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HomeMy WebLinkAboutApplicant_s Hearing Memorandum 5.19.22APPLICANT’S HEARING MEMORANDUM - 1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 BEFORE THE JEFFERSON COUNTY HEARING EXAMINER Re: Type III Shoreline Variance Type III Conditional Use Permit with Major Variance from use standards File No.: MLA21-00080 (SDP21-000012 & ZON2021-00049) Applicant: Extend Yourself LLC – Andrew Nordstrom APPLICANT’S HEARING MEMORANDUM I.SUMMARY OF APPLICANT’S REQUESTS Applicant Extend Yourself LLC (“Extend Yourself” or “Applicant”) is seeking the Hearing Examiner’s approval of the following Type III permits and variance requests: A Conditional Use Permit (“CUP”) with a major variance from the small-scale tourist and recreational use standards, necessary to allow the Marrowstone Inn to continue its operations as a legal, non-conforming use; A shoreline variance with a substantial development permit to remodel and renovate several existing cabins within the shoreline zone; and Approval of an administrative buffer reduction of 25 percent for one wetland (“Wetland A”) from 300 feet to 225 feet. Staff has reviewed Applicant’s extensive submissions in support of the requested variances and permits and has recommended approval of the requests subject to 44 conditions. Applicant respectfully requests the Hearing Examiner to approve the permits and variances subject to the conditions set forth in the staff report. APPLICANT’S HEARING MEMORANDUM - 2 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 II.BACKGROUND REGARDING THE PROPERTY Applicant owns two adjacent parcels of property at 10 Beach Drive on Marrowstone Island. Access to the property is off Beach Drive, a county road. The two parcels ( Nos. 921084010 and 921084011) total 8.3 acres and front two water bodies: Oak Bay and the estuary between Oak Bay and Scow Bay. Pictures of the site and a copy of the site plan are found in Exhibit 6 (Appendix A) and Exhibit 27 (site plan). Since at least the early 1940s the property has been the home of a beach resort that has operated under a variety of names, including most recently, the Marrowstone Inn. The long history of the property’s operations is chronicled in the timeline found in Exhibit 6 at p. 2. The property originally was developed as a fishing resort and vacation destination known as Morley’s Marrowstone Island Resort. Exhibit at p.2. Later, in the 1970s, the property was used as a location for environmental study known as the Marrowstone Marine Station and The Ecologic Place before later returning to a more tourist-focus use. Exhibit 6 at pages 6 and 12. 1 Several pamphlets advertising the resort have been included in the record and they demonstrate that the site always has had a focus on showcasing the marine beauty of the bays and the shoreline area to guests from outside the county. Exhibit 6. For decades, the property has featured ten cabins ranging in size from 265-1123 square feet, a two-story lodge, a garage, and two small utility outbuildings. A three- bedroom mobile home was placed on the site following the loss of the original owner’s home from a fire in 1997. Exhibit 6 at page 2 and 22-24. The site map found in Exhibit 27 identifies the location of all the existing cabins and other building on the property. Also included in the record are arial photographs showing that the referenced cabins have been located on the property for over 50-years. Exhibit 6 at pp. 6 and 12. The cabins and the property’s use as a resort predate most of the nearby residences. Currently, the property’s 10 cabins, 3-bedroom mobile home (including covered entries, covered outdoor spaces and deck/patio spaces total a building area footprint of 1 For ease of reference, the Applicant will refer to its property as “The Marrowstone Inn”. APPLICANT’S HEARING MEMORANDUM - 3 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 11,063 square feet, of which 8,348 square feet is overnight lodging space 2. The lodge, garage, equipment shed, barn and utility shed total 3,308 SF plus 915 SF of porch, deck and stairs. The current comprehensive plan and zoning on the property is Rural Residential—1 dwelling unit per five acres. The property’s longstanding use as a resort, and its existing buildings which precede the adoption of the Shoreline Management Act and the County’s current Comprehensive Plan render the structures grandfathered, existing non-conforming uses as provided in JCC 18.20.260. The property’s use as a resort and existing buildout also precedes by decades the 10-acre minimum and 6,000 square foot maximum buildout for small-scale tourist and recreational use contained in JCC 18.20.350(9)(a) and 18.20.350(l)(q) adopted in approximately 2006. The Applicant acquired the property in 2019. Andrew Nordstrom, the managing member of the Applicant, has longstanding ties to the area, having spent many summers at a family property on Hood Canal. Nordstrom has worked in the hospitality industry for a number of years and will reside at the site and lead its operations. He has undertaken considerable outreach with adjoining property owners and nearby residents. III. SUMMARY OF THE PROPOSAL The purpose of the present applications is to enable the buildings and infrastructure on the property to be updated, brought into compliance with current codes and environmental standards so that the property can continue operations as a small-scale resort and tourism venue. Proposed improvements include the following depicted in Exhibit 28: A. Modernizing Existing Structures. 