HE_Decision_Reasonable Use and Variance -- Schenk.pdf
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121 5 Avenue North, Edmonds WA 98020
www.edmondswa.gov
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DEVELOPMENT SERVICES DEPARTMENT PLANNING DIVISION
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BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
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Phil Olbrechts, Hearing Examiner
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RE: Jordan Schenk
FINDINGS OF FACT, CONCLUSIONS
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OF LAW AND FINAL DECISION
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PLN20130044 (critical areas)
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and PLN2014000 (height
variance)
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INTRODUCTION
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The applicant requests a reasonable use exception to build a single-family home
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within the 100 foot critical areas buffer of Shell Creek and a height variance to build
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the home ten feet above the applicable 25 foot height limit. Both applications are
denied because the applicant is not proposing a minimum reasonable use of his
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property and because his biological assessment of stream impacts is based upon the
incorrect premise that Shell Creek is a non-anadromous fish bearing stream with a 75
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foot buffer. The findings and conclusions of this decision start at page 15, after a
20 summary of hearing testimony.
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ORAL TESTIMONY
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ƓƚƷ ƩĻƨǒźƩĻķ ƚƩ ƓĻĭĻƭƭğƩǤ Ʒƚ ƷŷĻ ķĻĭźƭźƚƓ źƭƭǒĻķ ĬǤ ƷŷĻ IĻğƩźƓŭ 9ǣğƒźƓĻƩ͵ bƚ ğƭƭǒƩğƓĭĻƭ
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ğƩĻ ƒğķĻ ğƭ Ʒƚ ĭƚƒƦƌĻƷĻƓĻƭƭ ƚƩ ğĭĭǒƩğĭǤ͵ bƚƷŷźƓŭ źƓ Ʒŷźƭ ƭǒƒƒğƩǤ ƭŷƚǒƌķ ĬĻ ĭƚƓƭƷƩǒĻķ ğƭ
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Reasonable Use and Variance p. 1 Findings, Conclusions and Decision
KernenLien, Edmonds planner,stated that this hearing deals with two variance
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applications. One is a critical area variance. During review the applicant considered a
different number of alternatives to minimize critical area impact and he settled on a
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height variance (the second variance) which is a request to construct the house to 35
feet. Because these variances are intertwined they have been combined for review by
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the hearing examiner. The subject property is located at 742 Daley Street. Shell
Creek cuts through the property. There are also steep slopes buffering the property.
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There is a 100 foot buffer to Shell Creek. The entire property is encumbered by
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critical area buffers. He submitted the staff report for the record as Exhibit 1. With
regard to some specifics of the subject site, the slopes are greater than 40% which
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makes it a potential landslide hazard. A critical area variance is required to develop
on this property. The proposed house has a 720 sqft. footprint but it also includes
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some overhangs to the south and towards the stream. There is a tandem garage on the
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bottom with two floors of living space above. The property is zoned R6. Shell Creek
runs from Yost Park to Puget Sound.
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When the application for the critical area variance was made to the city, according to
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Mr. Lien, Shell Creek was considered a non-anadromous fish bearing stream based on
a report done in 2005. Attachment 24 in the staff report references the Landau report,
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which stated that above Casper Street it was non-anadromous (staff showed a GIS
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map with critical area layers, attachment 58 from the staff report). Mr. Lien stated
that city staff has taken photos of salmon upstream from Caspar Street in 2012 at 7th
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and Glenn Street. The staff determined that this section of Shell Creek should be
considered an anadromous fish bearing stream. This means that a 100 foot buffer is
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required in this area. With regard to reasonable economic use, Mr. Lien stated that
this was vested to the definition that was in place when the application is made was
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made. The code has since changed (ECDC 2040.210.B2). The staff report contains a
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detailed analysis of all the criteria necessary for the variance. Mr. Lien then stated
why the applicant had been unable to demonstrate reasonable economic use. The site
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is entirely encumbered by critical area buffers. The city asked the applicant to
demonstrate whether or not there was another reasonable economic use for the site.
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For example, could a sale to a neighbor be considered a reasonable economic use to
the site? Easements from the lots had been sold to neighbors in the past. Mr. Lien
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noted that the applicant did not believe that sale to a neighbor would be a reasonable
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economic use. The site had been on the market on and off since 2008. The applicant
is not the property owner, currently; however, he is under contract based on the
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granting of the variance. Mr. Lien questioned whether the applicant had the same
expectations as an owner-applicant. He also noted that the staff was not basing their
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recommendation solely on whether another reasonable economic use could be made
with the property.
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According to Mr. Lien, the staff questioned whether there could be an improvement
which had less impact on the area. The proposal is for a residence which is 80% of
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the average square foot of the average residence in the area. The code does not
suggest that a home of a certain size, shape, or footprint is required. Reasonable
economic use does not consider whether making a more profitable use of the site is
Reasonable Use and Variance p. 2 Findings, Conclusions and Decision
reasonable economic use criteria.A larger house maybe making more profitable use
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of the site. The city asked the applicant to consider other options. While using
potential alley access was deemed too narrow, the applicant considered a number of
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house designs. Attachments 35 through 40 in the staff report show a number of
different house designs, using various overhangs. The minimum use proposals shown
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by the applicant are found in attachments 35 and 36. The current proposal has that
basic footprints, but has large overhangs that impacts the critical area. Mr. Lien noted
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that the roof area of will have an effect on the critical impact area and the staff feels
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that there are other options. The applicant has shown that another house could be built
that had less of an impact has shown that this is not the
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minimum area.
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Regarding ECDC 2238.210. Mr. Lien noted that the use limitations are based on the
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critical areas of the site and that the applicant entered into a purchase and sale
agreement with full knowledge that the site was limited by critical area issues. The
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applicant was aware of the complications of getting the critical area variance.
Reasonable economic use is not assoce
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profitable use of the site and t
preference. The staff noted that the applicant submitted a number of mitigation plans
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to reduce impact to the stream and critical area. There was an impact report that the
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proposed house would not have impacts on or off the site. The fact that the house is
buffered by critical areas means that it could pose some threat. Mr. Lien stated that
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any request for critical area variances potentially poses some threat to health, safety,
and welfare. Because there is not a reason to build home larger than the minimum that
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is necessary the staff decided that this caused an unreasonable threat to public health,
safety, and welfare. The staff does not feel that there is enough data to determine
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whether there is another reasonable economic use. There could be another single
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family house constructed that would have less impact. The proposed application is
not the minimum necessary. Staff concluded that the applicant does not comply with
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this code section. With regard to special privileges, the staff noted that the size of the
subject site is similar to other sites in Edmonds that are not encumbered by critical
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areas. At one point in time this property was advertised for over $400,000. It is
currently under contract for $95,000. Given the discounts, staff believes that granting
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this variance would confer a special privilege to the applicant. The house should be
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consistent with other houses not encumbered by a critical area, and granting a height
variance would confer special privilege. Given these elements, the staff suggests that
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the applicant is looking for more profitable use and therefore does not meet the
criteria. With regard to consistency with the zoning ordinance, the applicant complies
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with a number of them. The staff does not believe that the height variance would
impact views and would preserve other natural features. However, the applicant
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could build a house with less impact; this is not the minimum necessary.
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In regard to the livable square feet of the home, Mr. Lien reported that it was 2970
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sqft, and that the average in the area was 3400-3500 sf.
Reasonable Use and Variance p. 3 Findings, Conclusions and Decision
In regard to the minimum square feet needed to be Jeff
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Taraday replied that it should meet the required standards for a single family home,
that there were two off-street parking spaces required, which the applicant had
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provided for in the 720 sqft footprint. Mr. Taraday stated that the drawings of the
garage footprint are larger than necessary to include the parking spaces and
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circulation that would allow access to the second floor. He stated that the minimum
ground disturbance are that would be required and what is necessary for the minimum
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number of parking spaces.
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In regard to when the current owner bought the property, Mr. Lien replied that he
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would have to look in the record.
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Applicant Testimony
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Mr. Schenk stated that this variance application is for 742 Daily St. The lot size is
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10,454 sqft. and zoning is single family, RS-6. The site is located within the riparian
buffer, Shell Creek. His request is for a critical area variance and a height variance.
