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22828 100TH AVE W CU-38-82.pdfAl aw to, i7l CITY OF EDMONDS File Noelo-za4z EDMONDS, WASHINGTON Date EXHIBIT 2 Fee APPLICATION TO HEARING EWIINER APO'S FOR CONDITIONAL USE PERMIT Rect. No. 4 !tl(ao HEARING DATE...qL&& / I APPLICANT:S.S.G ConStruCtion InC. DDRESSP,P- 4ox 3�978 PHONE 774-5138 beattle, Wa. Indicate type or degree of interest in the prope ty: OWner OWNER:S.S.G. Construciion Inc. ADDRESSP&O- Rox 33978 E,M-5138 -V -,,SeaWW . LOCATION OF PORPERTY (ADDRESS) 22828 100tty Ave. West. Edmondl 'Vle3 LEGAL DESCRIPTION OF PROPERTY See amiched To be completed by the Planning Division: Use Zone Legal description checked and approved by: Date: VICINITY SKETCH: PLEASE SHOW BELOW A VICINITY SKETCH AS PER EXAMPLE, INDICATI Example: "O.M.r, I I � 6— 'Nam- � CONDITIONAL USE REQUESTED - DETAILS OF PROPOSED USAGE: Parking lot for future retai I store. Representative RELEASEMOLD 'HARMLESS AGREEMENT The undersigned applicant, his heirs and assigns, in consideration for the City processing the application agrees to release, indemnify, defend and hold the City of Edmonds harmless from any and &It damages and/or claims for damages. includin reasonable attorneys' fees &ri:ing,from any action or inaction of the Ctty whenever such action er Inact on a based in whole or in part upon false, misleading or incomplete information furnished by the applicant, his agents or employees. PERMISSION TO ENTER SUBJECT PROPERTY The undersigned :pplicantfgrants his, her or its permission for public officials and th staff o the City of Edmonds to enter the subject prolerty for the purpose of'inenection and n nt this app ication. =-0 Slyn—aFulre of Applicant. Dwher or Representative V P, A 362703-1-077-0026 6107-002-008-0205 Albertsons Inc Jones Boys Realty Inc. P. 0. Box 20 10020 Edmonds'Way Boise, ID 83726 Edmonds, WA 98020 362703-1-078-0009 6107-002-009-0006 Washington Federal S & L Highline Savings & Loan Leach Joe D 50-205-28856-1 Westway Prop 512-04484 1423 Fourth Avenue P. 0. Box H Seattlr, WA 98101 Burien, WA 98166 362703-1-081-0004 Albertsans Inc McChesney David Henry 4th Cheltenham Prop Inc 22815 100th Avenue West P. 0. Box 20 Edmonds, WA 98020 Boise, ID 83707 362703-1-082-0003 Dc)uglas Oil Co. of California Seattle �brtgage Co. Tax Dept. Readl-967 n a V1- 2nd & University Seattle, WA 98101 6107-002-003-000� -ard F Et Lx Beck How 22925 102nd PI West Edmonds, WA 98020 6107-002-003-0101 14-Donald Corp P. 0. Box 66207 A F M Chare Chicago, IL 60666 6107-002-006-0009 Weiser C A 10032 Edmonds Way Edmonds, WA 98020 6107-002-007-0008 Eng Kai H Dr 4625 84th Avenue S.E. Mercer Island, WA 98046 6107-002-008-0106 Westway Properties Inc. 117 Summit E Seattle, WA 98102 P. 0. Box 2500 Costa Mesa 92626 5-01-8-10 Olson's Leasing Corporation 17525 Hieway 99 Lymwmd, WA 98036 Chevron USA Inc/Prop Taxes P. 0. Box 7611 San Francisco, CA 94120 il CITY OF EDMONDS File Noe0-713�4z EDMONDS,_ WASHINGTON Datet - 3' 0 Fee r) EXHIBIT 2 APPLICATION TO HEARING EWIINER APO - S . / FOR CONDITIONAL USE PERMIT Rect. No. 'it 2,1 la 0 HEARING DATE_SL/J21',� APPLICANT:5.����ADDRESS 0 - Qox �397-SPHONE..774-5138 Seattle Wa Indicate type or degree of interest in the propehy: Owner OWNER: S. S. G - Cnnstruction InC__ADDRESS E� 0 - Flax 33ZM,_SeaffWE.7-Z4--5138— LOCATION OF PORPERTY(ADDRESs) 228 �dmords LEGAL DESCRIPTION OF PROPERTY See attached To be completed by the Planning Division: Use Zone Legal description checked and approved by: 777:�ate VICINITY SKETCH: PLEASE SHOW BELOW A VICINITY SKETCH AS PER EXAMPLE. INDICATING NORTH. Example: I I., 6ue'"r k0?EAT%( -V N CONDITIONAL USE REQUESTED: DETAILS OF PROPOSED USAGE: I store. Representative RELEASE/HOLD HARMLESS AGREEMENT ration for the ;igned applicant. his heirs and assigns in conside The under. plication agrees to releas;, indemnify, defend and City processing the ap for hold the City of Edmonds harmless from any and all damages ind/or claims damages. including reasonable attorneys' fees arising from any action or inaction of the City whenever such action or Inaction"is based in whole or ncomDlete information -furnished by the in part upon false, misleading or i applicant. his agents or employees. PERMISSION TO ENTER SUBJECT PROPERTY The undersigned applicant grants his, her or its permission for public to enter the subject officials and the staff of the City of Edmonds roperty for the purpose of'insuection and n nt his "is P pplication. n ure 0 P�, a ure o PC, cant. Representative 'I've -*go (got) -*Oil= -JnW*4AV -,001 OWNS U0116UNOW Ir --Igoe gne VA@ j 4140J 9JUGM PIAVP -L..o&e-"oMA'W1 E'vi biji v <1 \J X I uj i77777777777-7- 77t7T��� EXHIBIT 5 That portion of Lots 5, 8, and 10, Block 3 of Westgate f, 1, Park, Division No. 1, as per plot recorded in Volume 13 of Plats, page 31 , records of Snohomish County, Washington, described as follows' Beginning at the Northeast corner of said Lot 10; thence South 0? 20' 49" East along the East line of so id -Lots 10 and 8, respectively, which line is also the Wes t -margin of 9th Avenue South, 229.96 feet to the Southeast corner of said Lot 8; thence North 0 it F%� 89P 46' 47 " West a long the South I ine of said Lot 8 a distance of 246.28 fe et to the Norhteast corner of said Lot 5; thence South 00 IS' 25 Eas t a long the Eas t line of said Lot 5 a disto nce of 99. 94 feet to the South 0 east corner thereof; thence North 89 46' 15 "West a long. the South line of said Lot 5 a distance of 33.73 feet; thence North 00 14' 26" East 329.85 feet to the North line at said lot 10; thence South 89P 47' 08" East along said North line 276.69 feet to the point of beginniog; EXCEPT the East 10 feet of Lots 8 and 10, conveyed to the City of Edmonds by Quit Claim Deed recorded City T u no er Aud i tor's File No. 1848370; sit, uate in the of Ed(,�ionds County of Snohomish, State of Washington. EXHIBIT 6 FILE #—CU-38-82 FORM FOR (.Vj(9=/FINAL) DECLARATION OF (116MMM/NONSIGNIFICANCE) Description,of proposal Conditional Use permit for a fill of 1,500 cubic yards for a pirking lot Proponent S.S.G. Construction, Inc. Location of Proposal 22828 100th Avenue West Lead Agency City of Edmonds This proposal has been determined to (bomegnot have) a significant adverse impact upon the environment. An EIS tWis not) required under RCW.43.21C.030(2)(c). This decision was made after review by the lead agency of a completed environmental checklist and other information on file with the lead agency. 13 nelklm nfficial Duane Bowman Po s i ti o n/Ti tl e_ Date 9-10-82 Assistant Qity P Signature -777 ---------- T I ----------- FI 71 <Mml loctnii,-- -3 N 1-1 3N 4p 'T 77 INIHX3 8 1191HX3 -LON 4. PLEASE NOTE: APPLICANT OR REPRESENTATIVE MUST BE PRESENT AT HEARING. EXHIBIT 1 STAFF REPORT TO HEARING EXAMINER FILE #CU-38-82 HEARING DATE: SEPTEMBER 16, 1982 I REQUESTED ACTION: Conditional Use permit for a fill of 1,500 cubic yards for a parking lot. II. APPLICANVOWNER: S.S.G. Construction, Inc. P.O. Box 33978 Seattle, WA 98103 III. LEGAL DESCRIPTION: (See Exhibit 5) IV. STAFF FINDINGS AND CONLCUSIONS: A. Comprehensive Plan Designation: Commercial Business B. Zoning Existing BN Surrounding - North South East West B 7R— -YN— N S-20 ffN BN C. Official Street Map - Proposed Existing East - 100th Avenue West 60'-80' 60'-80' D. DescriDtion of Subject Property and Surrounding Area: The subject properyt is located to the northwest of the intersection of SR104 and 100th Avenue West. The site is located between the Olson's store on the south, the Pizza Hut & cemetery to the north,. the existing Albertson's parking lot on,the west and 100th Avenue West on the east. E. Description of Proposed Action: In March of 1981, the Hearing Examiner granted a Conditional Use permit to the applicant for this exact same fill proposal (File # CU-3-81). Because the applicant failed to act on the granted permit within one year, it has expired and a new application must be made. li4N - PLEASE NOTE: APPLICANT OR REPRESENTATIVE MUST BE PRESENT AT HEARING Exhibit l/File #CU-38-82 �age 2 The proposal is to place 1,500 cubic yards of mate�ial to raise the existing grade of an existing parking lot. ,Changes to the topography will be on the average of 2.5 feet. The existing asphalt will be removed, fill brought in and compacted'and repaved. The grade will change from 1.8% to 2.5%. The remaining 15,375 square feet of undeveloped area is planned for a future retail store. 2. Zoning Ordinance As proposed, this action is consistent with the purposes of the zoning ordinance and district in which this proposal is located. 3. Not Detrimental The proposed action will not be significantly detrimental to the public health, safety and welfare and to nearby private property or improvements. A negative declaration of non -significance has been issued. V. STAFF RECOMMENDATION: Conditions have not significantly changed which would warrant denial of this requested permit, therefore it is the recommendation of the stakf that CU-38-82 be approved subject to the following conditions: 1) The Conditional Use permit should not be transferable. 2) Erosion control plan will need to be submitted and . approved prior to issuance of a grading permit. 3) Drainage plan should conform to the comments circled on I the original Exhibit 8. THIS IS THE PACKET THAT WAS SENT TO 7THE HEARING EXAMINER ON 9-10-82. 