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HEX Rockaway Beach Road Stabilization 120114December 1, 2014 CITY OF BAINBRIDGE ISLAND, WASHINGTON HEARING EXAMINER REPORT AND DECISION Project: COBI Rockaway Beach Stabilization Shoreline Conditional Use Permit File number: SCUP18545 Applicant: City of Bainbridge Island 280 Madison Avenue Bainbridge Island, WA 98110 Request: An after -the -fact permit for already -constructed 320 foot long soldier pile and 80 foot long geosynthetic bluff retaining walls along the eroded bluff below a reconstructed section of Rockaway Beach Road. Location: Below Rockaway Beach Readjust east of the Bill Point Neighborhood and south of Pritchard Park, being a portion of Section 36, Township 25N., Range 2E., W.M. Environmental Review: An emergency SEPA exemption letter was sent to WDFW on May 24, 2013. Zoning: R-4.3, one unit per 10,000 square feet. Shoreline Designation: Urban FINDINGS OF FACT A. Background I. Since 1997 the land below Rockaway Beach Road has been eroding due to wave action, causing upland sloughing and damage to the roadway. In June, 2005, the City first contracted with Aspect Consulting to prepare a shoreline stabilization study. In December, 2007, a major winter storm severely eroded the bank and damaged the road prism. For several years the City made emergency repairs, continued to study the slope, and sought funding assistance to repair the road and stabilize the COBI SCUP DECISION - 1 slope. In August, 2012, the City Council enacted resolution 2011-19, declaring the project an emergency. Thereafter the City's Public Works Department consulted with state and federal agencies to obtain approval of a design for the stabilization project. 2. The subject property lies directly below Rockaway Beach Road in a location where the roadway at the top of the bluff is approximately 50 feet above ordinary high water. Because the watefront properties on either side have rock bulkheads armoring their frontages, this portion of shoreline is subject to increased erosion from funneled wave energy. The actual work on the site covered by the current permit application occurred between August 21 and October 4, 2013. The after -the -fact application for a Shoreline Conditional Use Permit was submitted to the Planning Department on February 12, 2014, with a Notice of Application published on April 4, 2014. After the City Council received public comments in 2012 during its deliberations over conferring emergency status on the project, no additional public comments were received during the official comment period for this after - the -fact permit nor at the public hearing held November 19, 2014, on the shoreline application. 3. The soldier pile wall at the bottom of the slope is a conventional bulkhead that can be authorized pursuant to a shoreline substantial development permit. But the terraced geosynthetic bluff retaining wall anchoring the slope between the soldier pile wall and the road does not fall neatly within any of the definitions provided by the City's current shoreline program. On this basis City staff determined that approval of a bluff retaining wall requires a shoreline conditional use permit in the category of unlisted or unclassified uses. This requires it to meet the special requirements of BIMC 16.12.380.C(2) in addition to the standard SCUP criteria. SSDP authorization of the soldier pile wall can be subsumed under the SCUP review because the SCUP criteria include the SSDP approval standards. 4. The project has received funding support from the Federal Highway Administration and therefore undergone both state and federal agency review. For purposes of this shoreline permit decision, the most relevant of these agency review procedures involved the Washington Department of Fish and Wildlife (WDFW) in the context of the City receiving a Hydraulics Project Approval (HPA). The aquatic area offshore from the project supports surf smelt spawning and eelgrass beds. A major environmental concern has been that the retaining walls installed below Rockaway Beach Road will reduce the contribution of beach sediments from feeder bluffs. 5. Anticipated sediment loss has been roughly estimated at 80 cubic yards per year. A Mitigation Agreement negotiated with WDFW dated August 7, 2013, obligates the City to perform baseline studies, implement a program of annual beach nourishment and institute surf smelt habitat and eelgrass bed monitoring. The City's initial commitment to 90 cubic yards annually of beach material placement is subject to revision based on the monitoring data. In October, 2014, the City performed a first round of beach nourishment and replaced mitigation plant materials that did not survive the first year. B. Shoreline Conditional Use Permit 6. BIMC 16.12.380.0 states the criteria for approval of a shoreline conditional use. In the discussion below the code language is italicized. C. Conditional Uses. The purpose of a shoreline conditional use permit is to allow greater flexibility in applying the use regulations of the master program in a manner consistent with the COBI SCUP DECISION - 2 policies ofRCW 90.58.020 or its successor; provided, that shoreline conditional use permits 1 should also be granted in a circumstance where denial of the permit would result in a thwarting of state policy enumerated in RCW 90.58.020 or its successor. In authorizing a conditional use, special conditions may be attached to the permit by the city or the State Department of Ecology to prevent undesirable effects of the proposed use. Uses which are specifically prohibited by the master program may not be authorized with approval of a shoreline conditional use permit. 