Breske_HE_Decision.pdf1,7 1 Sgv
CITY OF EDMONDS GARY NAAKENSON
MAYOR
121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221
HEARING EXAMINER
In the Matter of the Appeal of )
Donna and Fred Breske j
Of an Administrative Interpretation )
NO. AP -08-2
Breske Appeal
FINDINGS, CONCLUSIONS,
AND DECISION
SUMMARY OF DECISION
The appeal of the City of Edmonds Public Works Department's interpretation that Edmonds
Community Development Code (ECDC) 18.30.060.A. La requires any development of Lot 1 of
the Plat of Preview Homes Westgate Village to control stormwater runoff currently entering Lot
1 from the other Iots of the plat is DENIED. The City's interpretation is affirmed.
SUMMARY OF RECORD
Request:
Fred and Donna Breske appeal the City of Edmonds Public Works Department's determination
that ECDC 18.30.060.A. La requires any development of Lot I of the Plat of Preview Homes
Westgate Village to control all stormwater runoff currently entering the site from the other lots in
the plat. Lot 1 is located at 9330 —21 a Place SW, in Edmonds, Washington.
HegdM Date:
The City of Edmonds Hearing Examiner conducted an open record hearing on the request on
July 17, 2008. The matter was continued to August 5, 2008 for completion of presentations.
The Hearing Examiner conducted a site visit prior to the hearing.
Testimony
At the open record hearing, the following individuals presented testimony under oath:
1. Don Fiene, City Consultant
2. Noel Miller, Public Works Director
3. Ed Sibrel,
4. Jeanie McConnell
5. Donna Breske, Appellant
6. Fred Breske, Appellant
' Appellants verbally agreed on the record on August S, 2008 to extend the decision due date by five business days
and agreed to waive putting the extension in writing. Testimony of Ms. Breske.
Findings, Conclusions, and Deecision
City of Edmonds Hearing Examiner
Breske Appeal, No. AP -08-2
Incorporated August 11, 1890
Sister City - Hekinan, Japan
page 1 of 16
Zach Lell, Ogden Murphy, represented the City of Edmonds.
Richard Gifford, Attorney, represented the Appellants.
Exhibits:
At the open record hearing the following exhibits were admitted into the record:
1. Engineering Division Staff Report, dated July 8, 2008, with the following attachments:
1. Title Report & LLC
2. Zoning and Vicinity Map
3. Applicants Appeal with Associated Maps, Correspondence and Shell Creek Sub -
Basin Analysis prepared by Donna Breske on March 31, 2008.
4. Applicant's Request to Postpone Hearing Examiner Meeting
5. Notice of Application and Hearing
6. Affidavit of Notice
A. Mailing
B. Posting
C. Publication
7. Edmonds Community Development Code Section 18.30
8. Preview Homes Westgate Village Plat Documents
A. - 4.
9. Building Permit Application #1 Correspondence and Associated Documents
A. - GG.
10. Correspondence in between Application #1 and Application #2
A. - C.
11. Building Permit Application #2 Correspondence and Associated Documents
A. - V.
12. Snohomish County Real Estate Tax Records
A. 1993 Tax Year - $1000
B. 1994 Tax Year - $1000
C. 1995 Tax Year - $1000
D. 1996 Tax Year - $1000
E. 1997 Tax Year - $1000
F. 1998 Tax Year - $1000
G. 1999 Tax Year - $1000
H. 2000 Tax Year - $1000
L 2001 Tax Year - $1000 (assumed)
J. 2002 Tax Year - $1000
K. 2003 Tax Year - $1000
L. 2004 Tax Year - $1000
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Breske Appeal, No. AP -O8-2
page 2 of 16
M. 2005 Tax Year - $1000
N. 2006 Tax Year - $1000
O. 2007 Tax Year - $200,000
P. 2008 Tax Year - $220,000
13. Shell Creek Stream
A. Shell Creek Stream Bank Erosion Photo
B. Shell Creek Stream Restoration Project Plan & Details
C. Pentec Report — Edmonds Stream Inventory and Assessment
14. City of Edmonds Watershed Map
15, Storm Water Management & Erosion Sedimentation Control Handout #E72
16. 1992 Department of Ecology Manual, Chapter 1-2
17. National Pollutant Discharge Elimination System (NPDES)
18. Field Inspection Report —1213107 by Edward Sibrel
19. Overflow Drainage System Plan & Profile
20. Preview Homes Westgate Village Surface Water Flows
21. Technical Review Committee
A. Planning Division Review
B. Public Works Department Review
22. Preview Homes Westgate Village Annexation into the City of Edmonds
23. Area Topography Map
2. Appellants' submittal (a binder), consisting of the following attachments:
1. Prelude/BriefOverview (11 pages of figures, maps, and text)
2. Recorded covenant in City files (four pages of photocopied documents)
3. City Policy #E72 (11 pages of text and figures)
4. Requirements of the 1992 DOE Manual (excerpts, 13 pages marked by Appellants)
5. Mitigation proposal and best available science report (12 pages of correspondence,
excerpts, and text)
6. Shell Creek Upstream Basis Analysis (six pages correspondence, 25 page report
entitled "Shell Creek Sub -Basin Analysis")
7. Other projects in the City that have diverted flows once developed (27 pages of
copies of map sections and text)
8. Summary of Appellants' presentation (three pages)
9. Statement of Qualifications, Ms. Donna Breske
3. Written comments of Richard Gifford, Attorney for Appellants, dated July 17, 2008m,
with the following attachments:
Findings, Conclusions, and &cision
City of Edmonds Hearing Examiner
Breske Appeal, No. AP -M-2 page 3 of 16
