HE Order on Reconsideration.pdfCITY OF EDMNDS
121 5th AVENUE NORTH ® EDMONDS, WA 98020 ® (425) 771-0220 ® fax (425) 771-0221
www.edmondswa,gov
14
HEARING EXAMINER
Emily Terrell, Hearing Examiner Pro Tern
RE: Burnstead Construction
Company
Woodway Elementary Plat
Re -Hearing
P-2007-17, PRD -2007-18
DAVE EARLING
MAYOR
1II"
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Requestor: City of Edmonds, WA
The Burnstead Construction Company received preliminary approval from the City of
Edmonds in 2007 (see Re -Hearing Exhibit 1, Attachments for 2007 numbers 2-4 and
12-15), which was Subsequently appealed to Superior Court and again appealed to the
Court of Appeals. The Appellate Court remanded the plat/PRD for further
proceedings before the Hearing Examiner, limiting the proceedings before the
Hearing Examiner to the issues concerning: 1) the drainage plan, 2) the perimeter
buffer, and 3) open space while affirming the Applicant's burden on remand to
demonstrate compliance with all applicable laws Current at the time of vesting (Re -
Hearing Exhibit 1, Attachment 20124). On March 7, 2012, the Hearing Examiner
issued a decision on the above -referenced matter (Re -Hearing Decision). The Hearing
Examiner granted, subject to conditions, the Burnstead Construction Company's
request for approval of revised PRD and preliminary plat applications on 5.61 acres
of land within the City of Edmonds located at 23708 104"' Avenue West.
On March 15, 2012, the City of Edmonds, pursuant to ECDC 20.06.010, filed a
Request for Reconsideration (Request). The Request seeks clarification on three
issues related to 1) the summary of the oral testimony of Jerry Shuster, City of
Edmonds Stormwater Engineering Manager, 2) a typographical error in Conclusion
of Law #5 and 3) the 'logic, underlying the characterization' of the issue of perimeter
buffer/setback in Conclusions of Law 9's 9, 10 and. 11.
Incorporoted August 11, 1890
The Hearing Examiner finds that the City's Request was timely filed and that the City
has standing to bring such a request.
III kYili)(.XY[Il►i
The City asserts the following errors and/or omissions with the Hearing Examiner's
March 7, 2012 Re -Hearing Decision (Request):
1. Testimony of Jerry Shuster, Stormwater Engineering Manager: The Hearing
Examiner asked Mr. Schuster how the proposed stormwater infiltration system of
the plat would interact with the public infiltration systems that he just spoke about
(Hickman Park system and the system south of 107th Ave, both of which are
owned by the City). Mr. Shuster responded that if it (the plat infiltration system)
is designed, constructed, and maintained properly, the water from the
development will be infiltrated on the private properties in this development and
will not be connected to the City system.
Infiltration systems are always designed with an overflow in case the design storm
is exceeded (in this case the 100 -year recurrence event). Mr. Shuster's response to
the Hearing Examiner's question was directed at the Hickman Park infiltration
system only. The connection of the plat's infiltration system overflow will be
resolved during the final design and will not include a direct connection to the
city's Hickman Park infiltration system, but the overflow may be connected to the
City's overall stormwater system.
Examiner Response: The March 7, 2012 Re -Hearing Decision summarized Mr.
Schuster's oral testimony (in part) as, "Mr. Shuster stated that if the proposed
system is designed, constructed and maintained properly, it will have no effect in
terms of stormwater on adjacent properties. " At approximately 55 minutes into
the recording of the Re -Hearing the Examiner inquires of Mr. Shuster to the
effect of how this [development's] private infiltration system will interact with the
proposed public infiltration systems. Mr. Shuster responded, "If it is designed,
constructed and maintained properly, the water from this development ivill be
infiltrated on the private property within this development and will not be
connected to the City system. " The response, as it was presented at the Re -
Hearing, was to a direct inquiry into the specific interaction between the
proposed private infiltration system with respect to the existing and proposed
public improvements. It does not appear to be qualified to Hickman Park.