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Not all of the slope at Shell Creek is considered critical area. Recent photos taken
yesterday show invasive species on site as well as a culvert with a rotting deck
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connected to a chain-link fence. City Code, its primary use is
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single-family residential. Mr. Schenk then went through the basic data provided in his
attached presentation (Exhibit 2). He discussed the height variance as his one non-
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standard development request, and went into the background of the critical area,
discussing its prior classification as a non-anadromous fish bearing stream and its
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change to an anadromous stream. He discussed the development changes that this
entailed, including a change from a 75 to a 100 foot buffer. Mr. Schenk noted that the
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findings presented to Edmonds in 2006, based on city employees siting of salmon in
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the creek, were not investigated further.
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With regard to the reasonable economic use, Mr. Schenk stated that exception 3931
was passed July 2, 2013, and ordinance 3952 amended the definition of reasonable
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economic use. Reasonable economic use is to defend and protect the rights of the
property owner. He noted that a determination of reasonable economic use should not
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include what is personal to the owner. In the first variance request submitted July 1,
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2013, the house design meets or exceeds all requirements. Mr. Schenk, using the data
provided on his PowerPoint (Exhibit 2), demonstrated the location and details of the
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proposed house on site as originally proposed which he stated met original standards.
After the submission he learned that he needed the 100 foot buffer and that Shell
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Creek had been deemed an anadromous stream. He met with the city for design
working sessions in order to create a design that everyone would support. He stated
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that he was told by the city attorney and planner that variances would be considered if
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critical area issues were met. On January 10, 2014 Mr. Schenk submitted a proposal
based on the design meetings. The changes and specifics of this new design are noted
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in the PowerPoint and compared to the prior design. The cantilevers and overhangs
from the new design are also noted. These include a decrease in the footprint and
increase in the critical area buffer, a decrease in the house living area, etc. He
Reasonable Use and Variance p. 4 Findings, Conclusions and Decision
considers this design best for reasonable economic use because the height variance
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allows for greater critical area buffers. He stated that on January 10, 2014 this
revision was consistent with group discussions. He was initially told that the staff
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report recommended approval, but was then informed that city planner had rejected
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the plan. No explanation was given as it was considered a red line report. On June 4
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the applicant was finally given information is to why the application was rejected
which was one hundred and ten days later.
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Mr. Schenk then provided a summary (detailed in Exhibit 2) as to why his application
meets requirements and should be approved. He noted the overall benefits to the site,
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its reasonable economic use of the site, and its buffer for critical area requirements.
He noted that 58% of the site will be dedicated to the buffer, more than any other
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property in the immediate area. By granting the height variance this allows for a
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smaller footprint. In addition, the cantilevers and overhangs allow for a smaller
footprint as well. He argued that the design minimizes impact to the site; that no view
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corridors will be blocked. Mr. Schenk also stated that the site was currently an
eyesore in the neighborhood. The chain-link fence and deck are falling down. It is
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overrun by invasive species. There are limitations to the functions of riparian habitat.
It has become a dumping ground for neighborhood yard waste. Buffer planning and
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management will improve riparian buffer habitat. It will increase species diversity
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and improve the walking path.
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With regard to page 25 of the staff report, Mr. Schenk proceeded to address all the
objections from the staff report (as noted in his presentation, Exhibit 2). He made
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used to make
determinations about structure size. He stated that minimum use to which a property
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owner is entitled, and that ideas of minimum use and reasonable economic use should
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not include personal ideas of use. He noted that a variance is the minimum necessary
to allow rights to property owners, and, that in this case, minimum use is defined as a
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reasonable economic use such as a single family residential structure. This is not a
proposal of an alternative use, this is clearly a minimum use that is designed with
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minimum impact to a critical area. His design has used the best available science and
the plan enhances habitat area.
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With regard to the house size, Mr. Schenk noted that he met with staff in design
review session resulting in three separate house plans. Mr. Schenk utilized data from
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his PowerPoint to discuss minimum and maximum guidelines for the house size. He
stated that the design was developed during working sessions with the goal of
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following guidelines while creating a design that would be similar to others in the
area. He also provided data from sales records pulled for single family homes and
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used these as a data set to demonstrate that the house size is less than the average of
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both the neighborhood and the City of Edmonds.16.005001 (Code of Tax Area).
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Mr. Schenk stated that not granting single family residence that meets criteria is
denying reasonable economic use. With regard to the staff argument that the applicant
is not the property owner, he argues that he currently does not have a primary
Reasonable Use and Variance p. 5 Findings, Conclusions and Decision
residence and thatthe proposed residence will be his primary residence. Mr. Schenk
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He stated
that the staff was informed that this will be his primary residence. As to staff
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suspicion that this purchase price of $95,000 is less than market price, the applicant
believes that this is without basis or merit. The 2013 assessed value was $83,000. As
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to staff suggestion that he has unreasonable investment-based expectations, the
applicant noted easements sold on property had limited impact on the property. The
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2006 sale was the last sale of the property for $270,000 at height of the market. A
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2006 easement was sold and did not impact property value. He argued that economic
use is a single family use and that the staff report denial is a denial of reasonable
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economic use. As to the staff report comment that an alternative single-family
residence might be a reasonable economic use, the applicant stated that this
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is in fact the same use. While the staff report suggests that an
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alternative house plan would have less impact to the critical area, the proposed
footprint is minimum required for onsite parking by code. The search results
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comparing size of house passes the reasonableness test for the R6 zone and city of
Edmonds. The staff believes that the size of house is too large, but it meets standards
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and passes the reasonableness test. The 720 sqft footprint minimizes impact of the
riparian critical area buffer, as does the third story created by the height variance. The
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house is placed close to the property line. The staff report states that an alternative
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design would have minimum impact to the critical area and references other designs
submitted by the applicant. All designs created have the same footprint. No other
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designs provide reduced impact to the critical area. The proposed house size is below
the average of the downtown city of the house size of Edmonds. The minimum size
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only refers to as it would affect critical areas and minimum net loss to critical area
functions, which means this is without basis or merit. The staff report makes an
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incorrect assumption that areas under the overhang and cantilevers will not allow
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such station growth. These areas are not considered part of the critical area buffer,
but do provide a function filtering water entering the creek. Certain local species will
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grow underneath the overhangs.
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The critical areas existing on the site are not the result of the actions of the applicant,
since the applicant did not create the critical areas. The applicant desires to build a
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house based on development standard and following guidelines for critical areas,
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minimum loss to the critical area function, and health and safety concerns met. The
staff is trying to apply minimum code to a minimum house size which is an incorrect
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use of the code. The staff argues that applicant entered into the contract
understanding that critical areas would need to be addressed. This is correct. In early
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February, 2013 applicant spoke to a planner named Gina prior to entering into his
purchase contract. She indicated that since there had been no changes since the last
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application had been approved by the city and hearing examiner decision, the process
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should be relatively straight forward. The applicant confirmed that code dealing with
critical area ordinance and reasonable economic use definition was unchanged, and
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did not expect this to turn into this exhaustive process. Staff stated that prior staff
report supporting the variance and the decision approving the application was
Reasonable Use and Variance p. 6 Findings, Conclusions and Decision
erroneous. The applicant believes that the conclusionsof the previous staff report
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provide insight.
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According to Mr. Schenk, the staff report indicates the desire to have a certain house
size is related to actions of applicant and is designed to make more economic use in
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house site. This goes against reasonable economic use. This statement is a
contradiction that links house size to more profitable use of the site. A more
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profitable use would be a building classed other than a single family residence. The
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only element of the code that address a structure size is the requirement for single
family residence. There is nothing in the code that prevents the applicant from
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building this residence. The proposed residence will not create any health or safety
issues. The proposal does not create safety issues to the public as long as the site is
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developed under conditions of the geotechnical engineer and erosion and flooding
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issues are dealt with. The staff report indicates that building in any critical area could
potentially be a threat to the public. The staff references towards house size which,
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per the code, only refers to use effect on the critical area and critical area net
functions. This is an opinion without basis in merit. RS-6 zone is compliant with the
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building codes which were created to ensure public safety is protected.
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With regard to special circumstances, Mr. Schenk noted that this site is impacted
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more than most. Strict interpretations of the 100ft area buffer would create a site in
which no building would be allowed. The special conditions are not a result of the
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actions of the applicant. Following this, the applicant would be denied any reasonable
use of property permitted of other properties in the zone. The variance requested is
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the minimum necessary to provide the applicant with such rights. The previous staff
report states that all property owners have a right to request a reasonable economic
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use if their property is otherwise unbuildable. Therefore this title does not confirm the
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applicant any special privileges that would not be given to people with similar
properties.
