HE Decision Westhaven Preliminary Plat (PLN20180034).pdfI 189"
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CITY OF EDMONDS
121 5ch Avenue North, Edmonds WA 98020
Phone: 425.771.0220 • Fax: 425.771.0221 • Web: www.edmonciswa.gov
DEVELOPMENT SERVICES DEPARTMENT • PLANNING DIVISION
ARE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
Phil Olbrechts, Hearing Examiner
RE: Westhaven
FINDINGS OF FACT, CONCLUSIONS
Preliminary Plat OF LAW AND FINAL DECISION
PLN20180034
INTRODUCTION
The Applicant is proposing to subdivide a 1.99 acre site located at 21511, 21515 &
21525 98th Ave. W into ten single family lots. The application is approved subject to
conditions.
ORAL TESTIMONY
Mike Clugston, Associate City of Edmonds Planner, summarized the proposal. He
mentioned that the staff received two public comments about the project. The first
comment expressed a concern about a cul-de-sac being installed and how this would
influence property value. Mr. Clugston stated that it would be a change from what is
there now which is just a dead-end and the addition of the cul-de-sac would improve
access for emergency vehicles, which might not necessarily diminish property values,
but a change could be expected. The other comment was a concern about tree -
removal. Mr. Clarkson identified a staff recommended condition of approval that
required tree retention.
The hearing examiner asked about safe walking conditions to schools. Mr. Clugston
responded that students would walk three or four blocks south to West Gate
Elementary for primary school. However, students would likely be bussed to the
middle and high schools that serve the project site. Some new sidewalks have been
proposed around the property and there are already several pre-existing sidewalks in
this area. Mr. Clugston noted that there are continuous sidewalks to and from the
Elementary school and the proposed project.
Robert Long spoke on behalf of the Applicant. Mr. Long noted that the City had
issued a DNS on Nov. 13. Additionally, he described the access points to the potential
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project. Mr. Long did not have any major objections to the staff conditions for
approval.
Pam Rabe, neighbour, identified herself as living behind proposed lot 6. Ms. Rabe's
central concern is over tree removal. Ms. Rabe stated that she has six large trees
around the perimeter of her lot, four of them bordering lot six. She mentioned that she
was told by Mr. Clugston that they will be building seven -and -a -half -feet from the
property line. She mentioned that one of the trees in this area, a large Douglas Fir,
would likely be impacted by this alongside the possibility of several trees' roots being
damaged or impacted by building in this area. Ms. Rabe expressed interest in how this
would be mitigated as she may lose some of the trees that are part of her property.
Charlotte Clark, neighbour, expressed a concern about drainage. Ms. Clark stated that
water drains behind her house and that all the times they've been building around her
home, her water has been dirty. She has called the City several times to get this
checked.
Ms. Clark's other concern was with how many feet an easement will be between
properties. Ms. Clark also relayed a concern about one of the street corners near the
property, saying that the corner is dangerous.
Valentine Merriman, neighbor, stated that although she is not opposed to the project,
she wanted to raise several issues and points of concern. Ms. Merriman wondered
about the noise created by the project. This issue is potentially exacerbated by the fact
that trees will be removed which serve as a canopy. She also stated that there should
be greater concern about pollution and environmental impacts —including potential
habitat loss —that may occur during this project.
Peggy Weirauch, neighbor, stated she believes as many trees as possible should be
saved during this project.
The hearing examiner asked Mr. Clugston if the City of Edmonds had any tree
retention policies or codes and if so, how they would apply to this case. Mr. Clarkson
mentioned that there is no code required retention or replacement, but tree retention is
encouraged.
In response to Ms. Clark questions, Mr. Clugston responded that the rear yard
setbacks from the homes is 7.5 feet, so 7.5 feet would be the minimum distance
between the proposed homes and the rear property lines. The easement Ms. Clark is
concerned about will likely be around 15-feet. The street corner she was concerned
about is north of this project and this project has no impact on that corner. Regarding
the issue of stormwater, going forward all stormwater generated from the site will be
managed on the site.
Mr. Long spoke again on behalf of the Applicant. He also mentioned the fact that
there is no tree retention ordinance for private properties in Edmonds. Mr. Long
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stated that the Applicant is amenable to the City's condition that encourages as many
trees be retained as possible. Regarding drainage, Mr. Long noted that the Applicant
is providing storm water control on -site. All storm water will be collected and
detained in an underground retention vault or ponds, after that the water will go
through a filter, this meeting City requirements.