The more pertinent issue of this clarification is the interaction between the private
and public stormwater systems. Both Kernen Lien, Associate Planner for the City
of Edmonds, and Jeanie McConnell, Engineering Program 111Ianager for the City
of Edmonds, stated, in effect, that the stromwater design at this phase is
preliminary and that the Applicant's burden at this preliminary phase is to
provide a feasible' stormwater design. The civil construction plans will be
reviewed during the final design of the utility improvements for compliance with
Woodway Elementary Plat
and PRD Remand p. 2 Order on Reconsideration
the City's stormwater code (then -current ECDC 18.30). The Examiner
acknowledges the City's clarification with respect to the proposed private
infiltration system's overflow. However, the clarification has no direct effect on
the approvability of the Applicant's request because the requirements for
infrastructure design at the preliminary phase are based on feasibility' rather
than exact engineering specifications. The final design of the stormwater system is
not at issue here. The evidence does not suggest there has been an error of
procedure, an error of law or fact, or an error ofjudgment. The evidence does not
represent the discovery of'new evidence that was not known and could not, in the
exercise of reasonable diligence, have been discovered. The clarif cation has no
effect on and requires no modification of the Re -Hearing Decision.
2. Conclusion of Law #5: Under conclusion of law #5 it is noted that the application
is vested to the 2007 stormwater management regulations and references ECDC
18.35. The correct reference to stormwater regulation should be ECDC 18.30.
There is no Chapter 18.35 in the Edmonds Community Development Code.
Examiner Response: The City is correct to note the typographical error in
Conclusion of Law 95. The correct citation, to ECDC 18.30, is listed in six other
locations within the Re -Hearing Decision. The typographical error represents an
Error of Fact (ECDC 20.06.010(2)). Pursuant to ECDC 20.06.010(H), the Re -
Hearing Decision will be modified to reflect the correct code citation.
3. Conclusions of Law #'s 9, 10, and 11 — Perimeter buffer/setbacks: The logic
underlying the characterization of this issue is reversed. The requirement of a
perimeter buffer is triggered when the setbacks of perimeter lots vary from the
standard setbacks normally required in the zone. The revised application chose to
apply the standard RS -8 zoning setbacks to the perimeter lots. Since standard
setbacks were applied, a perimeter buffer is not required pursuant to ECDC
20.35.050.C. Thus, by applying standards RS -8 zoning setbacks, the application is
compliant with ECDC 20.35.050.C.1 and the perimeter buffer identified in ECDC
20.35.050.C.2 is not required. This is different than saying the perimeter buffer
was eliminated, thereby resulting in a change in the perimeter lot setbacks.
Examiner Response: The Re -Hearing Decision stated the following:
Conclusion of Law #9: The revised application has resulted in a change to
the proposed building setbacks. Due to the elimination of the perimeter
bier, the application has been revised to reflect alternative development
standards for building setbacks.for only the interior lots. The interior lots
will retain the alternative building setbacks approved in the 2007 Hearing
Examiner decision while the exterior lots will be built to reflect standard
building setbacks in the RS -8 zone.
Conclusion of Law #10: The revised application eliminates the perimeter
buffer and alters the setbacks on the exterior lots to conform to the
Woodway Elementary Plat
and PRD Remand p. 3 Order on Reconsideration
standard setbacks allowable in the RS -8 zone to comply with the design
criteria in ECDC 20.35.050.... The two alternative development standard
establishment criteria impacted by the revised application are the
provision of a perimeter buffer (ECDC 20.35.040(A)(1)) and the exterior
setbacks (ECDC 20.35.040(B)). The revised application has removed any
request for a reduction in the setbacks from exterior lot lines.