1. Existing Cabins. All of the cabins will be updated within their existing footprints, with the exception of small landward expansions of Cabin 3 (to relocate a doorway to comply with building code height requirements) and Cabin 5 (to move a bathroom installed by a previous owner 2The existing building area footprint calculation does not include the 55 square foot unpermitted bathroom addition to Cabin 5 that will be removed and replaced with a 44 square foot landward expansion per Exhibit 28. APPLICANT’S HEARING MEMORANDUM - 4 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 without a permit away from the shoreline to the east side of the cabin, a permitted landward expansion).3 2. The Lodge. The lodge will be modernized, a new commercial kitchen will be installed, all within the existing footprint. The stairway from the deck will be moved to the west side in order to provide accessible restrooms on the east side of the building. The restaurant will have a rated capacity for 51 guests. The restaurant only will be available to guest of the Marrowstone Inn. 3. Replacement of three-bedroom mobile home with three one-bedroom cabins. The three-bedroom mobile home will be removed and replaced by three stick building cabins within the same footprint. The three one-bedroom cabins are referred to as “studios” on the site plan, Exhibit 28. Each cabin will have a bathroom. 4. Yurts. The only other new structures will be two “glamping” yurts and a sauna outside of the shoreline jurisdiction. Occupants of the yurts will use the bathroom facilities contained in the lodge. The existing three-bedroom mobile home has a footprint of 2,066 square feet with a 612 square foot deck. The total footprint of the three new cabins and the two yurts will be less than the footprint of the existing mobile home, with each cabin expected to be between 450 and 600 square feet and the two yurts being approximately 250-300 square feet each. The sauna will be approximately 150-200 square feet. Thus, the total footprint of the structures following development will be11,371 square feet including decks for the 10 cabins, three “studio” cabins, and two yurts, and 4,520 square feet including decks for the lodge, garage, barn, equipment shed, utility shed, and the new sauna with the increase in square footage coming from the modest 3 The Staff Report at page 2 contains the following statement regarding Cabin 5: “The previous owner’s unpermitted expansion of a restroom in cabin 5 is proposed to remain and be permitted through this shoreline permit as a landward expansion to the shoreline of Kilisut Harbor and is envisioned as restroom facilities for the guests utilizing this cabin.” To be clear, the Applicant intends to move the bathroom from its current location, landward to the east side of the cabin, so that it is further from the shoreline. This relocation is depicted in Exhibit 28. APPLICANT’S HEARING MEMORANDUM - 5 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 expansion of select cabin decks outside of the shoreline buffer. The project will result in only a negligible increase in the existing footprint of all site structures —638 square feet. B. Environmental Protection and Infrastructure Improvements. There will be major improvements to the property’s infrastructure that will significantly improve environmental quality, public safety both on and off the site and the visual appearance of the development. 1. Septic System Improvements. The septic system serving the existing plumbed cabins including those in the shoreline jurisdiction will be removed and replaced by a new system with expanded capacity (2580 GPD) located upland with all components other than transmission lines outside of the shoreline zone, wetlands and wetland buffers. The studio cabins, and penthouse caretaker’s space will be served by the existing 480 GPD system currently serving the three- bedroom mobile home. The lodge and restaurant will be served by a new, 500 GPD septic system. Locations and layouts of the new septic systems are depicted in Exhibit 30. The removal of the old septic systems near the shoreline will improve water quality in the shoreline zone and within the wetlands and wetland buffers. 2. Removal of Four Existing Wells and Replacement with Domestic Water Supply from Jefferson County PUD. Four existing domestic wells will be decommissioned and the Applicant will bring domestic water from the Jefferson County PUD to service the site. Decommissioning the four wells will protect aquifer recharge areas from depletion and further protect critical areas.4 The wells serving the cabins were in a listed Saltwater Intrusion Zone. 3. Fire Hydrant Installation. The Applicant will install a fire hydrant on the property, improving fire and life safety for guests and nearby residents. East Jefferson Fire & Rescue commented that the construction of the fire hydrant is a significant improvement for fire service 4 In numerous places, the Staff Report states that the property has three wells that will be removed. The property currently has four wells, all of which will be removed. The locations of the wells are depicted in Exhibit 30. APPLICANT’S HEARING MEMORANDUM - 6 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 in the area, that it will improve the area’s fire insurance rating and lower fire insurance premiums for nearby residents. Exhibit 52 at p. 14. 