Hearing Examiner Decision.pdf11)(:'. I Bqo
I A T OF
EDMONDS MIKE COOPER
MAYOR
121 5TH AVENUE NORTH • EDMONDS, WA 98020 0 (425) 771-0220 • fax (425) 771-0221
HEARING EXAMINER
In the Matter of the Application of ) NO. PLN2010-0061 (CUP)
NO. PLN2010-0065 (ADB)
Bill Arens on behalf of )
Washington Federal Savings Bank ) FINDINGS, CONCLUSIONS,
AND DECISION
For Design Review and )
a Conditional Use Permit )
SUMMARY OF DECISION
The request for design review approval and a conditional use permit (CUP) to allow two drive
through teller lanes at a proposed new Washington Federal Savings Bank building replacing the
existing structure at 229 Main Street in Edmonds, Washington is GRANTED subject to
conditions.
Request:
Bill Ahrens, on behalf of Washington Federal Savings Bank (Applicant), requested design
review approval and a CUP to allow two drive through teller lanes at a proposed new
Washington Federal Savings Bank building, to replace the existing structure at 229 Main Street,
in Edmonds.
Hearing Date:
The City's Hearing Examiner conducted an open record hearing on the request on October 7,
2010.
Testimony:
At the open record hearing, the following individuals presented testimony under oath:
1. Kernen Lien, Planner, City of Edmonds
2. Bill Arens, Craft Architects, Applicant Representative
3. Alvin Rutledge
Exhibits:
At the open record hearing the following exhibits were admitted into the record:
Exhibit 1 City of Edmonds Planning Division Staff Report, dated September 28, 2010, with
the following attachments:
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 1 of 11
incwporated August 11, 1890
1. PLN20100061 Land Use Application
2. PLN20100061 Criteria Statement
3. PLN20100061 Site Plans
4. PLN20100061 Photos of Existing Condition
5. PLN20100065 Land Use Application
6. PLN20100065 Criteria Statement
7. PLN20100065 Site Plans
8. Zoning and Vicinity Map
9. Applicants Notice Affidavits
10. Notice of Application and Public Hearing
11. PLN20100061 Technical Review Committee Comments
12. PLN20100065 Technical Review Committee Comments
13, Critical Area Determinations CRA19950214 and CRA 19950215
14. Eadie Comment
15. Comprehensive Plan Downtown Design Objectives
16. Bench Detail
17. Lights Detail
18. Eastern Facade with additional window
19. Street Tree Plan Map
20. Correspondence from Jeanie McConnell, City of Edmonds Engineering
Program Manager, dated August 18, 2010
Upon consideration of the testimony and exhibits submitted, the Hearing Examiner enters the
following findings and conclusions:
FINDINGS
1. The Applicant requested design review approval and a CUP to allow two drive through
teller lanes at a proposed new Washington Federal Savings Bank building, replacing the
existing structure that has one drive through teller lane, at 229 Main Street in Edmonds.'
Exhibit 1, Attachment 1; Lien Testimony.
2. The subject property has a Downtown Business (BD2) zoning designation. A conditional
use permit is required to operate a drive-in businesses the BD2 district. Edmonds
Community Development Code (ECDC) 16.43.020, table 1. Required design review was
consolidated with CUP review, pursuant to ECDC 20.01.002.B, and both will be decided
in the instant decision. Exhibit 1, pages 1-2.
3. The 14,400 square foot subject property is located at the northwest corner of Main Street
and 3rd Avenue, one of the busiest intersections in Edmonds. It is developed with the
existing Washington Federal Savings Bank. The existing bank has one drive through
teller lane that is situated between the off-street parking area and the bank's entrances.
The bank is currently accessed from one of two curb cuts on 3rd Avenue, as well as from
the alley off of Main Street. Exhibit 1, page 2; Exhibit 1, Attachment 6.
