Ordinance 34200006.90000
WSS /gjz
9/18/02
ORDINANCE NO: 3420
AN ORDINANCE OF THE CITY OF EDMONDS,'
WASHINGTON, DENYING PRD APPLICATION 2002 -12 AND
FILE NO. P- 2002 -11, AND FIXING A TIME WHEN THE SAME
SHALL BECOME EFFECTIVE.
WHEREAS, the City Council heard the Hearing Examiner's recommendation in a
closed record review; and
WHEREAS, pursuant to this ordinance, the City Council adopts the Findings,
Conclusions and Decision attached hereto as Exhibit A, NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO
ORDAIN AS FOLLOWS:
Section 1. Applications No. P- 2002 -11 and PRD- 2002 -12 are hereby denied.
Such denial is based upon the Findings of Fact and Conclusions of Law, attached as Exhibit A
hereto and incorporated by this reference as fully as if herein set forth.
Section 2. Effective Date. This ordinance, being an exercise of a power specifi-
cally delegated to the City legislative body, is not subject to referendum, and shall take effect
five (5) days after passage and publication of an approved summary thereof consisting of the
title.
APPROVED:
MA,tOR G6kY HAAKENSON
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ATTEST /AUTHENTICATED:
CITY CLERK, SANDRA S. CHASE
APPROVED AS TO FORM:
OFFICE OF as
AT Y:
BY
FILED WITH THE CITY CLERK: 09/20/2002
PASSED BY THE CITY COUNCIL: 09/24/2002
PUBLISHED: 09/29/2002
EFFECTIVE DATE: 10/04/2002
ORDINANCE NO. 3420
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SUMMARY OF ORDINANCE NO. 3420
of the City of Edmonds, Washington
On the 24th day of September, 2002, the City Council of the City of Edmonds,
passed Ordinance No. 3420. A summary of the content of said ordinance, consisting of the title,
provides as follows:
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, DENYING PRD
APPLICATION 2002 -12 AND FILE NO. P- 2002 -11, AND FIXING A TIME WHEN THE
SAME SHALL BECOME EFFECTIVE.
The full text of this Ordinance will be mailed upon request.
DATED this 25th day of September, 2002.
CITY CLERK, SANDRA S. CHASE
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BEFORE THE EDMONDS CITY COUNCIL
In Re the Application of
Application No. P- 2002 -11
Viking Properties, d/b /a Talbot Park Estates and PRD- 2002 -12
I. PROCEDURAL HISTORY
This matter came on before the Edmonds City Council on August 20, 2002 on the
recommendation of the City's Hearing Examiner. The closed record review was continued to
September 10, 2002.
II. PRELIMINARY PROCEDURAL RULINGS
2.1 Prior to the City Council's hearing, a procedural issue was raised to the Hearing
Examiner regarding the status of the Hearing Examiner's decision under the provisions of ECDC
20.35.080(A) and ECDC 20.100.010(A)(3). The first referenced ordinance appears to authorize
the Hearing Examiner to make a final decision regarding a preliminary PRD, while ECDC
20.100.010(A)(3) limits the authority of the Hearing Examiner in a PRD application to a review
and recommendation to the City Council. An opinion was provided by the office of the City
Attorney to the Hearing Examiner (See Exhibit S to the Hearing Examiner's Recommendation)
recommending that, given the conflict in the ordinances, the matter come to the City Council as a
recommendation. The opinion was based upon decisions of the Washington Appellate Courts
holding Planned Residential Development (PRD) applications to be akin to rezones. Since the
Planning Enabling Act delegates sole authority to the City Council to decide a rezone
application, the City Attorney opined that the PRD application should be reviewed in the same
manner.
2.2 An attorney for a number of the parties of record, Jonathan Hatch, concurred with
the City Attorney's recommendation. The Applicant opposed treating the ordinance as a rezone
asserting that if it was not a final decision, the decision should come to the City Council on
appeal. In a letter dated July 18, 2002, applicant's representative, S. Michael Smith, Land Use
Planner from Lovell- Sauerland & Associates, Inc., conceded for the purpose of the hearing that
the PRD is a rezone but asserted that new amendments to RCW 35A.63.170(1) permit the City
Council to delegate a decision to a hearing examiner to decide an application to amend the
zoning ordinance when the amendment "... is not of general applicability...".
