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HE decisions S-98-108, V-98-109 & AP-99-185.pdfF Y OF E .. BARBARA r -AHOY MAYOR 250 5TH AVENUE NORTH EDMONDS, WA 98020 (206) 771-0220 FAX (206) 771-0221 w HEARING EXAMINER Stl 189 FINDINGS, CONCLUSIONS AND DECISION OF THE HEARING EXAMINER CITY OF EDMONDS APPLICANT: Sequoia Ridge Partners represented by John Thoresen (partner) and Jim Miller of David Evans and Associates (see Exhibit A, Attachment 2). CASE NO.: S 98-108 & V-98-109 LOCATION: 160XX 72"d Avenue West APPLICATION: To subdivide a 3.7 -acre parcel into 4 single-family lots. The application also includes variance requests for the following: A critical area variance to allow construction of 4 homes within a Steep Slope Critical Area and elimination of the required buffer and setback. Elimination of the 15 -foot building setback from a wetland buffer for lots 3 and 4. Reduce the standard flag lot setback (10 feet in the RS -20 zone) for Lots 1 & 2 to allow construction of the homes closer to the access easement. REVIEW PROCESS: The Examiner conducts an open record public hearing and prepares a written decision. MAJOR ISSUES: ® Compliance with Edmonds Community Development Code (ECDC) Section 16.20.030 (SINGLE-FAMILY RESIDENTIAL - Site Development Standards). ® Compliance with Edmonds Community Development Code (ECDC) Section 20.15B. (Critical Areas) ® Compliance with Edmonds Community Development Code (ECDC) Section 20.75 (SUBDIVISIONS). The original application requested a 4 -lot Short Subdivision with Critical Area Reasonable Use Exception and Variance. After review of the proposal, it was determined that a Variance from the Critical Area ordinance is required. Due to the unusual environmental issues with the site, staff C;�+� c';+;- Imo.+_, -nom+; ­1 1-4I 1r;r _ I,, >„ Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 2 felt an Environmental Impact Statement covering geotechnical and water concerns was necessary. An appeal was filed on the Final Environmental Impact Statement (FEIS), which had been issued by the City. Ordinarily, staff makes the decision on a short plat with setback modifications. However, because a consolidated application for a Critical Area Variance request and a Short Subdivision was filed, and an appeal on the FEIS was also filed, the consolidated application and the appeal must be reviewed by the Hearing Examiner. In this situation, the Hearing Examiner will rule on the entire proposal. A separate report on the FEIS appeal (file #AP -99-185) has already been issued. This report will address only the issues related to the requested Short Subdivision and the Critical Area Variance. SUMMARY OF RECOMMENDATION AND DECISION: Staff Recommendation: Approve with conditions Hearing Examiner Decision: Approve with conditions 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 application. The hearing on the Sequoia Ridge application (held jointly with the appeal on the FEIS) was opened at 1:00 p.m., October 7, 1999, in the City Hall, Edmonds, Washington, and closed at 3:59 p.m. for oral testimony. The hearing was held open administratively until October 14, 1999. 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 TESTIMONY/LEGAL ARGUMENT: The following persons testified or provided legal argument at the public hearing. From the City: Karissa Kawamoto, Project Planner Gordy Hyde, Development Services Engineer From the Applicant: Dennis Reynolds, Attorney for the Applicant Delane Johnson, Property Owner Vaughn Sherman, Edmonds Community College Foundation John Thoresen, Applicant Bill Chang, Geotechnical Engineer Charles Couvrette, Geotechnical Engineer Anthony Roth, Wetlands Scientist Jim Miller, Site Planner Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 3 From the Community: Drew Wojtanick. Neighbor Mike Duffy, Neighbor Robert Anderson, Owner of Neighboring Property Henry Judson, Legal Guardian of Owner of Neighboring Property Charles Warner, Concerned Citizen CORRESPONDENCE: The following members of the general public submitted letters: Drew Wojtanik, Exhibit C Phyllis Wiggins, Exhibit E Robert Anderson, M.D., Exhibit F Mark Thometz and Kathleen Johanson, Exhibit H Glenn Loboudger, Exhibit I The Lorian Woods Homeowners Association, Inc. submitted a petition with 10 signatures (Exhibit G). Patricia Thompson, Wildlife Biologist for the Washington Department of Fish and Wildlife, submitted a letter (Exhibit K). CONCERNS EXPRESSED BY NEIGHBORS AND CONCERNED CITIZENS: Concerns expressed by neighbors and concerned citizens about the proposal included the following: • The City gave inadequate notice of the hearing. • 72nd Ave. W is substandard and already overtaxed. Three additional houses should not be allowed to take access from 72nd Ave. W. • This area is a well-known landslide hazard area and a recent landslide approximately 300- 350 feet from the subject site was ignored by the City in the review of this proposal. • No pool or spa should be allowed and if they are, they should be extensively reviewed by the City. ® There are many water problems in the area. The wet slope of Sequoia Ridge seeps water constantly and the seepage shifts from time to time. Increased water flow due to the proposed development might adversely complicate the ability to site homes and obtain building permits for lots 1, 2, and 5 of the adjacent Lorian Woods development. ® No reduction in stream capacity or wetland should be allowed due to the potential for slides and runoff to downstream property owners. ® The setback requirements should not be waived. ® The proposal is ineligible for a critical area variance. It should be reviewed for a reasonable use exception and the City has previously ruled that one house on a piece of property is a reasonable use of the property. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 4 • A reasonable use exception should also be required for the stream crossing. • The requested variances are non-specific and should not be granted. • The access road for the three upper homes should be treated as a street and street setback requirements should apply. • A wildlife assessment of the site should be conducted before development occurs. APPLICANT'S RESPONSE TO CONCERNS EXPRESSED: The applicant and his consultants responded to many of the concerns raised. Those responses include the following: • Public notice signs were placed above and below the site. • The landslide hazard line does not show on the subject property because it does not lie on the site. The line on the USGS map is not definitive, but rather depicts an area to be studied. Two professional geotechnical engineering firms have conducted independent investigations and evaluations of the site and have arrived at very similar descriptions and recommendations. • There is potential for sloughing on the site whether or not the property is developed, but field tests have shown that the deep-seated soils are stable. More stability for the site should be provided if the site is developed because the proposed storm drainage system will enhance, not decrease slope stability on the subject property. • The variances easily meet the criteria for approval. The process has not been corrupted. The issues raised in the hearing relative to the variances have been addressed in the Applicant's Hearing Memorandum (Exhibit Q. • Even if the variances are approved, there will be additional reviews. • The wildlife issue should have been raised within the time periods for commenting on the EIS. No expert testimony was presented to indicate there would be adverse impacts to wildlife or wildlife habitat resulting from the proposed development. • The FEIS spells out specific recommended conditions to safely locate a swimming pool and spa on the site. CITY'S RESPONSE TO CONCERNS EXPRESSED: City staff responded to some of the concerns expressed. Those responses include the following: • The notification process was accomplished in accordance with City code. The applicant provides a list for public notification. All those on the list as well as others who expressed interest were notified. • There are two areas on the site shown on the Meadowdale landslide hazard area. That is one of the reasons why the limited scope EIS was required. The Hearing Examiner determined and the City Council concurred that 72nd Ave. W has been widened to its maximum practical width. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 5 FINDINGS OF FACT AND CONCLUSIONS A. SITE DESCRIPTION 1. Site Development And Zoning: a. Facts: (1)Lot Size: approximately 3.7 acres. (2)Land Use: A shed used by the adjacent property owner exists at the very southern end of the site. The remainder of the site is vacant. (3)Zonin : The subject property is located in an RS -20 zone. (4)Terrain and Vegetation: The site has moderate to extremely steep slopes. There is a ridge running north — south along the west property line where survey estimates the slope to range between 45-60 degrees on the west side and 24-30 degrees on the east side. The degree of slope tends to flatten as one moves to the east. Another top of slope can be found in the southern part of the property, which slopes to the northeast. The site is in a natural state with extensive forest and undergrowth. Several large Sequoia trees can be seen in the southeast portion of the property. The site also contains wetland areas and a small stream. 2. Neighboring Development And Zoning: a. Facts: (1) RS -20 zoning dominates the area. The primary existing land use is single family residential. (2) A four -lot subdivision was processed in 1995 (S-95-163) at 16202 72nd Avenue West. No homes have been constructed on the new lots to date. B. STATE ENVIRONMENTAL POLICY ACT (SEPA) a. Facts (1) Short subdivisions are typically exempt from SEPA review (WAC 197-11- 800(6)(b) and ECDC 20.15A.080). (2) The site is designated as Environmentally Sensitive by the City of Edmonds and therefore subject to SEPA for all development applications. (3) The site is also mapped as being within the Meadowdale Landslide Hazard Area. (4) Several critical areas as defined by ECDC Section 20.15B. have been identified on the site. The site is constrained by steep slopes, a Class II wetland and Class II stream. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 6 (5) After review of all environmental information, a Determination of Significance and proposed EIS limited scoping notice was distributed for comment on February 26, 1999. No comments on the determination or scope were received. (6) After a consultant selection process, Geo Group Northwest, Inc. teamed with 13 - Twelve Associates was hired to produce the limited scope EIS under a 3 -party contract with the City of Edmonds and the applicant. (7) The Draft EIS was distributed for the 30 -day comment period on June 22, 1999. (8) The three letters received during the comment period were forwarded to the consultant for review and incorporation into the FEIS. (9) The FEIS was distributed on September 1, 1999. b. Conclusions: The State and City appeal period on the FEIS expired on September 15, 1999. An appeal of the FEIS was filed and the appeal hearing was held in conjunction with the hearing on this application. The Hearing Examiner report on the FEIS appeal was issued on October 29, 1999 (File AP 99-185). The appeal of the FEIS was denied. One issues raised in the appeal was the issue of whether or not a swimming pool and spa should be allowed on the site. The Examiner determined in the report that credible testimony was submitted to support the applicant's contention that a pool and spa could be safely installed and maintained on the site. The Examiner also determined that the proposed pool and spa could be allowed subject to strict conditions. Those conditions are spelled out in the revised recommendation of Geo Group Northwest, Inc. in the FEIS. The City has complied with the requirement of the State Environmental Policy Act. 1. Critical Areas Compliance a. Facts: (1)This proposal is subject to review under ECDC Chapter 20.15.B (Critical Areas Ordinance). (2)The applicant has submitted a Critical Areas Checklist (CA -95-14). A Study Required determination was issued. (3)A survey to determine the top of bank was performed by Robert Hermann, P.L.S. of David Evans and Associates. It identified the two critical area steep slope "top of bank" locations (see Exhibit A, Attachment 8). (4)Tony Roth of Pacific International Engineering performed a wetland delineation and stream analysis (see Exhibit A, Attachment 8). Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 7 (5)Nelson — Couvrette & Associates, prepared a preliminary geotechnical report of the site (see Exhibit A, Attachment 8). (6)The applicant has proposed a wetland buffer -averaging plan. Typically, buffer averaging is approved by staff. In no area is the buffer proposed to be reduced by more than half, however, there are areas where the 15 -foot required building setback from the buffer is proposed to be reduced or eliminated. (7)The stream will be crossed by the driveway to Lot 4. This also can be done administratively if approval for the State Fish & Wildlife is obtained. (8)The applicant has shown areas of buffer reduction and buffer mitigation enhancement. This includes the area in and around the utilities easement through Lot 3 & 4. After installation of the utilities the area will be replanted and restored for use as a wetland buffer area. The steep slope critical area has been labeled in 2 areas of the property. The area not affected by the steep slope is constrained by the wetland and stream. b. Conclusion: The documents submitted complete the Critical Area Study. The proposals are in compliance with the Critical Area ordinance with the exception of the proposed buffer and building setback reductions or elimination. Variances will be addresses later in this report 2. Compliance with RS -20 Zoning Standards a. Facts: (1) Proposed number of lots: 4 (2) Approximate size of proposed Lots: Gross sq. ft ** Net sq. ft. Lot 1 34,052 Lot 2 46,891 Lot 3 51,222 Lot 4 27,222 27,222 **Due to the uncertainty of the access easement size, the net square footage cannot be calculated for Lots 1, 2, and 3. It does not appear as though they would be in danger of falling below the 20,000 square foot size minimums after subtracting the easement. (3) Setbacks: Due to the unique environmental factors facing this development, the setbacks are actually measured from the various critical areas identified on the property verses the actual property lines. The applicant has requested critical areas variances from the building setback required from a wetland buffer on Lots 3 & 4. A variance to eliminate the steep slope critical area buffer and building setback has also been requested. The FEIS recommended a 25 -foot setback from the top of Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 8 west side slope for Lot 1 and 2. Only a 15 -foot setback is recommended from the top of that slope for Lots 3 & 4. Setbacks in the RS -20 are as follows: Front: 25' Side: 10' minimum; 35' combined Rear: 25 (4) Corner Lots: This proposal does not contain any corner lots. (5) Flag lot determination: Lot 1, 2 & 3 are considered "flag" lots because they do not have actual frontage on an open, public street. As proposed, the new homes would utilize an easement over the adjacent property to the south to access the opened portion 72"d Avenue West. (6) Lot arrangement to topography: The FEIS is intended to demonstrate the if, how where and when the 4 homes could be constructed on the site without negatively impacting the soil stability. The consultant confirmed the geotechnical feasibility of the site and made recommendations for the design and construction of the roadway and homes. b. Conclusion: It appears as if the applicant has proposed a subdivision that could comply with the RS -20 development standards, however the critical area setbacks and buffers must be addressed by requesting numerous variances (addressed below). 