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Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 1 of 10 BEFORE THE HEARING EXAMINER FOR THE CITY OF KENNEWICK In the Matter of the Application of ) SDP 15-02/PLN-2015-00943 ) John Fetterolf, on behalf of ) Port of Kennewick ) ) ) For Substantial Development Permit ) FINDINGS, CONCLUSIONS, AND ) DECISION SUMMARY OF DECISION The request for approval of a substantial development permit for construction of a new concrete walkway and boardwalk with an overlook, including artwork display kiosks, and a pathway to Clover Island Drive is APPROVED subject to conditions. SUMMARY OF RECORD John Fetterolf of JF Engineering on behalf of the Port of Kennewick (Applicant) requested approval of a shoreline substantial development permit for construction of a new concrete walkway and boardwalk with an overlook, including artwork display kiosks, and a pathway to Clover Island Drive. Request On June 8, 2015, the City of Kennewick Hearing Examiner conducted an open record public hearing on the request. On the record, the Applicant representative agreed to extend the time for decision issuance by one week. Hearing Date At the open record hearing, the following individuals presented testimony under oath: Testimony Wes Romine, Kennewick Development Services Manager Larry Peterson, Director of Planning for the Port of Kennewick At the open record hearing, the following exhibits were offered in evidence: Exhibits 1. Economic Development and Community Planning Department Report and Recommendation to the Hearing Examiner, dated June 2, 2015 2. Application 3. Applicant Narrative 4. Notices of Application/Mailing Lists 5. Vicinity Map 6. Plans ---PAGE BREAK--- Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 2 of 10 7. Environmental Determination 8. City Department Comments 9. Outside Agency Comments 10. Shoreline Management Map 11. Variance Notification of Mailings 12. Variance Approval Letter with attachments 13. Planning Staff's PowerPoint presentation 14. Email from Catherine Reed, Department of Ecology, dated June 4, 2015 Upon consideration of the testimony and exhibits submitted, the Hearing Examiner enters the following findings and conclusions in support of the decision: FINDINGS 1. The Applicant requested approval of a shoreline substantial development permit (SDP) for construction of a new concrete walkway and boardwalk with an overlook, including artwork display kiosks and a pathway to Clover Island Drive. The project is proposed at the west end of Clover Island, between Port of Kennewick Office building and the Clover Island Yacht Club building.1 It would complete the last section of a public walkway along the south shoreline of Clover Island called out in the Clover Island Master Plan. The subject property is zoned Commercial Marina (CM) and located in Map Segment D of the City’s Shoreline Map. Exhibits 1, 2, 5, and 6. 2. Closer Island was built in 1953 in response to the McNary Dam project by the US Army Corps of Engineers. It is set some distance off-shore in Lake Wallula, in the channel of the Columbia River between the 395 and 397 bridges. The project site is part of the former Metz Marina, abutting the Clover Island Yacht Club/Clover Island Professional Building, parking areas, and a public use space. Exhibits 3 and 12; Site View. 3. The proposal is for the construction of an approximately 326-foot concrete walkway, retaining walls, an elevated boardwalk and viewing deck, artwork, display kiosks, and a pathway to Clover Island Drive. The boardwalk and viewing deck would be cantilevered over a retaining wall placed approximately 18 feet eight inches from the ordinary high water mark (OHWM) of the Columbia River. With a five-foot eight-inch cantilever, this would place the edge of the boardwalk approximately 13 feet from the OHWM. The retaining wall for the viewing deck would be placed approximately 15 feet seven inches from the OHWM. With the viewing deck extending approximately 12 feet beyond the retaining wall, its outermost edge would be within three feet seven inches of the OHWM. No portion of the proposed improvements would be in or over the water. Additional project elements would include bronze sculptures, a self-contained recirculating water feature, display kiosks, and lighting. Stormwater from the various improvements would be collected and infiltrated consistent with the requirements of the Stormwater Management Manual for Eastern Washington. Exhibits 1, 2, 3, and 6. 