HEX Sinclair Variance Decision 063016June 30, 2016
CITY OF BAINBRIDGE ISLAND, WASHINGTON
HEARING EXAMINER
REPORT AND DECISION
Project: Sinclair Variance
File number: VAR16763B
Applicant: Teris Sinclair
8368 NE Beck Road
Bainbridge Island, WA 98110
Appellants: Bill Reddy and Janet See
8380 NE Beck Road
Bainbridge Island, WA 98110
Jim and Mary Colegrove
8362 NE Beck Road
Bainbridge Island, WA 98110
Location: 8368 Beck Road, Tax Parcel No. 032402-2-009-2000, SE Quarter of NW Quarter,
Section 3, Township 24N, Range 02E, W.M.
Request: To exceed 15% lot coverage limit to achieve 22.1 % lot coverage, and reduce the
combined side yard setback from twenty-five to 11 %2 feet to allow for construction
of a 2 car garage with finished space above.
\SEPA Review: Determined categorically exempt from review under the State Environmental
Policy Act (SEPA) pursuant to WAC 197-11-800(6)(b).
FINDINGS OF FACT
A. Site Characteristics
1. TAX ASSESSOR INFORMATION
a. Tax Lot Number: 032402-2-009-2000
b. Owner of record: Teris Sinclair
VARIANCE REPORT AND DECISION - 1
C. Lot size: Approximately 0.17acres (7,500 square feet)
d. Land use: Single -Family Residential
2. TERRAIN:
The property slopes gently from north to south.
3. SOILS:
According to the USDA Soil Survey of Kitsap County Area (1977), the property is mapped as
having Cathcart silt loam, 15 to 30 percent slope.
4. ACCESS:
The property is accessed from a shared driveway running north from Beck Road. The
driveway is on the Colegrove property and appears to lie just west of an unopened segment of
Beck Road right-of-way.
5. PUBLIC UTILITIES
a. Water: South Bainbridge Water Co.
b. Sewer: On-site septic
C. Storm drainage: Closed -conveyance
6. PUBLIC SERVICES
a. Police: Bainbridge Island Police Department
b. Fire: Bainbridge Island Fire District
C. Schools: Bainbridge Island School District
7. EXISTING USE:
The property is currently developed with 948 square foot single-family residence.
8. SURROUNDING USES:
The property is surrounded by single-family residences.
9. EXISTING ZONING: R-1, 1 Unit per Acre Zone.
10. EXISTING COMPREHENSIVE PLAN DESIGNATION: Open Space Residential -1 (OSR-1).
11. SURROUNDING ZONING/ COMPREHENSIVE PLAN DESIGNATION: R-1/OSR-1
B. Procedural History
12. Variance requests nearly identical to those subject to the current proceeding were submitted,
approved, appealed by the neighbors and subsequently upheld by the Hearing Examiner in 2011 (file
no. PLN 16763 VAR). But this previously issued variance approval expired due to inactivity 3 years
after the date of its issuance. On October 15, 2015, the City received a second application from Ms
VARIANCE REPORT AND DECISION - 2
Sinclair to grant the same variances for the garage construction project that had previously been
approved, supported by a site plan and building elevations. A Letter of Complete Application was
issued, with a Notice of Application published on October 30, 2015. Soon thereafter the Bainbridge
Island Fire Department and the Kitsap County Health District submitted their approvals for the project.
13. On November 6, 2015, the City received a comment letter from the neighbors residing east
of the Sinclair property, Ms. Janet See and Mr. Bill Reddy, opposing the granting of the variance. The
City Planning Director again approved the minor variance requests within an administrative decision
issued February 23, 2016. And the Reddy/See and Colegrove households again filed a timely appeal of
this decision to the Hearing Examiner. A public hearing on the second variance appeal was held on
June 15, 2016.
14. Two days prior to the hearing the City Attorney filed a brief arguing that the second appeal
by Reddy/See and Colegrove should be deemed barred by res judicata, a judicial doctrine precluding
repeated litigation by the same parties of claims previously decided. The Examiner declined to
consider applying res judicata in this instance, first because the issue was not raised in a timely manner
and second because the brief was not accompanied by a dispositive motion. The purpose of the
doctrine is to achieve judicial economy by avoiding unnecessary litigation; in order for that to occur, it
needs to be asserted at a time and in a form that would allow the proceeding to be dismissed without
unfairly burdening the parties. A last-minute brief merely arguing res judicata cannot achieve this
purpose.
C. Variance Review
15. The'decisional criteria governing issuance of a minor zoning variance are stated at BIMC
2.16.060.1)(1):
a. 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
b. 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; and
c. The need for a variance has not arisen from previous actions taken or proposed by the
applicant; and
d. 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; and
e. 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.