7�7 rp EXHIBIT I STAFF REPORT TO HEARING'EXAMINER FILE #CU-38-82 HEARING DATE: SEPTEMBER 16, 1982 1. REQUESTED ACTION: Conditional Use permit for a fill of 1,500 cubic yards for a parking lot. II. APPLICANT/OWNER: S.S.G. Construction, Inc. P.O. Box 33978 Seattle, WA 98103 III. LEGAL DESCRIPTION: (See Exhibit 5) IV. STAFF FINDINGS AND CONLCUSIONS:. A. Comprehensive Plan Designation: Commercial Business B. Zoning Existing - BN Surrounding North South East West BN/RS-20 BN BN ITN C. Official Street Ma - Proposed Existing _p East - 100th Avenue West 60'-80' 60'-80' D.. DescriDtion of Subject Proper y and Surrounding Area: The subject properyt is located to the northwest of the intersection of SR104 and 100th Avenue West. The site is located between the Olson's store on the south, the Pizza Hut & cemetery to the north, the existing Albertson's parking lot on,the west and 100th Avenue West on the east. E. Description of Proposed Action: In March of 1981, the Hearing Examiner granted a Conditional Use permit to the applicant for this exact same fill proposal (File # CU-3-81). Because the applicant failed to act on the granted permit within has expired and a new application must be one year, made. Exhibit l/File #CU-38-82 Eage 2 V _�;O M The proposal is to place 1,500 cubic yards of material to raise the existing grade of an existing parking lot. Changes to the topography I will be on the average of 2.5 feet. The existing asphalt will be removed, fill brought in and compacted and repaved. The grade will change from 1.8% to 2.5%. The remaining 15,375 square feet of undeveloped area is planned for a future etail store. 2. As proposed, this action is consistent with the purposes of the zoning ordinance and district in which this nroposal is located 3. Not Detrimental. The proposed action will not be significantly detrimental to the public health, sa ety and welfare and to nearby private p I roperty or impr vements. A negative declaration of non -significance has een issued. STAFF RECOMMENDATION: Conditions have not significintly changed which would warrant denial of this requested De it, therefore it is the recommendation of the stalf a - 82 be approved subject to the following conditions: 1) The Conditional Use permit should not be transferable. 2) Erosion control plan will need to be submitted and approved prior to issuan e of a grading permit. 3) Drainage plan should con orm to the comments circled on the original Exhibit 8. ;'N Z EXHIBIT 6 FILE #_ CU-38-82 FORM FOR OWN=/FINAL) DECLARATION OF (1)DWYJMM/NONSIGNIFICANCE) ional Use permit for a fill of Description of proposal Condit 1,500 cubic yards for a parking lot. Proponent S.S.G. Construction, Inc. 22828 100th Avenue West Location of Proposal CjtV of Edmonds Lead.Agenc (hwaegnot have) a significant adverse "'W This proposal has been determined to An EIS *Wis not) required under impact upon the environment. ision was made after review by the lead RCW.43 . 21C.030(2)(c). This dec leted environmental checklist and other information on agency of a comp file with the lead agency. e Bowman al Duan Responsible Offici Assistant ity P11an er Position/Title �s 9-10-82 Signature Date Ali RM UTATt !4, NOV 17 W WA*AAAIM DEED 77 Its atio.. for aft- 'A-7 ?�M ORANTOP. ALBICRTSON'S, INC.. a Nevada cO aid, Convey# and nd N./100the Dollar@ (SIG-00) lo be i Wilmington. D*Iawayl- iA titpasid4radaft of Ton a NjlAM pROPERTIE.% INC-- 0 warrants to LTE i.h. State of rotiRTH CHS tote, situated in the County of Sanborn described real 00 t" (01.101FLAS 7. S. I and 10. Block 3 of WO*tgst* Parl"' That Portion Of Lots S' per plat recorded In Volurn* 1) a' plate' page 461 Division No. 1. AohorrA*h County, Washington. described 90 --,L _,q records of 900 31, follow 6: c* North 89* northeast Corner of said Lot 10. than Z76.69 foot to the true beginning at the north line thereof, 47t 06" WOOt along the 65 feet to the 2611 West, Lnnin 329 rth &V 46' 14 g. th*ncs Mosth 0 A I point of bes *r*on -hLch is NO of .,aid Lot 5 at a point th outh*,st Corner thereof. thence South Un* IS,, West. 33.73 (*at from the 9 Lot 5 a distance �th line of said 5,. West along the so North 40' North 59' 46' 1 the southwest comer thereof; thence of 116.61 foot to ZV 05" We*% &long the southwo.t*rly line of said Lots 5 end 7' rgin of Edmond# I hich line to also the northeasterly M& Iz. 5r. East. Z04-19 feet to the w - respocti"IY. w thence North 0 way, 165.47 feet; 99- 47' 08" EA-t Along the th feet to the true end 10- r**Pg north line of *aid Lot 9; thence 11OU jctLv.Iy. ZZ4. 46 ity of Edmond*, north line of said Lots 9 h. C g; situate in the County of Snahomle point of begirmin ftat4 of Washington - it' i�7 -M, 2L SUBJECT TO: uts or fill* upon blic to make necessary "OpOs for C Avenue A. 1. Right of the Pu the reasonable Original grading Of street,. j= property heroin described if' its dgicated in the plat alloys and roads, State of Washington tagolded osorvation conmind*Ln dead from th 2. F, 403140, reserving to the STLOtor all ollgao0s, coal, or*,t, nd -orking under Auditor's TUO NO- 114 the right of entry for opening# developing a he a ml..rLis, foofils. etc.. a R hts shall not be exercised uAtU provision I that such rij %h* *&jm* and providing suotain*d by reason of such entry- m..t of au dome$* been MA46 for fuU Pay and ititsigns. And for the its succatoors - 6", 3. Grantor r*oorvv$ to Itself- ht in hersinbelaw described. the rig joining property. b .. fit Of the seatOrly &4J egress by v0hiculst or pod*AtTiAn And cofnmost with Grxnts* of coutual Lngr000 -*On the promises ry lin WA bet k r sod act*@$ the comajon# adjoining bour traffic ove building . ....... heroin conveyed sod *aid oast*rly adJOIning Property' except where any and further# neither the Grantee nor Grantor thAll erect 4 tnay be to-catod- iw07f:;,- !;3 I. the future barricades or fancoo no. or and to itself. it@ *UCCOO*Ora AND HR easterly adjoining property the right at any time, .(It of the &Ssigoo. and (or the ban od each respectively $hall repair any i.&fter mentioned Party Wall, tOJOLn on4le roopocti" cost and oxpons at *ack damages caused thereby to the her of the Albertson's Food propo rty party wall the easterly wail he a—* r 0 of the. " Id M." build onto And use he thaboreincOavOYOdProm""' Ift ulldootothe paid Coster building situ&M on a future. use. join or &4j*lnng ,,,@rty, now of In th 4&4t4 fly P Mi- -.Tar Potty Wall. "id owner$ shall repair any damage or injury to the Party Wall &filing q thettirom at from such owners' demolishing or removing any building on said "Oterly adjoining property, AND rURTHER. said owners @hall not use the Party Is Wall in any mannor at for any purposes that will damage. injure or in any manner wisuonever &Aversely fifect the building on the property heroin conveyed. Laing property is described &at 3L&A easterly . . . . . . . . . . . 'MF V That portion of Lots 5, S and 10, Block 3 of Westgate Park, Division No. 77_ I a* per plat recorded In Volume 13 of Plate. page 31, records of Sno- 'hornish Co", Washington, described a* follows; Begina1ng at the morthaaot corner of said Lot 10; thence S. O'ZO14911 C., &I*" the east IWA of said Let# 10 and 8, respectively, which line to also the w*ot margin of 9th Avenue S., ZZ9. 96 (cat to the southeast corner of said Lot 4; thence N. 89'46'47" W., along the south line of said Lot 8 a distAnco of 246. Z8 feet to the northeast corner of said Lot 5: thence S. 0'I$'Z5" E., along the east line of said Lot 5 a distance of 99.94 feet to the south*& at corner thereof. thence N. 69'4611511 W., along the south line of said Lot 5 a distance of 33.73 feet; thence N. 0'14IZ6" V., 329.95 (cot to the north line of said Lot 10; thence S. 1g. 49*47'04" E.. along #aid north line, 276.69 feet to the point of boginnir situate in the City of Edmonds, County of SnohorrJoh# State of Washington. . ...... -4. Grantor resorv*f to Itself. its successor& and assigns, and for the honatit of the westerly adjoining property, hersinbelow described, the right in corneown with Grantee of mutual ingress and *gross by vehicular or pedestrian traffic over and across the common, adjoining boundary line between the premises berets conveyed and said westerly adjoining property, except where any building a or way be located. and further, neither the Grantee nor Grantor shall erect any barricades or fencoo now or in the future which will prevent or hinder ouch Ingress aad *gross. Said wooterl y adjoining property to described as: That portion of Lots 7 and 9. Block 3 of W*otgate Park, Division No. I . . . . . . . . . . . . teen as par plat rded in Volume 13 of Plats. page 31, records of Snohomish County, Waohingt*n, described as follows: Beginning at the northeast corner of Lot 10 in said Block 3: thence N. 39* 4700$1* W.. along tko, north line of said Lots 10 and 9, respectively, 501 - 15 toot to a point which I* S. 89*47'08" E.. 175.00 feet from the most westerly said Lot 9 &M the true point of beginning; thence S. 0' 12'52" thence N. 40' W.. 204.19 feet to the southwesterly line of *aid Lot 7. 2310" W.. along the southwesterly line of @aid Loto 1 and 9. respectively, , MOZ,, W whick line to &I** the northoaot*rly margin of Edmonds Way, Z68.92 toot to Um most wtoterly corner of said Lot 9; thence S. 89*47'08" E., aloing the north line of said Lot 9 a distance of 175.00 feet to the true N point of beginning., gituato In the City of Edmonds. County of Snohomish. to of Washington. -.7 N. 4z .2- VOC 70 ;A .2, 71: 7:7.07 _4' A, T Sit %7: I SUDJUCT TOt Ion C in dead from the State of WashinlId the recorded under File -so. 403140, reserving to coal or ", m Lnerals, f0sbilu, etc-, grantor all oil, q0 40, I the right of entry or opening, developing and workln,j the same unLil pro- d d be exercised an proyL Lng that such rights *hall not dam nt of all age& su%tAincd by vL a Ion has bc*n made for full POyrw reason of such entry. 2. Easement for sewcr pipeline with appurtenances, dated October 1966, under Auditor's rile 11, 1$46, and recorded 14overiber 10. the City of Ldmonds, a munLcipal corporation of No. 1911340, to the Statt of Washington, reference to which record is made for further particular*. 1 Agreement contained I FAservation of easement% and Party 1,141 1912640, on povomber 17, d *ad recorded under Auditor's File 140. 