' The subject property is known as Tax Parcel Number 00434400700100. Exhibit 1, page I.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 2 of I I
4. The proposal would remove and replace the existing building with a slightly larger
building (still under 4,000 square feet) in approximately the same place on-site. The
project would provide two drive through teller lanes and place both teller lanes at the
outer edge of the site. The new teller lane configuration would provide more on-site
stacking room for customers and would remove the vehicle/pedestrian conflict resulting
from the current configuration. One of the existing curb cuts on 3rd Avenue would be
removed, reducing traffic impacts and possibly making room for an additional on -street
parking space. The proposal includes a small plaza area, landscaping, and a bench at the
corner of Main and 3rd Avenue for the use of the community. Other than these site
layout differences, the proposed use is the same as the existing use, operated by the same
owner. No change to the volume or nature of customer traffic is anticipated. Exhibit 1,
Attachment 6; Attachment 7, Sheet L-1; Arens Testimony, Exhibit 1, page 10.
5. Surrounding parcels west of 3rd Avenue are zoned BD2, while parcels east of 3rd
Avenue and along Main Street are zoned BD 1. All surrounding parcels are developed
with businesses; no residential parcels abut the subject property. Exhibit 1, pages 3-4.
6. The property has a Comprehensive Plan designation of "Downtown Mixed Commercial "
and the site is located within the Downtown Waterfront Activity Center overlay. The
Comprehensive Plan describes the Downtown Mixed Commercial district as follows:
Downtown Mixed Commercial
To encourage a vibrant downtown, first floor spaces should be designed with adequate
ceiling height to accommodate a range of retail and commercial uses, with commercial
entries at street level. Buildings can be built to the property line. Building heights shall
be compatible with the goal of achieving pedestrian scale development. The first floor of
buildings must provide pedestrian weather protection along public sidewalks. Design
guidelines should provide for pedestrian -scale design features, differentiating the lower
commercial floor from the upper floors of the building. The design of interior
commercial spaces must allow for flexible commercial space, so that individual business
spaces can be provided with individual doorways and pedestrian access directly to the
public sidewalk. When the rear of a property adjoins a residentially -designated property,
floor area that is located behind commercial street frontage may be appropriate for
residential use. Where single family homes still exist in this area, development
regulations should allow for "live -work" arrangements where the house can
accommodate both a business and a residence as principal uses.
Exhibit 1, pages 3-4, as excerpted from the City of Edmonds Comprehensive Plan.
Zoning
7. The BD2 zone requires a 15 -foot setback adjoining any residentially zoned parcels.
Maximum building height allowed is 25 feet, and the minimum height of the ground floor
is 12 feet. ECDC 16. 43.030.A. No off-street parking is required for the commercial
floor area of any permitted use. ECDC 16.43.030.D.2. BD2 zoned lots greater than
12,000 square feet in area are required to retain at least five percent of the total site area
in open space. ECDC 16 43.030.E.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 3 of 11
8. None of the surrounding parcels is residentially zoned. Submitted plans show a total
building height of 22 feet. At 14,400 square feet, the site is required to retain a minimum
of 720 square feet in open space. The plans depict more than 750 square feet of open
space (approximately 800 square feet) to be retained. The project would provide 18 off-
street parking stalls. Exhibit 1, pages 4-5; Exhibit 1, Attachment 7, Lien Testimony.
Design Review
9. Development of properties in the BD2 zone is subject to District -Based Design Review.
The instant proposal is subject to a Type I design review process, which is a Planning
Staff decision; however, Design Review has been consolidated with CUP review, both to
be decided by the hearing examiner. Planning Staff s review identified those downtown
design objectives that are relevant and applicable to the instant proposal on pages 5
through 7 of the Staff report at Exhibit 1. Staffs selection of applicable downtown
design objectives is adopted and Staffs analysis is incorporated in its entirety in this
finding. Some details of Staffs analysis will be specifically called out in the findings
that follow. Exhibit 1, pages 5-7, Lien Testimony.
10. The project's proposed elimination of one of the 3rd Avenue curb cuts would be
consistent with vehicular access and parking design objectives. The site would be
accessible to vehicles from the alley off Main Street and the remaining 3rd Avenue
entrance. Exhibit 1, page S.