1 The legal description of the property is a portion of Section 31, Township 9 N, Range 30 E, W.M.. Exhibit 1, page 1. ---PAGE BREAK--- Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 3 of 10 4. The proposal would occur within 200 feet of the ordinary high water mark (OHWM) in an area designated as Clover Island High Intensity Environment pursuant to the Kennewick shoreline master program. The purpose of the Clover Island High Intensity Environment is “to provide economic development and recreation opportunities that add to existing water dependent uses, and public access and view opportunities via a mix of high-intensity water oriented and non-water oriented commercial, multi-family residential, and transportation uses while providing additional public access, improved aesthetic quality, enhanced aquatic and nearshore ecological functions and maintaining view corridors consistent with the Clover Island High Intensity Special Area Plan Standards”. Exhibit 1; KMC 18.68.070(5)(iii)(A). 5. Because of its location and because the total cost of the proposed improvements exceeds $5,718, the proposal meets the definition of substantial development and requires approval of a substantial development permit. Kennewick Municipal Code (KMC) 18.68.070(5)(iii)(A) and 18.68.230; Exhibit 1, page 4. 6. The SDP application was submitted on March 27, 2015 and determined to be complete on the same day. Exhibit 1, page 2; Exhibit 2. 7. Kennewick’s Shoreline Master Plan requires a 25-foot structural setback from the OHWM for uses that are not water dependent. The proposed retaining walls, walkway, and viewing platform would all extend into this required setback. The Applicant requested a variance from the setback requirement. Pursuant to KMC 18.68.250, the requested variance was administratively reviewed. The existing shoreline at the site has a graveled bank with an approximately 2H:1V slope that drops 12 feet to the OHWM. This unique feature coupled with the property's placement along the south shoreline of Clover Island were the basis of the City's approval of the variance on May 22, 2015. Approval was based on three recommended conditions that required: 1) construction in compliance with the approved plan; 2) promotion/retention of existing vegetation as possible on-site; and 3) obtaining SDP approval. Exhibits 1 and 12; Romine Testimony. 8. In comments dated April 20, 2015, the Department of Ecology recommended landscaping designed to reduce water usage and waste, use of compost, and making recycling as convenient for visitors to the site as garbage facilities. Exhibit 9, page 1. In separate comments dated April 27, 2015 and May 21, 2015, an Ecology representative indicated that a shoreline variance pursuant to WAC 173-27-170 must be approved due to the proposed intrusion into the 25-foot setback. Exhibit 9. In subsequent communication, City Staff referred the Ecology representative to the City's administrative shoreline variance process at KMC 18.68.250, and the representative's final communication with the City addressed only the requirements at RCW 90.58.140 and WAC 173-27-130 and 180 for submitting the SDP to the state agency for review upon completion. Exhibit 14. 9. A Department of Fish and Wildlife representative submitted comments dated April 24, 2015 recommended plantings between the proposal and the OHWM. However, after a site visit, that agency representative submitted additional comments that acknowledged ---PAGE BREAK--- Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 4 of 10 that shoreline on-site is very steep, offering little opportunity to install landscaping. The April 30th WDFW comments clarified that no new landscaping is recommended by WDFW but rather that the state agency recommends the proposed improvements be installed in a manner that allows any existing vegetation to be retained. Exhibit 9. 10. The City of Kennewick acted as lead agency in reviewing the proposal for compliance with the requirements of the State Environmental Policy Act (SEPA). After evaluating the Applicant's environmental checklist and complete application materials, the City's Responsible Official issued a determination of non-significance (DNS) on May 8, 2015. The SEPA appeal period closed on May 22, 2015 without appeal. Exhibit 1, page 3; Exhibit 7, DNS; Romine Testimony. 11. Notice of substantial development permit application was mailed to surrounding property owners on April 10, 2015 and published on April 13th and 20th. Notice of public hearing was mailed to surrounding property owners and public agencies on May 20, 2015 and published on May 24, 2015. Agencies notified included the Department of Ecology, Department of Fish and Wildlife, and the U.S. Army Corps of Engineers, in addition to various internal City departments. Notice was provided consistent with City requirements. Exhibits 1 and 4. There was no public comment. Romine Testimony. 