4. Subject property is locAt'" d within the corporate limits Of a so a f" tdmond%, and is subject to L.I.D. A mn nt.t 5. *Grantoo agrees not to pirmit# allow, erect or P' lace any build- Ing or structures on the most we I terly herein conveyed triangular 526.15 fact parcel lXLn7 castor ly of a line beginning N $914710S, W of Lot 10, Block 3, and 5 00 12 52' W 20 feet from the NE corner 152 feet to the Northerly boundary of 12152* E and extending S 00* Is not to construct Also n such property grantee agrec 0 izk tdmonds Way. ' tructures in any area lying southerly Of a line, Lay building* or a 7ty, and westerly entirely across 4 uch propel *xtended easterly and lies at &11 points 100 feet south of the most northerly said line boundary of such property. 6. Grant*@ agrees not to permit., allow, erect or pl.&Celany build - herein conveyed real property ying north- I or itructurcs on the ft existing Albertson's grly of & line marking the northerly face Of an lies between that ft*d Cantor building I on adjoining real propIrtyin, is extended S herein convoyei 1, as *a d 1 the above two parcel a uLlding, to a nor of said b 19*47'08* E, from th northeasterly-cor =Z Ninth Avenue South. Z413- 5, Also, Granteo agrees net to permit# allow erect or plAcca Y most easterly he: rein conveyed Pr party ucture on the building or str line herein conveyed 3 !eal property lyLn� southerly of & an the 49, E 100.00 feet and N 69,47,09* W 3o.00 feet beginning 3 001201 9. Block 3 and extending thence N 8 o f Lot 10, from the II.E. cornor thence S 00*20*49' E 30.00 feet hence V 89* 471021 W 130.00 feet Food 47101* W 116-69 feet to the easterly wall of said Al�.ctrtson's Center building. their successors and the owners, 7. Grantee agrees that Grantore cal prop (On of the parcel of r art-/ and assign nd their tenants which the sAlbMson's Food center is located, said property Was Dead to Fourth Cheitenhan.Proper- )n,st Inc. by conveyed by Albert so 15, 1966 and recorded in Snoh6 ish County dated Ilovellaber 1 ties, ;nc. herein conveyed real property Records) lying b tween Washington sp anal tra-ve-IM do &ndjflL411 have an easement for inqre3s,_S91M_ 6pol� the �_C�_vel' and across _i_&na­p-c-d!5Tt-rTXn_trATnL on 3 d __h cul&r an n to an ro E ty .ra. eA ,Kt or utLl easement area a OWY--Mp-eA and an eA n ve ue as the situatioll &Y a, 7 -2- OFFICIAL RECORDS VOL na237 to :U an . .......... L­V, under o.nd service ,no# upon,, over and across the same casement area which I described as the most northerly twenty 120) feet of both of the hor:In conveyed parcels and running their entire *&at -West length, Such vao*ment to subject to Any easements. exception$, reser. vations, rights of way, encumbrances and matters of record. IRS S. Subject to any easernent#, exceptions, reservations, rights o6nd any matters set forth In the Warranty Deed front Albertson'&, Lnc. , a Nevada corporation, to Fourth Cheltenham Properties, Inc. a Delaware corporation, dated the 15th day of November, 1966, and� recorded in Snohomish County Records. 4- rt=e. 9. Grantor hereby gx AR easen ent (or the purpose of utility &ad service lines upon. under over and Across the Westerly parcel of the herein conveyed real property and such to for the benefit of Grantor and the owners, their successors and assigns, and their 44 , N. -4 Tenants of the parcel of real property (on which the Albertson's Food Center is located, and *aid property was conveyed by Deed to Fourth Cheltenham Properties, Inc., dated Novcmbe r 15. 1966, and ricordvd in Snohomish County, Washington Recordol between the herein conveyed real properties, and said easement area is described as follows, to wit: A ton toot easement for utility lines lying five feet on either e aid* of a centerline described as follows: B iginning at a point situated N. 89047' 08" W. . $01. 15 toot and S. 00*12' 52" W., 115'.00 feet from the Northeast J Corns r of Lot 10, Block 3: The nce S. 500 00' 00" W. 58. 00 toot more or less to the Northeasterly boundary of Edmonds .7t, Way and the point of termination. This easement is subject to any easement*, exceptions. reser- vations, encumbrances, rights of way and matters of record, *by Grantor her easement (or electrical utility and !.`rv.. lines and . lawful, li;hted electric business sign upon, over. under and across the easterly parcel of the herein conveyed real property and such to for the benefit of GrAntor, and the 0%-nerm, their successors and assigns, and their tenants of the parcel of real property (on which the Albertson's Food Center is located. and said property -as Deeded by Albortsons Inc. , to Fourth Cheltenham Properties, Inc., dated November 1$, 1966, and recorded in Snohomish County, Washington Records) and said casement area is a ten (10, toot area lying five (5) feet of each side of a centertine described as follows: A ton toot casement lying five feet on either side of a centerl described -a folio-#: Inc Z. - �"N -11- OFFtCIAL RECLWM% Jac 00 NU238 S. An Easement granted to the City of Edmonds for a sanitAry #*.or, as mat forth in an Instrument dated ogtob*r —1 1966, In book 69 page _g i— , official r*cordi'._"*_r the 10 test 01 satriand _h.,-U� 6. Any utility of servico lines that are or may be permitted to serve the bAroin conveyed promises. IN WMNEW WHEREOTo Said corporation has caused this instrument to bo oxacu%t by its PJOPAv Officer and Its corporate seat to be hereunto &(fixed title Jr day of:� 1966. ALDER N4 INC. of By, Atte, atz Seer ta y STATE OT IDAHO 35. County of Ads, 7d 'of On this . day 1966, before me, the undstal#nedo N I an for the ate of Idaho, duly commissioned and sworn, personally pe 'Xad A. L. LYONS. to me known to be th4),Wevidsn9 and Secretary., respectively, of Albertson'*, Inc., the corporation that executed the foregoing Instrument. and Ac:knowlodg*d the said Instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and On oath stated that they are authorized to execute the said instrument and that the seat aLfixed is the corporate Sea I of said corporation - witness my hand and official seat hereto &(fixed the day and year first Z3 abo�* �riton. T S. Ids 6 r se y I d �=o 40.6 lic I- v Residing at Sol.., &ho tA 6 171 4PTCAL K=F" Elea. 70 7..! WIN I'- k CITY OF EDMONDS m 0 No"'TICE OF PUBLIC HEARING THE HEARING EXAMINER WILL HOLD A PUBLIC HEARING THUgSDAy, SEPTEMBER 16, ----19 92, ON THE FOLLOWING APPLICATION: FILE NO.. cu-38-82 CONDITIONAL USE PERMIT FOR FILL IN EXCESS OF 500 CUBIC YARDS PROPERTY ADDRESS AND LOCATION 22828 100TH AVENUE WEST BN ZONE DISTRICT THE VARING WILL BEGIN AT i 7*30—P.M., IN THE COUNCIL CHAMBERS OFT E EDMONDS CIVIC CENTER, 250 FIFTH AVENU?NORTH. IF YOU WISH TO COMMENT ON THIS PROPOSAL, YOU MAY COME TO THE HEARING AND SPEAK. YOU WRITE AJ.ETTER STATING YOUR VIEWS WHICH WILL BE CONSIDERED AT THE HEARING. PLEA8E*AbDRESSTf E LETTER TO THE COMMUNITY DEVELOPMENT DEPARTMENT AND INCLUDE THE ABOVE FILE NUMBER. IF THE ITEM IS CONTINUED TO ANOTHER HEARING BECAUSE THE AGENDA IS NOT COMPLETED, OR FURTHER INFORMATION IS NEEDED, THE DATE OF THE CONTINUED HEARING WILL BE ANNOUNCED ONLY AT THE MEETING. ADDITIONAL INFORMATION MAY BE OBTAINED AT THE COMMUNITY DEVELOPMENT DEPARTMENT, 505 BELL STREET, EDMONDS (PHONE 775-2525, EXT. 100E- THE REMOVAL, MUTILATION, DESTRUCTION, OR CONCEALMENT OF THIS NOTICE BEFORE THE DATE WARNING! OF THE HEARING IS A MISDEMEANOR PUNISHABLE BY FINE AND IMPRISONMENT. THIS NOTICE MAY BE REMOVED AFTER 9-16-82 A IN"RR-OFFICE COMMUNICA", NS DATE FROM TO DAN'SMITH., PLAN/ENG.-:1NSPECTOR PLANNING DEPARTMENT GARY MCCOMA$, FIRE DEPT. i V D CITY September 14, 1982 MEMO TO: Duane Bowman Assistant Planner FROM: Gary L. McComas Fire Marshal SUBJECT: CU-38-82 S.S.G. CONSTRUCTION, INC. After review, the Fire Department has the,following comments: 1. Item 16 of the environmental assessment indicates that a water line will be installed to expand the fire sprinkler system. It is assumed that the -mentioned upgrade will allow expansion to exist- ing Olson's Food Store. 2. An on -site fire hydrant and/or an automatic 4* sprinkler system may be required for the new building. The requirements will be determined after review of construction plans for the new' building. GLM:be 3, '5' CITY OF EDMONDS HARVE H. HARRISON MAYOR CIVIC CENTER - EDMONDS, WASHINGTON 98020 s (206) 775-2525 PLANNING DEPARTMENT DATE: September 17, 1982 TO: Colleen Bette ridge 1425 216th Avenue N.E. Redmond, WA 98052 HEARING EXAMINER AGENDA, TRANSMITTING: SIGNATURE SHEETS,AND STAFF REPORTS FOR HEARING EXAMINER MEETING OF SEPTEMBER 16, 1982 AS YOU REQUESTED: Xxx FOR YOUR INFORMATION: xxx AS WE DISCUSSED: FOR APPROVAL: FOR YOUR FILE: REVIEW AND COMMENT: COMMENT AND RETURN: MINUTES OF 14EETTNG: REMARKS: PLANNING DEPARTMENT DATE: September 17, 1982 TO: Mr. Jim Driscoll Suite 525, Westland Building 100 South King Street Seattle, WA 98104 TRANSMITTING: EXHIBIT LIST, EXTRA EXHIBITS AND SIGNATURE SHEETS, and REVISED EXHIBIT LISTS RE: HEARING EXAMINER MEETING OF 9/26/82 AS YOU REQUESTED: 4i xxx FOR YOUR INFORMATION: AS WE DISCUSSED: FOR APPROVAL: FOR YOUR FILE: REVIEW AND COMMENT: i COMMENT AND RETURN: MINUTES OF MEETING: REMARKS - PLANNING DEPARTMENT M CAIq R>tan;F 4 A kehle, architect 1932 first ave., suite 302 dkdavid seattle, washington 98101 K, [2061 624-9495 RjECEIYED September 23, 1982 2 '683 City of Edmonds Civic Center CITY OF EDMQNDS. Edmonds, Washington 98020 Attn: Mr. Jim Driscoll Hearing Examiner Re: Conditional Use #38-82 quest made at the hearing, Per your re. I am responding to the concerns expressed by Mr. Druniani (Stewarts Drug). Mr. Druniani made several comments relative to safety during construction and the intimidation of his clientel, "mud -flows" across his parking lot, damage to the parking lot stripping, dirt tracking into his store, and access. Before answering these concerns, I would like to point out (as did Mr. Druniani), Albertson's did not close that store until December 1981. The original conditional use and ADB were approved in March 1981, well before they closed. There was no opposi tion from Albertson's at that time nor from Mr. Druniani. I would think Albertson's would have raised questions if*they felt it was detrimental to their business or in conflict with the easement. We looked at several alternate ways to accomplish the project and still provide access and meet the other concerns of Mr. Druniani. We looked at filling one side of the parking lot at a time thereby keeping one'side free for access. While providing some access, we feel it would not provide safety for his clientel nor would this alleviate the intimidation his clientel may feel from the heavey equipment. Furthermore, it would be very difficult to maintain a siltation control program. Dirt would inevitably get onto his parking area. Filling and paving either the North or South side would necessitate 2 seperate move -in �operations for equipment both paving and filling. These two move - ins would cause the project to drag on for at least an additional 30 days ,and would cause substantial added costs to this project. As well, the overlay ,of asphalt in the Olson's lot cannot be done until the north lot fill and paving . are nearly complete. To best answer the major concerns of safety and eliminate the fear of his clientel to construction, and to eliminate the "mud -flow" concerns, we feel Al the only solution is to eliminate access across this project for a time period of from 30 to 60 days. This would enable the contractor to fill in one step and pave in one step. once paving has been done, access will then be normal even prior to curbing and landscaping and striping. 