HEX Bohlander Decision 12-17-12DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
Robert W.Thomas Construction VAR17536
For Zoning Variances
Introduction
An application was filed for variances from setback and lot coverage standards of
the land use code to allow the reconstruction of an existing single-family house located at
10456 Fenton Road.
An open record public hearing was held December 6,2012.Jennifer Sutton,
Planner,represented the Department of Planning and Community Development.Robert
w.Thomas represented the applicant.
All section numbers in the decision refer to the Bainbridge Island Municipal
Code,unless otherwise indicated.
After due consideration of all the evidence in the record consisting of the
testimony and exhibits admitted at the hearing,and after a site visit,the following shall
constitute the findings,conclusions,and decision of the Hearing Examiner in this matter.
Findings
1.Robert Thomas Construction,as agent for the property owners,Kim and
Kimberly Bohlander,applied for variances from setback and lot coverage standards
under the land use code and a reduction in the landslide hazard area buffer required by
Chapter 16.20 to reconstruct a single family residence on their property at 10456
Fenton Road.
2.The site of the proposed construction is an 11,778 square foot trapezoidal-shaped
lot with a steep slope determined to be about 120 high with slopes of 40-45 percent
occupying the easterly quarter.The westerly 75 percent is relatively flat.According to
Section 16.20.150,the lot is encumbered by a 120 ft.buffer from the edge of the
landslide hazard area,which buffer extends westerly beyond the existing house.
3.The subject lot is in the R-2 zone where 20,000 square feet is the minimum lot
size according to Section 18.20.020.The lot is nonconforming at .27 acres and is the
smallest in the immediate area,though several nearby properties are less than half an
VAR17536
Page 1 of6
acre in size.All are developed with single-family residences,most not as large as the
proposed structure,but none of the nearby residences have yet been redeveloped.The
minimum lot width and depth in the zone is 80 ft.but the width of the subject lot ranges
from 29.5 to 60.85 ft.
4.The subject site and surrounding properties are designated OSR-2 in the
Comprehensive Plan.The staff report notes two land use element goals relevant to this
proposal:OLS 1.1 regarding the protection of critical areas and OS 4.2 recognizing
existing development pattern of two units per acre.
5.The existing house was constructed in about 1924.It has a floor area of 1,201
square feet and is nonconforming as to front and rear setbacks and as to lot coverage.
Current setback standards are 25 ft.for the front and 15 ft.for the rear and the existing
house has setbacks of 3 Yz feet and 0 respectively.The house actually extends onto the
adjacent property by a few inches.The maximum lot coverage allowed by Section
18.12.020 is 20 percent,which would be 2,355 square feet where the existing lot
coverage is 20.5 percent.
6.The proposed front setback would be 3 Yz feet with the deck extending to within
six inches from the Fenton Road right-of-way.The rear setback would be increased
from no setback to three feet.With the addition of a second story deck and
construction of a front porch the lot coverage would increase from the 20.5 to 24.5
percent,or 2,889 square feet.The new deck at 355 square feet is a "reasonable"size
according to the architect.The detached garage,which is now nonconforming as to the
front yard,would be replaced on about the same footprint as the existing garage.The
height of the house would be increased to 30 ft.,from a single story to three though
more like a 2 Yz-story house because of the steep slope of the roof The total floor area
of the new house would be 4,417 square feet.
7.Fenton Road ends at the edge of the slope.It serves one more residence to the
east at the base of the slope.Access to that property is only by foot down steep stairs.
Vehicles associated with that property currently park on the subject site.The
Department confirmed that the reduced setback would not compromise access,
including turning,of fire equipment.
8.There will be improvements associated with the redevelopment to storm drainage,
the septic system,the community water supply line,and a well on the property.The
fence,which is not on the property line but on the adjoining property,is to be relocated.
Two parking stalls will be provided.
9.A reduction in the required 120 ft.buffer from the landslide hazard area to 10 feet
plus the required building setback of 15 ft.was requested to allow the proposed
construction.The Director of the Department of Planning and Community
Development (Director)has approved the reduction,which is allowed if a critical areas
report demonstrates that the reduction will not reduce the level of protection to the
proposed development,adjacent properties and other associated critical areas.Section
16.20.050.The critical areas report (Exhibits 1 &7)was reviewed by the City's
Development Engineer and underwent third party review as required.All agreed that
the buffer can be reduced safely and required factors of safety met if the report's
VAR17536
Page 2 of6
recommendations are followed.The Director imposed those recommendations and
others required by Ch.16.20 as conditions of approval.
