HEX McNabb Recommendation 9-23-13September 23, 2013
CITY OF BAINBRIDGE ISLAND, WASHINGTON
HEARING EXAMINER
FINDINGS, CONCLUSIONS AND
RECOMMENDATION TO CITY COUNCIL
Project: McNabb (Bainbridge Marina)
Site -Specific Rezone Application
File number: REZ 13220
Applicant: Darrell McNabb
P.O. Box 10325
Bainbridge Island, WA 98110
Owner: Darrell & Vannee McNabb
P.O. Box 10325
Bainbridge Island, WA 98110
Request: The applicant requests a Site-specific Rezone to the City's Official Zoning Map,
to change the zoning of 2 parcels totaling 1.59 acres from Residential, Two Units
per Acre (R-2), to Water Dependent -Industrial (WD -I). The properties are
located at 4200 Eagle Harbor Drive, Bainbridge Island.
The applicant submitted a Comprehensive Plan amendment applications (CPA
13220B) concurrently with the site-specific rezone request, as specified in BIMC
Section 2.16.140.E. The Comprehensive Plan amendment application was
submitted as part of the City's 2013 amendment cycle and is being reviewed
pursuant to BIMC Section 2.16.190. The Comprehensive Plan amendment
application requests a change in the land use designation for the two subject
parcels from Open Space Residential (OSR-2) to Water Dependent -Industrial
(WD -I) on the Land Use Map of the Comprehensive Plan.
Location: 4200 Eagle Harbor Dr. NE
Parcel A: Tax Parcel No.: 352502-2-003-2007 (aggregated with Lots 001 and
002 under Tax Parcel No 352502-2-086-2007)
Parcel B: Tax Parcel No.: 352502-2-004-2006
Current Zoning
Designation: Residential -2 (R-2) Two Units Per Acre
Current Comprehensive
Plan Designation: Open Space Residential -2 (OSR-2)
Environmental
Review: Based on review of a State Environmental Policy Act (SEPA) checklist, a
Determination of Nonsignificance (DNS) was issued on March 29, 2013.
Planning Commission
Recommendation: The Planning Commission considered the Comprehensive Plan amendment
request (CPA 13220B) submitted by Mr. McNabb at a study session on May 23,
2013 and conducted a public hearing on June 27, 2013. The Planning
Commission recommended approval of the change in the land use designation
for Parcel A, and conditional approval of the change in the land use designation
for Parcel B.
FINDINGS OF FACT
Site Characteristics
ASSESSOR'S RECORD INFORMATION:
Parcel A: Tax Parcel No.: 352502-2-003-2007 (aggregated with Lots 001 and 002 under
Tax Parcel No 352502-2-086-2007)
Parcel B: Tax Parcel No.: 352502-2-004-2006
2. TERRAIN:
Parcel A (eastern) slopes gently down from Eagle Harbor Drive, from south to north. Parcel B
(western) slopes moderately from the southwest to north, becoming steeper in the northwestern
portion of the property and toward the water. City records and maps indicate a landslide hazard
area (as defined in BIMC Chapter 16.20 Critical Areas) may exist and to landslide hazard buffer
area therefore may apply. Some vegetation exists near the road on both properties.
SITE DEVELOPMENT:
The "Marina" lots (tax parcels # 352502-2-001-2009, 352502-2-002-2008) were developed with
a marina and boatyard and associated facilities under Kitsap County permits. Parcel A (tax
parcel # 352502-2-003-007) contains a retaining wall, developed under a City of Bainbridge
Island permit. Parcel B (tax parcel (tax parcel 352502-2-004-2006) is developed with a
caretaker unit and office and associated uses and also contains two small historic cabins.
4. ACCESS:
The subject properties are located on the south side of Eagle Harbor and obtain road access
from Eagle Harbor Drive.
PUBLIC SERVICES:
a. Police- Bainbridge Island Police Department
b. Fire- Bainbridge Island Fire Department
c. Schools- Bainbridge Island
d. Water- Private Well, Class I
e. Sewer- On-site septic
6. SURROUNDING USES, COMPREHENSIVE PLAN DESIGNATION & ZONING:
a. North: Eagle Harbor
b. East: Japanese -American Memorial Park, WD -I, Water Dependent Industrial
c. South: Single-family residential/ OSR-2/ R-2
d. West: Single-family residential/ OSR-2/ R-2
Procedural History
7. Darrell McNabb has owned four properties on the south side of Eagle Harbor since 1977, before
the City of Bainbridge Island incorporated. Zoning and permit issuance on Bainbridge Island were
then regulated by Kitsap County. The four parcels comprise approximately 2.71 acres and include
associated tidelands. The two parcels subject to this rezone application total approximately 1.59 acres.
