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Exhibits_15-27.pdf-'o c. 189", CITY OF EDMONDS 121 STH AVENUE NORTH - Edmonds, WA 98020 - (425) 771.0220 - FAX (425) 771-022.1 HEARING EXAMINER FINDINGS, CONCLUSIONS AND FINAL DECISION OF THE HEARING EXAMINER CITY OF EDMONDS Application of Thuesen Custom Homes, LLC File Numbers: S-2005-9, SD -2005-8, AP -06-45 and AP -06-48 STATEMENT OF FACTS: GARY HAAKENSON MAYOR I The Hearing Examiner's July 6, 2006 decision on this matter was appealed to Snohomish County Superior Court and the matter was presented to the Court on November 21, 2006. The Court issued a final Order on the case on April 25, 2007 (Exhibit 1). 2, The Order remanded the matter back to the City of Edmonds for further proceedings as specified in Exhibit 1. In summary, the Order required the Hearing Examiner to reopen the record for the purpose of verification of the Pentec wetland delineation and the LSA survey. If both Pentac and LSA verified their work, then the Hearing Examiner's July 6, 2006 decision approving the short plat would be automatically reinstated, except the provision requiring a second wetland delineation must be withdrawn. Mr. Thuesen would also have the right to submit a revision to his application for three lots or a new application for a third lot. The City would then be required to review the revised application or new application consistent with the vesting date of the original application dated January 18, 2005. 3. LSA submitted a letter dated May 2, 2007 (Exhibit 2), which verified the accuracy of the survey and explained the rational for that verification. 4. Hart Crowser — Pentac Environmental submitted a letter dated June 1, 2007 (Exhibit 3), which verified the accuracy of the area of the wetland as reported on the LSA map. CONCLUSIONS: 1. The LSA and Hart Crowser --- Pentac Environmental letters referred to above sufficiently verified the size of the wetland (which was brought into question by the Hearing Examiner in his July 6, 2006 decision). That matter being clarified, the Hearing Examiner concludes that conditions 3 & 4 should be deleted from the Hearing Examiner's July 6, 2006 decision. Incorporated August 11, 1890 Exhibit 15 APL -200902 Hearing Examiner Final Decision Case Nos, S-2005-9, SD -2005-8, AP -06-45 and AP -06.48 Page 2 DECISION: Based upon the foregoing findings and conclusions, the subject short subdivision is approved (as previously conditioned by City staff), and conditions 3 and 4 specified in the Examiner's July 6, 2006 decision on this matter are hereby deleted. Entered this 1 lth day of June 2007 pursuant to the authority granted the Hearings Examiner under Chapter 20.100 of the Community Development Code of the City of Edmonds. Ron McConnell, FAI Hearing Examiner Pro Tem EXHIBITS: 1. Snohomish County Superior Court Findings of Tact, Conclusions of Law and Order on Land Use Petition #06-2-10190-0 2. Letter from Jeffrey Treiber, P.L.S., Lovell-Sauerland & Associates, dated 512107 3. Letter from Wayne Adams, Hart Crowser, Inc. — Pentee Environmental, dated 611107 PARTIES OF RECORD: Erie Thue�sen 18333 85"' Pl. W. Edmonds, WA 98026 Gary & Joan Bloom PO Box 21.9 Edmonds, WA 98020 Planning Division City Attorney Mr. & Mrs. Scott Mallory 520 8" Ave. N, Edmonds, WA 98020 Ken & Vera Reidy 771 Daley St Edmonds, WA 98020 Charles & Carolyn LaNasa 524 8" Ave. N. Edmonds, WA 98020 Jim & Barbra McQueen 528 8" Ave. N. Edmonds, WA 98020 f c. 189v CITY OF EDMONDS 121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221 HEARING EXAMINER FINDINGS, CONCLUSIONS AND DECISION OF THE HEARING EXAMINER CITY OF EDMONDS APPLELLANTS: Scott and Maria Mallory et al: AP -06-45, & Eric Thuesen; AP -06-48 CASE NOS.: AP -06-45 & AP -06-48 LOCATION: 509 9ffi Ave. N (see Exhibit 1, Attachment 1) GARY HAAKENSON MAYOR APPEAL: Appeal of an approved 2 lot short plat and steep slope exemption in a Single -Family Residential (RS -12) zone (see Exhibit A, Attachment 2). REVIEW PROCESS: Hearing Examiner conducts public hearing and makes final decision. The Examiner reviews all of the relevant information and issues a decision based on the same criteria that was used in the original decision. MAJOR ISSUES: a. Compliance with Edmonds Community Development Code (ECDC) Section 16.20.030, Site Development Standards for the RS -12 Zone b. Compliance with ECDC Title 18, Pubic Works Requirements c. Compliance with ECDC Section 20.1513, Critical Areas d. Compliance with ECDC Section 20.75, Subdivision Requirements e. Compliance with ECDC Section 20.95, Staff Review Requirements f. Compliance with ECDC Section 20.105, Appeals and Court Review 0 Incorporated August 11, 1890 0 Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 2 SUMMARY OF RECOMMENDATION AND DECISION: Staff Recommendation: Deny the steep slope exemption and drainage pipe appeals, and remand the wetland issue back to the City staff for further review. Hearing Examiner Decision: Deny the vesting and drainage pipe appeals, and remand the wetland issue back to City staff for further review. PUBLIC HEARING: After reviewing the official file, which included the Planning Division Staff Advisory Report, and after visiting the site, the Hearing Examiner conducted a public hearing on the appeals. The hearing on the Mallory et al and Thuesen appeals was opened at 3:19 pm., June 1, 2006, in the City Council Chambers, Edmonds, Washington, and at 5:03 p.m. was continued to June 15, 2006. The hearing was reopened at 3:06 p.m., June 15, 2006 and was closed at 5:12 p.m. At the end of the hearing, the Examiner announced that he might not be able to issue his decision within 10 working days. Mr. Thuesen's attorney acknowledged that and noted that a short delay would be acceptable. Participants at the public hearing and the exhibits offered and entered are listed in this report. A verbatim recording of the hearing is available in the Planning Division. HEARING COMMENTS: The following persons offered testimony or legal argument at the public hearing. From the City: Steve Bullock, Planner Bio Park, Assistant City Attorney From the Appellants: Mallory, et al Appeal: Charles LaNasa, Appellant Scott Mallory, Appellant Joan Bloom, Appellant, Jim McQueen, Appellant Ken Reidy, Appellant Maria Mallory, Appellant Kim McQueen, Appellant Carolyn LaNasa, Appellant Eric Thuesen Appeal: Rick Gifford, Attorney for Eric Thuesen Eric Thuesen, Appellant From the Community: No one from the general public spoke at the public hearing. Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 3 FINDINGS AND CONCLUSIONS: A. BACKGROUND The Applicant seeks to subdivide his 1.03 acre parcel of property zoned RS -12 into two lots. The site location is 509 9th Avenue North in Edmonds, WA. The property contains a steep slope and a wetland. The Applicant's initial 2 -lot layout for the subject site was prepared November 22, 2004 and was submitted with the application on January 18, 2005 (Exhibit 1, Attachments 2 & 3). The 2 -lot site plan showed a wetland on the western portion of the property and a steep slop in the middle portion of the property. 2. Application was deemed complete by City staff pursuant to ECDC 19.00.015 to vest under the Critical Areas Ordinance (ECDC 20.15B), which was in effect on January 18, 2005 (the "Old CAO"). Following submission of the application, the City required additional information as noted below (Exhibit 2, Attachment 5, and Exhibit 8). 3. At the City's request, the Applicant hired Dennis Bruce, P.E., under a three party contract to conduct a geotechnical and drainage evaluation of the site (Exhibit 1, Attachment 5). Zipper Zeman Associates, Inc. conducted a peer review of that evaluation (Exhibit 1, Attachment 6). Dennis Bruce responded to that review (Exhibit 1, Attachment 7). The results of the study indicated that the slope on the subject property could meet the criteria for steep slope exemption. 4. Also, at the City's request, the Applicant hired Pentec Environmental under a three party contract to conduct a wetland delineation of the site (Exhibit 1, Attachment 8). Lovell- Sauerland & Associates, Inc. (LSA) conducted a survey of the wetland, which was completed on August 7, 2005 (Exhibit 2, Attachment 5). Pentac Environmental confirmed that survey on September 8, 2005 (Exhibit 1, Attachment 9). The wetland study determined the wetland to be less than 2,500 square feet in size, and determined that it was not regulated under the Old CAO. Staff concurred with the consultants' findings and notified the Applicant that the wetland on site was an unregulated wetland (Exhibit 2, Attachment 7). 5. Following completion of the (LSA) survey the Applicant discussed the possibility of a 3 - lot subdivision with staff and submitted a proposal to revise the application to allow a 3 - lot subdivision. The proposed revision to the two -lot short subdivision was prepared on August 18, 2005 (Exhibit 2, Attachment 8) and submitted on September 14, 2005 (Exhibit 2, Attachment 3, and Exhibit 12). Initially, the City staff indicated it would favorably review the request for a revision under the vested CAO, but after further review determined that changing the Application from two -lot short subdivision to three -lot short subdivision would constitute a substantial change to the Application. Staff notified the Applicant on October 28, 2005 that the proposed revision would not be vested and that the 3 -lot proposal would have to be reviewed under the new CAO regulations (Exhibit 2, Attachment 3, and Exhibit 12). Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 4 6. On April 12, 2006, the City issued written Findings, Conclusions, and Decision on the Application. The City approved the two lot short subdivision with conditions such as preservation of wetland, 25 -foot buffer, 15 -foot setback and others (Exhibit 1, Attachment 1). 7. On April 21, 2006, Scott & Maria Mallory, et al, filed a timely appeal claiming that the City did not properly consider the potential negative impact of its decision to adjacent property owners and the environment. They also challenge the City's determination that the Applicants vested under the Old CAO (Exhibit 1, Attachment 2). 8. On April 24, 2006, the Applicant challenged the conditions that the City attached for approval of the two lot short subdivision and filed a timely appeal of the City's decision (Exhibit 1, Attachment 3), 9. In this report, the Examiner will review and respond only to the substantive issues raised in the appeal letters, and those issues, which are within his purview. Furthermore, the Examiner will base his report and decision on the same criteria as set forth in the code at the time the application was vested. B. APPEAL ISSUES 1. Malloiry et al Appeal Issues (see Exhibit 1, Attachment 2): a) Steep Slope Exemption: The Appellants state they believe the City has not adequately considered the potential impact of altering the steep slope area above the wetland. They believe that constructing a home on this portion of the site, including the excavation and vegetation removal will result in additional problems both above and below this slope that will be detrimental to their properties. They also believe that the geotechnical report submitted with the initial application is not adequate to determine those problems (Exhibit 1, Attachment 2, and Exhibits 3, 4, 5, 7, 9, 10 & 11). b) Vesting: The Appellants. argue that the application was incomplete and shouldn't be vested under the 20.1513 version of the Critical Areas Ordinance and the wetland delineation was not accurately performed. They also argue that Mr. Thuesen's current proposal is different from the application submitted January 18, 2006, and that revision should also not be vested (Exhibit 1, Attachment 2, and Exhibits 3, 4, 5, 7, 9, 10 & 11). c) Wetland/Drainage Pike: The Appellants believe the wetland is larger than 2,500 square feet based on visual observations of the site, photographs submitted as part of Exhibit 3, and a wetland study conducted in 1992 (Exhibit 9, Attachment D). They argued that the wetland is closer to 10,000 square feet in size. They further argued that even if the wetland isn't 10,000 square feet in size the September 8, 2005 letter from Pentac doesn't confirm the accuracy of the L SA survey, but rather just states that "If this project is to be reviewed under the old Edmonds Community Development Code (20.15.13.020) then it would be exempt from City of Edmonds regulations because it is less than 2,500 square feet in size." Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 5 The September 8, 2006 Pentac letter also advised that "the area of the wetland on the LSA map is a more accurate measure of the wetland size, assuming all of the wetland boundary flags were accurately located." The neighbors' charges relative to this statement included the following: • All previous data showed the area of the wetland to be 5,000. to 10,000 square feet, • There were 2 months between the Pentac flag placement and LSA's flag survey, and • There were no controls on the LSA flag survey -- neither the City nor Pent ac participated in the survey process. The Appellants would also like an existing pipe that goes into the wetland to be permanently sealed and restoration planting to be performed in the wetland to mitigate for damage they feel was sustained when the applicant dug some geotechnical test pits in the wetland area. The Appellants argued that building a road through a significant portion of property that is normally under water during the winter would greatly decrease the chances of survival of the wetland. The Washington State Department of Ecology also has jurisdiction over the wetland. (Exhibit 1, Attachment 2, and Exhibits 3, 4, 5, 7, 9, 10 & 11) Staff response: a) Steep Slope Exemption: The applicant's subdivision and steep slope exemption request was submitted and deemed complete prior to the effective date of the new Critical Areas ordinance. This is documented in the staff's decision on the subdivision and steep slope exemption (see Exhibit 1, Attachment 1). The old critical areas chapter of the code did not allow someone to build a home on slopes over 40% unless some very specific criteria were met. The Steep Slope Exemption was the process that confirmed that. A Steep Slope Exemption requires that the applicant submit a geotechnical report documenting certain characteristics of both the subject sloped area and the proposed development. The City must confirm these findings with a peer review. If these criteria are met the exemption is approved and the applicant can build on a steeply sloped area. In this case, the applicant's geotech and the City's peer review confirmed that the steep slope exemption should be approved. In staff's opinion, the City has adequately evaluated the suitability of the subject slope for construction of a home. In fact, the City will continue to evaluate it through the review of building permit plans and construction. (Exhibit 1). b) Wetland/Drainage Pi - Regarding the wetland, the existing drain line into the wetland, and re -vegetation of the wetland, the City feels those questions are adequately addressed in the initial decision (see Exhibit 1, Attachment 1). Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 6 City Attorney Response: a) Steep Slope Exemption: Pursuant to ECDC 20.15.110, the Applicants have submitted allnecessary materials including the Geotechnical Evaluation supported by peer review. As a result of the same, the City has determined that the property can meet all required characteristics for a steep slope exemption. Consideration of negative impact on neighbors and environment, as complained by the Neighbors, has indeed been fully considered as part of establishing the criteria that the property must meet before it qualifies for a steep slope exemption. After adequate evaluation, the City agrees with the conclusions of the Geotechnical Evaluation and peer review that the subject slope can meet the requirements for steep slope exemption and be suitable for approved construction of a home. The Hearing Examiner should the find and conclude that the City decided that the subject slope qualified for steep slope exemption only after fully considering to its satisfaction that the negative impact on neighbors and environment would be mitigated to acceptable levels as provided by law (Exhibit 8). b) Vesting: The City determined on or about February 17, 2005 that the Application submitted by Applicants on January 18, 2005 was complete for purposes of vesting of rights pursuant to ECDC 20.75.040. Although a required Critical Area Study was yet to be conducted, neither state statute nor City code mandates completion of the same as condition precedent to vesting of rights. See RCW 58.17.033 and ECDC 20.75.040. In addition, other than misuse of the term of art "technically complete" as "technically incomplete" in reference to applications that are vested but for which additional information is required, communications and actions by the City are consistent with the conclusion that the Application had vested on January 18, 2005 under the Old CAO. Therefore, the Hearing Examiner should find and conclude that the Application vested under the Old CAO in effect on January 18, 2005 (Exhibit 8). Hearing Examiner Response: a) Steep Slope ExemLtion: The neighbors raised a number of issues and objections relative to the steep slope exemption, however, they did not submit any site specific substantive information to show that the geotechnical report and response to peer review or the peer geotechnical review were incorrect (Exhibit 1, Attachments 5, 6 & 7), b) Vesting: The Examiner concurs with the City Attorney's response on this issue. A project permit application is complete when it meets the procedural submission requirements of the City and is sufficient for continued processing even though additional information may be required or minor project modifications may be undertaken subsequently. c) Wetlands: The second and third paragraphs of the Pentac Environmental letter dated September 8, 2006, state: Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 7 The size shape, and location of'the wetland shown on the LSA map resembles the sketch map we provided in the May 17, 2005 wetland delineation report. The sketch map was not drawn to scale and no measurements were taken in the field, so our sketch map does not show the precise location of the wetland boundaries. It is reasonable to conclude that the LSA survey accurately located the flagged wetland boundary, because all of the wetland flags were located and the LSA map shows the same general wetland size and shape as on our wetland map. The LSA map shows the size of the wetland to be about 2,291 square feet (sf}. In our May 17, 2005 wetland delineation report we estimated the size of the wetland to be greater than 2,500 sf, Our estimate was not based on any on-site measurements and was approximate only. The area of wetland as reported on the LSA map is a more accurate measure of the wetland size, assuming all of the wetland flags were accurately located. If project is to be reviewed under the old Edmonds Community Development Code (20.15. B. 020) then it would be exempt from City of Edmonds regulations because it is less than 2,500 square feet in size. What is troubling is the large difference between the wetland review prepared by Wetland Resources in 1992, which estimated the wetlands to be approximately 10,000 square feet in area (Exhibit 9, Attachment D), and the more recent wetland review. The recent wetland review originally determined that: the wetland is greater than 2,500 square feet, but less than one acre, with a forested wetland class, this wetland is rated as a Category 2 as per the wetland classification system in the Edmonds Community Development Code ECDC 20.15B.060 (Exhibit 1, Attachment 8, page 4), but then determined the wetland to be only 2,291 square feet in area per the LSA survey (Exhibit 2, Attachment 6). Furthermore, everyone at the hearing including the Applicant and City staff expressed surprise that the wetland was determined to be less than 2,500 square feet in area. Those observations, plus the sentence in the Pentac letter, which reads The area of wetland as reported in the LSA map is a more accurate measure of 'the wetland size, assuming all o the wetland flags were accuratellocated gives the Examiner a great deal of pause. A wetland, even under the old CAO, is considered to be a regulated wetland if it is 2,500 or larger in area. The subject wetland has been determined to be within 8.5% in size of a regulated wetland under the old CAO. The Examiner believes that amount could be within the margin of error particularly given the observations of the neighbors, the 1992 wetland study, the photographs of the site attached to Exhibit 3, the admitted surprise of the Applicant and City staff, and the qualifying observation by Pentac underlined above. Therefore, the Examiner concludes that he should err on the side of caution and require the wetland to be reviewed one more time. If it is determined following the new wetland delineation and survey that the wetland is indeed less than 2,500 square feet in size then it should be treated as an unregulated wetland under the old CAO and no buffers or building setbacks should be required from the wetland boundaries. If it Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 8 is determined to be over 2,500 square feet in size, however, then it should be treated as a regulated wetland and all requirements of a regulated wetland should apply. The City only administers its' own codes and does not administer regulations adopted by the State of Washington or the Federal Government. Therefore, this report will not address any requirements of the state or federal governments relative to wetlands, but it is acknowledged that there may be state or federal requirements that the applicant must comply with on this site. d) Drainage Pipe: The Examiner concurs with staff that the issues relative to the drainage pipe were adequately addressed in the initial decision on this case, and the Examiner concurs with staff's response to Mr. Thuesen's appeal relative to the drainage pipe discussed in B.2.b) below. However, it is understood that staff may require additional conditions or may change conditions relative to the drainage pipe following the completion of the new wetland study. 2. Thuesen Appeal Issues (see Exhibit 1, Attachment 3): a) Wetland: The appellant states first that the wetland is less than 2,500 sq ft in size and therefore is not regulated under 20.15B. He also notes that several properties, the adjacent lots to the north, were subdivided in the late eighties and early nineties, under the same subdivision ordinance that his application is subject to, with similar soil conditions, and no wetland retention was required of them. He argues that the City attempts to apply a general subdivision code provision and provisions of the Comprehensive Plan to regulate a wetland that cannot be regulated under its critical areas ordinance. He notes the critical areas ordinance is very specific in its application to specified critical areas, but does not provide requirements for unregulated sensitive areas, which is the case here. He argued that hen two regulations are or seem to be in conflict, as is the case here between the critical areas ordinance and the subdivision code, the more specific or specialized regulation will control. He argued further that the Comprehensive Plan is a guide and is not a regulatory document (Exhibit 2). He noted that the City wrote on July 14, 2005 in part that: The Critical Areas regulations that were in effect prior to February 15, 2005, did not regulate wetlands less than 2,500 square feet in area (E CDC 20.15.B.020.TT). Your pending subdivision application (S-05-9) was submitted when these regulations were in effect and is vested for its review under these regulations. For the purposes of this subdivision application and review, the wetland on site is not regulated (Exhibit 2, Attachment 7). He argued that City staff has been unable to articulate the basis for the required 25 - foot buffer and 15 -foot building setback that staff drew on the map of the property (Exhibit 2, Attachment 12), Mr. Thuesen also noted that many of the homes immediately to the north of his property are built on piles due to the nature of the soils in the area. None of those Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 9 homes seem to have caused damage to their neighbors while they were under construction. b) Drainage Pipe: The 1986 installation of a storm system along 8"' Ave. N. by the City is also described. Mr. Thuesen states that a 12" pipe from the wetland on his property to that system was installed by the City but damaged rather early in its service. Since damaged, the pipe has operated at only a fraction of its capacity. If it had been operational the wetland would have been smaller and might not have been there at all. Mr. Thuesen (after conversations with the City) removed the blockage and intended to re -open the pipe to restore its functionality. After objection by neighbors, the City issued a stop work order and directed Mr. Thuesen to replace the large rocks blocking the culvert and backfill the excavation, thereby preserving the status quo of a non- functioning public utility system. Although he questioned the propriety and wisdom of the City's order, he complied (Exhibit 2). Failure of staff to acknowledge these facts has lead to a decision that, in Mr. Thuesen's opinion, that requires the retention of the wetland, which is arbitrary and capricious. c) Vesting: The vested short subdivision application was merely modified. After staff indicated the wetland is not regulated, the proposed plat was revised from 2 to 3 lots and it should be approved as a 3 lot short subdivision. Staff response: a) Wetland: Staff's original decision on the subdivision application is a discretionary permit as opposed to a ministerial permit. Therefore, besides just meeting bulk regulations, a subdivision is required to comply with the criteria of the subdivision ordinance, which requires some subjective analysis. The subdivision ordinance requires general compliance with the City's Comprehensive Plan and specifically with the Environmental Resources criteria. The staff report included as Exhibit 1, Attachment 1 documents staff's analysis and rational for requiring retention of the wetland with buffers and in staff's opinion is not arbitrary and capricious (Exhibit 1). b) Drainage Pipe: In building a diversion system to protect Shell Creek in the mid - eighties the City installed a large pipe down 8" Ave. N. The storm systems of the subdivisions just north of the subject property all tie into this City system and from drawings, it appears that the City installed a 12" pipe into the wetland on the subject property. The invert of that pipe also appears to be below the low point of the wetland. It is unknown if this pipe was installed