a. Figure entitled "Schematic of City Stormwater Improvements Affecting Breske,
Lot 1, Plat of Westgate Village"
b. Two-page excerpt from Edmonds Community Development Code (ECDC) 18.30
c. City of Edmonds Development Information Policy #E72
4. Affidavit of Eric Thuesen, signed July 17, 2008
5. Figure entitled: "Bubble -Up" Catch Basins
6. Written comments of Richard Gifford, dated August 5, 2008
7: Affidavit of Eric Thuesen, signed August 5, 2008
8. Building Permit Application File 2007-0251, submitted by Appellants and containing the
following:
a. Building application acceptance memorandum from City of Edmonds, Plan
Review No. 20070251; dated February 28, 2007
b. Grading Quantity Worksheet, dated January 22, 2008
c. City of Edmonds Energy & Ventilation Residential Compliance worksheets, dated
received February 28, 2007 (five pages)
d. Exterior Elevations Plan Set, by Impression Design, dated received March 6, 2007
(six sheets)
e. Retention/Infiltration Sizing Report, BLD2007-0251, dated January 21, 2008
f Standard Detention System Worksheet, dated received February 28, 2007 (one
page 8.5x11)
g. Grading Quantities figure, dated February 26, 2007 (one sheet 11x14)
h. Site Plan and Drainage, dated February 26, 2007 (36x24, two sheets)
i. Site Plan & Drainage, resubmitted dated January 24, 2008 (36x24, two sheets)
9. Written cornments of Fred Breske, dated July 16, 2008 (three pages), with the following
attachments:
a. Storm Drain System Survey, dated November 15, 2006 (36x24, one sheet)
b. Critical Areas Determination, from City of Edmonds, dated January 23, 2007
(three pages)
c. Site Map (pin Pile design) depicting detention system Appellants allege is being
required by City, with hand drawn remarks by Mr. Breske (one page)
d. Excerpt from ECC 18.30.060 (one page) and map entitled "City of Edmonds
Infiltration Feasibility Map" (undated, one page 8.5x11)
e. Copy of color photograph with caption: `Catch basin on 9P, December 2006'
10. Maintenance history of storm drains at 9331— 2le Place SW: one 8.5x11 map showing
storm drains in Westgate Village, with 8 screen print outs of maintenance history, offered
by the City
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Breske Appeal, No. AP -08-2
page 4 of 16
Legal briefing/memoranda:
• City's memorandum of authorities, dated August 5; 2008, prepared by Noel Miller,
Public Works Director, and Duane Bowman, Development Services Director, with the
assistance of Counsel, Zack Lell, dated August 5, 2008
• Supplemental Memorandum of Applicants/Appellants, prepared by Richard Gifford,
dated August 5, 2008
Issue on Appeal:
Whether the City incorrectly required Appellants' single-family residential project
to provide stormwater runoff control consistent with the "no net increase"
standard established at ECDC 18.30.060.A- La.
Relief Re uested:
Appellants request the following relief.
1. That the Examiner conclude that the only stormwater controls required for development
of Lot 1 are established in City's Policy #E72;
2. That the Examiner conclude that Lot 1's restriction to use as storm drainage facility was
lifted when the City installed drainage improvements connected to Lot 1;
3. That the Examiner direct the City to approve the pending stormdrainage plan and —
assuming compliance with other requirements -- to issue the single-family residential
building permit;
4. That the Examiner direct the City to reimburse the second building permit application
fee, which Appellants paid under protest.
Upon consideration of the testimony, arguments, and exhibits submitted at the open record
appeal hearing, the Hearing Examiner enters the following findings and conclusions:
.Introduction:
1. Donna and Fred Breske (Appellants) contest the City's interpretation of Edmonds
Community Development Code (ECDC) 18.30.060.A. La. Appellants proposed a
stormwater management system in conjunction with a building permit application for
single-family residential a structure at 9334 218th Place SW, in Edmonds, Washington
The proposal did not address stormwater that currently drains into the site from
surrounding parcels, but only addressed runoff from proposed new impervious surfaces,
The City determined that any development of the site must comply with the "no net
increase" standard pursuant to ECDC 18.30.060.A.1.a. Appellants contend that this is the
incorrect standard to be applied to their proposal, which should instead be required to
comply only with the detention sizing requirements of Policy #E72. Exhibit], page 1;
Exhibit 1, Attachment 3; Exhibit 1, Attachment 8, Exhibit 3, Appellants' Appeal
memorandum.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Breske Appeal, No. AP -08-2 page 5 of 16
Background: Undisputed Facts:
2. The subject property is Lot 1 of the Plat of Preview Homes Westgate Village', located
northeast of the Westgate neighborhood in Edmonds. The 20 -lot plat, referred to in these
findings as "Westgate Village", received preliminary plat approval from Snohomish
County and was filed for recording under Snohomish County Auditor's File number
1473491 on July 24, 1961. The area containing the plat was annexed by the City of
Edmonds on September 5, 1961. Exhibit 1, page 3; Exhibit 1, Attachment 22; Exhibit 1,
Attachment 8A.