1311)i I 51 iN Page 2 Re: Condtional We # 38-82 Enclosed are scl*emes i,I1,III showing the alternative ideas. Also enclosed, is a letter from Mr. F�ewe, attorney, regarding.the legal issues of easements. It seems only logical that repair,maintenance and improvements to an easement can occur and that during those procedures, some limiting of access must be done. Also, t his is not the only access to Mr. Druniani's store. Additional travel of 2 blocks would be required by only those clientel traveling South Bound on 100th Ave. West. for approximately 30 to 60 days. To solve the greater number of concerns, sch-me III appears to be the best alternative. I trust this will answe r the concerns raised at the meeting and assists 'you in granting this conditional use permit. Sincerely, David Kehle encl. CC: Mr. Morrie Olson SSG Construction Co. Inc. Mr. Pewe Planning Dept. City of Edmonds MON?60MERY, PURDUE, BLANKINSHIP AUSTIN ATTORNEYS AT LAW ROBERT A. PURDUE. P- S- 1515 NORTON BUILDING JOHN 0. BLANKINSHIP, R 8, SEATTLE, WASHINGTON 98104 ALAN r. AUSTIN, P. S. R. GEORGE rERRMR. P. S. AREA CODE 206 GALE 0. SARSEe PETER 0. JARVIS, P. S, 082-7090 GEORGE W� AKERS JERRY W. SPOONEMORE WILLIAM K. GOODWIN M. WAYNE BLAIR LYNN 0. HURST irrrRrY L. PtWt CHRISTOPHER L. HIRST September 23, 1982 James Driscoll, Hearing Examiner Civic Center City of Edmonds 250 Fifth Avenue N. Edmonds, WA 98020 Re: In -the Matter of the Application of SSG Construction, Inc. for Approval of Conditional Use Permit -Original File #CU-81-1; New File #38-82 Our Client, Olson's Leasing Corporation Dear Mr. Driscoll: ALAN L. MONTGOMERY SCOTT 6. MASTER MICHAEL E. GOSSLER CAMILLE TAYLOR RALSTON JAMES H. WISHAAR W. W. MONTGOMERY (1977) WILLIAM MONTOOMERY (1980) CARL a. LUCKZRATM RCTIRCO We are the attorneys for Olson's Leasing Corporation, which is the owner of the property at 22828 100th Avenue West in Edmonds which is the subject of an application by Olson's contractor, SSG Construction, Inc., for a Conditional Use Permit. The specific conditional use sought in the application is permis- sion to place approximately 1500 cubic yards of fill on the currently existing parking lot on the property in order to raise the existing grade of the lot to match the grade of adja- cent property upon which Olson's operates a retail supermarket. When concluded, the filled property would provide additional, more accessible parking for the supermarket as well as parking for proposed retail space to be constructed on the filled lot at some future date. SSG's application was originally filed in early 1981 whereupon a hearing was held before you on March 5, 1981 and you subse- quently granted the Conditional Use Permit subject to certain conditions. Your findings of fact recite that there was no public testimony in opposition to the granting of the permit at the first hearing. Unfortunately, Olson's was not able to undertake the work dur- ing 1981, and when it was prepared to proceed with its develop- ment plan for the site earlier this summer, SSG was required to resubmit the application for Conditional Use Permit in the same form for reapproval through the hearing process. We understand that you recently conducted that hearing, and that on that James Driscoll, Hearing Examiner September 23, 1982 Page 2 F occasion Mr. Henry Drewniany, a tenant on property adjacent to the property to be filled, appeared in opposition to SSG's ap- plication. A sketch showing the location and relative rela- tionship of the two Olson properties and the Drewniany property is attached to this letter. We are informed that Mr. Drewniany's objection to the grant of the permit was based upon the fact that customers of his com- mercial drug and hardware store would be denied ingress and egress to the parking lot of his premises during the time per- iod which SSG was constructing the new land fill parking lot in violation of a mutual easement for ingress and egress contained in his landlord's deed. At the conclusion of the hearing, we understand that you requested the concerned parties to submit additional information and legal authorities to you regarding the effect, if any, which should be given to Mr. Drewniany's objections by you in deciding whether the permit should be granted anew. We are writing to provide you with information on behalf of Olson's and SSG which we believe will justify and compel a decision by you to grant,the conditional use permit. LAND USE CONSIDERATIONS When we learned that the fill project had been dhallenged by Mr. Drewniany on the basis of easements in his landlord's deed, our initial reaction was that considerations relating to the construction and enforcement of consensual easements between adjacent property owners would not be a proper subject of a municipal land use proceeding when the municipality is not a party to the easements and they have not been granted or reserved in response to some particular land use requirement. Stated differently, we believe that the decision to grant or deny a special permit is an administrative or quasi-judicial act which must be determined solely in accordance with the procedures and criteria set forth in the applicable land use legislation, whereas the interpretation and enforcement of easements must be left to a court of equity. our position is supported by 82 Am. Jur. 2d Zoning and Planning 284, wherein it is stated: A board of adjustment [or, as in this case, hearing examiner] may grant or deny a special permit only on the basis of the authority which has been specifically delegated to it by the zoning regu- lations and subject to the standards and limita- tions imposed thereby. I _­__ 4e James Driscoll, Hearing Examiner September 23, 1982 Page 3 . . . [A] board of adjustment may not deny a special permit on grounds which are unrelated to the zoning standards imposed by the ordinance, nor may the board generally impose conditions which are stricter than the requirements of the ordinance under which the board acts. Although we did not have time to obtain a copy of the zoning ordinance for the City of Edmonds, your findings and conclu- sions from the first hearing on SSG's application confirm that the proposed action is con-sistent with the Comprehensive Plan of the City of Edmonds, and that the proposed conditional use permit was consistent with the BN zoning ordinance of the city and meets all applicable requirements of the zoning ordinance. We assume that there has been no change in either the applic- able ordinances or the Comprehensive Plan so that the proposed filf project remains acceptable by their standards. You also concluded after the original hearing that "the pro- posed conditional use will not be detrimental to the public health, safety and welfare and is in conformity with the ad- joining properties and improvements." (Conclusion 6, page 3) Mr. Drewniany is obviously arguing that the interruption of his easement will be detrimental to the public safety since con- struction equipment will be in close proximity to his customers, and that the project will not be in conformity with adjoining properties and improvements. However, if this line of reasoning were accepted, it is obvious that no property improvements would ever be undertaken or approved. Although the easement will need to be interrupted, it will be for a very short period of time, and permitting that interruption will al- low the implementation of safety precautions to isolate the construction area from the traffic to and from Mr. Drewniany's store. The requirement of the zoning ordinance that the pro- ject be in conformity with the adjoining properties must logic- ally be interpreted to mean conformity after completion of the project, and that remains unchanged. The remaining body of legislation which you must consider is of course the State Environmental Policy Act, RCW 43.21C.010 et seg. The declaratory section, RCW 43.21C.010 provides thA : The purposes of this chapter are: (1) to declare a state policy which will encourage productive and enjoyable harmony between man and his environment; (2) to promote efforts which will prevent or eliminate damage to the environment and biosphere; (3) and stimulate the health and welfare of man; Ae James Driscoll, Hearing Examiner September 23, 1982 Page 4 and (4) to enrich the understanding of the ecological systems and natural resources important to the state and nation. Consideration of the purposes of the statute and a review of the Environmental Checklist make it clear that Mr. Drewniany's objection to the temporary loss of his ingress easement during the short