at the owners request or expense. After this winter's rainstorms, Mr. Thuesen completed some exploratory excavation along this pipe to determine why there was so much water in the wetland when this 12" was supposed to be there. He found that portions of the pipe had been crushed and rocks and debris clogged it. Staff doesn't know how long the pipe has not functioned correctly, however, staff has anecdotal accounts of how this wetland Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 10 floods each winter. Regardless, enough water stays on the site each year to allow for the wetland to continue and function, both as a habitat site and a storm water storage and cleaning site (Exhibit 1). City staff will allow Mr. Thuesen to reconstruct the pipe into the wetland. However, the inlet to that pipe needs to be set at such an elevation that the natural hydrology of the site would be allowed to continue, meaning that water would be allowed to sit on the site and percolate into the ground naturally, and only storm overflow events would enter the pipe. Staff feels this is consistent with Mr. Thuesen's original application that is vested under the old critical areas ordinance where the wetland is proposed to be retained. Opening up the pipe at its current invert elevation that hasn't functioned in what staff believes is a long time could result in saving a portion of the site as a wetland that in fairly short order might not be a wetland any longer (Exhibit 1). c) Vesting: Mr. Thuesen, fails to note that his original application, which the City concurs is vested to the old Critical Areas Ordinance, was for a two lot short plat where both lots gained access to 9h Ave. N. and the wetland was entirely preserved. The completion of the study, which was through a three party contract with the City and an environmental firm, was not until after the new critical areas ordinance was effective. Although the study resulted in a wetland that was not regulated under the old ordinance the application that was vested under the old ordinance proposed to retain the wetland. Changing his application to a three lot short plat or even a two lot short plat that filled the wetland would be a new application that would be subject to the new ordinance (Exhibits 1 and 12). City Attorney Response: a) Wetlands: When reviewing an application for short subdivision, ECDC 20.75.085 requires the City to minimize significant adverse impacts to environmental resources. To accomplish the same, the code permits the City to impose permanent restrictions on subject property as part of approval of short subdivision. Restrictions permitted under ECDC 20.75.085 to protect natural resources are separate from, and in addition to other restrictions, if any, imposed on. short subdivision found in other sections of the ECDC or state statute. Wetlands, whether or not they are subject to present or past critical area ordinance, fall within the definition of natural resources as used in the ECDC chapter regulating short subdivision. See ECDC 20.75.085. As a consequence, negative impact on there must be considered when reviewing applications for short subdivisions. Id. Pursuant to Chapter 58.17 RCW and evidenced by the language used in ECDC 20.75.085 and the Comprehensive Plan, the City Council has chosen to make protection of the environment a factor during consideration of short subdivision applications. As a result, ECDC 20.75.085(A)(1) gives the Staff discretion to impose conditions protecting environmental resources as condition to approving short Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 11 subdivisions. This is the same "subdivision code" under which the Applicants vested on January 18, 2005, and this is the same "subdivision code" that the City applied in approving the Application subject to conditions. The subject property for which the short subdivision is being proposed contains a wetland. Even though this wetland is not subject to the critical area ordinance in effect when the application vested, preservation of the wetland is subject to consideration during review of the application for short subdivision as described above. Pursuant to ECDC 20.75.085(A)(1), it was well within the Staf>'s authority to impose conditions protecting the wetland as condition to approving Applicants' request to subdivide subject property. The Hearing Examiner should find and conclude that the conditions imposed by Staff for approval of Applicants' short subdivision are valid (Exhibit 8). b) Vesting: Changing the application from a two lot short subdivision to a three lot short subdivision would constitute a substantial change to the application and said change would not be vested Hearing Examiner Response: a) Wetland: The Examiner concurs with the Appellant's attorney that where sections of the City's code overlap or are in conflict, and one section of the City's code is more detailed than another then the more detailed section of the code applies; and where one section of the code is newer than another the more recent section of the code applies. In this case, even the "old" CAO is more detailed and more recent than the subdivision section of the code and, therefore, should be used when determining requirements relative to critical areas in a new subdivision. For further discussion relative to the wetland, see the Hearing Examiner's response to the Mallory et al appeal above. b) Drainage Pipe: The Examiner concurs with the staff response to this issue. However, it is understood that staff may require additional or may change conditions relative to the drainage pipe following the completion of the new wetland study. c) Vesting: The Examiner concurs with staff, and both attorneys that the original application was vested under the "old'' critical areas ordinance. However, the Applicant's request to allow a three lot short plat to be considered as a modification to the original application is a different matter. The narrow issue in this matter is as follows: Should the City of Edmonds accept Mr. Thuesen's revised drawings dated August 18, 2006 as minor amendments to his original short plat application or are the changes between the January 18, 2006 application and the August 18, 2006 revised plans of such magnitude as to cause the Applicant/Appellant to lose its vested Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 12 rights if it chooses to continue forward with the August 2006 plans instead of the January 2006 application? The Examiner believes, minor changes or revisions to a vested short subdivision application would include such things as revision of a property line within the short subdivision or relocation of an access drive due to topographical or other issues, but a revision or minor change would not include an increase in the total number of lots in the subdivision. ECDC 20.75.060 requires a great deal of information to be submitted with a preliminary plat application. That information includes the following: F. Total acreage of the land to be divided, and area in square feel of each proposed lot; H. Lot dimensions and numbers; S. Possible future lot lines if any is large enough to allowfuture division; None of the above highlighted information was submitted with the original short subdivision application. The Examiner concurs with staff that the vesting only applies to the original application in this instance. The applicant's proposal to add a third lot seven months after the original application was submitted is considered to be a substantial change to the original application, and therefore, the third lot is not vested. C. CONCLUSIONS: 1. Steep Slope Exemption: Mallory, et al have not demonstrated that the application fails to meet the applicable review criteria for a steep slope exemption. They have not met the necessary burden of proof, and therefore, that portion of their appeal should be denied. 2. Wetlands/Drainage Issues: Mallory, et al have raised significant questions relative to the wetlands and after review of the file the Examiner has concluded additional study should be required relative to wetlands issues. The Examiner has also concluded that if the wetland is determined to be less than 2,500 square feet in area, then it will be treated as an unregulated wetland and all conditions recommended by staff relative to the wetland should be deleted. If the wetland is determined to be over 2,500 square feet in area then the staff recommended conditions should be revised to reflect all of the requirements of a regulated wetland. The new wetland study should proceed as quickly as is practicable at the Applicant's expense, and City staff is encouraged to review it thoroughly, but quickly. When the wetland is surveyed, the wetland biologist who delineated the wetland should be present to verify that all of the wetland flags are accurately located in the survey. The Examiner does not believe specific timeframes can be required since it is unknown how quickly the wetland delineation and subsequent survey can be accomplished. As noted above in the Examiner's response to the Mallory et al appeal regarding the drainage issue, the Examiner concurs with staff that the issues relative to the drainage pipe were adequately addressed in the initial decision on this case, and the Examiner Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 13 concurs with staff s response to Mr. Thuesen's appeal relative to the drainage pipe. However, it is understood that new information could be obtained during the restudy of the wetland and that staff may require additional conditions or may change conditions relative to the drainage pipe following the completion of the new wetland study. The Examiner also concludes that City staff should address this issue administratively and there is no need to come before the Examiner again unless an appeal of the final administrative decision is filed. 3. Vesting: As noted above, the Examiner concurs with both the City's Attorney and Mr. Thuesen's Attorney that the original application is vested under the "old CAO." However, as also noted above, the Examiner does not concur with Mr. Thuesen's Attorney relative to the vesting of a proposed third lot and concludes the proposed revision to allow a three -lot subdivision on the subject site should not be vested. DECISION: Based upon the foregoing findings and conclusions: 1. The Mallory, et al appeal relative to the steep slope exemption is DENIED, and 2. The Mallory, et al appeal relative to vesting of the "old CAO" is DENIED, and 3. The Thuesen appeal relative to vesting of the third lot is DENIED, and 4. The appeals by both parties relative to the wetland/drainage issues are remanded back to the City to allow for a new review of the wetland/drainage issues as discussed in Conclusion C.2 above. Entered this 6th day of July 2006 pursuant to the authority granted the Hearings Examiner under Chapter 20.100 of the Community Development Code of the City of Edmonds. t`-4,�q Ron McConnell, FAICP Hearing Examiner RECONSIDERATION AND APPEAL: The following is a summary of the deadlines and procedures for filing reconsideration and appeal. Any person wishing to file or respond to a recommendation or appeal should contact the Edmonds Planning Division for further procedural information. Hearing Examiner Decision Case Nos. AP -0645 & AP -06-48 Page 14 REQUEST FOR RECONSIDERATION: ECDC Section 20.100.010.G allows for the Hearing Examiner to reconsider his decision if a written request is filed within ten (10) working days of the posting of the notice required by this section. 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. The Examiner will issue a written response to the reconsideration request within five (5) working days. APPEALS: ECDC Section 20.105.030 describes how appeals of a staff decision may be made. It further states that the Hearing Examiner's decision on an appeal of a staff decision shall be final and shall not be appealable to the City Council. ECDC 20.105.070 specifies how appeals to the Superior Court of Snohomish County may be made. TIME LIMITS FOR RECONSIDERATION AND APPEAL: The time limits for Reconsideration and Appeals 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 decision on the reconsideration request, the time clock for filing an appeal continues from the point it was stopped. EXHIBITS: The following exhibits were offered and entered into the record. 1. Planning Division Advisory Report, dated 5/25/06, with 3 attachments I . Staff Decision, dated 4/12/06 with 22 attachments: 1. Vicinity / Zoning Map 2. Application 3. Proposed Subdivision Map 4, Applicant's Declarations, dated 11/20/04, received 1/18/05 5. Geotechnical Report prepared by Dennis Bruce, dated 1/13/05, received 1/18/05, with one attachment 6. Peer Geotechnical Response by Zipper Zeman Associates, Inc., dated 3/31/05, with one attachment 7. Letter from Dennis Bruce, dated 4/7/05, received 5/10/05, with 3 attachments 8. Wetland report by Pentec Envirionmental, dated 5/17/05 9_ Letter from Pentac Environmental confirming surveyed area of wetland, dated 9/0/05 10. Engineering Requirements 11. Excerpts from ECDC 20,1513 Critical Areas Ordinance (revised 8/96) 12. Cover page and final page of Ordinance 3527 adopting new Critical Areas Ordinance effective 2/15/05 13. Storm water plan from adjacent development to the north of the subject property 14. Map showing required wetland buffers and setbacks Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 15 15. Letter from Vivian Olson, dated 1121106 16. Letter from James and Barbara McQueen, dated 1122106, with attachments 17. Letter from Charles LaNasa, dated 1127106 18. Letter from Scott and Maria Mallory, dated 2127106, with attachments 19. Letter from Bill and Kathy Baird, and Laurie Niven, dated 3/12106 20. Letter from Kenneth Reidy, dated 3115106 21. Letter from Mary Pauline Smith, dated 3/15/06 22. Letter from Joan & Gary Bloom, dated 3115106, with attachments 2_ Appeal letter from Scott & Maria Mallory, et al, dated 4121106 3. Appeal letter from Eric Thuesen, dated 4/24/06 2. Memorandum of Applicant, dated 611106, with 15 attachments (in three ring binder): 1. Applicant's Notice of Appeal, filed 4126106 2. Opposing Neighbors' Notice of Appeal, filed 4/21/06 3. Applicant's Timeline of Key Events and Facts 4. Applicant's Initial Layout for short plat proposal (2 -lot plat), 11104 5. City's 2/17/05 Completeness Determination Notice 6. Wetland Survey prepared by LSA 07/07/05 7. City Memorandum to Applicant re: unregulated wetland, dated 7/20105 8. First Revision (3 -lot plat), dated 8/I8I05 9. Pentac Environmental Confirmation of Wetland Survey, dated 91$105 10. Bloom/City communications re: wetland buffer, dated 2118106 & 2121106 11. Second Revision (2 -lot plat), dated 11/17/05 12. Bullock/McQueen communications re: wetland buffer, dated 2/18/06 & 2121106 13. City buffer drawing, dated 4112106 14. City's Findings, Conclusions, and Decision (w/o Attachments), dated 4112106 15. Highlighted excerpts from City's Advisory Report, dated 5125106 3. Power Point Presentation submitted by Charlie LaNasa 4. Letter from James McQueen, dated 611106 5. Letter from Ken Reidy, dated 611106 6. Letter from Rick Gifford, dated 6113106 7. Letter from Scott & Maria Mallory, dated 6114106 8. City of Edmonds' Memorandum of Law 9. Letter from Charlie LaNasa, dated 6112106, with 3 attachments A. Items to be considered for the Applicant's Timeline (from Exhibit 2, Attachment 3) B. Letter from Duane Bowman, dated 3121106 C. Subdivision Findings of Fact and Decision (file 5-15-90) D. Letter from Louis Emenhiser, Wetland Resources, Inc., dated 6/26/02, with attached map 10. Letter from Scott & Maria Mallory, dated 615106, with attachments: A. Letter from Laura Casey, DOE, dated 8122105 B. Letter from Duane Bowman, dated 3121106 Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 16 11. Jim McQueen's written comments on Rick Gifford's Memorandum (Exhibit 2) 12. Memo from Steve Bullock, dated 6115106 13. Letters to the Editor in the Edmonds Beacon, 11/10/05 14. Article in the Edmonds Forum, 10/25/05 15. Letter from Rick Gifford, dated 6112106 16. Email from Rick Gifford, dated 6114104 PARTIES OF RECORD: Eric Thue�sen 18333 85 Pl. W. Edmonds, WA 98026 Gary & Joan Bloom PO Box 219 Edmonds, WA 98020 Vivian Olsen 509 9' Ave. N. Edmonds, WA 98020 Scott & Maria Mallory 520 8' Ave. N. - Edmonds, WA 98020 Ken & Vera Reidy 771 Daley St Edmonds, WA 98020 Bill & Kathy Baird 850 Daley St Edmonds, WA 98020 Rick Gifford Planning Division 600 Main Street, Suite E City Attorney Edmonds, WA 98020 Engineering Division Charles & Carolyn LaNasa 5248 th Ave. N. Edmonds, WA 98020 Jim and Barbra McQueen 5288 th Ave. N. Edmonds, WA 98020 Laurie Niven 847 Daley St, Edmonds, WA 98020 Richard E. Gifford Email: ricks railardJakv.ce�m July 14, 2006 COPY Mr. Ron McConnell Hand Delivered City of Edmonds Hearing Examiner 121-5 th Avenue North Edmonds, WA 98020 REQUEST FOR RECONSIDERATION Re: S-2005-9/SD-2005-5 and Appeals AP-2006-45/AP-2006-45 Eric Thuesen Custom Homes, LLC, Applicant/Appellant Dear Mr. McConnell: This bequest for Reconsideration in the above matter is submitted on behalf of the Applicant, Eric Thuesen Custom Homes, LLC/Eric Thuesen ("Applicant"). We are in receipt of the Findings, Conclusions and Decision of the Hearing Examiner, City of Edmonds dated July 6, 2006 (`.`Decision"). Applicant respectfully requests your reconsideration of the following portions of the Decision pursuant to ECDC 20.100.010(G): 1. The Hearing Examiner's observations/findings set forth on page 7 of the Decision and related conclusions (Conclusion] 2) on page 12 regarding the adequacy of the Critical Areas Study prepared by the City's designated environmental consultant, Pentec Environmental, and Wetland/Drainage Issues; 2.. The Hearing Examiner's observations/findings on page 12 of the Decision and related conclusions on Page 13 (Conclusion 3) regarding minor/substantial changes to a vested subdivision application and vesting standards as applied to this proposal; 3. The Hearing Examiner's finding on page 12 concerning information submitted as part of the original application under ECDC 20.75.060; 4. Decisions 3 (vesting of a third lot) and 4 (remand for further study). 600 MAIN STREET", SUITE E • EDMGNDS, WASHINGTON PHONE: (425) 673-9591 • FAX: (425) 673-0631 File AP -21306-45 & 48 Mr. Ron McConnell June 14, 2006 Page 2 A marked copy of the Decision is attached highlighting the specific segments of your narrative that are addressed herein. The basis for reconsideration is outlined below. In making the enumerated requests Applicant does not waive, and expressly reserves, any and all claims, causes of actions, rights, entitlements, and remedies available to Applicant relating to the proposal and the pending appeal. Item 1: Adequacy of CAS and Wetland Survey. You raise hypothetical questions about the size of the subject wetland, notwithstanding the qualifying and approved critical areas study by Pentec that scientifically classified and delineated the wetland (Exhibit 1.8, the "CAS"), LSXs conforming professional survey (Exhibit 2.6) approved by the City and deemed consistent with standard industry processes and protocols by Pentec in its independent review ordered by the City (Exhibit 1.9, the "Independent Review"), and about the adequacy of these professional determinations. Decision at 7. We dispute that these issues are properly before the Hearing Examiner on appeal. If you conclude otherwise, we do not consider them to have any factual foundation or validity. Even if the noted issues can be heard and are deemed to have some evidentiary weight, the Hearing Examiner is not authorized to impose additional study or review requirements under governing code provisions as a matter of law. Issue Not Properly Raised on Appeal. Mr. Mallory's notice of appeal on behalf of the neighborhood appellants (Exhibit 1.2) does not challenge the adequacy of the critical areas studies and wetland survey, and makes only an oblique reference to wetland delineation as it relates to vesting under the old or new critical areas regulations. During the public hearing, you stated that you would not consider Applicant's procedural claims because, in your opinion, the same were not facially specified in the notice of appeal. Without addressing the substance of that determination at this time, we note that the same logic must apply to the neighborhood appellants, whose claims similarly should be limited to those raised in their notice of appeal. The notice of appeal says only "[T]he application deadline compliance and wetland delineation accuracy remain in question with regard to which City Codes should apply (old Vs. new)." While this language is jumbled and hard to understand, it is clear that the issue addressed is code vesting. That issue (vesting under the previous or newly enacted critical areas regulations) is fully addressed and categorically resolved in your Decision, consistently with the position taken by all parties and legal counsel, with the exception of the appealing neighbors. To the extent the accuracy of the wetland delineation had any bearing on that question, the matter has been unequivocally resolved in favor of vesting under the pre-existing ordinance. Mr. Ron McConnell June 14, 2006 Page 3 Accordingly, any claim that the wetland was mismeasured, or that flags were moved, or that something is suspicious or does not make sense, or that the wetland is or should be bigger, was not properly raised by the neighborhood appellants and is not before you on appeal. An issue excluded from the required notice of appeal cannot be raised independently by a party or by the Hearing Examiner. Morever, for the stated reasons, the adequacy of the City's critical areas study is amply established by the evidence, Pentee's commentary, and the City's repeated determinations. On procedural as well as factual grounds, it cannot be challenged. Lack of Factual Foundation. No evidence, expert opinions, new information, or factual material of any kind is cited in regards to these issues. In explaining your hesitation about the wetland delineatin and survey, you refer to (1) an unverified "wetland review" from several years ago, consisting of a single hand -drawn map and a four -line memo, supplied without supporting documentation of any kind by one of the neighbors (Exhibit 9, Attachment D), (2) acknowledgements of surprise by the laypersons involved in this matter with the results of the code -required technical studies (the neighbors also were unhappily surprised by, and failed to understand, the results of the geotechnical study and peer review, but this has no bearing on the competence of those studies or the issues under appeal), and (3) the isolated "qualifying observation" in Pentec's Independent Review coupled with the time between completion of the CAS delineation and the survey (roughly, and very typically in the current active development and construction climate, six weeks). Issues like these underscore the reason and need for professional, technical studies. The experts are qualified to make these assessments, in a scientific environment, and they are trained to understand, account for, and properly interpret such considerations in making their best professional judgments. You note the neighbors unsubstantiated "belief' that the wetland is other than as certified by Pentec and LSA, and other than as acknowledged by staff in reliance on their work product, generated over a period of months. The neighbors' "visual observations", photos they may have taken, and private assessments have no probative value and demonstrate little more than their personal preferences. The code mandates that independent technical analysis must be relied upon and is determinative. Speculative opinions and inferences must no be allowed -to cooler or cloud the decision making process. Citing unscientific and unprovable assertions, you have ordered (1) an new wetland delineation and survey controlled by staff, (2) paid for again by Applicant, and (3) with no prescribed timeline for completion. This already has been done in strict conformance with the regulations, under the City's control and with its full approval. The Decision effectively forces Applicant to keep playing a game of Russian roulette, at its risk and expense. It is as if the effort is to keep working this matter and delaying a decision until the neighbors and the City get the desired answer to the question: "How big is this wetland?" All of this speculation and indecision is taking place 18 -months into a process that by code was supposed to have been finished within 120 days after completeness, but has been prolonged by admitted staff oversights and mistakes, Mr. Ron McConnell June 14, 2006 Page 4 procedural breakdowns, and reversals of advice to the Applicant. Already, the City's mishandling of this proposal has cost Applicant months of delay and thousands of wasted dollars. The noted questions lack any basis in reality or fact. City staff had and has no such questions about the technical studies they commissioned, approved, and consistently have upheld as adequate and complete. There is no evidence in the record to justify questions about the approved studies or any additional requirements. Furthermore, the Hearing Examiner and the City are without authority under the critical areas regulations or other code provisions to impose more burdens and delays on this application. We will briefly address the suppositions that you identify as "giving you a great deal of pause" and leading you to "err on the side of caution" (Decision at 7) by ordering yet another wetland study and another survey at Applicant's risk and expense. We categorically disagree that the neighbors have raised "significant questions". On this record, their observations are nothing more than unsupported claims and smoke. The prior "wetland review" supplied by Mr. LaNasa and to which you refer, is not evidentiary. It is unverified, sketchy, and unproven. It was addressed to other parties and for other purposes. It is not a qualifying critical areas delineation or study and has not been in any manner evaluated, approved, or documented by the City. The credentials of the author are unknown. It contains no statement of baseline standards, methodology, or assumptions, no classification or delineation parameters or controls, no explanatory narrative or qualifications, no limitations on use of results, and no summary of data and results. The crude drawing shows 7-9 flags around generalized, approximated wetland boundaries and an estimated area. The Pentec study follows prescribed technical protocols for wetland studies/delineations performed by qualified wetland biologists and/or environmental scientists. It uses 17 boundary flags to more precisely delineate the subject wetland. As Pentec stated in its Independent Review, the LSA survey shows all 17 flags and a wetland similar in size, location, and shape, to the wetland as field - delineated. The old review, whatever the