Hearing Examiner decision.pdfC. 1 so \3
CITY OF EDMONDS GARY HAAKENSON
MAYOR
121 5TH AVENUE NORTH - Edmonds, WA 98020 - (425) 771-0220 - FAX (425) 771-0221
HEARING EXAMINER
In the Matter of the Application of NO. PLN -2010-0024
Washington State Department Edmonds Ferry Terminal
of Transportation, Applicant Repaving Noise Variance
For a Noise Variance FINDINGS, CONCLUSIONS,
AND DECISION
StJMA4ARY OF DECISION
The request for a variance from the City's noise ordinance provisions to allow night-time
repaving work oil the Edmonds Ferry trestle for up to ten non-consecutive nights over a three
month period is GRANTED, subject to conditions.
Request:
Laura Musso Escude, on behalf of Washington State Department of Transportation (WSDOT/
Applicant), requested a variance from the City's noise ordinance provisions at Edmonds City
Code (ECC) 5.3 0.040 and .050 to allow night-time repaving work on the Edmonds Ferry trestle.
The request would allow the Applicant to exceed the City's noise limits for up to tell non-
consecutive nights during a three-month period to be determined in the filture. The Edmonds
Ferry Terminal is addressed as 71 West Main, in Edmonds, Washington,
Hearing,DLate-
J=te.
The Edmonds Hearing Examiner conducted an open record hearing oil the request on June 3,
2010.
Testimony:
At the open record hearing the following individuals presented testimony under oath:
1. Mike Clugston, Planner, City of Edmonds
2, Laura Musso Escude, WSDOT, Applicant
3. Tom Castor, Applicant Representative
4. Al Rutledge
Exhibits:
At the open record hearing the following exhibits were admitted into the record:
Staff Report dated May 25, 2010, with the following attachments:
Land Use Application
Findings, Conchisions, and Decision
04� of I_,"dmonds Ilearing &aminer
IT'SDOTAToise Variance, Ala PLN -2010-0024 page I Qf] 0
lncorpcmded Au,qust 11, 1890
2. Criteria Statement
3. Site plans and trestle photo
4. Edmonds City Code Chapter 5.30 —Noise Abatement and Control
5. Table of anticipated noise levels and proposed mitigations
6. Technical Comments
7. Public Notices and Affidavits
8. WSF Programmatic Exemption decision, dated April 8, 2008
9. Lockhart public comment, dated June 1, 2010
Upon consideration of the testimony and exhibits submitted at the open record hearing, the
Hearing Examiner enters the following findings and conclusions:
WSDOT (the Applicant) requested a variance from the City's noise ordinance provisions
at ECC 5.3 0.040 and .050 to allow nighttime repaving work on the Edmonds Ferry trestle
for up to ten non-consecutive nights. Washington State Ferries owns the Edmonds Ferry
Terminal, which is at 71 West Main Street, in Edmonds, Washington. Exhibit 1, pages 1-
2; Exhibit 1, Attachment 1.
2. The project is intended to preserve the structural integrity of the ferry dock's timber
trestle. Severe "alligator" cracking in the trestle surface indicates pavement failure,
which if left unaddressed could damage the timbers beneath the pavement. The proposed
project would reduce interim maintenance costs and prevent future damage that could
impact operations and require expensive repairs. Project components include: repaving
the trestle; resurfacing the transfer spans and retained fill areas; repairing storm drain sink
holes on the retained fill; repainting the curbs, rails, and traffic arm; and storm drain
repair and other work at the ferry terminal. Exhibit 1, Attachment 2; Exhibit 1,
Attachment 3; Escude Testimony.
In 2008, Washington State Ferries applied for and received a Programmatic Shoreline
Exemption from the City of Edmonds regarding maintenance and repair of the Edmonds
Ferry Terminal. The result is that no shoreline substantial development permit is required
for specific types of maintenance and repair work to the facility. The Programmatic
Exemption approval specifically noted that even exempt projects are required to comply
with the City's noise regulations. Exhibit 1, Attachment 8.