period of construction is not the type of concern which can or should be given any weight by you. Quite simply, the temporary interruption of the easement will be very 11short-term," and will have absolutely no short or long-term adverse environmental consequences for Mr. Drewniany or the neighborhood in general. In fact, the new parking lot will enhance the environment a$ it will contain median plantings, whereas the existing parking lot is blacktop only. In addition to the fact that the objection of Mr. Drewniany to the interruption of the easement is not a proper factor for consideration in the hearing process under either the zoning ordinance or SEPA, Mr. Drewniany quite frankly has no standing to assert that objection in any event, whether it be at this hearing or in a court of equity. Mr. Drewniany's landlord and the owner of the property upon which his store is located is Fourth Cheltenham Properties, Inc., and it, rather than Drewniany, is the grantee and beneficiary of the easement across Olson's property. Fourth Cheltenham received notice of both the initial hearing on SSG's application and the most re- cent hearing and did not appear in opposition to the proposed project at either hearing. Mr. Drewniany can only enjoy the easement of Cheltenham Properties as its tenant, and, in the absence of express authorization by the property owner, he has no authority to represent what he believes its interest to be either in this hearing or in any court proceeding. Thus, since Mr. Drewniany did not show that he had been authorized to represent Fourth Cheltenham's interests, it must be assumed that the adjoining property owner has no objection to SSG's application. EQUITABLE CONSIDERATIONS if you rule, as you should, that Mr. Drewniany's objection to the interruption of the mutual easement between the properties is not properly a factor to be considered in this land use pro- ceeding, he still has the option to attempt to pursuade his landlord to commence an action in the superior court to enjoin the project after the conditional use permit is granted. However, even in that forum it is our opinion that Mr. Drewniany's concerns would not be found to be meritorious. The mutual easement for ingress and egress between Olson's property and the Fourth Cheltenham property was established by James Driscoll, Hearing Examiner September 23, 1982 Page 4 and (4) to enrich the understanding of the ecological systems and natural resources important to the state and nation. Consideration of the purposes of the statute and a review of the Environmental Checklist make it clear that Mr. Drewniany's objection to the temporary loss of his ingress easement during the short period of construction is not the type of concern which can or should be given any weight by you. Quite simply, the temporary interruption of the easement will be very 11short-term," and will have absolutely no short or long-term adverse environmental consequences for Mr. Drewniany or the neighborhood in general. In fact, the new parking lot will enhance the environment a$ it will contain median plantings, whereas the existing parking lot is blacktop only. In addition to the fact that the objection of Mr. Drewniany to the interruption of the easement is not a proper factor for consideration in the hearing process under either the zoning ordinance or SEPA, Mr. Drewniany quite frankly has no standing to assert that objection in any event, whether it be at this hearing or in a court of equity. Mr. Drewniany's landlord and the owner of the property upon which his store is located is Fourth Cheltenham Properties, Inc., and it, rather than Drewniany, is the grantee and beneficiary of the easement across Olson's property. Fourth Cheltenham received notice of both the initial hearing on SSG's application and the most re- cent hearing and did not appear in opposition to the proposed project at either hearing. Mr. Drewniany can only enjoy the easement of Cheltenham Properties as its tenant, and, in the absence of express authorization by the property owner, he has no authority to represent what he believes its interest to be either in this hearing or in any court proceeding. Thus, since Mr. Drewniany did not show that he had been authorized to represent Fourth Cheltenham's interests, it must be assumed that the adjoining property owner has no objection to SSG's application. EQUITABLE CONSIDERATIONS if you rule, as you should, that Mr. Drewniany's objection to the interruption of the mutual easement between the properties is not properly a factor to be considered in this land use pro- ceeding, he still has the option to attempt to pursuade his landlord to commence an action in the superior court to enjoin the project after the conditional use permit is granted. However, even in that forum it is our opinion that Mr. Drewniany's concerns would not be found to be meritorious. The mutual easement for ingress and egress between Olson's property and the Fourth Cheltenham property was established by James Driscoll, Hearing Examiner September 23, 1982 Page 5 reservation in the 1968 Deed from Fourth Cheltenham's grantor, Albertson's Inc., which also owned the Olson property at that time. The easement provides: 1'3. Grantor reserves to itself, its successors and assigns, and for the benefit of the easterly adjoining property herein below described [the Olson property], the right in common with grantee [Fourth Cheltenham] of mutual ingress and egress by vehicular or pedestrian traffic over and across the common adjoining.boundary line between the premises herein conveyed and said easterly adjoining property . . . . If However, the rights of an easement holder as against the owner of the easement burdened property are not absolute. In the cas4i of Thompson v. Smith, 59 Wn.2d 397 (1962), the Washington State Supreme Court stated: ordinarily what may be considered a proper use by the owner of the fee is a question of fact and depends largely on the extent and mode of use of the particular easement. Pasadena v. California - Michigan Land and Water Co. 1941 , 17 Ca.2d 576. Lciting other cases] . . . In the Pasadena case the court [stated] (p. 583): the resp ctive rights of the two parties [the city possessing the easement, and the owner of the fee subject to the easement] are not absolute, but must be construed to permit a due and reasonable enjoyment of both interests so long as that is possible Also, in the recent case of Rupert v. Gunter, 31 Wash. App. 27 (1982) a suit for an injunc n restraining the restriction of an easement, the Court of Appeals stated at page 30: "The trial court is vested with a broad discretionary power to shape and fashion injunctive relief to fit particular facts, circum- stances, and equities of the case before it." The facts and circumstances of this case are as follows. Mr. Drewniany's store is located in the former Albertson's supermarket building which faces south towards Edmonds Way and is served by a parking lot with two entrances from Edmonds Way. Located to the east of Drewniany's premises across Olson's parking lot (which Drewniany's customers have no legal right tc use for parking) is 100th Avenue West. Drewniany's store has James Driscoll, Hearing Examiner September 23, 1982 Page 6 no entrances or windows on the east, and customers who come to his store from 100th Avenue West across the Olson's parking lot must drive to the front of his store to park in the lot which is served by the two entrances from Edmonds Way. The temporary interruption of the easement while Olson's parking lot is being filled and resurfaced will last no longer than 60 days, a very short period of time. During that interruption, Drewniany's primary access from Edmonds Way will remain totally unaffected. Any damage to his business during construction would undoubted- ly be very insignificant, and more likely would be totally non- existent. After the improvements are completed, along with improvements to the adjacent Olson's grocery store, Drewniany will be the beneficiary of greater customer traffic to the improved Olson's complex. Requiring Olson's to maintain the access easement during the period of construction would result in unreasonable additional expense to it as some type of stop -gap arrangements would have to be made involving constructing one-half of the new parking lot at a time while keeping the other half open to traffic, thereby resulting in almost twice the expense. In order to en- ter Drewniany's parking lot from Edmonds Way, rather than traveling across Olson's parking lot from its entrance on 100th Avenue West, prospective customers will be required only to drive one block further to make a right turn at the traffic light at the intersection of 100th and Edmonds Way. In considering whether the facts and circumstances justify a brief interruption in the easement over Olson's property, it would also be important for the court to consider the relation- ship between Olson's and Mr. Drewniany. Until the spring of 1982, Drewniany was Olson's tenant in the building adjacent to the Olson property in which the Olson's grocery store is locat- ed. Prior to the expiration of the lease, Drewniany moved from the Olson premises to the building on Fourth Cheltenham's prop- erty, and an action by Olson against Drewniany for breach of the lease is imminent. Further, Drewniany is aware that Olson intends to construct a new building containing retail stores on the property to be filled after completion of the new parking lot, and that such stores may be in competition with his store. Thus, it is apparent that Drewniany will attempt to prevent or delay future competition by subverting the land use hearing process, as he is attempting to do, and may commence an equita- ble action to enjoin the construction of the improvements if that is not successful. In order to accommodate Drewniany during the temporary period which it will be necessary to restrict access