buffer
would be maintained, consistent with this policy.
60. Comprehensive Plan Policy W 7.4 is to have regulations addressing the compatibility of
multi-family developments with adjacent uses and to retain the scale of development in Winslow.
During site plan and design review, required by Section 18.105.020, the design standards
addressing compatibility and scale would be applied to the proposal to assure compliance with the
policy. The Director recommends a condition addressing the requirements for site plan review.
PROCEDURAL COMPLIANCE
61. The City’s responsible official issued a Mitigated Determination of Nonsignificance
(MDNS) August 20, 2010. Exhibit 59. Though the hearing record contains comments critical of
the MDNS, Exhibit 97, the MDNS was not appealed. Conditions of the MDNS are proposed to be
listed as conditions of subdivision approval.
62. Notice of the public hearing was posted in the official posting places on September 8, 2010,
and on the property September 14, 2010, published in the official newspaper September 14, 2010,
and mailed to the applicant and to the addresses within 300 ft. of the subject property on September
8, 2010. Exhibits 76 and 79. Numerous requests were made for a change of date and after
correspondence from interested persons and a conference call, the October 1st hearing date was set
and new notice given.
63. An objection was lodged that the community association’s attorney provided unsworn
testimony at the initial hearing. An examination showed that the record did not support the
objection in that the attorney provided argument based on facts in the record.
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64. The requirements that must be met for preliminary subdivision approval are set out in
Section 17.04.094 and RCW 58.17.110.
65. The Hearing Examiner is authorized by Section 2.16.110C to hold a public hearing and
make a recommendation to the City Council on a preliminary subdivision.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and make a recommendation on this
application.
2. Notice was given as required by Section 2.16.085D.
3. The findings show that the subdivision standards of Section 17.04.085 are met as required
by Section 17.04.094A.1 in that:
A. Through use of the incentive for open space in a multifamily subdivision, the sizes of
the proposed lots do comply with Code requirements for the zoning district;
B. The proposed preliminary plat provides for the minimum 25-foot full screen
vegetative buffer along SR305, a scenic road. Without a clearer statement of intent or
criteria for requiring more than the minimum, and recognizing that the City Council has
determined that an even lesser buffer would be allowed in multifamily districts if it were
not for the proposal to subdivide the property, the minimum width must be regarded as
acceptable.
C. Road, bicycle and pedestrian access performance standards, pursuant to Section
17.04.080.C and with the new sidewalk proposal are satisfied. The proposal maintains
existing roadway character and minimizes impervious surfaces as the width of the new
roadway and access easements are not greater than the minimum required consistent with
the performance standards of the section. The design for roads and access is consistent
with City standards. The proposed sidewalk, though not optimum with its mid-block
crossing, is an improvement over the current condition and provides for adequate
pedestrian safety. Conditions proposed by the city engineer are appropriate and should be
imposed.
4. Appropriate provisions have been made for the public health, safety and general welfare
and public use and interest including those listed in RCW 58.17.110. The findings show that the
preliminary subdivision provides open spaces, for drainage, adequate streets and sidewalks, for
sanitary waste, and for schools through the condition requiring payment of impact fees if
reinstituted. While there is concern about the density proposed, and the change to the immediate
area, the Comprehensive Plan and regulations have determined the density desired for the wider
area that this subdivision would help to accomplish, and the density proposed would be less than
could be achieved through development without the subdivision.
5. The preliminary subdivision is to conform to critical area requirements. Whether the
proposal complies depends upon whether it qualifies for the exception in Section 16.20.150E.
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Though both use common words, there appear to be two differing interpretations of the provision
regarding absence of any other reasonable alternative and they appear to turn on whether the
sentence should be read that alternatives are lacking to the 80-ft. buffer. In one interpretation, the
buffer must be observed unless there are no reasonable alternatives to that setback for otherwise
providing the necessary level of safety, and the Director has found alternatives that provide that
level of safety without requiring the 80 feet, or whether the required absence is of alternatives to
the proposed reduction in the buffer, as construed by the neighborhood. The wording of the
provision leads to this confusion. The hearing examiner adopts the second construction as it would
seem anomalous that the standard would be written to apply only if no other reasonable alternative
exists, rather than being prescriptive unless a showing is made that the proposal’s objectives
cannot be met applying the standard. Further, the language “at a lower environmental cost or
decreased level of environmental degradation” in the definition of “reasonable alternative”
strongly suggests that the alternatives to be considered are not alternatives to the standard buffer
but to a reduced buffer since it seems without question that no reduced buffer bringing
development closer to the critical area would have less effect on the environment, or even safety,
than the standard. The City Council, however, is the authority on what it intended and may find
the former interpretation reflects its intention.