3. Westgate Village is located approximately 0.7 miles from Shell Creep, which is a
salmonid -bearing stream in Edmonds. As stated in the Engineering Division Staff
Report,
Shell Creek has experienced visible stream bank erosion at Yost Park and further
downstream locations west of 9* Avenue North. In 1990, the City of Edmonds
completed significant stream bank stabilization improvements along Shell Creek
between 9a` Avenue and Sprague Street to address the erosion problem. This
undertaking included installation of several v -notch weirs to facilitate fish passage.
Pentec Environmental prepared a Stream Inventory and Assessment for the City of
Edmonds, dated July 29, 2002, which confirms recent spawning activity in lower
Shell Creek and indicates the likely presence of resident cutthroat throughout many
sections of the creek.
Exhibit 1, page 3; citing Exhibit 1, Attachments 14, 13A; 13B; and 13C.
4. Topographically, Lot 1 is a relative low area that has functioned as a drainage repository
for runoff from the rest of Westgate Village since at least the time of preliminary plat.
The dedication on the face of the preliminary plat map states:
Know all then by these presents that we, the undersigned owners in fee simple do
hereby declare this plat and dedicate to the use of the public forever all roads and
ways shown hereon... The County, or its successors, shall continue to have the right
to drain said roads and ways over and across any such lot or lots where water might
take a natural course after said roads and ways are graded in. No land drainage shall
be diverted to public road rights-of-way, nor shall it be blocked from draining along
its normal course. Any enclosing of drainage waters in culverts or drains, or
rerouting across lots shall be done by and at the expense of the land owner.
Exhibit 1, Attachment 8A.
2 The legal description of the subject property is Lot 1 Preview Homes Westgate Village, According to the Plat
thereof} recorded in Volume 20 of Plats, Page 20, Records of Snohomish County, Washington, [slituate in the
County of Snohomish, State of Washington. It is also known as Snohomish County talc parcel no. 005476-000-001-
00. Exhibit ],page 3.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Breske Appeal, No. AP -08-2 page 6 of 16
5. Correspondence and other documentation in the record show that the original developer
Bjorn Thuesen intended Lot 1 to serve as a storm water collection area for the 19 other
lots in the plat and that Snohomish County included this arrangement as a condition of
plat approval. Before the final plat was accepted by the City of Edmonds after
annexation, completion of the public rights-of-way was required, including
improvements pertaining to the use of Lot i as a dry well/catch basin for all other lots in
the plat. Several documents in the record from this time period specifically refer to Lot 1
as a drainage facility and as unbuildable. Exhibit 1, Attachments 8H, 8J, 8X 8L, and 80.
6. During the 1970% Bjorn Thuesen applied for a building permit for a residential structure
on Lot 1. The City informed Mr. Thuesen by letter that Lot 1 could not be developed
until storm sewers were installed in the area to remove the drainage. Mr. Thuesen
requested a letter from the City indicating the lot's status as unbuildable. Exhibit 1,
Attachments 8G and 8H. Presumably, he then provided this information to Snohomish
County because property taxes on the lot reflected its unbuildable status for decades.
Exhibit 1, Attachment 12. The City drafted two covenants restricting the use of Lot 1 to
drainage only, one in 1975 and one in 1976, for Mr. Thuesen to record with the County
Assessor's Office. Apparently, W. Thuesen never executed or recorded either covenant.
Exhibit 1, Attachments 8D, 8E, and 8F.
7. In 1986, Mr. Thuesen again Contacted the City, indicating an interest in building on Lot
1. He requested that the City install storm drains to serve the lot, and he offered to pay
for the pipe. Mr. Thuesen was informed by letter: "... our records indicate that you
agreed Lot 1 of the Plat of Preview Homes Westgate Village would act as the plat
drainage collection area as a condition of approval. If you wish to build on this lot, it is
your responsibility to provide an alternate drainage system." Exhibit 1, Attachment 8C.
8. In 1989, Mr. Thuesen contacted the City requesting permission to alter the drainage
improvements on Lot 1 by placing rocks there that had been excavated from another
construction site. He was informed that no alteration of the drainage use on Lot 1 was
approved, and that any placement of rocks and/or alteration of the existing on-site
drainage improvements would not be allowed to "impact the storm system, adjacent
neighbors, subsurface conditions, [or result in] building on the lot." Exhibit 1, Attachment
8B.
9. At an unknown time in 2001 or 2002, the City received complaints of standing water in
the roadways within the plat? These complaints were received shortly after a heavy rain
event and just prior to a scheduled road resurfacing project in the immediate vicinity of
the plat. In response to complaints of an emergency flooding situation, City of Edmonds
Public Works crews diverted part of the drainage from the Westgate Village plat away
from the facility in Lot 1 and into the City's storm drains, eventually out falling into Shell
Creek within Yost Park. Exhibit 1, pages 4-5, Testimony of Mr. Miller, Testimony of Ms.
Breske.
3 The Examine' nates that the date of construction for these improvements is unknown. For conciseness, this
decision will refer to them as the 2002 improvements.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Breske Appeal, No. AM8-2
mage 7 of 16
10. Approximately 15 to 20% of the plat area that previously drained to Lot lwas diverted
into the city's storm system by the 2002 improvements. The diverted runoff was from
the lots in the north end of the plat. The remaining 80 — 85% of the Westgate Village plat
continued to .drain to the catch basin on the east side of Lot 1, which discharges directly
onto Lot 1. Beyond this, the nature, extent, capacity, and intention of the 2002
improvements are disputed. Exhibit 1, page 5; Exhibit 1, Attachment 3; Testimony of Ms
Breske; Testimony of Mr. Breske; Testimony of Mr. Miller.
