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HE decision.pdfI�.c 1 SIS C1 TY OF -.. . DS GARY I` AAKENSON MAYOR 121 5TH AVENUE NORTH @ Edmonds, WA 98020. (425) 771-0220 a FAX (425) 771-0221 I IEARING EXAMNER In the Matter of the Application of OC alis, Inc, For a Conditional Use Kermit. NO. CU -2009-37 FINDINGS, CONCLUSIONS, AND DECISION SUMMARY OF DECISION The request for a conditional use permit to operate a drive-tbrougb window in Building D of the office parr located at 7631 21211' Street SW is GRANTED, subject to conditions. Rest: Oasis, Inc. (Applicant) requested a conditional use permit (CUP) to operate a drive-through window in Building D of the office parr located at 7631 21.21' Street SW, Edmonds, Washington, The drive-through window would serve a proposed retail pharmacy. Hearing Date: The City of Edmonds Hearing Examiner viewed the site and conducted an open record hearing on the request on September 10, 2009. Testimony: At the open record hearing, the following, individuals presented testimony under oath: 1. Michael Clugston, Planner, City of Edmonds 2. Don Miller, GWC Consulting, representing the Applicant Exhibits: At the open record hearing the following exhibits were admitted into the record: A. Staff Deport dated September 2, 2009, with the following attachments: I. Land Use Application tiled June 5, 2009 2. Draft Edmonds City Council Minutes from August 17, 2009 3. Notice of Development .Applications (Rezone and CUP) and Public Tearing on Rezone 4. Affidavit of Posting of Notice of Application 5. Affidavit of Mailing of Notice of Application 6. Affidavit of Publication of Notice of Application 7. Notice of Hearing Examiner Hearing on CUP Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Oasis CUP, No. CU -2009-37 Incorporated Aulqust 11, 1890 Sister City Hekinan, japan page l of'6 S. Affidavit of Posting of Notice of Hearing 9. Affidavit of Mailing of Notice of Hearing 10. Request for Comment Form from Fire Marshal 11. Request for Comment Form from Parks and Recreation Director 12. Request for Comment Form from Public Works Director 13. Request for Comment Form from Asst. Building Official 14. Memorandum from Jeanie McConnell, Engineering Program Manager dated June 25, 2009 15. Applicant's Rezone and Conditional Use Permit Narrative dated June 3, 2009 16. Affidavit of Publication of Notice of Hearing Upon consideration of the testimony and exhibits submitted at the open record hearing, the Hearing Examiner enters the following Findings and Conclusions: FINDINGS 1. The Applicant requested a conditional use permit (CUP) to oRerate a drive-through window in Building D of the office park located at 7631 2121 Street SW, Edmonds, Washington. The drive-through window would serve proposed posed retail pharmacy, a use nts 1 and that does not require CUP approval. Exhibit A, pages 15; Testimony of Mr. Miller; Testimony of Mr. Clugston. 2. Along with the CUP request, the Applicant requested a rezone of the subject property from Residential Multifamily (RM -2.4) to Neighborhood Business (BN). Neighborhood - oriented retail stores and retail service uses {such as the proposed pharmacy) are permitted outright in the BN zone, but are not permitted in the RM -2.4 zone. On August 17, 2009, Edmonds City Council voted to approve the rezone. City Council has not yet adopted an ordinance finalizing the rezone, but the ordinance is on the consent agenda for the September 15, 2009 City Council meeting. Exhibit A, pages 1-2; Exhibit A, Attachments 1, 2, and 15; ECDC 16.30.010; ECDC 16.45.010. 3. Although neighborhood -oriented retail uses are permitted outright in the BN zone, "drive-in businesses" require CUP approval. ECDC 16.45.010. A drive-in business is a "business or a portion of a business'where a consumer is permitted or encouraged either by the design of physical facilities or by the provisions of services and/or packaging procedures, to carry on business while seated in a motor vehicle." ECDC 21.20.040. The proposed pharmacy requires a CUP because it includes a drive-through window for customers. Exhibit A, page 1. 4. The subject property is 1.44 acres in area and is developed with four buildings. Three of the buildings are used for medical offices. The fourth building, Building D, is currently vacant but has been used as a medical office in the past. Building D is 909 square feet in area and is located at the south end of the parcel, closest to 212t" Street SW. Exhibit A, pages 1 and 2. 5. The zoning of surrounding properties is BN to the east and southeast, RM -2.4 to the north and west, and Public to south. Surrounding land uses include a drive-through fast food Findings, Conclusions, and Decision City of Edmonds Hearing Examiner e 6 Oasis CUP, No. CU -2009-37 page 2 of restaurant and a strip mall, Edmonds-Woodway High School, a convalescent home, and a condominium complex. Exhibit A, page 3. 