HEX Wyatt Hill Order on Reconsideration 050515May 5, 2015
CITY OF BAINBRIDGE ISLAND, WASHINGTON
HEARING EXAMINER
ORDER REVISING EXAMINER'S APRIL 15, 2015, DECISION
ON RECONSIDERATION
Project:Wyatt Hill Subdivision
File number:PLN50074SUB
Applicant:DeNova Northwest, LLC
Location: No physical address; on the south side of Wyatt Way between Nicholson Place
and Grow Avenue, adjoining the unopened Shepard Way right-of-way.
Request:Preliminary long lot subdivision approval to create 19 single-family lots,
utilizing the cluster flex lot process in accordance with the City’s flexible lot
design subdivision provisions.
\SEPA Review: A Mitigated Determination of Non-Significance was issued on February 13,
2015 with the 14-day appeal period ending on February 27, 2015. No appeals
were filed.
1.On April 22, 2015, the Hearing Examiner's Office received a request from the City's
Development Engineer that the Examiner's April 15, 2015, preliminary plat decision be modified to
“strike comments that indicate that the City of Bainbridge Island Design and Construction Standards
and Specifications are not regulatory.” A notice was issued by the Examiner on April 23, 2015, that
provided an opportunity to the City to amend its original request by May 1, 2015, and indicated that an
addendum would be sufficient to address the limited issues originally raised if no amendment raising
issues specific to Wyatt Hill were forthcoming. No such amendment was received from the City by the
May 1, 2015, deadline. On reconsideration the Examiner's April 15, 2015, preliminary plat decision
will be modified to include an addendum of the type described in the April 23, 2015, notice.
2.The applicant's attorney, Nancy Bainbridge Rogers, submitted on April 27, 2015, a request for
reconsideration seeking elimination of the requirement stated within the Examiner's April 15, 2015,
preliminary decision that the plat map be modified to create an open space tract for the preservation of
two black locust trees. A followup email from Ms Rogers forwarded on May 4, 2015, suggested the
possibility that a “new private agreement” could render moot some of the open space issues raised by
the applicant. Finally, a letter submitted later the same day by Ms Rogers confirmed the completion of
“an agreement that allows preservation of the black locust trees on Lot 14 of the Wyatt Hill
subdivision, including compliance with the terms of Condition No. 25.” As a result of this agreement,
ORDER ON RECONSIDERATION - 1
the applicant's reconsideration request was amended to simply target a pervasive clerical error, the
Examiner's unfortunate and confusing references to lot 14 as lot 18.
ORDER
A.No additional requests for reconsideration will be entertained.
B.All references within the Examiner's April 15, 2015, preliminary plat decision to “lot
18” are corrected to refer to “lot 14.” These appear, more particularly, at findings nos. 48
through 52, conclusion no. 4, and condition no. 25. The corrected version of condition no. 25
will now read as follows:
25.A revised preliminary plat drawing meeting the requirements of the Examiner's
decision shall be submitted to and approved by the City before any site alterations are
authorized. More particularly, the revised plat drawing shall incorporate the following
features:
a.Proposed lot no. 14 shall be reconfigured to create an open space
tract for the preservation of the two black locust trees located therein.
Recommendations for maximizing the trees' long-term survival potential
shall be made by a certified arborist and incorporated into the tract
design; provided that, if either tree is determined unlikely to survive, its
location may be deleted from the tract, and if both trees are deemed
beyond preservation, the entire tract may be eliminated. The tract design
shall be reviewed and approved by the City, with the technical basis for
any proposal to remove a tree from protection or delete the tract
altogether confirmed through peer-review by a second independent
arborist selected by the City.
b.The open space tract design shall provide pathway connections to
both Wyatt Way and the plat's internal roadway.
c.The plat's internal roadway shall conform generally to the
modified 30-foot right of way suburban design proposed in exhibit no. 28,
with the 5-foot north-side sidewalk designed to provide a surface and
gradient satisfactory for use by the disabled.
d.The internal roadway sidewalk's terminus on the south side of the
cul de sac bulb shall be redesigned to provide and safe and smooth
wheelchair-accessible transition to a 5-foot walkway connecting south to
the existing trail in the Shepard Way right of way. There is no
requirement to redesign the proposed stormwater ponds to accommodate
a future road connection to Shepard Way.
e.Prior to final plat approval, the tree retention open space tract may
be conveyed to either the City or a qualified non-profit land trust, if either
formally commits to owning and maintaining the tract. Otherwise, it shall
be owned and maintained by a subdivision homeowners' association
created by the applicant pursuant to a recorded document approved by the
ORDER ON RECONSIDERATION - 2
City prior to final plat recording.
C.The Examiner's April 15, 2015, preliminary plat decision is modified on reconsideration
to include the following note as an addendum:
On April 22, 2015, the Hearing Examiner's Office received a timely reconsideration
request from the City's Development Engineer that the Examiner's April 15, 2015,
preliminary plat decision be modified to “strike comments that indicate that the City of
Bainbridge Island Design and Construction Standards and Specifications are not
regulatory.” Appended to the City's request were Ordinances 94-29 and 97-23, which
pertain to “public infrastructure design, construction, operation, and maintenance” and
relate necessarily to the codes and design standards in effect at the time of their
respective adoptions. The City's website currently provides the year 2000 version of the
Design and Construction Standards and Specifications. The ordinances submitted by the
City with its request thus do not apply to any design standards promulgated later than
1997. The terms “design, construction, operation, and maintenance” are plainly focused
on the technical details of how facilities should be built, not the policy questions of what
should be built and where. Questions concerning what types of roads are appropriate at
specific locations are primarily zoning matters.
In view of the foregoing, the employment of the Design and Construction Standards and
Specifications as zoning or subdivision controls remains problematic. But a more
compelling case likely exists for their continued use as obviously intended, that is, as
design and construction technical standards governing how facilities should be built. To
the extent that the current version of the Design and Construction Standards and
Specifications simply carries forward requirements in existence at the time of adoption
of Ordinance 97-23, its use as a construction manual with regulatory authority appears to
be warranted.
D.Except as specified herein, the terms and conditions stated in the Examiner's April 15,
2015, preliminary plat decision remain in full effect.
E.As provided in BIMC 2.16.100.C(7), the deadline for filing judicial appeals of the
Examiner's April 15, 2015, preliminary plat decision is to be calculated from the date of this
reconsideration order.
ORDERED May 5, 2015.
___________________________________
Stafford L. Smith, Hearing Examiner
City of Bainbridge Island
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