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The staff report is taking into consideration the size of the house and the price paid
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for the property. The applicant wants to build under the RS-6 zone guidelines. The
applicants request for variance allows him to have the same ability to build under
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these guidelines like his neighbors. The staff indicates that the building size is too
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large; however, the criteria for basing house size is under the RS-6 zoning. The
conclusion that the house is too large is the opinion of a staff member. Staff indicates
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that the property was previously marketed at $469,950 price and states that the
purchase price of the applicant for $95,000 is too low, attributing it to the fact that the
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site is in a critical area and building is limited. Further research says that the property
was listed from 2007 through 2008 through a broker for 290 days without receiving a
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single offer. Applicant did further research, looking back for four and half years prior
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to putting a contract on the property. The property had been listed for 208 days for
$99,900 without receiving a single offer. The list price of a property has no merit in
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determining the market value of the property. Market value is determined by supply
and demand. Other properties in the area where marketed and sold in recent years
Reasonable Use and Variance p. 7 Findings, Conclusions and Decision
went for a higher price because they were larger lots with views. Critical areas do not
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play a factor in pricing.
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Mr. Schenk stated that the staff claims that allowing the variance on a critical area site
that has been purchased at a lower price with the intent of buying of building on a
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property similar to others in the area is not the intent of the critical area guidelines
and are concerned that it will set a precedent for individuals buying less valuable
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property in critical areas and attempting to use variances to increase their value, and
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that this will be detrimental to the general public welfare. This seems to indicate that
just because an applicant purchases a property knowing that it is located in a critical
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area they should not have the right to reasonable economic use of that property. This
limits rights of the property owner. All property owners have the right to request
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reasonable economic use. The statement that the property was purchased at a discount
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is the opinion of the staff member and there is no proof to the statement. This
proposal is to build a house sized according to the RS-6 requirements while following
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minimum use and impact to critical areas. Data provided demonstrates that the house
size is less than average for the area and therefore is considered reasonable. Concern
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about precedents is a non-issue as it does not affect the general public welfare.
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Mr. Schenk said decisions should not be based on any something specific to the
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property owner, such as the ability to secure a scenic view or to make more profitable
use of the property. The staff report statement that property was purchased by
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applicant knowing that critical area existed suggests that the applicant was looking to
make a greater profit on this property. A more profitable use would be a building that
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was not a single family residence. Structural size is only addressed by the RS-6 code.
With regard to special privilege, approval will not grant special privilege to the
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property in comparison to properties in the area with similar zoning. All property
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owners have the right to request a variance f their property is so encumbered they
need to for reasonable economic use. The idea of special privilege, according to the
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staff, is based on the idea that the property has been purchased at a discount. At the
time of contract this was fair market value. There is no basis or merit that this
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property was undervalued. Variance is not a special privilege. Minimum use impact
in critical areas and net loss of critical area functions are met by the proposal. RS-6
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zoning is the only area that connects to house size, and the design will be consistent
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with the purposes of the RS-6 zoning ordinance with the exception of the height
variance. The height area variance will not impact views of other residents in the area
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given the lower elevation of the subject site. The staff report states that natural
features must be protected. With the height variance there is greater protection of
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natural features allowing for a larger buffer and less impact on the site. Designing a
structure with a smaller footprint and greater height provides greater protection in the
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critical area which is viewed as the primary goal of the city. The variances approved
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will not be detrimental. The approved variance is the minimum necessary to allow the
owner to enjoy the property to the level of other residences in the vicinity. The height
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variance was developed to minimize the amount of excavation work. The top two
floors would conform to the development standard of RS-6. This height variance
seeks to minimize impact to the slope.
Reasonable Use and Variance p. 8 Findings, Conclusions and Decision
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With regard to public comments received prior to the hearing, Mr. Schenk responded
to some of those letters and emails. He noted that he currently lives four blocks
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southeast of the property, his full-time occupation is in the finance industry, he is
married and has three children, and spends time in the community with his family.
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His office is in the neighborhood as well. He stated that he cared about the opinions
of the public and his future neighbors. In response to public comments and emails to
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the senior planner, the applicant noted that his proposal has been amended to deal
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with the change in classification of the stream by creating the 100ft buffer, that he is
requesting the height variance in order to be able to have economic use of his
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property while following critical area guidelines, that the 35ft height variance will not
have a detrimental effect on his neighbors as he blocks no view, that construction will
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follow guidelines regarding groundwater, trees and habitat, and hillside stability. He
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noted that his lot will have the larger buffer to the creek than any in the area. He will
be eliminating invasive species and introducing back native species, he will clear the
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area of debris and eliminate its use as a dumping ground and teenage gathering spot.
In general, the applicant stated that his proposal does meet the definition of
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reasonable economic use and minimum use. The variance for height is not a special
privilege and was requested to create a design that would meet the C
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reduce impact. While the staff stated that the prior approval for a variance on the lot
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was erroneous, variances are allowed to applicants if strict adherence to code creates
an unbuildable lot.
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According to Mr. Schenk, it is questionable whether the staff is violating his
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constitutional rights. The city attorney rejected first proposal without offering to meet
and discuss detail. The staff was open to design meetings and the proposed design
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resulted through consensus of applicant city attorney and planner; however, after
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submission of the proposal the staff stated that they could no longer support the
proposal. The city attorney would not response to inquiries as to the rejection until
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110 days later. The applicant perceived a general lack of willingness to work for
consensus on this issue.
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Public Comments
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Dawn Schaeffer stated she resides on Daley Street directly next door to the subject
lot. She supports the recommendation not to grant the variance. She noted that the
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10ft variance in height could affect herself and her neighbors because of the slope,
and the home could reach up to 40ft in height. It would affect the privacy of the
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neighbors and would block western sunlight from her property. She is concerned
with resale values and stated that the proposed design has floor to ceiling windows
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that look directly into her house. She states this is a violation based on page 19 of the
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staff report. She stated that Mr. Schenk had submitted another design that would
have had less of an impact. She stated that he purchased the lot for a reduced price
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because he knew that it was in a critical area and he would have challenges building.
His desire to have a home that is similar in size to surrounding homes should not be
taken into account when considering reasonable economic. She said that you cannot
Reasonable Use and Variance p. 9 Findings, Conclusions and Decision
make an exception for a single individual without making the exception for all of the
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people living in a critical area. The desire for a certain size is related to the actions of
the applicant. This is connected to his desire to make more profitable property.
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Allowing him to bypass the code is setting a dangerous precedent for the area. The
rest of the residents have to abide by code. He knew what the restrictions were before
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he decided to build. There is a lot of wildlife around this area, and she believes they
will be affected by clearing the lot. All of the trees on the property are not reflected
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on his plan. She asked to submit a photo of the great herons that feed in the Creek.
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She stated that since it has been confirmed that it is a fish bearing stream the old
variance approved should not be considered. The applicant has not demonstrated
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compliance with criteria for critical use or economic use. She stated that her homes
and several next to her are small homes and much smaller than the 3000+ average
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that Mr. Schenk gave. She has observed dumping in the lots and have called the
8
Edmonds Police Department about it. They were told by the police that unless the
police catch them in the act they cannot do anything about it. On the path from the
9
Schaeffer house to the lot, they have observed teenagers going down the path to go
drink in the empty lot. She submitted two photographs of blue Heron submitted as
10
Exhibit 6.
11
Diana LeRoss testified that she is a neighbor who supports the staff recommendations
12
to reject the variance. Shell Creek is a fish bearing stream and should be protected.
Slide 42 of the Schenk presentation states that he will not make more profitable use of
13
the property. She stated that there is a direct relationship between the size of the
property and profitability. She believes that a smaller house could fulfill the critical
14
area criteria without making the impact and requiring the variances. She also noted
that she suspects Mr. Schenk lied when he claimed that he will be a neighbor as it is
15
her understanding that there is a buyer in the wings. She wanted to clarify that her
16
letter regarding height variance simply meant that if there is a 35ft variance available
that all of the neighbors would have taken it when they built their house. This
17
building would affect the privacy of her neighbors. They have large windows in the
back of their home and the proposed home would look directly into the existing
18
home. That would require that they keep their blinds closed if they need privacy.