8. In 1980, Mr. McNabb applied to Kitsap County for a Shoreline Substantial Development Permit
(SSDP346) for a marina, dry boat storage and a boat repair facility. In July, 1981, Mr. McNabb also
applied to Kitsap County for an Unclassified Public Use Permit (UPUP) to construct and operate a
marina and boatyard. A Final Environmental Impact Statement for the application package was issued
in August, 1981. The Kitsap County Hearing Examiner approved the UPUP/Site Plan in November,
1981, and the Kitsap County Board of Commissioners approved SSDP 346 in November, 1981.
Marina and boatyard uses were subsequently established on Tax Parcels 352502-2-001-2007, 352502-
2-002-2006 and 352502-2-004-2006. Parcels 001 and 002 are currently zoned Water Dependent -
Industrial and Parcel 004 is zoned R-2.
9. In 1990 the citizens of Bainbridge Island voted to incorporate, and the City of Bainbridge Island
assumed authority for zoning and permitting for the entire Island. Mr. McNabb continued to pursue
with the City completion of the development projects authorized under the County permits. A rich
trove of historical materials documents thirty years of effort both to define what Kitsap County
approved in 1981 and to ascertain Mr. McNabb's success in complying with the original regulatory
framework. In 2006 the City and Mr. McNabb engaged in a contested code enforcement episode. The
City stipulated in October, 2007, and reaffirmed in January, 2013, that a County -approved site plan as
elaborated in various updates remains in full force and effect.
10. Two of the properties owned by Mr. McNabb are currently designated on the City's zoning map
as Water Dependent -Industrial, and two others as Residential/2 units per acre (R-2). Over the years the
City and Mr. McNabb have disagreed whether these latter two parcels had been incorrectly deemed
zoned Residential by the City. While the current zoning map designates them as R-2, a review of the
City's previous Comprehensive Plan Land Use Maps, Zoning Maps and associated ordinances indicates
that the properties were not consistently so described. In some instances, the properties were shown as
residentially zoned, in others as Water -Dependent Industrial. Mr. McNabb is seeking to have all
properties designated WD -I so that he can expand the current marina and boatyard operations and bring
the zoning into conformance with the land use permits and site plans approved by Kitsap County.
11. Because the most recent zoning maps show the application properties as residentially zoned,
Mr. McNabb is presently legally constrained in his efforts to submit permit applications for further
water -dependent industrial development. In 2005 the City advised Mr. McNabb that further
development of the residentially zoned properties would require a Comprehensive Plan amendment and
rezone, and in response Mr. McNabb submitted at that time a Comprehensive Plan amendment request
to effect such change.
12. In 2005 the City was employing a two -phased process for reviewing Comprehensive Plan
amendment requests, with phase I to determine which amendments warranted further review under
phase II. Amendment requests that were not forwarded to phase II were deemed denied. In the case of
Mr. McNabb's 2005 amendment request, staff recommended that the request should not be forwarded
to phase II, preferring instead to integrate review of the request into the City's upcoming Shoreline
Master Program update then scheduled in begin in 2007. The Planning Commission concurred,
forwarding its recommendation to the City Council. But the City Council did not adopt this
recommendation, voting in November 2005 to forward the McNabb request to phase II and directing
staff to review it in the context of its relationship to the Pritchard Park and the Japanese American
Memorial sites to the east. Planning Director Larry Frazier informed Mr. McNabb that phase II review
would begin in the fourth quarter of 2006.
13. The McNabb amendment request was deferred by the Planning Department and never
processed. Nor in the City's recently completed Shoreline Master Program Update were the McNabb
properties reviewed within the framework of the original 2005 amendment request. In January, 2013,
the City entered into a broad settlement agreement with Mr. McNabb, specifying that he could submit a
new amendment request as part of the 2013 Comprehensive Plan amendment cycle and the City would
process such request in good faith.
14. The January, 2013, settlement agreement between the City and Mr. McNabb also provided that
Mr. McNabb could pursue a change in the shoreline designation for Parcel B through the SMP Update
process. Mr. McNabb submitted written and oral public comments to such effect to the City Council in
early 2013. The City Council declined to change the Parcel B shoreline designation to Urban and on
May 15th forwarded the City's draft SMP Update to the Department of Ecology (DOE) for its review.
The Department of Ecology opened a public comment period on the City's draft SMP Update that
commenced on July 23, 2013.