neighbors suggest that it is or shows, definitively is not a qualifying critical areas study under the City's regulations, would not and could not be used as such, and is of no relevance in these proceedings. The pictures submitted by the neighbors likewise are not competent evidence because they have not been authenticated, shown to be accurate, or even to depict what is represented. So far as the Hearing Examiner knows, they could be photographs of any wet area, taken anywhere at at any time. These items have been presented to the Hearing Examiner, but they are not evidence. Reliance on such undocumented and unscientific material is not only misleading, it is contrary to the language and intent of the critical areas regulations. ML Ron McConnell June 14, 2006 Page 5 We believe your findings also misinterpret or mischaracterize Pentec's CAS and Independent Review. The CAS did not "determine" the wetland to be over 2,500 square feet as you state in the Decision. Rather, that study preliminarily estimated the wetland boundaries at over 2,500 square feet, preceded and qualified by this statement: "The jurisdictional determinations are preliminary and subject to verification by the City of Edmonds, Corps, and Ecology." In its later review ordered by the City under ECDC 20.15B.140, Pentec made the following additional statements, quoted but not discussed in the Decision (at 7): "The size, shape and location of the wetland shown on the LSA map resembles the sketch map we provided in the May 17, 2005 wetland delineation report. The sketch map was not drawn to scale and no measurements were taken in the field, so our sketch map does not show the _precise location of the wetland boundaries. itis reasonable to conclude that the LSA survey accurately located the flagged wetland boundary, because all of the wetland flags were located and the LSA map shows the same general wetland size and shape as on our wetland man." At Report, page 1, emphasis supplied. Pentec went on to confirm that "we [originally} estimated the size of the wetland," and "[ojur estimate was not based on any on-site measurements and was approximate only." The critical areas regulations mandate a conforming study by a qualified technical expert. Such a study was done. A consistent survey was performed in accordance with accepted industry standards. A further independent review and report was supplied by the consultant at the City's request, and at its expense, as allowed under the code. Pentec properly delineated the wetland, its delineation was more accurately specified by accepted survey methods, and the results were re -assessed and supported by Independent Review, subject only to a standard professional qualification. The same technical work product was received, reviewed, and approved by City staff and has never been formally challenged, not even by the neighbors. No evidence was presented to suggest that the wetland flags placed by Pentec were moved or tampered with, and Pentec's Independent Review indicated that all appeared to be in place and in order. Each of the 17 boundary flags were located and surveyed. Neither LSA nor Pentec noted anything irregular, suspicious, or questionable about the flag placement or site conditions. Pentec emphasized the consistency in all material respects of the delineation and the survey, and deferred to the survey calculations as the more precise, accurate measurement compared with its estimates based on field approximations. The overall thrust of the Independent Reviewis to affirm and support the accuracy of the survey. Your focus instead on Pentec's passing disclaimer oddly is perplexing, and skews the clear and unambiguous intent of the report. The neighborhood opponents did not like the results of the CAS and survey, posed questions about Pentec's and the surveyor's methods, and made unsupportable, allegations about the flags being moved. These irresponsible, inflammatory allegations Mr. Ron McConnell June 14, 2006 Page 6 were repeated by some neighbor appellants at the public hearing. Their testimony corresponds with the result they want, not with reality, and simply is not factual. The issue is not what the neighbors, Applicant, City staff, or anyone else thinks, hopes, or wants the facts to be. The issues and this decision hinge only on what properly introduced, credible evidence shows, and what the relevant regulations and governing legal principles allow. You must Iook only to the objective facts in light of applicable law. The final decision in this matter cannot be improperly influenced by unqualified opinions and subjective interpretations of scientific evidence. Applicant notes that while these issues were studied, confirmed and re-evaluated by the City's technical consultant, the neighbors did nothing to investigate or substantiate their concerns and allegations. They objected to the wetland study results, just as they objected, without valid basis, to the geotechnical studies, but they lacked the expertise to knowledgeably critique the studies themselves and they did not seek the assistance of qualified experts to assist them. In their meetings with staff and in their numerous letters and emails, and again on appeal, they recite the same undocumented, non -evidentiary, subjective questions and concerns. Expressions of surprise, disappointment, or confusion by laypersons about the results of technical studies carry no weight whatsoever. Again, laypersons likely always will be surprised in one manner or another. That is why we need experts to generate and intelligently evaluate and interpret scientific data. Pentec and LSA are well-regarded, highly qualified consultants. Pentec was selected by planning staff and is the City's consultant. The CAS and the survey were performed according to accepted professional standards. Nonetheless, when the neighbors voiced concerns, Mr. Bullock took the unusual step of directing Pentec to conduct an independent review as allowed under ECDC 20.15B, 140. The neighbors wanted an entirely new study, but this is not required or even provided for under the code, and Mr. Bullock properly declined their request. Mr. Bullock testified at the hearing that the CAS, survey, and Independent Review meet code requirements and are accepted by the City as adequate, complete, and accurate. Based on the significant body of work by the technical consultants, the position taken and re -affirmed by staff, and the lack of any cognizable evidence to the contrary, the existing studies and determinations are the only sound basis of decision and must be affirmed. Additional Study is Unauthorized and Cannot Lawfully be Ordered. Even if the adequacy of the CAS, survey, and/or Independent Review properly was before you on appeal and a valid factual basis for further study is deemed to exist, legally, nothing more can be required. The code provisions acknowledged by the City and the Hearing Examiner to apply in this instance are clear and unambiguous about what is allowed: A qualifying critical areas study and, if deemed necessary by the Planning Director, an independent review of any such study (See ECDC 20.15B.I30(B), and .140(C), (D), and (E)). All lawful allowances long ago were imposed and Applicant has fully complied with code requirements. Any further conditions or requirements clearly are extralegal. Neither the City nor the Examiner lawfully can require more at this point. Mr. Ron McConnell June 14, 2006 Page 7 A final decision must be rendered based on what is before the Hearing Examiner in this record, and nothing more. ECDC Ch. 20.15B is the regulatory framework for all of these issues, as the City and Applicant asserted and as you correctly decided (Decision at at 13). The City's and Applicant's actions under ECDC 20.15B.140 in complying with the critical areas study requirements are summarized as follows: I , The City initially determined it was likely that a wetland existed on the site and that a new an qualifying wetland study by a City approved critical areas consultant would be required. 2. The application was filed in mid-January 2005. The wetland study requirement was confirmed in the City's completeness notice 30 days later. The City provided Applicant with its mandatory three -party contract form at the end of March, which Applicant signed and returned with the $2,600 fee the same day. 3. Pentec performed its study and delineation under the contract, with no Applicant input, consultation, or contact, and issued the CAS to the City on May 17, 2005, four months after the application and three months after the City's completeness determination. 4. As allowed, Applicant arranged to have the delineated wetland surveyed by a licensed, professional surveyor, at its expense, to definitively quantify the estimate based on the delineation. The City made no objection and supplied no specifications (in fact, the code says nothing at all about surveys of delineated wetlands). 5. in the six weeks between issuance of Pentec's CAS and the wetland survey, the site was not altered or disturbed by Applicant. The survey was scheduled in sequence with other projects and LSA completed the wetland survey in ordinary course on July 7, 2005. 6. The City issued the Exemption Notice to Applicant on July 14, 2005 unequivocally confirming the wetland was not regulated for purposes of the subdivision application and review. 7. Under the Exemption Notice, and with the prior knowledge and authorization of staff, Applicant dug soils test pits on the lower portion of its property in where the unregulated wetland. 8. When the neighbors complained, Applicant, City staff (Mr. Bullock), and Mr. Thuesen met together at the site. Among other things, the neighbors objected to the Pentec delineation and the survey and questioned their accuracy, without substantiation. They asked the City to have another Mr. Ron McConnell June 14, 2006 Page 8 study performed. Mr. Bullock declined, but agreed to ask Pentec to conduct an independent review of the matter and the LSA survey. 9. Pentec issued the Independent Review two months after the survey, at which time Applicant had discussed with staff a three -lot revision, staff had endorsed that modification of the proposal based on the studies and Exemption Notice, preliminary drawings had been prepared, and supplementary drawings had been prepared incorporating staff review comments and requests for additional site design detail. 10. The City accepted the CAS, LSA survey, and Independent Review and has never suggested that any further reports, studies, or reviews are needed. Through no fault of Applicant, the City and its consultants took nearly eight months to complete the necessary work, simply to confirm that the small wetland was below the size threshold and, as the Exemption Notice had stated, was exempt from all regulation. 11. Throughout this time and subsequently, a period of many months, the neighbors did nothing to investigate or verify the CAS or LSA survey or the technical findings. Like Applicant and City staff, they are not qualified to evaluate the wetland or critique the studies themselves. Moreover, they are admittedly biased. They did not want any development on the sloped part of the property and they want to force Applicant to preserve the unregulated wetland. Yet, they did not engage a qualified consultant to review Pentec's or LSA's work product or undertake any bona fide, objective review of the data. They raise the same unfounded questions and allegations that were rejected or countered by the City, its critical areas consultant, and the technical findings months ago. The foregoing actions show good faith, best effort, and full compliance by Applicant with all code requirements. Applicant tried, with little apparent success, to expedite all elements of the process, but virtually everything was outside Applicant's control and under the direction and control of the City and the consultants. Applicant had no influence on the work itself, and little real ability to keep the process moving. Staff workload and busy consultants resulted in significant delays. Finally, Applicant has reached the limit of the City's authority to require more or interpose further steps that will merely forestall a final decision. Applicant is entitled to the entry of that decision without further delay. The code provisions governing critical areas studies are set out in ECDC 2015B.140, and Part (E) outlines the rules applicable to independent reviews of completed studies, as follows: Based on a review of the information contained in the Critical Areas study and the conditions of the development proposal site, the planning official may require independent review of any such study. The independent review shall be Mr. Ron McConnell June 14, 2006 Page 9 performed by a qualified technical consultant selected by the City and paid for by the City. The purpose of such independent review is to provide the City with objective technical assistance in evaluating the accuracy of the submitted reports and/or the effects on Critical Areas which may be caused by a development proposal and to facilitate the decision-making process. Applicant and the City adhered to the preceding provisions to the letter, although it took considerably longer than it should have to get to the bottom line. Mr. Bullock's decision to order independent review when the neighbors complained was within the discretion granted to the planning official. The Independent Review confirmed the delineation and survey results and the planning official accepted and repeatedly has upheld these determinations. Under the code, the planning official cannot conduct, impose, or require, any further reviews or studies, nor can the Hearing Examiner compel them. Even if additional review or study could legally be ordered, it would be entirely at the City's expense, not the further cost of Applicant. That is a moot point, however, because Applicant has done all it lawfully can be required to do, and the City has undertaken the allowed extra step and has accepted and acted upon the data in rendering its decision. No further requirements or burdens can be imposed on this process. The CAS, survey, and confirming Independent Review stand on their own merit, nothing more is authorized under the code, and no evidence has been submitted, or validly can be submitted, to the contrary in these proceedings. In light of this information and under the clear language of the applicable regulations, we request that any and all purported requirements for additional study or review of the wetland be stricken from the Decision, that the CAS and related findings be upheld, and that the Decision be modified to finally determine that the wetland is unregulated and that no buffers, building setbacks, or restrictions of any kind can be applied by the City relating to the wetland or its boundaries. The related remand to the City likewise should be retracted and the matter finally decided immediately by the Hearing Examiner. A decision is long past due. If the neighbors believe themselves aggrieved and wish to pursue their claims on appeal, they may avail themselves of such rights, as may Applicant. Item 2: Plat Revision for Three Lots; Vested Status. The discussion of this issue at pages 11-12 of the Decision assumes without citation to authority that (1) the relevant standard is "minor" v. "substantial" change, and (2) that the revision of the short plat application to add a single lot, by definition, constitutes a "substantial change" that would overturn its vested status. Thus, Applicant's proposed revision to add a third lot, which initially was endorsed by City staff after the Exemption Notice but was reversed three months later after Applicant changed position with staff's express knowledge and involvement and in reliance on its advice, is deemed not to be vested. Edmonds has no known code provisions, rules, guidance, or established written policies on this point, although the Decision treats the presumed standard as a verity. There is no support for this legal conclusion. Unlike many other jurisdictions, the City Mr. Ron McConnell June 14, 2006 Page 10 has no application vesting regulations in its subdivision code or in its general zoning and land use regulations. By contrast, King County has a general vesting provision, KCC 20.20.080(B), that applies to modifications to a proposal requested by an applicant. Such modifications are deemed to be a new application when they "result in a substantial change in a project's review requirements, as determined by the department [of development and environmental services]." No such test or measure is specified in the Edmonds code. Staff reversed itself several months after telling Applicant it could proceed with a three -lot plan revision, but made no clear or definitive determination of its rationale or the basis for the change. Applicant was not referred to governing language in the code, and nothing was put in writing. It was all very nebulous, indecisive, and inexact. To our knowledge, vesting is mentioned in Edmonds' development code in only two places. The first is in ECDC 19.00.025(B)(4), in the code -specific context of optional vesting for ADB review. That subsection provides that after final ADB design approval, a "substantial change" in project design is not vested. That is a very different and particular situation, operative only after an applicant has followed a modified process to vest a particular design and has gone all the way through final design review and approval, then seeks allowance for a change. Even there,"substantial change" is undefined. The second reference is in ECDC 19.00.015 which recognizes that "minor revisions or changes" in the course of building permit processing are commonplace and not something that will keep an application from being deemed incomplete. Again, the key term—"minor revisions or changes"—is undefined. This provision deals with completeness, not vesting. These are the only identified references in the code to the terms used in the Decision to describe the proposed three -lot short plat revision. They have no application or relevance here. City staff also has argued, and also without citation to any authority or precedent, that the relevant standard is substantial change, that this revision is such a change, and that the three -lot variant is not vested. These are conclusory statements. They are not legally defensible. If a standard exists, where is it, why did staff come to the opposite conclusion in August 2005, and why did it take three months for the light to come on? If, as you conclude, adding any more lots to a plat, whether just one, or a hundred, regardless of site conditions, zoning, development standards, staff advice, newly discovered evidence mandated by the City, or other variables, is de facto, a new and unvested application, why did staff endorse and readily accept the revision in the first place, request additional work and drawings to detail it, and hold it under review for seven weeks before telling Applicant it would not be vested after all? The answer is that the question is far from clear to staff, let alone applicants, because the City's codes and plans .are devoid of applicable standards. In such circumstances, under basic entitlement and due process considerations, the benefit of the doubt must go to the land owner and ambiguity legally must be resolved in favor of protected property rights. This is axiomatic under Washington case law, as cited in Memorandum of Applicant at 35, which requires ambiguous development standards and regulations to be strictly construed in favor of land owners because they are in Mr. Ron McConnell June 14, 2006 Page I I derogation of private property rights. Where there are no standards at all, municipalities and hearing examiners are not free to make them up. To do so is unfair at best and arbitrary, capricious, and confiscatory, at worst. The Washington courts have spoken to the vesting issue most recently in the so- called "cherry picking" case, East County Reclamation Co. a Bjornson, 125 Wn. App. 432 (2005), cited in Memorandum of Applicant at 24. In that case, the applicant attempted to pick and choose between old and new regulations, In rejecting the applicant's contentions, the court noted that had the applicant wanted to have the new regulations apply, he simply could have withdrawn his application and re-applied, but he did not, and, therefore, he remained subject to the regulations in place when he submitted a complete development application. Bjornson at 439. As stated in other Washington appellate decisions cited in Applicant's appeal materials, the vesting doctrine protects developers and affords certainty in the laws and regulations that apply to a proposal. if a land owner submits a complete application, and does not later withdraw and re -submit it, but merely revises it in light of information legitimately and independently provided during the review process, the application, under Bjornson, remains vested. This correlates with the purpose of the vesting doctrine and with common sense. State and local permit processing requirements binding on the City allow, and in some circumstances require, supplementary information to be gathered after a complete application has been submitted. Requiring an applicant to obtain and pay for more complete information, then disallowing reasonable and appropriate refinement of the underlying proposal in light of that information, is counterproductive, insensible, and probably unlawful. That is precisely what is being done here. Applicant and the City did not know if a regulated wetland existed on the site. Applicant submitted a proposal based on the presumption that the possible wetland was regulated. When the City's CAS proved otherwise and Applicant's geotechnical study was affirmed by the City's peer review engineer, Applicant and the City realized that three lots instead of two could be created on the site under the zoning code and the applicable critical areas regulations, with relatively minor modifications to the proposal and associated review criteria. The addition of a single lot, in and of itself, did not necessitate major changes in the review requirements for the project. With the City's concurrence, Applicant updated the proposal to incorporate the correct wetland and slope information, and revised its pending application accordingly. Applicant discussed all of this at length and in advance with Mr. Bullock. When the three -lot revision was made, no new application was submitted and no new or additional fees were collected by the City. The original application was not withdrawn, but rather was revised as directed by staff to incorporate the correct information. The City's requested and preferred access and utility configuration was retained. The revised application added a single lot. The removal from the short plat of the small and unregulated wetland and the addition of the third lot, were logical extensions of pentec's and the City's findings, and the City's unqualified Exemption Notice. Applicant and the City continued down this path until October 28, 2005, when staff announced the reversal of its earlier position and induced Applicant to return to the two -lot layout. Mr. Ron McConnell .lune 14, 2006 Page 12 During the hearing, you asked the undersigned if a vested 100 -lot subdivision increased by a third to 150 lots would remain vested, implying that if going from two lots to three is vested, then so should be a commensurate percentage increase from 100 to 150 lots. Of course, such a comparison is inapposite, particularly when presented hypothetically. As the Hearing Examiner well knows, it is a relative question that cannot be answered by raw numbers absent a bright line standard. No such standard exists in Edmonds. Preliminary plat approvals commonly are modified, sometimes to add lots, or to reconfigure road networks, or open space, or onsite storm detention, without crossing the "substantial change" line. Applicant did not propose a revision to add 50 lots, 10 lots, or even two lots. It is a single residential lot on a parcel over an acre in size, with more than adequate area under the applicable R-12 zoning to allow three lots. Moreover, by its own admission, staff first endorsed the revision as a vested modification, then changed its mind two months later. Even if the proper standard is "minor v, substantial" change, this is not substantial in any material sense. It would add one residence, but would not change access point or utility service. The wetland expert has determined this is an unregulated wetland and the geotechnical experts have determined that the site qualifies for a steep slope exemption to allow construction in the central area. Under these expert judgments, the Exemption Notice, and the City's own codes, the wetland can be eliminated with no impact on vested status, irrespective of the number of lots in the approved short plat. At issue is an increase from two to three single-family homes in a single-family neighborhood, with minimal difference in real impact. Again, the decision must rest on facts, not perception. Staff contends that the application vested to the original two -lot plan, as subsequently revised for access and other adjustments preferred by the City, simply because an undelineated, conceptual wetland originally was shown, even though no one knew if a jurisdictional wetland even existed on the site. The City put no credence on the old, generalized wetland reconnaissance and commissioned the CAS at the applicant's expense. When the wetland and geotechnical studies exempted the site from regulation, staff confirmed this in writing and allowed revision of the short plat for three lots, with modified access and utility service unchanged. Even later, after the City changed its mind and sought to force preservation of the wetland, it did not retract or qualify the Exemption Notice or alter its conclusion that the wetland is not a regulated critical area. Staff tried unsuccessfully to circumvent its critical areas ordinance and regulate the wetland through the back door. Staff also threatened loss of vested status and regulation under the new critical areas ordinance if the three -lot revision were pursued. Confused and intimidated, Applicant reverted to the two -lot variant to preserve vesting, and only later learned the City planned to impose buffer and setback restrictions regardless. Staff considers the two -lot proposal, with its preferred access and utility service plan, to be fully vested. The three -lot revision is a relatively modest adjustment in these circumstances and, in any event, nothing in the City's code de -vests it. The revision was approved in concept in advance by the City, neither staff nor the Hearing Examiner has identified any code standards, policies, or applicable law to support loss of vesting, the Mr. Ron McConnell June 14, 2006 Page 13 City did not treat the revision as a new application or a re -submittal, did not issue a new