1. Uses classified as conditional uses may be authorized; provided, that the applicant can demonstrate all of the following: a. The proposed use will be consistent with the policies of RCW 90.58.020 or its successor and the policies of the master program. BIMC 16,12.050 Archaeological and historic resources. No known archaeological or historic resources exist on the subject properties. A Cultural Resources Survey Report was completed by Caldera Archaeology, and the Department of Archaeology & Historic Preservation concurred with its recommendations and findings. BIMC 16.12.060 Clearing and grading. Some clearing and grading was required to install the retaining/catchment walls. Erosion controls were implemented to minimize impacts on the shoreline during construction. As clearing and construction of the retaining walls occurred within the native vegetation zone, replanting was necessary to preserve ecological functions and to provide additional stabilization. As conditioned, all plantings shall be maintained in good health for the lifetime of the structures. BIMC 16.12.080 Environmentally sensitive areas. The retaining/catchment walls that protect the existing public road were designed by engineers and approved by geotechnical engineers. The City prepared a biological assessment that discussed potential impacts and proposed mitigations. The Washington Department of Fish and Wildlife's Hydraulic Project Approval included fish habitat mitigations and timing restrictions to protect fish and shoreline processes during and after construction. BIMC Ch. 16.12.090- Native Vegetation Zone. A native vegetation buffer is to be be maintained immediately landward of the OHWM. Because the constructed walls lie within the required native vegetation zone, the walls and remaining slopes were planted with native vegetation to preserve ecological functions and to provide further stability to the slopes. As conditioned, all plantings shall be maintained in good health for the lifetime of the structures. BIMC 16.12.150 — Table 4-2. Use -Related Development Standards Matrix. In the Urban shoreline environment bulkheads are listed as a permitted use. The soldier pile retaining wall located at the ordinary high water is considered a bulkhead. Since a bluff retaining wall is not a listed use, it requires a shoreline conditional use permit. BIMC 16.12.3 10 Shoreline armoring (revetments and bulkheads). Bulkheads are allowed within the Urban environment where wave erosion threatens existing development or lands. The slope below Rockaway Beach Road had been eroding with increasing rapidity for many years, and the road prism already had been compromised when the stabilization work occurred. Based on the Mitigation Agreement with the Washington Department of Fish and Wildlife, the City is to nourish the beach by COBI SCUP DECISION - 3 l placing at least 90 yards of beach material in front of the bulkhead/retaining wall each year. The City recently completed its first mitigation nourishment in October. b. The proposed use will not interfere with the normal public use of the public shorelines. Rockaway Beach Road not only provides safe and necessary access to many shoreline properties but also a scenic shoreline vista for those traveling along the road. The new structures assure that the road and vista will continue to be preserved for the public's use and enjoyment. c. The proposed use of the site and design of the project will be compatible with other permitted uses within the area. The retaining/catchment walls protect the road right-of-way and also ensure that the adjacent single-family residences will be protected from erosion, thus preserving the continued viability of the established residential neighborhood. d. The proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is located. As conditioned, the constructed retaining walls will not have an unreasonable adverse effect on the shoreline environment. Proper procedures were followed to avoid construction during fish spawning and critical salmon migration times. Restoration of the beach has been required, and compensatory beach nourishment will occur over the lifetime of the project facilities. The walls have an immediate aesthetic impact, but the planted native vegetation on and around the walls over time will mitigate such impact. e. The public interest suffers no substantial detrimental effect. (WAC 173-14-140(1) or its successor.) The public interest is served by maintaining the safety and viability of an essential public road. f. The proposed rise is consistent with the provisions of the zoning ordinance (BIMC Title 18) and the comprehensive plan (Ordinance No. 94-21). As conditioned, the proposed retaining/catchment walls are consistent with the City's zoning ordinance and Comprehensive Plan. The Critical Areas Ordinance provisions for geologically hazardous areas (BIMC 16.20.080) are