15. Mr. McNabb submitted Comprehensive Plan Amendment and Site-specific Rezone applications
to the Department of Planning and Community Development on February 13, 2013. After a review of
the SEPA checklist, the City's SEPA Responsible Official issued a Determination of Nonsignificance
(DNS) on March 29, 2013. As a site-specific amendment, the DNS was mailed to property owners
within 500 feet of the subject properties as required by BIMC Section 16.04.130.A.2. The comment
and appeal period ended on April 19, 2013. No SEPA appeals were filed.
16. The Planning staff recommended that rezoning Parcel B from Residential to Water Dependent -
Industrial should be contingent on Mr. McNabb securing a change in the shoreline designation to Urban
through the SMP Update process now being conducted by DOE. This proposed contingency mimics
the Planning Commission recommendation for the companion Comprehensive Plan land use map
amendment affecting Parcel B. Within the instant proceeding Mr. McNabb's attorney has requested
deletion of the contingency tying the effectiveness of the Parcel B rezone to a shoreline redesignation.
At the end of the August 9, 2013, rezone public hearing the Examiner left the record open for the
receipt of briefing from the City and the applicant on potential legal consequences arising from
inconsistencies between zoning and shoreline regulations affecting the same parcel. As argued within
the applicant's brief, the City Attorney's memorandum should be regarded as an "advocacy document",
not as a formal legal opinion.
Regulatory Requirements
17. The process for reviewing a site-specific rezone application is specified in BIMC Section
2.16.140.H. All the italicized regulatory standards quoted below must be met for a rezone application
to be approved.
1'hc. Blowing crileria .shall he coilsidcrc d in an'i- )-eW ir . for asite-�specifrc rezone in order to establish
a recommendation to approve, disapprove or approve with conditions:
1. The site-specific rezone will not be materially detrimental to the public welfare or injurious to
the property or improvements in the immediate vicinity and zone in which the property is
located;
Allowing a further expansion of the current marina and boatyard development would be generally
consistent with the existing development pattern for this section of the south shore of Eagle Harbor.
The property to the east is zoned WaterDependent-Industrial. The property to the west is zoned
residential but much of the shoreline is presently developed with non-residential uses of a water -
dependent industrial nature, including three other marinas. The WD -I zoning regulations undertake to
mitigate offsite impacts and include a number of zone -specific performance standards designed to
control pollution, noise and lighting impacts, waste storage and disposal, air quality emissions, ground
and soil contamination, outdoor storage and trash disposal. The Kitsap County Health District did not
comment on either the CPA or rezone applications for the McNabb property.
Parcel A is directly south of Mr. McNabb's two existing Water Dependent -Industrial properties that are
currently developed with the marina and its associated facilities. Changing the land use designation for
this parcel from Residential to Water Dependent -Industrial would allow for an orderly extension of the
existing marina and boatyard. In addition, Parcel A is no longer an appropriate or attractive location for
single-family residential development due to its adjacency to an existing water -dependent industrial
use.
Parcel B is located west of the currently developed Water -Dependent Industrial property with which it
shares about 200 feet of upland boundary. In addition to a caretaker and office unit accessory to the
marina facilities, nearly half of the marina boat slips lie within the tidelands extension of Parcel B.
Changing the zoning designation from Residential to Water Dependent -Industrial on Parcel B would
accommodate a further upland expansion of the existing marina and boatyard facilities from the
adjacent parcel even if no new shoreline development were contemplated.
2. The site-specific rezone is warranted because of changed circumstances and the proposed
designation is appropriate for reasonable development of the subject property, or because of a
need for additional property in the proposed zone, and the proposed designation is appropriate
for reasonable development of the subject property;
The site-specific rezone is appropriate for the property because it would allow for normal expansion of
the current marina and boatyard operations, bringing the zoning into conformance with the land use
permits and site plan approved by Kitsap County in 1981 and recognized as valid by the City. The
changed circumstance of greatest importance is that, after many years of controversy, the applicant and
City have resolved most of the disputed issues concerning the regulatory framework applicable to this
site. This process has been aided by recent surveys of the applicant's parcels that have corrected
longstanding confusion as to the precise locations of existing site development.
3. The subject property is suitable for development in general conformance with zoning standards
under the proposed zoning designation;
The McNabb property has been approved for water -dependent commercial development since 1981
and its Eagle Harbor location is suitable for such use. The site's overall existing development pattern
could be further extended under the proposed WD -t zoning consistent with required standards.
4. The property will be served by adequate public facilities including roads, water, fire protection,
sewage disposal facilities and storm drainage facilities for the intensity to which it is being
rezoned;
The McNabb parcels lie outside the City's water and sewer service area and are currently served by a
Class 1 private well and an on-site septic system. The property is accessed by Eagle Harbor Drive. As
noted by the City's Development Engineer, facilities will be evaluated for adequacy when a specific
development proposal is submitted. No obvious infrastructure deficiencies have been identified. The
Health District offered no comments on the rezone application.
