20110915094208587.pdfBEFORE THE EDMONDS CITY COUNCIL
Regarding the Application of: Applications: R-2005-54
and
ADB -2005-124
Don Drew, Property, Owner
and Ed Lee of the Hotel Group
1. PROCEDURAL HISTORY
1.1 Applications to rezone certain real property located on Sunset Avenue North in
the City of Edmonds, Washington were filed by Don Drew, property owner, and Ed Lee of the
Hotel Group. Two applications were filed. Application R-2005-54 is an application to rezone
the property from a single-family zone (RS -6) to Master Planned Office and Residential
(MPOR). This application was consolidated with application ADB -2005-124 for design
approval for development of the site. In addition, the application utilized a contract rezone as the
method to request approval of a master plan in accordance with the provisions of ECDC
16.77.020(G)(5). Although consolidated for review, each application was considered on its own
merits, as either a quasi-judicial or legislative decision respectively.
1.2 This matter came on for hearing before the Edmonds City Council on a closed
record review on November 22, 2005. The consolidated applications came to the City Council
with a recommendation of approval by the Architectural Design Board with regard to the design
review criteria but expressing reservations regarding the rezone. The Planning Board
recommended approval of the master plan by contract rezone and rezone of the property to the
MPOR category.
1.3 At the outset of the meeting, the Mayor conducted an Appearance of Fairness
Doctrine review with Councilmembers. Councilmember Jeffrey Wilson recused himself.
Following other challenges noted in the record, no other member of the Council nor the Mayor
stepped down.
1.4 Following deliberation, a motion to approve the rezone failed to receive a
majority vote on a three/three tie. Because rezones are implemented by ordinance, the City
Attorney advised that the Mayor could not vote on an ordinance pursuant to the provisions of
RCW 35A.12.100. Therefore, the Mayor did not cast a tiebreaking vote. Ordinances require the
affirmative vote of a majority of the Council for passage. RCW 35A.12.120.
1.4.1 The City Attorney advised that a tie vote did not constitute approval of the
application, indicating that the status of the decision on the rezone was "over" but requested
additional time to research how findings would be adopted pursuant to the requirements of state
statute.
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1.4.2 Following research, the City Attorney recommended that the City Council
continue its deliberation in order to clarify the record. He noted to the Council that other
motions were available to it such as a motion to deny, a motion for conditioned approval or a
motion for remand. Those motions were not considered by the Council and therefore, the record
was unclear regarding the final status of the application.
1.5 Following additional notice to the public and parties of record, the City Council
continued its deliberation on December 6, 2005. Additional challenges to the participation of the
Mayor and Council were made but no councilmember nor the Mayor recused himself.
1.6 A motion to approve failed by a vote of three to three.
1.7 A motion to remand died for a lack of second.
1.8 A motion to deny failed three to three.
1.9 A motion to declare an impasse directing the City Attorney to prepare factual
findings reflecting the positions of the various Council factions and the procedural history of this
matter eventually passed.
04WOL1013 1121WIS► _ :_►
Pursuant to the provisions of ECDC 20.100.030(C) and state law, the City Council is
required to announce a decision and to adopt written findings of fact and conclusions of law.
Because the City Council was unable to reach a majority decision, the application for rezone
fails. As will be noted below, the application for Architectural Design Board approval requires a
finding that the design complies with the provisions of the zoning ordinance. Because the
application for rezone was not approved, this required finding could not be made and the
Architectural Design Board approval failed on that basis, that is, failure to comply with the
provisions of the zoning ordinance. These decisions were considered in the Council's quasi-
judicial capacity. The decision to approve a contract rezone is a legislative decision and
considered in that capacity.
3. CONSOLIDATED FINDINGS OF FACT
3.1 A consolidated application to rezone certain property located in the 100 block of
Sunset Avenue North and legally described in the application was made for approval of a
contract rezone, master plan approval and design review approval. The subject site consists of
four lots located on the west side of Sunset .Avenue North, south of Bell Street.