3. Compliance with Subdivision Review Criteria a. Facts ENVIRONMENTAL (1) The ECDC places an emphasis on protection of environmental resources and design proposals, which minimize the significant adverse impacts. Special restrictions may be imposed. (2) Proposals should be designed to minimize grading by using shared driveway and by relating street, house site and lot placement to the existing topography. (3) Hazardous conditions to future residents of the site or adjacent property owners are cause for denial. LOT LAYOUT (4) Lots are to contain a usable building area. (5) Lots are not to front on highways, arterials or collector street. Shared driveways, turnarounds or frontage streets may be required to minimize traffic hazards. (6) Each lot is to meet the applicable dimensional requirements of the zone in which it is located. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 9 DEDICATION (7) Any approval of a subdivision shall be conditioned on appropriate dedication of land for streets, including those on the official street map. IMPROVEMENTS (8) Improvements which may be required, but are not limited to: streets, curbs, pedestrian walks, bicycle paths, sidewalks, street landscaping, water lines, sewage systems, drainage systems and underground utilities. b. Conclusions: (1) The steep slopes, wetland and stream were important factors in determining the need for the Environmental Impact Statement by the City's Responsible Official. The City was concerned with determining if it were feasible to develop a 4 -lot short plat without significantly impacting the natural environments. The FEIS demonstrated that the 4 homes could be constructed without having a significant negative impact to those specific geotechnical and water issues (see Exhibit A, Attachment 5). (2) Each lot has a proposed building footprint that was used by the consultant in reviewing the project feasibility. Both the top of slope setback recommendations by the geotechnical engineer and the location of the access easement (outside of the wetland buffer) will limit the overall buildable area per lot. The flag lot determination of Lots 1,2 & 3 (side setbacks from all property lines) allows more flexibility in terms of buildable area. (3) The EIS stipulated specific setbacks, construction techniques (pile foundations, geogrid reinforced retaining walls etc), activity limits are intended to prevent the possibility that the development could create hazardous conditions for adjacent property. (4) The Engineering Division has indicated that an emergency vehicle turnaround should be installed at the end of the 72nd Avenue right-of-way. There may be the need to require additional right-of-way, but it is unclear at this time and will be determined with the civil site improvement drawings. (5) If the property were void of the critical areas, the development would easily meet the dimensional standards of the zoning district. After application of the additional setbacks and buffers from the steep slope, stream and wetland, the applicant is forced to demonstrate that a reduction in the requirements is necessary but will not be detrimental. (6) Utilities for the project must be brought down from 72nd Avenue West through the project site and connect to service in North Meadowdale Road. Other improvements required by the Engineering Division can be found in Exhibit A, Attachment 4. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 10 1. The applicant has requested a side setback reduction for Lots 1 & 2 to allow flexibility in construction of the homes in relation to the access easement road. Typically, access easement lines are treated similarly to property lines in terms of setback application. Since Lots 1 and 2 are flag lots, the setback requirement is 10 feet. Although house plans have not been created, the applicant would like the ability to locate the homes as far away as possible from the top of slope on the west side and push them towards the easement: The following is the variance criteria directly from the ECDC. a) Special Circumstances: That, because of special circumstances relating to the property, strict enforcement of the zoning ordinance would deprive the owner of use rights and privileges permitted to other properties in the vicinity with the same zoning. Special Circumstances should not be predicated upon any factor personal to the owner such as age or disability, extra expense which may be necessary to comply with the zoning ordinance, the ability to secure a scenic view, the ability to make more profitable use of the property, nor any factor resulting from the action of the owner or any past owner of the same property. b) Special Privilege: That the approval of the variance would not be a grant of special privilege to the property in comparison with the limitations upon other properties in the vicinity with the same zoning. c) Comprehensive Plan and Zoning Ordinance: That the approval of the variance will be consistent with the intent of the comprehensive plan, the zoning ordinance and the zoning district in which the property is located. d) Not Detrimental: That the variance as approved or conditionally approved will not be significantly detrimental to the public health, safety and welfare or injurious to the property or improvements in the vicinity and the same zone. e) Minimum Variance: That the approved variance is the minimum necessary to allow the owner the rights enjoyed by other properties in the vicinity with the same zoning. 2. Hearing Examiner Anal: a) Special Circumstance: The steep slopes and wetland boundaries are the special circumstances affecting this request. The applicant has to work between steep slope requirements on the west and south sides of the site, and a Class II wetland, which occupies space on the north side of the site. The upper access road is to be designed to minimize encroachment into the wetland buffer to the greatest extent feasible. This in turn reduces the building envelopes for Lots 1, 2, and 3. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 11 b) Special Privilege: Variances for setbacks in this RS -20 zoned neighborhood is not very common. However, a search of the database by staff showed several height variances have been granted to nearby properties, and setback variances have been granted to properties on 164`h St SW. Not all of the adjacent neighbors have as many environmental constraints facing development of their properties as exists on this site. c) Zoning and Comprehensive Plan: The zoning of the property is Residential Single Family -RS-20 and the comprehensive plan designation is Residential Single Family Large Lot. The development proposed would be in compliance with both the zoning and comprehensive plan designations. d) Not Detrimental: The FEIS provided some of the documentation that can be applied to this criteria. It was indicated in the FEIS that if Lot 2 maintains a 25 -foot setback from the top of slope on the west side, and is constructed on piles instead of a standard foundation, it would not decrease the soil stability of the site. The location of the roadway was chosen because it preserves a larger wetland buffer area. The two homes located on Lots 1 and 2 would need variances to the setback requirements along an access easement, which services those two lots, along with proposed Lot 3. The setback variance from the easement would not be detrimental to the public health, safety or welfare, particularly since it would allow more distance between the top of the slope and the proposed homes. e) Minimum Necessary: The applicant has requested the setback variance to allow construction of the homes on Lot 1 & 2 closer to the access easement due to the limited amount of buildable area remaining after application of the wetland buffer and top of slope requirements. It would be the minimum necessary for the property to provide an adequate building area similar to others in the immediate vicinity. E. ANALYSIS OF REQUESTED CRITICAL AREASV CES 1. The applicant has specifically requested the following: • Elimination of Steep Slope critical area setback and buffer requirements • Reduction of the 15 -foot building setback from a wetland buffer for Lot 3 & 4. The following is the Critical Area Variance criteria directly from the ECDC Section 20.15B.170: a) Because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, or the size or nature of the critical area, the strict application of this title would deprive the subject property all reasonable use of the property. b) 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. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 12 2. Hearing Examiner Analysis: a) The topography and size of critical areas are the obvious special circumstances of this property. The proposed development is attempting to make up for portions of the disturbed critical area through wetland buffer averaging and wetland and stream mitigation enhancement. The existence of the critical areas on the site combine to eliminate all use of the property unless a variance is granted. When all buffers and setbacks are taken into account, no buildable areas would be left on this 3.7 -acre site. Although the property has been identified by the City as being within the Meadowdale Landslide Area, the field data compiled by the EIS consultant confirmed the soil suitability for single-family residential construction in the proposed building foot print locations. b) An RS -20 zoned 3.7 -acre parcel, in theory could be developed with 8 single-family lots. The applicants have proposed what they believe is the reasonable use of the property — 4 single-family lots with preservation of the wetland and documentation of stable slopes. The FEIS demonstrated that 4 homes, if constructed in accordance with their recommendations could be developed at this site without impacting slope stability (Appendix A of FEIS), and with minimal impact to the stream and wetland. If developed as conditioned below, the Examiner believes the public welfare and public safety will not be compromised by the development of this site. c) The concept of determining "minimum necessary to accommodate the development" in the context of a subdivision is not easily definable. In this instance, the subject property theoretically could accommodate 8 lots based on the total lot area. However, since the site is so heavily constrained, a thorough review of the file is necessary to determine if the requested variance is the minimum necessary to a accommodate the proposed development. The FEIS indicates that 4 homes are safe from a geologic perspective and the FEIS also indicates that the wetland and stream will not significantly suffer if the recommended mitigation and protection of the wetland and stream are accomplished. a. Fact: The short plat application has been reviewed and evaluated by the Fire Department, Public Works Division, Engineering Division, and the Parks and Recreation Division. Engineering has provided their requirements checklist (see Exhibit A, Attachment 4). Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 13 G. COMPREHENSIVE PLAN (ECDC) 1. Comprehensive Plan Designation a. Fact: The subject property is designated as "Single Family" residential on the comprehensive plan. b. Conclusion: The proposed development is consistent with the existing Comprehensive Plan Land Use designation for the site. 2. Comprehensive Plan Goals and Policies a. Facts: The Comprehensive Plan identifies goals and policies, which relate to 'Residential Development" in the City. Specific goals and policies are discussed in detail below. Residential Development Goal, "High quality residential development which is appropriate to the diverse lifestyle of Edmonds residents should be maintained and promoted". Policy B.6. "Require that new residential development be compatible with the natural constraints of slopes, soils, geology, vegetation and drainage". b. Conclusion: The documentation provided for the short plat, the FEIS and the preliminary conditions of approval are consistent with the above adopted goals and policies of the City. DECISION Based upon the foregoing findings and conclusions, the application is approved, subject to the following conditions: Prior to recording: (1) Record a separate easement document on the Johnson property (to the south) for ingress and egress for Lots 1, 2 and 3. (2) Add notation to the face of the plat referencing the easement and its recording number. (3) Revise the access easement width on the face of the plat to accommodate the required engineering improvements. If the easement is required to increase in size, it must expand towards the west, thereby reducing the amount of buildable area for Lots 1-3. (4) Revise the lot sizes labeled on the face of the plat to exclude the access easement. Notes regarding gross and net square footage of each lot would be acceptable. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 14 (5) Add note to face of plat referencing the approved setback and critical area variances. Language is to be approved by planning staff. (6) Complete Engineering requirements contained in the subdivision checklist under "Prior to Recording" (Exhibit A, Attachment 4). (7) All new property corners are to be staked by a State of Washington licensed land surveyor. (8) Remove or legally relocate the shed from Lot 1. (9) Remove the "building setback line (typical)" note and lines from those portions of lots east of the access easement or within the NGPE. (10) Add Endangered Species Act statement to face of plat (language provided with Exhibit A, Attachment 8) (11) Add Native Growth Protection Easement statement to face of plat (language provided with Exhibit A, Attachment 9). (12) Receive approval of a draft final recording document prior to drawing up the Mylar for signatures. (13) As recommended within the FEIS: a) Add note to face of plat regarding the minimum 25 -foot setback between structures and the top of slope for Lots 1 & 2. Add note to plat regarding the 15 - foot setback between structures and top of slope for Lots 3 & 4. b) A detailed Critical Areas Mitigation Plan, developed by a qualified, City approved, consultant, is required to design the revegetation of both the disturbed stream critical area, wetland buffer and wetland/stream buffer enhancement area. The Mitigation Plan is to at a minimum meet the parameters contained in the FEIS (species, spacing, drought tolerant, quantities etc). c) Roadway design must incorporate modular block walls and geogrid reinforcement to support fills. Rockeries and concrete retaining walls for cut slopes. d) Analyze raising the roadway elevation which could lessen the grades of the road and driveways thereby reducing the amount of cut and fill retention required for the west side of the roadway as recommended by in the EIS. e) Record a Homeowner's covenant that identifies permissible property uses and structures following the recommendations found in the EIS. Maintenance agreements for the storm drainage system, roadway and retaining structure should also be addressed in the document. f) As recommended within the EIS, establishment of a native growth, non- disturbance area for the 15-25 foot wide building setbacks from the top of the west slope. It should be incorporated into the Homeowners Association covenant and include restrictions on the outdoor landscaping, no lawn on Lots 2,3 & 4. Prohibit swimming pools, ponds, sprinkler systems and limitations on tree removal. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 15 g) If a swimming pool and spa are to be installed, they must be constructed in accordance with the revised recommendations by Geo Group Northwest, Inc. found on page 3 of the FEIS dated 8/31/99 (Exhibit A, Attachment 5). Prior to issuance of any clearing or grading permits: (14) A detailed tree survey must accompany a "limit of clearing" plan for review. (15) Clearing and grading shall only occur during the dry season of May 0 through September 30th unless otherwise permitted by the geotechnical engineer of record and the City Building Official. (16) A site-specific management plans for Temporary Sediment and Erosion Control and Permanent Storm Water Control must be reviewed and approved by the City Engineer. (17) Prior to start of clearing and grading, the stream/wetland buffers and buffer mitigation enhancement areas are to have their boundaries clearly marked in the field by a State of Washington licensed surveyor. Temporary, chain-link fencing is required to protect the buffers with the exception of that portion of buffer area to be disturbed for the installation of utilities. Prior to issuance of a building permit: (18) Individual landscape plans for each lot must accompany the permit application, modeled after the EIS recommendations. (19) Prior to issuance of a permit for Lot 4, a copy of the Hydraulic Permit Approval from the State Department of Fish and Wildlife must be obtained. The crossing is not to be constructed prior to approval of a building permit for the residence. Protective fencing and erosion control are to be approved elements of the building permit. (20) Construction of each lot is subject to Edmonds Community Development Code Section 19.05 — Earth Subsidence and Landslide Hazard Areas. (21) Complete the Engineering checklist of requirements for building permits (see Exhibit A, Attachment 4). Entered this 4th day of November 1999, pursuant to the authority granted the Hearings Examiner under Chapter 20.100 of the Community Development Code of the City of Edmonds. Ron McConnell Hearing Examiner Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 16 The following is a summary of the deadlines and procedures for filing reconsiderations and appeals. Any person wishing to file or respond to a recommendation or appeal should contact the Planning Department for further procedural information.Request for Reconsideration 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 Reconsiderations 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. 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. Section 20.75. 100 (as amended by Ordinance No. 3190) states "A preliminary approval of a subdivision or lot line adjustment will expire and have no further validity at the end of five years, unless the applicant has acquired approval of the final plat or final short plat approval within the five year period." NOTICE TO THE COUNTY ASSESSOR The property owner may as a result of the decision rendered by Planning Division request a change in the valuation of the property by the Snohomish County Assessors Office. Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 17 EXHIBITS: The following exhibits were offered and entered into the record. A. Planning Division Advisory Report for S-98-108 and V-98-109, with attachments B. Planning Division Advisory Report for AP 99-185, with attachments C. Letter received 7/6/99 from Drew Wojtanik, President of the Meadowdale Community Council D. Applicant response to the Critical Area variance criteria received 9/13/99 E. Letter received 9/13/99 from Phyllis Wiggins F. Letter received 9/13/99 from Robert Anderson G. Letter received 9/14/99 from the Lorian Woods Homeowners Association, Inc. H. Letter dated 9/15/99 from Mark Thometz and Kathleen Johnson 1. Letter received 9/16/99 from Glenn Loboudger J. Xerox picture from John Sherman Mills of the Laebugten Wharf and beyond, taken in the 1950s K. Letter received 10/4/99 from Patricia Thompson of the State Department of Fish and Wildlife L. Applicant's Hearing Memorandum, with 12 attachments M. Road access drawing N. Notice O. Comment regarding variance request, submitted by Henry Judson 111, dated 10/14/99 PARTIES of RECORD: John Thoresen and Phil Holroyd Sequoia Ridge Partners 1562148 th Place West Edmonds, WA 98026 Dennis Reynolds Williams, Kastner, Gibbs 601 Union Street, Suite 4100 Seattle, WA 98101 Drew Wojtanik, President Meadowdale Community Council 1630672 nd Avenue West Edmonds, WA 98020 Delane Johnson 1612272 nd Avenue West Edmonds, WA 98026 Vaughn Sherman 703 Spruce Edmonds, WA 98020 Bill Chang GeoGroup Inc. 13240 N.E. 201h Street, Suite 12 Bellevue, WA 98004 Robert A. Anderson, M.D. 614 Daniels Drive N.E. East Wenatchee, WA 98802-4036 Glenn M. Loboudger 1592072 nd Avenue West Edmonds, WA 98026 Michael Duffy 1623872 nd Ave. W Edmonds, WA 98026 Hearing Examiner Decision Case No. S 98-108 & V 98-109 Page 18 Rolf and Marilyn Toberer 1621472 nd Avenue West Edmonds, WA 98026 Phyllis Wiggins 1601274 1h Place West Edmonds, WA 98026 Mark Thometz Kathleen J. Johanson 7309 N. Meadowdale Edmonds, WA 98026 Henry H Judson III 101 Yesler Way, Suite 602 Seattle, WA 98104 Charles Couvrette Nelson-Couvrette & Associates, Inc. 17311 135th Ave. NE, Suite A-500 Woodinville, WA 98072 Jim Miller Anthony Roth David Evans and Associates, Inc. Pacific International Engineering 1716 West Marine View Drive, Suite C 310 Waterfront Building, 144 Railroad Ave. Everett, WA 98201 Edmonds, WA 98020 Charles Warner 20021 88`h Ave. W Edmonds, WA 98026 Willie and Ruby Wellington 7109164 1h St. S.W. Edmonds, WA 98026 Arthur and Martha Haig 16222 71nst. Place West Edmonds, WA 98026 Phil and Marian Lehn 1620272 d Avenue West Edmonds, WA 98026 Lorian Woods Homeowners Assoc., Inc. 1611973 rd Pl. West Edmonds, WA 98026 Mark and Penny Westland 16318 71 nst Place West Edmonds, WA 98026 Vaneltin and Linelle Milatchkov 16220 701h Place West Edmonds, WA 98026 Dave and Kate Wells 16330 72nd Avenue West Edmonds, WA 98026 Rita Stillings 1634272 nd Avenue West Edmonds, WA 98026 Patricia Thompson Department of Fish and Wildlife 16018 Mill Creek Boulevard Mill Creek, WA 98012 Hearing Examiner Decision Case No. S 98-108 & V 98-109 Scott and Joyce Wright 7211 164`" St. S.W. Edmonds, WA 98026 Edmonds Planning Division Edmonds Engineering Division Page 19 CITY OF EDMONDS 250 5TH AVENUE NORTH • EDMONDS, WA 98020 • (206) 771-0220 • FAX (206) 771-0221 HEARING EXAMINER S t 1 g 9 FINDINGS, CONCLUSIONS AND DECISION OF THE HEARING EXAMINER CITY OF EDMONDS BARBARA FAHEY MAYOR APPELLANT: Drew Wojtanik, President of the Meadowdale Community Council. CASE NO.: AP 99-185 LOCATION: 160XX 72 Avenue West APPEAL: Appeal of the Final Environmental Impact Statement (FEIS) for a proposal to subdivide a 3.7 -acre parcel into 4 single-family lots. The application also includes variance requests for the following: • A critical area variance to allow construction of 4 homes within a Steep Slope Critical Area and elimination of the required buffer and setback. • Elimination of the 15 -foot building setback from a wetland buffer for lots 3 and 4. • Reduce the standard flag lot setback (10 feet in the RS -20 zone) for Lots 1 & 2 to allow construction of the homes closer to the access easement. REVIEW PROCESS: Hearing Examiner conducts an open record public hearing and makes final decision for the City on the FEIS appeal. MAJOR ISSUE: • Compliance with Edmonds Community Development Code (ECDC) Section 20.15A. (Environmental Review, SEPA). SUMMARY OF RECOMMENDATION AND DECISION: Staff Recommendation: Deny the appeal Hearing Examiner Decision: Deny the appeal 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 appeal. The hearing on the Meadowdale Council appeal was opened at 1:00 p.m., October 7, .1999, in the City Hall, Edmonds, Washington, and closed for oral testimony at 3:59 p.m. The hearing was held • Incorporated August 11, 1890 • N Hearing Examiner Decision Case No. AP 99-185 Page 2 open administratively until close of business on October 14, 1999. 