over the Olson James Driscoll, Hearing Examiner September 23, 1982 Page 7 property, Olson's is more than willing to erect a sign at the entrance to the property informing potential Drewniany custom- ers of the alternate access to his store from Edmonds Way. Surely no customer's decision to go to Drewniany's store will turn upon whether he or she has to drive one more block. The case of Broadacres, Inc._ v. Nelsen, 21 Wash. App. 11 (1978) involved the owners of Longacres Race Track and an adjoining property owner. Longacres holds a permanent, nonexclusive easement over the adjoining property which is the primary access to the race track., Nelsen, the owner of the adjoining property, leased her land to a third property for a commercial parking operation which would also use the Longacres easement for ingress and egress. Longacres sued to enjoin the use of the easement by Nelsen's lessee, contending that the racetrack had the exclusive use of the roadway during racetrack hours. in iffirming the trial court's decision allowing Nelsen's les- see to use the road, the Court of Appeals held at 15-16: What may be considered a proper use by the serv- ient owner is a question of fact and depends largely on the extent and mode of use of the par- ticular easement. [citing Thompson v. Smith] In — - Er'lginal par - view of the court's finding7that the ties to the easement intended joint use thereof, the track owners cannot prevai:l —simply by proving that Mrs. Nelsen's intended use would "inconven- ience" them. In this situation, Mr. Drewniany's position is substantially the same as Longacres in the Broadacres case. He feels that he has the absolute right not to E-e-ir—nconvienced for a maximum of 60 days which it would take Olson's to improve its parking lot. In view of the alternate and, indeed, primary access to his store which will remain available to his customers, and the agreement of Olson's to place a sign on its property while con- struction is proceeding, his contention that he has an absolute easement at all times is totally unreasonable. If this type , of argument were given credence, many easement burdened propert— could never be improved by their owners. In Rupert v. Gunter, 31 Wn. App. 28 (1982), the Court of Appewl-s--Fco-n—si-a-eir—ecT whether the owner of a servient estate sub jected to an access easement could erect a gate at the entrance to the property where the original grant was silent as to per- mitted restaints. It concluded that the servient owner was entitled to impose reasonable restraints on the right-of-way to avoid a greater burden on the servient owner's estate than that originally contemplated in the easement grant, so long as such James Driscoll, Hearing Examiner September 23, 1982 Page 8 restraints did not unreasonably interfere with the dominant owner's use. Surely it cannot be concluded that the easement in this case was meant to be used as a weapon to prevent the improvement of Olson's property. The restraint proposed by Olson is reasonable in that it will be extremely short-lived and by reason of the fact that reasonable alternative access is available during that period. CONCLUSION .lv, Please accept our apologies for the length of this letter. However, if Olson's is unable to proceed with its proposed pro - sustain great economic damage. ject at this time it will pertinent -A Therefore we wanted to make certain that all of the were before you during your delibera- facts and circumstances permit should be granted. hether the conditional use tions on w In summ ary, our position is: (1) whether or not a mutual easement contained in the deeds for adjoining properties will be affected or limited by the grant of a conditional use permit is not a proper consideration under either the zoning ordinance or SEPA in a land use proceeding if the specific criteria of the legislation are satisfied; (2) whether an easement for ingress and egress can be briefly interrupted by the owner of a servient estate is a question of fact to be determined by a court of equity; and (3) upon consideration of the facts, it is abundantly clear that the inconvenience to Drewniany of the temporary interruption of the easement is minimal compared to the loss wbich would be sustained by Olson if it were not allowed to improve its property, particularly when the inconvenience to Drewniany can be eliminated simply by placing a sign on the Olson property during construction directing his customers to his alternate, primary access. Sincerely, Jeffrey L. Pewe JLP3:mlm cc: Olson's Lease incorporation I LAW OFFICES Of ALLENDOERFER ANC) KEITHLY, INC., P-S- 1322 AVENUE 0 -SUITE a SNOHOMISH. WASHINGTON 90290 JAMES H. ALLINDOIERFZR *RUCK A. KEITHLY GARY W- SMANDSTK"KR S E 198 2Z September 23, 11982 ,1'ry, OF Mr. James M. Driscoll Hearing Examiner City of Edmonds Edmonds Civic Center Edmonds, IKA 98020 I RE: CU 38-82 SSG Construction, Inc* TgLZPHONK' 566-3110 334-1480 ARK^ COD9- (206) Dear Mr. Driscoll: I..represent Henry E. Drewniany, the owner of Stewart's Drugs and Coast to Coast Hardware,. 10117 Edmonds Way, Edmonds, Washington. This property is situated immediately west of the construction site referred to in CU 38-82. By virtue of deed restrictions and easements established Iny documents recorded in Volume 7 at page 638 and volume 198 at page 236 of the records of the Snohomish County Auditor, my client has . a non-exclusive right to continuous, uninterrupted and unobstructed ingress and egress across the proposed construction site. These access rights are of substantial commercial value to my client because they connect his businesses in a convenient and visible manner to 9th Avenue south, and are used by approximately 50 percent of his customers. my client's concerns with the proposed project are as follows: 1. Any disruption of the access easement for grading, reconstruction or landscaping purposes will be a violation of MY client's legal interest therein, unless the affected parties reach a privately -negotiated settlement. The applicant has not contacted my client, and has made no effort to even propose a private agreement on this matter. 2. The proposed project would delete the southerly driveway access onto 9th Avenue South. This particular access point has the most commercial value to my client by reason of its location. its elimination is non-negotiable. 3. The proposed project would place landscaping and parking easement. A modified design of obstructions in the access 4 " to S CC& is a matter which my client s w these improvements 0 Mr. James Driscoll 2 privately negotiate with the applicant. 4. During construction of the project the applicant proposes to temporarily ("for approximately 90 days") totally obstruct my client's access easement. The easement area would be the site of extensive grading, and probably would be a staging and storage area for construction operations and materials. My client is willing to enter into private negotiations with the applicant regarding the establishment of a temporary detour route. Agreement must be reached regarding the location of such a route, its improvement and signing, and the duration of its existence. No action should be taken by the City of Edmonds to approve this project until such a private agreement has been reached. 5. It is probable that the applicant is less sensitive to the concerns and legal rights of my client than it otherwise would be, by reason,of the fact that the applicant proposes to construct a drugstore on its property which would directly compete with my client's drugstore. You are respectfully requested to defer any action on the pending conditional use permit until such time as the private parties have reached agreement on the access issues referred to above. Very truly yours, Ja"e H. Allendoerfer JHA: snr cc: Mr. Henry E. Drewniany ROBERT A. PURDUE, P, S- JO H N 0. BLANKINSHIP. P. & ALAN F. AUSTIN, P. S. R. 0 MORGIC FERRER, P. S. OALED. BARBEE P ETER 0. JARVIS, P- S- GEORGE W. AKERS JERRY W. SPOONEMORE WILLIAM K, GOODWIN M. WAYNE BLAIR LYNN 0, HURST JEFFREY L, PtWt CHRISTOPHER L. HIRST EXHIBIT MONTGOMERY, PURDUE, BLANKINSHIP AUSTIN ATTORNEYS AT LAW 1515 NORTON BUILDING ALAN L. MONTGOMERY SEATTLE WASHINGTON 98104 SCOTT a. MASTER . MICHAEL E. GOSSLER CAMILLE TAYLOR RALSTON AREA CODE 206 JAMES H. WISHAAR 562-7090 W, W, MONTGOMERY 11977) WILLIAM MONTGOMERY (1980) September 23, 1982 James Driscoll, Hearing Examiner Civic Center City of Edmonds 250 Fifth Avenue N. Edmonds, WA 98020 Re: In the Matter of the Application of SSG Construction, Inc. for Approval of Conditional Use Permit Original File #CU-81-1; New File #38-82 Our Client, Olson's Leasing Corporation Dear Mr. Driscoll: CARL s. LUCKERATH RETIRED We are the attorneys for Olson's Leasing Corporation, which is the owner of the property at 22828 100th Avenue West in Edmonds which is the subject of an application by Olson's contractor, SSG Construction, Inc., for a Conditional Use Permit. The specific conditional use sought in the application is permis- sion to place approximately 1500 cubic yards of fill on the currently existing parking lot on the property in order to raise the existing grade of the lot to match the grade of adja- cent property upon which Olson's operates a retail supermarket. When concluded, the filled property would provide additional, more accessible parking for the supermarket as well as parking for proposed retail space to be constructed on the filled lot at some future date. SSG's application was originally filed in early 1981 whereupon a hearing was held before you on March 5, 1981 and you subse- quently granted the Conditional Use Permit subject to certain conditions. Your findings of fact recite that there was no public testimony in opposition to the granting of the permit at the first hearing. Unfortunately, Olson's was not able to undertake the work dur- ing 1981, and when it was prepared to proceed with its develop- ment plan for the site earlier