4. Removal of impervious surfaces. The Applicant will remove 8,853 square feet of impervious surface on the property including over 4,000 square feet of impervious surface in the shoreline zone. Exhibit 11. 5. Restoration in the shoreline jurisdiction and buffer. The Applicant will restore the area where the septic tanks are removed and septic lines are installed. Exhibit 30. 6. Construction of a new gravel parking area further upland. There will be a new gravel parking lot containing 30 on-site spaces located in the northeast portion of the property that will keep vehicles out of the shoreline zone. The parking area will be landscaped and screened from nearby residents. Three accessible parking spaces will be provided. The parking lot layout is depicted in Exhibit 27. The lot will feature landscaping and dark sky lighting to minimize impacts to neighbors. C. Comments on the Applicant’s Proposal have been Positive. The majority of the comments received by the County from the public were positive. Ten people commented that the project would benefit the community by updating the existing development, that the project was thoughtfully designed and the development will be an asset to the community and to visitors to the area. Staff Report, Exhibit 52 at 9. Several commentors expressed concern about traffic. The traffic study commissioned by the Applicant demonstrated that the project would have no appreciable impact on traffic. Exhibit 37. Several others expressed concerns about environmental impact. Those concerns have been addressed through the conditions proposed by staff. Only one commentor objected to the size and scope of the project being inconsistent with rural character. However, rural character under the comprehensive plan recognizes and encourages thoughtful, carefully planned recreational development. Exhibit 22; Exhibit 52 at 11. D. Final SEPA Determination of Non-Significance. APPLICANT’S HEARING MEMORANDUM - 7 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 On March 29, 2022, the SEPA Responsible Official issued a final DNS pursuant to WAC 197-11-340(2)(f). The deadline for appeals was April 12, 2022. No appeal was filed. Exhibit 31. IV. THE APPLICATION IS CONSISTENT WITH THE GOALS AND POLICIES OF THE COMPREHENSIVE PLAN Updating the facilities, improving the property’s environmental functions and continuing the longstanding operation of the Marrowstone Inn at its current density are consistent with numerous framework goals, economic, environmental and land use goals and policies in the comprehensive plan. A. Continuing the Use of the Property as a Small-Scale Resort is Consistent with Preserving Rural Character Rural Economic Activity. The Comprehensive Plan’s Framework Policies support the inclusion of tourist and recreation activities as valued aspects of both rural character and the rural economy. See Framework Goals I and III. B. The Comprehensive Plan’s Land Use Policies Also Support the Applicant’s Proposal to Update the Facilities and Infrastructure. As the Staff Report points out, Goal LU-G-16 seeks to ensure that development is accomplished in a manner which protects the long-term habitability, significant historical and cultural areas, and natural beauty of Jefferson County. Clearly, the Marrowstone Inn’s long history as a small resort has provided opportunities to enjoy the shoreline environment. Allowing the facilities to be updated will preserve and restore what many commented is a part of the community’s history and character. Similarly, Goals LU-G-17, 21, and 26 also support the preservation of rural character through economic development that protects the rural identity, is compatible with the environment and surrounding uses and is small scale recreational or tourist related. The property’s use as a resort and recreation area for decades has been compatible with the residential area that subsequently developed nearby. The updates to the buildings and the infrastructure investments further advance economic development goals in the comprehensive plan including ED-G-4 (strengthening tourism through facilitating innovative economic opportunities) and ED-G-5 (supporting tourist-related activities as a source of employment.) The project is anticipated to result APPLICANT’S HEARING MEMORANDUM - 8 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 in seven additional full-time jobs and a consistent stream of sales and lodging taxes. Exhibit 52 at p. 16. C. The Applicant’s Proposal Advances the Comprehensive Plan’s Environmental Goals and Policies. The Applicant’s plan to decommission the four on-site wells and supply water from the Jefferson County PUD advances Goal E-G-1 by ensuring a sustainable and safe water supply for residential, economic and environmental needs. Removal of the wells and removal of the septic systems near the shoreline also will improve water quality, improve the critical areas, stormwater management and wetland buffers and advance Critical Area Goals and Policies including LNG 14.0, Eng 5.0 and ENP 5.7. In addition, installation of a fire hydrant on the property will improve fire and life safety both on the site and for nearby homes. V. THE APPLICANT HAS MET THE CRITERIA FOR APPROVAL OF THE CONDITIONAL USE PERMIT AND MAJOR VARIANCE A. Applicant’s Conditional Use Permit and Major Variance Request are Triggered by Provisions of JCC 18.20.350(9). JCC 18.20.350(9) sets out the