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. INTRODUCTION Due to the unusual environmental issues with the subject site, staff required an Environmental Impact Statement (EIS) to address geotechnical concerns and potential impacts to the wetland stream and hydrology. An appeal of the Final Environmental Impact Statement (FEIS) was received during the City required appeal period. This report addresses the SEPA Appeal issues only. A separate report will be issued for the project application. The processes for both the appeal and the application have been consolidated into the one open record hearing permitted by the State of Washington Regulatory Reform Law. •9 1 ► 1 IC�ZlIti Determination of Significance and Request for Comments on Scope of Work was issued on February 26, 1999. GeoGroup Northwest was selected on April 23, 1999 to produce the document. Draft EIS for 30 -comment period was issued on June 22, 1999. Final Environmental Impact Statement was issued on September 1, 1999. Appeal of the Final Environmental Impact Statement was filed on September 15, 1999. HEARING TESTIMONY/LEGAL ARGUMENT: The following persons testified or provided legal argument at the public hearing. From the City: Karissa Kawamoto, Project Planner Gordy Hyde, Development Services Engineer From the Appellants: Drew Wojtanick. Appellant Mike Duffy, Appellant From the Applicant: Dennis Reynolds, Attorney for the Applicant Delane Johnson, Property Owner Vaughn Sherman, Edmonds Community College Foundation John Thorson, Applicant Bill Chang, Geotechnical Engineer Charles Couvrette, Geotechnical Engineer Anthony Roth, Wetlands Scientist Hearing Examiner Decision Case No. AP 99-185 Page 3 Jim Miller, Site Planner From the Community: Robert Anderson, Owner of Neighboring Property Henry Judson, Legal Guardian of Owner of Neighboring Property Charles Warner, Concerned Citizen CORRESPONDENCE: The following members of the general public submitted letters: Drew Wojtanik, Exhibit C Phyllis Wiggins, Exhibit E Robert Anderson, M.D., Exhibit F Mark Thometz and Kathleen Johanson, Exhibit H Glenn Loboudger, Exhibit I The Lorian Woods Homeowners Association, Inc. submitted a petition with 10 signatures (Exhibit G). Patricia Thompson, Wildlife Biologist for the Washington Department of Fish and Wildlife, submitted a letter (Exhibit K). FINDINGS OF FACT AND CONCLUSIONS A. STATE ENVIRONMENTAL POLICY ACT (SEPA) — WASHINGTON ADMINISTRATIVE CODE (WAC) CHAPTER 197-11 1. Facts: a. WAC 197-11 Part 8 DEFINITIONS Section 197-11-782 defines the term "PROBABLE" as: "Probable" means likely or reasonably likely to occur, as in "a reasonable probability of more than a moderate effect on the quality of the environment" (see WAC 197-I1-794). Probable is used to distinguish likely impacts from those that merely have a possibility of occurring, but are remote or speculative. This is not meant as a strict statistical probability test. b. Section 197-11-786 defines the term "REASONABLE ALTERNATIVE" as: "Reasonable alternative" means an action that could feasibly attain or approximate a proposal's objectives, but at a lower environmental cost or decreased level of environmental degradation. Reasonable alternatives may be those over which an agency with jurisdiction has authority to control impacts, either directly, or indirectly through requirement of mitigation measures. c. Section 197-11-794 defines the term "SIGNIFICANT" as Hearing Examiner Decision Case No. AP 99-185 Page 4 (1) "Significant" as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality. (2) Significance involves context and intensity (WAC 197-11-330) and does not lend itself to a formula or quantifiable test. The context may vary with the physical setting. Intensity depends on the magnitude and duration of an impact. The severity of an impact should be weighed along with the likelihood of its occurrence. An impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe if it occurred. (3) WAC 197-I1-330 specifies a process, including criteria and procedures, for determining whether a proposal is likely to have a significant adverse environmental impact. d. Section 197-11-797 defines the term "THRESHOLD DETERMINATION" as: (1) "Threshold determination" means the decision by the responsible official of the lead agency whether or not an EIS is required for a proposal that is not categorically exempt (WAC 197-11-310 and 197-11-330(1)(b)). 2. Fact: WAC 197-11-330 Threshold Determination Process states: (1) "An EIS is required for proposal or legislation and other major actions significantly affecting the quality of the environment. The lead agency decides whether an EIS is required in the threshold determination process as described below. " The following are specific subsections of WAC Section 197-11-330, which are applicable to the subject appeal. (i) Section 197-11-330(3) In making a threshold determination, the responsible official shall take into account the following, that: (a) The same proposal may have a significant adverse impact in one location but not in another location (Section 197-11-330(3)(a)). (b) A proposal may to a significant degree adversely affect environmentally sensitive or special areas such as the loss or destruction of historic, scientific, and cultural resources, parks, prime farmlands, wetlands, wild and scenic rivers, or wilderness (Section 197-11-330(3)(e)(i)). 3. Fact: WAC 197-11-408 identifies the process for scoping. The lead agency shall narrow the scope of every EIS to the probable significant adverse impacts and reasonable alternatives, including mitigation measures. Invite agency, affecting tribes, and public comment on the DS (Section 197-11- 408(a)). W Hearing Examiner Decision Case No. AP 99-185 Page 5 Identify reasonable alternative and probable significant adverse environmental impacts (Section 197-11-408(b)). Eliminate from detailed study those impacts that are not significant (Section 197- I1 -408(c)). B. ENVIRONMENTAL (SEPA) COMPLIANCE WITH THE ECDC 1. Facts: a. The project site is identified on the City of Edmonds Environmental Sensitive Areas map pursuant to ECDC Section 20.15A.280. SEPA is automatically imposed for developments within a Sensitive Area. b. ECDC Section 20.15A.140 adoptions by references a number of sections found within the WAC. c. ECDC Section 20.15A.150 outlines the preparation of the EIS. d. ECDC Section 20.15A.240 sets forth the procedural requirements related to an appeal of the adequacy of a final EIS. e. ECDC Section 20.15A.250.E. states: "All relevant evidence shall be received during the hearing of the appeal. The procedural determination by