11. The City has maintained the existing stormwater facilities in the roadways in Westgate
Village since at least 1989. Exhibit 10, Testimony of Ms McConnell.
12. Prior to purchasing the subject property, the Appellants met with City personnel to
discuss the potential development of Lot 1. They spoke with then -Assistant City
Engineer Don Fiene. Exhibit 1, page 5; Testimony of Mr. Fiene; Testimony of Mr.
Breske. Prior to purchase, Appellants also discussed the 2002 storm drainage
improvements with the then -seller of Lot 1, Erie Thuesen, son of the original Westgate
Village developer. Testimony of Ms. Breske. Appellants purchased Lot 1 on January 16,
2007 and applied for single-family residential building permit on February 28, 2007.
Exhibit 3; Exhibit 1, Attachment 9.
13. Based on their opinion that the 2002 improvements are adequately sized to handle all
stormwater runoff from the plat, Appellants proposed to close off the Lot 1 connection to
the Westgate Village drainage system, diverting all flows from the surrounding parcels to
the City's system, which eventually discharges into Shell Creek. Appellants proposed to
pay mitigation fees to fiend future Shell Creek restoration in the amount of $4,463.00.
Exhibit 1, page 7; Exhibit 8; File No. BLD -2007-0251; Exhibit 2, Attachment 5;
Testimony of Us. Breske.
14. During engineering review of the proposal, the City informed the Appellants they would
be required to provide detention for all of the existing runoff from the other lots of the
plat currently draining onto Lot 1, and only allow offsite flows consistent with the pre -
developed condition. to other words, development of Lot 1 must control runoff such that
there is `no net increase' after construction. The City indicated that the detention system
must be sized in accordance with the 1992 Department of Ecology (DOE) Manual and
current City Code. Exhibit 1, Attachments 9B and 9C.
15. On January 21, 2008, Appellants presented a Retention/Infiltration Sizing Report
prepared by Ms. Breske approximately four weeks before (extended) expiration of their
first building permit application. The report depicted a possible sub -surface
retention/infiltration vault along the north property line. The sizing report plan included a
depiction of the possible placement of a single-family residence on the lot built on pin
piles without a basement. Exhibit 1, Attachment 9Z. Appellants asserted that
construction of the combined retention/infiltration vault would increase the cost of
Findings, Conclusions, and Decision
City of Edinon& Hearing Examiner
Oreske Appeal, No. AP -08-2
page 8 of 16
construction by $105,000.00 and that therefore it was not feasible.' Exhibit 1, Attachment
9AA; Testimony of Ms Breske..
16. Subsequently, Appellants submitted a document entitled "Shell Creek Sub -Basin
Analysis and Offer to pay Shell Creek Mitigation Fees", prepared February 12, 2008 by
Donna Breske. In her study, Ms. Breske concluded that water levels in Shell Creek
would rise less than 1/1& of one inch if all surface flows from Westgate Village were to
be diverted to the 2002 storm drainage improvements. Exhibit 1, Attachment 9AA. The
City repeated its `no net increase' position in communications to the Appellants. Exhibit
1, Attachments 9U and 9V.
17. Appellants' first building permit expired on February 28, 2008 before the parties reached
a mutual understanding of stormwater requirements. On April 1, 2008, Appellants
submitted a second building permit application under protest (BLD -2008-0263). The
current proposal would create approximately 3,760 square feet of new impervious
surface. The April 2008 building permit application abandoned the combined
retention/infiltration vault proposal due to the Appellants' opinion that it was excessive
and not justified by the impacts to Shell Creek indicated by their self -conducted study.
Exhibit 1, page 20; Exhibit 1, Attachments IIA, I 1 B, 11C, and 11D, Attachment HQ.
18. Review of the second building permit application halted upon the engineering division's
comments indicating that the Appellants had reverted to a proposal to divert all Westgate
Village flows to the City storm system via the 2002 improvements. Exhibit 1,
Attachment 11N.
19. The City deemed Appellants' reapplication with the previously denied stormwater
management proposal as a request for a reconsideration, pursuant to ECDC 20.95.040, of
the City's position on requirements applicable to the property, or the City's
"interpretation" of ECDC 18.30.060.A:1:a. The "requested reconsideration" was denied
by letter dated May 15, 2008.-5 Exhibit 1, Attachment 11 T. Appellants timely appealed
on May 23, 2008. Exhibit ],Attachment 11.
4 The breakdown provided by Appellants for the increased costs is: $1.2,000 to import and place fill; $40,000 lost
profit from inability to build basement; $3,500 for geotechnical report for pin piles; $10,000 for pin pile construction
cost; and $40,000 to build the retention/infiltration vault. Exhibit 1, Attachment 9AA, February 12, 2008 letter from
Fred Breske to Don Rene.
5 The May 15, 2008 letter from the City mistakenly refers to RCW 20.95.040 as the source of authority for the
reconsideration request The correct citation is ECDC 20.95.040, which reads (in relevant part): C. Optional
Reconsideration. A permit applicant may request a reconsideration of the decision issued under this section by either
the original decisionmaker or the planning manager. If the applicant requests reconsideration by the planning
manager and the planning manager is not available to render a decision within the time limits required by the ECDC,
the planning manager shall designate a supervisor of the original staff decisionmaker to rule on the reconsideration.
