HE_Decision_PLN20150052.pdf1
CITY OF EMMOiS
1215 1h Avenue North, Edmonds WA 98020
Phone: 425.771.0220 . Fax: 425.771.0221 • Web: www.edmondswa
DEVELOPMENT SERVICES DEPARTMENT • PLANNING DIVISION
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8 BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
9 Phil Olbrechts, Hearing Examiner
10 RE: Kent Dietz
11 FINDINGS OF FACT, CONCLUSIONS
Critical Area Reasonable Use OF LAW AND FINAL DECISION
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13 PLN20150052
14 INTRODUCTION
15 The applicant requests a reasonable use variance in order to construct a single-family home
with a 336 square footprint within the 100 -foot critical area buffer of Shell Creek. The
16 reasonable use request is approved subject to conditions.
17 ORAL TESTIMONY
18
Note: This hearing summary is provided as a courtesy to those who would benefit from a
19 general overview of the public testimony of the hearing referenced above. The summary is
20 not required or necessary to the decision issued by the Hearing Examiner. No assurances are
made as to completeness or accuracy. Nothing in this summary should be construed as a
21 finding or legal conclusion made by the Examiner.
22
23 Kernen Lien, Edmonds Senior Planner, summarized the proposal. In response to
examiner questions, Mr. Lien noted that City regulations and recommended conditions
24 don't require that the conditions of approval be recorded against the property.
25 Kent Dietz, applicant, noted that the reason the buffer enhancement areas aren't larger
is because the rest of the property wouldn't benefit from any improvements. The
remaining area is already native growth.
Reasonable Use Variance P. 1 Findings, Conclusions and Decision
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Lynnette Callahan, neighboring property owner, noted that the site is not an attractive
nuisance as alleged in the exhibits. She has never seen the property serve as an
attractive nuisance. Neighboring property owners were not sent letters about the
proposal, only adjacent property owners. She saw approval as a slippery slope where
it could lead to other variance requests. There have been multiple owners of the
property who have all had to accept that development of the property is restricted.
Removal of the trees will cause stormwater problems.
Vi Walls, neighbor, asked questions about the proposal. She noted that she lives on
top of a hill and she used to dump her yard waste over her fence and was told she could
not do so, apparently because of the presence of critical areas.
Scott Blomenkamp, citizen, testified that the review process was in violation of WAC
197-11-340(2)(a), which prohibits an agency from acting on a proposal within 14 days
of the issuance of the SEPA determination. The city set a hearing and prepared a staff
report within that 14 -day period. He also stated that an appearance of fairness
presentation should have been made at the beginning of the hearing. Mr. Blomenkamp
believed that the City tends to overly rush development projects.
In rebuttal, Mr. Lien stated that Ms. Callahan was referring to a letter submitted by the
applicant on the issues regarding letters sent to adjoining property owners and the
property serving as an attractive nuisance.
Kent Dietz stated in rebuttal that the amount of trees being removed is minimized. He
noted that his comments about the property being an attractive nuisance were based
upon information given to him from neighboring property owners and also that every
time he goes to the property he has to close the gate. Neighbors have told him that the
property is often frequented by young people.
EXHIBITS
Exhibit 1 Staff report dated March 17, 2016 with 39 attachments.
Exhibit 2 Staff power point.
Exhibit 3 Email from Lynnette Callahan dated March 23, 2016
Exhibit 4 Schenk reasonable use decision -- PLN 20130044; 20140008.
Staff sent an email to the examiner dated March 24, 2016 stating that a letter had been
submitted to the City's planning counter at 3:50 pm on March 24, 2016. Since the
hearing was already closed at that time and hearing participants did not have an
opportunity to respond to the letter, the letter was not admitted into the record.
Although the letter was emailed by staff to the examiner, the examiner did not read the
letter and has no knowledge of its contents.
Reasonable Use Variance p. 2 Findings, Conclusions and Decision
2 1 Procedural:
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FINDINGS OF FACT
1, Applicant. The applicant is Kent Dietz.
2. Hegi g. A hearing was held at 3:00 pm on March 24, 2016 at the Edmonds
City Council meeting chambers.