5. The site-specific rezone is in accord with the comprehensive plan;
In general policy terms, this rezone application is consistent with the vision stated in the City's
Comprehensive Plan in that it promotes the continuation of a working waterfront and the expansion of
an existing facility, rather than creation of new facilities at a commercially undeveloped location. As
such, it is consistent with Goal 6 of the Land Use Element of the Comprehensive Plan, which identifies
the purpose of the Water Dependent -Industrial District as the continuation of water -dependent
industrial uses so that the Island's remaining working waterfront can be preserved. Further, Policy W
6.5 states in part that expansion of existing facilities should be encouraged over the addition of new
facilities. Bainbridge Island has an active boating community but extensive stretches of high -bank and
erosional shorelines where private single -dock development is either infeasible or expensive and
environmentally impactive. It is anticipated that the Island will have a continued, and indeed growing,
need for marina and boatyard facilities.
In the immediate context, concurrent approval by the City Council of the McNabb Comprehensive Plan
map amendment applications constitute a necessary predicate for a finding of consistency. Logically,
the Comprehensive Plan amendments precede the rezone approval. The rezone cannot be granted
without the Plan changes. Thus, as will be discussed below in the Conclusions section, the terms of the
rezone must conform to the terms of the Plan amendment, not the other way around. The finding of
consistency with the Comprehensive Plan presupposes Council approval of the Plan amendments and a
harmonious relationship between the two actions.
6. The site-specific rezone complies with all other applicable criteria and standards of the city;
Future uses consistent with the 1981 Kitsap County permits and approved site plans are authorized for
the McNabb parcels. Specific proposals will need to comply with the current development standards
contained in the Bainbridge Island Municipal Code.
7. The site-specific rezone would not devalue surrounding or nearby property;
The McNabb parcels are bounded on the east by City parks property. Properties immediately to the
west are zoned residential but in actuality developed with marina facilities similar to and compatible
with current development on the McNabb property, as well as its anticipated future expansion.
8. The site-specific rezone will not result in an adverse environmental consequence.
A Final Environmental Impact Statement for the Kitsap County applications issued in August, 1981,
provided eiivirmimental review oftlie impacts of full development of the marina and boatyard as
proposed and remains valid for those impacts reviewed. Approval of the current rezone application
would authorize build -out of the 1981 proposal. Additional environmental review would be required
for future WD -I development applications proposing impacts beyond the scope of the 1981 permits.
CONCLUSIONS
1. The Hearing Examiner has jurisdiction over this rezone proceeding for purposes of making a
recommendation to the City Council. Public notice hearing requirements have been met.
2. As documented within the findings above, the requirements stated at BIMC 2.16.140.H for
rezone approval are rather easily met by the McNabb application, provided questions of underlying
Comprehensive Plan consistency are addressed. Review of the McNabb rezone request apart from the
need to reconcile the various regulatory regimes affecting the property raised no serious issues.
Boatyard and marina uses have been authorized on this property since 1981 and its actual development
pattern is consistent with these earlier approvals. Existing uses are harmonious with the proposed Water
Dependent -Industrial zoning designation and in conflict with the current R-2 Residential designation.
As the attorney for the applicants related in his August 22, 2013, letter, "All my clients are seeking is to
have the zoning match the uses that are allowed by the land use approvals issued by Kitsap County,
which the City of Bainbridge Island concedes are in full force and effect."
3. The problems posed by this rezone application thus arise entirely from its broader regulatory
context. BIMC 2.16.140.H(5) predicates the rezone approval upon a finding that the "site-specific
rezone is in accord with the comprehensive plan." Since the current Comprehensive Plan designation
for the subject property is Open Space Residential -2 (OSR-2), approval of the rezone presupposes
concurrent (or prior) amendment of the Plan from a residential to the Water Dependent -Industrial
designation in order for the consistency requirement of BIMC 2.16.140.H(5) to be met. And, in a
general sense, this process is indeed going forward as required: CPA 13220B is a concurrent
Comprehensive Plan amendment request to effect a WD -I designation on the McNabb parcels.