The request for reconsideration shall be filed in writing with the planning manager within 14 working days after the
date of the decision being appealed_ The requested decisionmaker for the reconsideration shall approve„
conditionally approve; or deny the application. The decision shall be in writing, and shall be appealable to the
hearing examiner under Chapter 20.105 ECDC.
Findings, Conclusions, and Decision
City of Edmonds Hewing Examiner
Breske Appeal, No. AP -08-2 page 9 of 16
20. Donna Breske is a Licensed Professional Engineer in Washington. She has worked as a
civil engineer for 11 year in Snohomish County; focusing on small site developments.
Exhibit 2, Attachment 9, Testimony of Ms. Breske.
21. In from 1993 to 2006, Lot 1 was valued at $1,000.00 and the total Snohomish County
property tax was in the neighborhood of $10.00. In tax year 2007, the property tax
increased to $1,793.82. Exhibit 1, Attachments 12.4 through 12N
Disputed Facts.
22. According to the Public Works Department, the 2002 stormwater improvements installed
on-site were intended to serve only as an emergency overflow system to alleviate
flooding incidents to adjoining residential properties. The improvements were not
intended to eliminate the stormwater detention and infiltration function historically
provided by Lot 1. The improvements were installed in response to an emergency
situation during a heavy rain event with no prepared plans or -notice to surrounding
owners. Staff testified that the City budget contains funds for the labor and materials for
such emergency projects and that field design is standard operating procedure in
emergency situations. Under limited, emergency circumstances, the prevention of
property damage due to flood takes temporary precedence over the concern for additional
flows in Shell Creek. Such emergency overflow mechanisms "comport with standard
practice and engineering design principles." The City has an obligation to respond timely
in order to prevent private property damage. Exhibit 1, page 17; Exhibit 1, Attachments
91r and 11 T; Testimony of Mr. Miller; Testimony of Mr. Rene.
23. Fifteen to 20% of Westgate Village runoff is diverted to the City's stormdrainage system
only during extreme storm events when Lot 1 is already inundated with standing water.
The invert (orifice through which diversion occurs) is located at an elevation
approximately two feet higher than the outlet onto Lot 1. Testimony of Mr. Fiene.
24. Appellants contend that the Lot 1 facility is often blocked and more than occasional
emergency overflows already enter the City's 2002 improvements, out falling in Shell
Creek. Testimony of Mr. Breske.
25. The stormdrainage system in Lot 1 is not a dedicated, public system; it is a private storm
drainage system. The City relies on citizen complaints to alert them to blockages
preventing water from flowing into Lot 1, as intended. Testimony of Mr. Rene. During a
storm event on December 3, 2007, a City Staff site visit confirmed that all flow from
Westgate Village was entering Lot 1, rather than bypassing Lot 1 via the overflow pipe.
Exhibit 1, Attachment 9V.
Arguments:
26. The last sentence of ECDC 18.30.060A. I states: "Any development or redevelopment
that has less than 5,000 square feet of impervious surfacing, other than a road constructed
for the purpose of permitting new development, can comply with this requirement by
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Breske Appeal, No. AP -08-2 page 10 of 16
using the guidelines outlined in the city of Edmonds' drainage systems handout (Exhibit
A)." Exhibit A is Policy #E72. The introductory statement to Policy #E72 reads:
On July 6, 1977, the City Council passed Ordinance #1924 requiring storm drainage
detention on all new development and on February 17, 1995 amended that ordinance
with Ordinance 3013 requiring storm water quality control on any new or
redevelopment with more than 2000 square feet of new impervious surface area.
...IT]he intent of the two ordinances [is] that all impervious surface area from July 7,
1977 shall be cumulative in nature... and when the impervious surface quantity
exceeds that 2000 square feet threshold, an on site detention will be required.
Policy #E72 also states:
Construction with more than 2,000 square feet of impervious surface (new and or
cumulative from July 7, 1977 to present) will require a storm detention system to
handle the total amount of the new cumulative surface area.... Detention systems
designed to accommodate between 2,000 and 5,000 square feet of impervious area
can be sized according to this handout.
Exhibit 2, Attachment 3, Policy #E72, pages 1-2.
27. Citing the last sentence of ECDC 18.30.060.A.1, Appellants argued that Policy #E72 is
the only stormwater standard that applies to their property because their project would
create less than 5,000 square feet of new impervious surface. Exhibit 2, Attachment 8;
Testimony of Ms. Breske.
28. Appellants contended that the unrecorded covenants drafted for Bjorn Thuesen by the
City indicate the City's intention to restrict Lot 1 from development only "until such time
as adequate storm sewers are installed to remove such drainage." Exhibit 2, Attachment
2; Testimony of Ms. Breske. Appellants argued that the City's 2002 improvements
constituted a public drainage conveyance system for the plat. They asserted that the type
and configuration of improvements installed in 2002 are evidence that the City intended
those improvements to provide permanent stormwater conveyance for the runoff from the
plat. Exhibit 1, Attachment 9R,
29.. Appellants asserted that requiring Lot 1 to provide stormwater detention in accordance
with the 1992 DOE Manual for impervious surfaces created in 1961 was inconsistent
with the 1992 Manual's definitions of and requirements for `small parcel' minimum
requirements and `new development'. Appellants argued that the City adopted the 1992
DOE Manual and therefore the 1992 Manual's procedures for small parcel development
should control. Exhibit 1, Attachment 9T; Exhibit 2, Attachments 4 and 8; Testimony of
Ms. Breske.