The hearing examiner asked Mr. Long if he believes that off -site stormwater
conditions may improve because of this project —which would help individuals like
Ms. Clark. Mr. Long stated this project will provide for better stormwater control
over current conditions.
EXHIBITS
1 — Staff Report and 18 attachments.
2 — Staff PowerPoint
FINDINGS OF FACT
Procedural:
I . Applicant/Owner. Select Homes Inc.
2. 1leariing. The Hearing Examiner conducted a hearing on the application
on December 13, 2018 at 3:00 p.m. at the Edmonds Public Safety Complex in the
Council Chambers.
Substantive:
3. Site/Proposal Description. The Applicant is proposing to subdivide a 1.99
acre site located at 21511, 21515 & 21525 98th Ave. W into ten single family lots.
The following table summarizes the dimensions of the proposed lots:
Subdivision
Required
Lot Area
Proposed
Gross Area (sq. ft.)
Proposed
Net Area_(sq. ft.)
Lot 1
8,000
8,030
8,030
Lot 2
8.000
8,030
8,030
Lot 3
81000
8,030
8,030
Lot 4
8,000
8,029
8.029
Lot 5
8,000
8,023
8,023
6
81000
8,036
8,036
_Lot
Lot 7
8,000
8,996
8,021
Lot 8
8,000
8,987
8,024
Lot 9
81000
8,033
8.033
Lot 10
1 8,000
8,032
8,032
p. 3 Findings, Conclusions and Decision
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4. Characteristics of the Area. The project site is located within a larger
I built -out residential neighborhood on the eastern edge of the downtown Edmonds
2 `Bowl" (Ex. 1, Attachment 4 and Sheet PP-01 of Attachment 5). The subject
properties and those immediately surrounding it are zoned RS-8 (single-family
3 residential; 8,000 square foot minimum lot size). An area of RS-10 (single-family
residential; 10,000 square foot minimum lot size) is located to the southwest across
4 98th Avenue West.
5 IJ5 Adverse Impacts. There are no significant adverse impacts created by the
proposal. Impacts are more specifically addressed as follows:
7 A. Critical Areas. The subject properties were reviewed and inspected for critical
areas as defined by ECDC 23.40 by City staff under CRA20180083 and it was
8 determined the site does not contain any critical areas.
9 B. Hazardous Conditions. The staff report notes that there are no known
10 hazardous conditions, such as flood plains, steep slopes, or unstable soil or
geologic conditions at the project site. Given that there is no evidence to the
11 contrary, the staff finding is taken as a verity.
12 C. Tree Retention. A couple neighbors expressed concern over the loss of trees
at the project site and one neighbor was concerned over the threat of damage
13 to trees on her own property. As testified by City staff, the City has no
14 regulations requiring retention of trees. In the absence of any tree retention
standards, it is difficult to legally justify any mandatory tree retention under
15 generally applicable subdivision standards. However, staff has crafted a
recommended condition that encourages retention of trees that do not
16 constitute hazards or need to be removed for subdivision improvements. The
17 Applicant has agreed to comply with the condition and it is well crafted to
encourage flexible retention of tree, which is as much as can be imposed
18 without any specific tree retention standards.
19 The protection of trees on adjoining property is a separate and complicated
issue. Tree roots extending into adjoining property can be characterized as a
20 trespass and it is highly questionable whether such a trespass can serve as a
21 basis for limiting development. Indeed, in the context of nuisance laws, the
courts recognize no duty to protect the trespassing roots and authorize self-
22 help by the aggrieved property owner to remove the roots. See Mustoe v. Ma,
193 Wash. App. 161 (2016). A staff recommended condition of approval
23 requires protection of "retained" trees and it is unclear if these "retained" trees
include the trees retained on adjoining property. The staff recommended
24 condition of approval is revised by this decision to include protection of trees
25 on adjoining property. Although under the principles espoused in Mustoe the
City may have no authority to compel the Applicant to avoid damaging trees
on adjoining property, the City may be able to at least require notice to
adjoining property owners of potential damage and/or hazards caused by
Applicant construction activities. The staff recommended condition will be
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left sufficiently flexible to enable staff to work out any legal issues attendant
to protecting trees on adjoining property during building permit review.
D. Grading. The proposal minimizes grading for construction of the civil
improvements by proposing a balance of cuts and fills across the largely level
site (Sheet TP-01 of Attachment 6).
E. Views. Views in the area are territorial. The maximum height for a new
house in the RS-8 zone is 25 feet from average original grade, which serves to
minimize the negative impact to existing views in the vicinity. Aside from the
height limits, the Edmonds Community Development Code does not contain
specific regulations regarding private view protection within single-family
zones.