16. It needs to be emphasized at the outset that the City's variance review lacks the legal authority
to resolve many of the issues outstanding among the parties to this appeal. Reddy/See, the Colegroves
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and Ms Sinclair all share a driveway arrangement based on usage patterns that mostly have never been
formally incorporated into legal documents. Both the existing Reddy/See garage and Ms Sinclair's
proposed new garage site lie more than 100 feet north of Beck Road and are accessed over the
Colegroves' gravel driveway. The Colegroves' garage is also located near the north end of their
driveway, and in order to exit in a forward direction, their vehicles have historically backed into a
gravel turnaround area that extends from their driveway onto the Sinclair lot. The Reddy/See garage
also opens into this turnaround area. Finally, there appears to be a section of unopened and as yet
unvacated City road right-of-way lying adjacent to the eastern edge of the Colgrove driveway, and part
of the Reddy/See garage may intrude into this right-of-way; but this intrusion has no bearing on the
variance issues.
17. Only a 26 by 30 -foot section of the turnaround area located at the southeast corner of the
Sinclair lot adjacent to the Reddy/See garage is actually covered by a written easement. This was
created in 1994 by a prior owner of the Sinclair parcel in favor of a prior owner of the Reddy/See
property as "an easement for ingress". It contains a restriction on the grantor to "make no use of the
land occupied by said easement except for that which will not interfere with grantee's ingress and
egress". All other usages described in finding no. 16 above are supported by claims to prescriptive
easements; these are matters that this administrative proceeding has no jurisdiction to adjudicate or, by
extension, to recognize. This proceeding also lacks the authority to interpret the 1994 written easement
in the manner required to make a finding that Ms Sinclair's proposed construction activities would
interfere with Reddy/See's right of ingress and egress and thus violate the easement.
18. This appeal is strictly focused on the consequences of the variances requested. It cannot
support a general, wide-ranging evaluation of all aspects of the proposal. As a variance proceeding it
narrowly targets certain dimensional standards and therefore does not take into account alleged broader
development impacts that are not a consequence of the lot coverage and setback variances requested.
For example, the proposed garage will also accommodate an upstairs sleeping room, and the appellants
have objected to the height and resultant bulk of the proposed two-story structure. But the proposed
height of the structure is permitted outright in the zone, and no relevant regulations govern its bulk.
Because the granting of the setback and coverage variances are not necessary to authorize the
structure's proposed height or bulk, any alleged view impacts resulting from second story construction
will not be the result of the variances and thus are unrelated to this variance review.
19. Similarly, even though the Health Department review registered no objections to the variances
requested, questions were raised at the hearing about the possibility that the new garage's foundation
excavation may intercept the applicant's existing septic drainfield. While with older septic systems the
documentation of facility locations may be sketchy or inadequate, and septic issues may be
unexpectedly encountered during foundation excavation and need to be addressed, these are matters of
compliance with Health Department regulations that will exist with respect to any construction
proposal independent of variance issues.
20. Single-family residences and accessory buildings are listed as permitted uses in the R-1 zone at
a density of 1 unit per 40,000 square feet. Thus at 0.17 acres (7,500 square feet) the subject property is
an existing nonconforming lot. The maximum lot coverage for the R-1 zone is 15%, which translates
to approximately 1,125 square feet for the subject property. The existing single family residence and
porch occupy a 1,044 square foot footprint, resulting in an existing lot coverage of 14%. The variance
application requests to exceed the 15% lot coverage limit to construct a garage (with finished space
above) and a covered roof over the existing walkway linking the garage to the residence. The
application shows the garage footprint at 552 square feet, yielding after construction a total lot
VARIANCE REPORT AND DECISION - 4
coverage of 21.3%.
21. Under BIMC Section 18.12.050 the applicant's property is subject to two front yard setbacks of
25 feet each. Lying directly to the west is the Mattson Place right-of-way, and to the east is the narrow
10 -foot wide unopened right-of-way extending north from Beck Road. As stated in BIMC 18.12.020-2,
the minimum side yard setback for the R-1 zone is 10 feet, with a combined side yard (north and south
together) setback requirement of 25 feet. Because the subject property has two front setbacks, it does
not also have a rear setback. The standard rear yard setback would be 15 feet.
22. The existing home intrudes into the required Mattson Place front yard setback. It is also located
one foot from the north side property line and as such both fails to meet the 10 -foot side yard minimum
and requires 24 feet of the combined total to be located along the south line. The existing home meets
the front yard setback from the eastern right-of-way and is 40 feet from the southern side property line,
thus currently complying with the 25 feet combined side setback requirement. The variance
application requests a 14 % foot reduction in the combined 25 foot combined side setback requirement
to construct a garage 10 1/2 feet from the south side property line. The proposed garage would therefore
still meet the minimum 10 foot side setback of the R-1 zone. The proposed garage also would meet
both required front setbacks to the east and west.