2.3 The City Council takes administrative notice that zoning changes which are not of
general applicability, that is, site specific rezones, are delegated by the provisions of ECC
10.40.020(C)(1) to the Planning Board. Therefore, under the structure of the Code, the Planning
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Board, not the hearing examiner, has been delegated responsibility for reviewing site specific
rezones and makes a recommendation to the Council.
2.4 In addition, careful reading of the provisions of RCW 35A.63.170(1) indicates
that regardless of delegation, rezones require either an appeal to, or a recommendation to the
City Council.
2.5 Based on the foregoing considerations, particularly the fact that rezones. as
delegated to the Planning Board come back to the City Council on report for final determination
and the PRD's are conceded by both the applicant and the attorney for the majority of the parties
of record to be rezones, the City Council considers the recommendation of the Hearing Examiner
as a recommendation.
III. FINDINGS
3.1 The subject property is roughly rectangular in size with approximately 210 feet in
width and 400 feet in depth. A stream runs through a steep ravine area along the east and
northeast property lines. The west and southwest portions of the property are relatively flat and
suitable for development.
3.2 Pursuant to the provisions of Chapter 20.15B ECDC relating to Critical Areas, the
applicant provided a survey topographical map which identified the contours of the steep slope
along the east side of the property.
3.3 Pursuant to ECDC 20.15B.I IO(A), a 50 -foot buffer from a hazardous slope shall
be established, provided, however, that the 50 -foot buffer requirement may be reduced to 10 feet
based upon review of a Critical Areas Study prepared pursuant to ECDC 20.15B. 140(A). The
Critical Areas Study is required to be prepared by a licensed geotechnical engineer or geologist
and clearly demonstrate that the proposed buffer alteration will have no adverse impact upon the
site, the public or any private party. ECDC 20.15B.1 10(A) provides in part:
"Adverse impact" shall include, but not be limited to a decrease in
site stability as defined in Chapter 19.05 ECDC.
3.6 A document referred to by the Hearing Examiner and in the document itself as a
"preliminary geotechnical evaluation" was submitted for the subject site by Liu & Associates,
Inc. and executed by J. S. Liu, Ph.D., PE, Consulting Geotechnical Engineer. This document is
contained in the record as Exhibit C, attachment 11 to the Hearing Examiner's Recommendation.
At page 116 of the volume of the City Council packet, or page 7 of Exhibit C -11, Dr. Liu states:
The conclusions and recommendation in this report are preliminary
in nature based upon the geologic and soil conditions shown on the
above - referenced geologic map and are ground probing results.
The geologic and soil conditions begin should be verified by sub-
surface exploration program prior to the development of the short
plat. The conclusions and recommendation in this report may have
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to be revised depending on the soil data obtained from the sub-
surface exploration.
[Emphasis added.]
3.7 ECDC 20.15B.110(A) requires that the report "...clearly demonstrates that the
proposed buffer alteration will have no adverse impact upon the site, the public or any private
PAY
18 The term "stable" or "stability" is defined by ECDC 19.05.020(J). Lots which do
not qualify as stable may not be susceptible of development.
3.9 RCW 58.17.120 provides that the City Council "...shall consider the physical
characteristics of a proposed subdivision site ... ". The PRD as presented utilizes buffer
reductions based upon the geotechnical report which help determine the size, shape and location
of the lots.
3.10 The applicant and staff assert that the geotechnical report is adequate for the
purposes of preliminary PRD approval. The staff and hearing examiner recommend that a more
detailed report be required prior to final PRD approval.
IV. CONCLUSIONS
4.1 The City Council concludes that the geotechnical report as presented is
preliminary in nature and fails to clearly demonstrate site stability nor provide a sufficient basis
to reduce the buffers under, and as required by, the Critical Areas ordinance. In reaching this
conclusion, the City Council notes that the.provisions of ECDC 20.15B.060(A)(3)(b) incorporate
by reference geotechnical evaluations and landslide hazard maps developed by prior scientific
investigation and adopted by the City. Geotechnical reports may consider and incorporate,
where appropriate in certain well defined and understood situations, the conclusions of those
reports in lieu of subsurface testing, but the record in this matter includes no reference to reliance
by the geotechnical expert upon the referenced studies. At page 111 of the City Council's
packet, reliance is made upon a U.S. geological survey with reference to the geologic and soil
conditions of the site but the consultant fails to provide the "clear" demonstration required by the
Critical Areas Ordinance.
4.2 By the geologic expert's own admission, the
"conclusions and recommendations in [his] report are preliminary
in nature based on the geologic and soil conditions shown on the
above referenced geologic map and are ground- probing results.