4. Washington State Ferries Operations Department prohibits maintenance from interfering
with scheduled service, which means two access lanes to the vessel slip must be available
at all operational times. Daytime work would require partial lane closures, which would
result in increased loading and unloading times, interfering with service schedules.
Industry standard construction techniques require the newly laid pavement to cure for a
sufficient time before cars can drive on it. The necessary repaving work must be
completed at night when the ferry is in recess for the evening. Castor. Testimony; Exhibit
1, Attachment 2.
Findings, Conclusions, and Decision
City of Edmonds Hearing Exaininer
R'SDOT Noise Uariance, No. PLN -2010-0024
page 2of10
5. The Edmonds Ferry Terminal property is unzoned public right-of-way. Surrounding uses
and zoning are as follows. To the north is Bracket's Landing, zoned Public Use. Parcels
to the south are zoned Commercial Waterfront, and developed with the Port of Edmonds
and various commercial uses. Burlington Northern Railroad tracks abut the ferry
property to the east. Inland from the Commercial Waterfront properties south of Main
Street is an area zoned Community Business, developed with commercial uses. Inland
from Bracket's Landing north of Main Street is an area containing Downtown Mixed
Commercial, Office -Residential, Single-family Residential, and Multifamily Residential
zoning developed with the uses allowed in those zones. Exhibit 1, Mages 2-3; City of
Edmonds Zoning Map, 2009.
6. The Edmonds noise ordinance bases the maximum permissible sound levels on three
factors: the zoning of the property generating the noise; the zoning of the property
receiving (hearing, perceiving) the noise; and time of day.
District of Sound District of Receiving Property
Source
Residential
Business
Commercial
Residential 55 dB(A)
57
60
Business 57
60
65
Commercial 60
65
70
Between the hours of 10:00 pm and 7:00 am, permitted noise levels are reduced by 10
dB(A) for receiving properties within residential districts. ECC 5.30.040; 5.30.050.A.
7. Sounds created by the repair of essential utility services or public road projects are
exempt from the limits in ECC 5.30.040 between the hours of 7:00 am through 10:00 pm.
ECC 5.30.110.A.3.
8. The nearest sensitive receiver (residential use) is 200 feet from the proposed project area.
Castor Testimony.
9. The Applicant submitted an information table showing the various kinds of equipment
that would be used for the project and the sound levels that would result from each at
three distances from the project site:
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
IVSDOT Noise variance, No. PLN -2010-0024
page 3 of 10
Equipment
dB(A) at 50'
dB(A) at 100'
dB(A) at 200'
One ton pickup
68
65
62
Dump Trucks
79
76
73
Paving machine
74
71
68
Vibratory roller
85
79
73
Planing machine/grinder
82
79
76
Air compressor
68
62
56
Saw cut asphalt
85
79
73
Portable light plants and
generators
64
58
52
Static roller and hand compressor
77
71
65
Flatbed truck
83
80
77
Truck mounted attenuator
68
62
56
Sweeper
69
66
63
Each piece of equipment listed exceeds the maximum permissible nighttime noise level
for the receiving residential properties (45 dB(A)) and the majority of the equipment
listed also exceeds maximum levels for the nearer commercial and business districts,
Exhibit 1, Attachment 5.
10. The Applicant proposed the following mitigation measures to reduce noise impacts to the
maximum extent possible:
® All vehicles shall be equipped with ambient sensitive backup warning
devices. Contractors may use back up observers in lieu of back up warning
devices for all equipment except dump trucks in compliance with WAC
296-155-610 and 296-155-615. Contractor sshall use back up observers and
back up warning devices for dump trucks in compliance with WAC Chapter
296-155-610.
® All trucks performing export haul shall have well maintained bed liners as
inspected and approved by the Engineer.
® Truck tailgating is prohibited. All truck tailgates shall be secured to prevent
excessive noise from banging.