standards for rural recreation lodging or cabins for overnight rental and conference retreat facilities. Applicant’s conditional use permit and major variance application seeks relief from two provisions in the standards. First JCC 18.20.350(9)(a) requires a 10-acre minimum lot size. Applicant’s property is 8.3 acres. Second, JCC 18.20.350(9)(b) limits the facilities to 6,000 square feet of gross floor area for fifteen built cabins or bedrooms for overnight lodging up to a maximum of 30 rooms or cabins comprising no more than 12,000 square feet of total building area over the entire site, excluding a caretaker’s or manager’s residence. The staff report recites that the total building area of the existing tourist units, assembly lodge space, garage and utility buildings is 12,951 square feet. Exhibit 52 at p.27.5 If the applications are granted, the additions will total only 638 square feet— 5The calculation in the staff report may have understated the current building area by not including decks spaces and barn. The figure 12,951 square feet refers to the building areas of all the structures including preliminary proposed changes less the deck spaces and barn. The Applicant’s figures of existing and proposed building areas including decks is included in this memorandum. APPLICANT’S HEARING MEMORANDUM - 9 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 approximately 4.2 percent more than the existing building area. The 638 square feet of proposed additions are comprised of 71 square feet of landward expansion within the shoreline, 198 square feet of expansion outside of the 150’ shoreline buffer but within the 225’ reduced wetland buffer, and 369 square feet of deck expansions outside of the shoreline management zone. The Applicant complies with the other requirements of JCC 18.20.350(9). The proposal also complies with JCC 18.20.350(10) allowing rural restaurants subordinate to primary recreational uses. The restaurant only will serve guests of the Inn and will be limited to 51-seat, including outdoor seating to comply with EPH septic system limitations. B. Applicant Satisfies the Conditional Use Permit Criteria. JCC 18.40.530 sets out the 12 criteria that must be satisfied for approval of a conditional use permit. As discussed in the Staff Report at pages 24-29 and which is incorporated by reference, the applicant has demonstrated that all 12 criteria are satisfied.6 1. The conditional use is harmonious and appropriate in design, character and appearance with the existing or intended character and quality of development in the vicinity of the subject property and with the physical characteristics of the subject property. The property has been part of the defining character of the community for almost eight decades. By allowing the conditional use, the appearance of the buildings on the property will be upgraded, environmental impact will be reduced, infrastructure will be improved, including public safety improvements that will benefit surrounding properties. The improvements will allow for reduced impervious surface in the shoreline zone and will result in native plantings and better screening of the site. 2. The conditional use will be served by adequate infrastructure including roads, fire protection, water, wastewater disposal, and stormwater control. As has been previously discussed, the property is served by two private driveways off Beach Drive and a gravel road known as Resort Road. Parking will be removed from spots off Resort Road and adjacent to some cabins in the shoreline zone. All parking will be consolidated outside the shoreline jurisdiction and wetland buffers at a new upland gravel lot. Resort Road will 6 On page 26 of the Staff Report, the number of currently existing cabins is stated as 11; however, the correct number should be 10. APPLICANT’S HEARING MEMORANDUM - 10 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 be converted to a one-way road with separate entry and exits. This will improve site access, improve safety and remove vehicles from the shoreline area. A 20-foot vegetated buffer will be installed adjacent to the parking area and a 10-foot buffer will be installed along the gravel road. Site drainage will be improved. The septic systems will be improved. The failing system tanks and drain field located in the shoreline zone that serve the cabins will be removed and replaced with a new, larger system located outside of the shoreline jurisdiction and the wetland buffers. Only the transmission lines will be located inside the critical areas. The Glendon Biofilter system will remain to be used for the studio cabins that will replace the mobile home and the caretaker quarters. The four existing wells on the property will be removed and replaced by domestic water supplied by Jefferson County PUD. Connecting the site to public water and installing a hydrant will improve fire protection at the site and the surrounding area. 3. The conditional use will not be materially detrimental to uses or property in the vicinity of the subject parcel. The property has been in use as a beach resort for almost eight decades and predates most of the homes in the area. Granting the conditional use will allow continuation of this longstanding use at virtually the same density and intensity of use. Also, granting the conditional use will permit modernization of the facilities, including visual upgrades and significant improvements in environmental