The Board of Island County Commissioners (including Diking Improvement District #4) met in Regular Session on May 11, 1998, beginning at 9:30 a.m., in the Island County Courthouse Annex, Hearing Room, Coupeville, Wa. Wm. L. McDowell, Chairman, Tom Shaughnessy, Member, and Mike Shelton, Member, were present. Also present: Margaret Rosenkranz, Clerk of the Board, and Ellen Meyer, Adm. Asst. to the Board. Minutes from the joint Board and Planning Commission Workshops held on February 5 and 11, 1998 were signed and approved, as well as Board minutes from the March 26, 1998 meeting.

The following vouchers/warrants were approved for payment by unanimous motion of the Board: Voucher (War.) # 25830-26081……………………….. $192,487.20.

EMPLOYEE DEPARTMENT #YEARS ANN. DATE

Cyndy R. Smith District Court 15 4/28/83

Mary Hamel Health 10 5/16/88

Ingrid Smith Prosecutor 10 5/2/88

Michael J. Beech Sheriff 5 5/17/93

John T. Lee Public Works 15 4/1/83

As presented, along with summary/description of proposed action by Dick Toft, Human Resource Director, the Board by unanimous motion approved the following personnel action authorizations:

Assessor 033/98 Appr. Trainee Replacement 6/3/98

Position #1098.01

Auditor 034/98 Acct/Dep.Auditor Replacement 5/11/98

Position #202.01

Sup.Court 035/98 Court Reporter New Position 7/1/98

Position #2002.02-Replacing Court Recorder with Court Reporter

By unanimous motion, the Board appointed Irvin L. White, Greenbank, as an alternate member on the Addressing Board representing Whidbey Island.

On recommendation of Commissioner Shaughnessy, District #3, the Board by unanimous motion appointed Pat Churchill, Camano Island, to serve on the Island County Planning Commission replacing Susan Banel who earlier resigned, for a term to January 2, 2002.

Mike Estes, representing the County’s Central Services Department, was present in support of and to answer any questions about the proposed County Electronic Communications Acceptable Use Policy, covering computer network access, e-mail, Internet access, and intranet development termed "electronic communications".

The Board, on unanimous motion, adopted Resolution #C-52-98 Establishing an Island County Electronic Communications Acceptable Use Policy.

WHEREAS, Island County has developed a wide variety of centralized technologies such as computer network access, e-mail, internet access, and intranet development termed as Electronic Communications and

The Chairman asked that Mr. Estes provide a copy of the policy dated today to all users of e-mail in the County.

Requests from county departments for office equipment were discussed briefly during budget workshops, and a separate line item budgeted for equipment purchases to be approved later in the year. Departmental equipment requests were submitted in late March, coordinated through Central Services and the Budget Director. A list of all requests was presented and discussed initially at Staff Session on April 8, 1998. The Board provided tentative approval during Staff Session on May 6 to accept the first three pages of the four page list submitted [total of 4 pages] by Cathy Caryl, with more formal approval to be followed at Board meeting this date.

By unanimous motion, the Board confirmed approval of the first three pages of the equipment list submitted by Central Services Department, for an approximate total of $103,365, representing Items #98-001 through #98-971.

Two Health Department contracts, having been previously discussed with the Board at a recent staff session, were by unanimous motion approved by the Board, as follows:

• Consolidated Health Contract Amendment - #CO6977(2) – representing a Funding decrease in the amount of $100 in the Perinatal Hepatitis B fund.
• Contract #916001321 between DSHS and Island County for Alternative Response, in the amount of $24,000 [ families which are screened by CPS to be low risk to moderately low risk of abuse or neglect].

By way of Memo dated May 6, 1998, the Board received from Elizabeth McKay, Juvenile Court Services Director, the Consolidated Juvenile Searches contract between Island County and DSHS for approval/signature. As the memorandum explained, this is an annual contract, and represents only half of the biennium. Funding is in the amount of $108,290.00 and is used to pay for one probation counselor and services to juveniles at high risk of re-offending and services for sex offenders who remain in the community.

The Board, by unanimous motion, approved Interagency Agreement with the State of Washington DSHS, Contract #RM-JUV-98-0025 as submitted in the amount of $108,290.00.