3.2 ECDC 16.77.020(G)(5) requires adoption of a master plan in conjunction with
approval of the rezone. A master plan may be proposed either by a master plan adopted as a
comprehensive plan element or through a contract rezone. The applicant proposed a contract
rezone. During the closed record review, the applicant's representative indicated that the
proposed contract presented by the applicant represented the full extent of the changes and
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compromise that the applicant was willing to make with its design in order to comply with the
recommendations of the Architectural Design Board.
3.3 The Council's consideration of the contract is a legislative decision.
3.4 The consolidated application included a design review proposal for a two-story
office and residential building with a basement parking garage.
3.5 The design of the building is generally a pleasing one with creative provisions for
landscaping and public spaces. As noted previously, this portion of the consolidated application
was considered as a quasi-judicial decision and denied solely because the property was not
rezoned to the MPGR zone. Therefore, the application was not in compliance with the current
single-family zoning and not in compliance with the current zoning ordinance.
4. A. ALTERNATIVE FINDINGS FOR APPROVAL
OF
THE CONTRACT REZONE AND REZONE APPLICATION
The following findings reflect the rationale stated by those Councilmembers. In order to
approve a rezone, the application must comply with the provisions of ECDC 20.40. In addition,
because of the unique nature of this master plan ordinance, the application must also comply
with the criterion of ECDC 16.77.020 incorporated pursuant to ECDC 20.40.010(B).
4.A.1 Three members of the City Council voted to approve the application to rezone the
property.
4.A.2 The criterion of ECDC 20.40.010(A) are met: the proposal complies with the
comprehensive plan. The applicant applied for and received a comprehensive plan amendment
and the comprehensive plan was amended to specifically incorporate provisions for master plan
office and residential properties at the specified location.
4.A.3 The criterion of ECDC 20.40.010(B) is met; the application complies with the
zoning ordinance. Analysis of this criterion requires review of both the rezone criterion of
ECDC 20.40.020 and of ECDC 16.77.020 relating to the MPOR zone and incorporated master
plan. The following findings relate to ECDC 16.77.020:
4.A.3.1 Design. The design of the proposed development is pleasing and
its architectural features promote appropriate transition between zones. While the ADB had
certain reservations regarding the design as it related to the zoning ordinance, it approved the
design.
4.A.3.2 Density. The proposed density of eleven units per acre complies
with the maximum set density of 29.2 dwelling units per acre established by ECDC 16.77.020(B)
for multi -family development.
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4.A.3.3 Height. The maximum proposed of 25 feet (as calculated with roof
top equipment) is at the maximum and therefore complies with the requirements of ECDC
16.77.020(C). No height reduction as a technique for transition is proposed.
4.A.3.4 Transition. At least three of the techniques set forth in ECDC
16.77.020 must be met. All four of the techniques have been employed.
4.A.3.4.1 Setbacks. The proposed setbacks of ten feet from the street
and six feet from adjacent properties with additional setbacks at the upper stories are greater than
those provided for the adjacent zones and provide an adequate transition from the more
intensively zoned commercial zone to the south to the single-family zoning to the north.
4.A.3.4.2 Building Height and/or Massing. No additional building
height limitation is proposed. As the Architectural Design Board notes in its recommendation,
the "building undulation and architectural vocabulary" are desirable. Given the lack of
specificity regarding building mass, the City Council finds that the architectural modulation and
other features (see below) provide for an adequate transition between neighboring zones.
4.A.3.4.3 Lot Coverage. The proposed lot coverage of 66 % provides
an adequate transition from the 100 % lot coverage to the south to the 35 % lot coverage to the
north.
4.A.3.4.4 Landscaping Features Visible to the Public. The proposed
project provides for courtyards and landscaping which helps transition from the commercial area
to the south to the single-family area to the north creating an impression of a number of buildings
rather than one single building.