11. Pedestrian access to the site would be from the Main Street sidewalk. In addition to
removing a curb cut and relocating the teller lanes outside of the parking area, the
proposal would further protect pedestrian access by placing a brick wall barrier between
teller lane traffic and the sidewalk on Main Street and landscaping in the southwest
corner of the site that would act as physical barriers for the protection of pedestrians.
Trash and mechanical equipment would be hidden within an enclosure west of the drive-
through teller lanes along the alley. Exhibit 1, pages 6, 10.
12. The building entry location, scale and materials of the structure, covered entries, adequate
lighting, open space, landscaping, and street furniture would all contribute to a safe,
active, pedestrian friendly, and welcoming land use. The structure would be human -scale
and, with the landscaping and amenities proposed, would improve visual character of
downtown Edmonds. Exhibit 1, pages 6-7.
13. Regarding building form, the proposal would not result in a large building mass and
would not significantly alter the public view corridor along Main Street. Roof and walls
are modulated, although Staff recommended an additional design feature on the eastern
facade, to break up a relatively large unbroken expanse of wall facing the street. Staff
determined that as proposed the structure would be "compatible with the surrounding
environment, visually interesting, and ... of a scale and design that reduces the visual
impacts of larger building masses." Exhibit 1, page 7.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 4 of 11
14. In response to Staff s concern about the eastern blank wall, the Applicant proposed an
additional window. The eastern wall on 3rd Avenue would also be partially screened by
landscaping, Exhibit 1, page 10; Lien Testimony, Exhibit 1, Attachment 18.
Landscaping
15. Two types of landscaping are required for the proposal: Type III landscaping around the
perimeter and Type V in the parking area. ECDC 20.13.030. C and. 030.E.
16. The subject property has a row of mature deciduous trees along its northern boundary,
placed roughly 30 feet on center. There is also a mature hedge along the northern lot
line. Although this existing vegetation does not contain any evergreen species specified
by the Type III landscaping regulations, it does provide a strong visual separation
between the two sites. Planning Staff submitted the position that the existing vegetation
along the northern boundary satisfies the intent of the Type III landscaping regulations
and that it would be better to leave the existing mature vegetation than to require removal
and replacement with new species that would take some time to mature. Exhibit 1, page
8; Lien Testimony.
17. Road frontage improvements would necessitate removal of some existing street trees
along the site's southern boundary on Main Street. The street trees must be replaced from
the list of species provided in the City of Edmonds Street Tree Plan. The species of street
trees approved for 3rd Avenue and Main Street are deciduous, and they are required to be
planted 30 to 40 feet on center. It is likely that removal and replacement of the street
trees would be done simultaneously with a project to redevelop the post office property,
with the trees along the whole block removed and replaced at the same time. Exhibit 1,
page 8; Lien Testimony, Exhibit 1, Attachment 20.
18. Type III landscaping regulations require no more than 50% of a site's trees to be
deciduous. Staff noted that if the Applicant retains the existing mature trees along the
northern lot line, given the requirement that street trees be deciduous, it is not possible for
the Applicant to satisfy the 50% evergreen species requirement. Staff submitted the
opinion that requiring removal and replacement of existing deciduous trees on the
northern lot line was not necessary to effectuate the screening intent of the code and
would not be the preferred alternative when existing vegetation provides the desired
screening and replacement vegetation would take years to reach the same level of
screening? ECDC 20.13.030.C1; Exhibit ],page 9; Lien Testimony.
19. The proposal's 18 off-street parking stalls would require 315 square feet of Type V
landscaping pursuant to ECDC 20.13.030.E.1.a. The submitted landscaping plan depicts
404 square feet of Type V landscaping in three separate areas, each of which is at least
2 Pursuant to ECDC 20.13.030.C, Type III landscaping is intended to provide visual separation of uses from streets,
and visual separation of compatible uses so as to soften the appearance of streets, parking areas and building
elevations.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 5 of II
four feet in any direction.3 Planning Staff submitted the opinion that the proposed
landscaping satisfies the purpose and the requirements of the Type V landscaping
requirements. Exhibit 1, page 9; Lien Testimony.