Larry Kwarsick, Director, Public Works Department, reported results from bids received and opened last Thursday, the low bid from the contractor who performed the work under the block grant for the Hospital District renovation of the South Whidbey facility. The recommendation of staff is to award bid to the low bidder, for the South Whidbey Family Resource Center, J & L Builders, in the a mount of $361,735.00 [without alternatives].

Gary Hess, Public Works Engineer, discussed add-ons explaining the proposal is not to use this contractor for any of the additives. Going through the project, landscaping requirements will be achieved hopefully at a reduced cost from that proposed. The budget available is $379,100. Once the project is completed, an evaluation will be done to determine whether or not some of the additional items can be accomplished.

Mr. Kwarsick commented that the site is a rural wooded site and a significant amount of existing vegetation is being retained. This contractor is not being used to landscape the site.

The Chairman asked that when staff recognized a likelihood of being over budget on a project that be brought to the Board’s attention at staff session and discussed.

By unanimous motion, the Board awarded bid for the South Whidbey Family Resource Center, Work Order #202, to J & L Builders based on their low bid of $361,735.

The Board, by unanimous motion, authorized and approved Purchase Order #01321 from

Midwest Sign and Screen Printing Supply, Seattle, a sign making machine at a total cost of

$6,303.70, as discussed at the last staff session with the Public Works Department.

By unanimous motion the Board approved Resolution #R-20-98 [also known as #C-53-98]

initiating County Road Project #98-03, under Work Order 220, Brighton Beach Road repair; including consultant fee, contract construction, PE & CE for a total of $184,000.

By unanimous motion the Board approved Resolution #R-21-98 [also known as #C-54-98]

initiating County Road Project #98-04, Work Order 128, to place a flashing signal light to warn motorists of students during school hours at Crescent Harbor Elementary School, for a total appropriation of $17,000.

Last, Mr. Kwarsick presented for the Board’s consideration a proposed resolution to amend the Island County Six Year Capital Improvement Program for the years 1998 to 2003 to include Island County Fairground Improvements. In association with the annexation of the Fairground property, there is proposed improvement [private and grant funds] for the HOPE facility arena. The Capital Improvement Program proposes to pay the building permit costs associated with the construction of that facility and also the cost of installing the necessary sewer service to the facility in the amount of $7,200.00.

By unanimous motion, the Board approved Resolution #C-55-98 in the matter of amending Island County’s Six Year Capital Improvement Program for the years 1998 to 2003 to include Fairground improvements.

WHEREAS, the Public Works Director, in accordance with RCW 36.70A.070(3) and WAC 365-195-315, submitted his recommended plan for capital expenditures for 1998 through 2003; and

WHEREAS, the Island County Board of County Commissioners adopted the 1998-2003 Capital Improvement Program (CIP) on June 23, 1997 by way of Resolution R-43-97; and

WHEREAS, the Fairground Improvement project could not be foreseen at the time the CIP was adopted; and

WHEREAS, per ICC 3.04A.040 real estate excise tax funds can be used for financing capital projects specified in the capital facilities plan element of the Island County Comprehensive Plan; and

WHEREAS, HOPE (Horsemanship Opportunities for Potential Equestrians) is constructing a building at the county fairgrounds which includes office, meeting, and storage space to be used in their therapeutic program which benefits Island County residents, and

WHEREAS, that building will include a small kitchen, restrooms, and a new announcer’s booth for the arena, which will be used for the Island County Fair,

NOW THEREFORE BE IT HEREBY RESOLVED that the 1998-2003 Capital Improvement Program is amended to include Fairground Improvements to include payment for the building permit and for sewer extension to the building to be funded out of REET 1 in the amount of $2,200 and REET 2 in the amount of $5,000 in 1998.

ADOPTED this 11^th day of May, 1998.