quality. Many nearby residents commented that granting the conditional use will improve the looks of the site and ensure that there will be landscaping improvement that will reduce adverse impacts to them. 4. The conditional use will not introduce noise, smoke, dust, fumes, vibrations, odors, or other conditions or which unreasonably impact existing uses in the vicinity of the subject parcel. There will be no unreasonable impacts to existing uses in the vicinity. Minimal dust and smoke from the restaurant operations is possible; however, the closest home is approximately 300 feet away from the lodge. Night sky friendly lighting will be installed. The operations will adhere to the sound limitations in the noise ordinance. APPLICANT’S HEARING MEMORANDUM - 11 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5. The location, size, and height of buildings, structures, walls and fences, and screening vegetation for the conditional use will not unreasonably interfere with allowable development or use of neighboring properties. Again, the property has operated at essentially the same density for decades without causing interferences with neighboring properties. No major changes in building height or size are proposed. Improvements to landscaping and parking are expected to reduce any impacts on neighboring properties. 6. The pedestrian and vehicular traffic associated with the conditional use will not be hazardous to existing and anticipated traffic in the vicinity of the subject parcel. The Applicant commissioned a traffic study, Exhibit 37, that concluded the proposal will not cause any adverse traffic impacts. The proposal contains improvements to traffic circulation, increases on-site parking and likely will reduce any impact to adjacent properties. 7. The conditional use complies with all other applicable criteria and standards of this title and any other applicable provisions of the Jefferson County Code or state law; and more specifically, conforms to the standards contained in Chapters 18.20 and 18.30 JCC. As the staff report noted, all provisions of the Code will be met. See the staff report at pages 27 and 28 for a complete list and analysis. 8. The proposed conditional use will not result in the siting of an incompatible use adjacent to an airport or airfield. There is no airfield on or adjacent to the site. 9. The conditional use will not cause significant adverse impacts on the human or natural environments that cannot be mitigated through conditions of approval. The Applicant’s proposal does not cause any adverse impacts on human or natural environments that cannot be mitigated. Granting the conditional use will result in significant improvements to both human health and the environment. Human health and environmental improvements will result from removal of failing septic facilities in the shoreline zone and wetland boundaries. Human health and environmental quality will be enhanced by the decommissioning of four wells and by the replacement with water provided by the PUD. Public safety will be improved by the construction of a fire hydrant. The look and comfort of the facilities will be improved by the upgrades to the interior and exterior of the cabins and lodge. APPLICANT’S HEARING MEMORANDUM - 12 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 10. The conditional use has merit and value for the community as a whole. Granting the conditional use has economic, environmental, cultural and community building merit. The property has a significant role in the history of the community. Upgrading the property will provide jobs, sales and lodging taxes, provide continued tourism opportunities and with special events opportunities for the community to access the facilities. 11. The conditional use is consistent with all relevant goals and policies of the Jefferson County Comprehensive Plan. As was discussed earlier, the proposal supports and is consistent with many comprehensive plan policies and goals. It is consistent with the goals and many of the policies of rural character, economic development, environmental protection and land use. 12. The public interest suffers no substantial detrimental effect. Consideration shall be given to the cumulative effect of similar actions in the area. Because the property has for decades been used for resort activities at levels of intensity virtually similar to what is being proposed, there will be no detrimental effects. Granting the conditional use will allow for upgrading the buildings and infrastructure which many residents have commented will be welcomed. There are no similar uses and facilities nearby, therefore the proposal will not result in similar actions in the area. The environmental and public safety improvements will benefit the surrounding community. C. The Applicant Satisfies the Variance Criteria. JCC 18.40.650 sets six criteria that must be satisfied for a variance permit. The Applicant satisfies all six criteria. 