® A copy of the noise variance shall be kept on the project site at all times.
e WSDOT will post a 24-hour complaint number on information signs.
e WSDOT or its representatives shall notify residents within 300 feet of each
area where nighttime construction will take place.
i Temporary noise shields to be used as directed by the Engineer.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
bi;SDOT Noise Variance, No. PLN -2010-0024
page 4of10
Contractors will use the vibratory roller in "static" mode within 500 feet of
residences.
e The Applicant can distribute ear plugs to affected residents upon request.
Exhibit 1, Attachments land 5; Escude Testimony.
11. The afterhours complaint number would allow people calling to hear an outgoing
message and leave a voicemail_ WSDOT representatives would return calls within 24
business hours. Escude Testimony,
12. The Applicant is requesting approval to exceed the maximum nighttime noise limits for
ten non-consecutive nights in an unspecified future three-month period. The work
window for summer 2010 ends approximately September 15, 2010 and does not reopen
until May 2011. As originally proposed, the project was budgeted to be paid for by a
federal grant under the Jobs Bill flowing from the American Reinvestment and Recovery
Act; however, the federal grant fell through. Another source of funding would
potentially be available in time for the project to be completed in the fall of 2010. If not,
the Applicant would attempt to fund and complete the work in the 2011 construction
season. Exhibit 1, Attachment 2; Exhibit 1, page 4; Castor Testimony.
13. The amount of nighttime work that needs to be done could be completed in two to three
days; however, because of the impossibility of predicting interruptions caused by
weather, equipment, contractor/crew scheduling and sequencing issues, and other
unforeseeable events, the Applicant is requesting permission for 10 nights' exception
from the code's noise limits. Based on previous projects, 10 nights would be the
minimum number of nights needed to ensure the work can be completed without being
interrupted by the need to return for additional variance approval. Nighttime operations
on the proposed project would occur on a Monday through Thursday schedule, four
nights per week, with no Friday, Saturday, or Sunday night construction hours. Castor
Testimony.
14. The advance written notice to residents within 300 feet of the project would be mailed
one time approximately seven days before commencement of nighttime work hours.
Additional written notice would be sent only in the event of something completely
unusual that resulted in an extensive delay in project completion. Escude Testimony.
15. At hearing, the Applicant acknowledged the one-year time limit on variance approval in
the code at ECDC 20.85.020.0 and the extension procedure at ECDC 20.85.020.D.
Castor Testimony.
16. The Technical Review Committee, consisting of representatives of the Fire District, the
Public Works and Parks Departments, and the Engineering and Building Divisions
reviewed the variance application and submitted comments that did not raise concerns or
oppose approval. The Fire District noted that the Applicant would be required to ensure
emergency access during construction. Exhibit 1, Attachment 6.
Findings, Conclusions, and Decision
City of Edinonds Hearing Examiner
MSDOT Noise Mariance, No. PLN -2010-0024
page 5 of 10
17. The proposed variance is exempt from review under the State Environmental Policy Act.
Exhibit 1, page 2; WAC 197 -I1 -800(6)(b); ECDC 20.15A.080,
18. Notice of Application and Public Hearing posted on-site, published in The Herald, and
mailed to surrounding property owners on May 20, 2010, consistent with the
requirements of ECDC 20.03. Exhibit 1, page 4; Exhibit 1, Attachment 7.
19. Public testimony at the hearing included: comments about the project's fiinding;
comments about a previous construction project several years ago that resulted in
substantial use of the 24-hour complain call in number due to nighttime construction
noise; questions about Washington State Ferries future plans to remove a route from the
Edmonds Ferry Schedule; and whether there would be notice to ferry passengers about
the proposed work. Rutledge Testimony. One comment from local residents within two
blocks requested that noise be kept to a minimum. Exhibit 1, Attachment 9.
20. Applicant representatives indicated that the ferry system is considering removing one
"run" from the Edmonds Ferry schedule, not a "route", and that ferry passengers would
be notified of the proposed repaving project via signage and other methods. Castor
Testimony.
21. As a major regional transportation hub, the Edmonds Ferry is uniquely important to the
City. The Edmonds/Kingston Ferry connects south Snohomish County and north King
County to the Kitsap Peninsula and points west on the Olympic Peninsula. According to
the City of Edmonds 2009 Comprehensive Plan, it is the fastest-growing route in the
state's ferry system. 2009 Comprehensive Plan, page 13.