BOARD OF COUNTY COMMISSIONERS

Wm. L. McDowell, Chairman

Tom Shaughnessy, Member

Mike Shelton, Member

Attest: Margaret Rosenkranz

Clerk of the Board

With regard to the Appeal of the Hearing Examiner’s decision #304/97, granting Diane Tinker, Applicant, a Variance with conditions to allow construction of a garage at 35’ from the Maxwelton Road centerline instead of the regulated 50’ distance, the Board held a closed record appeal on April 6, 1998. On April 20, 1998, the Board a decision on the matter for one week to allow Commissioners McDowell and Shaughnessy an opportunity to make a site visit, and the Board’s announcement continued to April 27, 1998 at 2:50 p.m. at which time each Commissioner read into the record their individual statement/decision. After that, Planning Department staff prepared and submitted to the Board a draft written decision May 4, 1998, which the Board at that time took under advisement and set this date for action.

Commissioner Shaughnessy moved that the Board approve and sign the written decision of the Board in the matter of an appeal of the Island County Hearing Examiner’s Decision VAR 304/97, File No. APP 098/98 Appeal Decision Findings of Fact and Conclusions of Law. Motion, seconded by Commissioner McDowell, carried by majority vote, Commissioner Shelton voting in opposition.

A copy of the Board’s Decision is to be provided to the Appellant and Applicant by the Planning Department.

This matter came before the Board of Island County Commissioners on April 6, 1998, upon appeal by Joanne Keefe of the February 23, 1998, Island County Hearing Examiner Decision granting approval of Variance #304/97. The decision granted approval to Diane Tinker for a street yard setback variance which would allow the placement of a garage 37 feet from the centerline of Maxwelton Road or 14.5 feet from the property line. This is a closed record appeal. The record of this appeal includes the entire record as was before the Island County Hearing Examiner including the materials and information in the application file, the Island County staff report, the Hearing Examiner decision, the minutes of the public hearing, the materials submitted by the appellant and applicant during the hearing process, the Island County Code and Comprehensive Plan, the applicable State codes, together with Appellants’ notice and basis of appeal filed with this Board.

Having reviewed the record and independently reviewed applicable ordinances and legislation, THEREFORE, the Board of Island County Commissioners makes the following Findings of Fact and Conclusions of Law:

Diane Tinker is the owner of an approximately 1.1 acre parcel of land located between the toe of a bluff and Maxwelton Road, in a waterfront community accessed by Maxwelton Road.

Development on the applicant’s parcel currently consists of an existing two bedroom home with deck and an existing mound septic system. The existing two bedroom home and mound system encompass the central portion of the lot, which is higher than either the rear of the lot or the front portion between the home and mound system and South Maxwelton Road. This area, including the applicants property, has been identified as a flooding/ponding area. There is a defined water channel in the back of the lot, approximately 200 feet from Maxwelton Road, and approximately 35 feet from the toe of a steep bluff. The area between the house and the toe of the bluff is a Category A wetland or its buffer, under the current Island County Zoning Ordinance. This wetland has been significantly altered over the years through the placement of fill and the digging of the current drainage channel. A well is also located in the back portion of the lot near the toe of the bluff.

An application for a street yard setback variance on Assessor parcel #R32805-095-5050 located at 7529 S. Maxwelton Road was signed by the owner and submitted to Island County on July 21, 1997. Island County accepted the application as complete for review on August 4, 1997. The applicant has indicated an intent to construct a two-car garage with cedar shingle siding and a pitched roof that is in character with the surrounding community.

III.

During the application review regarding this matter it was discovered by the Health Department that, based on the site plan submitted, the required setback between the proposed garage and the drainfield was less than the required 10 foot minimum and that, based on the existing as-built for the drainfield reserve, the proposed garage would be located in the area designated as the drainfield reserve. As a result, the Health Department did not recommend approval of the application, unless the applicant could identify a 100 percent reserve area to meet Health Department requirements for a septic reserve area set aside from development. After review by Island County, the Planning and Community Development prepared a staff report and recommended that the Island County Hearing Examiner deny the application, unless the Island County Health Department conditions could be met.

On September 18, 1997, a public hearing was held to review the application. At this hearing, the appellant, Joanne Keefe who is the neighboring property owner of the applicant to the south, raised objections to the requested variance. The hearing was extended until November 6, 1997 to allow the applicant time to comply with Island County Health Department concerns and to provide further evidence demonstrating the need for the garage to be located on the front portion of the lot.