Substantive:
3. Site' M osal l escri tiorg,. The applicant requests a reasonable use variance
in order to construct a single-family home with a 336 square footprint within the 100 -foot
critical area buffer of Shell Creek. The property is located at 742 Daley Street and has
steep slopes along the west side of the property and Shell Creek runs across the northeast
corner of the property. Shell Creek is identified as an anadromous fish bearing stream
which has 100 foot stream buffers pursuant to Edmonds Community Development Code
(ECDC) 23.90.040.D. Given the entire property is encompassed by the stream buffer, the
applicant is pursuing a critical area reasonable use variance to develop the site.
4. Characteristics of the Area. The subject site is located within a single-
family residential neighborhood in Edmonds. The site is one of the few undeveloped
parcels in the area and is completely surrounded by parcels that are currently developed
with single-family residences. The site and surrounding properties are located within
the RS -6 (Single -Family Residential) zone. North of the neighborhood is the Holy
Rosary Church and School site, which is zoned RS -12. West of the neighborhood
across 7th Avenue North is property zoned RM -1.5 (Multi -Family) that is developed
with a mix of multi -family and single family residences.
5. Adverse Impacts, As mitigated, impacts to Shell Creek will be minimized
and stream functions and values will be maintained. No other significant adverse
impacts are anticipated.
The two primary impacts of concern are to Shell Creek and a landslide hazard located
on the property. As noted in the critical areas report, Ex. 1, att. 5, the proposal will
result in unavoidable stream buffer impacts. As noted in the report and evident from
its references to credible scientific studies, the report is based upon best available
science. Since the entire property is encumbered by Shell Creek or its 100 foot buffer,
there is no way to build a home on the property without encroaching into the buffer.
To compensate for these impacts, the critical areas report recommends 1,617 square
feet of stream buffer enhancement with native trees and shrubs. The critical areas
report also recommends a five-year monitoring plan. The home is also located as far
as possible from the stream itself and the size of the residence's building footprint is
far smaller than that of neighboring properties or sizes usually associated with single-
family homes. A split rail fence will also be installed close to the home to ensure that
no clearing or other development activity occurs outside of the footprint area. In
Reasonable Use Variance p. 3 Findings, Conclusions and Decision
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addition to adopting all of the critical area report recommendations, this decision will
also require that the buffer restrictions be recorded to provide notice to subsequent
property owners and to facilitate enforcement. As designed and mitigated, the critical
areas report concludes that the functions and values of the Shell Creek will be
maintained. There being no evidence to the contrary and given the expertise of the
report and minimized design impact, it is determined that the proposal will maintain
Shell Creek functions and values.
As previously noted, the southwest corner of the property has steep slopes. These
slopes meet or exceed 40% grade and therefore qualify as landslide hazard areas
pursuant to ECDC 23.80. The applicant had a geotechnical report prepared for the
proposal, which determined that the proposal would have no adverse impacts to slope
stability and would improve slope stability due to the proposed reinforced concrete
foundation and drainage controls. The proposed site work also includes slope
stabilization measures composed of gabion walls, which the geotechnical report
describes as a wire basket of rocks. There being no evidence to the contrary and given
the expertise of the geotechnical report, it is determined that the proposal will not
adversely affect slope stability.
The proposal is fully compatible with surrounding homes. As noted in the critical areas
report, Ex. 1, att. 5, the proposed home is significantly smaller than surrounding homes
and the applicant is proposing a single-family home in an area zoned and developed
with single-family use. As noted in the staff report, the residence is not likely to
adversely affect the views of existing homes since the home will be located on the
downhill side of a steep slope.
There was some concern about the removal of trees, but there is no evidence to suggest
that this removal will create any significant adverse impacts. The amount of trees that
will be removed is not identified with any specificity in the record, except for a
comment in the environmental checklist that a large maple tree will be removed. The
area to be cleared is only about 800 square feet and the required mitigation involves
enhancing 1,689 square feet, which includes the installation of 15 native trees. Given
the determination in the critical areas report that the functions and values of the stream
will be maintained, the minimal amount of clearing proposed and the absence of any
evidence to the contrary, it is determined that removal of the trees will not create any
significant adverse impacts.