30. Noel Miller is the current Public Works Director for the City of Edmonds. He is a
licensed Civil Engineer with 20 years of professional experience working for municipal
government, in addition to five years working in private consulting. He is currently the
highest administrative official with interpretative authority over the City of Edmonds
Findings, Conclusions, acrd Decision
City ofEdmnn& Hearing Examiner
Breske Appea4 No. AP -08-2
page 11 of 16
Community Development Code stormwater requirements. Mr. Miller testified that
ECDC 18.30.060.A.1.a applies to the subject property, as it applies to all lots in the City.
Engineering Policy #E72 speaks only to sizing of detention facilities for new impervious
surfaces and it does not exempt Lot 1 from the obligation to provide stormwater
management for all on-site flows. Testimony of Mr. Miller.
31. Don Fiene is a professional engineer in the State of Washington. From 2000 to 2008, Mr.
Fiene served as the City of Edmonds' Assistant City Engineer. During four of those eight
years, he was Acting City Engineer. Mr. Fiene wrote the City's current stormwater
standards, including ECDC 18.30.060. Three months prior to the hearing in the present
appeal, Mr. Fiene took a private consulting position. As of the hearing date, he was
acting as the City's stormwater consultant and was the personnel who reviewed the
Appellants' second building permit materials for compliance with stormwater
requirements. Mr. Fiene testified that any development of Lot 1 must provide runoff
control to the no net increase standard established in ECDC 18.30.060.A. l .a in order to
prevent additional runoff to Shell Creek. He stated that the combined
infiltratiouldetention system proposed in conjunction with the first building permit could
have been approved with a few minor modifications: Testimony of Mr. Fiene:
32. The City argued that the owners of the other Westgate Village lots have prescriptive use
rights to Lot 1 as a stormwater retention area, because of the more than 40 year history of
such a use. Exhibit 1, Attachment 9N.
33. Notice of public hearing was published in The Herald, posted on-site, and mailed to
neighboring property owners within 300 feet, consistent with the notice provisions of
Edmonds Community Development Code (ECDC) 20.91. Exhibit 1, page 11; Exhibit 1,
Attachment S, 6A, 6B, and 6C. The City did not receive public comment on the appeal."
CONCLUSIONS
Jurisdiction:
The Hearing Examiner has jurisdiction to hear and decide appeals of City interpretations of the
text of the Edmonds Community Development Code and appeals of permits or approvals
required by ECDC Title 18 — Public Works Requirements - pursuant to ECDC 20.105.010.A.4
and A.6, respectively.
Criteria for Review:
Pursuant to ECDC 20.105,030.C, the Hearing Examiner shall hold a public hearing on
the appeal consistent with ECDC Title 20.91 and shall base the decision on the appeal on
the same criteria as are set forth in the code for the original decision.
"Me Examiner notes that after the open record hearing had been duly noticed consistent with notice requirements of
the municipal code, no members of the public or non -parties of record appeared to provide testimony on July 17,
2008. Thus no non-parties of retard preserved a right to comment at the continued date of August 5, 2008.
Findings, Conclusions, and Decision
City of Edmonds hearing Examiner
Breske Appeal, No_ AP -08-2
page 12 of 16
The Edmonds Community Development Code does not contain criteria for review of
appeal of administrative determinations or administrative code interpretations. Any
appeal proceeding from an appeal of an administrative determination/interpretation
would be reviewed by a court of law pursuant to a Land Use Petition Act (LUPA) appeal
and the Examiner will take guidance from that law. In a LUPA appeal, a challenged land
use decision will be reversed if the challenging party establishes any one of the following
criteria:
a) That the ... officer that made the land use decision engaged in unlawful procedure
or failed to follow a prescribed process, unless the error was harmless;
b) The land use decision is an erroneous interpretation of the law, after allowing
such deference is due the construction of a law by a local jurisdiction with
expertise;
c) The land use decision is not supported by evidence that is substantial when
viewed in light of the whole record...;
d) The land use decision is a clearly erroneous application of the law to the facts;
[or]
e) The land use decision is outside the authority or jurisdiction of the officer making
the decision.....'
Revised Code of Washington (RCN) 36 70C.130.1
Other Aolicable Code Provisions:
ECIC 18.30 000 Stormwater Management
The purposes of this chapter are:
A. To protect creeks, streams, ponds, wetlands, lakes and other bodies of water from
pollution associated with surface storm water including sediments, petroleum
products, pesticides, fertilizers, pet wastes or other damaging substances;
B. To protect land and the ecological balance of the receiving water bodies near
development sites from increased surface water runoff rates that could cause flooding
or erosion, scouring, and deposition of sediment due to the development;
C. To protect private and public property and city streets and rights-of-way from
flooding or erosion;
D. To preserve and enhance the suitability of all bodies of water for contact recreation,
fishing, and a wide diversity of wildlife habitat;
E. To provide for inspection and maintenance of storm water facilities in the city so that
they will perform as designed to prevent or remove pollution and/or reduce flooding;
F. To require that all public and private storm water facilities be operated, maintained,
and repaired in conformance with this chapter,
Cx. To establish the minimum standards that must be met for compliance;
H.. To provide guidelines for all who conduct inspections and perform maintenance of
storm water facilities;
I. To promote development practices that will ensure that the above purposes are met;
J. To meet the requirements of RCW 90.70.080.
RCW 36.70C.130(1) contains a sixth criterion relating to constitutional protections. The Examiner excluded this
criterion because she lacks jurisdiction over constitutional arguments.