23. By way of context, a 7500 square foot lot would normally be found in the R-5 zone, which
allows 25% lot coverage and imposes a minimum 5 -foot side yard setback and 15 -foot combined side
setback. If the Sinclair garage proposal were located in the R-5 zone it would meet lot coverage
requirements but still fall 3.5 feet short of meeting the combined side setback total of 15 feet. Thus a
small side yard setback variance would still be necessitated for the project.
24. Two vehicle use issues have been raised by the appellants with regard to the easement serving
the Reddy/See garage and its adjacent areas. One involves potential changes to historic parking
patterns, and the second is focused on short-term conflicts arising out of the garage construction
process. Currently, Ms. Sinclair parks in a graveled area adjacent to the ingress/egress easement, which
parking area is now slated for garage construction. Functioning as the existing parking area for the
Sinclair property, the footprint to be occupied by the planned garage does not encroach on the
Reddy/See easement but will perhaps eliminate a convenient maneuvering option that may be available
when no cars are present in the parking area. But Ms Sinclair is under no present obligation to provide
vehicle maneuvering space outside the formal easement; to merit recognition in this proceeding, any
prescriptive claim for such use would need first to either be formally acknowledged by her in a
recorded document or adjudicated in Superior Court.
25. Larger vehicles may indeed experience difficulty turning around within the Reddy/See
easement, leading them to back down the long Colegrove driveway to Beck Road. But the City does
not prohibit vehicles backing out onto public roads, and the portion of Beck Road flanking the
driveway entrance, although narrow, is straight and lightly traveled. If vegetation growth is currently
impairing visibility for vehicles exiting the driveway at Beck Road, the appellants perhaps should just
cut it back themselves since such vegetation is likely located on one or both their properties. A 2011
memo from a City engineer evaluated the ability of vehicles to turn around in the ingress/egress
easement during the original variance review and concluded that the dimensions of the easement, while
not optimal, were adequate. The City's present Development Engineer, Janelle Hitch, concurred with
this assessment in her review of the current application.
VARIANCE REPORT AND DECISION - 5
26. It seems undisputed that the actual erection of the garage will need to be managed with some
sensitivity in order to reasonably accommodate the temporary addition of construction equipment and
deliveries to the site without unduly inconveniencing the appellants' vehicle access and use. The
Colegrove driveway appears in the aerial photos to be of variable effective width but probably averages
about 15 feet. The photos show Colegrove vehicles parked along its west side with enough room
remaining for other vehicles to pass. The formal easement area needs to be kept free of extended use
by construction vehicles. But, construction traffic concerns at this location are not the result of the
variances, per se, but are endemic neighborhood conditions. Any development activity on the Sinclair
site would create construction traffic management issues, with or without a variance request.
27. The project will be conditioned to ensure that construction only takes place during the times
allowed by BIMC Section 16.16.025, in order to mitigate noise impacts. Within residential zones,
construction activities may take place between 7 a.m. and 7 p.m., Monday through Friday (except legal
holidays); between 9 a.m. and 6 p.m. on Saturdays; and prohibited on Sundays and legal holidays,
except that work on the inside of an enclosed structure may occur between 10 a.m. and 4 p.m.
28. The special circumstances applicable to the Sinclair property are the product of its development
history plus the fact that it is a small nonconforming lot subject to regulations formulated with much
larger parcels in mind. The locations of structures, septic drainfields and the Reddy/See easement
largely preclude building a garage in any other spot. The 15% lot coverage provision of the R-1 zone is
geared to a 40,000 square foot parcel and generates a 6000 square foot building envelope on a standard
lot within the zone. On the much smaller Sinclair lot, 15% coverage only authorizes an envelope of
slightly more than 1100 square feet. The Sinclair actual parcel size is comparable to an R-5 lot where
25% coverage is allowed, and the Sinclair proposal would comfortably meet the R-5 coverage standard.
29. The applicable R-1 zone lot line setbacks additionally comprise a special circumstance. They
are also designed for larger lots, and when combined with historic construction of the older house near
the north lot line, impose an impractically large 24 -foot side yard setback along the property's south
boundary under the combined setback standard. Since this is the only unconstrained portion remaining
on the lot, strict enforcement of the 24 -foot setback would essentially prevent any additional
development on this site. The 10 -foot minimum side yard setback will not be exceeded. In the context
of the lot's overall development configuration, a secondary setback special circumstance also results
from having two R-1 25 -foot front yard setbacks imposed, one by an unopened right-of-way where the
setback regulatory function is actually irrelevant.