6. Adequacy of Infrastructure and Public Services. As conditioned by this decision,
adequate infrastructure will serve development as follows:
• Drainage: The City's drainage standards impose detailed requirements that
mandate that the proposal maintain pre -development off -site stormwater flow
volumes and velocities. Consequently, no flooding impacts to adjoining properties
are anticipated. A preliminary drainage assessment, Ex. 7, has been completed for
the project and reviewed by engineering staff. This preliminary assessment helps
assure that the general preliminary plat design can accommodate the stormwater
facilities necessary to control drainage and more detailed engineering and
construction of required improvements will be installed prior to approval of the final
plat. All new impervious surfaces must be connected to an onsite storm system as
required by the Engineering Requirements (Attachment 17).
• Transportation: Six of the proposed lots will use the improved cul-de-sac at 215th
Place while the other four lots will access 98th Avenue West. None of the lots access
highways, arterials or collector streets. Both South County Fire and the Engineering
Division noted the proposed layout meets access requirements (Ex. 1, Att. 16). The
SEPA checklist identifies that about 94.4 daily trips will be generated by the
proposal, total PM trips will be 9.9 and total AM peak hour trips will be 7.4. City
public works staff have reviewed the trip generation report and found no need for off -
site improvements beyond those funded by the City's transportation impact fees.
Given the small number of trips generated by the proposal, it is not likely that the
proposal will reduce level of service for affected intersections below adopted levels,
Some public concern was expressed over the safety of a street corner near the project.
Staff responded that the project would not contribute to the danger of the street
corner. In the absence of any evidence provided on the contribution of the project to
traffic at the street corner and recognizing the modest traffic generated by the
proposal, it is determined that the proposal will not contribute to any safety problem
at the street corner as testified by staff.
Subdivision
p. 5 Findings, Conclusions and Decision
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• Parks and Open Space: According to ECDC 20,75.090, before or concurrent with
the approval of the final plat of any subdivision, the subdivider shall dedicate land,
pay a fee in -lieu of dedication, or do a combination of both, for park and recreational
purposes. With the adoption of Ordinance 3934 in 2013, park impacts are now
addressed through the assessment of park impact fees in accordance with Edmonds
City Code (ECC) Chapter 3.36. No park dedication is required with the subdivision.
Park impact fees will be assessed with issuance of the future building permits on the
new lots consistent with ECC 3.36.
• Water and Sewer: The environmental checklist reveals that water and sewer
service will be provided by the City of Edmonds. The staff report does not identify
whether there is adequate capacity to serve the proposed development, but given its
small scale it is safe to presume that is the case. Water and sewer general facility
charges imposed by City code will ensure that the proposal will pay its fair share of
capital costs to the City's sewer and water infrastructure.
• Schools and Sidewalks: The only school within walking distance is West Gate
Elementary. City staff testified during the hearing that sidewalks run continuously
from the project site to the elementary school. Sidewalks are also available on one
side of 981h Ave W and along the cul-de-sac at 2151h Place for students walking to the
bus stops serving the middle and high schools for the project site.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. ECDC 20.01.003 provides the Hearing
Examiner with the authority to hold a hearing and issue a final decision on
preliminary subdivision applications, classifying them as Type III-13 applications.
Substantive:
2. "Zoning Designation. The subject property is zoned Single -Family
Residential (RS-8).
3. Review Criteria and Application_. Chapter 20.75 ECDC governs the
review criteria for subdivisions. Relevant criteria are quoted below and applied
through corresponding conclusions of law.
ECDC 20.75.080(A): General findings. A proposed subdivision may be approved
only if all of the following general findings can be made for the proposal, as approved
or as conditionally approved:
A. Subdivision Ordinance. The proposal is consistent with the purposes of this
chapter (as listed in ECDC 20, 75. 020) and meets all requirements of this chapter.
Subdivision p. 6 Findings, Conclusions and Decision
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4. The proposed subdivision is consistent with ECDC 20.75.020 and all the
requirements of the ECDC 20.75, The proposed subdivision will not create any
significant adverse impacts and will provide for appropriation infrastructure as
determined in Findings of Fact No. 5 and 6 and so will not negatively impact public
health, safety or general welfare, will not negatively impact congestion on streets and
highways, and will have adequate access to water, utilities, sewerage, storm drainage
and will provide proper ingress and egress.
ECDC 20.75.080(8): Comprehensive Plan. The proposal is consistent with the
provisions of the Edmonds Comprehensive Plan, or other adopted City policy, and is
in the public interest.