Jurisdiction:
The Hearing Examiner has jurisdiction to hear and decide variance requests pursuant to
Edmonds Community Development Code 20.01.003.A and 20.01.003.C.
Criteria for Review:
Pursuant to Edmonds City Code 5.30.120, a variance may be granted from any requirement of
sections 5.30.040 or 5.30.110 of the City's noise ordinance if the following findings can be made:
A. Immediate compliance with the requirements of the City's noise ordinance cannot
be achieved because of special circumstances rendering immediate compliance
unreasonable in light of economic or physical factors, encroachment upon an
existing noise source, or because of non-availability of feasible technology or
control methods.
B. Any such variance or renewal thereof shall be granted only for the minimum time
period found to be necessary under the facts and circumstances.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
FESDOT Noise Flariance, No. PLN -2010-0024
page 6 of 10
C. ....In those circumstances where variances to the noise standards are anticipated,
the variance must be processed in the same manner provided for in ECDC
20.85.020 utilizing the criteria found in this section.
Pursuant to ECDC 20.85.010, the Hearing Examiner may not grant a variance unless the
following findings can be made:
A. Special Circumstances. That, because of special 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 the vicinity with the
same zoning.
1. Special circumstances include the size, shape, topography, location or
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
vegetation, streams, ponds and wildlife habitats.
2. Special circumstances should not be predicated upon any factor
personal to the owner such as age or disability, extra expense which may
be necessary to comply with the zoning ordinance, the ability to secure a
scenic view, the ability to make more profitable use of the property, nor
any factor resulting from the action of the owner or any past owner of the
same property;
B. Special Privilege. That the approval of the variance would not be a grant of
special privilege to the property in comparison with the limitations upon other
properties in the vicinity with the same zoning;
C. Comprehensive Plan. That the approval of the variance will be consistent with
the comprehensive plan,
D. Zoning Ordinance. That the approval of the variance will be consistent with
the purposes of the zoning ordinance and the zone district in which the property is
located;
E. Not Detrimental. That the variance as approved or conditionally approved will
not be significantly detrimental to the public health, safety and welfare or
injurious to the property or improvements in the vicinity and same zone;
F. Minimum Variance. That the approved variance is the minimum necessary to
allow the owner the rights enjoyed by other properties in the vicinity with the
same zoning.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
1 NDOT Noise Variance, No. PLN -2010-0024
page 7 of 10
Conclusions Based on Findings:
1. The purpose of the City's Noise Abatement and Control ordinance is "to minimize the
exposure of citizens to the physiological and psychological dangers of excessive noise
and to protect, promote, and preserve the public health, safety, and general welfare. It is
the express intent of the city council to control the level of noise in a manner which
promotes commerce, the use, value and enjoyment of property, sleep and repose, and the
quality of the environment," ECC 5.30.010. Variances from the maximum permissible
noise levels are established in the ordinance. ECC 5.30.120.
2. Repairs to the pavement on the ferry's timber trestle are needed in the short term to
ensure ongoing public safety and to prevent the increase in costs that could result from
further compromise to the trestle's structural integrity. Given the high importance of
ferry operations to the City and regional transportation network, the inability for the
project to proceed during ferry operating hours is a special circumstance that satisfies the
requirement of ECC 5.30.120.A. Findings 2, 4, and 21.
Due to the vagaries inherent in outdoor construction on major infrastructure and the
requirements specific to the proposed project, the request to exceed the City's noise
standards on 10 non-consecutive nights over a three month period is the minimum
necessary (ECC 5.30.120.B) to ensure the project is completed in an efficient manner,
preventing the need to return for additional variance approval. Findings 2, 4, 12, and 13.
