Hearing Examiner #: HE-14-PL-025 (Shoreline Variance)
City Contact:Steve Sundin
Hearing Date: 06/25/2014
Description: Shoreline Variance request of Toma Podorean re 320 Sea Pines Road
Decision Date: 06/30/2014
Decision Summary:Approved with conditions
came before the Bellingham Hearing Examiner for hearing on the 25th
day of June 2014 on the application filed by Ali Taysi on behalf of Toma Podorean for a Shoreline Variance from buffer requirements to locate a single family residence on property located at 320 Sea Pines Road in Bellingham Washington.
Testimony was received from Steve Sundin, Bellingham Planning and Community Development Department; Ali Taysi, AVT Planning & Consulting, Applicant's Representative; and Toma Podorean, Applicant.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List
I. FINDINGS OF FACT
1. Ali Taysi, AVT Planning & Consulting, filed an application for a Shoreline Variance, on behalf of Toma Podorean, to construct a single-family residence on property owned by Mr. Podorean located at 320 Sea Pines Road in Bellingham.
2. The property is legally described as Lot B, Sea Pines Lot Line Adjustment (the subject property). It is located in the Briza subdivision, which was approved in 1986, southwest of Chuckanut Drive, south of View Crest Road, and north of Chuckanut Bay, near the end of the Sea Pines Road cul-de-sac.
3. The subject property is located in Area 7 of the Edgemoor Neighborhood and is designated Residential Single, Detached, 20,000 square feet minimum detached lot size, or one lot per 20,000 square feet overall average density. Special conditions include clearing and view buffering from adjacent residential.
4. The property is located in the Natural shoreline designation, Marine Reach 19, Chuckanut Bay, in the City's Shoreline Master Program (SMP) BMC 22.03.030A(3).
5. The SMP was approved in February, 2013 and is codified as BMC Title 22. BMC 22.03.030A(4) provides that residential development on shorelines designated Natural requires conditional use permit approval.
6. Prior to adoption of the current SMP single-family residential development on the Chuckanut Bay shoreline was allowed without a conditional use permit. All other lots within the Plat of Briza within shoreline jurisidiction were developed prior to 2013. The subject property is the last undeveloped lot in the Briza Plat on the shoreline.
7. The subject property contains 14,900 square feet of area. It is approximately 200 feet in depth extending from Sea Pines Road on the north to Chuckanut Bay on the south, and approximately 75 feet in width. The property slopes steeply from Sea Pines Road down to Chuckanut Bay. A rock band is located at approximately 75 feet from Sea Pines Rd., forming a steep bluff, and separating the upper, developable portion of the property from the lower, forested, steep slope extending to the water and covering approximately two-thirds of the site (herein after "rock band").
8. The subject property lies entirely within 200 feet of the ordinary high water mark (OHWM) of Chuckanut Bay.
9. The entire property is located within the 200-foot buffer specified in the SMP for a fish and wildlife habitat conservation area (FWHCA). It is also within a landslide hazard area as the middle portion of the site has a slope greater than 40%. The SMP specified buffer for a landslide hazard area is 50 feet from the top and toe of the slope. The required buffer, pursuant to the SMP is the buffer that is more protective, so the property is subject to a 200-foot buffer according to the SMP.
10. Chuckanut Bay is considered a pocket estuary containing intertidal areas and eel grass beds. It is designated a priority habitat by the Washington Department of Fish and Wildlife. Puget Sound Chinook and Steelhead salmon utilize the priority habitat areas for migration and foraging. They are also listed priority and candidate species, and "threatened" under the Endangered Species Act.
11. The proposal includes construction of a single-family residence with pervious deck, attached garage and driveway with a total footprint of approximately 3,500 square feet. The residence would be two stories with a daylight basement, extending no higher than 35 feet from average grade. A 750 square foot elevated and open deck would be located on the water side of the residence.
12. Standard five-foot setbacks would be provided on each side of the structure. A variance from front yard setback requirements has been requested in order to locate the structure approximately 15 feet from the property line abutting Sea Pines Road instead of the required 20 feet. Approval of this variance would allow the structure to be located further landward of the OHWM.
13. The structure would be located on the northerly 75 feet of the subject property, to the north of the rock band. The house would be approximately even with the neighboring house located to the west and landward of the house on the property abutting on the east. The area south of the rock band would be left in its natural state and enhanced with native plantings to improve habitat function. No work would occur within the water.
14. A Shoreline Variance is required to locate any residential structures on the property as the entire property is located within the 200-foot buffer from Chuckanut Bay OHWM.
15. The proposal also requires a Shoreline Conditional Use Permit, and a variance from setback requirements of the Bellingham Land Use Development Ordinance, which are addressed separately.