Findings, Cowlusiom and Decision
City of Edinonds Hearing Examiner
Bmke Appea4 No. AP -08.-2
page 13 of 16
15.30.030 Applicability.
A. Abrogation and Greater Restrictions. When any provision of any other chapter of the
Edmonds Community Development Code conflicts with this chapter, that which provides greater
environmental protection shall apply.
18 30 060 Development approval standards for storm water Quality control.
B. Any neve development or redevelopment with more than 2,000 square feet of new
impervious surfacing shall be required to provide storm water quality control.
Compliance will be demonstrated by implementing an approved storm water site
plan. Guidelines for storm water site plans are provided in the manual. The plan must
address the following requirements, in addition to ESC requirements:
I . SOC Minimum Requirement -- Storm Water Detention/Stream Bank Erosion
Control. Storni water discharges shall control stream bank erosion and flooding
of the downstream storm system by limiting the peak rate of runoff from the site.
The predevelopxnent condition for all cases other than open water bodies shall be
considered meadows or young second growth forest. As the first priority to meet
this requirement, BMPs shall utilize infiltration to the fullest extent practicable
only if site conditions are appropriate and ground water quality is protected. Due
to high ground water tables in large portions of the city and a landslide complex
in the Meadowdale area (where high ground water increases the slide hazard),
there are few sites within the city where infiltration should be considered. Exhibit
B* delineates the areas where infiltration may be feasible for this requirement if
the site satisfies the requirements outlined in the manual. BMFs shall be selected,
designed, and maintained according to the manual. The minimum diameter
orifice size used for control shall be five-eighths of an inch. In the case of
redevelopment, this requirement shall apply only to that portion of the site that is
being redeveloped. Any development or redevelopment that has less than 5,000
square feet of impervious surfacing, other than a road constructed for the purpose
of permitting new development, can comply with this requirement by using the
guidelines outlined in the city of Edmonds' drainage systems handout (Exhibit
A)!
a. All development sites less thw one acre that discharge directly or
indirectly to a stream shall be required to limit the peak rate of runoff to
the predeveloped condition two-year, 24-hour design storm, while
maintaining the predeveloped condition peak runoff rate for the 10 -year,
24-hour and 100 -year, 24-hour storms.
8 At this location in the code, two asterisks refer the reader to Engineering Policy #E72.
Findings, Conclusions, and Decision
City of Ednwnds Hearing Examiner
Breske Appeal, No. AP -08--2
page 14 of'16
Conclusions Based on Fire fts:
1. Any development of Lot I is subject to the no net increase standard at ECDC
18.30.060.A.I.a.
a. ECDC 18.30.060 is not ambiguous, and there is no conflict between the provisions at
18.30.060A. La and Policy #E72. ECDC 18.30.060.A clearly requires any
development of more than 2,000 square feet of new impervious surface to control
stream bank erosion and flooding of the downstream storm system by limiting the
peak rate of runoff from the site. Subsection 18.30.060A. La applies to all projects
creating between 2,000 and 4,999 square feet of new impervious surface. The last
sentence of subsection A.1 refers developers of projects with between 2,000 and
4,999 square feet of new impervious surface to Policy #E72 for guidance on the
sizing of on-site detention facilities for runoff resulting from the new impervious
surfaces. Read together, subsection A.I and Policy #E72 do not excuse or exempt
any project from compliance with the remaining sections. of ECDC 18.30.060.
Appellants' exclusive focus on the last sentence of subsection A. I resulted in an
incorrect reading of the code. If their reading were adopted, an indefinite number of
projects would be allowed to increase runoff into Edmonds' creeks, which
cumulatively would defeat the stated purpose of the City's stormwater provisions.
b. To the extent that ambiguity exists due to perceived conflicts between ECDC
I8:30.060.A.La and Policy #E72, deference is due to the local jurisdiction's
interpretation of its own code. Both the Public Works Director, who is the highest
administrative official with interpretative authority over the City of Edmonds
stormwater requirements, and the consulting engineer who authored the current
stormwater requirements, concluded that 18.30.060.A.1.a applies to Lot I and that
any development must result in no net :increase of drainage runoff. The Examiner
defers their collective expertise. Findings Nos. 14, 30, and 31.
2. Because ECDC 18.30.060A.I.a prohibits any net increase of runoff; development of Lot
1 is required to address its historical drainage function within the Plat of Preview Homes
Westgate Village. All pertinent documents in the record indicate that the original
developer, Snohomish County, and the City of Edmonds have regarded Lot I as a
drainage facility for the plat since its preliminary approval more than 45 years ago. The
City's 2002 improvements do not constitute public stormdrainage conveyance to the site;
they operate as emergency overflow in extreme weather conditions to prevent property
damage to surrounding residences. Findings Nos 3, 4, 5, 6, 7, 8, 9, 10, 22, 23, and 25.