10.Robert Thomas,the contractor for the project,described the subject property as an
"extreme site",referring to its small size and limited possible development footprint.
David Grellier,the project architect,described it as one of the more challenging sites of
his 36 year practice.
11.Three letters of support for the proposal from property owners in the
neighborhood were received.Two neighboring property owners testified about
concerns they have with the redevelopment.The owner of the property adjoining on
the north noted that the new,taller house at just three feet from his property line would
loom over his house and likely block sunlight from reaching his property.He noted the
loss of privacy and the potential for light trespass on his property from lighting on the
deck.An owner of property on Grand Avenue to the west of the subject lot now has a
"peakaboo"view from his solarium over the subject lot which would be eliminated by
the taller structure proposed.He acknowledges that the reduced setback would not
affect the degree of the view interference.
12.The majority of the new third floor is a steeply sloped roof,45 degrees,so that the
full three-story height would be set much farther than three feet from the property line.
The contractor believes that the row of tall evergreen trees down the south side of
Fenton Avenue would interfere with the sunlight reaching both the subject site and the
northerly neighbor's in the winter.The majority of the sun the lots would enjoy is
from the easterly morning sun,which would be unaffected by the redevelopment,
except for the overhead summer sun which should not be affected by the new house,
according to Mr.Thomas.He also opined that any blockage would be exactly the same
even if the house would split in half from east to west,showing that the reduced
setbacks would not affect the degree of sunlight obstruction.
13.A City code requirement addresses the spillage of light onto other properties.
14.The criteria for major variance approval are as follows:
1.The variance is consistent with all other provisions of this code,except
those provisions that are subject to the variance,and is in accord with the
comprehensive plan.;
2.The need for a variance has not arisen from previous actions taken or
proposed by the applicant;
3.The variance is necessary for the preservation and enjoyment of a
substantial property right possessed by other property in the same vicinity
and zone,but that is denied to the property in question because of special
circumstances on the property in question,and will not constitute a grant
of special privilege inconsistent with the limitations upon uses of other
properties in the vicinity in which the property is located;
VARI7536
Page 3 of6
4.The granting of the variance will not be materially detrimental to the
public welfare or injurious to the property or improvements in the vicinity
and zone in which the property is located;and
5.The variance is requested because of special circumstances related to the size,
shape,topography,trees,groundcover,location or surroundings of the subject
property,or factors necessary for the successful installation of a solar energy
system such as a particular orientation of a building for the purposes of providing
solar access.
Section 2.16.120.
15.The Department found that the criteria for major variance had been satisfied and
recommended granting of the variances subject to conditions assuring construction
would be located according to the approvals and that surface and storm water will be
handled appropriately.
16.The City's Responsible Official determined that the proposal is not subject to
review under the State Environmental Policy Act.
17.Notice of the public hearing was published on November 16,2012,mailed on
November 21,2012,and posted at the site on November 26,2012,and on the City's
website and at City Hall.
Conclusions
1.The Hearing Examiner has jurisdiction to hear and decide this matter pursuant to
Section 2.16.120.
2.Notice and public hearing requirements of Chapter 2.16 were met.
3.As the findings show,with the Director's approval of the buffer reduction the
other provisions of the code are met by this proposal.The proposal is in accord with
the Comprehensive Plan in that it would effect no change on the development pattern.
The first criterion is satisfied.
4.The second criterion is satisfied in that the owners represented by the applicant
have not taken any action that created need for the requested variances.