In October, 1997 an additional site visit was conducted by Island County Planning staff, at which time it was determined that a Category A wetland was present in the rear portion of the lot. In a letter dated October 15, 1997 the Planning Department informed the applicant of the presence of a Category A wetland and noted that the presence of the wetland and its associated buffer precluded construction of the garage on the rear portion of the property without prior County approval to reduce the wetland buffer. At the November 6, 1997 hearing, this information was presented at the open public hearing. The applicant submitted further information to the Hearing Examiner from a professional engineer noting that the soil located in the rear yard is characterized as comprised of unconsolidated fill and is not suitable for construction. Exhibit #30, submitted and stamped by a professional engineer, indicates various layers of uncompacted fill which, in some areas, extend to a depth of 48 inches. As such, placement of the garage on the rear portion of the property would require the applicant to apply and receive approval for a wetland reduction, as well as remove existing materials and provide structural fill up to 48 inches in depth for the proposed garage and the access driveway.

The hearing was extended until February 5, 1998 to allow the applicant time to comply with Island County Health Department continuing concerns with the proposal. At the February 5, 1998 hearing the Health Department submitted agency comments noting that the applicant had submitted a sewage disposal system by a licensed designer that is feasible if the proposed garage is placed no more than nine feet from the property line.

On February 23, 1998 the Hearing Examiner issued a decision granting variance approval for the placement of a slightly smaller than requested garage 37 feet from the centerline of Maxwelton Road or 14.5 feet from the property line.

The appeal of the decision was received by Island County on March 9, 1998, and is a timely appeal filed within 15 calendar days of the date of the issuance of the decision. The closed record hearing by the Board of Island County Commissioners was set for and held on April 6, 1998, in conformance with ICC 16.19.160, Land Use Review Process - Appeals. The Board’s decision was announced to the public at their meeting held on April 27, 1998. (copy attached)

IV.

The lot is located within an area consisting of small lots located between a bluff and Maxwelton Road, with the waterfront just on the other side of Maxwelton Road. Maxwelton Road dead ends into this community. The community contains lots ranging from 45 feet to 100 feet in width and the location of the proposed garage 11 to 15 feet from the neighboring property owners home is in character with the surrounding community.

This area of Maxwelton Beach includes numerous lots with homes and garages which encroach on the current setback requirements much in the way proposed by this applicant. Building the garage in the proposed location would not be out of character with the surrounding community, which is characterized by development close to the road. The applicant proposes a garage constructed of wood exterior siding with a peaked roof, similar to existing homes in this area.

County agencies have indicated that the granting of this variance will not have a negative impact on the public interest due to fire and safety concerns or intersection site distance. Since the proposed garage will be located near the south property line (i.e., just north of the neighboring property owners cabin) and will be located to exceed minimum side yard setback requirements, the proposed garage will not negatively impact solar access, views, or traffic site distances.

There is no evidence that the granting of the variance in this case would substantially diminish property values of the surrounding neighborhood. The factors set forth in ICC 17.02.150.L.3 have been reviewed and a variance to building in the location requested by the applicant is generally consistent with these criteria.

The applicant does not currently have a garage or off road parking area on the property. A garage on a lot containing a single family residence is a reasonable expected use of the Residential-zoned lot.

The neighboring property owner to the south has objected to the requested variance. One of the issues the neighboring property owner has raised is whether viable alternatives for placement of the garage on the lot exist which would preclude the need for a variance to reduce the street yard setback. The only place the proposed garage could be located on the parcel, except for the requested location which requires a variance, would be to the east or rear of the property between the existing home and mound system and the man made water channel. This portion of the property is located within a Category A wetland buffer. Placement of a garage within the buffer would require Island County approval of a wetland reduction. There is no location on this lot which a reasonable size garage could be located without either a variance from the road setback requirements or a reduction of the wetland buffer requirements.

Any Conclusion of Law which is deemed a Finding of Fact is hereby adopted as such. Based on the foregoing Findings of Fact, now are entered the following:

In order for a variance to be approved it must be consistent with the variance criteria and requirements as set forth in ICC 17.02.200.D. In general variances are allowed when necessary to allow a reasonable permitted use on the property. The proposed garage structure is a permitted use on this property. The granting of a variance for this garage would not constitute a Grant of Special Privilege so long as the proposed garage was consistent with the remainder of the variance criteria.