16. Sea Pines Road is fully improved within a 60-foot wide right-of-way. The property is served by City water, sewer and stormwater utilities and private power, cable, and telephone utilities.
17. An existing stormwater main in Sea Pines Road would collect the stormwater runoff from roof drains and other conveyances. Stormwater collection and conveyance would be required to comply with the City's Stormwater Management regulations set forth in BMC 15.42.
18. A Critical Areas/Shoreline Assessment was prepared for the proposal by Miller Environmental Services, LLC, dated April 14, 2014 and supplemented June 12, 2014. These reports are set forth in Exhibit E
to the Staff Report, and are incorporated herein by reference. The reports conclude that impact from the proposed construction include the loss of forested habitat within the shoreline and habitat conservation area buffer, including the removal of 16 trees greater than six inches in diameter at breast height. The removed trees include Douglas fir, Western red cedar, red alder, and bitter cherry. The proposal includes replacement of these trees at a two-to-one ratio in undeveloped portions of the parcel. Replacement species would include Western red cedar and/or Western hemlock. The report also concludes that the placement of the residence will not significantly affect the use of the southern half of the property as a component of the shoreline habitat corridor as it will be located along the slope in a similar position to the existing residences on either side, and light and noise effects will be less pronounced on the lower portion of the buffer and habitat corridor due to the steep slopes and elevation gradient. A lower ratio of replacement trees and shrubs is proposed due to the existing forested nature of the property and mitigation area which will remain undisturbed. Replacement plantings will be subject to a five-year maintenance and monitoring period with a financial surety of 150% of the cost to ensure a survival rate of 100% for trees and 85% for other vegetation.
19. A Geological Hazard/Critical Areas Evaluation was prepared for the property by Geo Test Services, Inc. dated April 3, 2014 (geological hazard report). This report is Exhibit F
to the Staff Report and is incorporated herein by reference. This report concludes that construction of the proposed residence is feasible and will not increase the threat of the geological hazard to adjacent properties beyond predevelopment conditions; will not adversely impact other critical areas; is designed so that the hazard to the project is eliminated or mitigated to a level equal to or less than predevelopment conditions; and is certified as safe as designed and under anticipated conditions by a qualified engineer or geologist, licensed in the State of Washington. It also concludes that the proposal will not increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions; will not decrease slope stability on adjacent properties; and will not adversely impact other critical areas.
20. The geological hazard report states that a deep-seated rotational type failure affecting the site of the proposed improvements or the existing residence on the slope above the proposed improvements is unlikely to occur due to the apparent competent sandstone (Chuckanut Formation) and dense soil underlying the project area. The site assessment by Geo Test did not observe obvious visual indications of slope instability or signs of extensive soil creep. The report concludes that landslides are unlikely to occur and affect the proposed improvements.
21. The geological hazard report also concludes that, because the proposed residence will be cut into the hillside a buffer and minimum building setback from the top of the slope is not applicable for the site, per BMC 16.55.430.
22. The geological hazard report includes recommendations to prevent excessive erosion, including incorporation of Best Management Practices (BMPs) for erosion control in accordance with current City of Bellingham codes and standards; appropriate silt fencing be incorporated into the construction plan; on-site BMPs be implemented during construction; areas of native vegetation left in place could be enhanced by adding additional native plant species and/or other vegetation enhancements; planting additional brush and vegetation within the subject site and in areas disturbed by excavation to help maintain slope stability; no dumping of yard waste onto the face of site slopes; directing and discharging all collected stormwater to an appropriate collection system; and revegetation/protection of all areas disturbed by construction practices.
23. The proposal includes cantilevering the deck on the south side of the structure over a portion of the landslide hazard area, but the only proposed alteration to the landslide hazard area is the cutting of approximately six conifer trees ranging between seven and 24 inches in diameter. The base of the trunks and root systems will remain in place.
24. The City's 2003 Wildlife Habitat Assessment performed by Nahkeeta Northwest Wildlife Services, Inc. found that the intact and properly functioning habitat corridors within this area are located along the shoreline edge of Chuckanut Bay and within the large undeveloped tracts to the west of the site. These habitat areas that are rated "good" according to the assessment are shown on the map that is Exhibit D
to the Staff Report, incorporated herein by reference.
25. City Staff recommends approval of the Shoreline Variance subject to conditions, including provisions relating to replacement of trees removed for the development, financial surety for maintenance and monitoring of replacement vegetation, consistency with standards for geologic hazard area buffer alterations, and conveyance of stormwater to the City stormwater main.
26. No public comment was received for this proposal.
27. Shoreline variances are governed by BMC 22.06.040. This section provides as follows:
A. The purpose of a variance permit is strictly limited to granting relief from specific bulk, dimensional or performance standards set forth in this program. Variances may be granted only where there are extraordinary circumstances relating to the physical character or configuration of property such that the strict implementation of this program will impose an unnecessary hardship on the applicant or thwart the policies set forth within RCW 90.58.020.