3. The Examiner lacks jurisdiction to address prescriptive easements and is not authorized
to compel issuance of administratively processed permits and/or refunds of permit review
fees. The Examiner declines to address the Appellants' other arguments, including but
not limited to County property taxes, 1992 DOE Manual minimum standards, allegations
of de minimus impacts to Shell Creek, and the intent expressed in dra$ed, unrecorded
corivenants, as immaterial.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Breske Appeal, No. AP -08-2
page 15 of 16
DECISION
Appellants did not satisfy their burden of proof by successfully showing that the administrative
interpretation of ECDC 18.30.060 by City Staff was an erroneous interpretation of the law, nor
that the City erroneously applied the facts to the law in the processing of their building permit
applications. Based on the preceding findings and conclusions, the appeal must be DENIED.
Decided this 26t' day of August 2005.
Findings, Conclusions, and Decision
City of Edmonds Nearing Examiner
Breske Appeal, No. AP -08 2
Toweill Rice Taylor LLC
City of Edmonds Hearing Examiners
By:
Sharon A. Rice
page 16 of 16
Ino 1g9"
CITY OF EDMONDS GARY HAAKENSON
MAYOR
121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221
HEARING EXAMINER
RECONSIDERATION AND APPEAL
The following is a summary of the deadlines and procedures for filing requests for reconsideration and
appeals. An person wishing to file or p=qnd to a Mquest for reconsideration or an-opeal should
contact the Planning Division of the Devel meat Servic D artment for further rocedural
information.
REQUEST FOR RECONSIDERATION
Section 20.100.010(G) of the Edmonds Community Development Code (ECDC) requires the Hearing
Examiner to reconsider his or her decision or recommendation if a written request is filed within ten (10)
working days of the date of the initial decision by any person who attends the public hearing and signs the
attendance register and/or presents testimony, or by any person holding an ownership interest in a tract of
land which is the subject of such decision or recommendation. The reconsideration request must cite
specific references to the findings and/or the criteria contained in the ordinances governing the type of
application being reviewed.
APPEALS
Chapter 20.105 of the ECDC contains the appeal procedures for Hearing Examiner decisions. Pursuant to
Section 20.105.040(A), persons entitled to appeal include (1) the Applicant; (2) anyone who has
submitted a written document to the City of Edmonds concerning the application prior to or at the
hearing; or (3) anyone testifying on the application at the hearing. Section 20.105.020(A) requires appeals
10 be in writing, and to state (1) the decision being appealed, the name of the project applicant, and the
date of the decision; (2) the name and address of the person (or group) appealing the decision, and his or
her interest in the matter; and (3) the reasons why the person appealing believes the decision to be wrong.
Pursuant to Section 20.105.020(B), the appeal must be filed with the Director of the Development
Services Department within 14 calendar days after the date of the decision being appealed. The appeal
must be accompanied by any required appeal fee.
TIME LIMITS FOR RECONSIDERATION AND APPEAL
The time limits for Reconsideration and Appeal run concurrently. If a request for reconsideration is filed
before the time limit for filing an appeal has expired, the time clock for filing an appeal is stopped until a
decision on the reconsideration request is completed. Once the Hearing Examiner has issued his or her
decision on the reconsideration request, the time clock for filing an appeal continues from the point it was
stopped For example, if a reconsideration request is filed on day five of the appeal period, an individual
would have nine more days in which to file an appeal after the Hearing Examiner issues his decision on
the reconsideration request..
NOTICE TO COUNTY ASSESSOR
The property owner may, as a result of the decision rendered by the Hearing Examiner, request a change
in the valuation of the property by the Snohomish County Assessors Office.
Incorporated August 11, 1$90
Sister City - Hekinan, Japan
1'7c 1F,0V
CITY OF EDMONDS
121 STH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221
HEARING EXAMINER
OFFICE OF THE HEARING EXAMINER
CITY OF EDMONDS, WASHINGTON
APPELLANTS )
Fred and Donna Breske )
Avvealina an administrative interpretation 3
I, Sharon A- Rice, the undersigned, do hereby declare:
Case No. AP -08-2
DECLARATION OF SERVICE
GARY HAAKENSON
MAYOR
1. That I am a partner in the firm of Toweill Rice Taylor LLC, which maintains a professional
services agreement with the City of Edmonds, Washington for the provision of Hearing Examiner
services, and make this declaration in that capacity;
2. That I am now and at all times herein mentioned have been a citizen of the United States, a
resident of the State of Washington, over the age of eighteen (18), and competent to be a witness
and make service herein;
3. That on August 25, 20081 did serve a copy of the decision in case AP -08-2 upon the following
individuals at the addresses below by first class US Mail.
Fred & Donna Breske
6621 Foster Stough Road
Snohomish, WA 98290
Don Fierce
CIO City of Edmonds Engineering
121- 5 Avenue North
Edmonds, WA 98020
Noel Miller, Director
City of Edmonds Public Works
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
Clerk of the Edmonds City Council
121- 5'h Avenue North
Edmonds, WA 98020
Richard E. Gifford
600 Main Street, Suite E
Edmonds, WA 98020
Zachary Lell
Ogden, Murphy, Wallace PLLC
1601 Fifth Avenue, Suite 2100
Seattle, WA 98101-1686
Duane Bowman, Director
City of Edmonds Planning Division
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
I hereby declare under penalty of perjury under the laws of the State of Washington that the foregoing is
true and correct:
DATED THIS day of fi 2008 at W4blh ' Washington.
Sharon A. Rice.
Toweill Rice Taylor LLC
Serving as Hearing Examiner for Edmonds; Washington
Incorporated August II, I890
Sister City - Hekinan, Japan