19
Finis Tupper stated he lives on Daley Street. He wanted to make sure that the
20
Hearing Examiner does a site visit. He stated that after the original proposal and
Hearing Examiner approval, he witnessed a blue Heron pull a cutthroat trout in the
21
stream behind his house. There is quite a bit of wildlife around the stream, and he
does not consider the lot an eyesore. He believes that you could put a single-family
22
house on that lot, but the one that is proposed encroaches upon and does not enhance
the habitat. Mr. Tupper stated that the buffer is supposed to be a 100ft, and it can only
23
be reduced by 50% under a reasonable use permit. The applicant is reducing it to 35%
24
or less. The code does not allow for more than a 50% reduction. He noted that this is
not in the staff report or any of the documentation that Landau did for the applicant. If
25
you go through the sequence you can see that when Landau updated their report they
updated based on being a non-fish bearing stream. Their letter clearly states that the
update was done in June before the determination that there was a 100 foot buffer.
Reasonable Use and Variance p. 10 Findings, Conclusions and Decision
They started on the wrong premise and will have the wrong outcome. The staff asked
1
the applicant to do another critical area study and mitigation plan based on that
change and he refused. The height variance is a 40% increase and that is unheard of
2
in this area. He hopes the Hearing E
3
Roberta Poletes said she lives on Daley Street. She questions the applicant speaking
for the neighborhood in his statement that the lot is an eyesore. She says it is not
4
necessarily an eyesore, but it has been used as a dump. She agrees with everything
5
that Dawn Schaeffer has said and asks that the Hearing Examiner walk through the
neighborhood and look at how the house would fit. The homes that surround at are
6
much more modest.
7
Gary Schenk stated that he has not had the opportunity to look at all of the
8
information in the report. He is concerned with some things that the City has done.
The proposal was rejected the applicant was not given information as to why the
9
rejection was made. The applicant sold his house based on this deal going through
and based on what he had been told by the city. Mr. Schenk is an employee for the
10
city government in the Puget Sound region and code enforcement building. There are
code violations regarding invasive species on the lot and its use as a dumping ground
11
that need to be addressed. The building of the house would alleviate these issues. He
12
does not see how the building of the house would affect the wildlife, especially
considering blue herons. With regard to the claim that this house is blocking sunlight,
13
he stated that the house would allow for more sunlight than the existing trees. The
house seems to be the best use for the property. The laws in the codes of the city are
14
those that we should abide by. The height variance was the result of attempting to
comply with the city and there should be some give and take. Everything that has
15
been proposed is in conformance with code and laws. The applicant asked why he
16
had been rejected and he was not given an answer. He is related to the applicant.
17
Bill Mitchell testified that he lives on Daley Street. He agrees with the staff that the
variances should be denied. He moved into their house four years ago and before he
18
bought the property he paid a premium for the property because of the view the trees
behind them and the neighborhood. He spoke with the city and with realtors to get an
19
understanding of building codes, etc. He thought they understood this to be the law,
20
but now sees that variances are allowed. He says that this does not affect him but it
does affect his neighbors. They will not be able to look over the house at the trees
21
they will only be able to look at the new house. He does not like how it is affecting
critical areas and height requirements. He requested the variances be denied.
22
Lynn Hilman said she has lived in Edmonds for ten years. She s
23
proposal. She stated that there is no way that an applicant or a city plan reviewer can
24
show compliance or noncompliance with a code requirement that is not there. There
are no guidelines in Edmonds Code for what minimum is with respect to designing a
25
house for critical area lot. She stated that you cannot base denying a variance on the
unprovable; if this is done, there will always be a house that is smaller than the one
you propose until there is nothing left and the lot becomes essentially worthless. The
Reasonable Use and Variance p. 11 Findings, Conclusions and Decision
applicant participated in voluntary design meetings with city staff. Afterallthose
1
meetings, they still utation is damaged by this,
and people will refuse to do business here at all. It is been claimed that the lot was a
2
reduced price because of being a critical area. She stated that the code does not
include lot price as a criteria for variances. If this was so, variances could be bought;
3
instead, price is a factor personal to the owner. The price of this purchase agreement
reflects market conditions and many have sold for low prices including those that
4
were not in critical areas. She noted that she will provide the city with copies of sales
5
records. She has been an architectural engineering and planning examiner for over 20
years. She has operated in over a dozen cities and understands meeting requirements
6
for approval. She never saw anyone deny someone a permit and said they typically
guide applicants through the process to create acceptable plans. This is standard
7
practice in this industry. She would like to see the City of Edmonds and the Hearing
8
Examiner do the same thing here. She submitted her written comments and sales
records as Exhibit 7.
9
Scott Pawling testified that he lives on Daley
10
Washington and has reviewed plans and assisted the City of Edmonds in geotechnical
plans. He has a number of concerns. He stated that the footprint site is very
11
misleading. The impacts from the overhangs are substantial and do not allow
12
precipitation on that part of the ground. The idea that water flow from the hillside is
not included does not make sense to him. The foundation is cutting off the water that
13
is flowing to the ground there. He does not know why it was necessary to go as high
as 35ft in the design. He recommends a design with 30ft and a flat roof. The 2006
14
plan based on a non-anadromous fish bearing stream needs to be changed and
updated. With regard to square footage, the statistics Mr. Schenk used are inaccurate.
15
He is referring to houses that are downtown in general not in the subject
16
neighborhood, and the homes were constructed prior to 2000 are much smaller. He
stated that just because others were allowed to build in the stream in the past does not
17
mean that it should happen now. The reason that the buffer requirements were
established is to help right some of the past wrongs. Just because there is a buffer
18
does not mean that it should be encroached upon by the applicant. Using the next-
19
and believes that a smaller house could be constructed.
20
Staff Rebuttal
21
Mr. Lien stated that there are differences between the 2006 variance and the variance
22
being considered today. A major change is regard to the classification of the stream.
In 2006, it was a fish stream but not an anadromous fish stream. The 2006
23
classification allowed for a smaller buffer. With the change of classification, the
24
buffer becomes wider and you cannot do the same buffer with reductions. With
regard to representation of staff to applicants requesting variances, the staff is always
25
very clear that they are not the ones that make the decisions and that it must go to
hearing. The staff and the city attorney did work with Mr. Schenk to look at different
alternatives. He noted that there is difficulty when considering the footprint of the site
Reasonable Use and Variance p. 12 Findings, Conclusions and Decision
and that the overhangs arenot counted in the 720sqft. Area. He claims this is a
1
misrepresentation of the footprint of the area and that the impervious surfaces the
roof area of the building should be considered based on code. This is larger than the
2
720 sqft. He stated that the city did not deny any application; instead, this is done by
the hearing examiner. What the city did do was tell Mr. Schenk that they would not
3
approve the current proposal. In February, there was a meeting with Mr. Schenk to let
him know that the staff proposal would not recommend approval. They conversed
4
over the phone and decision was made to go through with the January proposal and
5
not go back to redesign. There was communication with staff but nothing necessarily
in writing.
6
With regard to reasonable economic use, the staff stated that the definition does
7
consider a single-family residence to be a reasonable economic use. But the last line
8
says it will not consider situations personal to owner, such as trying to make more
profitable use of the site. As mentioned in the public comments, a larger house can be
9
considered a more profitable use of the site. With regard to impact to the critical area
in the minimum necessary, the staff did conclude that the critical area report
10
submitted by Landau does minimize net loss to the critical area given the current
proposal. However, there could be less impact if there was a smaller footprint. And
11
that buffer could also be minimized to the maximum extent. He noted that there is a
12
fine distinction here.
13
With regard to an investment-backed expectations, the city attorney cited the case
Buechel v. State Department of Ecology 125 Wn.2d 196 (1994). This case deals with
14
a variance with regard to a shoreline. He stated that this is very similar to the analysis
that needs to be done here. One thing that this case talks about is reasonable use. This
15
does not involve the concept that Edmonds has in its code where reasonable use refers
16
to single-family home, but he states that this case is important in interpretation. In the
case the applicant had a similarly restricted lot and very little buildable space, and the
17
Shoreline Hearings Board concluded that reasonable use of small shoreline parcels
without the presence of homes is being made on Hood Canal in the vicinity of
18
applicants lot. Such use is available to applicant. In this situation we conclude that
this prevents him from meeting the threshold of requirements under the Mason
19
County Shoreline Program. This is not directly applicable because of the Edmonds
20
single family use code language. The hearings board also noted that we cannot
conclude on this record that the board decision that the landowner had reasonable use
21
is erroneous. The be
a reasonable use of the small sliver of property finds support in this record and in case
22
law that shows that lots may have some economic value if the use is recreational.