6. The proposed drive-through window would be located on the north side of Building D, facing the interior of the subject property, and would not be directly visible to surrounding residential uses. As the drive-through window would replace an existing window in that location, the project would result in minimal exterior modification of the building. Testimony of Mr. Miller; see also Exhibit A, page 1. 7, The subject property is located within the Medical/Highway 99 Activity Center as defined in the Comprehensive Plan, and has a land use designation of Mixed Use Commercial. The proposed development is consistent with the goals for the Medical/Highway 99 Activity Center, which include expanding the economic and tax base of the City; allowing for development that mixes office, retail, and business uses; and encouraging a more active and vital setting for new retail, office, and service businesses that are supported by nearby residents and visitors from other parts of the region. Exhibit A, pages 3-4. S. The parking requirement for the proposed pharmacy is one space per 300 square feet, or three parking spaces for the 909 -square -foot building. The office complex is served by approximately 74 parking spaces, and the proposed drive through window would eliminate one of those spaces. Because the prior medical office use required one space per 200 square feet, Planning Division staff submitted that there should be adequate parking to comply with the lower standard. However, no formal analysis has been conducted to determine whether the existing parking is adequate. Per the condition recommended by the City's Engineering Division, the Applicant would be required to demonstrate compliance with the City's parking standards, as well as its drive aisle width requirements, at the time of building permit application. Exhibit A, page 4; Exhibit A, Attachment 14; Testimony of Mr. Miller. 9. The Planning Division requested comments on the proposal from the Engineering Division, Fire Department, Public Works Department, Parking and Recreation Department, and Building Department. The Engineering Division submitted comments as described in Finding No. S above. The Building Department commented that a building permit is required for building alterations and for the change in use/occupancy group. These comments have been incorporated into the conditions of CUP approval. The other City departments did not have comments on the application. Exhibit A, Attachments 10, 11, 12, 13, and 14. 10. The Applicant requested that the CUP run with the land, and that approval of the drive- through window not be limited to the proposed retail pharmacy. Planning staff concurred with the Applicant's request. Testimony of Mr. Miller; Testimony of Mr. Clugston. 11. The City determined the conditional use permit application to be exempt from review under the State Environmental Policy Act (SEPA). Exhibit A, page 2. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner page 3 of 6 oasis CUP, No. CU -2009-37 12. Notice of the open record hearing was mailed to adjacent property owners, posted on site, at the Civic Center, and at the library, and published in The Herald on August 20, 2009. Exhibit A, Attachments 7, 8, 9, and 16. There was no public comment on the application. CONCLUSIONS Jurisdiction: The Hearing Examiner has jurisdiction to hear and decide CUP requests pursuant to ECDC 20.01.003 and ECDC 20.05.020. Criteria for Review: Pursuant to ECDC 20.05.010, the Hearing Examiner may not approve a CUP unless the following findings can be made: A. That the proposed use is consistent with the comprehensive plan; B. Zoning Ordinance. That the proposed use, and its location, is consistent with the purposes of the zoning ordinance and the purposes of the zoning district in which the use is to be located, and that the proposed use will meet all applicable requirements of the zoning ordinance; C. Not Detrimental. That the use, as approved or conditionally approved, will not be significantly detrimental to the public health, safety and welfare, and to nearby private property or improvements unless the use is a public necessity; and D. Transferability. The hearing examiner shall determine whether the conditional use permit shall run with the land or shall be personal. If it runs with the land and the hearing examiner finds it in the public interest, the hearing examiner may require that it be recorded in the form of a covenant with the Snohomish County auditor. The hearing examiner may also determine whether the conditional use permit may or may not be used by a subsequent user of the same property. Conclusions Based on Find in s: 1. The proposed use is consistent with the Comprehensive Plan. The development will result in a retail use that complements the medical office uses on site and in the Medical/Highway 99 Activity Center. Findings 4 and 7. 