4. The requested variance is necessary to allow completion of maintenance and repairs on a
significant public structure, which satisfies the special circumstances requirements of
ECDC 20.85.020.A and also comports with the mandate of avoiding special privileges in
20.85.020.8. The importance of the safety and effectiveness of ferry operations is a
guiding principle in the most recent Comprehensive Plan, and the instant proposal would
improve both. The subject property is unzoned. There would be nighttime noise impacts
to surrounding commercial, business, and residential uses that exceed the limits
established in the City's noise ordinance; however, conditions of approval would ensure
that noise impacts are mitigated to the maximum extent possible. Approval would only
allow excess noise for ten total non-consecutive nights over a three month period to be
determined in the future. As stated previously, the requested 10 nights is the minimum
number necessary to ensure efficient completion of the maintenance project that is
necessary to preserve public safety and to safeguard public funds. Findings 2, 4, 10, 11,
12, 13, 14, 16, and 21.
DECISION
Based on the preceding findings and conclusions, the request for a variance from the City's noise
ordinance to allow night-time repaving work on the Edmonds Ferry trestle for up to ten non-
consecutive nights during a three month period is GRANTED, subject to the following
conditions:
Sounds originating from the temporary construction site as a result of construction
activity to repave the Edmonds Ferry Trestle, as described in Attachments 2 and 3, shall
Findings, Conclusions, and Decision
City of Edmonds Pleating Examiner
Yi �SDOT Noise Variance, No. PLN -2010-0024
page 8 of 10
be exempt from the provisions of Edmonds City Code 5.30, The granting of a variance
shall not relieve any person from the requirements of ECC 5.30.130 relating to public
disturbance noises (ECC 5.30.120.D).
2. Approval is granted for the minimum length of time required to complete the project as
described in the Applicant's declarations as indicated in Attachment 2. The variance may
be utilized to exceed the nighttime noise limits for no more than ten total nights and no
more than seven consecutive nights during a three month period.
3. The Applicant shall implement the proposed noise mitigation measures:
All vehicles shall be equipped with ambient sensitive backup warning
devices. Contractors may use back up observers in lieu of back up
warning devices for all equipment except dump trucks in compliance with
WAC 296-155-610 and 296-155-615. Contractors shall use back up
observers and back up warning devices for dump trucks in compliance
with WAC Chapter 296-155-610.
® All trucks performing export haul shall have well maintained bed liners as
inspected and approved by the Engineer.
® Truck tailgating is prohibited. All truck tailgates shall be secured to
prevent excessive noise from banging.
® A copy of the noise variance shall be kept on the project site at all times.
® WSDOT will post a 24-hour complaint number on information signs.
e WSDOT or its representatives shall notify residents within 300 feet of
each area where nighttime construction will take place.
® Temporary noise shields to be used as directed by the Engineer.
® Contractors will use the vibratory roller in "static" mode within 500 feet of
residences.
® The Applicant can distribute ear plugs to affected residents upon request.
4. Emergency access shall be maintained during construction as required by the Fire
Marshall.
The Applicant shall notify the City at the same time that neighboring residents are
notified of the impending project commencement. The Applicant shall track and report
to Planning Staff the nights on which the variance approval is relied upon to exceed the
City's noise standards.
Findings, Conchrsions and Decision
City ofEdmonds Hearing Examiner
JESDOT Noise Variance, Aro. PLN -2010-0024
page 9 of 10
6. The variance must be acted on within one year from the date of approval or it shall expire
and be null and void, unless the Applicant files for an extension of time before the
expiration date and the City approves the extension request. An application for an
extension of variance approval time shall be reviewed as a Type 11 decision.
DECIDED this 17th day of June 2010.
