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HE decision V-03-54.pdf121 5TH AVENUE NORTH - Edmonds, WA 98020 m (425) 771-0220 ® FAX (425) 771-02.21 HEARING EXAMINER DINGS, CONCLUSIONS AND DO OF . EXAMINER CITY OF EDMONDS APPLICANT: Michel Construction, agent for Mr. and Mrs. Shaw. CASE NO.: V-03-54 GARY HAAKENSON MAYOR LOCATION: The Northeast corner of 8"' Ave. S. and Pine St. for the Critical Areas Variance and l Oxx Main St. (north side) for the mitigation site (see Exhibit A, Attachments 1 and 3). APPLICATION: A Critical Areas Variance to allow filling of a portion of a Class 3 wetland. Mitigation is proposed that ensures the functions and values of these critical areas are protected (see Exhibit A, Attachments 2 and 3). REVIEW PROCESS: Variance; Hearing Examiner conducts public hearing and makes final decision. MAJOR ISSUES: a. Compliance with Edmonds Community Development Code (ECDC) Chapter 20.1513(CRITICAL AREAS) b. Compliance with Edmonds Community Development Code (ECDC) Chapter 20.85 (VARIANCES). Staff Recommendation: Approve with conditions Hearing Examiner Decision: Approve with conditions 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 application. The hearing on the Michel Construction application was opened at 9:35 a.m., June 19, 2003, in the City Hall, Edmonds, Washington, and closed at 10:54 a.m. Participants at the public hearing clearing Examiner Decision Case No. V-03-54 Page 2 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 spoke at the public hearing. From the City: Steve Bullock, Project Planner From the Applicant: Rob Michel From the Community: Mary Proudfoot Carol Johnson Eileen Carter Thomas Nicholson Jewel Williams CORRESPONDENCE: Letters were submitted by the following: Dr. Steven & Eileen Carter, Exhibit E Maiy & Martin Proudfoot, Exhibit F Marilyn Dahlke, Exhibit G Della & Walt Gibbs, Exhibit H Gladys Rogers, Exhibit I Jewel Williams, Exhibit J CONCERNS AND RESPONSES: The following is a summary of concerns related to the critical areas variance that were expressed by neighbors and a summary of responses offered by the Applicant and by City staff. Concerns: • Runoff from the site has not been adequately addressed. • The existing earth berm protects lots to the north from runoff and should be retained. • Filling in the wetland will result in a significant negative impact on drainage, resulting in resulting in adjacent properties becoming wetter. • Removal and enhancement of the existing wetland will leave only 7% of the original wetland. • The wetland still needs to be fenced even if it is reduced in size. • There are many ground water sources in the area. • An above ground retention pond could be a breeding pond for mosquitoes. • Assurance is necessary that neighboring properties are not adversely impacted by drainage both during and after construction. Hearing Examiner Decision Case No. V-03-54 Page 3 • Approval of the variances should be delayed until the all of the issues are addressed. Responses: • There is groundwater on the site, and new engineering requirements that will be followed will tent to help the situation. He will be required to collect and divert water into the City's storm system. His intention is to collect and divert as much ground water as possible. • There will be an underground retention system, so no pond to breed mosquitoes will be built. INTRODUCTION: The applicant has two vacant lots on the northeastern corner of 81h Avenue South and Pine Street. A critical areas study has been performed on the property that confirms the presence of a Class 3 wetland that covers between 1/3 and 1/2 of the site. Except for the wetland, the property would be capable of being subdivided into approximately 7-9 lots depending on the configuration. At the same time, the applicant's representative, Michel Construction, owns a property on Main Street that is also encumbered by a wetland. A study has also been completed on that property that confirms the presence of a Class 2 forested wetland, a Class 2 stream, and a steep slope hazard area. The combination of these critical areas almost entirely covers the property. However, because the property is comprised of four buildable lots and the City, by its codes, must recognize and accept "Reasonable Use" of each of those lots, a significant impact to this combination of high-quality critical areas could occur. In this case, the applicants, Mr. and Mrs. Shaw, and their representative, Michel Construction, have decided to pool their resources and attempt to gain approval for development of the lower value site while proposing permanent protection for the higher value site as mitigation. FINDINGS OF FACT AND CONCLUSIONS: A. SITE DESCRIPTION 1. Site Development And Zoning: a) Facts: (1) Zoning: The zoning of both the parcel subject to the variance request as well as the parcel subject of the mitigation proposal are zoned Residential Single Family (RS -6). (2) Existing and Proposed Development: The sites are currently undeveloped. (3) Terrain and Vegetation: 8th and Pine: The site is roughly square, and the western 1/3 to 1/2 is confirmed to be a Class 3 wetland. The remainder of the site slopes gradually up to the east and is undeveloped and overgrown 10th and Main: The site slopes steeply down from Main St. on the south to the floor of the property. It then starts to gradually rise to the north, until it is very Hearing Examiner Decision Case No. V-03-54 Page 4 steep on the northern extent of the property. Shell Creek cuts through the southern third of the property. 