1. The variance will not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and land use district in which the subject property is located. As has previously been stated, this property has been used as a resort decades before the surrounding property was developed and the comprehensive plan established the area as a residential zone. Legal non-conforming uses are permitted to expand and maintain structures. See JCC 18.20.260. The variance is necessary to permit the improvements and minor expansions, the absence of which would make the property no longer economically viable as a commercial enterprise. APPLICANT’S HEARING MEMORANDUM - 13 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2. The variance is necessary because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the land use district in which the subject property is located. The property was developed at a time decades ago before the 10-acre minimum lot size and square footage limitations in JCC 18.20.350(9) were adopted. The intensity of the site’s development has not been an issue to the surrounding community. Due to location and topography, there is no feasible way to acquire adjacent property. Allowing the variance will permit necessary improvements to the cabins, allow sensible and minor repairs that will not cause expansions in the shoreline jurisdiction, and will permit the resort to be economically viable. The variance will assist in making the environmental and public safety improvements that will benefit the community financially possible. 3. 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 land use district in which the subject property is located. Granting the requested variance to minimum site size and square footage will permit the buildings and infrastructure to be significantly improved and extend benefits to those living in the vicinity. The buildings will look better and be considerably safer. The environmental quality of the shoreline, wetlands and buffers will be improved by removal of a failing septic system, the decommissioning of on-site wells and the introduction of regional water and a fire hydrant that will improve fire protection for the community and reduce insurance premiums. 4. The special circumstances of the subject property make the strict enforcement of the provisions of this code an unnecessary hardship to the property owner. It would be manifestly unfair to impose minimum lot size and square footage of structure limitations on a facility that was already in existence on a smaller site and built out to a higher square footage decades before the provisions of JCC 18.20.350 were adopted. Clearly there has not been any hardship on nearby property from the site operating with less than 10 acres, with more than 6,000 square feet of lodging space and a footprint exceeding 12,000 square feet. The variance will allow the property to continue its use, to be updated with some limited additional square footage that will permit it to remain economically viable. Given its location, there is no APPLICANT’S HEARING MEMORANDUM - 14 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 contiguous property that could be acquired. The variance is necessary to allow the property to continue financially and to improve its infrastructure. 5. The special circumstances are not the result of the actions of the applicant. The special circumstances are a result of the project’s lengthy history as a resort that pre- dates its neighbors as well as the applicable code provisions. The project’s history and timeline are set forth in Exhibit 6. The Applicant is proposing to update the buildings and re-purpose the square footage of one structure—the mobile home all within the existing footprint. The Applicant’s goal is to continue use of the site as a resort and as much as possible to honor the footprints of the existing buildings while improving the environment on the site. 6. The variance is consistent with the purposes and intent of this Unified Development Code. As has been described above, granting the variance will be consistent with the purpose and intent of the Unified Development Code. The Code permits maintaining and appropriate expansions of existing nonconforming uses. The Applicant has provided a compelling case for variances that will allow a longstanding existing use to be updated and improved while also protecting the environment and enhancing public safety. VI. THE APPLICANT HAS MET THE CRITERIA FOR APPROVAL OF THE SHORELINE VARIANCE A. The Applicant’s Proposal Complies with the No Net Loss Mitigation Regulations in. JCC 18.25.270(2). Applicant retained Soundview Consultants who performed a shoreline, fish and wildlife and FEMA floodplain assessment as well as a plan to ensure no-net loss of shoreline functions and processes. Exhibit 32 at p. 8. Key elements of the plan include: Decommissioning and removal of the septic drainfield within the wetland and shoreline jurisdiction; Reduction of 4,638 square feet of impervious services in the shoreline jurisdiction; Improving hydrologic and water quality functions associated with Wetland A and B, Kilisut Harbor and Oak Bay; Addition of native trees and landscaping; BMP’s and TGESC measures to avoid construction impacts. APPLICANT’S HEARING MEMORANDUM - 15 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The recommendations have been incorporated as conditions to project approval in the staff report. B. The Shoreline Variance Permit Criteria have been Met. Although the failing septic system tanks and drain field service the Cabins located in the shoreline jurisdiction and wetland buffers will be removed, the Applicant requires a variance to permit the new septic system transmission lines to be located within the shoreline jurisdiction and wetland buffers. The variance also is necessary to allow the relocation of the entry door to Cabin 3 (a landward expansion) and the relocation of the bathroom in Cabin 5 to the landward side of the unit. The changes total 60 square feet, and are depicted on the drawing located in Exhibit 28. The carports in Cabins 3 and 4 which will be enclosed landward and all within the existing building footprint. Once the new lines are installed, the disturbed area will be restored. The Applicant has satisfied the seven criteria for approval of a shoreline variance set forth in JCC 18.25.580. 