notice of completeness, did not re -assess application fees, and did not require any supplementary critical areas or other studies. Development regulations restrict private property rights. Regardless of subjective preferences, where codes are unclear, incomplete, or fail to address a topic, the doubt must be resolved in favor of those rights according to the courts of this State. Mall Inc. u Seattle, 108 Wn.2d 369, 378 (1987); Morin a Johnson, 49 Wn.2d 275, 279 (1956), both cited in Memorandum of Applicant at 35. The personal beliefs or opinions of a project opponent, Planning Director, or Hearing Examiner, in the absence of controlling regulations, cannot justify a decision in derogation of the rights of a land owner to use and develop his property as he wishes. This site was found not to have a regulated wetland and not to be restricted by steep slope regulations. There is sufficient area for three lots. The City advised the applicant three lots were allowable and the applicant spent money and time revising the plat application and meeting additional informational requirements from staff. The code contains no relevant vesting standards and there is no basis for a litmus test that an increase from two to three lots, regardless of other factors, constitutes a new application and voids vesting. This is the effect of the Decision. With the City's codes and informational requirements as they currently exist, such an interpretation creates an untenable condition for applicants, who must produce and pay for technical information, but then may not be allowed to modify their proposals accordingly without losing time or development rights or both. An important purpose of costly technical studies like the CAS and the geotechnical review is to inform permit applicants and reviewers of relevant information to properly guide and ideally streamline the process, not to hogtie projects and hang them up in technicalities indefinately. The three -lot revision was a reasonable modification based on more accurate information required by the City. But for the vesting issue, there are no impediments to its approval under City's development regulations. The standards cited in your Decision are not derived from the City's code or any other identified source. There is no valid basis in fact, regulation, or law for a determination that this revision would de -vest the proposal and subject it to more restrictive review. We ask that you reconsider and revise conclusion 3 of your Decision accordingly, reverse the denial set forth in Decision Item 4 in this regard, and approve or direct staff to approve the three -lot plat revision. Item 3: Finding Re Completeness of Subdivision Application. You refer in the Decision at 12 to certain information required to be supplied in an application for a subdivision under ECDC 20.75.060 and ostensibly not submitted by Applicant. If you are saying this information was not submitted at the outset, in January 2005, it is an untrue statement as the City's files and records in this matter establish. The referenced materials and information were supplied by Applicant at that time. The same or equivalent information was provided by Applicant in connection with the three -lot revision. Again, we direct the Examiner's attention to the City permit files Mr. Ron McConnell June 14, 2006 Page 14 that are part of the record on review. Specifically, please refer to the revised short plat drawings attached to Memorandum of Applicant (Exhibit 2.8). The submittal of all required information and materials for short plat review was confirmed by City staff in February 2005, excepting only the required critical areas study and geotechnical peer review, both of which were provided later by the City's consultants. The City has repeatedly confirmed the adequacy and completeness of the application as originally submitted and as revised. Your conclusion to the contrary is unsupported by the record and testimony. We request that this finding be corrected to accurately portray the record in this matter. Conclusion. Based on the information, testimony, and legal argument presented at the public hearing by Applicant, and in the preceding discussion, Applicant respectfully requests that the Hearing Examiner review and reconsider the specified matters, modify and/or clarify the Decision as herein requested, and enter final findings and conclusions on appeal (1) sustaining the CAS, LSA survey and Independent Review, (2) withdrawing the requirement of any further studies, reviews, or analyses of the subject wetland and retracting the remand order, (3) affirming the vested status of the three -lot short plat revision and approving or directing City staff to issue immediate approval thereof, and (4) making such other adjustments and corrections as are necessary and appropriate hereunder. We appreciate the opportunity to present t ' equest for reconsideration. F e ly rs4Gf�d t R' d Attorney for Applicant/Appellant Eric Thuesen Custom Homes, LLC cc: Duane Bowman, City of Edmonds, by hand Steve Bullock Gary Haakenson Eric Thuesen `P C ,189\3 CITY OF EDMONDS 121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220• FAX (425) 771-0221 HEARING EXAMINER GARY HAAKENSON MAYOR JUL 1 p X06 0 RICHARD G FFQRp FINDINGS, CONCLUSIONS AND A' OFFICES PI t c OF THE HEARING EXAMINER CITY OF EDMONDS APPLELLANTS: Scott and Maria Mallory et al: AP -06-45, & Eric Thuesen; AP -06-48 CASE NOS.: AP -0645 & AP -06-48 IACATION: 509 9" Ave. N (see Exhibit 1, Attachment 1) APPEAL: Appeal of an approved 2 lot short plat and steep slope exemption in a Single -Family Residential (RS -12) zone (see Exhibit A, Attachment 2). REVEEW PROCESS: Hearing Examiner conducts public hearing and makes final decision. The Examiner reviews all of the relevant information and issues a decision based on the same criteria that was used in the original decision. MAJOR ISSUES: a. Compliance with Edmonds Community Development Code (ECDC) Section 16.20.030, Site Development Standards for the RS -12 Zone b. Compliance with ECDC Title 18, Pubic Works Requirements c. Compliance with ECDC Section 20.1513, Critical Areas d. Compliance with ECDC Section 20.75, Subdivision Requirements e. Compliance with ECDC Section 20.95, Staff Review Requirements f. Compliance with ECDC Section 20.105, Appeals and Court Review Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 2 SUMMARY OF RECOMMENDATION AND DECISION: Staff Recommendation: Deny the steep slope exemption and drainage pipe appeals, and remand the wetland issue back to the City staff for further review. Hearing Examiner Decision: Deny the vesting and drainage pipe appeals, and remand the wetland issue back to City staff for further review. PUBLIC HEARING: After reviewing the official file, which included the Planning Division Staff Advisory Report, and after visiting the site, the Hearing Examiner conducted a public hearing on the appeals. The hearing on the Mallory et al and Thuesen appeals was opened at 3:19 pm., June 1, 2006, in the City Council Chambers, Edmonds, Washington, and at 5:03 p.m. was continued to June 15, 2006. The hearing was reopened at 3:06 p.m., June 15, 2006 and was closed at 5:12 p.m. At the end of the hearing, the Examiner announced that he might not be able to issue his decision within 10 working days. Mr. Thuesen's attorney acknowledged that and noted that a short delay would be acceptable. Participants at the public hearing and the exhibits offered and entered are listed in this report. A verbatim recording of the hearing is available in the Planning Division. HEARING COMMENTS: The following persons offered testimony or legal argument at the public hearing. From the City: Steve Bullock, Planner Bio Park, Assistant City Attorney From the Appellants: Mallory, et al Appeal: Charles LaNasa, Appellant Scott Mallory, Appellant Joan Bloom, Appellant, Jim McQueen, Appellant Ken Reidy, Appellant Maria Mallory, Appellant Kim McQueen, Appellant Carolyn LaNasa, Appellant Eric Thuesen_Appgal. Rick Gifford, Attorney for Eric Thuesen Eric Thuesen, Appellant From the Community: No one from the general public spoke at the public hearing. Hearing Examiner Decision Case Nos. AP -0645 & AP -0648 Page 3 FINDINGS AND CONCLUSIONS: A. BACKGROUND The Applicant seeks to subdivide his 1.03 acre parcel of property zoned RS- 12 into two lots. The site location is 509 9th Avenue North in Edmonds, WA. The property contains a steep slope and a wetland. The Applicant's initial 2 -lot layout for the subject site was prepared November 22, 2004 and was submitted with the application on January 18, 2005 (Exhibit 1, Attachments 2 & 3). The 2 -lot site plan showed a wetland on the western portion of the property and a steep slop in the middle portion of the property. 2. Application was deemed complete by City stair pursuant to ECDC 19.00.015 to vest under the Critical Areas Ordinance (ECDC 20.15B), which was in effect on January 18, 2005 (the "Old CAO"). Following submission of the application, the City required additional information as noted below (Exhibit 2, Attachment 5, and Exhibit 8). 3. At the City's request, the Applicant hired Dennis Bruce, P.E., under a three party contract to conduct a geotechnical and drainage evaluation of the site (Exhibit 1, Attachment 5). Zipper Zeman Associates, Inc. conducted a peer review of that evaluation (Exhibit 1, Attachment 6). Dennis Bruce responded to that review (Exhibit 1, Attachment 7). The results of the study indicated that the slope on the subject property could meet the criteria for steep slope exemption. 4. Also, at the City's request, the Applicant hired Pentec Environmental under a three party contract to conduct a wetland delineation of the site (Exhibit 1, Attachment 8). Lovell- Sauerland & Associates, Inc. (LSA) conducted a survey of the wetland, which was completed on August 7, 2005 (Exhibit 2, Attachment 5). Pentac Environmental confirmed that survey on September 8, 2005 (Exhibit 1, Attachment 9). The wetland study determined the wetland to be less than 2,500 square feet in size, and determined that it was not regulated under the Old CAO. Staff concurred with the consultants' findings and notified the Applicant that the wetland on site was an unregulated wetland (Exhibit 2, Attachment 7). 5. Following completion of the (LSA) survey the Applicant discussed the possibility of a S- lot subdivision with staff and submitted a proposal to revise the application to allow a S- lot subdivision. The proposed revision to the two -lot short subdivision was prepared on August 18, 2005 (Exhibit 2, Attachment 8) and submitted on September 14, 2005 (Exhibit 2, Attachment 3, and Exhibit 12). Initially, the City staff indicated it would favorably review the request for a revision under the vested CAO, but after further review determined that changing the Application from two -lot short subdivision to three -lot short subdivision would constitute a substantial change to the Application. Staff notified the Applicant on October 28, 2005 that the proposed revision would not be vested and that the 3 -lot proposal would have to be reviewed under the new CAO regulations (Exhibit 2, Attachment 3, and Exhibit 12). Hearing Examiner Decision Case Nos. AP -06A5 & AP -0648 Page 4 6. On April 12, 2006, the City issued written Findings, Conclusions, and Decision on the Application. The City approved the two lot short subdivision with conditions such as preservation of wetland, 25 -foot buffer, 15 -foot setback and others (Exhibit 1, Attachment 1). 7, On April 21, 2006, Scott & Maria Mallory, et al, filed a timely appeal claiming that the City did not properly consider the potential negative impact of its decision to adjacent property owners and the environment. They also challenge the City's determination that the Applicants vested under the Old CAO (Exhibit 1, Attachment 2). 8, On April 24, 2006, the Applicant challenged the conditions that the City attached for approval of the two lot short subdivision and filed a timely appeal of the City's decision (Exhibit 1, Attachment 3). 9. In this report, the Examiner will review and respond only to the substantive issues raised in the appeal letters, and those issues, which are within his purview. Furthermore, the Examiner will base his report and decision on the same criteria as set forth in the code at the time the application was vested. B. APPEAL ISSUES 1. Mallory et al Appeal issues (see Exhibit 1, Attachment 2): a) Steen Slope Exemption: The Appellants state they believe the City has not adequately considered the potential impact of altering the steep slope area above the wetland. They believe that constructing a home on this portion of the site, including the excavation and vegetation removal will result in additional problems both above and below this slope that will be detrimental to their properties. They also believe that the geotechnical report submitted with the initial application is not adequate to determine those problems (Exhibit 1, Attachment 2, and Exhibits 3, 4, 5, 7, 9, 10 & 11). b) Vesting: The Appellants argue that the application was incomplete and shouldn't be vested under the 20.1513 version of the Critical Areas Ordinance and the wetland delineation was not accurately performed. They also argue that Mr. Thuesen's current proposal is different from the application submitted January 18, 2006, and that revision should also not be vested (Exhibit 1, Attachment 2, and Exhibits 3, 4, 5, 7, 9, 10& 11). c) Wetland/Draim a PiM: The Appellants believe the wetland is larger than 2,500 square feet based on visual observations of the site, photographs submitted as part of Exhibit 3, and a wetland study conducted in 1992 (Exhibit 9, Attachment D). They argued that the wetland is closer to 10,000 square feet in size. They further argued that even if the wetland isn't 10,000 square feet in size the September 8, 2005 letter firom Pentac doesn't confirm the accuracy of the LSA survey, but rather just states that "If this project is to be reviewed under the old Edmonds Community Development Code (20.15.13.020) then it would be exempt from City of Edmonds regulations because it is less than 2,500 square feet in size." Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 5 The September 8, 2006 Pentac letter also advised that "the area of the wetland on the LSA map is a more accurate measure of the wetland size, assuming all of the wetland boundary flags were accurately located." The neighbors' charges relative to this statement included the following: • All previous data showed the area of the wetland to be 5,000 to 10,000 square feet, • There were 2 months between the Pentac flag placement and LSA's flag survey, and • There were no controls on the LSA flag survey - neither the City. nor Pentac participated in the survey process. The Appellants would also like an existing pipe that goes into the wetland to be permanently sealed and restoration planting to be performed in the wetland to mitigate for damage they feel was sustained when the applicant dug some geotechnical test pits in the wetland area. The Appellants argued that building a road through a significant portion of property that is normally under water during the winter would greatly decrease the chances of survival of the wetland. The Washington State Department of Ecology also has jurisdiction over the wetland. (Exhibit 1, Attachment 2, and Exhibits 3, 4, 5, 7, 4, 10 & 11) Staff response: a) Steep Slopg Exemption: The applicant's subdivision and steep slope exemption request was submitted and deemed complete prior to the effective date of the new Critical Areas ordinance. This is documented in the staffs decision on the subdivision and steep slope exemption (see Exhibit 1, Attachment 1). The old critical areas chapter of the code did not allow someone to build a home on slopes over 40% unless some very specific criteria were met. The Steep Slope Exemption was the process that confirmed that. A Steep Slope Exemption requires that the applicant submit a geotechnical report documenting certain characteristics of both the subject sloped area and the proposed development. The City must confirm these findings with a peer review. If these criteria are met the exemption is approved and the applicant can build on a steeply sloped area. In this case, the applicant's geotech and the City's peer review confirmed that the steep slope exemption should be approved. In staffs opinion, the City has adequately evaluated the suitability of the subject slope for construction of a home. In fact, the City will continue to evaluate it through the review of building permit plans and construction. (Exhibit 1). b) Wetland/Drainage Pipe: Regarding the wetland, the existing drain line into the wetland, and re -vegetation of the wetland, the City feels those questions are adequately addressed in the initial decision (see Exhibit 1, Attachment 1). i-learing Examiner Decision Case Nos. AP -0645 & AP -0648 Page 6 City Attorney Response: a) Steep Slopp Exemption: Pursuant to ECDC 20.15.110, the Applicants have submitted all necessary materials including the Geotechnical Evaluation supported by peer review. As a result of the same, the City has determined that the property can meet all required characteristics for a steep slope exemption. Consideration of negative impact on neighbors and environment, as complained by the Neighbors, has indeed been fully considered as part of establishing the criteria that the property must meet before it qualifies for a steep slope exemption. After adequate evaluation, the City agrees with the conclusions of the Geotechnical Evaluation and peer review that the subject slope can meet the requirements for steep slope exemption and be suitable for approved construction of a home. The Hearing Examiner should the find and conclude that the City decided that the subject slope qualified for steep slope exemption only after fully considering to its satisfaction that the negative impact on neighbors and environment would be mitigated to acceptable levels as provided by law (Exhibit 8). b) Vesting: The City determined on or about February 17, 2005 that the Application submitted by Applicants on January 18, 2005 was complete for purposes of vesting of rights pursuant to ECDC 20.75.040. Although a required Critical Area Study was yet to be conducted, neither state statute nor City code mandates completion of the same as condition precedent to vesting of rights, See RCW 58.17.033 and ECDC 20.75.040. In addition, other than misuse of the term of art "technically complete" as "technically incomplete" in reference to applications that are vested but for which additional information is required, communications and actions by the City are consistent with the conclusion that the Application had vested on January 18, 2005 under the Old CAO. Therefore, the Hearing Examiner should find and conclude that the Application vested under the Old CAO in effect on January 18, 2005 (Exhibit 8). Hearing Examiner Response: a) Steep Slope Exertion. The neighbors raised a number of issues and objections relative to the steep slope exemption, however, they did not submit any site specific substantive information to show that the geotechnical report and response to peer review or the peer geotechnical review were incorrect (Exhibit 1, Attachments 5, 6 & 7). b) Vestin : The Examiner concurs with the City Attomey's response on this issue. A project permit application is complete when it meets the procedural submission requirements of the City and is sufficient for continued processing even though additional information may be required or minor project modifications may be undertaken subsequently. c) Wetlands: The second and third paragraphs of the Pentac Environmental letter dated September 8, 2006, state: Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 7 The size shape, and location of the wetland shown on the LSA map resembles the sketch map we provided in the May 17, 2005 wetland delineation report. The sketch map was not drawn to scale and no measurements were taken in the field, so our sketch map does not show the precise location of the wetland boundaries. It is reasonable to conclude that the LSA survey accurately located the flagged wetland boundary, because all of the wetland flags were located and the LSA map shows the same general wetland size and shape as on our wetland map. The LSA map shows the size of the wetland to be about 2,291 square feet (sJ). In our May 17, 2005 wetland delineation report we estimated the size of the wetland to be greater than 2,500 sf. Our estimate was not based on any on-site measurements and was approximate only. The area of wetland as reported on the LSA map is a more accurate measure of the wetland size, assuming all of the wetland flags were accurately located. If project is to be reviewed under the old Edmonds Community Development Code (20.15.B.020) then it would be exempt from City of Edmonds regulations because it is less than 2,500 square feet in size. What is troubling is the large difference between the wetland review prepared by Wetland Resources in 1992, which estimated the wetlands to be approximately 10,000 square feet in area (Exhibit 9, Attachment D), and the more recent wetland review. The recent wetland review originally determined that: the wetland is greater than 2,500 square feet, but less than one acre, with a forested wetland class, this wetland is rated as a Category 2 as per the wetland classification system in the Edmonds Community Development Code ECDC 20.15B.060 (Exhibit 1, Attachment 8, page 4), but then determined the wetland to be only 2,291 square feet in area per the LSA survey (Exhibit 2, Attachment 6). Furthermore, everyone at the hearing including the Applicant and City staff expressed surprise that the wetland was determined to be less than 2,500 square feet in area. Those observations, plus the sentence in the Pentac letter, which reads The area of wetland as reported in the LSA map is a more accurate measure of the wetland size, assumin-g all o the wetland fia s were accurately located gives the Examiner a great deal of pause. A wetland, even under the old CAO, is considered to be a regulated wetland if it is 2,500 or larger in area. The subject wetland has been determined to be within 8.5% in size of a regulated wetland under the old CAO. The Examiner believes that amount could be within the margin of error particularly given the observations of the neighbors, the 1992 wetland study, the photographs of the site attached to Exhibit 3, the admitted surprise of the Applicant and City staff, and the qualifying observation by Pentac underlined above. Therefore, the Examiner concludes that he should err on the side of caution and require the wetland to be reviewed one more time. if it is determined following the new wetland delineation and survey that the wetland is indeed less than 2,500 square feet in size then it should be treated as an unregulated wetland under the old CAO and no buffers or building setbacks should be required from the wetland boundaries. If it [-searing Examiner Decision Case Nos. AP -0645 & AP -0648 Page 8 is determined to be over 2,500 square feet in size, however, then it should be treated as a regulated wetland and all requirements of a regulated wetland should apply. The City only administers its' own codes and does not administer regulations adopted by the State of Washington or the Federal Government. Therefore, this report will not address any requirements of the state or federal governments relative to wetlands, but it is acknowledged that there may be state or federal requirements that the applicant must comply with on this site. d) Drainage Pi e: The Examiner concurs with staff that the issues relative to the drainage pipe were adequately addressed in the initial decision on this case, and the Examiner concurs with stags response to Mr. Thuesen's appeal relative to the drainage pipe discussed in B.2.b) below. However, it is understood that staff may require additional conditions or may change conditibns relative to the drainage pipe following the completion of the new wetland study. 