5.Other properties in the zone and vicinity do enjoy reasonable sized homes and to
require that this very small,unusual site observe the standard front and rear setbacks
and lot coverage restriction would deny this property that right.Whether increasing the
lot coverage beyond the existing nonconforming coverage to allow a large second-story
deck is necessary for the enjoyment of a substantial property right when there is no
evidence in the record that other houses in the area have second story decks is a closer
call.The Department pointed out that the Council eliminated the requirement in the
variance criteria that the approved variance be the minimum necessary for relief in the
recent amendments to the chapter.Rules of statutory construction do presume that the
Council knew what it was doing and intended the result when it took an action,though
VARl7536
Page 4 of6
without some further legislative history it is not possible for the hearing examiner to
know with certainty whether the Council believed that the reference in the criterion to
the rights possessed by other property in the area made the deleted requirement
redundant or whether it eliminated it believing that if the variance would not cause
detriment there was no reason to limit it to the minimum necessary for relief The
Department's position that we need only consider that the size would not be materially
detrimental to others is already addressed by the next criterion so also would be
redundant.That other nearby properties are likely to be redeveloped and can be
enlarged is a factor that can be considered in comparing this proposal to rights
possessed by other properties in the vicinity and that the size of the deck proposed is
regarded as reasonable assures that variance approval for this property will not
constitute a grant of special privilege.Therefore,it should be concluded that the third
criterion is satisfied.
6.As the findings show,the record does not contain any evidence that the variances
requested would by materially detrimental to the public welfare or injurious to property
in the area.The setbacks and lot coverage for the deck proposed would not contribute
to view obstruction.The setback on the north side would be increased slightly from the
existing situation and the effect of the additional height and closeness to the joint
property line on privacy is mitigated somewhat by the use of the third floor and the
steepness of the roof's slope.Further,the reduced setback apparently would have little
effect on the amount of sunlight reaching the abutting lot.
7.The findings show that there is no question that there are special circumstances
related to the subject property in terms of size,shape,topography and existing
nonconforming development.These circumstances significantly affect the ability to
redevelop without some.relief Its small size,shape,and topography make
redevelopment without variance nearly impossible.
8.The conditions proposed by the Department are appropriate to assure that the
redevelopment conforms to the approvals given.Conditions related to the approved
buffer reduction should be included as well for ease of reference.
Decision
The requested variances from front and rear yard setbacks and maximum lot
coverage standards are granted subject to the following conditions:
1.The building permit for construction of this single-family home and detached garage
shall be in substantial conformance with variance site plan date-stamped September
13,2012 and floor plans date-stamped August 3,2012.
2.The applicant shall obtain an approved building permit from the Department of
Planning and Community Development prior to construction.The building permit
shall conform to all applicable requirements outlined in BIMC Title 18,except for the
setback and lot coverage variations allowed by this variance,file no.17536.
VAR17536
Page 5 of6
3.Detailed building elevations showing average existing grade and height calculations
shall be provided with the building permit application.
4.Prior to building permit submittal,the applicant shall have a licensed surveyor clearly
delineate the southern,western,and northern property lines/edge of right-of-way by
staking those property lines and the location of the proposed foundations.The
property line and staking shall be inspected prior to building permit issuance.The
property line delineation shall remain throughout construction.A setback inspection
must be completed by a planner prior to the foundation footing inspection.
5.At the time of building permit application,a Surface &Storm Water Pollution
Prevention Plan (SWPPP)shall be provided for City review and approval in
accordance with BIMC 15.20.The SWPPP shall follow the recommendations of the
geotechnical report prepared by Aspect Consulting,dated October 25,2012.
6.All recommendations of the geotechnical report prepared by Aspect Consulting,Inc.
dated October 25,2012,shall become conditions of this approval,unless subsequent
geotechnical reports make conflicting recommendations based on updated data or
techniques.Building permits for each of the building areas shall also follow all
applicable geotechnical requirements in effect at the time of building permit
application.City Geotechnical Step forms 1,2,and 3 shall be submitted through the
building permit process.
7.The applicant for each building permit shall sign and record an Indemnification or
Hold Harmless agreement and a critical area Notice to Title,pursuant to BIMC
Section 16.20.150.D and Section 16.20.190,respectively,prior to issuance of the
building permit.
Entered this 17th day of December 2012.
M~~~
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.
The decision of the Hearing Examiner is the fmal decision of the City in this matter.A
person with standing may appeal this decision to the Kitsap County Superior Court.To
be timely,a petition for review must be filed within the 21-day appeal period [see RCW
Ch.36.70].
VAR17536
Page 6 of6