2. Neighboring Development And Zoning: a) Facts: (1) For 81h and Pine North West South and East: The properties are all zoned and developed under the same RS -6 standards. (2) For 10th and Main North West South and East: The properties are all zoned under the same RS -6 standards with the exception that some properties to the south are zoned Public Use and are part of the Yost Park facility. Properties to the north, east and south are developed as single-family homes, while properties to the west are still undeveloped, as this one is. b) Conclusion: The proposed development, comprising both the variance and the proposed mitigation site, would be consistent with the surrounding zoning and development. B. EDMONDS COMMUNITY DEVELOPMENT CODE (ECDC) COMPLIANCE 1. Compliance with requirement for a Critical Areas Variance ECDC Chapter 20.15B (Critical Areas) states variances from the standards of this title may be authorized by the hearing examiner in accordance with the procedures set forth in Chapter 20.85 ECDC. In granting such a variance, the hearing examiner shall find: 1. Because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, or the size or nature of the critical areas, the strict application of this title would deprive the subject property all reasonable use of the property. 2. The granting of the variance is the minimum necessary to accommodate the development proposal and will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the property is situated, or contrary to the goals and purposes of this chapter. a) Facts: (1) The wetland at 8th and Pine is limited in its functional value due to its isolation from any other system, the existing plant community, and its small size (see critical areas reports (Exhibit A, Attachments 7, 8 and 9)). (2) Because the property at 8th and Pine consists of two legal building lots, the City would ultimately have to consider, through reasonable use or variance, two homes on the property. However, because of the location of the wetland, a good portion of the wetland would be impacted just to provide access to the buildable areas of the property. Hearing Examiner Decision Case No. V-03-54 Page 5 (3) For the property at 10th and Main, which includes lots 1-5 north of the platted alley and lots 36-40 south of the alley, the City's nonconforming provisions require at least two of the nonconforming platted lots to be combined to create a legal building lot. In this case, two legal building lots can be created north of the alley and two can be created south of the alley fronting Main. However, all four of these legal building lots would require extensive amounts of grading to provide access and to establish building pads for houses. Any grading on these properties will have significant impact on a forested Class 2 wetland, a Class 2 stream and a steep slope hazard area. (4) The critical areas located on the 10th and Main site are immediately contiguous with other significant critical areas. They are small but significant parts of a larger critical area system in the city, that being the Shell Creek drainage system, ravine and habitat area. This system provides water quality, water storage and water carrying capacity, as well as habitat areas for fish and wildlife. (5) The 10th and Main St. property is a site of unique value to the City of Edmonds due to the fact that it is part of the vegetative corridor that creates the scenic vista that visitors and residents experience as they comedown one of the significant entrances to Downtown Edmonds on Main St. (6) Development of both sites could result in a total of six homes with significant impacts to the wetlands located at both sites and the streams and slopes located on the 10th and Main site. (7) The proposal by the applicant is that he be allowed to fill a significant portion of the Class 3 wetland located at 8th and Pine. This will allow him to create eight lots with single-family homes. The remaining wetland left on the site, in the southwest corner of the site, would be enhanced. Also, the 10th and Main St. site would be permanently protected and no future development would occur on it (see Exhibit A, Attachments 6 and 7). b) Conclusions: (1) Special Circumstances A number of Special Circumstances exists: (a) This is an opportunity to protect and preserve more land encumbered by critical areas than the City might otherwise be able to protect if the properties were developed individually. (b) This proposal will offer permanent protection of a significant portion of an important critical area corridor, Shell Creek. (c) This proposal will result in the protection of a portion of a scenic area in the City of Edmonds. Hearing Examiner Decision Case No. V-03-54 Page 6 (2) Minimum Required (a) Based on the mitigation report submitted by the Wetland Resources, the wetland that will be protected at 10th and Main