6. Minknum Reasonable Use. Finding of Fact No. 6 of the Schenk decision contains
a detailed analysis of how to determine minimum reasonable use for the subject
property. Although in this case the purchase price for the subject property was $20,000
instead of the $95,000 to be paid by Mr. Schenk, the analysis is otherwise the same. As
was the case for the $95,000 purchase price, Mr. Dietz will certainly have no trouble
realizing a reasonable economic return on his property if he is allowed to build a single-
family home of minimum dimensions on the subject property. As determined in the
Schenk decision, specifically footnote 3 of that decision, a home with a first floor limited
to a two car garage would constitute minimum reasonable use with a building footprint
Reasonable Use Variance p. 4 Findings, Conclusions and Decision
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of 626 square feet. Although the Schenk application proposed a 626 square footprint,
it was denied because it had an extensive second floor overhang that would adversely
affect the stream buffer. In this application the applicant proposes a 336 square foot
building footprint, but instead of in a garage he proposes to place the parking spaces on
the proposed 460 square foot driveway. The administrative record does not contain any
information on the dimensions of the size of the driveway proposed in the Schenk
application, however from the minimal size of the driveway proposed for this
application it does not appear likely that Mr. Schenk's driveway would have been
significantly less in area. From all of these considerations it is determined that the
proposal constitutes a minimum reasonable use of the property.
CONCLUSIONS OF LAW
Procedural:
1. Authority of I -fearing Examiner. ECDC 20.85.020 provides the Hearing
Examiner with the authority to review and act upon variance applications as Type III-
A.
Substantive:
2. Zoning Designations. The area is zoned Single -Family Residential (RS -6).
3. Review Criteria and Application. Reasonable use exceptions to critical area
stream buffers are governed by ECDC 23.40.210(A)(2) and 23.40.210(B). Applicable
criteria are quoted in italics below and applied through corresponding conclusions of
law.
ECDC 23.40.210(A)(2)(a): The application of this title would deny all reasonable
economic use of a property or subject parcel;
"Reasonable economic use(s)" is defined pursuant to ECDC 23.40.320 as follows: "The
minimum use to which a property owner is entitled under applicable state and federal
constitutional provisions in order to avoid a taking and/or violation of substantive due
process. "Reasonable economic use" shall be liberally construed to protect the
constitutional property rights of the applicant. For example, the minimum reasonable use
of a residential lot which meets or exceeds minimum bulk requirements is use for one
single-family residential structure. Determination of "reasonable economic use " shall not
include consideration of factors personal to the owner such as a desire to make a more
profitable use of the site. "
10. Under the definition above, there is no question that the stream buffer denies the
applicant all reasonable use of the subject property. The subject lot meets minimum bulk
and dimensional standards in the RS -6 zoning district. Consequently, a single family home
qualifies as a minimum reasonable use under the definition. The property is completely
encumbered by the stream or stream buffer and City regulations prohibit the construction
Reasonable Use Variance p. 5 Findings, Conclusions and Decision
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of a home within a critical areas buffer. Consequently, the City's critical area regulations
are depriving the applicant of all reasonable use of the property.
ECDC 23.40.210(A)(2)(b): No other reasonable economic use of the property consistent
with the underlying zoning and the city comprehensive plan has less impact on the critical
area;
11. The criterion is met. As concluded in Conclusion of Law No. 10, a single-
family home is defined as a minimum reasonable use for the subject property. As a
minimum reasonable use, no other type of reasonable use could be required for the property
unless it allowed for a greater economic return on the property. As outlined in ECDC
16.20.010, more intense uses allowed for the subject property include uses such as churches
and schools and none of those uses could be accommodated on the applicant's relatively
small lot. None of these types of uses could be construed as creating less impact to critical
areas. If the "other reasonable use" referenced in the criterion above encompasses different
project design as opposed to different types of uses, then as determined in Finding of Fact
No. 6 the applicant has established compliance with the criterion since the project design
encompases the least area and impact that could be reasonably required for a single-family
home.