2. Thuesen Appeal Lssues (see Exhibit f, Attachment 3): a) Wetland: The appellant states first that the wetland is less than 2,500 sq ft in size and therefore is not regulated under 20.15B. He also notes that several properties, the adjacent lots to the north, were subdivided in the late eighties and early nineties, under the same subdivision ordinance that his application is subject to, with similar soil conditions, and no wetland retention was required of them. He argues that the City attempts to apply a general subdivision code provision and provisions of the Comprehensive flan to regulate a wetland that cannot be regulated under its critical areas ordinance. He notes the critical areas ordinance is very specific in its application to specified critical areas, but does not provide requirements for unregulated sensitive areas, which is the case here. He argued that hen two regulations are or seem to be in conflict, as is the case here between the critical areas ordinance and the subdivision code, the more specific or specialized regulation will control. He argued further that the Comprehensive Plan is a guide and is not a regulatory document (Exhibit 2). He noted that the City wrote on July 14, 2005 in part that: The Critical Areas regulations that were in effect prior to February 15, 2005, did not regulate wetlands less than 2,500 square feet in area (ECDC 20.15.B.020. TT). Your pending subdivision application (S-05-9) was submitted when these regulations were in effect and is vested for its review under these regulations. For the purposes of this subdivision application and review, the wetland on site is not regulated (Exhibit 2, Attachment 7). He argued that City staff has been unable to articulate the basis for the required 25 - foot buffer and 15 -foot building setback that staff drew on the map of the property (Exhibit 2, Attachment 12). Mr. Thuesen also noted that many of the homes immediately to the north of his property are built on piles due to the nature of the soils in the area. None of those Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 9 homes seem to have caused damage to their neighbors while they were under construction. b) Drainage Pipe: The 1986 installation of a storm system along 8t' Ave. N. by the City is also described. Mr. Thuesen states that a 12" pipe from the wetland on his property to that system was installed by the City but damaged rather early in its service. Since damaged, the pipe has operated at only a fraction of its capacity. If it had been operational the wetland would have been smaller and might not have been there at all. Mr. Thuesen (after conversations with the City) removed the blockage and intended to re -open the pipe to restore its functionality. After objection by neighbors, the City issued a stop work order and directed Mr. Thuesen to replace the large rocks blocking the culvert and backfill the excavation, thereby preserving the status quo of a non- functioning public utility system. Although he questioned the propriety and wisdom of the City's order, he complied (Exhibit 2). Failure of staff to acknowledge these facts has lead to a decision that, in Mr. Thuesen's opinion, that requires the retention of the wetland, which is arbitrary and capricious. c) Vesting: The vested short subdivision application was merely modified. After staff indicated the wetland is not regulated, the proposed plat was revised from 2 to 3 lots and it should be approved as a 3 lot short subdivision Staff response: a) Wetland: Staff's original decision on the subdivision application is a discretionary permit as opposed to a ministerial permit. Therefore, besides just meeting bulk regulations, a subdivision is required to comply with the criteria of the subdivision ordinance, which requires some subjective analysis. The subdivision ordinance requires general compliance with the City's Comprehensive Plan and specifically with the Environmental Resources criteria. The staff report included as Exhibit 1, Attachment I documents stars analysis and rational for requiring retention of the wetland with buffers and in staff's opinion is not arbitrary and capricious (Exhibit 1). b) Drainage Pipe: In building a diversion system to protect Shell Creek in the mid - eighties the City installed a large pipe down 8'h Ave. N. The storm systems of the subdivisions just north of the subject property all tie into this City system and from drawings, it appears that the City installed a 12" pipe into the wetland on the subject property. The invert of that pipe also appears to be below the low point of the wetland. It is unknown if this pipe was installed at the owners request or expense. After this winter's rainstorms, Mr. Thuesen completed some exploratory excavation along this pipe to determine why there was so much water in the wetland when this 12" was supposed to be there. He found that portions of the pipe had been crushed and rocks and debris clogged it. Staff doesn't know how long the pipe has not functioned correctly, however, staff has anecdotal accounts of how this wetland Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 10 floods each winter. Regardless, enough water stays on the site each year to allow for the wetland to continue and function, both as a habitat site and a storm water storage and cleaning site (Exhibit 1). City staff will allow Mr. Thuesen to reconstruct the pipe into the wetland. However, the inlet to that pipe needs to be set at such an elevation that the natural hydrology of the site would be allowed to continue, meaning that water would be allowed to sit on the site and percolate into the ground naturally, and only storm overflow events would enter the pipe. Staff feels this is consistent with Mr. Thuesen's original application that is vested under the old critical areas ordinance where the wetland is proposed to be retained. Opening up the pipe at its current invert elevation that hasn't functioned in what staff believes is a long time could result in saving a portion of the site as a wetland that in fairly short order might not be a wetland any longer (Exhibit 1). c) Vesting: Mr. Thuesen, fails to note that his original application, which the City concurs is vested to the old Critical Areas Ordinance, was for a two lot short plat where both lots gained access to 90' Ave. N. and the wetland was entirely preserved. The completion of the study, which was through a three party contract with the City and an environmental firm, was not until after the new critical areas ordinance was effective. Although the study resulted in a wetland that was not regulated under the old ordinance the application that was vested under the old ordinance proposed to retain the wetland. Changing his application to a three lot short plat or even a two lot short plat that filled the wetland would be a new application that would be subject to the new ordinance (Exhibits 1 and 12). City Attorney Response: a) Wetlands: When reviewing an application for short subdivision, ECDC 20.75.085 requires the City to minimize significant adverse impacts to environmental resources. To accomplish the same, the code permits the City to impose permanent restrictions on subject property as part of approval of short subdivision. Restrictions permitted under ECDC 20.75.085 to protect natural resources are separate from, and in addition to other restrictions, if any, imposed on short subdivision found in other sections of the ECDC or state statute. Wetlands, whether or not they are subject to present or past critical area ordinance, fall within the definition of natural resources as used in the ECDC chapter regulating short subdivision. See ECDC 20.75.085. As a consequence, negative impact on them must be considered when reviewing applications for short subdivisions. Id. Pursuant to Chapter 58.17 RCW and evidenced by the language used in ECDC 20.75.085 and the Comprehensive Plan, the City Council has chosen to make protection of the environment a factor during consideration of short subdivision applications. As a result, ECDC 20.75.085(Ax l) gives the Staff discretion to impose conditions protecting environmental resources as condition to approving short Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page I I subdivisions. This is the same "subdivision code" under which the Applicants vested on January 18, 2005, and this is the same "subdivision code" that the City applied in approving the Application subject to conditions. The subject property for which the short subdivision is being proposed contains a wetland. Even though this wetland is not subject to the critical area ordinance in effect when the application vested, preservation of the wetland is subject to consideration during review of the application for short subdivision as described above. Pursuant to ECDC 20.75.085(A)(1), it was well within the Staffs authority to impose conditions protecting the wetland as condition to approving Applicants' request to subdivide subject property. The Hearing Examiner should find and conclude that the conditions imposed by Staff for approval of Applicants' short subdivision are valid (Exhibit 8). b) Vesting: Changing the application from a two lot short subdivision to a three lot short subdivision would constitute a substantial change to the application and said change would not be vested Hearing Examiner Response: a) Wetland: The Examiner concurs with the Appellant's attorney that where sections of the City's code overlap or are in conflict, and one section of the City's code is more detailed than another then the more detailed section of the code applies; and where one section of the code is newer than another the more recent section of the code applies. In this case, even the "old" CAO is more detailed and more recent than the subdivision section of the code and, therefore, should be used when determining requirements relative to critical areas in a new subdivision. For further discussion relative to the wetland, see the Hearing Examiner's response to the Mallory et al appeal above. b) Drainage Pipe: The Examiner concurs with the staff response to this issue. However, it is understood that staff may require additional or may change conditions relative to the drainage pipe following the completion of the new wetland study. c) Vesting: The Examiner concurs with staff, and both attorneys that the original application was vested under the "old" critical areas ordinance. However, the Applicant's request to allow a three lot short plat to be considered as a modification to the original application is a different matter. The narrow issue in this matter is as follows: Should the City of Edmonds accept Mr. Thuesen's revised drawings dated August 18, 2006 as minor amendments to his original short plat application or are the changes between the January 18, 2006 application and the August 18, 2006 revised plans of such magnitude as to cause the Applicant/Appellant to lose its vested Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 12 rights if it chooses to continue forward with the August 2006 plans instead of the January 2006 application? The Examiner believes, minor changes or revisions to a vested short subdivision application would include such things as revision of property line within the short subdivision or relocation of an access drive due to topographical or other issues, but a revision or minor change would not include an increase in the total number of lots in the subdivision. ECDC 20.75.060 requires a great deal of information to be submitted with a preliminary plat application. That information includes the following: F. Total acreage of the land to be divided, and area in square feet of each proposed lot; H. Lot dimensions and numbers; S Possible future lot lines if arty is large enough to allow future division; None of the above highlighted information was submitted with the original short subdivision application. The Examiner concurs with staff that the vesting only applies to the original application in this instance. The applicant's proposal to add a third lot seven months after the original application was submitted is considered to be a substantial change to the original application, and therefore, the third lot is not vested. C. CONCLUSIONS: 1. Steel) SloM Exemption: Mallory, et al have not demonstrated that the application fails to meet the applicable review criteria for a steep slope exemption. They have not met the necessary burden of proof, and therefore, that portion of their appeal should be denied. 2. WetlandslDraina a Issues. Mallory, et al have raised significant questions relative to the wetlands and after review of the file the Examiner has concluded additional study should be required relative to wetlands issues. The Examiner has also concluded that if the wetland is determined to be less than 2,500 square feet in area, then it will be treated as an unregulated wetland and all conditions recommended by stag relative to the wetland should be deleted. If the wetland is determined to be over 2,500 square feet in area then the staff recommended conditions should be revised to reflect all of the requirements of a regulated wetland. The new wetland study should proceed as quickly as is practicable at the Applicant's expense, and City stag is encouraged to review it thoroughly, but quickly. When the wetland is surveyed, the wetland biologist who delineated the wetland should be present to verify that all of the wetland flags are accurately located in the survey. The Examiner does not believe specific timeframes can be required since it is unknown how quickly the wetland delineation and subsequent survey can be accomplished. As noted above in the Examiner's response to the Mallory et al appeal regarding the drainage issue, the Examiner concurs with staff that the issues relative to the drainage pipe were adequately addressed in the initial decision on this case, and the Examiner Hearing Examiner Decision Case Nos. AP -06-45 & AP -06-48 Page 13 concurs with staff s response to Mr. Thuesen's appeal relative to the drainage pipe. However, it is understood that new information could be obtained during the restudy of the wetland and that staff may require additional conditions or may change conditions relative to the drainage pipe following the completion of the new wetland study. The Examiner also concludes that City staff should address ttus issue administratively and there is no need to come before the Examiner again unless an appeal of the final administrative decision is Filed. Ves tines; As noted above, the Examiner concurs with both the City's Attorney and Mr. Thuesen's Attorney that the original application is vested under the "old CAO." However, as also noted above, the Examiner does not concur with Mr. Thuesen's Attorney relative to the vesting of a proposed third lot and concludes the proposed revision to allow a three -lot subdivision on the subject site should not be vested. DECISION: Based upon the foregoing findings and conclusions: I. The Mallory, et al appeal relative to the steep slope exemption is DENIED, and 2. The Mallory, et al appeal relative to vesting of the "old CAO" is DENIED, and 3. The Thuesen appeal relative to vesting of the third lot is DENIED, and 4. The appeals by both parties relative to the wetland/drainage issues are remanded back to the City to allow for a new review of the wetland/drainage issues as discussed in Conclusion C.2 above_ Entered this 6th day of July 2006 pursuant to the authority granted the Hearings Examiner under Chapter 20.100 of the Community Development Code of the City of Edmonds. Ron McConnell, FAICP Hearing Examiner RECONSIDERATION AND APPEAL: The following is a summary of the deadlines and procedures for filing reconsideration and appeal. Any person wishing to file or respond to a recommendation or appeal should contact the Edmonds Planning Division for further procedural information. Hearing Examiner Decision Case Nos. AP -06-45 & AP -0648 Page 14 REQUEST FOR RECONSIDERATION: ECDC Section 20.100.010.G allows for the Hearing Examiner to reconsider his decision if a written request is filed within ten (10) working days of the posting of the notice required by this section. 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. The Examiner will issue a written response to the reconsideration request within five (5) working days. APPEALS: ECDC Section 20.105.030 describes how appeals of staff decision may be made. It further states that the Hearing Examiner's decision on an appeal of a staff decision shall be final and shall not be appealable to the City Council, ECDC 20.105.070 specifies how appeals to the Superior Court of Snohomish County may be made. TIME LUWHS FOR RECONSIDERATION AND APPEAL: The time limits for Reconsideration and Appeals 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 Nearing Examiner has issued his decision on the reconsideration request, the time clock for filing an appeal continues from the point it was stopped. EXHIBITS: The following exhibits were offered and entered into the record. 1. Planning Division Advisory Report, dated 5125106, with 3 attachments 1. Stag Decision, dated 4112106 with 22 attachments: 1. Vicinity / Zoning Map 2. Application 3. Proposed Subdivision Map 4. Applicant's Declarations, dated 11120104, received 1/18105 5, Geotechnical Report prepared by Dennis Bruce, dated 1/l3/05, received I/18/05, with one attachment 6. Peer Geotechnical Response by Zipper Zeman Associates, Inc., dated 3/31/05, with one attachment 7. Letter from Dennis Bruce, dated 4/7105, received 5/10105, with 3 attachments 8. Wetland report by Pentec Envirionmental, dated 5/17/05 9. Letter from Pentac Environmental confirming surveyed area of wetland, dated 910105 10. Engineering Requirements 11. Excerpts from ECDC 20.15B Critical Areas Ordinance (revised 8196) 12. Cover page and final page of Ordinance 3527 adopting new Critical Areas Ordinance effective 2/15/05 13. Storm water plan from adjacent development to the north of the subject property 14. Map showing required wetland buffers and setbacks Hearing Examiner Decision Case Nos AP -0645 & AP -0648 Page 15 15. Letter from Vivian Olson, dated 1/21106 16. Letter from James and Barbara McQueen, dated 1122106, with attachments 17. Letter from Charles LaNasa, dated 1127106 18. Letter from Scott and Maria Mallory, dated 2127106, with attachments 19. Letter from Bill and Kathy Baird, and Laurie Niven, dated 3112106 20, Letter from Kenneth Reidy, dated 3115106 21. Letter from Mary Pauline Smith, dated 3115106 22. Letter from Joan & Gary BIoom, dated 3115106, with attachments 2 Appeal letter from Scott & Maria Mallory, et al, dated 4121106 3. Appeal letter from Eric Thuesen, dated 4124106 2. Memorandum of Applicant, dated 611106, with 15 attachments (in three ring binder): 1. Applicant's Notice of Appeal, filed 4126106 2. Opposing Neighbors' Notice of Appeal, filed 4121106 3. Applicant's Timeline of Key Events and Facts 4. Applicant's Initial Layout for short plat proposal (2 -lot plat), 11104 5. City's 2117105 Completeness Determination Notice 6. Wetland Survey prepared by LSA 07/07/05 7. City Memorandum to Applicant re: unregulated wetland, dated 7120105 8. First Revision (3 -lot plat), dated 8/18/05 9. Pentac Environmental Confirmation of Wetland Survey, dated 918105 10. Bloom/City communications re: wetland buffer, dated 2118106 & 2121106 11. Second Revision (2 -lot plat), dated 11/17/05 12. Bullock/McQueen communications re: wetland buffer, dated 2118106 & 2121106 13. City buffer drawing, dated 4/12106 14. City's Findings, Conclusions, and Decision (w/o Attachments), dated 4/12106 15. Highlighted excerpts from City's Advisory Report, dated 5125106 3, Power Point Presentation submitted by Charlie LaNasa 4. Letter from James McQueen, dated 611/06 5. Letter from Ken Reidy, dated 611106 6. Letter from Rick Gifford, dated 6113106 7. Letter from Scott & Maria Mallory, dated 6114106 8. City of Edmonds' Memorandum of Law 9. Letter from Charlie LaNasa, dated 6112106, with 3 attachments A. Items to be considered for the Applicant's Timeline (from Exhibit 2, Attachment 3) B. Letter from Duane Bowman, dated 3121106 C, Subdivision Findings of Fact and Decision (file S-15-90) D. Letter from Louis Emenhiser, Wetland Resources, Inc., dated 6126102, with attached map 10. Letter from Scott & Maria Mallory, dated 615106, with attachments: A. Letter from Laura Casey, DOE, dated 8122105 B. Letter from Duane Bowman, dated 3121106 Hearing Examiner Decision Case Nos. AP -0645 & AP -0648 Page 16 Jim McQueen's written comments on Rick Gifford's Memorandum (Exhibit 2) 12. Memo from Steve Bullock, dated 6115106 13. Letters to the Editor in the Edmonds Beacon, l 1/10/05 14. Article in the Edmonds Forum, 10/25/05 15. Letter from Rick Gifford, dated 6/12/06 16. Email from Rick Gifford, dated 6/14/04 PARTIES OF RECORD: Eric Thuesen 18333 85'' Pl. W. Edmonds, WA 98026 Gary & Joan Bloom PO Box 219 Edmonds, WA 98020 Vivian Olsen 509 9" Ave. N. Edmonds, WA 98020 Scott & Maria Mallory 520 8'h Ave. N. Edmonds, WA 98020 Ken & Vera Reidy 771 Daley St Edmonds, WA 98020 Bill & Kathy Baird 850 Daley St Edmonds, WA 98020 Rick Gifford Planning Division 600 Main Street, Suite E City Attomey Edmonds, WA 98020 Engineering Division F Charles & Carolyn LaNasa 5248 th Ave. N. Edmonds, WA 98020 Jim and Barbra McQueen 528 8'h Ave. N. Edmonds, WA 98020 Laurie Niven 847 Daley St. Edmonds, WA 98020 July 12, 2006 RECEIVED 524 8th Avenue N Edmonds, WA 98020 JUL 17 ZP-43 Mr. Ron McConnell, FAICP, Hearing Examiner DEVELOPMENT SERVICES City of Edmonds 121 5th Avenue N Edmonds, WA 9'8020 Re. Findings, Conclusions and Decision of the Hearing Examiner - Case Nos. AP -0,6-45 & AP -06-48 Dear Mr. McConnell: Thank you for your above -referenced Decision. I appreciate your efforts in reaching a fair conclusion. Testimony during the hearing documented past non -optimal practices of Eric Theusen Custom Homes, LLC ("Applicant") and its admitted inexperience on this type of project. The Decivion infers that you believe that these factors are best handled by the City during the course of construction. Not addressed, however,is Applicant's lack of valid contractor status. As you know, in order to protect the public, a Contractor's License is required to perform most construction. Some exemptions are listed in RCW 18.27.090, including: (12) Any person working on his or her own property, whether occupied by him or her or not, and any person working on his or her personal residence, whether owned by him or her or not but this exemption shall not apply to any person otherwise covered by this chapter who constructs an improvernent on his or her own property with the intention and for the purpose of selling the improved property; Please consider. 1. The exemption doesn't apply if Applicant has the apparent intention and purpose to sell the property. 2. The exemption doesn't apply unless it is Applicant's "personal residence." a. A commercial venture LLC does not have a "personal residence." b. The Thuesens presumably require, only one residence within close proximity. 3. Building homes is Applicant's business. Therefore, Applicant has questionable authority to build anything (other than a personal residence if the LLC is considered transparent). Therefore, the current application's validity is questionable, and Applicant should re -apply after it is legally authorized to build. This material issue was an appeal point; it is requested that it be addressed and ruled upon specifically. Page 12 of the Decision includes among examples of minor changes or revisions "relocation of an access drive due to topographical or other issues." Please confirm that you mean moving the driveway a small distance due to minor site conditions, rather than a major change, such as the relocation of a driveway from 9'h Avenue to e Avenue North. Lastly, the Decision states that if the: wetland is determined to be unregulated, the City's conditions for the wetland should be removed. Please confirm that the City may -require appropriate actions to assure that the: heavy rainfall that regularly occurs is properly handled on the site so that flooding does not occur. Thank you for your involvement in this process, and for the privilege of submitting these comments. Yours ve truly, Charles A. LaNasa Exhibit B [Iff-ITTATIMMITIO-IMIR "M Date: To: From: Subject: July 20, 2046 Ron McConnell, Hearing Examiner for the City of Edmonds Steve FJulloc tD Senior Planner CLARIFICATION ON HEADING EXAMINER. DECISION RELATED TO APPEALS OF T'HE T'HLIESEN SHO,R:T-PLAT. Staff would like a clarification of the Hearing Examiner's Decision rebated to appeals, AP -06-45 & AP -06-48. Sorne of the conclusions of the Examiner in his decision dated July 6, 2006, lead staff to believe that the Examiner means for the Subdivision to be approved with conditions. One of those conditions being that the size of the wetland be confirmed and buffers either be applied or eliminated based on the ECDC 20.15E Critical Areas ordinance. However, some of the language of the decision states a requirement for the entire project to be remanded back to staff, If the Examiner is certain of what the final decision on the subdivision should be, maybe a more straight- forward approach would be to phrase the decision as a final decision on the short -plat with conditions. So, in the interest of clarity and making sure staff doesn't need to try to ascertain the direction of the Examiner on the final subdivision decision staff would request that the decision be a final decision on the short -plat with conditions if appropriate. City of Edmonds ca3 Planning Division 06045 CLARINCATION f.MEMO.DOC 7120/2046. Exhibit C File AP -200i6-45 &w, Stall Clarification request From: Rick Gifford [rick@rgiffordlaw.com] Sent: Monday, July 24, 2006 11:01 AM To: Bullock, Steve Cc: Ron @ McConnellAssociates net; ericthuesen@comcast.net; Bowman, Duane Subject: RE: Staff Clarification request Importance: High Page I Ot 2 We are in receipt of the staff Memorandum to the Examiner seeking clarification of certain matters in, the Examiner's written decision. It seemed clear that the Examiner approved the short plat based on the last, two4ot variant, but remanded the matter for further (unauthorized) study, with the final result and associated development standards dependent on what such study might reveal. No timeframe or process for the additional study was established by the Examiner. The Applicant's, request for reconsideration challenges both the demand that further study be undertaken, beyond code allowances (on the grounds that the issue was not properly raised on appeal by the neighborhood appellants, that there is no legitimate factual basis in the record on review for this new requirement, and that the requirement exceeds iawful authority of the Examiner and the City). It is our understanding the City Attorney is reviewing the question of authority under the code for the additional study requirement after a qualifying critical areas study was performed, the neighbors asked that a new study and survey be performed, staff denied this request but, under the code, ordered an independent review of the critical areas study at its cost, and that review was completed and approved by staff seven months prior to the City's initial decision in April 2006. The Examiner's apparent decision on the short plat is challenged on the facts and the law for the reasons outlined in more detail in the request for reconsideration, The Applicant also asked for correction and/or clarification of certain findings of the Examiner that appeared to be at odds with the record and staff's determinations and actions in this matter over the months. The July 20, 2006 memo to the Examiner from staff is, in itself, somewhat confusing. Since the Examiner declined to retain jurisdiction, we do not believe it was his intent to remand the entire matter to staff, although we acknowledge the difficulty in segregating these interrelated components and the complexities associated with attempting to indefinitely prolong the review and study process beyond the express provisions of the applicable critical areas ordinance. The Applicant reiterates the points asserted in the request for reconsideration and respectfully asks for the Examiner's prompt determinations thereon, Richard E. Gifford! for Applicant/Appellant Eric Thuesen Custom Homes, LLC/Eric Thuesen From: Bullock, Steve [mailto:Bullock@ci.edmonds.wa.us] Sent: Thursday, July 20, 2006 4:17 PM To: Ro,n@McConnelllAssociates.net Cc: ericthuesengcomcast. net; Richard E. Gifford; Bowman, Duane Subject: Staff Clarification request Hi Ron, Here is a clarification request from Staff regarding your appeal decision on AP -2006-45 Exhibmit D File AP -2006-45 & 48 7/3,1/2006 ,Mart uiartneauon request Steve Bullock, AICP Senior Planner City of Edmonds «06045 staff clarification request.pdf» 7/31/2006 Yage L of 1. 4PC. 1B9,0 CITY OF EDMUNDS 121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221. HEARING EXAMINER FINDINGS, CONCLUSIONS, AND RECONSIDERATION DECISION OF THE BEARING EXAMINER APPELLANTS: Eric Thuesen: AP -06-48 & Scott & Maria Mallory et al: AP -06-45 CASE NO.: AP -06-45 & AP -06-48 LOCATION: 509 9b Ave. N FINDINGS OF FACT AND CONCLUSIONS: GARY HAAKENSON MAYOR 1. On July 17, 2006, two parties of record (Rick Gifford on behalf of Eric Thuesen and Charles LaNasa), submitted timely requests for reconsideration of the Examiner's Decision on the subject appeals (See Reconsideration Exhibits A - B). 2. The requests for reconsideration were forwarded to the Hearing Examiner on July 17, 2006 (Reconsideration Exhibit A) and on July 20, 2006 (Reconsideration Exhibit B). 3. The City of Edmonds Planning Staff requested clarification of the Examiner's decision on July 20, 2006 (Reconsideration Exhibit C). 4. ECDC 20.100,020.G gives the Hearing Examiner five working days in which to issue a written response to a request for reconsideration. This report will address all three of the requests and will be issued within five working days of receipt of the last two requests. 