Toweill Rice Taylor LLC
City of Edmonds Hearing Examiners
By:
Sharon A. Rice
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
F,SOOT Noise Mariance, No. PLAT -2010-0024
page 10 of 10
-( PC. 1 SWI
C" FFY F E D M 0 1`4 D S GARY HAAKENSON
MAYOR
121 5TH AVENUE NORTH - Edmonds, WA 98020 - (425) 771-0220 ® FAX (425) 771-0221
HEARING EXAMINER
RECONSIDERATION AND APPEAL
The following is a summary of the deadlines and procedures for filing requests for
reconsideration and appeals. An person wishing to file or respond to a request for
reconsideration or an appeal should consult the relevant ordinances and/or contact the Planning
Division of the Development Services Department for further procedural information,
REQUEST FOR RE, CONSIDERATION
Section 20.06.010 of the Edmonds Community Development Code (ECDC) contains the
procedures for requesting reconsideration of a Hearing Examiner decision. Requests for
reconsideration must be filed with the City Planning Director within 10 calendar days of the
Hearing Examiner's decision. The filing deadline is 4:30 p.m, on the last business day of the
reconsideration period. Only parties of record (i.e., the applicant, any person who testified at the
open record hearing on the application, any person who individually submitted written comments
on the application, or the City of Edmonds) may file a request for reconsideration. The grounds
for reconsideration are limited to errors of procedure, errors of law or fact, errors of judgment, or
the discovery of new evidence that was not known and could not in the exercise of reasonable
diligence have been discovered. Reconsideration requests must contain the information specified
in ECDC 20.06.010(D) and be accompanied by the required filing fee.
APPEALS
Pursuant to ECDC 20.05.020(13), appeals of hearing examiner decisions on variances shall be to
the Snohomish County Superior Court as provided in ECDC 20.85.020.13 and 20.07.006, in
accordance with the Land Use Petition Act (RCW 36.70C). LUPA appeals must be filed within
21 days of decision issuance. Filing a request for reconsideration is not a prerequisite to filing an
appeal.
EFFECT OF REQUEST FOR RE, CONSIDERATION ON APPEAL DEADLINE
The timely filing of a. request for reconsideration stays the Hearing Examiner's decision Until
such time that the Hearing Examiner issues a decision on reconsideration, and any judicial
appeal must be filed within 21 days of the decision on reconsideration.
LAPSE OF APPROVAL
Section 20.05.020(C) of the ECDC states: "Time Limit. The approved variance must be acted on
by the owner within one year from the date of approval or the variance shall expire and be null
and void, unless the owner files an application for an extension of time before the expiration and
the city approves the application."
NOTICE TO COUNTY ASSESSOR
The property owner may, as a result of the decision rendered by the Hearing Examiner, request a
change in the valuation of the property by the Snohomish County Assessor's Office.
1?�corporaied Au!p)si 11, 1890
'111
C. is () \3
CITY ()F EDMONDS
121 5TH AVENUE NORTH - Edmonds, WA 98020 - (425) 771-0220 - FAX (425) 771-0221
HEARING EXAMINER
OFFICE OF THE HEARING EXAMINER
CITY OFEDMONDS, WASHINGTON
Applicant
Washington State Department of Case No, PLN -2010-24
Transportation
For a Variance DECLARATION OF SERVICE
1, Sharon A. Rice, the undersigned, do hereby declare:
GARY HAAKENSON
MAYOR
That I am a partner in the firm of Toweill Rice Taylor LLC, Which maintains a professional
set -vices agreement with the City of Edmonds, Washington for the provision of Hearing Examiner
set -vices, and make this declaration in that capacity, and that I am now and at all times herein
mentioned have been a citizen of the United States, a resident of the State of Washington, over
the age of eighteen (18), and competent to be a witness and make service herein; and that on June
17, 2010 1 served a copy of the decision in case PLN -2010-24 upon the following individuals at
the addresses below by first class US Mail:
Maria Musso Escude, WSDOT
15700 Dayton Avenue N.
Shoreline, WA 98133
Clerk of the Edmonds City Council
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
Alvin Rutledge
7 101 Lake Ballinger Way
Edmonds, WA 98026
City of Edmonds Planning Division
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
Harry and Rita Speiser
200 Beach Place # 104
Edmonds, WA 98020
James L. Lockhart
110 James Street
Edmonds, WA 98020
I hereby declare under penalty of perjury under the laws of the State of Washington that the foregoing is
true and correct, this 17th day of June 2010 at Edmonds, Washington.
Sharon A. Rice, Toweill Rice 'Taylor LLC
Incorporaled A�..qlust 11, L"00