this summer, SSG was required to resubmit the application for Conditional Use Permit in the same form for reapproval through the hearing process. We understand that you recently conducted that hearing, and that on that James Driscoll, Hearing Examiner September 23, 1982 Page 2 occasion Mr. Henry Drewniany, a tenant on property adjacent to the property to be filled, appeared in opposition to SSG's ap- plication. A sketch showing the location and relative rela- tionship of the two Olson properties and the Drewniany property is attached to this letter. We are informed that Mr. Drewniany's objection to the grant of the permit was based upon the fact that customers of his com- mercial drug and hardware store would be denied ingress and premises during the time per - egress to the parking lot of his iod which SSG was constructing the new land fill parking lot in violation of a mutual easement for ingress and egress contained in his landlord's deed. At the conclusion of the hearing, we understand that you requested the concerned parties to submit additional information and legal authorities to you regarding the effect, if any, which should be given to Mr. Drewniany's objections by you in deciding whether the permit should be granted anew. We are writing to provide you with information on behalf of Olson's and SSG which we believe will justify and compel a decision by you to grant the conditional use permit. LAND USE CONSIDERATIONS When we learned that the fill project had been challenged by Mr. Drewniany on the basis of easements in his landlord's deed, our initial reaction was that considerations relating to the construction and enforcement of consensual easements between adjacent property owners would not be a proper subject of a. municipal land use proceeding when the municipality is not a party to the easements and they have not been granted or reserved in response to some particular land use requirement. Stated differently, we believe that the decision to grant or deny a special permit is an administrative or quasi-judicial act which must be determined solely in accordance with the procedures and criteria set forth i.n the applicable land use legislation, whereas the interpretation and enforcement of easements must be left to a court of equity. our position is supported by 82 Am. Jur. 2d Zoning,,.and Planning § 284, wherein it is stated: A board of adjustment [or, as in this case, hearing examiner3 may grant or deny a special permit only on the basis of the authority which has been specifically delegated to it by the zoning regu- lations and subject to the standards and limita- tions imposed thereby . . . . . James Driscoll, Hearing Examiner September 23, 1982 Page 3 [A] board of adjustment may not deny a special permit on grounds which are unrelated to the zoning standards imposed by the ordinance, nor may the board generally impose conditions which are stricter than the requirements of the ordinance under which the board acts. Although we did not have time to obtain a copy of the zoning ordinance for the City of Edmonds, your findings and conclu- sions from the first hearing on SSG's application confirm that the proposed action is consistent with the Comprehensive Plan of the City of Edmonds, and that the proposed conditional use permit was consistent with the BN zoning ordinance of the city and meets all applicable requirements of the zoning ordinance. We assume that there has been no change in either the applic- able ordinances or the Comprehensive Plan so that the proposed fill project remains acceptable by their standards. You also concluded after the original hearing that "the pro- posed conditional use will not be detrimental to the public health, safety and welfare and is in conformity with the ad- joining properties and improvements." (Conclusion 6, page 3) Mr. Drewniany is obviously arguing that the interruption of his easement will be detrimental to the public safety since con- struction equipment will be in Close proximity to his customers, and that the project will not be in conformity with adjoining properties and improvements. However, if this line of reasoning were accepted, it is obvious that no property improvements would ever be undertaken or approved. Although the easement will need to be interrupted, it will be for a very short period of time, and permitting that interruption will al- low the implementation of safety precautions to isolate the construction area from the traffic to and from Mr. Drewniany's store. The requirement of the zoning ordinance that the pro- ject be in conformity with the adjoining properties must logic- ally be interpreted to mean conformity after completion of the project, and that remains unchanged. The remaining body of legislation which you must consider is of course the State Environmental Policy Act, RCW 43.21C.010 et seg. The declaratory section, RCW 43.21C.010 provides tha7t-- The purposes of this chapter are: (1) to declare a state policy which will encourage productive and enjoyable harmony between man and his environment; (2) to promote efforts which will prevent or eliminate damage to the environment and biosphere; U 14-1, -A --'fare of man; k31 and stimulate the ea IN James Driscoll, Hearing Examiner September 23, 1982 Page 4 and (4) to enrich the understanding of the ecological systems and natural resources important to the state and nation. Consideration of the purposes of the statute and a review Of the Environmental Checklist make it clear that Mr. Drewniany's objection to the temporary loss of his ingress easement during the short period of construction is not the type of concern which can or should be given any weight by you. Quite simply, the temporary interruption of the easement will be very solutely no short or long-term "short-term, and will have ab adverse environmental consequences for Mr. Drewniany or the neighborhood in general. In fact, the new parking lot will enhance the environment as it will contain median plantings, whereas the existing parking lot is blacktop only. In addition to the fact that the objection of Mr. Drewniany to the interruption of the easement is not a proper factor for consideration in the hearing process under either the zoning quite frankly has no standing ordinance or SEPA, Mr. Drewnian, to assert that objection in any event, whether it be at this of equity. Mr. Drewniany's landlord and hearing or in a court the owner of the property upon which his store is located is d it, rather than Fourth Cheltenham Properties, Inc., an Drewniany, is the grantee and beneficiary of the easement across Olson property. Fourth Cheltenham received notice Of '? plication and the most re - both the initial hearing on SSG's apI cent hearing and did not appear in opposition to the proposed project at either hearing. Mr. Drewniany can only enjoy the easement of Cheltenham Properties as its tenant, and, in the absence of express authorization by the property owner, he has no authority to represent what he believes its interest to be either in this hearing or in any court proceeding. Thus, since been authorized to Mr. Drewniany did not show that he had represent Fourth Cheltenham's interests, it must be assumed that the adjoining property owner has no objection to SSG's application. EQUITkBLE CONSIDERATIONS as you should, that Mr. Drewniany's objection to if you rule, etween the properties the interruption of the mutual easement b is not properly a factor to be considered in this land use pro - attempt to pursuade his ceeding, he still has the option to rt to enjoin landlord to commence an action in the superior cou conditional use permit is granted. the project after the inion that Mr. n that forum it is our op However, even i erns would not be found to be meritorious. Drewniany's conc The mutual easement for ingress and egress between Olson's property and the Fourth Cheltenham property was established by 0=.� James Driscoll, Hearing Examiner September 23, 1982 Page 5 reservation in the 1968 Deed from Fourth Cheltenham's grantor, Albertson's Inc., which also owned the Olson property at that time. The'easement provides: 113. Grantor reserves to itself, its successors and assigns, and for the benefit of the easterly adjoining property herein below described [the Olson property], the right in common with grantee [rourth Cheltenham] of mutual ingress and egress by vehicular or pedestrian traffic over and across the common adjoining boundary line between the premises herein conveyed and said easterly It adjoining property . . . . However, the rights of an easement holder as against the owner of the easement burdened property are not absolute. In the case of Thompson v. Smith, 59 Wn.2d 397 (1962), the Washington State Supreme Court s ated: ordinarily what may be considered a proper use by the owner of the fee is a question of fact and depends largely on the extent and mode of use of the particular easement. Pasadena v. California- 't-- Ca.2fd576�- phi an Land and Water Co. mcn Itlng ot er in the Pasadena case the court [stated3 (p. 583): of . . . The -respective rights of the two parties [the city possessing the easement, and the owner of the fee subject to the easement3 are not absolute, but must be construed to permit a due and reasonable enjoyment of,,both interests so long as that is possible . . . . Rupert v. Gunter, 31 Wash. App. 27 Also, in the recent case of ction of (1982) a suit for an injunct:�in r�estra�ining�the restri 30: "The Appeals stated at page an easement, the Court of discretionary power to shape broad trial court is vested with a fashion injunctive relief to fit particular facts , circum- and stances, and equities of the case before it." The facts and circumstances of this case are as follows- Mr. Drewniany's store is located in the former Albertson's towards Edmonds Way and supermarket buildinc I which faces south by a lot with two entrances froi-ii Edmonds Way. is served parking Located to the