5. The reconsideration requests identified several areas where Mr. Thuesen and Mr. LaNasa disagreed with findings, conclusions and conditions found in the July 6, 2006 Hearing Examiner report on the subject case. Following are the issues identified: Thuesen Issues: (See Reconsideration Exhibit A). a. Adequacy of CAS and Wetland Survey: 1) Issue Not Properly Raised on Appeal: 2) Lack of Factual Foundation: 3) Additional Study is Unauthorized and Cannot Lawfully Be Ordered: • Incorporated August 11, 1890 • Sister City - Hekinan, Japart Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 06-48 Page 2 b.. Plat Revision for Three Lots; Vested Status: c. Finding Re Completeness of Subdivision Application: Hearigg Examiner Res onse: a. Adequacy of CAS and Wetland Survey: As a matter of background for this discussion, the Examiner would like to briefly review the wetland issue. Mr, Thuesen challenged the staff s decision to require buffers around the wetland on the basis that the wetland survey determined the wetland was not large enough to be classified as a regulated wetland under the old Critical. Areas Ordinance (CAO). He would life to be able to fill in the wetland to allow for construction. The Examiner has concurred with Mr, Thuesen that if the wetland is indeed an unregulated wetland then it should be treated as such and the staff conditions relative to the wetland should not be required. However, if the wetland is determined to be a regulated wetland, then all of the CAO requirements must be complied with. This is an extremely important point, and one that must then be based on a careful analysis of the actual size of the wetland. The Examiner believes neighbors did properly raise the issue of the size of the wetland when they questioned the wetland delineation accuracy in their letter of appeal. They went on to submit photos and other information at the hearing that did not establish the size of the wetland; but did raise significant questions relative to its size. The burden of proof is on the Applicant (Mr. Thuesen) to show that he has met the requirements of the Edmonds code. In this case, it is acknowledged staff accepted the wetland study submitted by the Applicant. However, after review of the entire file, the Examiner was not and is not convinced the existing wetland study meets that burden of proof. The Examiner carefully reviewed all of the information presented at the hearing before arriving at his decision to require another review of the wetland in question. Also, while not listed in the Findings section of the Examiner's report, it should be noted that on page 2 under the Public Hearing section of the report, the Examiner visited the site prior to the public hearing. W. Thuesen would like the Examiner to accept the wetland study on face value as an exact scientific study that is error free. This Examiner has conducted several hearings in multiple jurisdictions where wetland consultants have disagreed over the delineation of boundaries of wetlands and has conducted hearings where land surveyors have disagreed over survey information. Frankly, this Examiner has found the delineation of wetlands to be as much art as science. Given the small amount of difference between the currently determined area of the wetland (2,291 square. feet) versus the area of a regulated wetland under the old CAO (2,500 square feet), and given the legitimate questions raised during the hearing process, the accuracy of the final wetland delineation and survey boundaries (effectively how the property can be developed) is of paramount importance. The Examiner stands by his reasoning for the need for a new wetland study thatwas discussed in his original decision. The -Examiner has concluded that the best way Mr. Thuesen can meet his burden of proof to show that the wetland is truly an unregulated wetland is to restudy the wetland as . described in that report and as conditioned below. Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 06-48 Page 3 b. Plat Revision for Three Lots: Vested Status: Mr. Thuesen's Attorney (Mr. Gifford) makes essentially the same arguments .(albeit with more emphasis) as he did at the hearing. He essentially snakes the argument that since the Edmonds code doesn't specifically address the issue of changes or modifications of a vested application, then the property owner should be able to use his property as he wishes. In this case he claims he is vested for a three lot short subdivision and, again, as discussed in the Examiner's original report the Examiner disagrees. This is a relatively small project, but the applicant is still asking for a 50% increase over what was vested. Whether the project is a small projector a large project a 50% increase is still a 50% increase, and this Examiner does not believe any definition or code provision would consider that to be a minor modification. Therefore, the Examiner continues to concur with City staff that the project is and should be vested for two lots. c. Completeness of Subdivision Application: Information was submitted by the Applicant that complied with the provisions of ECDC 20.75.060 P., H, and S on September 14, 2005, but as noted in the Examiner's decision, said information was not submitted for a three lot short subdivision with the original application on January 18, 2005. That information should have been submitted with the original submittal on January 18, 2005 if the Applicant wanted to be vested for three lots. Again, the Examiner concurs with staff that vesting only applies to the original application and not to the substantial modifications submitted by the applicant many months later. LaNasa Issues: (See reconsideration Exhibit B). a. The Applicant lacks a current contractor license. b. Clarification of minor changes. c. Requirements to prevent flooding. Hearizg Examiner Response, a. Contractor License: As noted in the Examiner's report, the report only addressed the issues raised in the letters of appeal. The issue regarding the Applicant's contractor status was raised during the hearing, but was not an issue raised in the letter of appeal. Therefore, the Examiner did not and will not address it as part of this review process. However, it should be noted that if the project. proceeds (whether the current Applicant or someone else completes the project), actual construction of the proj ect will need to comply with all applicable rules and regulations relative to that issue. b. Minor Changes: Only minor changes to reflect topographic or other natural constraints were intended Complete relocation of driveways, etc. was not approved. Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 06-48 Page 4 c. Requirements to prevent flooding: The issues relative to drainage are intertwined with the wetland and following the new wetland study, engineering staff may gain better information upon which to base final engineering requirements relative to drainage. However, at this stage in the subdivision approval process, condition B.1.(4) is believed to be adequate. 6. Staff Request for Clarification: (See Reconsideration Exhibit C). a. Did the Examiner approve the short subdivision with conditions, and if so what exactly are the conditions? Hearft Examiner Response: a. Yes, the Examiner did approve the short subdivision for two lots, subject to the following: 1) The case should- be returned to City staff for the specific purpose of confirming the size, of the wetland on the site. An additional wetland study should be conducted at the applicant's expense to confirm whether or not the wetland is a regulated or unregulated wetland as defined by the old CAO ordinance. When the wetland is surveyed, the wetland biologist who delineated the wetland should be present to verify that all of the wetland flags_ are accurately located in the survey. 2) if the wetland is less than 2,500 square feet in area then conditions 13.1.a)(1), (2) & (5), B.1.c) and B.1.d)(3) found in the administrative decision on this case, dated April 12, 2006 should be deleted. However, if the wetland is greater than 2,500 square feet in area, then the conditions noted above should be revised as necessary to comply with all of the requirements of the old CAO ordinance. 3) City staff should administratively process the new wetland review. The staff decision on this issue will be final unless appealed to the Examiner, K b. All of the other conditions of approval required in the staff decision on this file, dated April 12, 2006 should remain in effect. 7. The Applicant's Attorney also submitted a memo, in response to the City staff memo (see Reconsideration Exhibit D): The Examiner believes the Attorney's response memo is adequately addressed by the Hearing Examiner's response to the City staff's memo. 8. After reviewing the request for reconsideration, the Hearing Examiner decision on the subject case, and after re -reviewing the original file on this application, the Examiner reconfirms his July 6, 2006 decision on the subject application, with modifications noted below. The discussions in the paragraphs above, however, hopefully will provide additional clarity to the Examiner's intent on this case. Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 0648 Page 5 RECONSIDERATION DECISION: Based upon the foregoing findings and conclusions, the July 6, 2006 Hearing Examiner decision on the subject case is modified as follows: The two lot short subdivision is approved subject to the following conditions: The case shall be returned to City staff for the specific purpose of confirming the size of the wetland on the site. An additional wetland study shall be conducted at the applicant's expense to confirm whether or not the wetland is a regulated or unregulated wetland as defined by the old CAO ordinance. When the wetland is.surveyed, the wetland biologist who delineated the wetland shall be present to verify that all of the wetland flags are accurately located in the survey. a. If the wetland is less than 2,500 square feet in area then conditions B.1.a)(1), (2) & (5), B. l .c) and B. I. d)(3) found in the administrative decision on this case, dated April 12, 2006 shall be deleted. However, if the wetland is greater than 2,500 square feet in area, then the conditions noted above shall be revised as necessary to comply with all of the requirements of the old CAO ordinance. b. City staff shall administratively process the new wetland review. The staff decision on this issue will be final unless appealed to the Examiner. 2. All of the other conditions of approval required in the staff decision on this file, dated April 12, 2006 remain in effect. Entered this 26th day of July 2006, pursuant to the authority granted the Hearings Examiner render Chapter 20.100 of the Community Development Code of the City of Edmonds. Ron McConnell, PA CP Hearing Examiner APPEALS: The following is a summary of the deadlines and procedures for filing appeals. Any person wishing to file an appeal should contact the Planning Department for further procedural information. Section 20.105.020.A & B describe how appeals of a Hearing Examiner decision or recommendation shall be'made. The appeal shall be made in writing, and shall include the decision being appealed along with the name of the project and the date of the decision, the name of the individual or group appealing the decision, their interest in the matter, and reasons why the Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 06-48 Page 6 appellant believes the decision to be wrong. The appeal must be filed with the Community Development Director within ten (10) working days after the date of the decision being appealed. LAPSE OF APPROVAL: Section 20,05.020.0 states 'Unless the owner obtains a building permit, or if no building is required, substantially commences the use allowed within one year from the date of approval, the variance shall expire and be null and void, unless the owner files an application for an extension of the time before the expiration date.' 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. RECONSIDERATION EXHIBITS: The following reconsideration exhibits were offered and entered, into the record. A. Reconsideration Request from Richard E. Gifford on behalf of Eric Thuesen, dated 7114106 (received 7117106) B. Reconsideration Request from Charles A. LaNasa, dated7/12/06 (received 7/17106) C. Request for Clarification from Steve Bullock, Senior Planner, dated 7/20/06 D. Memorandum from. Rick Gifford, dated 8/24/06 PARTIES of RECORD: Eric Thuesen 18333 851h Pl. W. Edmonds, WA 98026 Gary & Joan Bloom PO Box 219 Edmonds., WA 98020 Vivian Olsen 509 9'k Ave. N, Edmonds, WA 98020 Richard E. Gifford 600 Main Street, Suite E Edmonds, WA 98020 Scott, i Maria Mallory 520 8 Ave. N. Edmonds, WA 98020 Ken & Vera Reidy 771 Daley St Edmonds, WA 98020 Bill & Kathy Baird 850 Daley St Edmonds, WA 98020 Planning Division City Attorney Engineering Division Charl,qs & Carolyn LaNasa 524 8 Ave. N. Edmonds, WA 98020 Jim and Barbra McQueen 528 8' Ave. N. Edmonds, WA 98020 Laurie Niven 847 Daley St, Edmonds, WA98020 .. , SETTLEMENT AGREEMENT AND RELEASE 'i This Settlement .Agreement and Release (the "Settlement Agreement") is made and entered into this A.-) day of T 41, 2007, by and between ERIC THUESENlERIC THUESEN CUSTOM HOMES, LL ("Petitioners"), and the CITY OF EDMONDS, including all elected officials, various department heads, and employees ("The City"), RECITALS A. Petitioners own property located -in the City of Edmonds (the "Property'), On January 18, 2005, Petitioners filed an application with the City to subdivide the Property into two lots. B. On February 17, 2005, the City issued Petitioners a written notice of completeness, confirming that the application had vested as of the date it was filed, on January 18, 2005. Thus, the applicable critical areas regulations were those contained in the City's Old Critical Areas Ordinance (CAO), at Ch. 20.15B of the Edmonds Community Development Code (ECDC). C. Consistent with the City Code, Petitioners were required to obtain, among other things, a wetland delineation and wetland survey of the property. D. The wetland delineation was performed by Pentec, which issued a report on May l 17, 2005. The wetland survey was then completed by Lovell-Sauerland & Associates (LSA) on August 7, 2005. E. Under the City's Old CAO, the minimum threshold area for a regulated wetland was 2,500 square feet. Based upon the Pentec delineation and LSA survey, the wetland on Petitioners' property was measured as 2,291 square feet, Pentec issued an independent review letter on September 8; 2005. F. On or about September 14, 2005, Petitioners submitted a revised application to the City to further subdivide the property into a total of three lots. A dispute arose between Petitioners and the City as to whether the revision was vested to the City's Old or New CAO. G. . City Staff issued itg decision on the Petitioners' short plat on April 12, 2006 "Staffs Decision"). Among other things, the City imposed buffers and setbacks from the wetland pursuant to the general provisions of its former subdivision woe' ...In addition, the City also determined that Petitioners could not revise. the short plat from 24ots to 3 -lots. H. Petitioners filed an administrative appeal of Staffs Decision. The neighbors adjacent. to the Property (the "Neighbors") joined in the appeal arguing, inter afra, that LEA's wetland survey was invalid, and that the wetland exceeded 2,500 square feet. After public hearing, the Hearing Examiner issued his written decision dated July 6, 2006. The Hearing Settlement Agreement 1 of 8 Exhibit 16 APL -2009-02 Examiner denied the Neighbors' appeals in part and Thuesen's appeal related to- vesting of the third lot. The Hearing Examiner remanded the portion of the Neighbors' appeal relative to wetland/drainage issues for additional study. The Examiner concluded that if the wetland were determined to be less than 2,500 square feet in area after such additional study, then it should be treated as "unregulated" and all conditions recommended by Staff relative to the wetland should be "deleted." Ick 1. Petitioners moved for reconsideration of the Hearing Examiner's Decision. On July 25, 2005, the Nearing Examiner issued a second decision that clarified and confirmed his original July 6, 2006 Decision. J. On or about August 4, 2006, Petitioners appealed the Hearing Examiner's Decision by riling a Land Use Petition per the Land Use Petition Act (LUPA), RCW Ch. 36,70C, in the Superior Court for Snohomish County, Cause No. 06-2-10190-0 (hereinafter the "LUPA Petition"). Included within the LUPA Petition were claims for monetary damages against the City per RCW Ch. 64.40 and 42 U.S.C. Sec. 1983 (the "damage claims"). K. On April 25, 2007, after hearing, the Snohomish County Superior Court issued its Findings of Fact, Conclusions of Law, and Order on Land Use Petition. The Order remanded the matter back to the City Hearing Examiner with instructions for hien to reopen the record for the purpose of verification of the Pentee wetland delineation and LSA survey. The Order also held that Petitioners' application for a third lot was vested under the Old CAO. L. The City appealed the Superior Court's Order to Division I of the Court of Appeals; and Petitioners cross-appealed the Superior Court's Order to Division 1 of the Court of Appeals. (See Cause No. 60055-9-1) The underlying action was not stayed-pending. appeal, but, was remanded, back to the Hearing Examiner for determination of the wetland: issue. The City, however, has not waived its right to request a stay of proceedings. per RCW 36.70C,100(1), with regard to whether Petitioners' application for a third lot was; or was not, vested under the Old CAO. M. After remand to the Hearing Examiner, by decision dated June 11, 2007, the Examiner found that the wetland survey had been sufficiently verified. He reinstated his decision without requiring any additional survey of the wetland. The 21-day deadline under the LUPA to appeal the Hearing Examiner's June 11, 2007, decision expired on Monday, July 2, -2007. Neither Petitioners nor the City are aware of appeal of this decision hawing been riled. N. The City herein expressly and unequivocally denies liability for arry damages as alleged by Petitioners in the LUPA Petition and damage claims. O. The parties desire to enter into this Settlement Agreement in order to provide for the full settlement and discharge of all claims by the Petitioners which are or might have been made against'the City in the LUPA Petition and damage claims and of the City's appeal, upon the terms and conditions set forth herein. Settlement Agreement 2 of 9 AGREEMENT The parties agree as follows; 1.. Substantive Terms. A. Within five (5) business days of execution of this Agreement, the City of Edmonds (hereinafter the "City") shall dismiss its appeal the City has filed in the above -referenced lawsuit, with prejudice and without costs or fees. B. Within five (5) business days of receipt of payment identified in Section 4, below, Petitioners shall dismiss the lawsuit and cross-appeal filed in the above -referenced lawsuit, with prejudice and without costs or fees. C. Petitioners shall file an application or revision for a third lot on or before January 30, 2008. D. Upon receipt of the application or revision for a third lot, the City shall review the application on an expedited basis and issue a decision thereon subject to the conditions as set forth in the approval for Nile No. S-0509, and most recently decided. in the: Hearing. Examiner decision dated June 11, 2007. The term "expedited" shall include, but nof be limited to, review and action on a "first inline" basis. The City shall complete itsreview and- issue a. decision consistent with the 120 -day deadline (and exceptions. thereto) established in Edmonds Municipal Code ("EMC") 20.90.010(F) as.enacted at the time of this Agreement. E. Ori an -expedited basis, the City shall review and issue a decision on any modifications to the engineering,. utility, and/or clear/grade .plans consistent with the city's approval. ofthe- third- lot. The term:"expedited"- shall -include; but not be .limited: -to, review and action on a "first in line" basis. P. Within 30 calendar days of execution of this Agreement, Petitioners shall submit a modification for setbacks to 5 feet on the east side Lot 1. Subject to public notice. and comment, and alt applicable provisions of the City Code and state law, the City shall review and issue a decision on such modification on an expedited basis. The term "expedited" shall include, but not be limited to, review and action on a "first in line" basis. G. Development of all lots, including building permits, shall be subject to the wetland determination reflected in the short plat approval as finally determined in the Hearing Examiner decision upon remand, dated June 11, 2007. Specifically, the City's jurisdiction over the wetland is limited to the provisions of the old Critical Areas Ordinance (EMC Chapter 20.15B), as set forth in the Hearing Examiner's decision dated July 6, 2006; confirmed by the Superior Court order dated April 27, 2007, and finally decided in the Hearing Examiner's decision upon remand, dated June 11, 2007, Settlement Agreement 3 of 8 H. The City shall not take any independent, affirmative action that would be adverse to any permit or approval that Petitioners may apply for from any state or federal agency, provided that this term shall not operate to restrict the City from responding to any request for information from any state or federal agency or otherwise complying with any state law. 1. 1n the event of an appeal by any person or entity that is nota party to this Agreement, of any of the City's final permits or approvals related to the Property, the -City shall defend the its final permits or approvals. 2. Release and Discharge. a. Ln consideration of the payment set forth in Section 6, below, Petitioners hereby release and forever discharge he City from any and all past, present, or future claims, demands, obligations, actions, causes of action, claims, rights, damages, costs, attorneys' fees, losses of services, expenses and compensation of any nature whatsoever, whether based on tort, contract, civil rights law, or other theory of recovery, including, but not limited to, claims under RCW Ch. 64.40, which the Petitioners now have, or which may hereafter accrue or otherwise be acquired, which are, or might have been, the subject of the.LUPA Petition and damage claims, including any future claim of Petitioners' representatives or heirs, which have resulted or may result from the alleged acts or omissions of the City in relation to the Hearing Examiner decisions dated. July. 6, 2006, and June 11, 2007. This release and discharge shall also apply to The City's past, present, and -future officers, attorneys, agents, servants, representatives, employees, predecessors and successors-in,interest, and assigns, and all other persons, firms, or corporations. .with whom. any: of the- former have. been, are -now, or may hereafter be affiliated. b. This release and the terms of this Agreement are fully binding and: constitute a. complete settlement by the Petitioners and the City, their heirs, assigns, and successors. 3. Denial of Liabii, its. It is understood and agreed to by the parties that this settlement is a compromise of a disputed claim, and the payment is not to be construed as an admission of liability on the part of the City, by whom liability is expressly denied. it is further agreed that any payment or other concession/release made in this Settlement Agreement shall not be construed or asserted as an admission of liability, wrongdoing, or fault by any party. 4. payment. In consideration of the release and discharge set forth in Section 1, above, the City agrees to pay Petitioners the sum of $20,000.00, within ten (10) days of the effective date of this Settlement Agreement. Settlement Agreement 4 of 8 5. Attorrney_s_'_Fees, All parties hereto shall bear all attorneys' fees and costs incurred by them arising from the actions of their own counsel in connection with this claim, this Settlement Agreement, and the matters and documents referred to herein. 6. Governing Lave, This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of Washington.' 7. Additi nal Documents. All, parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force.and effect to the basic terms and intent of this Settlement Agreement, S: No Third-PaM Benericiaries. Except as may be expressly provided herein, this. Settlement. Agreement. is for the benefit of the parties hereto only and -is not intended to benefit ,any other person or entity, and no. person or entity not a party to this Settlement Agreement shall have any third -party beneficiary or.other-. rights whatsoever, hereunder. 9. SeverabllitylSavings Clause:_. Should any part of this. Settlement Agreement or_any.prow. Sion contained .inthis. Agreement be rendered or declared invalid;. the invalidation of.such.part. or. portion of this Agreement•shall not-, invalidate the remaining portions thereof. The remaining parts and provisions of this Agreement shall remain in full force and effect. 10. Modifications by Written Agreernent Only. The obligations in this Settlement Agreement may be modified only by written agreement of the parties; signed by duly authorized representatives of each of the settling parties. Any such modification shall not affect any other provision of this Settlement Agreement. 11. Entire Agreement. This Settlement Agreement constitutes the entire agreement between the parties. This Settlement Agreement is fully integrated and constitutes the complete and final agreement between the parties- All previous agreements, offers, counteroffers, and negotiations are merged herein. There are no other or further agreements which modify the terms of this Settlement Agreement. Settlement Algeernent 5 of 8 This Settlement Agreement .cannot be modified or amended in any way (except in writing as set forth in Section 10, above). 12. Authority to Bind. In executing this Settlement Agreement, each party acknowledges that the person or persons signing on his/her/its behalf have authority to bind the party he/she/it represents. Each party fiuther represents that the person or persons signing on his/her/its behalf are competent and of lawful age, have been fully advised by counsel in connection with the execution of this Agreement, and that such persons do so freely and voluntarily. 13. Obligation of Good Faith and Fair Dealing. The parties agree that each of the parties is giving up certain rights, claims, and defenses in executing this Settlement Agreement, and each party hereby agrees to act in good faith in carrying out their respective duties and obligations herein. 