The size, location and physical attributes of a piece of property are relevant in
23
deciding what is a reasonable use of a particular parcel of land.
24
The city attorney noted that the applicant argues as if his parcel should be able to be
25
developed as any other property in Edmonds and that is not what the law requires.
According to Buechel, To some extent the reasonable use of property depends on the
expectations of the landowner at the time of purchase of the property. If existing land
Reasonable Use and Variance p. 13 Findings, Conclusions and Decision
regulations limit the permissible uses of the property at the time of acquisition a
1
purchaser cannot reasonably expect to use the land for prohibited purposes. Although
not necessarily determined courts may use its zoning regulations in effect at times of
2
purchase to determine what is reasonable use of the land. Presumably regulations on
use are reflected in the price that a purchaser pays for a preset property this land
3
owner knew when he purchased this lot that it did not meet requirementsThe city
attorney
4
property (attachment 14 of staff report) which indicates that he is under contract to
5
purchase the property for $95,000; that there is an earnest money of $5000; and that
he has not yet closed on the property because closing does not have to occur on or
6
before 15 days after variance receipt. Mr. Schenk confirmed the $5,000 is
nonrefundable and that he has also invested $25,000 in pursuing the applications.
7
8
Applicant Rebuttal
9
Mr. Schenk stated that his intent is not trying to find the most profitable use of the
site. This compromise design is less desirable to the market. In terms of caring about
10
the environment, he walks his lot every couple of weeks and his office is a block
away. With regard to Dawn Schaeffer
11
light will be blocked less once his house is built. He has great concern with privacy.
12
He has attempted to place window to make views into residence minimal. With
regard to the issue of fish, the issue is not whether there are fish present. The issue is
13
whether there was a blockage that prevents salmon from coming down the creek. The
habitat today on that site is blackberry bushes, a culvert with a fence around it, and
14
yard waste. Clearing that out and putting in native plants will attract more animals.
The habitat is currently not per code, and his proposal will give a cleaner site for the
15
City. With regard to the concern about people entering the site, he did not mean to
16
suggest that the current owners were dumping yard waste. From a public safety
standpoint, improving the site would prevent a number of problems. The future buyer
17
referenced earlier is himself. He wants to live there himself. With regard to the
property to the west, he has designed smaller windows facing this house. The
18
building height is 35ft above grade with regard to the structural engineer
which means the concern about being over 35 feet is just not there. All the reports
19
were updated by Landau Associates, who conducted new site visits and the
20
conclusions are as stated. With regard to questions about average house size, there are
some large houses in the neighborhood, so it depends on where one is looking in the
21
neighborhood. The house proposal is not grandfathered in any way, so this will be the
largest buffer on the street. Besides the variance, he has stricter criteria than the rest
22
of the neighborhood homes. The class of stream has changed. Due process was not
taken to determine whether salmon were in the Creek. Instead 2005 and 2006
23
blockages were stated, along with photos taken in 2009 of the salmon. When he spoke
24
to the planning department about purchasing a new report to see if salmon were
present, the senior planner determined that the ultimate decision would be in the
25
planning department, who would give more weight to the actual photos, so he decided
not to pay for the report because he did not think that it would be looked at. He has
the most current results and environmental report. With regard to impervious surface
Reasonable Use and Variance p. 14 Findings, Conclusions and Decision
calculations, this is not required, but even with the impervious surface calculation it
1
would bring it up to 18%. The current code says up to 35% so he is still under. Mr.
Schenk noted that the city planner has been above reproach and the planning
2
department has been responsive. It is been the city attorney who has not been
responsive.
3
According to Mr. Schenk, regarding more profitable use of the site, he is just
4
interested in meeting requirements. The Mason County case referenced is clearly a
5
shoreline case. If it is labeled at as a recreational property someone can drive their
boat up and enjoy the property. This is not the case here. There is no recreational use
6
of Shell Creek, and he does not understand why this would be applicable. The home
he is proposing is to protect the waterway, not to use or enjoy the waterway. Mr.
7
Schenk asked about cases of taking property without just compensation. He stated
8
that he has more than the $5000 invested in this property and a year of his life. Again,
this proposal is not his first choice. The proposal was made to meet requirements. His
9
original proposal was changed to meet the requirements creating minimum impact to
the site.
10
EXHIBITS
11
12
Exhibit 1 Staff report dated June 4, 2014 with all 73 attachments.
Exhibit 2 Schenck presentation outline and power point.
13
Exhibit 3 June 12, 2014 memo from Schenk to Lien
Exhibit 4 site plans
14
Exhibit 5 Email chain dated February 15, 2014 involving city attorney
Exhibit 6 Schaeffer photographs
15
Exhibit 7 Hilman comments and sales data
16
17
FINDINGS OF FACT
18
Procedural
:
19
1. Applicant. The applicant is Jordan Schenk.
20
2. Hearing. A hearing was held at 3:00 pm on June 13, 2014 at the Edmonds
21
City Council meeting chambers. The record was left open for a site visit, which was
conducted after 5:00 pm on the same day.
22
23
Substantive
:
24
3. Site/Proposal Description. The applicant requests a reasonable use
exception to build a single-family home within the 100 foot critical areas buffer of
25
Shell Creek and a height variance to build the home ten feet above the applicable 25
foot height limit. Both applications are denied because the applicant is not proposing
a minimum reasonable use of his property and because his biological assessment of
Reasonable Use and Variance p. 15 Findings, Conclusions and Decision
stream impacts is based upon the incorrect premise that Shell Creek is a non-
1
anadromous fish bearing stream with a 75 foot buffer.
2
The subject property is located at 742 Daley Street. The property has steep slopes
along the west side of the property and Shell Creek runs across the northeast corner of
3
the property. Shell Creek is identified as an anadromous fish bearing stream which
has 100 foot stream buffers pursuant to Edmonds Community Development Code
4
(ECDC) 23.90.040.D. Given the entire property is encompassed by the stream buffer,
5
the applicant is pursuing a critical area variance to develop the site. The applicant
considered several alternative house designs for the property in order to minimize
6
impact to the critical area and to demonstrate reasonable economic use. Ultimately,
the applicant settled on a design for a house 35-feet in height. The maximum
7
allowable height in the RS-6 zone is 25 feet, so the proposed house requires a 10-feet
8
height variance. Given that the two variance applications are intricately intertwined,
both requests have been consolidated into a single development project pursuant to
9
ECDC 20.01.002.B and are being reviewed concurrently.
10
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
11
parcels in the area and is completely surrounded by parcels that are currently
12
developed with single-family residences. The site and surrounding properties are
located within the RS-6 (Single-Family Residential) zone (Attachment 63). North of
13
the neighborhood is the Holy Rosary Church and School site which is zoned RS-12.
th
West of the neighborhood across 7 Avenue North is property zoned RM-1.5 (Multi-
14
Family) that is developed with a mix of multi-family and single family residences.
15
5. Adverse Impacts. The applicant has not established that the proposal
16
would not material impair the critical area functions and values of Shell Creek and its
associated buffer.
17
upon the erroneous premise that Shell Creek is a non-anadromous fish bearing stream
subject to a 75 foot buffer as opposed to a anadromous fish bearing stream subject to
18
a 100 foot buffer. The 100 foot stream buffer is imposed by ECDC
23.90.040(D)(1)(b) and the 25 foot height limit is imposed by ECDC 16.20.030.
19
20
The applicants expert critical area analysis was prepared in 2006 and updated in
2013. See att. 5, 6 and 8. Both of these reports were based upon the understanding
21
that only non-anadromous fish access the stream at the project site. Since 2006 fish
have been observed by staff up stream of a culvert that had been considered to block
22
fish passage to the applicants property. Staff have concluded that anadromous fish
now do pass through Shell Creek at the project . The applicant has presented no
23
evidence to the contrary. Given the uncontested evidence presented by staff, it is
24
determined that anadromous fish do pass through the subject property and that it
should be classified as an anadromous fish bearing stream. Anadromous fish bearing
25
streams are more environmentally sensitive than non-anadromous fish bearing
streams as established by the fact that City code requirements impose a 75 foot buffer
for non-anadromous fish bearing streams and a 100 foot buffer for anadromous fish
Reasonable Use and Variance p. 16 Findings, Conclusions and Decision
2006critical area analysis expressly notes its
1
understanding that anadromous fish only pass to points downstream of the project
site. Att. 5, p. 3-2. The applicants 2013 makes no mention of the change in stream
2
classification and the applicant stated in correspondence with the City that he would
not be updating the reports to address the presence of non-anadromous fish. Att. 27,
3
p. 5.