12. Planning Staff identified the following Comprehensive Plan policies as applicable to the proposal: Critical Areas and Shoreline Goal 3 : Regulate or mitigate activities in or adjacent to critical areas or the shoreline to avoid adverse environmental impacts. Critical Areas and Shoreline Goal 4 : Encourage and support public access to the shoreline for recreational purposes. Critical Areas and Shoreline Policy 3 : Preserve and protect anadromous fish and threatened, endangered and candidate species as identified by federal and state agencies. Staff submitted that, as conditioned, the project would not result in adverse ecological impacts, that it would promote public access to and enjoyment of the shoreline, and that it would contribute to revitalization of Clover Island, thereby effectuating the goals and policies of the City's Comprehensive Plan. Exhibit 1, page 5; Romine Testimony. 13. Based on the complete application and input from various state agencies, City Planning Staff recommended approval of the SDP with the conditions proposed in the staff report. Exhibit 1; Romine Testimony. The Applicant waived objection to the conditions as recommended. Peterson Testimony. ---PAGE BREAK--- Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 5 of 10 CONCLUSIONS Jurisdiction The Hearing Examiner has jurisdiction to conduct an open record hearing and make a decision on an application for shoreline substantial development permit. This authority is set forth in KMC 18.68.230(3). : Criteria for Review A substantial development permit shall be granted only when the development proposed is consistent with: : The policies and procedures of the Shoreline Management Act; (ii) The provisions of this regulation; and (iii) The adopted Shoreline Master Program for Kennewick’s shoreline. WAC 173-27-150; KMC 18.68.230(1)(a). Kennewick Shoreline Master Program Applicable goals, policies, and regulations of the Shoreline Master Program are set forth below. : KMC 18.68.040: Definitions: … (41) “Water-Dependent Use” means a use or a portion of a use which cannot exist in any other location and is dependent on the water by reason of the intrinsic nature of its operations. Examples of water-dependent uses may include but are not limited to boat docks, boat fueling stations, in-stream structures, fishing, boat launching, swimming, and water intake and outfall discharges/pipes. KMC 18.68.050: Special Policy Goals – Shorelines of Statewide Significance: In recognition of the Columbia River, a Shoreline of Statewide Significance, the following Special Policy Goals listed in order of preference have been established for use in implementing the City’s Shoreline Regulations. Preference shall be given to uses which: 1. Recognize and protect state-wide interest over local interest; 2. Preserve the natural character of the shoreline; 3. Result in long-term over short-term benefit; 4. Protect the resources and ecology of the shorelines; 5. Maintain and enhance public access to the shorelines; 6. Increase recreational opportunities for the public on the shorelines; 7. Promote and enhance public interest; 8. Protect public rights of navigation; 9. Preserve and protect culturally significant features; and 10. Provide, whenever feasible, all necessary accommodations to enhance the participation and enjoyment of persons with special needs. ---PAGE BREAK--- Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 6 of 10 KMC 18.68.060: Goals – Shoreline Development Elements: The following goals have been developed in response to various elements of shoreline development and are provided to guide implementation of this Chapter: 1. Economic Development Element. Encourage economic development, with emphasis on water-oriented commercial and recreational uses in a manner that will provide for the orderly development of Clover Island and areas adjacent to the Corps of Engineer’s levee in a harmonious manner which accentuates and enhances Lake Wallula. 2. Public Access Element. On Clover Island, improve public access to designated areas of Lake Wallula for recreational uses as indicated in the Clover Island High Intensity Special Area Plan Standards (Appendix A-6). Maintain areas along Columbia Park, the levee and Duffy’s Pond by which the public can reach Lake Wallula and Duffy’s Pond for fishing, viewing and other public access purposes. Maintain access to the park and levee using pedestrian and bicycle bridges. 