Conclusion ofLcnv 911: As in Conclusion of Law 910, a limited number of
the PRD decision criteria are affected by the revision of the original
application. The revised application eliminates the perimeter buffer. In
doing so, the Applicant altered the setbacks on the exterior lots to conform
to the standard setbacks allowable in the RS -8 zone. The project now
complies with ECDC 20.35.050(C). In the original application, the
Applicant overlapped the perimeter buffer with the required open space.
Both the Superior Court and the Appellate Court pointed to the plain
language of the code that prohibited the inclusion of a required landscape
buffers.from the open space total. The lot layout has not been altered since
2007 with the exception of removing the perimeter buffer and altering the
exterior lot setbacks to meet the standard setbacks in the RS -8 zone. The
resulting four open space tracts, without the landscape buffer•, are
sufficient to meet the 10% open space requirement
The purpose of ECDC 20.35.030(A)(1) is to provide opportunities to alter the
bulk development standards by compliance with ECDC 20.35.040(B) and
20.35.050(C). ECDC 20.35.050(C) is clear in that is requires a proposal to either
comply with the bulk zoning criteria of the underlying zone or provide a
landscape buffer, open space or passive use recreational area at least equal to the
depth of the rear yard setback along the exterior property line. The Examiner did
not misunderstand this requirement in her Re -hearing Decision. The Hearing
Examiner's Re -Hearing Decision recognized that the re -hearing on remand was
based on a revised application. The original 2007 Hearing Decision was based
on an application that was required to provide a perimeter buffer because the
Applicant had chosen to alter the setback requirements of the underlying zone for
exterior lots. The revised application reverted to the underlying zone setbacks for
exterior lots and thereby eliminated the need for a perimeter buffer. In doing so,
the Applicant demonstrated compliance with ECDC 20.35.050(C)(1) rather than
their prior attempt to comply with ECDC 20.35.050(C)(2). The Examiner's Re -
Hearing Decision recognized that the 2012 application is a different application
than the 2007 application with respect to lot setbacks and the presence or
absence of a perimeter buffer. However, in order to provide additional clarity, to
allay concerns related to an error of judgment (ECDC 20.06.010(3)), and
pursuant to ECDC 20.06.010(H), the Re -Hearing Decision will be modified.
Woodway Elementary Plat
and PRD Remand p. 4 Order on Reconsideration
I' 1
After further review and consideration of the Request for Reconsideration by the
City, the Record for the instant matter, and the Findings and Conclusions set forth in
the March 7, 2012 Re -Hearing Decision of the Hearing Examiner, the Hearing
Examiner finds:
1. The City's Request for Reconsideration as to issue #1 above (Discussion) is a
point of clarification that does not meet the requirements of ECDC 20.06.010.
This issue requires no action with respect to the Hearing Examiners Re -Hearing
Decision. The Request for Reconsideration is denied as to issue #1 above
(Discussion).
2. The Request for Reconsideration is affirmed as to issue #2 above (Discussion).
The Re -Hearing Decision is hereby modified to correct the typographical error in
Conclusion of Law #5 as noted in underline/strikeout below.
5. Review Criteria and Application. The Applicants seek approval of
a preliminary plat (vested to 2007 ECDC 20.75) and a Planned Residential
Development (vested to 2007 ECDC 20.35). The application has been
remanded by the Appellant Court on the basis of three issues: perimeter
buffer, open space and drainage. Development regulations pertinent to the
application also include stormwater management (vested to 2007 ECDC
-1-8.3518.30 and addressed as part of the preliminary plat approval criteria),
critical areas (vested to 2007 ECDC 23.40) and single family residential
restrictions (vested to 2007 ECDC 16.20). The issues of single family
residential restrictions and critical areas were reviewed in 2007 as part of
the original decision (Exhibit 1, Attachments 2007-1, 2007-2 and 2007-
12). The scope of the Appellate Court remand did not include a re -review
of compliance to then -current ECDC 16.20 or ECDC 23.40 beyond that
necessitated by revisions to the original application. Neither of these
issues was affected by the revised application. As noted in Conclusion of
Law #2 above, those issues that are not specifically related to the
Appellate Court's remand are outside the scope of this decision.