2. With conditions of approval, the proposed use in the proposed location is consistent with the purposes of the zoning ordinance and the zoning district, and will meet all applicable requirements of the zoning ordinance. Once the rezone to BN is finalized through City Council's adoption of a rezone ordinance, the proposed use will be an allowed conditional use. One of the purposes of the BN zone is to "reserve areas, for those retail stores, offices, retail service establishments which offer goods and services needed on an everyday basis by residents of a neighborhood area." ECDC 16.45.000. The Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Oasis CUP, No. CU -2009-37 page 4of6 proposed retail pharmacy, would offer goods and services needed by residents. Compliance with the City's parking requirements will be verified at the time of building permit application. Findings 1, 2, 3, and 10. 3. As conditioned, the use will not be significantly detrimental to the public health, safety, and welfare, and to nearby private property or improvements. The proposed use is compatible with surrounding land uses, and, as long as parking and drive aisle widths are adequate, will not generate impacts that will be detrimental to the public or to private property. There was no public comment on the application. Findings 4, 5, 6, 8, 11, and 12. 4. The permit shall run with the land; however, the conditions of approval require any future change of building use (i.e., from the retail pharmacy proposed to some other type of drive-in business) to be reviewed for compliance with the City's parking, traffic, and building occupancy requirements. DECISION Based on the preceding Findings and Conclusions, the request for a conditional use permit (CUP) to operate a drive-through window in Building D of the office park located at 7631 212th Street SW is GRANTED, subject to the following conditions: 1. This conditional use permit shall be valid only when the associated rezone request (R-09- 36) is approved by the Edmonds City Council in ordinance form. 2. This approval is subject to the applicable requirements contained in the Edmonds Community Development Guide (ECDC). It is the responsibility of the Applicant to ensure compliance with the provisions of the ECDC. 3. The Applicant shall obtain a City building permit prior to installing the drive-through window or otherwise modifying Building D. Prior to issuance of the building permit, the Applicant must demonstrate compliance with the City's parking and drive aisle requirements. 4. This conditional use permit to operate a drive-through window in Building D of 7631 212th Street SW shall run with the land and may be used by future owners/occupants of the site; provided, any change in use from the retail pharmacy proposed shall be subject to City review for compliance with applicable parking, traffic, and building occupancy requirements. DECIDED this 14th day of September 2009. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Oasis CUP, No. CU -2009-37 Toweill Rice Taylor LLC City of Edmonds Hearing Examiners Y, QA1V11 J,� � I MY LeAnna C. Toweill page 5of6 RECONSIDERATION AND APPEAL The following is a summary of the deadlines and procedures for filing requests for reconsideration and appeals. Any person wishin to file or resand to a re nest for reconsideration or an appeal should consult the relevant ordinances and/or contact the Plannin Division of the Develo ent Services De artment for further rocedural information. m REQUEST FOR RECONSIDERATION Section 20.06.0 10 of the Edmonds Community Development Code (ECDC) contains the procedures for requesting reconsideration of a Hearing Examiner decision. Requests far reconsideration must be filed with the City Planning Director within 10 calendar days of the Hearing Examiner's decision. The filing deadline is 4:30 p.m. on the last business day of the reconsideration period. Only parties of record (i.e., the applicant, any person who testified at the open record hearing on the application, any person who individually submitted written comments on the application, or the City of Edmonds) may file a request for reconsideration. The grounds for reconsideration are limited to errors of procedure, errors of law or fact, errors of judgment, or the discovery of new evidence that was not known and could not in the exercise of reasonable diligence have been discovered. Reconsideration requests must contain the information specified in ECDC 20.06.010(D) and be accompanied by the required filing fee. APPEALS Pursuant to ECDC 20.05.020(B) and ECDC 20.07.006, appeals of a decision of the Hearing Examiner on conditional use permit applications are to superior court in accordance with the Land Use Petition Act (RCW 36.70C). Appeals must be fled within 21 days of decision issuance. Filing a request for reconsideration is not a prerequisite to filing an appeal. EFFECT OF REQUEST FOR RECONSIDERATION ON APPEAL DEADLINE The timely filing of a request for reconsideration stays the Hearing Examiner's decision until such time that the Hearing Examiner issues a decision on reconsideration, and any judicial appeal must be filed within 21 days of the decision on reconsideration. LAPSE OF APPROVAL Section 20.05.020(C) of the ECDC states: "Time Limit. Unless the owner obtains a building permit, or if no building permit 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. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Oasis CUP, No. CU -2009-37 page 6 of 6