4
Neighbors testified and presented photographs depicting the presence of blue heron at
5
the project site. Any reapplication should also address whether there is any blue
heron habitat present that is protected by the Citys critical area regulations.
6
The height variance raises concerns over privacy issues. A neighbor testified that the
7
increase in height would result in a home with a line of site directly into her windows.
8
If the applicant is be given the benefit of a height to which no other homes are
entitled in the vicinity, that added benefit should not result in a privacy detriment to
9
adjoining neighbors. Although the issue does not need to be resolved for this
application because the variance is denied for other reasons, it should be addressed in
10
any similar future variance application. The applicants will have to demonstrate that
any height variance will not result in any line of sight from the windows of the
11
proposed home into the windows of any adjoining homes. Beyond the privacy issue,
12
there are no other adverse impacts identifiable in the record from the proposed height
variance. As noted in the staff report, the home is located at the bottom of a steep
13
slope and the difference in grade is more than enough prevent the proposed added
height from adversely affecting any views.
14
6. Minimum Reasonable Use. The minimum reasonable use of the subject property
15
is a home that minimizes to the maximum extent impacts to Shell Creek and its buffer.
16
As identified in the staff report, this would be a home with living space limited to that
17
exceeds this minimum reasonable use because it includes a second story overhang
comprising several hundred square feet that will block sunlight to critical area buffer
18
vegetation.
19
As outlined in the Conclusions of Law, minimum reasonable use is a principle derived
20
from constitutional takings law that involves a balancing of the burden on the property
owner verses public benefit. Investment backed expectations are a major factor. On
21
February 8, 2013, well after adoption of currently applicable critical area regulations,
the applicant entered into a purchase and sale agreement to purchase the property for
22
$95,000. See Att. 14. Closing is contingent on the applicant acquiring approval of a
reasonable use variance to construct a single-family home. The property had
23
previously been on the market for $469,950. See Att. 67. There is no question that
24
the applicant has acquired the property at a deeply discounted price and that he was
well aware that acquisition of a reasonable use approval was not a given. The
25
limitations on development were well known in the real estate market, as the property
had been on the market at an offering price of $99,990 for 208 days without a single
offer prior to the purchase made by the applicant. See att. 12.
Reasonable Use and Variance p. 17 Findings, Conclusions and Decision
1
Beyond the presence of critical areas, the lot is well suited to accommodate a single
family home. The lot itself is fairly small at 0.24 acres, but this is large enough to
2
accommodate averaged sized homes in the Edmonds community. The lot is of a size
that is the same size or even slightly larger than surrounding lots developed with full
3
size homes, as shown the adjoining vicinity in Att. 9 and as confirmed by the
4
5
The public interest served by the stream buffer is fairly high. Of the six types of
buffers required to protect stream habitat, the 100 foot buffer imposed for anadromous
6
fish streams is the second largest imposed by the City of Edmonds. See ECDC
23.90.040(D)(1). This indicates that the type of stream affected by the proposal is
7
one of the most sensitive and/or ecologically valuable in the City. The impacts of the
8
proposal on this highly sensitive critical area have not been adequately evaluated. The
applicant relies upon habitat management studies completed in 2006 (att. 6) and 2013
9
(att. 8) to argue that impacts are mitigated, but these studies were completed at a time
when the stream was considered to be non-fish bearing and only subject to a 75 foot
10
buffer. There is no information in the record to establish that the proposal is still
adequately mitigated to prevent impacts to the higher sensitivity of the stream.
11
12
Given the factors above, a minimum use of the property using the liberal
construction requirement of the Citys reasonable use definition would have to be
13
considered the minimum size at which a marketable home could be constructed
without a loss. Sales data provided by the applicant for home sales in the City of
14
Edmonds between 2008 and 2013 show at least seven homes with less than 650 square
feet of living space selling at prices ranging from $35,000 to $550,000 with only two
15
of the seven selling for less than $199,000. See att. 31. From this data it appears
16
likely that a new home could be built and sold without a loss from a vacant purchase
price of $95,000 as paid by the applicant. Of course, a more solid finding would be
17
based upon information on the costs of home construction and the locational
characteristics and conditions of the homes sold. However, the burden of proof lies on
18
1
the applicant to establish he is being denied minimum reasonable use and there is
nothing in the record that suggests that it would not be possible to build a marketable
19
home without a loss.
20
650 square feet is used as a minimum reasonable use size because it is approximately
21
the minimum sized home that could be placed upon a two car tandem garage. As
noted in the staff report, ECDC16.20.030 requires two on-site parking stalls for the
22
proposal. Consequently, the minimum critical area buffer disturbance for a single-
family home compliant with City code would be a home with living space limited to
23
24
1
ECDC 23.40.210(A)(2) provides that a reasonable use request may
25
Reasonable Use and Variance p. 18 Findings, Conclusions and Decision
2
the area above a two stall tandemparking garage. The living space in such a
1
3
configuration would be limited to 626 square feet. See att. 31.
2
footprint of a tandem two car garage.
4
However, it also includes a second story overhang with 180 square feet overhanging
3
the southern foundation and 464 square feet overhanging the east foundation. See att.
31. As noted in the staff report, this overhang can adversely affect the critical areas by
4
blocking sunlight to vegetation. The applicant argues there is no evidence to support
5
this, but this position fails to recognize that the applicant bears the burden of
6
mitigation plan recognizes the important function of buffer vegetation in protecting
critical area functions. See att. 5. It is reasonable to conclude that blocking sunlight to
7
vegetation will adversely affect it. Given these facts, it is incumbent upon the
8
applicant to establish that the overhang he proposes will create no such adverse
impacts. In the absence of any expert testimony or other evidence supporting the
9
affect the critical area. More likely than not, given that the overhang is several
10
hundred square feet in area, the overhang will harm critical area function.
11
CONCLUSIONS OF LAW
12
Procedural
:
13
1.Authority of Hearing Examiner. ECDC 20.85.020 provides the Hearing
14
Examiner with the authority to review and act upon variance applications as Type III-
15 A.
16
Substantive
:
17
2. Zoning Designations. The area is zoned Single-Family Residential (RS-
6).
18
19
20
2
Tandem stalls would apparently be necessary to maintain separation from the stream.
21
3
The city attorney testified that the City disputes whether the size of the garage proposed by the
applicant is absolutely necessary to accommodate two parking stalls, circulation and second floor
22
access. The City has not identified any specific reasons why the footprint is too small. In order to
provide some clarity to the applicant as to what constitutes minimum reasonable use and in pursuance
23
of the liberal construction requirement of the Citys reasonable use definition, the 626 square foot
design presented by the applicant is determined by this decision to meet the minimum reasonable use
requirements of the Citys reasonable use regulations.
24
4
The text to att. 31, page 3, notes that the length of the southern overhang in att. F (from which the 180
25
square feet was derived) underrepresents the length of the overhang. It is unclear if this error extends
into the 180 square foot figure depicted in att. F. The actual area of the southern overhang may be
more than180 square feet.
Reasonable Use and Variance p. 19 Findings, Conclusions and Decision
3.Review Criteria and Application. Variances to height requirements are set
1
by ECDC 20.85.010, quoted below and applied through corresponding conclusions of
law. Reasonable use exceptions to critical area stream buffers are governed by
2
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.
3
HEIGHT VARIANCE
4
5
ECDC 20.85.010:
No variance may be approved unless all of the findings in this
section can be made.
6
ECDC 20.85.010.A(1) Special Circumstances:
That, because of special
7
circumstances relating to the property, the strict enforcement of the zoning ordinance
would deprive the owner of use rights and privileges permitted to other properties in
8
the vicinity with the same zoning.
9
a.Special circumstances include the size, shape, topography, location or
10
surroundings of the property, public necessity as of public structures and
uses as set forth in ECDC 17.00.030 and environmental factors such as
11
vegetation, streams, ponds and wildlife habitats.
12
b.Special circumstances should not be predicated upon any factor personal
13
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
14
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
15
property;
16
4. The criterion is met. The staff report argues that the criterion is not met
17
because the applicant would enjoy reasonable use from a single-story 625 foot
18
the criterion above that fails to recognize that the criterion extends beyond the
deprivation of rights to the deprivation of privileges. Limited to one story of living
19
space, the applicant is left with a home that is several times smaller than surrounding
homes. Allowance of the variance would double that size and still result in a house
20
that is only at 84% of the average home size in the City of Edmonds. See att. 31, p. 5.