6. The source of the definition of “reasonable alternative” in the Code is the SEPA definition
used for determining what alternatives to a proposal that would have a lesser environmental cost
must be evaluated in an environmental impact statement. The proposal’s objectives in that context
are viewed more broadly than the Director has here where the Director is treating the desired
number of lots as the objective, though Applicants have offered a broader statement of the
proposal’s objectives. The neighborhood urges that a reasonable objective must be based on the
development potential of the property factoring in the effect of existing environmental and other
regulations that limit development, and that a reasonable use exception is the appropriate vehicle
for relief from regulations that are overly burdensome given particular facts. The fact that the
exception exists within the geographically hazardous area buffer standard section, however,
suggests a more expansive view of objectives is appropriate in that something less than no
reasonable use is a sufficient showing.
7. Even assuming that the objective simply is to divide the property into five multifamily lots,
with or without reliance on a decision reducing the buffer, and utilizing either of the interpretations
of the exception applicable where there is no other reasonable alternative, the record is devoid of
anything but conclusory statements that the earlier eight multifamily lots cannot be created within
the site with the prescriptive buffer. Applicants acknowledge that the division into five lots while
providing a larger buffer satisfies the proposal’s objectives. The testimony that the alternati ve of
increasing the buffer further would mean that there would be fewer lots with a greater number of
units needed to meet the objectives seems to indicate that, while it may be less desirable for other
reasons not shown in the record to be more environmentally costly, the objectives can be reached
with that alternative as well. Therefore, the hearing examiner must conclude, based on the record
and this analysis, that Applicants have not carried their burden of proving that there is no
alternative at a lesser environmental cost to reducing the buffer to 60 feet in order to meet their
objectives as the testimony suggests that the desired density can be achieved while maintaining the
prescriptive buffer.
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8. The findings show that the city engineer has determined that preliminary plans
demonstrate that the subdivision conforms to regulations concerning drainage, will not cause
undue burden on the drainage basin or water quality, the streets and pedestrian ways are properly
coordinated with other streets and are adequate to accommodate the anticipated traffic, and the
subdivision conforms to subdivision chapter requirements and construction standards and
specifications or that with conditions of approval recommended will do so.
9. With the recommended conditions, the preliminary plat will comply with applicable
provisions of the Bainbridge Island Municipal Code except for the required geologically
hazardous areas buffer, Chapters 58.17 and 36.70A RCW, and other state and federal regulations.
10. The proposed subdivision, with the recommended conditions, will be consistent with the
Comprehensive Plan in that it will provide perimeter landscape buffers between single-family
residential development and the proposed multifamily development; site plan review will assu re
compatibility of the development with adjacent uses; the retention of the scenic character of SR
305 will not be affected by signage and a 25 foot wide, vegetative buffer, though not as deep as the
community desires, will respect the scenic character of the island; and the additional density is
consistent with the target to accommodate 50 percent of future population grown in the Winslow
Master Plan Study Area.
11. The findings show that, but for the required critical area buffer, the public use and interest
would be served by the platting of the proposed subdivision, with approval subject to the
recommended conditions.
Recommendation
The proposed preliminary subdivision should not be approved because it fails to provide
the required geologically hazardous area buffer. If the City Council concludes that there are no
reasonable alternatives to the buffer reduction, the proposed preliminary subdivision should be
approved subject to the conditions recommended by staff as modified herein, and contained in
Appendix A.
Entered this 24th day of June 2011.
/s/ Margaret Klockars
__________________________
Margaret Klockars
City of Bainbridge Island
Hearing Examiner pro tem
Concerning Further Review
The City Council will hold a public meeting to consider the application pursuant to
Sections 17.04.093, 17.04.094 and 17.04.095 and Chapter 2.16. A decision by the City Council is
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final unless, within 21 days after its issuance, a person with standing appeals the decision in
accordance with Ch. 36.70C RCW.