14. Headings Not Controlling. The paragraph headings included herein are for reference only and are not a part of this Settlement Agreement. The headings shall not control or alter themeaning of this Settlement Agreement as set forth in the text. 15. Equal. -Participation iin Draftin . The parties have each participated and had an equal opportunity to participate in the drafting of this Settlement Agreement. No ambiguity shall -be -construed against any party based upon a claim that such party drafted the ambiguous language.' 16. Effectiveness. This Settlement Agreement shall become effective immediately following execution by each of the parties. 17. Acicn2ffledgement. The Petitioners and the City hereby acknowledge by their signature below that they have had the advice of counsel of their own choosing with regard to the meaning and intent of this Settlement Agreement, and that said counsel has explained the full legal import of this Settlement Agreement to them. 11 // Settlement Agreement 6 of 8 DATED: 58E PAaig CI'T'Y OF EDMONDS By Its DATED: D -? 120 10? DATED: 0-1 jW10 7 STATE OF WASHINGTON ) COUNTY OA�ig) Eric Thuesen Eric Thuesen, for Eric Thuesen Custom Homes, .LLC I certify that I know or have satisfactory evidence that Eric Thuesen is the person who appeared before me, and that said person acknowledged signing this instrument as his/her free and voluntary act for the uses and purposes mentioned in the instrument. DATED: 7f (Print Name) Notary Public Residing at Y'LN--e- My appointment expires: , 1 S - 65 - Settlement Agreement 7 of 8 STATE OF WASHINGTON) ss. COUNTY OEJ > I certify that I know or have satisfactory evidence that Eric Thuesen is the person who appeared before 'me and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the principal of Eric Thuesen Custom Homes, LLC, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: %` ?,0'" c� Notary Se \ n;` W S U 'rrl��r AJ i OF Vv:4� (Print Nance) Notary Public Residing atc-C-+��- My appointment expires: —6- 2pa JACHents A•ZIT - 2000\Thuesen, Frio -Edmonds LUPA 2025-1tCity Proposed Sd lemeni. Agreemeiu - draft 7-18-U7.doe Settlement Agreement 8 of 8 Signed this .9'1 day of July, 2007. CITY OF EDMONDS 4-i� Oary PIkenson Its: Mayo AT'T'ESTED TO y: San# Chase Its: City Clerk U By: -W. S tt nyder Its: Edmonds City Attorney Settlement Agreement 9 of 9 5,111 A_ -Q H sm 51h 1 QPh , i12 mum d all yj a.r I-PULO P. tt_M-A J3 AW 01 1R OTIF is Qj, its %all JIM AN IT -0 10 I 414 4 1�' 6 iFp 1 !i 9g' 1 11 01001 ter- - am, alm % H 41 1 1 Ur up MY— !g9jif z 3 A, MS IN - & gy Sys UK td 15 ! ulna: 1111", Jim'. 19.80.000 Chapter 19.80 BOARD OF APPEALS Sections: 19.80.000 Purpose and applicability. 19.80.005 Application and fee. 19.80.010 Board of appeals membership. 19.80.01.5 Board of appeals procedures. 19.80.020 Powers and duties of the board. 19.80.025 Appeals from decisions of the board. 19.80.030 Snohomish County regional board of appeals. 19.80.000 Purpose and applicability. A. All properly filed appeals pursuant to the adopted codes of this title shall be heard by the board of appeals created by this chapter. The board shall have no authority to review administrative decisions or grant modifica- tions to the provisions of any administrative chapter as adopted by this title, nor can the board waive a code requirement. B The board of appeals shall hear appeals from the building official's interpretation of the adopted building codes, determinations of suitable alternative methods and materials, and any other appeal delegated to a board of appeals pursuant to the state building codes, including but not limited to the International Building Code, the International Residential Code, the International Fire Code, the Uniform Housing Code, the State Historical Building Code, the Uniform Code for the Abatement of Dangerous Buildings, the International Fuel Gas Code, the International Mechanical Code, the Uniform Plumbing Code and any and all other codes adopted pursuant to the direction and authority of Chapter 19.27 RCW. C. The provisions of the state building codes as adopted by the city are not intended to prevent the use of any material, alternate design or method of construction not specifi- cally prescribed by this code, provided any alternative has been approved and its use authorized by the building official or on appeal or request for review by the board of appeals. [Ord. 3651 § 1, 2007]. 19.80.005 Application and fee. An application for appeal shall be filed with the building official upon a departmental form within 10 days of the date of formal written decision. The application shall be accompa- nied by the required fee as set forth in Chapter 1.9.70 ECDC and shall be complete in all aspects before the hearing shall be scheduled. Failure to supplement an incomplete applica- tion within 10 business days of filing shall con- stitute an incomplete application and the administrative recourse of appeal shall be denied. [Ord. 3651 § 1, 2007], 19.80.010 Board of appeals membership. A. There is created a board of appeals con- sisting of members who are qualified by expe- rience and training to pass on matters pertaining to building construction and who are not employees of the city of Edmonds. The technical expertise of board members shall be supplied through training or experience as an architect, builder, general contractor, devel- oper, fire inspector, mechanical engineer, elec- trician, plumber, or structural engineer. The board members shall be active, practicing members of one of the prior listed disciplines or professions and include one lay person. Technical members of the board shall be appointed by the mayor and must reside in Snohomish County; the lay person shall be a resident of the city of Edmonds. B. The, board shall consist of nine voting members and four alternates appointed by the mayor. The board shall be comprised of per- sons with the following backgrounds or pro- fessional designations: 1. Position One. Structural engineer reg- istered by the state of Washington with at least five years' experience. 2. Position Two. Certified fire protec- tion specialist with at least five years' experi- ence. Exhibit 18 (Revised 7/07) 19-52 APL -2009-02 Edmonds Community Development Code 3. Position Three. Mechanical engineer registered by the state of Washington with at least five years' experience. 4. Position Four. Architect registered by the state of Washington with at least five years' experience. 5. Position Five. Electrician licensed by the state of Washington with at least five years' experience. 6. Position Six. Journeyman plumber licensed by the state of Washington with at least five years' experience. 7. Positions Seven and Eight. General contractor, developer or builder licensed by the state of Washington with at least five years' experience. 8. Position Nine. Citizen member of the city of Edmonds who is not associated with the building industry. 9. Alternates. Four additional alternates will be chosen to be called by the board during absence or disqualification of a member. Alternate members are required to meet one of the technical qualifications required for board membership. In the absence of any member of the board, the alternates shall be authorized to fill such temporary vacancy, regardless of the resulting composition of the board, with the full power accorded the regular member. The board chairman shall appoint the alternate. A permanent vacancy shall be filled by an alter- nate who is appointed by the mayor. Alternates may appear at all meetings but shall not vote unless they are filling a temporary vacancy. C. Building Official Duties. 1. Hearing Secretary. The secretary of the board shall be the building official. The secretary shall be the custodian of the records, shall conduct official correspondence of the board and generally be responsible for clerical work of the board. The secretary shall be present at the appeal meetings and shall present all relevant information regarding appeals to the board, including the application and other information submitted by the appel- lant prior to the hearing. The secretary shall 19.80.015 notify all interested parties regarding matters of the board. 2. Building Department Representa- tives. The building official shall be an ex offi- cio member of the board without voting power. D. Fire Department Representatives. The chief of the fire prevention bureau, or his authorized representative, shall be an ex offi- cio member to the board without voting power. [Ord. 3651 § 1, 2007]. 19.80.015 Board of appeals procedures. A. Terms. As of the effective date of the ordinance codified in this title, the mayor shall appoint the initial board members to overlap- ping terms. Two technical members shall be appointed to a one-year term, two technical members shall be appointed to two-year terms, two technical members shall be appointed to three-year terms, and the remaining members shall be appointed to three-year terms. Follow- ing initial terms, subsequent terms of all board members and alternates shall be for three cal- endar years. No member of the board shall serve more than three consecutive full terms, or a total of more than nine consecutive calen- dar years. B. Regular Meetings. Regular meetings may be held once each month, or as often as may be required. At the first regular meeting of each calendar year, the board shall elect a chairman and a vice chairman. The chairman of the board shall require that all members of the board be polled during voting at the meet- ing. Seven members of the board shall consti- tute a quorum. C. Special Meetings. Special meetings may be held by the chairman and at such times as the board shall determine. The board, the city or an appellant may request a special meeting. Any special meeting held at the request of an appellant shall be paid for by the appellant in the amount set forth in Chapter 19.70 ECDC. Five members of the board shall constitute a quorum at special meetings. D. Executive Sessions. Executive sessions of the board may be called pursuant to the 19-53 (Revised 7107) 19.80.020 State Open Public Meetings law by the chair- man or the vice chairman of the board and are not open to the public. The building official shall attend as secretary. E. Public Notice. Public notice shall be given of all meetings. Upon written receipt and confirmation of a complete appeal of a request, notice shall be sent to the fire department, the health department, the city attorney and the owner of the real estate and parties within 100 feet affected by the request. No hearing shall be scheduled until 15 days after the required hearing notifications are mailed. Meetings shall be open to the public. The appellant, the appellants' representative, the building offi- cial, and any person whose interests are affected shall be given an opportunity to be heard. F. Oath/Subpoena. The chairman may administer oaths, accept affirmations and com- pel the attendance of witnesses. A failure or refusal to appear in response to a subpoena issued by the board shall constitute a violation of these adopted codes and be subject to the penalties as outlined in Chapter 19.85 ECDC. G. Department/Interested Party. At any public meeting a representative of the city building and fire department and any other interested party may appear in person, by agent or by attorney, offer evidence and testimony and cross-examine witnesses. All evidence and testimony shall be presented publicly. The board may take judicial notice of facts to the same extent and in the same manner as courts of record and may consider relevant facts within the personal knowledge of any member of the board that are stated into the record by such member. H. Recording. All meetings before the board shall be recorded. I. Compensation. The board shall receive no compensation regardless of number or type of cases heard. J. Removal. Board members shall be removed from office by the mayor prior to the end of their terms only for just cause. Any member who is unavailable for three consecu- (Revised 7107) 19-54 Live appeal hearings shall be automatically removed and an alternate appointed as pro- vided for herein. K. Conflict of Interest. Members with a material or financial interest in a matter before the board shall declare such interest and refrain from participating in discussions, delibera- tions, and voting on such matters. [Ord. 3651 § 1, 20071. 19.80.020 Powers and duties of the board. A. The board shall adopt rules and proce- dures governing all proceedings consistent with the provisions set forth herein. The rules and regulations shall include meeting location, meeting time, procedures, contents of a com- plete appeal application and time to be allotted for each case. B. Subject to the limitations enumerated herein, the board shall have and may exercise the following powers: 1. The board shall have no authority rel- ative to the interpretation of the administrative provisions of any of the state building codes, nor shall the board be empowered to waive any requirement of any such code. 2. Nothing herein shall be interpreted to permit the board to hear any appeal, nor any request for deviation of design or alternative methods with respect to any property lying within a recognized landslide hazard and earth subsidence area or which is otherwise subject to the requirements of Chapter 19.10 ECDC including effecting map changes. 3. The board, on review, may approve the use of any material, alternate design or method of construction providing that it finds that the proposed design is satisfactory and complies with the provisions of this code and that the material, design, or method is, for the purpose intended, at least the equivalent of that prescribed in the applicable code in suitability, strength, effectiveness, fire resistance, durabil- ity, safety and sanitation. The decision of the building official shall not be overturned unless the board shall find that the following condi- tions exist: Edmonds Community Development Code a. That the appellant properly applied for an appeal; b. That sufficient evidence, proof or testing reports were submitted by the appellant that substantiated claims of equivalency; c. That the proposed modification or alternate will not weaken the general purpose of the adopted code; d. That the proposed modification or alternate will be in harmony with the spirit and purpose of the adopted code; e. That the proposed modification or alternate will not adversely affect the public health and safety; f. That the proposed modification or alternate will not adversely affect the struc- tural integrity of the building; and g. That the proposed modification or alternate will not adversely affect the fire safety of the building. 4. To hear and decide appeals where it is alleged there is error in any notice or order made by the building official and/or fire mar- shal in the enforcement of the adopted codes in this title. The board shall have the power to stay the enforcement of any order issued by the building and/or fire department unless the building official and/or fire marshal certifies that a stay of the order or denial would, in the opinion of the building official and/or fire mar- shal, cause imminent peril to life or property. A stay shall not constitute board approval, shall be personal to the appellant and not trans- ferable, and shall be subject to the terms and conditions imposed by the board. Any deter- mination or order of the building and/or fire department shall be presumed to be correct until evidence is introduced that would support a contrary determination. 5. Whenever the owner or legally responsible person of an alleged unsafe build- ing, structure, utility or other condition does not agree with the order from the building offi- cial and/or fire marshal as to the correction to be made, he shall have the right to appeal to the board within 10 days from the date of said order. In his appeal, the appellant shall state 19.80.020 how he proposes to make the unsafe building, structure, utility or other condition safe and the board may require the appellant to submit detailed engineering analysis or recommenda- tions, accompanied by plans and specifications prepared by a state licensed architect or regis- tered professional engineer, as prescribed in this adopted code. The board, in hearing such appeals, may require substantiating data con- cerning the removal or other remedial steps to be taken to render the unsafe building, struc- ture, utility or other condition safe. In any mat- ter in which an order or notice relating to an unsafe building, structure, utility or other con- dition is appealed, the building and/or fire department may certify to the board that the unsafe building, structure, utility or other con- dition could become an imminent hazard, in which case the board shall schedule a meeting within five business days to hear said appeal. C. Burden of Proof. 1. The appellant bears the burden of proof in any proceeding before the board. If there is insufficient evidence of compliance with any of the provisions of this code or evi- dence that any material or construction does not conform to the requirements of this code, the appeal from the decision of the building official shall be denied. 2. The board may continue any proceed- ing in order to permit the appellant to provide proof of compliance through tests conducted in accordance with general engineering prac- tice and best scientific evidence. Such tests shall be made by the appellant and at no expense to the jurisdiction. Test methods shall be as specified by the applicable building code or by other recognized testing standards. If there are not recognized and accepted test methods for the proposed alternate, testing methods shall utilize generally accepted engi- neering practice and best scientific method. Reports of such tests shall. be retained and made a part of record of the proceedings. D. Decision of the Board. 1. The board shall render formal written decisions within 10 days of the date of the 119-55 (Revised 7107) 19.80.025 hearing. Every decision of the board shall be based upon findings of fact and every finding of fact shall be supported in the record of its proceedings. A mere finding or recitation of the enumerated conditions unaccompanied by findings of specific facts shall not be deemed findings of fact and shall not be deemed com- pliance with the code. The building official shall take immediate action in accordance with the decision of the board_ 2. Copies of the decision shall be for- warded to the appellant, a copy shall be placed in the appeal file and copies shall be made available to any person as a matter of public information. Decisions shall be filed with the building or fire department as a matter of pub- lic record. 3. In the exercise of the powers described above, the board may reverse or affirm, wholly or in part, or may modify the order, requirements, decision or determination appealed from the board, may impose condi- tions or requirements as deemed necessary and may hold cases in abeyance until proper infor- mation needed by the board is supplied. [Ord. 3651 § 1, 2007]. 19.80.025 Appeals from decisions of the board. A. The filing of a land use petition for review shall not stay proceedings upon the decision appealed but the court may grant a stay in accordance with the Land Use Petition Act. B. All decisions of the board are appealable by Land Use Petition Act to Snohomish County superior court. [Ord. 3651 § 1, 2007]. 19.80.030 Snohomish County regional board of appeals. As to such time that a regional board of appeals is established within Snohomish County, the city reserves the right to replace the local city board of appeals with said regional board once an interlocal agreement is approved and adopted by council action. [Ord. 3651 § 1, 20071. (Revised 7/07) 19-56 Chapter 19.85 PENALTIES Sections: 19.85.000 Applicability. 19.85.000 Applicability. The provisions of all adopted codes within this title shall be subject to penalties as described herein. It is unlawful for any person, firm, corpora- tion or other organization to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy or maintain any building or structure in the city, or cause the same to be done, contrary to or in violation of any of the provisions of this chap- ter. Any person, firm, corporation or other organization violating any of the provisions of this title as adopted herein, or other provision of this chapter, shall be guilty of a misde- meanor, and shall be deemed guilty of a sepa- rate offense for each and every day or portion thereof during which any violation of any of the provisions of this title herein is committed, continued or permitted, and upon the convic- tion thereof of such violation, and each viola- tion thereof such person, firm, corporation or other organization, and the officers, directors and managers thereof shall be punishable as set forth in ECC 5,5 0.020 and Chapter 20.110 ECDC. Nothing herein shall be interpreted to limit the discretion of the city to seek any other available civil, statutory or common law rem- edies. [Ord. 3651 § 1, 2007]. 0006.90000 BFP 5120109 ORDINANCE NO. 3740 AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING A NEW ECC 19.80.023 TO AUTHORIZE THE HEARING EXAMINER TO DECIDE BUILDING CODE APPEALS WHENEVER THE BOARD OF APPEALS IS UNABLE TO CONVENE; REPEALING DUPLICATE AND CONFLICTING PROVISIONS RELATING TO THE BOARD OF APPEALS IN CHAPTER 10.15 ECC; PROVIDING FOR SEVERABILITY; AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, appeals before the Board of Appeals ("Board") are very rare; and WHEREAS, there have been occasions when appeals have been brought before the Board, but the Board was unable to convene due to lack of membership; and WHEREAS, RCW 35A.63.170 authorizes the City Council to vest in the hearing examiner the power to hear and decide those issues it believes should be reviewed and decided by the hearing examiner; and WHEREAS, the City Council finds that the hearing examiner should hear and decide appeals relating to the building code whenever the Board is unable to convene; and WHEREAS, both Chapters 10.15 ECC and 19.80 ECDC relate to the creation, membership and authority of the Board; and WHEREAS, provisions of Chapters 10.15 ECC and 19.80 ECDC are either in conflict or duplicative; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN AS FOLLOW: {BFP729263,DOC;I100006.900000/} - I - Section 1. Adopted. A new ECDC 19.80.023 entitled Alternate to Board of Appeals is hereby adopted to read as follows: 19.80.023 Alternate to Board of Appeals. Whenever it appears to the building official that an appeal covered under this Chapter may be unreasonably delayed because the Board of Appeals is unable to convene to hear and decide the appeal in a timely manner, the appeal shall be brought instead before the hearing examiner, who shall have the same power and duties to hear and decide the appeal as the Board of Appeals under this Chapter. All aspects and requirements for the appeal shall remain unchanged. The building official's decision and reasons to shift the appeal from the Board of Appeals to the hearing examiner shall be provided timely to appellant and all interested parties in writing. Section 2, Adopted. A neve ECC 10.15.000 entitled Board of Appeals - Regulations is hereby adopted to read as follows: 10.15.000 Board of Appeals - Regulations. Regulations relating to the Board of Appeals shall be as set forth in Chapter 19.80 ECDC. Section 3. Repealed. The following sections of Chapter 10.15 ECC are hereby repealed: ECC 10.15.010 (Purpose), ECC 10,15.020 (Membership), ECC 10.15.030 (Removal), ECC 10.15.040 (Limitations of authority), ECC 10.15.050 (Tests), and ECC 10.15.060 (Landslide hazard and earth subsidence areas). Section 4. Severability. Zf any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this ordinance. (BFP729283.DOCJ100006,9000001) - 2 - Section S• Effective Date. This ordinance is not subject to referendum, and shall take effect five (S) days after passage and publication of an approved summary thereof consisting of the title. APPROV D: MA OR G Y AAICENSON ATTEST/AUTHENTICATED: CITY CLERIC, SANDRA S. CHASE APPROVEDS O RM: OFFICE OF Y A EY BY FILED WITH THE CITY CLERK: 06/12/2009 PASSED BY THE CITY COUNCIL: 06/16/2009 PUBLISHED: 06/22/2009 EFFECTIVE DATE: 06/27/2009 ORDINANCE NO. 3740 (UP729283DOC;1/00006.9000001) - 3 - SUMMARY OF ORDINANCE NO, 3740 of the City of Edmonds, Washington On the 16th day of June, 2009, the City Council of the City of Edmonds, passed Ordinance No. 3740. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING A NEW ECC 19.80.023 TO AUTHORIZE THE HEARING EXAMINER TO DECIDE BUILDING CODE APPEALS WHENEVER THE BOARD OF APPEALS IS UNABLE TO CONVENE; REPEALING DUPLICATE AND CONFLICTING PROVISIONS RELATING TO THE BOARD OF APPEALS IN CHAPTER 10.15 ECC; PROVIDING FOR SEVERABILITY; AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. The full text of this Ordinance will be mailed upon request. DATED this 17th day of June 2009. CITY CLERK, SANDRA S. CHASE {HFP729283,DOC,1/00006.9000001}- 4 - RECEIVED JUN 2 9 2009 EDMONDS CITY CLERK Account Name: City of Edmonds and that said newspaper was regularly distributed to its subscribers during all of said period. , -C�wj Principal Cl.erlc Subscribed and sworn to before me this 22nd day of June, 200 — , / Notary Public i and fo the State o . Oirt�',i�1;y�rLftt, Snohomish � gat . Coon ,,,,�� 1", i®. AcceurttNumber. 1074T�nNumber: OOOW64602 w 6F In. t ,t. t% Affidavit of Publication STATE OF WASHINGTON, COUNTY OF SNOHOMISH } S.S. The undersigned, being first duly sworn on oath deposes and says that she is Principal Clerk of THE HERALD, a daily newspaper printed and published in the City of Everett, County of Snohomish, and State of Washington; that said newspaper is a newspaper of general circulation in said County and State; that said newspaper has been approved as a legal newspaper by order of the Superior Court of Snohomish County and that the notice enc: ta9� - SUMMARY OF ORDINANCE NO. 3740 the Cityo m Edmonds, Washington On the 161h dap of June, 2009, the City Council of the City of Summary of Ordinance NO, 3740 Edmonds, passed Ordinance No. 3740. A summary of the content of said ordinance, consisting of the rade, provides as foliOWS: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, Adopting a New ECC 19.80.023 ADOPTING A NEW ECC 19.00.423 TO AUTHORIZE THE HEAR- ING EXAMINER TO DECIDE BUILDING CODE APPEALS WHENEVER THE 130ARD OF APPEALS IS UNABLE TO CON- VENE, REPEALING DUPLICATE AND CONFLICTING PROVI- SIONS RELATING TO THE BOARD OF APPEALS IN CHAPTER 10.15 EGG; PROVIDING FOR SEVERABILITY; AND FIXING A ;TIME WHEN THE SAME SHALL BECOME EFFECTIVE. - a printed Copy of which is hereunto attached, was published in said newspaper proper and not The full text of this Ordinance Wil be mailed upon request. DATED this 17th day of Juno 2009. in supplement g paper g y pp ment form, in the regular and entire edition of said a er on the following days and CITY CLERK, SANDRA S. CHASE times, namely: Published: June 22, 2009. ... June 22, 2009 RECEIVED JUN 2 9 2009 EDMONDS CITY CLERK Account Name: City of Edmonds and that said newspaper was regularly distributed to its subscribers during all of said period. , -C�wj Principal Cl.erlc Subscribed and sworn to before me this 22nd day of June, 200 — , / Notary Public i and fo the State o . Oirt�',i�1;y�rLftt, Snohomish � gat . Coon ,,,,�� 1", i®. AcceurttNumber. 