21
The need for the variance is completely attributable to the critical areas on site, since
it is solely because of those critical areas that the size of the home is limited.
22
ECDC 20.85.010(B) Special Privilege:
That the approval of the variance would
23
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;
24
25
5. The granting of the variance would create a special privilege, because the
applicant has provided no evidence that other homes in the vicinity are constructed at
heights exceeding 25 feet. Given that the applicant is already conferred a reasonable
use of his property with a single story of living space as determined in the
Reasonable Use and Variance p. 20 Findings, Conclusions and Decision
conclusions of law below, it cannot be concluded under these circumstances that the
1
extra height associated with a variance would not constitute a special privilege if no
one else has built to that extra height as well.
2
ECDC 20.85.101(C) Comprehensive Plan:
That the approval of the variance will
3
be consistent with the comprehensive plan;
4
6. The requested setback variances are consistent with the comprehensive
5
plan for the reasons outlined at Section VII of the staff report, adopted and
incorporated by this reference as if set forth in full.
6
ECDC 20.85.010(D) Zoning Ordinance:
That the approval of the variance will be
7
consistent with the purposes of the zoning ordinance and the zone district in which
8
the property is located;
9
7. The proposal is consistent with the purpose of the RS-6 zoning district as
outlined in Section X of the staff report, adopted and incorporated by this reference as
10
if set forth in full.
11
12
ECDC 20.85.010(E) Not Detrimental:
That the variance as approved or
conditionally approved will not be significantly detrimental to the public health,
13
safety and welfare or injurious to the property or improvements in the vicinity and
same zone;
14
8. The criterion is not met. The applicant has not demonstrated that the
15
added height would not adversely affect the privacy of adjoining home owners as
16
determined in Finding of Fact No. 5.
17
ECDC 20.85.010(F) Minimum Variance:
That the approved variance is the
minimum necessary to allow the owner the rights enjoyed by other properties in the
18
vicinity with the same zoning.
19
9. The criterion is not met. As determined in the conclusions of law below,
20
the applicant can enjoy reasonable use of the subject property with just one story of
living space. Although the applicant may not enjoy the same development potential
21
as other owners in the vicinity and same zoning, one story of living space does allow
the applicant reasonable use of his property, a right enjoyed by his neighbors as well.
22
23
BUFFER ENCROACHMENT REASONABLE USE REQUEST
24
ECDC 23.40.210(A)(2)(a)
: The application of this title would deny all reasonable
25
economic use of a property or subject parcel;
Reasonable economic use(s
The
minimum use to which a property owner is entitled under applicable state and federal
Reasonable Use and Variance p. 21 Findings, Conclusions and Decision
constitutional provisions in order to avoid a taking and/or violation of substantive due
1
hall be liberally construed to protect the
constitutional property rights of the applicant. For example, the minimum reasonable use
2
of a residential lot which meets or exceeds minimum bulk requirements is use for one
single-family residential structure. De
3
not include consideration of factors personal to the owner such as a desire to make a
4
10. Under the definition above, there is no question that the stream buffer denies the
5
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
6
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
7
area regulations are depriving the applicant of a minimum reasonable use of the property.
8
ECDC 23.40.210(A)(2)(b):
No other reasonable economic use of the property
9
consistent with the underlying zoning and the city comprehensive plan has less impact on
the critical area;
10
11. The criterion is met. As concluded in Conclusion of Law No. 10, a single-
11
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
12
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
13
churches and schools
relatively small lot. None of these types of uses could be construed as creating less
14
impact to reasonable use referenced in the criterion above
15
encompasses different project design as opposed to different types of uses, then as
determined in Finding of Fact No. 6 the applicant has failed to establish that a smaller
16
home would not have less of an impact to critical areas.
ECDC 23.40.210(A)(2)(c):
The proposed impact to the critical area is the minimum
17
necessary to allow for reasonable economic use of the property;
18
12. The criterion is not met. The proposal does not minimize impacts to critical areas.
The proposed second story overhang could be removed and still leave the applicant with
19
reasonable use.
20
As determined in Finding of Fact No. 6, impacts to Shell Creek are not minimized,
because the proposal includes an overhang over critical area vegetation that exceeds the
21
footprint for minimum reasonable use by several hundred square feet. This overhang will
block sunlight to buffer vegetation, thereby adversely affecting the vegetation and its
22
associated critical area function and value.
23
Fact No. 6 is a single family home with a footprint limited to accommodating a tandem
24
two car garage with living space located above it. This minimum reasonable use is based
upon a number of constitutional balancing factors used by the courts in assessing
25
ECDC
23.40.320, is based upon constitutional takings law, so that law must be referenced to
determine what constitutes minimum reasonable use.
Reasonable Use and Variance p. 22 Findings, Conclusions and Decision
In the context of regulatory takings caused by stream and buffer regulation, a taking will
1
most often occur under either a Lucas analysis where the property owner is deprived of
all reasonable economical use or a Penn Central analysis where the burden on the
2
property owner is weighed against the public need and benefit of the regulations in
question.
3
The Lucas analysis comes from Lucas v. South Carolina Coastal Commission, 505 U.S.
4
1003 (1992).
public verses private interests is required to determine if a property owner is entitled to
5
compensation under the takings clause. The U.S. Supreme Court in Lucas ruled that
when regulations deprive a property owner of all economically viable use, a categorical
6
takings has occurred and compensation is due unless the regulations fall into some very
limited exceptions. A footnote in Lucas explained that the categorical rule would not
7
apply if the diminution in value were 95% instead of 100%. The court acknowledged
that anything more than a total loss would require a Penn Central takings analysis.
8
was put to the test in Palazzolo v. Rhode
9
Island, 533 U.S. 606 (2001). In that case Mr. Palazzolo owned an 18 acre subdivision
containing 74 lots. The subdivision was undeveloped and covered with wetlands with an
10
indeterminate area of uplands. The only way to develop the lots located in wetlands was
to fill them. Subsequent to the subdivision of the 18 acre parcel the Rhode Island
11
Legislature adopted regulations that prevent Mr. Palazzolo from filling the wetlands.
12
Prior to adoption of the wetland regucould have developed a
subdivision worth about $3.1 million. After adoption of the regulations Mr. Palazzolo
13
could only fill the upland portions of his parcel, which would only enable a development
worth about $200,000. The Supreme Court ruled that the remaining $200,000 qualified
14
as economically viable use and, therefore, no Lucas categorical takings had occurred. In
short, Mr. Lucas was left with less than 10% of the development potential of his property
15
and no categorical takings had occurred. As identified in Finding of Fact No. 6, for this
proposal City staff are asserting that the applicant should build a house limited to 626
16
square feet. This area is about a fifth of the average size of a home built sold in Edmonds
17
today. See att. 31, p. 3. It is unclear what the average sales price is in Edmonds
currently, but given these factors it is very unlikely that the applicant would be losing
18
more than 90% value if the applicant is limited to building a 626 square foot home.
Imposing the maximum house area advocated by the City would not constitute a
19
categorical takings under Lucas.
20
In the absence of a categorical takings, the remaining way to establish a regulatory
takings is through a Penn Central analysis. Penn Central is a United States Supreme
21
Court case that created the concept of regulatory takings, where just compensation under
th
the 5 Amendment takings clause can be required by over-regulation of property without
22
any physical appropriation such as in a typical road condemnation case. See Penn Central
v. New York City,438 U.S. 104 (1978) The Court ruled that w
hether a regulatory action
23
that diminishes the value of a claimant's property constitutes a "taking" of that property depends
on several factors, including the economic impact of the regulation on the claimant, particularly
24
the extent to which the regulation has interfered with distinct investment-backed expectations, as
well as the character of the governmental action. Those regulatory factors have been developed
25
and expanded upon in Washington State court opinions assessing regulatory takings. See, e.g.
Guimont v. Clark, 121 Wn.2d at 603-604, 610 (1993); Presbytery of Seattle v. King County, 114
Wn.2d 320, 331, 787 P.2d 907 (1990). Those factors, in turn, have been applied into assessing
Mason County shoreline variances in Buechel v. Dept. of Ecology,
Reasonable Use and Variance p. 23 Findings, Conclusions and Decision
125 Wn.2d 196, 884 P.2d 910 (1994). The Buechel ruling was applied by the City Council in its
1
construction of its critical area reasonable use provisions in the Hillman reasonable use request,
City of Edmonds Resolution 1294. The factors used to assess reasonable use in Buechel include
2
the size, location and physical attributes of the property; the expectations of the owner at the time
of purchase of the property; the zoning regulations in effect at the time of purchase; the purchase
3
price of the property; and the cumulative environmental impacts of the proposed development.