General Findings
20. The proposal was considered by the City's Engineering and Building Divisions, Public
Works and Parks Departments, and the Fire District. The City's Engineering Division
noted that compliance with engineering codes and construction standards would be
reviewed with the building permit application. The Building Division noted that
compliance with building code would be reviewed at time of building permit application.
Public Works indicated that site frontage development would provide an opportunity to
replace the traffic signal at the corner of 3rd Avenue and Main Street. The Parks
Department inquired about street tree removal and replacement. The Fire District
reserved comments for building permit review. Exhibit 1, Attachment 11.
21. Staff recommended approval of the CUP with a condition limiting transferability of the
CUP -authorized drive through teller lanes to future uses that are also banks. Staff
testified that the use reviewed was limited to one with the same characteristics, including
activity levels and traffic patterns, as the existing bank. Staff suggested that any other
type of drive through business, such as a restaurant, would require additional review
before drive through lanes could be appropriately approved, due to the location of the
subject property. Lien Testimony; Exhibit 1, page 11.
22. Notice of application and public hearing was posted, mailed to neighboring property
owners within 300 feet, and published in The Herald, consistent with the notice
provisions of ECDC 20.03. Exhibit 1, page 2; Exhibit 1, Attachments 9 and 10.
23. Neighboring property owners Claire and Richard Eadie submitted comments expressing
concerns about construction noise, due to the quiet nature of uses in their adjacent
commercial building at 115 - 3rd Avenue. The Eadies made reference to an ongoing
property line issue along the shared lot line, which is the subject property's northern
boundary. However, the Eadies noted that the site plan shows no development north of
the existing curbing on the bank property and stated that this alleviates any concerns
about the proposal's impacts on the property line issue. Exhibit 1, Attachment 14.
24. Additional public comment requested information on construction noise complaints and
asked whether the project would be required to post an afterhours complaint number and
also requested further information on when site construction could be expected to start
and to be complete. Rutledge Testimony.
25. Staff noted that construction would be governed by the City's noise ordinance found at
Edmonds Municipal Code 5.30.110.B, which states: "Sounds originating from temporary
3 Planning Staff noted that ECDC 20.13.030.E.2.a (requiring each landscaping area to be at least 150 square feet and
four feet in any direction) and ECDC 20.13.030.E.2.e (requiring each planter area to be a minimum of 64 square
feet) appear to be contradictory. Exhibit 1, page 9, Lien Testimony.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 6 of 11
construction sites as a result of construction activity are exempt from the provisions of
this chapter, but only during the hours of 7:00 a.m. to 6:00 p.m. on weekdays and 10:00
a.m. to 6:00 p.m. on Saturdays, excluding Sundays and federal holidays." Staff
determined that no noise complaint phone number needed to be posted, and that persons
with complaints about construction noise should contact the City regarding enforcement
of the noise ordinance. Lien Testimony.
CONCLUSIONS
Jurisdiction:
The Hearing Examiner has jurisdiction to hear and decide CUP requests pursuant to ECDC
20.100.010.A.3 and 20.05.010. The Examiner has jurisdiction to decide Type I design review
applications when such items are consolidated with quasi-judicial matters also before the
Examiner, pursuant to ECDC 20.01.002.13.
Criteria for CUP Review:
Pursuant to ECDC 20.05.010, the Hearing Examiner may not approve a CUP unless the
following findings can be made:
A. That the proposed use is consistent with the comprehensive plan;
B. Zoning Ordinance. That the proposed use, and its location, is consistent with
the purposes of the zoning ordinance and the purposes of the zoning district in
which the use is to be located, and that the proposed use will meet all
applicable requirements of zoning ordinance;
C. Not Detrimental. That the use, as approved or conditionally approved, will not
be significantly detrimental to the public health, safety and welfare, and to
nearby private property or improvements unless the use is a public necessity;
and
D. Transferability. The hearing examiner shall determine whether the
conditional use permit shall run with the land or shall be personal.