ECDC 23.40.210(A)(2)(c): The proposed impact to the critical area is the minimum
necessary to allow for reasonable economic use of the property;
12. The criterion is met. Conclusion of Law No. 12 of the Schenk decision contains a
detailed legal analysis of what constitute minimum reasonable economic use, which
involves a balancing of the public interest in enforcement of the City's critical area
reglations verses the economic impact on the property owner. As determined in Finding
of Fact No. 6, a balancing of these factors conclusively demonstrates that the proposal does
in fact constitute the minimum necessary for reasonabe use of the property. The criterion
is met.
ECDC 23.40.210(A)(2)(d): The inability of the applicant to derive reasonable economic
use of the property is not the result of actions by the applicant after the effective date of the
ordinance codified in this title or its predecessor;
13. The criterion is met. The inability to derive reasonable use is wholly
attributable to the critical areas ordinance, which encumbers the entirety of the subject lot
with a stream buffer.
ECDC 23.40.210(A)(2)(e): The proposal does not pose an unreasonable threat to the
public health, safety, or welfare on or off the development proposal site;
14. The criterion is met. As determined in Finding of Fact No. 5, there are no
significant adverse impacts associated with the proposal. This conclusion could not be
reached in the Schenk decision because the critical areas study prepared for the Schenk
appication was based upon an inaccurate critical areas classification of Shell Creek.
ECDC 23.40.210(A)(2)(f): The proposal minimizes net loss of critical area functions and
values consistent with the best available science; and
Reasonable Use Variance p. 6 Findings, Conclusions and Decision
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15. The criterion is met. As determined in Findings of Fact No. 5 and 6, the
proposal minimizes impacts to critical areas and the critical areas analysis upon which these
conclusions were drawn was based upon best available science. See Ex. 1, att. 5.
ECDC 23.40.210(A)(2)(g): The proposal is consistent with other applicable regulations
and standards.
16. As noted in the staff report, staff has determined compliance with all
applicable development standards and there is no evidence to the contrary.
ECDC 23.40.210(B)(1): Special conditions and circumstances exist that are peculiar to
the land, the lot, or something inherent in the land, and that are not applicable to other
lands in the same district;
17. The property is completely encumbered with critical area buffers, which
qualifies as a special condition and circumstance. Most lots in the vicinity and district are
not fully encumbered by critical area buffers.
ECDC 23.40.210(B)(2): The special conditions and circumstances do not result from
the actions of the applicant;
18. The criterion is met. See COL No. 13
ECDC 23.40.210(B)(3): A literal interpretation of the provisions of this title would
deprive the applicant of all reasonable economic uses and privileges permitted to other
properties in the vicinity and zone of the subject property under the terms of this title, and
the variance requested is the minimum necessary to provide the applicant with such rights;
19. The criterion is met. See COL No. 10.
ECDC 23.40.210(B)(4): Granting the variance requested will not confer on the
applicant any special privilege that is denied by this title to other lands, structures, or
buildings under similar circumstances;
20. The criterion is met. Authorizing the variance would enable the applicant to
build a single-family home in a single-family neighborhood that is developed and zoned
for single-family use.
ECDC 23.40.210(B)(5): The granting of the variance is consistent with the general
purpose and intent of this title, and will not further degrade the functions or values of the
associated critical areas or otherwise be materially detrimental to the public welfare or
injurious to the property or improvements in the vicinity of the subject property; and
21. The criterion is met. As determined in Finding of Fact No. 5, the applicant has
demonstrated that the proposal will maintain the functions and values of Shell Creek and
will not adversely affect slope stability of on-site steep slopes. The proposal will not be
materially detrimental to the public because as determined in Finding of Fact No. 5 it will
not create any significant adverse impacts.
Reasonable Use Variance p. 7 Findings, Conclusions and Decision
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ECDC 23.40.210(B)(6): The decision to grant the variance is based upon the best
available science and gives special consideration to conservation or protection measures
necessary to preserve or enhance anadromous fish habitat.
22. The criterion is met. As determined in Findings of Fact No. 5 and 6, the
proposal minimizes impacts to critical areas and the critical areas analysis upon which these
conclusions were drawn was based upon best available science. See Ex. 1, att. 5.