See 125 Wn.2d at 207-208. These factors were applied and assessed in Finding of Fact No. 6.
4
th
There have been surprisingly few cases that have applied 5 Amendment takings claims
to wetland and/or stream buffer regulation.
None have assessed Penn Central takings claims
5
5
in the State of Washington to wetland regulations. One case outside of Washington provides
some insight as to how the regulation should be applied. See Friedenburg v. New York State
6
Dept. of Environmental Conservation, 3 A.D.3d 86 (2003). In Friedenburg the property owner
was denied a permit to fill wetlands in order to build a single-family home on a 2.5 acre
7
waterfront parcel. The only use remaining use the property owner had with the denial of the
wetlands permit was access rights to the shoreline. The denial of the permit devalued the
8
property from $665,000 to $31,500 based upon the findings of the trial court as to what the
property could be used for. The value of the property would have been $50,000 if additional use
9
rights alleged by the government defendant applied, such as the construction of a catwalk or
moorage for a houseboat. The New York Supreme Court applied federal constitutional takings
10
case law and ruled that a takings occurred whether the property was valued at $50,000 or $35,000.
The Court reasoned that the property owner experienced either a 95% or 92.5% reduction in value
11
and that in either case the reduction was significant. The Court found that the public benefit
conferred by wetlands protection did not justify the taking of public property. It noted that if
12
there are no direct reciprocal benefits to the property owner, the property owner should not bear
the burden of providing those benefits to the general public. Due to the significant loss in value
13
and the lack of reciprocity in the benefits of wetland protection, the Court found a takings
14
Finding of Fact No. 6 applies the Penn Central factors of investment backed expectations,
purchase price, lot size, environmental impacts and City regulations in effect at the time of
15
purchase. As determined in Finding of Fact No. 6, a balancing of these factors results in the
entitlement of one single family home with living space limited to the area above a two car
16
tandem garage.
The minimum reasonable use set by Finding of Fact No. 6 provides the applicants with use rights
17
that are wholly distinguishable from those in Friedenburg. Most notably, the applicant will suffer
no reduction in value subsequent to the purchase of the subject property. The applicant has
18
pointed to no evidence that establishes a reduction in value below the $95,000 purchase price. As
noted in Finding of Fact No. 6, homes similar in size to those set by Finding of Fact No. 6 sell for
19
prices as high as $550,000. From the limited information in the record, it is likely that the
applicants will be able to build a 625 square foot home and then sell it at a profit. It is also of
20
choose to abandon their proposal as a result of their decision, they can get out of their purchase
21
and sale agreement with losses limited to the $5,000 earnest money. See Schenk testimony.
22
A second distinguishing factor is that the concept of reciprocal public benefit addressed in
Friedenburg is turned on its head. If the applicant is permitted to build the home he is proposing,
23
he stands to make an extraordinary large profit for single-family home development. T
o protect
24
those wetlands. In short, solely because of the environmental significance of Shell Creek, the
25
5
In the Presbytery case the court outlined the factors involved in a Penn Central analysis of a wetlands
takings claim, but then declined to apply them because the applicant had not exhausted his
administrative remedies prior to filing suit.
Reasonable Use and Variance p. 24 Findings, Conclusions and Decision
applicant only has to risk $5,000 in earnest money to develop a $95,000 lot into a home worth
1
hundreds of thousands of dollars.
Mr. Schenk argues that he is entitled to a larger home because the average sized home in
2
Edmonds is considerably larger than 625 square feet. He provides extensive data on the size of
homes located in the vicinity of the subject parcel as well as the City of Edmonds as a whole. Mr.
3
Schenk points to no legal authority or compelling reason as to why his minimal investment in the
subject property entitles him to an average sized home, which is about 3,100 square feet based on
4
home sale records for downtown Edmonds since 1900. See att. 31, p. 12. With no reduction in
value evident from limiting a future home to 625 square feet, there is no compelling reason to
5
authorize any larger home.
6
A final legal issue that should be addressed is the reasonable use definition requirement that
7
owner. For this case a liberal construction is already built into the defi
the applicant is entitled to a single-family home. Given the absence of any reduction in property
8
should be on fairly solid legal ground.
9
10
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
11
the ordinance codified in this title or its predecessor;
13. The criterion is met. The inability to derive reasonable use is wholly
12
attributable to the critical areas ordinance, which encumbers the entirety of the subject lot
13
with a stream buffer. The staff report concludes that the lack of reasonable use results
from the actions of the applicant in purchasing the property with knowledge of the critical
14
area restrictions. However, with or without this knowledge, the critical areas ordinance
prohibits all reasonable development of the property. The lack of development options
15
restrictions.
16
17
ECDC 23.40.210(A)(2)(e):
The proposal does not pose an unreasonable threat to the
18 public health, safety, or welfare on or off the development proposal site;
14. The criterion is not met. As determined in Finding of Fact No. 5, the
19
applicant has failed to demonstrate that the proposal will not adversely affect Shell Creek
or its buffer. Although not necessary for the conclusion that the criterion quoted above is
20
not met, the cumulative impacts of the proposal are also a concern. As the amount of
21
vacant land in the City of Edmonds continues to decrease, development pressures for
environmentally sensitive lots such as the one at hand will increase. It will be difficult to
22
conclude that public health, safety and welfare is not threatened if development such as
proposed in this application is allowed to proliferate within the critical area buffers of the
23
24 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
25
15. The criterion is not met. As determined in Finding of Fact No. 6, the
proposal does not minimize impacts to critical areas.
Reasonable Use and Variance p. 25 Findings, Conclusions and Decision
ECDC 23.40.210(A)(2)(g):
The proposal is consistent with other applicable regulations
1
and standards.
2
16. With the exception of the height subject to the proposed height variance,
3
the proposal is consistent with all other applicable regulations and standards. As
noted in the staff report, staff has determined compliance with all applicable
4
development standards and there is no evidence to the contrary.
5
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
6
lands in the same district;
7
17. The property is completely encumbered with critical area buffers, which
8
qualifies as a special condition and circumstance. Most lots in the vicinity and district are
not fully encumbered by critical area buffers.
9
ECDC 23.40.210(B)(2):
The special conditions and circumstances do not result from
10
the actions of the applicant;
11
18. See COL No. 13.
12
ECDC 23.40.210(B)(3):
A literal interpretation of the provisions of this title would
13
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
14
the variance requested is the minimum necessary to provide the applicant with such
rights;
15
19. See COL No. 10.
16
ECDC 23.40.210(B)(4):
Granting the variance requested will not confer on the
17
applicant any special privilege that is denied by this title to other lands, structures, or
18
buildings under similar circumstances;
19
20. The criterion is met. Authorizing the variance would enable the applicant
to build a home that is similar in size (and even a bit smaller) to the homes that surround
20
it.
21
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
22
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
23
24
21. The criterion is not met. As determined in Finding of Fact No. 5, the
applicant has not provided sufficient evidence to support a finding that the proposal will
25
not damage Shell Creek or its buffer.
Reasonable Use and Variance p. 26 Findings, Conclusions and Decision
ECDC 23.40.210(B)(6):
The decision to grant the variance is based upon the best
1
available science and gives special consideration to conservation or protection measures
necessary to preserve or enhance anadromous fish habitat.
2
22. The criterion is not met. As determined in Finding of Fact No. 5, the
3
applicant has not provided sufficient evidence to support a finding that the proposal
will not damage Shell Creek or its buffer. In particular, the habitat analysis done for
4
5
subject property.
6
7
DECISION
8
The height variance and reasonable use request are denied. The applications must
9
conform to all applicable criteria. Several criteria for each application are not met as
outlined in the Conclusions of Law of this decision.
10
Dated this 27th day of June, 2014.
11
12
13
14
Edmonds Hearing Examiner
15
Appeal Right and Valuation Notices
16
17
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
18
of this decision as required by ECDC 20.07.004(B). Reconsideration may be requested
19
within 10 calendar days of issuance of this decision as required by ECDC 20.06.010.
20
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
21
22
23
24
25
Reasonable Use and Variance p. 27 Findings, Conclusions and Decision