APPENDIX A
SEPA Conditions:
1. All graded materials removed from the subdivision shall be hauled to and deposited at
City approved locations (Note: local regulations require that a grade/fill permit be
obtained for any grading or filling of 50 cubic yards of material or more, and that a
SEPA Threshold Determination be issued for any fill over 100 cubic yards).
2. Prior to any construction activities, the applicant shall apply for a Construction
Stormwater General Permit through the WA State Department of Ecology. More
information about this permit can be found at:
http://www.ecy.wa.gov/programs/wq/stormwater/construction/ or by calling Charles
Gilman at (360) 407-7451, email chgi461@ecy.wa.gov.
3. Prior to final subdivision application, the Storm Water Pollution Prevention Plan
(SWPPP) for the proposed development shall be provided for City review and approval
in accordance with BIMC 15.20. The plans must be approved, the improvements
constructed (or a construction bond provided if applicable), and an acceptable final
inspection obtained. The design submittal shall incorporate all proposed subdivision
improvements including complete civil plans, grading and erosion control plans,
roadway plan & profile, storm drainage facilities and drainage report, and shall be
prepared by a professional engineer currently licensed in the State of Washington. A
Construction Stormwater Permit (NPDES) will be required prior to construction plan
approval in accordance with BIMC 15.20.030.B (4).
4. To mitigate impacts on air quality during earth moving activities, contractors shall
conform to Puget Sound Clean Air Agency Regulations, which ensure that reasonable
precautions are taken to avoid dust emissions. (BIMC Section 16.08.040).
5. Prior to any construction activities associated with this project, the applicant shall
acquire a Washington State Department of Transportation (WSDOT) storm water
discharge permit to be able to discharge storm water to State Route 305 (SR305) right
of way.
6. Any non-exempt tree harvesting shall require the appropriate Forest Practices Permit
from the Department of Natural Resources.
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7. On site mobile fueling from temporary tanks is prohibited unless the applicant provides
and is granted approval for a Permit and Best Management Plan that addresses
proposed location, duration, containment, training, vandalism and cleanup. (Reference
1. Uniform Fire Code 7904.5.4.2.7 and 2. Department of Ecology, Stormwater
Management Manual, August 2001, see Volume IV “Source Control BMPs for Mobile
Fueling of Vehicles and Heavy Equipment”.) (Chapter 173-304 WAC)
8. In order to mitigate any noise impacts, all construction activities must comply with
BIMC 16.16.025, Limitation of Construction Activities.
9. All lighting within the subdivision shall comply with the City’s Lighting Ordinance,
BIMC Chapter 15.34.
10. Contractor is required to stop work and immediately notify the Department of
Planning and Community Development and the Washington State Office of
Archaeology and Historic Preservation if any historical or archaeological artifacts are
uncovered during excavation or construction.
NON SEPA Conditions:
11. Prior to the development of a second unit and/or multifamily unit on each lot, the
applicant of said development shall first apply for and receive site plan review
approval. The units are subject to the multifamily design guidelines and the BIMC
18.105.080 (9) density bonus design requirement: building design shall incorporate
features such as pitched or terraced roof forms, upper level stepbacks, wall recesses
and/or other architectural treatment to minimize building bulk and scale as perceived
from adjoining streets and neighborhoods.
12. For lots A & B, an Engineering Geologist or Geotechnical Engineer shall be on-site to
inspect site conditions as they are exposed during construction to verify conditions and
to make appropriate recommendations as the need arises.
13. For lots A & B, a slope management plan is to be submitted prior to any construction
activities to address the existing vegetation and the possible need for supplemental
vegetation to anchor the upper slope areas.
14. The final plat submittal shall include street names and indicate the location of any
traffic regulatory signs and approved mailbox locations from the United States Postal
Service.
15. Prior to final subdivision approval, the applicant shall submit to the City for review
and approval complete civil plans and drainage report for the proposed development,
and for the proposed 4’ wide public sidewalk along Cave Avenue (from the proposed
development Cave Avenue frontage lot south to meet existing improvements). The
plans shall include all road, sewer, water and stormwater improvements, and any
required easements. The plans shall also address surface and stormwater pollution
prevention. The plans shall be prepared by a professional engineer licensed in the State
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of Washington and shall be in accordance with BIMC 15.20 Surface and Stormwater
management and the City’s Design and Construction Standards.
16. Open space easements or covenants shall be recorded together with the land division
and represented on the final plat.