4. But the devil is in the details. The proposal to rezone Parcel A presents no obstacles to
approval because it involves an entirely upland property; the Planning Commission has recommended
unconditionally that Parcel A be redesignated to WD -I in the Comprehensive Plan. Parcel B, however,
also possesses some 200 feet of Eagle Harbor shoreline plus associated tidelands. This Parcel B
shoreline area also lies just east of the mouth of Taylor Creek. On the City's existing (pre -Update)
shoreline map, while the shoreline immediately east of Parcel B is designated Urban and further west is
Semi -rural, the mouth of Taylor Creek (including the Parcel B frontage) is currently designated
Natural. In the City's SMP Update presently under review by DOE, the area at the mouth of Taylor
Creek has been recommended for a Shoreline Residential Conservancy designation. But neither the old
Natural nor the new Shoreline Residential Conservancy designations support marina and boatyard
development.
5. In response to this potential conflict between zoning and shoreline use designations, the
Planning Commission accepted the staff recommendation to make approval of the change in Parcel B's
Comprehensive Plan designation to WD -I conditional on first obtaining from DOE a change in the
adjacent shoreline designation to Urban. Since the City's SMA Update presently before DOE proposes
a residential shoreline designation for Parcel B, the effect of the Planning Commission condition is to
require the applicant to convince DOE through the public comment process to reject the City's own
officially preferred designation — a daunting task any way you slice it. Hence the applicant's attempt to
obtain through the instant rezone an approval unburdened by the recommended disabling contingency.
6. Whatever the ultimate merits of designating the Parcel B shoreline as Urban or Natural (or
something in between), it seems clear that a rezone approval that creates an inconsistency between the
zoning and Comprehensive Plan designations would cause more problems than it would solve. The
zoning and Plan designations need to be harmonious. Under Washington's land use scheme the Plan
designation is primary, and the zoning implements the Plan. It is not the function of a rezone approval
to leverage a Plan change, no matter how desirable that change may seem. Thus the conditions of
rezone approval must not conflict with parallel conditions placed on the concurrent Plan amendment.
7. Having noted that critical limitation, there nonetheless may be more flexible and less drastic
ways to resolve the problems attendant to potential regulatory inconsistencies affecting a single piece
of property. First, a conditional rezone need not adopt the specific substantive requirements
recommended by the Planning Commission for placement on the concurrent Plan amendment. It is
sufficient simply to require the rezone to be activated by the same set of contingencies imposed on the
Plan amendment — whatever such contingencies ultimately may turn out to be. This approach
recognizes that the City Council Plan amendment approval could involve revision of the Planning
Commission recommendation.
8. In reviewing the Planning Commission recommendation on the proposed CPA 13220B
Comprehensive Plan amendment, the City Council might wish to take into account the fact that
additional marina and boatyard development can occur on Parcel B without further construction on the
shoreline itself. This is because after approval of the Parcel A rezone the entire eastern flank of Parcel
B will lie adjacent to McNabb properties zoned WD -I. Marina and boatyard development to the east
could be extended onto upland portions of Parcel B without triggering a requirement for a shoreline
permit. But the absolute terms of the Planning Commission recommended condition preclude this kind
of unconflicted upland marina and boatyard development from taking place because the condition
requires all of Parcel B to remain in residential zoning until the shoreline designation is changed.
9. A more targeted solution consistent with the facts on the ground might involve the following:
approval of the immediate Comprehensive Plan and zoning redesignation of Parcel B to WD -I subject
to a condition that no shoreline permit applications will be processed or approved until the shoreline
designation is changed to Urban. This would avoid the potential conflicts between shoreline and
zoning permitted uses that are of concern to the Planning Commission without unnecessarily tying up
the whole parcel in the process.
In closing, it is important to emphasize that the foregoing scenario for altering the proposed Plan
amendment condition merely offers a friendly suggestion to help untangle a regulatory snarl that has
plagued Island residents for more than thirty years. The Hearing Examiner has no jurisdiction
regarding the Comprehensive Plan amendment process, and this suggestion cannot and does not
comprise part of the formal rezone recommendation.
RECOMMENDED DECISION
The Hearing Examiner recommends that the Bainbridge Island City Council APPROVE the McNabb
Site -Specific Rezone (file no. REZ 13220), subject to the following conditions precedent:
For Parcel A: Water Dependent -Industrial (WD -I) zoning shall become effective immediately
upon City Council approval of Comprehensive Plan amendment CPA 13220B.
For Parcel B: Water Dependent -Industrial (WD -I) zoning shall become effective upon City
Council approval of Comprehensive Plan amendment CPA 13220B and
satisfaction of, or subject to, any contingencies and conditions stated therein
limiting or modifying such approval.
Recommended September 23, 2013.
S ord L. Sn-u-th, Hearing Examiner
City of Bainbridge Island
The exhibit list prepared by the Clerk of the Hearing Examiner's Office is attached.