1. The strict application of the bulk or dimensional criteria set forth in this program precludes or significantly interferes with a reasonable permitted use of the property. The cabins were constructed and have been in use decades before the Shoreline Management Act and the County’s shoreline regulations were adopted. Strict application of the bulk and dimensional criteria would preclude maintenance of the structures and work necessary to significantly reduce impacts to the shoreline jurisdiction and to improve shoreline and wetland functions and values by removal of the failing septic system and replacement with a system outside of the critical areas 7. Furthermore, strict application will impair and likely preclude the site from meeting current development standards for the cabins and render the current use economically unsustainable. 2. The hardship described above is specifically related to the property and is the result of conditions such as irregular lot shape, size, or natural features and the application of 7 Exhibit 33 discusses the efforts by the septic designer to remove all but the transmission lines from the shoreline jurisdiction. APPLICANT’S HEARING MEMORANDUM - 16 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 this program, and not, for example, from deed restrictions or the applicant’s/proponent’s own actions. The hardship is the result of the cabins predating the existing shoreline regulations by decades and their current status as permitted non-conforming uses within the shoreline. The hardship was not caused by the Applicant’s actions. 3. The design of the project will be compatible with other permitted activities in the area and will not cause adverse effects on adjacent properties or the shoreline environment. The proposed actions all are confined to the Applicant’s property and will improve the quality of the shoreline and critical area environments including improving water quality, and the restoration of habitat. 4. The variance authorized does not constitute a grant of special privilege not enjoyed by the other properties in the area and will be the minimum necessary to afford relief. Granting the variance will permit the maintenance of a longstanding permitted, nonconforming use of the cabins in a manner that improves safety, comfort and environmental functions and values. 5. The public rights of navigation and use of the shorelines will not be materially interfered with by the granting of the variance. There will be no work performed below the ordinary high-water mark and thus no interference with navigation. 6. The public interest will suffer no substantial detrimental effect. As previously discussed, the variance application is supported by substantial mitigation including reducing environmental impacts in shoreline jurisdiction, in the wetlands and the wetland buffers by removal of the failing septic system, including tanks and drainfield, removal of impervious surfaces, and restoration of habitat as described in the Soundview Consultants report, Exhibit 32 and the septic system design, Exhibit 30. C. The Shoreline Substantial Development Permit Should be Approved. Pursuant to JCC 18.25.290, a Shoreline Substantial Development Permit also is required. JCC 18.25.660(1) authorizes the issuance of shoreline substantial development permits for actions to legal, nonconforming structures. As the 1973 ariel photographs demonstrate, the cabins within the shoreline jurisdiction were in existence before the shoreline regulations were adopted. The only APPLICANT’S HEARING MEMORANDUM - 17 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 131151.0002/8979236.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 waterward element will be the transmission lines for the new septic system which will significantly improve environmental quality. VII.THE APPLICANT SUPPORTS THE CONDITIONS CONTAINEDIN THE STAFF REPORT The Applicant has reviewed the conditions for approval contained in the Staff Report and agrees that with them except as noted herein.8 VIII.CONCLUSION The Applicant’s proposal will maintain and update a longstanding resort that has been a defining element of the area’s character. The intensity of use will not change and will essentially remain within the existing developed footprint. The project will provide significant environmental and public safety benefits to the site and to surrounding properties. For the foregoing reasons the Applicant requests that the conditional use permit, major variance, the shoreline variance and substantial use permit and the wetland buffer reductions be approved. Dated this 19th day of May 2022. By: Grant S. Degginger, WSBA No. 15261 deggingerg@lanepowell.com LANE POWELL PC 1420 Fifth Avenue, Suite 4200 P.O. Box 91302 Seattle, Washington 98111-9402 Telephone: 206.223.7000 Facsimile: 206.223.7107 Attorneys for the Applicant Extend Yourself LLC 8 Page 27 of the staff report states the space for the dining facility is 727 square feet which the applicant presumes relates to indoor capacity exclusive of the outdoor deck.