will result in saving more wetland than is being filled at 8th and Pine. (b) Also, the wetland that will remain at 81h and Pine will be enhanced, planted and fenced to assist in reaching previous functional values. (3) Additional Hearing Examiner Findings and Conclusions (a) If approved as conditioned below, the Examiner believes the proposal will comply with the City's adopted codes and requirements. (b) The Applicant submitted Exhibit C at the hearing in which he requested the modification of several of the staff recommended conditions of approval. Staff responded to the request at the hearing and essentially concurred with items III A, B, and E of Exhibit C. Staff did not concur with items III C & D of Exhibit C. The Examiner concurs with staff and the conditions below have been modified to reflect that concurrance. DECISION: Based upon the foregoing findings and conclusions, the setback variances and the Critical Areas variance are approved, subject to the following conditions: It is the applicant's responsibility to show compliance and gain approval of any state or federal permits required for the filling of wetlands. If the applicant cannot gain approval from state and federal agencies to fill the wetland at 8th and Pine Street then this variance shall be null and void. 2. Development of the 8th and Pine St. property shall be limited to eight lots or less, and the lots shall be roughly laid out in the configuration shown on Exhibit A, Attachment 6. 3. The provisions of the Wetland Mitigation Plan (Exhibit A, Attachment 7) shall be followed. 4. Prior to issuance of a building permit, the wetland that remains at the 8th and Pine site shall be placed in a Critical Areas protection tract that is held in private ownership by the owner of lot 8, and the owner of lot 8 shall be responsible for the maintenance of said Critical Areas protection tract. 5. Prior to issuance of a building permit, permanent fencing and signage (which indicates the protected nature of this area) shall be installed around remaining wetland and its buffer at the 81h and Pine St. property (a split rail fence is permissible). 6. Prior to issuance of a building permit on the newly created lots, non-native and invasive species of plants that can degrade the wetland at 10th and Main shall be removed. Hearing Examiner Decision Case No. V-03-54 Page 7 7. Prior to issuance of a building permit on any of the newly created lots, a deed or other instrument agreeable to the City shall be implemented to ensure the protection of the 10th and Main St. property. Entered this 30t" day of June 2003 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 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 Planning Department for further procedural information. Section 20.100.010.G allows for the Hearing Examiner to reconsider his decision or recommendation if a written request is filed within ten (10) working days of the date of the initial decision by any person who attends the public hearing and signs the attendance register and/or presents testimony or by any person holding an ownership interest in a tract of land which is the subject of such decision or recommendation. The reconsideration request must cite specific references to the findings and/or the criteria contained in the ordinances governing the type of application being reviewed. 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 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. 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 Hearing Examiner Decision Case No. V-03-54 Page 8 clock for filing an appeal continues from the point it was stopped. For example, if a reconsideration request is filed on day 5 of the appeal period, an individual would have 9 more days in which to file an appeal after the Hearing Examiner issues his decision on the reconsideration request. 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 conditional use permit 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. EXHIBITS: The following exhibits were offered and entered into the record. A. Planning Division Advisory Report, with 10 attachments B. Revised Site Plan C. Hearing Presentation of Rob Michel D. Landscape Plan E. Letter from Dr. Steven & Eileen Carter, dated 6/16/03 F. Letter from Mary & Martin Proudfoot, dated 6/18/03 G. Letter from Marilyn Dahlke, dated 6/17/03 H. Letter from Della & Walt Gibbs, received 6/17/03 I. Letter from Gladys Rogers, dated 6/18/03 J. Letter from Jewel Williams, dated 6/19/03 PARTIES of RECORD: Cliff and Betty Shaw 1515 l Ot" Pl. N. Edmonds, WA 98020 Dr. Steven & Eileen Carter 831 81" Ave. South Edmonds, WA 98020 Marilyn Dahlke 723 Pine St. Edmonds, WA 98020 Rob Michel Michel Construction, Inc. 7907 212" St. SW Edmonds, WA 98026 Mary & Martin Proudfoot 804 Laurel Way Edmonds, WA 98020 Della & Walt Gibbs 748 Laurel St. Edmonds, WA 98020 Gladys Rogers 727 Pine St. Edmonds, WA 98929 Carolyn Johnson 733 Laurel St. Edmonds, WA 98020 Tim Crosby 10287 Ih Ave. South Edmonds, WA 98020 Jewel Williams 831 Pine St. Edmonds, WA 98020 Thomas Nicholson 9208 Ih Ave. South Edmonds, WA 98020 Engineering Division Public Works Division Planning Division Hearing Examiner Decision Case No. V-03-54 Page 9