5. The proposal is consistent with the comprehensive plan for the reasons identified
at pages 10-11 of the staff report.
ECDC 20.75.080(C): Zoning Ordinance. The proposal meets all requirements of the
zoning ordinance, or a modification has been approved as provided for in this
chapter.
6. The subject property is located within the RS-8 zone. As determined in
Finding of Fact No. 3, all proposed lots contain at least 8,000 square feet net and are at
least 70 feet in width and thus compliant with the dimensional requirements of the RS-
8 zone. No modifications were requested.
ECDC 20.75.080(D): Floodplain Management. The proposal meets all requirements
of the Edmonds Community Development Code relating to Floodplain management.
7. The proposed project is not located within a designated flood plain management
area.
ECDC 20.75.085(A): Environmental.
1. Where environmental resources exist, .such as trees, streams, ravines or wildlife
habitats, the proposal shall be designed to minimize significant adverse impacts to
the resources. Permanent restrictions may be imposed on the proposal to avoid
impact.
2. The proposal shall be designed to minimize grading by using shared driveways
and by relating street, house site and lot placement to the existing topography.
3. Where conditions exist which could be hazardous to the future residents of the
land to be divided, or to nearby residents or property, such as flood plains, steep
slopes or unstable soil or geologic conditions, a subdivision of the hazardous land
shall be denied unless the condition can be permanently corrected, consistent with
paragraphs A(1) and (2) of this section.
4. The proposal shall be designed to minimize off -site impacts on drainage, views
and so forth.
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8. The criterion is satisfied. As determined in Finding of Fact No 5, as conditioned
there are no significant adverse environmental impacts associated with the project and
there are no environmental resources on or near the site. Impacts to trees are
adequately mitigated through Condition No. 1 of this decision, which encourages that
trees only be removed as necessary to accommodate subdivision improvements. As
determined in Finding. of Fact No. 5(D), the proposal minimizes grading for
construction of the civil improvements by proposing a balance of cuts and fills across
the largely level site (Sheet TP-01 of Ex. 1, Attachment 6). As determined in Finding
of Fact No. 5(B) and (E), the proposal will not adversely affect views and the site has
no hazardous conditions. As determined in Finding of Fact No. 6 the proposed
drainage facilities have been determined to be adequate.
ECDC 20.75.085(B): Lot and Street Layout.
1. Lots shall be designed to contain a usable building area. ff the building area
ivould be difficult to develop, the lot shall be redesigned or eliminated, unless
special conditions can be imposed on the approval tirhich will ensure that the
lot is developed properly.
2. Lots shall not front on highways, arterials or collector streets unless there is -
no other feasible access. Special access provisions, such as- shared driveways,
turnarounds or frontage streets may be required,lo minimize traffic• hazards.
3. Each lot shall meet the applicable dimensional requirements of the zoning
ordinance.
4. Pedestrian walks or bicycle paths shall be provided to serve schools, parks,
public facilities, shorelines and streams where street access is not adequate.
9. The criterion quoted above is met. As determined in the staff report, all
proposed lots meet the dimensional requirements of the RS-8 zoning district, Each
lot contains a buildable area as is readily evident from the plat map, Ex. 1, att. 5,
and the fact that the project site is relatively flat without any environmental
constraints. The proposed lots do not front on any highways, arterials or collector
streets. As noted in Finding of Fact No. 6, sidewalks provide a continuous walking
path from the proposed subdivision to the only school within walking distance,
West Gate Elementary and sidewalks will be built at the project site to
accommodate students walking to school bus stops for the middle and high schools
serving the site.
ECDC 20.75.085(C): Dedications.
1. The City council 177ary require dedication of land in the proposed subdivision
for public use.
2. Only the City council rnay approve a dedication ofpark land to satisfy the
requirements of ECDC 20. 75.040. The council may request a review and written
reconnnendation from the planning advisory board.
3. Any approval of a subdivision shall be conditioned on appropriate dedication
of landfor streets, including those on the official street map and the preliminary
plat.
Subdivision
P. 8 Findings, Conclusions and Decision
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10. Per the Engineering Division requirements in Attachment 16, the cul-de-sac area
at 215th Place must be dedicated to the City.
ECDC 20.75.085(D): Improvements.
1. Improvements which may be required, but are not limited to, .streets, curbs,
pedestrian walks and bicycle paths, sidewalks, street landscaping, water lines,
sewage systems, drainage .systems and underground utilities.