30. These special circumstances individually and collectively reflect historical development
patterns that long preceded the applicant's ownership and therefore cannot be ascribed to her own
actions. Garages are normal appurtenances to single-family development commonly enjoyed by other
properties in the vicinity and zone. As documented in the staff report, the project proposal is consistent
with all applicable regulations and plan policies other than the setback and lot coverage provisions
covered by the variance requests.
VARIANCE REPORT AND DECISION - 6
CONCLUSIONS
1. The Hearing Examiner has jurisdiction over this variance appeal proceeding. Applicable notice
requirements have been met. The variance proposal is categorically exempt from SEPA review.
2. The Sinclair garage proposal meets the criteria for issuance of a minor zoning variance stated at
BIMC 2.16.060.1)(1). The appellants have failed to meet their burden of proof to demonstrate
noncompliance with these criteria.
3. Zoning variances are granted under authority of this decision to exceed the 15% lot coverage limit
of the R-1 zone in order to achieve a 22.1 % lot coverage, and to reduce the combined side yard setback
from twenty-five to 11 1/z feet to allow for construction of a two car garage.
DECISION
The variance appeals of Bill Reddy and Janet See and Jim and Mary Colegrove are DENIED. The lot
coverage and setback variances requested by Teris Sinclair for property located at 8368 NE Beck Road
(file no. VAR16763B) are GRANTED, subject to the following conditions:
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 side -yard setback intrusion and lot coverage
increase allowed through this variance. The building permit site plan and elevations shall be in
substantial conformance with the site plan date-stamped October 15, 2015, except as modified by
these conditions.
2. The applicant shall provide for 2 off-street parking spaces outside of the ingress/egress easement at
the southeastern corner of the property to satisfy the requirements of BIMC 15.15.020-1. This will
be accomplished by constructing the 24 -foot wide two car garage, as proposed.
3. The applicant shall clearly delineate the southern and eastern property lines/edge of right-of-way by
staking those property lines and the location of the proposed foundation. The property line and staking
shall be inspected prior to setback inspection. A setback inspection must be completed by a planner
prior to the foundation footing inspection.
4. Eaves of the new garage shall not intrude more than 24 inches into any zoning setback, including
the varied side setback to the south.
5. Construction vehicles shall utilize the area of the Reddy/See ingress/egress easement only for
pickup and drop-off of materials. Construction vehicles shall not park in the ingress/egress
easement. During construction, building materials and supplies shall not be stored within the area of
the ingress/egress easement.
6. Stormwater runoff from the new building shall be directly conveyed to the existing storm drain.
7. The garage/guest quarters structure that is the subject of this variance shall not be converted at any
point to an Accessory Dwelling Unit.
VARIANCE REPORT AND DECISION - 7
8. To control noise impacts, construction hours shall be restricted to the days and times authorized in
BIMC Section 16.16.025.
9. The applicant is required to stop work and immediately notify the Department of Planning and
Community Development and the Washington State Office of Archeology and Historic Preservation
if any historical or archaeological artifacts are uncovered during excavation or construction. This
provision shall appear as a note on the construction drawings submitted as part of the building
permit application.
ORDERED June 30, 2016,
City of Bainbridge Island
The Hearing Examiner is authorized to make the City of Bainbridge Island's final decision on a minor
variance appeal. A parry with standing may seek judicial review of this decision by filing a timely suit
in Kitsap County Superior Court under the Land Use Petition Act.
The exhibit list prepared by the Clerk of the Hearing Examiner's Office is attached.
VARIANCE REPORT AND DECISION - 8
EXHIBIT LIST
Appeal of Administrative Decision
(PLN16763BVAR)
Staff Contact: Public Hearing: 06/15/2016
Nate Schildmeyer Location: City of Bainbridge Island
Planner City Hall Council Chambers
Hearing Examiner:
Stafford Smith
EXHIBIT DOCUMENT DESCRIPTION DATED
NO.
1 Citizen Comments (including Cousins Itr and Colgrove Itr submitted at hrg). 11/06/2015
to
06/132016
2 Staff Report with the Following Attachments: 02/12/2016
A. Variance application received October 15, 2015
B. Site plan date stamped October 15, 2026, and building elevations/floor
Plans date stamped October 15, 2015
C. Preapplication Waiver Form from original application (PLN 16763 VAR)
D. Kitsap County Health District review
E. Bainbridge Island Fire Department review
F. Notice of Application
G. Written public comment with copy of ingress/egress easement,
Auditor's File No. 9407280023
H. Letter of Complete Application sent to applicant
_
3 Notice of Administrative Decision
02/23/2016
(Issued)
4 Appeal by Reddy/See and Colegrove
03/04/2016
(Received)
5 Notice of Public Hearing
05/27/2016
(Published)
6 Certification of Distribution and Posting
05/25/2016
(Dated)
7 Appellant's Photograph
05/25/2016
(Dated)
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