B. Variance permits for development that will be located landward of the ordinary high water mark (OHWM) and within a shoreline and/or critical area buffer as specified in this program may be authorized provided the applicant can demonstrate all of the following:
1. That the strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes or significantly interferes with a reasonable use of the property not otherwise prohibited by the master program;
C. The department may impose additional conditions onto a variance approval as necessary to assure consistency with this program and that the policies set forth in RCW 90.58.020 are not thwarted.
2. That the hardship described in subsection (A) of this section is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the master program, and not, for example, from deed restrictions or the applicant’s own actions;
3. That the design of the project is compatible with other authorized uses in the area and with uses planned for the area under the comprehensive plan and this program and will not cause adverse effects to the shoreline environment;
4. That the requested variance does not constitute a grant of special privilege not enjoyed by the other properties in the area;
5. That the variance requested is the minimum necessary to afford relief; and
6. The public interest will suffer no substantial detrimental effect.
D. Prior to application for a variance, the applicant shall demonstrate that the mitigation sequencing specified in this program has been used to design the project and avoid and/or minimize impacts to the extent feasible.
E. The applicant shall demonstrate that the proposal achieves a no net loss of ecological function.
F. Variance permits for development that will be located either waterward of the ordinary high water mark (OHWM), within the channel migration zone or frequently flooded area, where applicable, or within a critical area as described in this program, or within wetlands as defined by RCW 90.58.030 may be authorized provided the applicant can demonstrate all of the following:
1. That the strict application of the bulk, dimensional or performance standards set forth in this master program precludes all reasonable use of the property not otherwise prohibited by the master program;
G. In the granting of all variance permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example if variances were granted to other developments and/or uses in the area where similar circumstances exist, the total of the variances shall also remain consistent with the policies of this program and the Shoreline Management Act and shall not produce substantial adverse effects to the shoreline environment.
2. That the proposal is consistent with the criteria established in this section; and
3. That the public rights of navigation and use of the shorelines will not be adversely affected.
H. Requests for varying the use to which a shoreline area is to be put are prohibited and are not requests for variances, but rather requests for conditional uses.
I. Any variance granted by the city must be forwarded to the Department of Ecology for approval, approval with conditions, or denial as specified in WAC 173-27-200. [Ord. 2013-02-005 § 2 (Exh. 1)].
28. Strict application of the required 200-foot buffer from the OHWM of Chuckanut Bay would render the property undevelopable. The property is only 200 feet in depth. The 200-foot buffer extends along the entire depth of the property and into the Sea Pines Road right-of-way. The property is zoned for residential single development and is privately owned. No reasonable use may be made of the property without a variance from the buffer requirement.
29. The hardship created by application of the 200-foot buffer requirement resulted from the subdivision of the property prior to adoption of the current SMP and the 200-foot buffer requirement. Prior to 2013, the lots in the Briza subdivision were created and allowed to develop with a much smaller buffer area. The subject property was created with a lot depth of 200 feet with the expectation that it could be developed in compliance with applicable regulations. The hardship is not the result of the applicant's own actions.
30. The design and location of the proposed single-family residence is compatible with the other authorized uses in the area. All of the other lots within the shoreline jurisdiction in Briza have been developed with single-family residences. These residences are of similar size, footprint and location on the lots as is proposed for the subject property. Other undeveloped parcels in the natural, Marine environment along Chuckanut Bay are also zoned Residential Single.
31. The proposal will not cause adverse effects to the shoreline environment. The residence will be located on top of a rock band/bluff that will separate the development from the natural shoreline below. The approximately 110 feet between the proposed residence and the OHWM will remain in its natural state. The functional habitat of the shoreline will be preserved and enhanced.
32. The proposed variance does not constitute a grant of special privilege not enjoyed by the other properties in the area. All of the other properties within the immediate vicinity that are subject to shoreline jurisdiction have already developed in a similar manner to what is proposed for the subject property.
33. The variance requested allows for development on the subject property that is consistent with the development on other properties in the immediate vicinity that are within the same shoreline designation. These residences have footprints ranging from 3,000 square feet to 7,800 square feet, and are situated on the lots in the same general location as that proposed for the subject property, and roughly the same distance from the OHWM. The proposal is seeking a variance from the front yard setback requirements under the City's Land Use Development Ordinance in order to push the structure further from the OHWM. Locating the structure closer to Sea Pines Road than is proposed would leave insufficient room for parking and maneuvering, and would make the design and use of the driveway difficult, due to the slope of the property. Additionally, moving the structure further to the north would result in loss of some water views from the proposed residence due to the location of the adjacent residence. The requested variance is the minimum necessary for reasonable use of the property that is consistent with the development in the immediate vicinity and under the same regulations.