Miscellaneous Issues
23. Appearance of fairness "Scri . t''. One of the hearing participants expressed some
confusion about the absence of an appearance of fairness "script" in the hearing that is
typically used in City Council and Planning Commission hearings. These scripts are usually
comprised of the presiding officer asking if any members of the decision making body have
engaged in any ex parte communications or have any association with the application that
could make them appear to be biased. These scripts are recommended for multimember
bodies but are not mandated by state law. The scripts are recommended because if a
potential appearance of fairness violation is disclosed and no objection is made from the
audience, the city or county has immunized itself from challenge. If an objection is not
timely made, it is considered waived and cannot be raised on appeal. See Lakeside
Industries v. Thurston County, 119 Wn. App. 886 (2004); King County v. Central Puget
Sound Growth Management Hearings Board, 91 Wn. App. 1 (1998), partially reversed
on other grounds, 138 Wn.2d 161 (1999); RCW 42.36.080. Of course, there is no point
in a hearing examiner going through a script and asking himself questions about whether
he has engaged in ex parte contacts or has any associations with a project if the examiner
has not made any such contacts and has no association with the application. In this case
the examiner had no ex parte contacts or associations with the project beyond reviewing
the prior Schenk application, which would likely not be considered an appearance of
fairness issue (although the examiner did disclose and enter the Schenk decision in any
event). Consequently, there was no duty to go through any script or go through
disclosures.
24. SEPA Review. It was also argued during the hearing that the City violated WAC
197-11-340(2)(a) by scheduling the application hearing and issuing a staff report within
14 days of issuance of the DNS. WAC 197-11-340(2)(a) provides that a municipality
may not "act" on an application within 14 days of the issuance of a DNS. This issue
cannot be resolved by the hearing examiner because the examiner has no jurisdiction to
address SEPA compliance issues absent an appeal of the issuance of the DNS.
DECISION
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The reasonable use variance is approved, subject to the following conditions:
1. The applicant is responsible for seeking and obtaining all other required local, state
and federal permits.
2. The mitigation measures detailed in the Critical Areas Study and Mitigation Plan
prepared by Wetland Resources, Inc. revised on January 7, 2016 contained in
Attachment 20 of this staff report must be implemented prior to issuance of
Certificate of Occupation for the residence constructed consistent with this
approval.
3. Signs shall be installed on the fence delineating the setback area from the critical
area buffer. The signs shall be consistent with the requirements of ECDC
23.90.030.F.2.a.
4. At time of building permit application, the applicant shall provide an updated
estimate for the cost of plant materials, labor, monitoring, and maintenance. This
shall be used as the basis for a maintenance bond which will be 15% of the estimate.
The maintenance bond must be secured prior to issuance of Certificate of
Occupation.
A monitoring report must be submitted to the City of Edmonds for each of the five
year monitoring periods. The monitoring report shall document milestones,
success, problems, and contingency actions required to ensure success of the
mitigation.
6. Compliance with Engineering codes and construction standards will be reviewed
with the building permit application for development of the site. The applicant is
encouraged, wherever feasible, to incorporate pervious pavements, rain gardens
and/or other low impact development techniques into the project design.
7. The City of Edmonds has two easements that encumber the subject property.
One is for the construction, maintenance and repair of said stream channel and
the other is a utility easement for installation, operation and maintenance of a
fish ladder and diversion structure. Please refer to recording documents
#8207160100 and #9003150306, respectively. Easement areas shall also be
shown on any future building permit applications.
8. The conditions of approval shall be recorded upon the property with express
reference to the restriction that no development activity or other disturbance
of the area outside the rail fence is allowed except as authorized by the City's
critical area regulations. The recording document shall be approved by
planning staff and recorded prior to occupancy.
Reasonable Use Variance P. 9 Findings, Conclusions and Decision
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Dated this 7th day of April, 2016.
Edmonds Hearing Examiner
Appeal ;light and Valuation Notices
This land use decision is final and subject to closed record appeal to the City Council as
authorized by ECDC 20.01.003. Appeals must be filed within 14 days of the issuance of
this decision as required by ECDC 20.07.004(B). Reconsideration may be requested
within 10 calendar days of issuance of this decision as required by ECDC 20.06.010.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Reasonable Use Variance P. 10 Findings, Conclusions and Decision