4.A.3.4.5 Therefore, the Council concludes that the techniques
provide a "logical" transition from the commercial property to the south to the residential
property to the north.
4.A.3.4.6 Contract Rezone, paragraph 2B. The contract rezone
contains elements sufficient to satisfy the criteria of ECDC 16.77.020.
4.A.4 The following criteria relate to the approval of a rezone under ECDC
20.40.010(B):
4.A.4.1 Surrounding Area. The City Council finds that the primary
purpose of the zone is to provide a transition from intensely developed commercial area to the
south with 100 % lot coverage and no setbacks to a single family residential property to the
north. The proposal satisfies the purpose of transition and therefore protects and buffers the
surrounding areas.
4.A.4.2 Changes. Because this proposal implements a change in the City's
Comprehensive Plan, no changes in circumstances is required. Save Our Rural Environment v.
Snohomish County, 99 Wn.2d 363 (1983).
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4.A.4.3 Suitability. The property has been undeveloped since 1956 due in
large part to its unique location and circumstances. It is located atop a steep bluff immediately
adjacent to railroad right-of-way. The impacts from train traffic, its proximity to the adjacent
commercial areas and other factors, particularly the long period in which the property has laid
undeveloped clearly indicate it is not economically or physically suited for its current
designation as single-family residential property. The Council finds that the proposal provides a
suitable transition from the commercial area to the residential area, providing adequate
protections to both adjacent zones.
4.13. ALTERNATIVE FINDINGS TO DENY
Three Councilmembers voted to deny the application. The following alternative findings
reflect the rationale stated by these Councilmembers at the hearings.
4.13.1 Comprehensive Plan The criterion of ECDC 20.40.010(A) are met: the proposal
complies with the comprehensive plan. The applicant applied for and received a comprehensive
plan amendment and the comprehensive plan was amended to specifically incorporate provisions
for master plan office and residential properties at the specified location.
4.13.2 Compliance With Zoning Ordinance.
4.13.2.1 Compliance with ECDC 16.77.020.
4.13.2.1.1 Design: The recommendation of the Architectural Design
Board regarding design approval was conditioned by the Board's concerns regarding setback and
massing. Those comments are reflected in the findings below.
4.13.2.1.2 Density. The proposed maximum density of 11 units per
acre meets the limit of 29.3 dwelling units per acre established by ECDC 16.77.020(B) for multi-
family projects.
4.B.2.1.3 Height: The proposed maximum height of the project
complies with the maximum set for structures in the MPOR zone. It does not, however, offer
any limitation in height in order to provide for transition. See Findings 4.B.2.1.4.2 below.
4.13.2.1.4 Transition. The project must provide a transition from the
commercial zone to the south to the residential property to the north. Three out of four of the
techniques required to be included in the project. The Council concludes that adequate transition
techniques are not employed. Therefore, the application fails to meet the requirements of the
ordinance.
4.13.2.1.4.1 Setback The setback proposed of six feet at ground
level with additional setbacks at the upper floors, while greater than that of the adjacent
properties, does not provide a logical transition. The Council finds that the Architectural Design
Board's concerns regarding an adequate transition are valid. While the setbacks are greater than
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those of adjacent zones, the ordinance requires that the transition be judged in terms of the
transition which is appropriate to the site location and its relationship to the adjoining street
frontage or streetscape. Given the massive commercial building to the south, the long unbroken
design of the proposed building, while modulated, is clearly one building and not in scale with
the residential streetscape to the north. Therefore, the Council finds that the first technique of
utilizing setbacks has not been adequately utilized to promote transition.
4.B.2.1.4.2 Height and/or Massing: Building. No building
height limitation has been proposed. While design techniques have been imposed to lessen the
impact of the massive structure, the building itself remains massive and unbroken. Therefore,
the Council finds that no adequate technique to mitigate massing has been proposed. This
conclusion is based upon both the Architectural Design Board's additional recommendation and
the plain meaning of the word "massing." As the applicant notes in its report of September 26,
2005 (Attachment 3) the design elements are intended to provide for an "apparent decrease" in
the mass of the building. (Emphasis added.) The building remains relatively massive when
compared with the neighborhood to the north and unbroken regardless of its modulation. The
Council therefore finds that neither height reduction nor adequate massing techniques have been
utilized.