east of Drewniany's Premises across oison's right to parking lot (which Drewniany's customers have no l,egal West. Drewniany s store has use for parking) is 100th Avenue James Driscoll, Hearing Examiner September 23, 1982 Page 6 no entrances or windows on the east, and customers who come to his store from 100th Avenue West across the Olson's parking lot must drive to the front of his store to park in the lot which is served by the two entrances from Edmonds Way. The temporary interruption of the easement while Olson's parking lot is being filled and resurfaced will last no longer than 60 days, a very short period of time. During that interruption, Drewniany's primary access from Edmonds Way will remain totally unaffected. Any damage to his business during construction would undoubted- ly be very insignificant, and more likely would be totally non- existent. After the improvements are completed, along with improvements to the adjacent Olson's grocery store, Drewniany will be the beneficiary of greater customer traffic to the improved Olson's complex. Requiring Olson's to maintain the access easement during the period of construction would result in unreasonable additional expense to it as some type of stop -gap arrangements would have to be made involving constructing one-half of the new parking lot at a time while keeping the other half open to traffic, thereby resulting in almost twice the expense. In order to en- ter Drewniany's parking lot from Edmonds Way, rather than traveling across Olson's parking lot from its entrance on 100th Avenue West, prospective customers will be required only to drive one block further * to make a right turn at the traffic light at the intersection of 100th and Edmonds Way. In considering whether the facts and circumstances justify a brief interruption in the easement over Olson's property, it would also be important for the court to consider the relation- ship between Olson's and Mr. Drewniany. Until the spring of 1982, Drewniany was Olson's tenant in the building adjacent to the Olson property in which the Olson's grocery store is locat- ed. Prior to the expiration of the lease, Drewniany moved from the Olson premises to the building on Fourth Cheltenham's prop- erty, and an action by Olson against Drewniany for breach of the lease is imminent. Further, Drewniany is aware that Olson intends to construct a new building containing retail stores on the property to be filled after completion of the new Parking lot, and that such stores may be in competition with his store. Thus, it is apparent that Drewniany will attempt to prevent or delay future competition by subverting the land use hearing proce * ss, as he is attempting to do, and may commence an equita- ble action to enjoin the construction of the improvements if that is not successful. In order to accommodate Drewniany during the temporary period which it will be necessary to restrict access over the Olson 111 A I James Driscoll, Hearing Examiner September 23, 1982 Page 7 property, Olson's is more than willing to erect a sign at the entrance to the property informing potential Drewniany custom- ers of the alternate access to his store from Edmonds Way. Surely no customer's decision to go to Drewniany's store will turn upon whether he or she has to drive one more block. The case of Broadaqres, Inc. v., Nelsen, 21 Wash. APP- 11 (1978) involved the owners of Longacres Race Track and an adjoining property owner. Longacres holds a permanent, nonexclusive easement over the adjoining property which is the primary access to the race track. Nelsen, the owner of the adjoining property, leased her land to a third property for a commercial parking operation which would also use the Longacres easement for ingress and egress. Longacres sued to enjoin the use of the easement by Nelsen's lessee, contending that the racetrack had the exclusive use of the roadway during racetrack hours. In affirming the trial court's decision allowing Nelsen's les- see to use the road, the Court of Appeals held at 15-16:. What may be considered a proper use by the serv- ient owner is a question of fact and depends ,largely on the extent and mode of use of the par- ticular easement. [citing Thompson v. Smith3 In view of the court's finding tha:. the orig 1 par- ties to the easement intended loint use thereof, the track owners cannot prevaill simply by proving that Mrs. Nelsen's intended use would "inconven- ience" them. In this situation, Mr. Drewniany's position.is substantially the same as Longacres in the Broadacres case. He feels that he has the absolute right not tc�be -inconvienced for a maximum Of 60 days which it would take Olson's to improve its parking lot. In view of the alternate and, indeed, primary access to his store which will remain available to his customers, and the agreement of Olson's to place a sign on its property while con- struction is proceeding, his contention that he has an absolute easement at all times is totally unreasonable. If this type of argument were given credence, many easement burdened properties could never be improved by their owners. In Rupert v. Gunter, 31 Wn. App. 28 (1982), the Court Of Appe7Ei �sco�nsi e�rewhether the owner of a servient estate sub- jected to an access easement could erect a gate at the entrance to the property where the original grant was silent as to per- mitted restaints. it concluded that the servient owner was entitled to impose reasonable restraints on the right-of-way to avoid a greater burden on the servient owner's estate than that originally contemplated in the easement grant, so long as such 01 James Driscoll, Hearing Examiner September 23, 1982 Page 8 restraints did not unreasonably interfere with the dominant owner's use. Surely it cannot be concluded that the easement in this case was meant to be used as a weapon to prevent the raint proposed by improvement of OlBon's property. The rest rt-lived Olson is reasonable in that it will be extremely sho n of the fact that reasonable alternative access is and by reaBO available during that period. �^XTIIT TTC TnM Please accept our apologies for the length of this letter. However, if Olson's is unable to proceed with its proposed pro- ject at this time it will sustain great economic damage. Therefore we wanted to make certain that all of the pertinent facts and circumstances were before you during,your delibera- tions on whether the conditional use permit should be granted. In summary, our position is: (1) whether or not a mutual easement contained in the deeds for adjoining properties will be affected or limited by the grant of a conditional use permit is not a proper consideration under either the zoning ordinance or SEPA in a land use proceeding if the specific criteria of the legislation are satisfied; (2) whether an easement for ingress and egress can be briefly interrupted by the owner of a servient estate is a question of fact to be determined by a court of equity; and (3) upon consideration of the facts, it is abundantly clear that the inconvenience to Drewniany of the temporary interruption of the easement is minimal compared to the loss which would be sustained by Olson if it were not allowed to improve its property, particularly when the inconvenience to Drewniany can be eliminated simply by placing a sign on the Olson property during construction directing his customers to his alternate, primary access. incerely, e e L. Pewe JLP3:mlm cc: Olson's Lease Incorporation siz io4-- flik PARKI N Q Lor SKOCA4 OF P�Ty SueUEI=r F!12A� - A,wo VICAW MY V d<david kehleg architect 1932 first ave., suite 302 seattle, washington 98101 12061 624-9495 September 23, 1982 I City of Edmonds Civic Center Edmonds, Washington 98020 Attn: Mr. Jim Driscoll Hearing Examiner #38-82 Re: Conditional Use Per your request made at the hearing, I am responding to the concerns expressed by Mr. Druniani (Stewarts Drug). Mr. Druniani made several comments relative to safety during construction and the intimidation of his clientel, "mud -flows" across his parking lot, dwage to the parking lot stripping, dirt tracking into his store, and access. Before answering these concerns, I would like to point out (as did Mr. Druniani.), Albertson's did not close that store until December 1981. The original conditional use and ADB were approved in March 1981, well before they closed. *There was no opposition from Albertson's at that time nor from'Mr. Druniani.. I would think Albertson's would have .- raised questions if they felt it was detrimental to their business or in conflict with the easement. We looked at several alternate ways to accomplish the project and still provide access and meet the other concerns of Mr. Druniani. We looked at filling one side of the parking lot -at a time thereby keeping one -,,side free for access. While providing some access, we feel it would not provide safety for his clientel nor would this alleviate the intimidation his clientel may feel from the heavey� equipment. Furthermore, it would be very difficult to maintain a siltation control program. Dirt would inevitably get onto his parking area. Filling and paving either the North or South side would necessitate 2 seperate move -in operations for equipment both paving and filling. These two move - ins would cause the project to drag on for at least an additional-30 days and would cause substantial added costs to this project. As well, tbe overlay of asphalt in the Olson's lot cannot be done until the north lot fill and paving are nearly complete. To best answer the major concerns of safety and eliminate the fear of his clientel to'construction, and to eliminate the "mud -flow" concerns, we feel the only solution is to eliminate access across this project for a time period of from 30 to 60 days. This would enable the contractor to fill in one step and pave in one step. once paving has been done, access will then be normal even prior to curbing and lan&,:�aping and striping.