It is possible to place the proposed garage on the rear portion of the property. If the garage was placed in this location a road setback variance would not be required. However, to place the garage in this location would require a reduction in the 100 foot Category A wetland buffer. Wetland buffer requirements are designed to protect the public interest and the functions of the wetland, including habitat. Wetland buffer reductions are also available when necessary to allow reasonable permitted use of a property. A reduction in a required wetland setback, either through administrative use approval or through a use approval granted though the hearing process amounts to no more than a variance from the wetland buffer requirements. In this case the applicant must obtain a variance either from the front road setback requirements or from the wetland buffer requirements.

Where either a variance or wetland buffer reduction is required in order to make reasonable use of the property, an applicant is entitled to one of the two to obtain reasonable residential use of a property. The Hearing Examiner has routinely allowed setback variances for accessory buildings such as a garage, as this is a normal accessory use of a residential lot. There is nothing in the Island County Code which specifically gives guidance as to whether the setback variance or the wetland buffer reduction should prevail in circumstances where one or the other is needed. An appropriate resolution of which kind of variance to grant should be reached based on the circumstances of each individual request. Factors to be balanced include the general public interest, the impact on adjoining property owners, and a determination of which type of variance most effectively removes the hardship on an individual property owners.

In this case, the neighboring property owner to the south would be minimally affected by the 13 foot front yard setback reduction which this Hearing Examiner has granted in this case. The public interest does not appear to be measurably impacted by either a wetland buffer reduction or the requested front yard setback reduction.

However, the applicant would be severely impacted by a determination requiring a wetland buffer reduction instead of a front yard setback reduction. Requiring the applicant to build in the area which would be made available by a reduction in the wetland buffer would be much more onerous on the property owner than would allowing the applicant to build in an area requiring a front yard setback reduction. In this case, it is more appropriate to grant a front yard setback reduction as opposed to a reduction in the wetland buffer.

There is no evidence that the granting of a variance in this case will substantially diminish property values of the surrounding neighborhood. The factors set forth in ICC 17.02.150.L.3 have been reviewed and a variance to build in the location requested by the applicant is generally consistent with these criteria.

HEARING SCHEDULED: RESOLUTION #C-57-98 [PLG-010-98] AMENDING BUILDING PERMIT FEES AND BUILDING PERMIT VALUATION SCHEDULE

A Public Hearing was scheduled, by unanimous motion of the Board, for June 1, 1998 at 10:45 a.m. to consider Resolution #C-57-98 amending Building permit Fees and Building Permit Valuation Schedule.

As submitted for review and approval, the Board by unanimous motion approved a Professional Services Agreement between Island County and Earth Tech, Consultant, to assist the Planning Department in completion of the update of the Shoreline Management Master Program.

As scheduled and advertised, a public hearing was held at 11:00 a.m. for the purpose of considering the Application of Mark Hein and Elizabeth Lee, TLC #108/98, for Open Space Timber Status for 19 acres of a their 20-acre Parcel #R23025-297-3300 located off Brainers Road on South Whidbey.

At the time of hearing, both Mark Hein and Elizabeth Lee were present in support of their application.

Matt Nash, Senior Planner, participated in the review of the application for transfer into Open Space Timber. The 20 acres is currently in Designated Forest and applicants request for a transfer into Open Space Timber status for the purpose of developing a one-acre residential building site. Based on site and parcel history review, there are no concerns regarding this property. The property has been logged and reforested. Applicants have a Forest Management Plan which accurately describes the property and meets technical standards. Staff recommends approval.

At the time the Chairman called for public comments, no one in the audience spoke in favor of or in opposition to the Application. Written letters of support are on file with this application.

By unanimous motion, the Board accepted the recommendation of staff and approved Open Space Application #TLC 108/98 by Mark Hein and Elizabeth Lee to place 19 acres of a 20 acre parcel in open space/timber current use taxation status for Parcel #R23025-297-3300 located on South Whidbey Island, subject to the condition that all future forest practices activity on the subject property shall be consistent with submitted Forest Management Plan and with the Washington Forest Practices Regulations, RCW 76.09 and WAC 222.

Mike Shelton, Member

Attest:

______________________________

Margaret Rosenkranz, Clerk of the Board