17. Prior to final plat submittal, the applicant shall install signage designating the open
space along the open space boundary. The signs shall be a minimum of 64 square
inches and made of metal, hard plastic, or engraved wood. The signs shall be placed at
approximate 50-foot intervals along the open space perimeter.
18. Prior to final subdivision submittal, the applicant shall submit a revised Schematic
Landscape Plan for 439 Cave Avenue that includes ornamental native trees, native and
drought tolerant shrubs and a bench. Prior to the issuance of a building permit for the
first unit, the applicant shall install or provide a performance assurance device for said
landscaping and improvements as approved in the revised landscape plan.
19. A final Open Space Management Plan shall be submitted with the final plat
application.
20. The following shall be submitted with the final plat submittal:
a. A plat certificate; and
b. Binding water availability and sewer availability letters. The location of the
connections shall be indicated on the final plat drawings.
21. School impacts fees may be required. If school impact fees are in effect at the time of
submittal for the final plat, the applicant shall pay one half of the school impact fees for
17 of the multifamily units. The remaining half of the fees shall be paid at the time of
building permit issuance for the first 17 units (BIMC Chapter 15.28). The school
impact fee for any building permit beyond the 17th unit shall be paid by the applicant of
said building permit prior to the issuance of the building permit.
If the fees are in effect at the time of building permit submittal rather than subdivision
submittal, than each applicant constructing a residence shall pay the full impact fee at
the time of building permit issuance for each residence.
22. At the time of Building Permit Application, demonstration of compliance with
applicable stormwater management requirements shall be required in accordance with
BIMC 15.20.
23. Prior to clearing and grading activities, the applicant shall apply for a Con struction
Stormwater General Permit through the Washington State Department of Ecology.
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24. Prior to final plat submittal, all lot corners shall be staked with three-quarter inch
galvanized iron pipe and locator stakes. The right-of-way centerlines shall be
monumented, including the center of the cul-se-sac. A survey of the property must be
completed and submitted with the final plat application.
25. The entrance road to this plat (on Cave Avenue) shall have curb returns on both with a
minimum radius of 30 feet. Both curb returns shall have two wheelchair ramps
constructed to WSDOT Standard Plan No. F-40.12-00. The throat of said entrance
shall be paved with asphalt and have a painted cross walk. There shall be a stop sign
for exiting vehicles.
26. All rights-of-way proposed to be dedicated to the City shall be 40 feet in width as
identified on the Standard Drawing No. 7-050 for a Residential Urban Street. Only the
required right-of-way width shall be conveyed to the City.
27. A right-of-way (ROW) construction permit will be required prior to any construction
activities within the right-of-way. The ROW permit will be subject to separate
conditions and bonding requirements.
28. The proposed water main shall meet the requirements of the Washington State
Administrative Code 246-290-230 (5) which requires a minimum of 30 psi at the water
meter for a single-family residence connecting to the proposed water main.
29. All storm water infrastructure and/or amenities outside existing and/or proposed
rights-of-ways shall remain private property and maintained as such.
30. The proposed fire hydrant shall be placed at the intersection of the entrance road and
Cave Avenue per the Fire Marshals request. Said fire hydrant shall also have a Storz
Adapter on one of the service ports. Also it shall be the responsibility of the applicant
to verify the adequacy of the proposed water main to meet fire flow requirements
pursuant to the City of Bainbridge Island Municipal Code 13.10.065 and meet the Fire
Marshals requirements for this site.
31. In lieu of completion of improvements according to conditions for a final plat
approval, the city council may accept an assurance device, other than a bond, in an
amount and in a form determined by the city council, which secures and provides for
the actual construction and installation of the improvements or the performance of the
conditions within one year, or such additional time as the city council determines is
appropriate after final plat approval. In addition, the city council shall require an
assurance device, including a bond, securing the successful operation of improvements
for one year after city’s acceptance of the improvements; provided, that the city council
may, upon recommendation of the city engineer or the director, extend the term of the
assurance device for up to two years for improvements that will not demonstrate
compliance with construction or installation requirements within one year.
32. Except for modifications reflecting compliance with these conditions of approval,
final plat documents shall substantially conform to the documents submitted with the
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subdivision application, with the exception of those revised documents that were
submitted on March 9, 2011, and any revisions required per the conditions of
preliminary plat approval.
33. The final plat shall contain the following conditions for recording: 1, 2, 4-13, 17,
21-23.