The geologic and soil conditions should be verified by a subsurface
exploration program ... The conclusions and recommendation in
this report may have to be revised pending on the soil data
obtained from the subsurface exploration.
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4.3 ECDC 20.15B.110(A) places upon the applicant the duty, through the geologic
report, to clearly demonstrate that "...the proposed buffer alteration will have no adverse impact
upon the site, the public or any private party."
4.4 The applicant has failed to sustain its burden of going forward and of proof in this
regard. The record as presented is inadequate to show compliance with the Critical Areas
ordinance. Therefore, there is not a sufficient basis in the record to sustain reduction of the
buffers for geological hazardous areas from 50 feet. The City Council therefore concludes that
the application is in violation of the City's Critical Areas ordinance and must be denied.
4.5 Because of its finding, the City Council makes no findings and conclusions
regarding the compliance of the application with the provisions of the PRD ordinance.
Reduction of the geological buffering could affect building footprints, setbacks, lot
configuration, lot area, and a wide variety of other characteristics of the Planned Residential
Development. Such changes can also impact the basis upon which Architectural Design Board
approval was granted. While members of the City Council have concerns regarding the
compliance of the application with the PRD ordinance, the City Council reaches no final
conclusion regarding its compliance with the terms of Chapter 20.35 ECDC.
4.6 While the Hearing Examiner has recommended and it has been asserted that a
final geotechnical report should and could be required as a condition of final approval, the City
Council finds that too many characteristics of the PRD depend upon a determination of the
buffer area. Issues regarding public safety and the safety of private individuals are too important
to be left to the final development stage, particularly when changes in the conclusion of the
report and the alteration of a wide variety of characteristics of the PRD could completely change
its character.
4.7 Furthermore, as an action akin to a rezone, a PRD must show compliance with the
ordinances of the City and be consistent with the public health, safety and welfare. The
Applicant has failed to meet its burden of proof in that regard.
DECISION
The City Council finds that the application fails to comply with the requirements of the
Critical Areas ordinance, Chapter 20.15B of the Edmonds Community Development Code, and
specifically Section 20.15B.110, and therefore is not in conformance with the City's ordinances
and further, the Applicant has failed to meet its burden of going forward, of proof and of
persuasion. Based thereon, the City Council finds and concludes that approval of the Planned
Residential Development Application No. PRD- 2002 -12 and P- 2002 -11 must be denied.
,►h
DONE this .27 day of SEPTEm aep— , 2002.
CITY OF EDMONDS
By:
M OR Y AAKENSON
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ATTEST /AUTHENTICATED:
CITY CLERK, SANDRA S. CHASE
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Affidavit of Publication
STATE OF WASHINGTON, 1 S.S.
COUNTY OF SNOHOMISH f
On the 24th day of September, 2002, the City Council of
the City of Edmonds, passed Ordinance No. 3420. A
summary of the content of said ordinance, consisting of
the title, pr f
AN ORDIovides as o lldNANCE ws: OF THE CITY OF EDMONDS,
The undersigned, being first duly sworn on oath deposes and says that she is
WASHINGTON, DENYING PRD APPLICATION 2002-
12 AND FILE NO. P- 2002 -11, AND FIXING A TIME
Principal Clerk of THE HERALD, a daily newspaper printed and published
WHEN THE SAME SHALL BECOME EFFECTIVE.
The full text of this ordinance will be mailed upon
re nest.
in the City of Everett, County of Snohomish, and State of Washington; that
yy p
DATED this 25th CITY CLERK, SANDRA S. CHASE
Published: September 29, 2002.
said newspaper is a newspaper of general circulation in said County and
State; that said newspaper has been approved as a legal newspaper by order
of the Superior Court of Snohomish County and that the notice
City of Edmonds
Summary of Ordinance No. 3420
a printed copy of which is hereunto attached, was published in said newspaper
proper and not in supplement form, in the regular and entire edition of said
paper on the following days and times, namely:
September 29, 2002
and that said newspaper was regularly distributed to its subscribers during
all of said period.
Subscribed and sworn to before me this 30th
day of September, 2002
Principal Clerk
-. -,
_�018SE j
.i
Notary Public in and for the jStft oftyPashingtoR, resRbi
Everett, Snohomish County p 'PUBLIC
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`�RECE IV&( FA1AWAS -
OCT Q 2 2002
EDMONDS CITY CLERK