3. The Request for Reconsideration is affirmed as to issue #3 above (Discussion).
The Re -Hearing Decision is hereby modified by replacement of the text for
Conclusion of Law #9 with the following.
9. The revised application has resulted in a change to the proposed
building setbacks. The Applicant proposes to comply with the setback
requirements for the RS -8 zone for all exterior lots. The application has
been revised to reflect alternative development standards for building
setbacks for only the interior lots. The interior lots will retain the
alternative building setbacks approved in the 2007 Hearing Examiner
Woodway Elementary Plat
and PRD Remand p. 5 Order on Reconsideration
decision while the exterior lots will be built to reflect standard building
setbacks in the RS -8 zone.
4. The Request for Reconsideration is affirmed as to issue #3 above (Discussion).
The Re -Hearing Decision is hereby modified by replacement of the text for
Conclusion of Law #10 with the following.
10. The revised application conforms to the standard setbacks
allowable in the RS -8 zone for all exterior lots. The revised application
conforms to ECDC 20.35.050(C)(1). Compliance with ECDC
20.35.050(0)(2) is no longer required. No other substantive changes are
proposed beyond the resizing of the stormwater vault. The storrawater
vault is underground and does not affect the visual character of the PRD.
The two alternative development standard establishment criteria impacted
by the revised application are the provision of a `greater buffering of
buildings, parking and storage areas than would otherwise be provided
through the subdivision process' (ECDC 20.35.040(A)(1)) and the
alteration of exterior setbacks (ECDC 20.35.040(B)). The revised
application has removed any request for a reduction in the setbacks from
exterior lot lines. As noted in the Staff Report (Exhibit 1, page 6), pursuant
to MDNS Condition #4 (Exhibit 1, Attachment 9 of Attachment 2007-1)
additional landscaping will be provided along the exterior perimeter of the
PRD to act as visual buffering. All other alternative development standard
establishment criteria are met in the 2007 Hearing Examiner Conditions of
Approval (Exhibit 1, Attachment 2007-2) as adopted herein and amended
where noted below.
5. The Request for Reconsideration is affirmed as to issue #3 above (Discussion).
The Re -Hearing Decision is hereby modified by replacement of the text for
Conclusion of Law #11 with the following.
11. As in Conclusion of Law #10, a limited number of the PRD
decision criteria are affected by the revision of the original application.
The revised application conforms to the setback requirements of the
underlying RS -8 zone for all exterior lots and thereby eliminates the
requirement for a perimeter buffer. The revised project complies with
ECDC 20.35.050(C). In the original application, the Applicant overlapped
the then -required perimeter buffer with the required open space. Both the
Superior Court and the Appellate Court pointed to the plain language of
the code that prohibited the inclusion of a required landscape buffers from
the open space total. The lot layout has not been altered since 2007 with
the exception of removing the proposed perimeter buffer and altering the
exterior lot setbacks to meet the standard setbacks in the RS -8 zone. The
resulting four open space tracts, without the landscape buffer, are
sufficient to meet the 10% open space requirement.
Woodway Elementary Plat
and PRD Remand p. 6 Order on Reconsideration
Dated this 19"' day of March, 2012,
Emily Terrek, AICP
Edmonds Hearing Examiner Pro Tem
Pursuant to ECDC 20.03.010(G), the effect of this decision is to recommence the time
period for appeal for all parties. This decision is not subject to a motion for
reconsideration.
This decision is final and subject to appeal to the City Council by closed record review
as governed by ECDC 20.01.003(B). Appeal deadlines are short (14 days from
issuance of the decision) and the courts strictly apply the procedural requirements for
filing an appeal.
Woodway Elementary Plat
and PRD Remand p. 7 Order on Reconsideration