4.B.2.1.4.3 Lot Coverage. At 66 %, the lot coverage does not
provide a reasonable transition from the 100 % to the south to the 35 % lot coverage to the north.
4.B.2.1.4.4 Landscaping Features Visible to the Public. The
project complies with the landscaping feature requirement. Its courtyards, open spaces and
decorative landscaping provide a pleasing transition. This, however, is the only one of four
techniques which have been adequately employed.
4.13.2.2 Compliance with ECDC 20.40.020. The master plan is proposed
to be adopted pursuant to contract rezone. Key elements needed to restrict construction, notably
setback and lot coverage, are not specifically set forth in the contract rezone agreement. Rather
the contract rezone agreement incorporates the design by reference. The proposed contract
rezone's provisions 2A and 2B require only that the final design "substantially conforms" to the
design approved in the contract rezone and specifically permits amendments to the design by
either the staff or the Architectural Design Board or other code processes. The Councilmembers
in favor of denial found that the contract rezone, therefore, does not provide adequate protections
to ensure that the contractual commitment of the applicant to the proposed setbacks, design
elements and lot coverage in a way which assures that code criteria will be complied with in final
development. Further, as written, the contract would permit approval of amendments to a
contract rezone without the hearings, procedures and notifications required of a contract rezone
by law and ordinance. Therefore, as a legislative decision, the Councilmembers in favor of
denial find that the contract rezone does not contain adequate protections and may be amended
by a process other than by amendment of the contract rezone process, thereby undercutting
compliance with the MPOR zone requirements. The applicant specifically declined to make
further changes in its contract proposal.
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4.13.3 Surrounding Area. The primary purpose of the zone is to provide a transition
from an intensely developed commercial area to the south with 100 % lot coverage and no
setbacks to a single family residential property to the north. The proposal fails to satisfy the
purpose of transition and therefore protects and buffers the surrounding areas.
4.13.4 Changes. Because this proposal implements a change in the City's
Comprehensive Plan, no changes in circumstances is required. Save Our Rural Environment v.
Snohomish County, 99 Wn.2d 363 (1983).
4.13.5 Suitability. The property has been undeveloped since 1956 due in large part to its
unique location and circumstances. It is located atop a steep bluff immediately adjacent to
railroad right-of-way. The impacts from train traffic, its proximity to the adjacent commercial
areas and other factors, particularly the long period in which the property has lain undeveloped
clearly indicate it is not economically or physically suited for its current designation as single-
family residential property. Councilmembers in favor of denial believe that additional
adjustments to the comprehensive plan and/or the current MPOR zone may be in order to
provide development opportunities beyond single-family residential use.
5.1 The City Council is required to announce a decision in this matter. With regard to
the rezone application, a quasi-judicial decision of the Council, the Council deadlocked
three/three and the application therefore failed to receive a majority vote in favor of the
application. The application must therefore be deemed to be denied.
5.2 The decision to approve the contract is a legislative decision of the Council. In its
legislative capacity, the City Council again deadlocked three to three. The contract rezone is not
approved as a legislative decision of the Council.
5.3 The consolidated application for architectural design review is denied as a quasi-
judicial decision on the basis that the property was not rezoned to the MPOR zone. The design
application, which is required to comply with the zoning district in which it was located, does not
therefore comply with that requirement.
5.4 The consolidated applications are accordingly denied.
DONE this M01 day of UCAY11kA, r\1
v 1 , 2006.
CITY OF EDMONDS
By:
May r Gar as enson
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ATTEST/AUTHENTICATED :
By:
Sandra S. Chase, City Clerk
APPROVED AS TO F
By:
W. Scott Snyder, City Attor
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