the city's responsible official shall carry substantial weight in an appeal proceeding." C. ENVIRONMENTAL (SEPA) APPEAL ISSUES 1. Issues raised by the Appellant and Hearing Examiner Response: Appellant concerns are summarized below from their letter of appeal (see Exhibit A, Attachment 1). a. Appellant Issue: Inadequate notice to the neighborhood resulted in staff's omission of two subjects of concern from the EIS review, namely traffic and wildlife habitat. Hearing Examiner Reponse: ECDC Section 20.15A.170 provides the public notice guidelines. As with all proposed land use and SEPA actions, a mailing list of property owners and residences within 300 feet is supplied by the applicant as part of the application package. Both the Determination of Significance (DS) and the scope of the EIS were mailed to those on that list. Posting the site during the EIS scoping did not occur because it is not required by the City code and the public hearing on the project was to be held as part of the project decision and not just on the environmental review. b. Appellant Issue: The current substandard condition of 72 n Avenue West will be intensified by additional vehicular trips on the dead end street. Impacts from noise, air pollution, inconvenience, congestion and hazards are expected if the subdivision is approved. Portions of 72"d Avenue West are substandard by 4-8 feet. Unless the street is widened to comply with the City's standards, the additional traffic generated Hearing Examiner Decision Case No. AP 99-185 Page 6 by the proposed short plat would clearly be "materially detrimental" and "injurious" to our selves and to the value of our properties. Hearing Examiner Response: The addition of 2 new single-family residential homes (one legal lot already exists) taking access from a public street typically does not trigger a traffic analysis requirement by the Engineering Division. Staff determined that the potential traffic generation of the proposal was not a significant environmental impact. The Examiner concurs with the staff determination. c. Appellant Issue: An Urban Biologist from the Department of Fish and Wildlife should be retained to determine whether or not there may be sufficient cause to add the impacts to Wildlife Habitat to review under the EIS. Hearing Examiner Response: The EIS notice and Scope was sent to the State Department of Fish and Wildlife for review and comment. No comments were received from the Department during the scoping comment period. The west -facing cliff is shown on the City's critical areas map as habitat area. No development activity was proposed for that area, no comments were received from the Department of Fish and Wildlife, and no public comments notifying staff of a wildlife or habitat concern was received, therefore, the SEPA Responsible Official did not include that issue in the EIS Scope. Furthermore, no comments were received on this issue during the Draft EIS comment period. It was not until after the FEIS was issued that the concern was raised. The SEPA process is a very well defined process and while the process may not be well known to the general public, it is well known to State agencies. Timely comments must be submitted in order that they may be considered. The Hearing Examiner believes the City acted properly in its review of this issue. d. Appellant Issue: The FEIS appears to equate the City's "Landslide Hazard Line" with the "top of bank". While the two different designations are often in the same location they are clearly in very different location in the vicinity of the proposed development. There are substantial differences between the City and proponent's surveys; even the directions of their slopes are significantly different. No field data was provided in the FEIS and the points of elevation surveyed on the ground and the extent of the surveyor's interpolation of elevations between points is unknown. Because the proponent's surveyor works for and is paid by the proponent, and because critical differences between the City and proponent's surveys serve the proponent's interests, we believe the objectivity and accuracy of the proponent's survey remains very much in question. To help us better understand and resolve the significant discrepancies between the City's topographic surveys and that prepared by the proponent's consultant, we believe that the proponent should be required to provide the City with a copy of his surveyor's field data identifying the number of points shot and their respective elevations. Hearing Examiner Response: Confusion between the "Landslide Hazard Line" and the "top of bank" appears to have originated from the Meadowdale Beach Community Council's comment letter on the DEIS dated August 23, 1999. Geo Group Northwest Inc. was attempting to respond to the Community Council's concerns about Hearing Examiner Decision Case No. AP 99-185 Page 7 development within the Landslide Hazard Area verses the Steep Slope Area. Building permits are attainable for properties that are within the Meadowdale Landslide Hazard Area pursuant to the regulations found in ECDC Section 19.05. The Steep Slope Hazard area is regulated under the Critical Area chapter (ECDC Section 20.15B.) where property could potentially receive approval for development if specific criteria are met. Geotechnical engineers addressed this issue at length at the hearing. The Critical Area chapter requires a survey prepared by a licensed surveyor to determine the location of the "top of bank" for the purposes of establishing buffer areas. Because a licensed professional generates the survey, the field data is not asked for as part of a subdivision application. e. Appellant Issue: Evidence of their (Geo Group Northwest Inc.) incomplete and erroneous understanding of the property make is more difficult for us to trust the opinions and risk assessments. The slide referred to in the Geo Group Northwest Inc. response letter as being 1,000 feet away was in fact, only 300 to 350 feet away on the same stretch of bluff and in the very same designated landslide hazard area as the proposed development. It is very difficult for us to rely upon Geo Group Northwest Inc. opinion that there would be no new additional risks posed by these most recent movements in the landslide complex when Geo Group Northwest Inc. appears to be so unaware of just when and where these movements occurred. We believe a deep- seated fault(s), future sloughing or a combination of the two will eventually undermine the proposal's building foundations and request that the current study be expanded to respond convincingly to risks suggested by this previously omitted information. Hearing Examiner Response: Geo Group Northwest Inc. was hired by the City to analyze the geotechnical and wetland/stream/hydrology issues related to the development of the subject site. After performing extensive soil tests in each of the areas proposed for construction activity, a licensed, professional engineer from the firm concluded that 4 homes and access could be built with minimal adverse impacts. The Appellants have not provided factual evidence that shows the data or recommendations within the EIS to be erroneous. f. Appellant Issue: While the proponent and Geo Group Northwest Inc. claim that the pool and spa would be properly engineered and include a "leak containment and evacuation system," we have serious doubts about the long-term wisdom of permitting such a precedent. Hearing Examiner Response: No factual basis was submitted to deny the pool and spa. Credible testimony was submitted by the applicant's engineers, which supported the applicant's contention that the pool and spa could be safely installed and