3. Recreational Element. Enhance the recreational facilities potential of the shorelines. Clover Island recreational uses should complement existing and proposed developments. Maintain and enhance recreational facilities along Columbia Park and the levee to provide diversification in recreational uses. 4. Circulation Element. Circulation to the levee and the Clover Island causeway should be improved for ease of access and should include adequate off-street parking facilities to serve the people who will be using area for recreational and commercial purposes. Maintain and enhance, where appropriate, circulation and access within Columbia Park. 5. Shoreline Use Element. Assure that the various land uses are compatible and aimed toward maximum utilization without diminishing the quality of the environment. Shorelines abutting the levee area should take advantage of the presence of Lake Wallula and should be oriented in a manner to coordinate lakefront uses and non- lakefront uses. 6. Conservation Element. Enhance the aesthetic characteristics and environmental functions and values of the levee, Duffy’s Pond, Clover Island and Columbia Park areas and take necessary steps to conserve the natural setting of those shoreline areas which are presently in an undeveloped state. … KMC 18.68.110: General Shoreline Master Program Provisions: Public Access. Applicability. The provisions of this subsection apply to development in shoreline jurisdiction. (ii) Principles. The following are the objectives of the provisions of this subsection: ---PAGE BREAK--- Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 7 of 10 A. The public interest shall be promoted with regard to rights to access waters held in public trust by the State while protecting private property rights and public safety; B. The rights of navigation and space necessary for water-dependent uses shall be protected; C. To the greatest extent feasible consistent with the overall best interest of the State and the people generally, the public’s opportunity to enjoy the physical and aesthetic qualities of shorelines of the State, including views of the water, shall be protected; and D. Uses and the location, design, and construction of development in the shoreline jurisdiction shall, whenever feasible, minimize interference with the public’s use of the water. KMC 18.68.250: Variance The purpose of a Variance Permit is strictly limited to granting relief from specific bulk, dimensional or performance standards set forth in this Shoreline Master Program where there are extraordinary or unique circumstances relating to the physical character or configuration of property such that the strict implementation of the Shoreline Master Program shall impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020. Variances may be authorized, provided, the applicant can demonstrate compliance with the following: 1. Variance Permits shall be granted in circumstances where denial of the permit would result in a thwarting of the policy enumerated in RCW 90.58.020. In all instances the applicant must demonstrate that extraordinary or unique circumstances exist and the public interest shall suffer no substantial detrimental effect. 2. Variance Permits for development and/or uses that will be located landward of the ordinary high water mark, as defined in RCW 90.58.030(2)(b), and/or landward of any wetland as defined in RCW 90.58.030(2)(h), may be authorized, provided, the applicant can demonstrate all of the following: a) That the strict application of the bulk, dimensional or performance standards set forth in the applicable Shoreline Master Program precludes, or significantly interferes with, reasonable use of the property; b) That the hardship described in of this subsection 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 Shoreline Master Program, and not, for example, from deed restrictions or the applicant's own actions; c) That the design of the project is compatible with other authorized uses within the area and with uses planned for the area under the Comprehensive Plan and Shoreline Master Program and will not cause adverse impacts to the shoreline environment; d) That the variance shall not constitute a grant of special privilege not enjoyed by the other properties in the area; and e) That the variance requested is the minimum necessary to afford relief. ---PAGE BREAK--- Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 8 of 10 6. Variance Permits will be processed as administrative permit applications with public notice and comment pursuant to KMC Chapters 18.42 and 18.54, and shall meet the approval criteria listed in Section 18.68.250(2) above. The Planning Official will issue the permit and administrative appeals will be heard by the Hearing Examiner. 