2. The person or body approving a subdivision shall determine the improvements
necessary to meet the purposes and requirements of this chapter, and the
requirements of.-
a. ECDC Title 18 Public Works Requirements;
b. Chapter 19.75. Fire Code, as to fire hydrants, water supply and access.
This determination shall be based on the recommendations of the community
development director, the public works director, and the fire chief.
11. The project has undergone , extensive review by the community
development director, the public works director (specifically engineering) and Fire
District No. 1. A number of improvements have been recommended as a result of
this review and they have been incorporated into the conditions of approval (via
requiring compliance with Ex. 1 att. 16) and have been found to provide for adequate
public infrastructure as determined in Finding of Fact No. 6. Further, since RCW
58.17.110 (applicable to short plats via RCW 58,17.060) mandates that preliminary
short plats may not be approved absent a finding of appropriate infrastructure, the
criterion above is broadly construed to require the findings required by RCW
58.17.110 and those findings are made as detailed in FOF No. 6.
ECDC 20.75.085(E): Flood Plain Management. All subdivision proposals shall
comply with the criteria set forth in the Edmonds Community Development Code for
flood plain management.
12. This project is not in a Flood Plain Management area.
DECISION
All subdivision criteria are met and the subdivision is approved as proposed in Ex. 1
att. 5 and 6 and as described in this decision, subject to the following conditions:
1. Any tree cutting on the site must be consistent with the requirements of ECDC
18.45. A tree cutting plan shall be submitted and approved with the civil
plans for removal of trees impacted by the subdivision improvements. Any
tree cutting on site or tree root damage to trees on adjoining property proposed
that is not a hazardous situation and/or not necessary as part of the subdivision
improvements shall be reviewed at the time of building permit application
review or through the appropriate land use permit application and review
process. All trees that are to be retained during the development process must
Subdivision P. 9 Findings, Conclusions and Decision
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be protected according to the performance standards found in ECDC
18.45.050.H. City staff shall also require protection of trees on adjoining
property or notice of potential tree damage to adjoining property owners to the
extent consistent with applicable law. If during construction it is realized that
certain trees that were planned to be retained will be damaged due to the
construction activities, replacement may be required per ECDC I8.45.050.F.
Prior to recording, the Applicant must complete the following requirements:
a) Civil plans must be approved prior to recording. In completing the civil
plans, The following items must be addressed:
(1) Complete the Engineering Division conditions listed "Required
as a Condition of Subdivision" on Attachment 16.
b) Make the following revisions to the final plat:
(1) Add to the face of the plat: "Conditions of approval must be
met and can be found in the approval for the subdivision located in
File No. PLN20180034 in the City of Edmonds Planning
Division."
(2) Indicate the locations of all new easements, and provide
easement descriptions and maintenance provisions for all new
easements.
(3) Remove all setback lines.
(4) Indicate the gross and net areas of each lot on the final plat.
(5) Include on the plat all required information, including owner's
certification, hold harmless agreement, and Development Services
and Public Wod<s director's approval blocks.
c) Make sure all documents to be recorded meet the Snohomish County
Auditor's requirements for recording.
Submit an updated copy of the title report with the documents proposed to be
recorded. The title report must be prepared within 30 days of submittal for
final review.
Submit two copies of the documents to be recorded for the Planning Division
and Engineering Division's approval. Once approved, the documents will be
recorded with the Snohomish County Auditor's office.
After recording the plat, the Applicant must complete the following:
a) Complete the Engineering Division conditions listed "Required as a
Condition of Building Permit" in Attachment 16.
b) Unless otherwise agreed to by the property owners adjacent to Lots 5 or 6,
healthy property line trees must be retained and protected during
development of the single family residences on Lots 5 and 6. Unhealthy
trees should be removed and replaced 2:1 with native species similar to
any tree(s) removed. If removal.of property line trees is agreed to by the
property owners adjacent to Lots 5 or 6, that agreement must be submitted
in writing with the building permit application for that lot. Otherwise, the
Applicant must provide a study of any trees near the project property lines
for Lots 5 and 6. The study must be performed by a certified arborist or
landscape architect and be submitted with future building permit
applications for those lots.
Subdivision
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Dated this 28th day of December 2018.
Phi A.Olbrechts
City of Edmonds Hearing Examiner
Appeal Right and Valuation Notices
A party of record may submit a written appeal of a Type III-13 decision within 14 days
the date of issuance of the decision. The appeal will be heard at a closed record revi
before the City Council according to the requirements of ECDC Chapter 20.07.
Affected property owners may request a change in valuation for property tax
notwithstanding any program of revaluation.
Subdivision P. 11 Findings, Conclusions and Decision