34. The public interest will not suffer substantial detrimental effect from granting the variance. The development will occur on the upper portion of the property that is separated from the more valuable shoreline habitat area located below the rock band. The natural environment that provides habitat area below the rock band will be preserved and enhanced. The property is privately owned. Public access to Chuckanut Bay is provided at other locations.
35. No cumulative impacts are anticipated from future requests for similar variances. The circumstances of the subject property are unique. Other properties subject to the same buffer requirements in Marine Reach 19 are larger and contain uplands that may be developed at the zoned density in a cluster arrangement without encroachment into the buffer areas.
II. CONCLUSIONS OF LAW
1. Subject to conditions specified below, and any conditions imposed on the proposal by Conditional Use approval, the proposal satisfies the criteria specified in BMC 22.06.040 for a variance from the required 200-foot buffer from the OHWM of Chuckanut Bay.
2. A shoreline variance issued by the City is subject to review and approval of the Washington State Department of Ecology, which may impose additional, or different conditions on the proposal.
3. The proposal is also subject to compliance with other regulatory provisions of the Bellingham Municipal Code, including, but not limited to, Title 20, the Land Use Development Code, BMC 15.42, Stormwater Management regulations, and applicable building and fire codes, as well as other performance standards of the SMP. Compliance with these regulations, except for the proposed variance from front yard setback requirements to locate the structure closer to Sea Pines Road, is assumed in the consideration and granting of this variance.
4. Subject to the conditions set forth below, and any additional or different conditions that may be imposed by Conditional Use approval or by the Department of Ecology, the shoreline variance should be granted to allow development of the property for a single-family residence, as proposed, within the northerly 75 feet of the subject property and to the north of the rock band described in the application materials.
5. Any Finding of Fact that should be denominated a Conclusion of Law shall be deemed to be a Conclusion of Law. Any Conclusion of Law that should be denominated a Finding of Fact shall be deemed to be a Finding of Fact.
Subject to review and approval of the Department of Ecology a Shoreline Variance is granted for the subject property to locate a single-family residence within the 200-foot buffer from the OHWM of Chuckanut Bay, as proposed, subject to the following conditions:
1. The proposed structure shall be located landward of the rock band, approximately within the northerly 75 feet of the property, with the rear deck cantilevered over the slope, as proposed.
2. Development on the subject property is limited to one single-family residence. The development shall be substantially as proposed in the materials and representations submitted in support of the application, except as modifications are necessary to comply with this Order or the requirements of other required approvals, permits, variances and applicable codes, and provided that the development may be reduced in size, height and footprint, and located further landward from the OHWM.
3. Development and use of the property shall comply with the conditions set forth herein and all other applicable regulations and approvals and permits, except as variances are granted.
4. The development shall comply with recommended conditions specified in the submitted critical areas assessments (Exhibits E
), as may be supplemented and/or amended by, or at the direction of, the Planning and Community Development Department to comply with performance standards contained in the SMP.
5. Trees greater than six inches in diameter at breast height that are removed shall be replaced and installed on the subject property at a ratio of two-to-one. The replacement trees shall be installed prior to granting of FINAL inspection for the single-family residence building permit.
6. A financial surety (Assignment of Funds or Surety Bond) shall be secured and provided to the City for 150% of the cost of labor, materials, and five years of maintenance and monitoring for the required replacement trees. The surety shall be secured prior to granting of FINAL inspection for the single-family residence building permit.
7. At the time of building permit submittal, the applicant shall demonstrate consistency with the design standards for geologic hazard buffer alterations specified in BMC 22.08.080C(3).
8. Surface stormwater from the roof(s), driveway, and other drains or stormwater conveyances, shall be connected and discharged to the existing stormwater main in Sea Pines Road. The development shall comply with all applicable provisions of BMC 15.42.
9. Trees to be removed for development of the residence (total of 16) are indicated on the site plan in Exhibit B
, attached hereto and made a part hereof. Trunk bases and root systems of those trees under the deck shall be left in place for slope stability, unless removal is recommended by a qualified biologist, geologist or certified arborist, and approved by the Planning and Community Development Department. No additional trees shall be removed unless deemed hazardous by an ISA certified arborist and approved by the Planning and Community Development Department, upon written request.
10. Species, size and planting location of replacement trees shall be subject to review and approval of the Planning and Community Development Department prior to installation.
11. Additional native vegetation plantings may be required to comply with the standards set forth in BMC 22.08 and/or to prevent net loss of ecological function, after review by the Planning and Community Development Department of specific development plans and any required further studies/assessments for the proposal.
ENTERED this 30th
day of June 2014.
Bellingham Hearing Examiner