1. The application satisfies the criteria for approval of a shoreline substantial development permit. Conclusions Based on Findings a. The development would be consistent with the Shoreline Management Act (SMA). The policy of the SMA, as set forth in RCW 90.58.020, is to “provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses.” This policy “contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally public rights of navigation and corollary rights incidental thereto.” RCW 90.58.020. The proposal would complete an existing pedestrian shoreline viewing/access way, intended to enhance the public's use and enjoyment of the shoreline area at Clover Island. It is a reasonable and appropriate use for the purposes of the State Shoreline Management Act. Findings 1, 2, 3, 4, and 5 . b. The development would be consistent with WAC 173-27. DOE regulations contained in WAC 173-27 address the procedures and permitting requirements applicable to the various types of shoreline permits. This development was reviewed under the criteria for approval for shoreline substantial development permits set forth in WAC 173-27-150. Additional regulations applicable to shoreline substantial development are as follows: WAC 173-27-140 Review criteria for all development No authorization to undertake use or development on shorelines of the state shall be granted by the local government unless upon review the use or development is determined to be consistent with the policy and provisions of the Shoreline Management Act and the master program. . No permit shall be issued for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served. WAC 173-27-190 Permits for substantial development, conditional use, or variance. Each permit for a substantial development, conditional use or variance, issued by local government shall contain a provision that construction pursuant to the permit shall not begin and is not authorized until twenty-one days from the date of filing as defined in RCW ---PAGE BREAK--- Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 9 of 10 90.58.140(6) and WAC 173-27-130, or until all review proceedings initiated within twenty-one days from the date of such filing have been terminated; except as provided in RCW 90.58.140 and The requirement of WAC 173-27-140(1) is addressed through the SDP review criteria. WAC 173-27-140(2) is satisfied because there are no residential properties abutting the site. The requirement of WAC 173-27-190 is addressed through a condition of SDP approval. Findings 2 and 3. c. As conditioned, the proposal would be consistent with the goals, policies and regulations of the City of Kennewick shoreline master program. In completing an existing pedestrian walkway adjacent to the river, it is a water-dependent use that promotes public access to the shoreline. The project is consistent with the Clover Island Master Plan. The proposal was reviewed for compliance with the requirements of SEPA and a DNS was issued and not challenged. Considering the administratively approved shoreline variance allowing intrusion into the required 25-foot setback and conditioned to promote retention of existing vegetation where possible and subject to review for compliance with all City development standards through the building permit process, the proposal can comply with all applicable use regulations, policies, and Comprehensive Plan elements. Findings 2, 3, 4, 5, 7, 8, 9, 10, 12, and 13. DECISION Based on the preceding findings and conclusions, the request for approval of a substantial development permit requested approval of a shoreline substantial development permit for construction of a new concrete walkway and boardwalk with an overlook, including artwork display kiosks, and a pathway to Clover Island Drive is APPROVED subject to the following conditions: 1. Comply with City of Kennewick regulatory controls, policies and codes, including Shoreline Management KMC 18.68. 2. New work is to be in conformance to the site plan, landscape plan and lighting specifications in Exhibit 6. 3. A building permit is required from the City of Kennewick Building Department prior to construction of new retaining walls over 4-feet tall and new display structure. 4. Prior to issuance of a building permit, a 30-day review from the Department of Ecology and expiration of the 30-day appeal period is required. 5. Prior to issuance of a building permit provide the City of Kennewick written approval from the U.S. Army Corps of Engineers. ---PAGE BREAK--- Findings, Conclusions, and Decision Kennewick Hearing Examiner Port of Kennewick SDP 15-02/PLN-2015-00943 page 10 of 10 6. Building permits must be applied for within two years as per the Shoreline Management Act. The entire project must be completed within five years of the date of approval. DECIDED June 29, 2015. By: Sharon A. Rice City of Kennewick Hearing Examiner