applicable. The proposed project is located on, and will preserve, slopes that are considered geologically hazardous under the Bainbridge Island Municipal Code. The applicant provided engineered construction plans and a geotechnical report detailing compliance with applicable erosion controls, clearing limits, cut and fill sections, drainage, and recommended construction timing restrictions. The construction of protective retaining walls designed by a geotechnical engineers implements Comprehensive Plan policies GH 1.3, GH 1.6 and GH 2.1. The project also supports transportation element policy TR 5.1 identifying road maintenance as a public priority; without the emergency construction of the walls Rockaway Beach Road eventually would have been lost to landslide and COBI SCUP DECISION - 4 erosion. 2. Other uses which are not listed in the master program as permitted or conditional uses and are also not prohibited maybe authorized as conditional uses provided the applicant can demonstrate, in addition to the criteria set forth in subsection C.1 of this section, that extraordinary circumstances preclude reasonable economic use of the property in a manner consistent with the policies ofRCW 90.58.020. or its successor, that the proposed use would not produce significant adverse effects on the shoreline environment. Emergency action to preserve an endangered public road is by definition an extraordinary circumstance necessary to preserve the reasonable economic use of property. The adverse effects of the construction activity on the shoreline environment are not significant and can be successfully mitigated. CONCLUSIONS 1. The Hearing Examiner has jurisdiction over this shoreline permit application proceeding. Applicable notice and SEPA requirements have been met. 2. The proposed use is consistent with the policies of RCW 90.58.020 and the City's Shorelines Master Program. As conditioned, the proposal meets the requirements of BIMC 16.12.380 and WAC Chapter 173-27 for issuance of a shoreline conditional use permit. 3. The proposed use will not interfere with normal public use of the shorelines and will be compatible with other permitted uses in the area. It will cause no long-term or significant adverse effects to the shoreline environment nor impose a detrimental effect on the public interest. The proposal is consistent with the City's zoning ordinance and Comprehensive Plan. DECISION The Shoreline Conditional Use Permit application of the City of Bainbridge Island (file no. SCUP18545) is APPROVED, subject to the following conditions: 1. Over the useful life of the wall structures approved herein, the City shall comply with the Mitigation Agreement dated August 7, 2013, entered into with the State of Washington Department of Fish and Wildlife. Compliance includes placement of at least 90 cubic yards of appropriate beach nourishment materials annually at the base of the retaining walls and performance of required monitoring. 2. The shoreline bluff plantings installed pursuant to the planting plan and specifications updated January 22, 2014, shall be maintained throughout the life of the project. Annual inspections and replanting as necessary shall occur during the five years following the issuance of this permit. COBI SCUP DECISION - 5 ORDERED December 1, 2014. City of Bainbridge Island A final shoreline decision of the City issued by the Hearing Examiner may be appealed to the Shorelines Hearings Board in accordance with the provisions of BIMC 16.12.380(C)(7). (Please note: Washington Department of Ecology has ultimate decisional authority for a Shoreline Conditional Use application. Within eight days of the City's decision on the application, the application packet is forwarded to the Department of Ecology. The Department of Ecology shall approve, approve with conditions, or deny the application within 30 days.) The exhibit list prepared by the Clerk of the Hearing Examiner's Office is attached. COBI SCUP DECISION - 6 EXHIBIT LIST COBI Rockaway Beach Road Stabilization SCUP18545 Staff Contact: Public Hearing: November 19, 2014 Joshua Machen, AICP Location: City Hall Planning Manager Hearing Examiner: Stafford L. Smith NO. DOCUMENT DESCRIPTION DATE 1 Preapplication Conference Waiver Request 12/13/2013 Dated 2 Application Attachment 1: Vicinity Map Attachment 2: Site Plans Attachment 3: Site Plans JARPA version Attachment 4: WDFW & CON Mitigation Agreement Attachment 5: NOAA Concurrence of Design Update (Email) Attachment 6: Biological Assessment Attachment 7: Slope Conditions Memo Included as a separate document 11/14/2013 (Received) 3 Aspect Memorandum Re Road Shoulder and Slope Failure (referenced above as Attachment 7 to the Application) 11/02/2010 (Dated) 4 Letter from Planning Director Cook to Washington Department of Fish and Wildlife Documenting that the Project is SEPA Exempt. 05/2412013 (Dated) 5 Letter from Department of Archaeology Re No Historic Properties 03/20/2012 Dated 6 WSDOT Classification Summary 02/20/2012 (Dated) 7 Widener & Associates — Revised APE 07/18/2013 Dated 8 Notice of Application 04/04/2014 Published 9 Notice of Public Hearing and Certification of Distribution 10/31/2014 Published 10 Staff Project Report 11/07/2014 (Dated) 11 Photos of Bluff Retaining Wall 11/19/2014 (Admitted) 11/06/14