maintained. After review of the file, the Examiner believes the proposed pool and spa could be allowed, subject to strict conditions. The conditions would require that the pool and spa must be located at least 25 feet from the top of the steep west facing Hearing Examiner Decision Case No. AP 99-185 Page 8 slope on the site, and the pool or spa would be required to be constructed with an engineer designed double bottom with a leak detection system. g. Appellant Issue: Storm drainage maintenance schedules and responsibility. How could those who would be impacted by the development's storm drainage system be assured that the reasonable precautions listed in the FEIS will be taken? Hearing Examiner Response: As part of the original subdivision application, a conceptual storm drainage plan was provided. A final design is not required until prior to recording of the plat. The City Engineer approves the final drainage plan. Design and installation of the system will be reviewed, approved and inspected pursuant to City regulations. Because the improvements will be on private property, maintenance is the responsibility of the property owners of the subdivision. h. Appellant Issue: Three and a half years ago the City's Engineering Division claimed they had no discretionary authority to waive the City's street standards and formally opposed the last short plat's compromise design as inadequate for the two additional lots proposed. The same Engineering Division is now contending that the Hearing Examiner's limited decision in that case has given them the discretionary authority to decide that the same compromise design that they originally opposed is now sufficient to serve traffic generated by two more lots. Hearing_ Examiner Response: This Examiner approved the limited improvements to 72"d Ave. W approximately 3 1/2 years ago relative to file # AP 96-21. This Examiner believed then and continues to believe that the road was widened to its maximum practical width at that time due to the natural constraints, which exist along this section of 72"d Ave. W. That decision was not intended to preclude any further development of property along 72"d Ave. W. It was known at that time that 72"d Ave. W may serve a small amount of additional development in the future due to the land ownership patterns, the natural features of the land, and the zoning of the area. Appellant Issue: The required variances do not meet the City's criteria. Hearing Examiner Response: The EIS was intended to provide information as to the project impact on the environment the adjacent properties and whether it was even feasible to construct, not to evaluate whether the project met the variance criteria. The FEIS is a technical analysis of the potential impacts to the proposal to the specific concerns identified in the scope. The issue of whether the proposal complies with the various criteria for variances is addressed in a separate report on the Sequoia Ridge application for a variance and subdivision. D. CONCLUSIONS OF THE HEARING EXAMINER: 1. The decision of the SEPA Responsible Official should be given substantial weight in an appeal of a threshold determination. The burden is therefore on the appellants to prove that the SEPA Responsible Official erred in this case. Hearing Examiner Decision Case No. AP 99-185 Page 9 2. The burden to prove that a SEPA Responsible Official erred in the preparation and issuance of the FEIS has not been met by the appellants. Therefore, the appeal of the FEIS should be denied. DECISION Based upon the foregoing findings and conclusions, the appeal of the FEIS is denied. Entered this 29th day of October 1999, pursuant to the authority granted the Hearings Examiner under Chapter 20.100 of the Community Development Code of the City of Edmonds. Ron McConnell Hearing Examiner The following is a summary of the deadlines and procedures for filing reconsiderations and appeals. Any person wishing to file a request for reconsideration or an appeal should contact the Planning Department for further procedural information. REQUEST FOR RECONSIDERATION 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. APPEAL The Hearing Examiner's decision is the final decision of the City on this appeal (ECDC 20.105.070). The Hearing Examiner's decision may be reviewed pursuant to the standards set forth in RCW 36.70.C130 in Snohomish County Superior Court. The land use petition must be filed within twenty-one (21) calendar days of the issuance of the Examiner's decision. J `Hearing Examiner Decision Case No. AP 99-185 Page 10 The following exhibits were offered and entered into the record. A. Planning Division Advisory Report for AP 99-185, with attachments B. Planning Division Advisory Report for S-98-108 and V-98-109, with attachments C. Letter received 7/6/99 from Drew Wojtanik, President of the Meadowdale Community Council D. Applicant response to the Critical Area variance criteria received 9/13/99 E. Letter received 9/13/99 from Phyllis Wiggins F. Letter received 9/13/99 from Robert Anderson G. Letter received 9/14/99 from the Lorian Woods Homeowners Association, Inc. H. Letter dated 9/15/99 from Mark Thometz and Kathleen Johnson I. Letter received 9/16/99 from Glenn Loboudger J. Xerox picture from John Sherman Mills of the Laebugten Wharf and beyond, taken in the 1950s K. Letter received 10/4/99 from Patricia Thompson of the State Department of Fish and Wildlife L. Applicant's Hearing Memorandum, with 12 attachments M. Road access drawing N. Notice O. Comment regarding variance request, submitted by Henry Judson III, dated 10/14/99 �, . 1' F John Thoresen and Phil Holroyd Sequoia Ridge Partners 1562148 1h Place West Edmonds, WA 98026 Dennis Reynolds Williams, Kastner, Gibbs 601 Union Street, Suite 4100 Seattle, WA 98101 Drew Wojtanik, President Meadowdale Community Council 1630672 d Avenue West Edmonds, WA 98020 Delane Johnson 1612272 d Avenue West Edmonds, WA 98026 Vaughn Sherman 703 Spruce Edmonds, WA 98020 Bill Chang GeoGroup Inc. N.E. 20`h Street Bellevue, WA 98004 Robert A. Anderson, M.D. 614 Daniels Drive N.E. East Wenatchee, WA 98802-4036 Glenn M. Loboudger 1592072 d Avenue West Edmonds, WA 98026 Michael Duffy 1623872 ndAve. W Edmonds, WA 98026 Hearing Examiner Decision Case No. AP 99-185 Page 11 Rolf and Marilyn Toberer 1621472 nd Avenue West Edmonds, WA 98026 Phyllis Wiggins 1601274 1h Place West Edmonds, WA 98026 Mark Thometz Kathleen J. Johanson 7309 N. Meadowdale Edmonds, WA 98026 Henry H Judson III 101 Yesler Way, Suite 602 Seattle, WA 98104 Charles Couvrette Nelson-Couvrette & Associates, Inc. 17311 135`h Ave. NE, Suite A-500 Woodinville, WA 98072 Jim Miller Anthony Roth David Evans and Associates, Inc. Pacific International Engineering 1716 West Marine View Drive, Suite C 310 Waterfront Building, 144 Railroad Ave. Everett, WA 98201 Edmonds, WA 98020 Charles Warner 20021 881h Ave. W Edmonds, WA 98026 Willie and Ruby Wellington 7109 164`h St. S.W. Edmonds, WA 98026 Arthur and Martha Haig 16222 71 nst. Place West Edmonds, WA 98026 Phil and Marian Lehn 1620272 d Avenue West Edmonds, WA 98026 Lorian Woods Homeowners Assoc., Inc. 1611973 d Pl. West Edmonds, WA 98026 Mark and Penny Westland 16318 71 nst Place West Edmonds, WA 98026 Vaneltin and Linelle Milatchkov 16220701h Place West Edmonds, WA 98026 Dave and Kate Wells 16330 72nd Avenue West Edmonds, WA 98026 IN Rita Stillings 1634272 nd Avenue West Edmonds, WA 98026 Patricia Thompson Wildlife Biologist Department of Fish and Wildlife 16018 Mill Creek Boulevard Mill Creek, WA 98012 Hearing Examiner Decision Case No. AP 99-185 Scott and Joyce Wright 7211 164`h St. S.W. Edmonds, WA 98026 Edmonds Planning Division Edmonds Engineering Division Page 12