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Shoreline Conditional Use Permit request of Toma Podorean re 320 Sea Pines Road

Hearing Examiner #: HE-14-PL-025 (Shoreline CUP)
Planning #:SHR2014-00016
Incident #:
Filing Date:05/15/2014
City Contact:Steve Sundin
Hearing Date: 06/25/2014
Description: Shoreline Conditional Use Permit request of Toma Podorean re 320 Sea Pines Road
Decision Date: 06/30/2014
Decision Summary:Approved with conditions

This matter 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 Conditional Use permit to construct a single-family residence on property located at 320 Sea Pines Road in Bellingham.
Testimony was received from Steve Sundin, Bellingham Planning and Community Development Department; Ali Taysi, 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.

1. Ali Taysi, AVT Planning & Consulting, filed an application for a Shoreline Conditional Use Permit, 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 approximately 75 feet from Sea Pines Road, 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. The variance is addressed separately.
15. 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.
16. 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.
17. 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 sixteen 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 redcedar 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. City staff recommends approval of the Conditional Use Permit.
25. No public comment was received for this proposal.
26. The provisions of the SMP regulating Shoreline Conditional Uses are set forth in BMC 22.06.050. This section reads 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;
        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.
      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.
      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;
        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.
      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.
      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)].
27. BMC 22.03.030A(1) states that the purpose of the natural shoreline designation is to protect those shoreline areas that are relatively free of human influence or that include intact or minimally degraded shoreline functions intolerant of human use. Natural designated shorelines are best suited for very low-intensity uses to ensure that ecological function and ecosystem-wide processes are maintained.
28. Designation of Marine Reaches 18-20 as Natural, with a 200-foot buffer was intended to protect the natural shoreline of Chuckanut Bay, especially within the large, undeveloped tracts of land to the west of the subject property. However, it was not intended to prevent all reasonable use of the subject property, the last undeveloped lot within shoreline jurisdiction within the Briza subdivision. The only outright permitted uses within Marine Reach 19 are listed in Table 22.03.030A(4), and include aquaculture, recreation, and conservation/restoration. Uses listed as conditional include residential development, roads and utilities. Without approval of a conditional use to construct a single-family residence within 200 feet of the OHWM the subject property cannot be reasonably used.
29. The proposed single-family residence is consistent with provisions of the SMP and the Shoreline Management Act, RCW 90.58.020 (SMA), which lists single-family residences as priority uses. The SMA also specifies that one of its purposes is to protect private property rights consistent with the public interest.
30. The proposal will not cause significant adverse impacts to the shoreline environment, ecological functions, or other uses. It will be located within the first 75 feet of the property, with a setback of approximately 110 feet from the OHWM, with a cantilevered pervious deck on the seaward side of the house. The developed portion of the property is separated from the area to be left in its natural state by a steep, rock bluff. The functional habitat conservation area and mature forested area below the rock bluff will remain essentially undisturbed.
31. The proposed use will not interfere with the normal public use of public shorelines. A public access easement from Sea Pines Road to Chuckanut Bay was granted as part of the Briza subdivision. This easement is located to the east of the subject property. No additional public access easements are required from single-family residential development.
32. The proposed use is compatible with other authorized uses within the area and uses planned for the area. All of the properties on Sea Pines Road are developed with single-family residences, or are zoned for single-family development. The undeveloped properties to the west that are also within Marine Reach 18-20 are also zoned for single-family development. These properties contain upland areas where development may be clustered to avoid development within the natural shoreline environment.
33. The proposal is consistent with the intent of the natural shoreline designation. It will be located in line with, or landward of, existing single-family residences on either side of the property. The proposed use is allowed as a conditional use, subject to satisfaction of the criteria in the SMP. In this case, the proposed use will not significantly impair the shoreline area that is relatively free of human influences or that includes intact shoreline functions that are intolerant of human use. The lower two-thirds of the property will remain undisturbed and will continue to function as a natural shoreline.
34. The proposal will provide a public benefit in the form of enhanced habitat area, including native plantings to be selected by a biologist, that are consistent with the existing habitat function of the shoreline.
35. The public interest will suffer no substantial detrimental effect from the proposal. The property is privately owned and will be developed for a single-family residence. Most of the shoreline area, including the most functional portion of the habitat conservation area, and all of the land within approximately 110 feet of Chuckanut Bay will remain in its natural state.
36. No cumulative impacts from similar requests are likely. This is the last lot to be developed within the shoreline jurisdiction of the Briza Plat. The other undeveloped properties within the marine reaches of Chuckanut Bay are not similarly situated, in that they have sufficient land outside shoreline jurisdiction to accommodate development.
1. Subject to conditions specified below, and any conditions imposed on the
proposal by variance approval, the proposal satisfies the criteria specified in BMC 22.06.050 for shoreline conditional use approval.
2. A shoreline conditional use permit 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. 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 permit.
4. Subject to the conditions set forth below, and any additional or different conditions that may be imposed by variance approval or by the Department of Ecology, the shoreline conditional use permit should be granted to allow development and use of the property for a single-family residence, as proposed.
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 and the following conditions a Shoreline Conditional Use Permit is granted for the subject property to allow the development of one single family residence, as proposed:
1. 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.
2. 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.

ENTERED this 30th day of June 2014.
Bellingham Hearing Examiner
Dawn Sturwold