1074T�nNumber: OOOW64602 w 6F In. t ,t. t% CL 0 cv C ro O Q v SQ� CD o CD CD o CD cn � o o O CD 0 OD Ow COD Cr CD O u+CD i 0-CD:..'�- DO M�0.-0 w = p Q C7 CD � • .--r [D O-. O O -p C-) CD N C 0 0 E C- CD CD CD CD O ran-- : o rvQ� 0 to 0 < cc 4 -O 0 n v0 a CD (. � C � � v m C> �' c C1 -0 Q CD Q O 0 CD 0 --0 .-r 0 Q 0— :3 0 0-0 Q w CD m C7 v �. p O :3 cQ Q� M CL (D 0 -- 0 m 00 cn M C7 CDCD CD 00 Q CD w CD Q- CD O Ca fn M. D O Q CD m cC) CA) M =7 - CD �' CU = C O cn 0 n CD = CD CD U ZO n CD O C CD C1 0 m 7 CD O C7 r _ 0 = cD CD n CD O U) 3 to _ CD tT CD Z3 O= CCA C5 = O a no -a. 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CD a O Q O N 77 CD p — 0' Q = CA CL 0 cs cCn n CD CD cD O h O O N Z -no O -h I_ CD Z Z m O =0 CD r O N C:)0 n� CD co CD CD 1 � O � N PO cO O O CD Exhibit 19 0 0 0 0 0 C > n Z DQ N O c • -O y CD O- CD V G ..) � � W O O N NJ CD Q (D v O OG1 CD a O Q O � DD p — 0' 0 cs cCn n CD CD cD . .nr C O w O h O O N Z -no O -h I_ CD Z Z m O =0 CD r O N C:)0 n� CD co CD CD 1 � O � N PO cO O O CD Exhibit 19 6D Date Received: f < a City of Edmonds RIECEIVM For City Use Only: y} `� Development Services Departmen JUL 1 c1��7 File No: t 2 f 5rh Avenue North 1. 7iE 0? - � ! �- � N✓s� n Edmonds, WA 98020 FF��F T SERVICES 2• � � 7` �� ' Sc—q( ',f lac. tag° Phone: 425.771.0220 Fax: .T�l.t� ,rte_ „-�,� rpt _ -a- •- ,"I, - - REQUEST FOR CODE ENFORCEMENT ACTION If you have distinctive handwriting you may choose to type this form. Alleged Violator's Name/Phone: Violation Address or Site Location: T-7 7 I J3`" AAj r{ �� 711 ;� a�' DETAILS OF REQUEST, (Please be specific.)G K;C) 41 o�- '7 �� Q,<, "m IZ Ck tj-- Lie, & y `4v J2 i C-41 ".)'z E� 4t Exhibit 20 APL -2009-02 ?M VIOLATION REPORT ME #: DATE PROVE RTY AD D RESS - // PROP ERTY OWKER: %2 � N-AUW Address 1"lxoue TENANT: NAnne ZONE DISTRICT: CODE SEMONS 'VIOLATED: APPLICABLE PERMITS AND FILES VIOLATION: Address OCCUPANCY: Phone REPORT: Site Inspection— Research info / Teiephone counter QEher� REPORTLNG oFFI.ctAL-- N q w oa :a N YG Oa. �ry ■ 'a c 2a a NOiONIHS/M '),iNnoO HSMOHON �1 9dud�� i p x� SCNowa3 �o w0 � � NiJ}d "F zs W'M "12 LZ'i `bZ N011035 'b/.MN `t/l3S NI 3 x« by o u _ o O lNO1 S N�S�nHl d1 owl N3 A a=€ Vol g > " as zIg € € s9 wla o€ =d HO R it h a a� a — vsoo I Ila ML _ -- 8 8e 3ros w a UR il�rr - J AT, U O• w�llc Z' c�! w N 00'3 'P1" W me� - w v \ a J _ Iw 0 \ Mv�eI 4 ^1 — �wolfI I a � N cmi3 i�g3 ---- Wk zfitwo out, N a.o=s _ 8th—AbFNUE X mLva w Eo--Rcoroe��Nee?nr�q��sas'�>� � it Io GON�EYE TO TH CiY CF A -_ Message Page 1 of I McConnell, Jeanie From: McConnell, Jeanie Sent: 'Wednesday, August 08, 2007 9:00 AM To: Cebert, David; Bowman, [wane; 'W. Scott Snyder' Cc: McConnell,, Jeanie; 'zlell@omwlaw.com' Subject: FW: Encroachment Permit & Revised) civils - S-05-09 Please see 'Eric's response below. I will consider the encroachment perMit withdrawn and cc.Altimle review the revised cavitis accordingly. Jeanie" -----Original Message ----- From: ericthuesen@comcast.net [mailto:ericthuesen@comcast.neit] Sent Wednesday, August 08, 2007 8:56 AM To: McConnell, Jeanie Subject: Re: Encroachment Permit 8'. Revised civils - S-05-09 Jeannie- Yes, I am not requesting and encroachemnt pen -nit on the City RO.W. I have placed the road on my property to avoid further delays. There is still an structural encroaclunent problem on the R..OW. that the City will have to solve but it will no longer affect the development of the short plat. The revised civils show the utilities and road placed to the north and grading changes to construct the new location of the road .Nothing else has changed. Please advise as to when 1 can receive the approval. Hopefully this will make all of our joibs easier. Thanks Jeatulie for you quick response, Eric --------------- Original message ______________ From: "McConmll, Jeanie" <Mcconnell c@ci.cdrnonds.wa.us> Eric, The civil plans submitted to our office yesterday - Construction Change #1 - show relocation of the retaining wall and access road to private property. As there are no longer encroachments into the alley right-of-way shown on your plans do you intend to withdraw your encroachment permit application? Thank you, je .re x(,"onneff 425-771-022'0, evt. 1.338 TAX- 1125-771-0221 mcconneff c .ed oT2 s:Tva. us Exhibit 22 APL, -2009-02 117/5/20179 NOiONHSVAA HSIMOHONS S(INOVNC3 HO ),il--) 'VI'M -12*21 Z'i '17Z NOiOIS 't,/'[MN 'V/LIS NI Ki NVed iN]AcJC�]A:!C as Inc 1 S9 11 CITY OF EDMONDS 121 sTH AVENUE NORTH • EDMONDS, WA 98020 • (425) 771-0220 • FAX (425] 771-0221 Wetsile: wwv4dedmonds.vra.us DEVELOPMENT SERVICES DEPARTMENT Planning • Building a Engineering November 7, 2007 Matthew J. Cruz, Esq. BERES%ORD BOOTH PLLC 145 'Third Avenue South, Suite 200 Edmonds, WA 98020 Re: ReidylThuesen Staters of Ailey Dear Matt: GARY HAAKENSON MAYOR I'm sorry for the delayed response. I simply got busy with a number of other issues. 1 have had a chance to discuss this matter with the City attorney's office. Please accept the following as the City of Edmonds' formal response to your September 14, 2007 letter regarding the alley that borders the parcel owned by your clients Keri and Vera Reidy and separates their parcel from the lot currently being developed by Eric Thuesen. Your letter alleges that the alley has been vacated by operation of law under Washington's "nonuser" statute, RCW 36,87.090, or, alternatively, that the City has effectively abandoned its interest in this right-of-way. After reviewing this matter with legal counsel, the City respectfully rejects both of these contentions. Washington's nonuser statute provides in relevant part as follows: Any county road, or part thereof, which remains unopen for public use for a period of five years after the order is made or authority granted for opening it, shall be thereby vacated, and the authority for building it barred by lapse of time[.] RCW 36.87,090 (emphasis added)_ By its plain terms, the statute applies only to county roads, and Washington caselaw has clarified that the vacation procedure set forth in RCW 36.8T090 is inapplicable to public rights-of-way which were approved by or otherwise dedicated to cities. See, e.g., Northwestern Industries, Inc, v. City of Seattle, 33 Wn. App. 757, 759, 658 P.2d 24 (1983) ("There is nothing in the nonuser statute. _ - which creates or limits the, rights of incorporated cities over streets within their corporate limits. The intent of the Legislature in passing the nonuser statute was to govern county authority over county roads.") (Emphasis added), 0ZL675315.D0C;1/00006-9000001) Incorporated August 1I, 1890 Sister City - Hekinan, Japan Exhibit 24 APL -2009-02 The alley in question was dedicated as part of the original Plat of Edmonds and never assumed the legal status of a county road. The nonuser statute is accordingly inapplicable under these circumstances. The City likewise rejects your assertion that the City's interest in the alley has been abandoned by nonuse, failure to eject private structures from the right-of-way area, and/or the Edmonds City Council's 1981 vacation of a separate segment of the alley. In the context of a publicly dedicated property interest, abandonment must be proven by "clear, unequivocal and decisive evidence." See, e.g., .Nelson v. Pacific County, 36 Wn. App. 17, 22, 671 P.2d 785 (1983). The primary legal consideration under this demanding standard is the owner's intent. Id. In this regard, the City has never affirmatively suggested ----- much less expressly stated — any intent to relinquish the public's interest in the alley. To the contrary, the City Council's 1981 vacation proceeding acknowledges the continued public ownership of this dedicated right-of-way. Had the Council desired to relinquish its interest in the portion of the alley now at issue, it clearly could have effectuated and/or expressed this intent. The City became aware that the Reidys' outbuilding encroaches into the alley based upon a complaint filed with the City. In objecting to the Thuesen project, your July 27, 2007 letter repeatedly characterized the right-of-way area in question as a "City alley". It is obviously incongruous for your clients to now contend that the alley has actually been vacated or abandoned. For the reasons explained above, the City rejects the Reidys" position in this regard. Pursuant to ECDC 18.70.000, the unpermitted encroachment of the Reidys' outbuilding into the alley right-of-way is unlawful and must be terminated. Without prejudice to the City's authority to collect all relevant fees and charges resulting from the Rcidys' occupation of the alley, the City intends to initiate formal enforcement proceedings against your clients' if the offending structure is not removed or lawfully permitted by December 31, 2007. The Reidys' may in their discretion submit a street vacation petition for the underlying right-of-way area pursuant to Chapter 35.79 RCW and Chapter 20.70 ECDC, but the City will not toll its enforcement process during the pendency of any such proceeding. The City also makes no assurances regarding the outcome of any vacation request or encroachment permit application. I trust that the above adequately clarifies the City's position regarding the arguments raised in your September 14, 2007 letter. Please feel free to contact the City Attorney with any additional comments. Sioc ely, anc�, Development Services Director City of Edmonds M. Dave Gebert, City Engineer Zach Ull, Ogden Murphy Wallace (JZL675315.DOC,1100006.9(7 WOW) Message Gebert, David From: Gebert, David Sent: Tuesday, November 13, 2007 1:50 FM To: Bowman, Duane Cc: 'Snyder, Scott' Subject: Reidy Duane, Page 1 of l Vera Reidy came in to see you this afternoon. She said they are not going to be able to meet the December 31, 2007 deadline in your November 7 tetter. She said they have hired Western Engineer's to do some survey work related to this issue and Western Engineers won't be able to do the work until January and all surveyors are really busy. She gave me a copy of their contract with Western Engineers. Scope of work includes locating the encroachments in the alley and setting property corners. I told her to send you an e-mail or letter (cc to me) explaining hes situation and why it is not possible for them to meet your deadline - Dave 11/13/2007 Exhibit 25 APL -2009-02 Contract For Professional Services RK YEs tales#ern ❑ NQ Engineers_ r Inc. 13000 Highway 99 S. Phone: (425) 356-2700 JOB. NOW- Everett, WA 98204 (425) 353-1119 CUST NQ..._—_-_. SURVEYORS • PLANNERS • ENGINEERS Pax: (425) 356-2708 425) 742-650© � _ KROLL._—PG. --- --�' '1,-'il SECT{ON SECTION i9PlNSHIP� RANGE n Additional Services Contract ❑ Change Order y} This agreement is made and entered at Everett. Washington thls day cf. . by and between Western �Englneers, Inc, (hereinafter called the "CDNSULTANT") nd : -� CLIENT % ._ v' �5�rd (rola wnea me dG)-- ADDRESS _ TFL, CFFiCE �,� CELL -- Tip _,�^�s-./ .— FAX WORK ORDERED 13Y� TEL. RES. ADDRESS`' _ EMWL WORKTYPEfFEE El PLANNING .fv'f LAND SURVEYING � l � n CIVIL ENGINEERING [] CONSTRUCTION MANAGEMENT [I CONS,/TRRUp CTIONISUURVEYING - CONSuLTiNG -__ RETAINER REQUIRED: [ ,XN THE SUM OF ,9S0 , ` Lam.: ! �r � ["j OTHER TERMS: lnvolces are billed at the and of the month (on work in progress), and payable within ten (16) days. 0 LEGAL LANDOWNER �f )9 ADDRESS WORK DESCRIPTION f,!'J1�f7.Z....J-..__.,..._'__. `�yl elo '91157u ;r i f f? Q l f� '_-3n --. .- PROPERTY ADDREss.-.�_ TAX ACCT(S). No_ ' Lo",--% i/a.. CITY 6 11/O JUR15-._.�lJ� IN THE EVENT THATAN R.O.S. IS REQUIRED (ENCROACHMENTS) PER RCW 5$.90, THE CLIENT SHALL PAYFORALLCOST INCURRED TO PREPARE AND FILE THE PROPER DOCUMENTATION * CLIENT CONSULTATION & REPRESENTATION IS CHARGED AT TIME & EXPENSE. IMPORTANT• PLEASE READ GENERAL TERMS AND CONDITIONS A; The foregoing Is a confirmation of the work ordered to be performed. If any information shown hereon is not in accordance with your understanding, please advise our office Immediately, We will not be responafble for errors or misunderstandings which may arise from lack of proper notiiicatfon. E) All Title Co., citylcountylstato or other regulatory agency fees and/or assessments are paid by client directly to the requesting agency. C) Fees for professional serv€cos shall be billed on a time basis at rates set forth in a schedule posted At the office of Western Engineers, Inc- A copy of the rate schedule will be furnished to the client on request. D) in the event of additional work or changes required by any governmental authority, andlor changes made other than the original contract, all changes shall be paid for by the client as extra work at prevailing rates, As -construction plans (as -built) are an additional cost. F) All recording fees, blueprints, my%ra, diskslcd roms, copies faxes, long difstance phone calls, orother client advances shall be paid for by client and shall be In addition to the above quoted prices. F) In the event that any staking is destroyed by an act of God or parties other than the consonant, the cost of iesteking shall be paid by the dientas extra work at the prevail'mg rates. G) All fees and other charges will be bitted monthly and shag be due and payable within ten days of presentation unless otherwise specified In this agreement. If payment Is not received within 31) days of billing, a fate payment (finance change) of 1.5% per month, which Is an annual rate of 19%, shall be applied to any unpaid balance, commencing 30 days after the date of the original invoice. H) If after 30 days, payment is not received, the consultant has the right to suspend work until payment is made. i) Alien will be recorded within ninety (90) days of the last day worked• unless the account is paid in roll, or prior arrangements have been made, Any charges for the fling of such a lien and the subsequent filing of the ITen release, all in addition to any other charges made, shall be paid by client. J) Should this agreement be placed In the. hands of an attorney for collection, all reasonable attorney's fees and litigation expenses shalt be paid by client_ K) in the event that client institutes a suit against consultant because of any failure or alleged failure to parrorm, error, omission, or negligence, and If such a suit is not successfu5y prosecuted, client agrees to pay consultant any and all cost of defense, L) In the event all or any portioh of the work prepared or partfaily prepared by the consultant be suspended, abandoned or terminated, otlenl shall pay the consultant for all fees, charges, and services incurred to date of the termination. M) In the event either client or consultant fife= suit, It Is agreed by both parties that the proper place for such suit shall he Snohomish County Superior Court, State of Washington. Ni Ail original papers and documents. and copies thereof, produced as a result of this GorlVaa. except documents which are required to be Filed with put)lic agancies, shall remain the property of the consultant. O) For liability purposes, all CADD files released on diskfcd rum will not include WEI title block andlar seal. (Professional License stamp.) Western Engineers, Inc. will diligently pursue the above described work and complete the same within a reasonable time unless delayed by circumstances beyond its control. If a fixed fee is specified above, it is understood and agreed that said fee Is predicated upon conditions and availability of closest existing survey contrai points according to public records which are subject to field verification. If any such points, records, or conditions are found to be - missing, in error or changed, Western Engineers, Inc. will inform the client as to any fee increase which will be required as a result. In that event, the client may terminate the job and shall reimburse Western Engineers, Inc. for charges incurred to that date. AUTHORIZATION ORDERTAKENSY The undersigned has read this agreement, accepts the terms and conditions thereof, warrants that PROJECTMANA43ER helshe owns the described property or acts as the authorized agent of the owner, and helshe (and his/her [Rite undersigned acts as an agent) promises to pay the charges provided for herein together WORK with interest on past due sums and all reasonable attomey's fees and litigation expenses should this SCHEDULED ----,-- ------ agreement be placed in the hands of an attorney to collectthe sums due Western Engineers, Inc. CORPORATION BY ; SIGNED BY f _.R -/mac �.�-+ _,.. W-tLIFNT Imo,- AGFNT WHITE: ACCOUNTING YELLOW: CLIENT ESTIMATED COMPLETION' -� --- RETAINERr RECEIVED ._..._.._...__...._.__�.__. ___``. PINK: FILE 0006.900000 W SS/gjz 616108 RESOLUTION NO. 1178 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, INITIATING REVIEW OF VACATION OF A PORTION OF AN UNOPENED PUBLIC ALLEY LYING BETWEEN 8TH AVENUE NORTH AND 9TH AVENUE NORTH, PARALLEL TO AND NORTH OF DALEY STREET, AND SETTING A PUBLIC HEARING. WHEREAS, property owners in the vicinity of an unopened public alley 7 1/2 feet in width lying between 8th Avenue North and 9th Avenue North, parallel to and north of Daley Street have contacted the Mayor and staff regarding vacation, and, WHEREAS, at the date of creation, the 7 1/2 feet constituted one-half of the area necessary for an alley and Was adjacent to the then city limits of Edmonds; and City; and WHEREAS, when the City expanded, no further dedications were made; and WHEREAS, the 7 1/2 foot unopened alley may be surplus to the needs of the WHEREAS, due to the small size and scale of the vacation, the City Council deems it to be in the public interest to initiate vacation proceedings itself and waive the requirement that an appraisal be formed, now, therefore, THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The City Council hereby initiates the review and consideration of a request to vacate a public alley lying between the 700 block of 8th Avenue North and 9th Avenue North and parallel to and north of Daley Street in Edmonds, Washington and legally WSS697613.170C;1100006.9000001) - 1 - Exhibit 26 APL -2009-02 described on the attached Exhibit A. By the passage of this resolution the City Council takes no position regarding the vacation, but rather has initiated the petition pursuant to the requirements of the state statute and ECDC 20.70.050. Section 2. Pursuant to the requirements of ECDC 20.70.070, the City Council hereby sets a public hearing on the proposed street vacation. The hearing is set for 7:00 PM on July 22, 2008, or as soon thereafter as the public may be heard. Said date is not more than sixty days nor less than twenty days after the date of passage of the resolution. Section 3. Given the small scale of the proposed location, the Council waives the requirement that an appraisal be performed and will rely on assessed value of adjacent parcels as an approximate indication of value. RESOLVED this 24th day of June, 2008. APPROVE MAY ,G HA KENSON ATTEST/AUTHENTICATED: CITY CLERK, SANDRA S. CHASE FILED WITH THE CITY CLERK: 06/20/2008 PASSED BY THE CITY COUNCIL: 06/24/2008 RESOLUTION NO. 1178 {WSS697613.DOC;1/00006.900000/} - 2 - EXHIBIT A That portion of unopened alley right-of-way located between 8th Avenue North: and 9`h Avenue North in the City of Edmonds, situated in the County of Snohomish, State of Washington more particularly described as follows: The 7.5 feet of alley right-of-way as dedicated per the Plat of the City of Edmonds recorded in Volume 2 of Plats, Page 39 records of Snohomish County, Washington lying northerly of and immediately adjaccnt to Lots 20 through 38, Block 82 of said plat. CITY CLERK C'ENUEEDMONDS '!21 STH NO. IIIII11111111IIIA 111I1I 11111111111111111111111111111 H AVENUE EDMONDS, WA 980207 PGS SNOHOMISH9COUNTY, WEIINGTON ORDINANCE NO. 3729 AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, VACATING A PORTION OF THE PLATTED BUT UNBUILT RIGHT-OF-WAY OF AN ALLEY LOCATED BETWEEN EIGHTH AVENUE NORTH AND NINTH AVENUE NORTH, NORTH OF DALEY STREET, RESERVING AN EASEMENT FOR CONSTRUCTION PURPOSES AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, on July 24, 2008, the City Council enacted Resolution No. 1178 initiating the vacation of unopened alley right-of-way between Eighth Avenue North and Ninth Avenue North, one block in length commencing north of Daley Street; and WHEREAS, a public hearing was held on July 22, 2008; and WHEREAS, objections were raised at that hearing and the matter was continued to September 16, 2008; and WHEREAS, based upon the record of the proceeding and the records of the City, the City Council determines: I . No property would be deprived of direct access by reason of the vacation. All properties located on the alley have direct access to a City street, including properties located E,t within the three -lot short plat for 'Thuesefi Customs Homes, incorporated at page 70 of the City Council packet of September 16, 2008. {WSS70631i.170C;1100006.90000011 - - Exhibit 27 APL -2009-02 2. The aforementioned short plat shows access for Lot 2 lying entirely within the plat. Based upon Mr. Thuesen's assertions in the vacation hearing of the practical difficulties associated with installation of a driveway and retaining wall, which are shown as being located entirely within the short plat, the City deems it to be appropriate to retain a temporary construction easement contemporaneous with the life of the preliminary plat, to wit, five years. 3. Mr. Thuesen also asserts that he has a vested right to use of the alley. The City Council finds and determines that the vested rights doctrine is limited to the application process and that Mr. Thuesen's rights have vested in accordance with the approvals granted by the preliminary short plat for his property. There is no vested right to the continued use of the City street which may be vacated in accordance with law and ordinance. 4. Finally, Mr. Thuesen asserts that he is the owner of 50% of the abutting property or part thereof to be vacated. The City Council finds that Mr. Thuesen owns less than 50% of the abutting property for the proposed alley vacation. To interpret City ordinance based on Mr. Thuesen's theory would be an improper delegation of City Council legislative authority, render the provision meaningless in that every abutting property owner abuts one half of a street or alley by definition and the clear meaning of the provision read in light of the other provisions of City ordinance and state law leads to the conclusion that the term "part thereof' refers to the portion of the entire street or alley to be vacated and not to any limited portion of a proposed vacation_ 5. The City Council finds it to be in the public interest to vacate the property without compensation, given its small size (7 112 feet in width), its lack of value and utility to the City, the fact that it, except as provided herein, serves no public purpose, and that returning the property to the tax rolls provides a benefit to the City. (WSS705311.DOC;E100006.9000001) - 2 - NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. The right-of-way of a platted but unbuilt public alley lying between the 700 block of Eighth Avenue North and Ninth Avenue North and parallel to and north of Daley Street in Edmonds, Washington, and legally described on the attached Exhibit A is hereby vacated; provided, however, that the City Council hereby reserves a temporary construction easement for the installation of a driveway and retaining wall on property lying north of the alley and cast of Eighth Avenue North. The area covered by temporary construction easement is shown on the attached Exhibit 13. The temporary construction easement shall be void five years from the date this Ordinance is effective or upon installation of the retaining wall, whichever shall first occur. Construction pursuant to this easement by a private party shall be undertaken only in accordance with best engineering practices and the subdivision engineering requirements to the City of Edmonds and pursuant to a right-of-way construction permit. The retaining wall to be constructed on the property north of the construction easement shall be located entirely upon private property to the north, and the slope of the surface area within the construction easement shall be graded, packed, and seeded in accordance with City engineering requirements. Section 2. The City Clerk is hereby directed to file a copy of this Ordinance and the Exhibits thereto in the land records of Snohomish County. Section 3. Effective Date. This ordinance, being an exercise of a power specifi- cally delegated to the City legislative body, is not subject to referendum, and shall take effect five (5) days after passage and publication of the approved summary thereof consisting of the title. (WSS706311.D0Q1100006900000/) - 3 - APPROVED: --- 4,Lf � - MAY G Y HAAKENSON AT��T//EST/AUTHENTICATED: tea. j6e. - CITY CLERK, SANDRA S. CHASE APPROVED AS TO ORM: OFFICE OF HTY A O Y: /7_ BY 1 W. SCOTT SNYDER FILED WITH THE CITY CLERK: 03/13/2009 PASSED BY THE CITY COUNCIL: 03/17/2009 PUBLISHED: 03/22/2009 EFFECTIVE DATE: 03/27/2009 ORDINANCE NO. 3729 {WSS706311.DOC;1100006.9000001} -4- On the 17th day of March, 2009, the City Council of the City of Edmonds, passed. Ordinance No. 3729. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, VACATING A PORTION OF THE PLATTED BUT UNBUILT RIGHT-OF-WAY OF AN ALLEY LOCATED BETWEEN EIGHTH AVENUE NORTH AND NINTH AVENUE NORTH, NORTH OF DALEY STREET, RESERVING AN EASEMENT FOR CONSTRUCTION PURPOSES AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. The full text of this Ordinance will be mailed upon request. DATED this 18th day of March, 2009. ,6l • Cf wG CITY CLERK, SANDRA S, CHASE IWSS706311.00C;1100006.9000001j - S EXHIBIT A That portion of unopened alley right-of-way located between 8t` Avenue North and 91h Avenue North in the City of Edmonds, situated in the County of Snohomish, State of Washington more particularly described as follows: The 7.5 feet of alley right-of-way as dedicated per the Plat of the City of Edmonds recorded in Volume 2 of }Tats, Page 39 records of Snohomish County, Washington lying northerly of and immediately adjacent to Lots 20 through 38, Block 82 of said plat. 0 EXHIBIT B Temporary Construction. Easement Reservation A temporary construction is easement is reserved over that portion of unopened alley right-of- way ight-ofway located between 8`' Avenue North and 9`h Avenue North in the City of Edmonds, situated within the County of Snohomish, State of Washington more particularly described as follows: The 7.5 feet of alley right-of-way as dedicated per Plat of the City of Edmonds recorded in Volume 2 of Plats, .Page 39 records of Snohomish county, Washington lying northerly of and immediately adjacent to Lots 36 through 38, Block 82 of said plat.