In addition to the conditional use criteria found in Chapter 20.05, pursuant to ECDC
16.43.020.A, conditional uses may be permitted in the BD2 zone only if the proposal meets all of
the following criteria:
1. Access and Parking. Pedestrian access shall be provided from the sidewalk. Vehicular
access shall only be provided consistent with ECDC 18.80.060. When a curb cut is
necessary, it shall be landscaped to be compatible with the pedestrian streetscape and
shall be located and designed to be as unobtrusive as possible.
2. Design and Landscaping. The project shall be designed so that it is oriented to the street
and contributes to the pedestrian streetscape environment. Fences more than four feet in
height along street lot lines shall only be permitted if they are at least 50 percent open,
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 7 of 11
such as a lattice pattern. Blank walls shall be discouraged, and when unavoidable due to
the nature of the use shall be decorated by a combination of at least two of the following:
a. Architectural features or details;
b. Artwork;
c. Landscaping.
Criteria for Design Review:
Pursuant to ECDC 20.12.030.B.2, in order to obtain district -based design review approval, the
decision making body must be able to enter findings that Applicant has demonstrated compliance
with the following:
a. That the proposal meets the bulk and use requirements of the zoning ordinance,
including the guidelines and standards contained in the relevant zoning
classification(s); and
b. That the proposal meets the relevant district -specific design objectives contained in
the comprehensive plan.
The criteria used in the design review of projects within the BD2 zone are the Downtown Design
Objectives located on pages 54 — 58 of the Comprehensive Plan. Staff identified the following objectives
as relevant to the instant application:
Site Design
1. Vehicular Access and Parking
2. Pedestrian Access and Connections
3. Building Entry Location
4. Building Setbacks
5. Building/Site Identity
6. Weather Protection
7. Lighting
8. Signage
9. Site Utilities, Storage, Trash and Mechanical
10. Art and Public Spaces
Building Form
1. Height
2. Massing
3. Roof Modulation
4. Wall Modulation
Building Facade
1. Facade Requirements
2. Window Variety and Articulation
3. Building and Facade Materials
4. Accents/Colors/Trim
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 8 of 11
Conclusions Based on Findings:
1. With conditions, the proposed use would be consistent with applicable City of Edmonds
Comprehensive Plan goals and policies for the "Downtown Mixed Commercial" land use
designation and the Downtown Waterfront Activity Center overlay for the purposes of
design review and conditional use permit review. The project would eliminate one of the
curb cuts on 3rd Avenue reducing the traffic impacts of the use on the busy Edmonds
intersection of Main Street and 3rd Avenue. Vehicles access would also be provided off.
Both the Main Street and 3rd Avenue access points would provide for entry and exit from
the site. The drive-through configuration was reviewed and approved by the Engineering
Division. Pedestrian access from the Main Street sidewalk and from the off-street
parking area would be protected from drive through lane vehicle conflicts by brick and
landscaping barriers. The project would provide more than the minimum open space
required, including a small plaza with a bench at the corner. Building mass, with covered
entrances, would be friendly in scale and adequately lit. Trash and mechanical
equipment would be screened from view. The project provides ample open space,
landscaping, and street furniture. The proposed building is approximately three -feet
lower the 25 -foot height limit and will not impact the public view corridor along Main
Street. Covered entries, brick work, roof modulation, window placement, and
landscaping break up the mass of the building. With a condition requiring the addition of
one window to the eastern facade, the proposal would be compatible with the surrounding
environment, visually interesting, and is of a scale and design that minimizes the visual
impacts of larger building masses. Findings 3, 4, 6, 9, 10, 11, 12, 13, and 14.
2. The project would be consistent with the purpose and the development standards of the
BD2 zone. Pursuant to ECDC 16.43.000, the purpose of the BD2 district is to: promote
downtown Edmonds as a setting for retail, office, entertainment and associated
businesses and as a destination for visitors from throughout the region and to define the
downtown commercial and retail core along streets having the strongest pedestrian links
and pedestrian -oriented design elements, while protecting downtown's identity. Banks
are allowed as a service business in the BD2 zone, and drive through lanes are allowed
upon CUP approval. As proposed and conditioned, the project would comply with the
BD2's setback, building height, open space, parking, and other applicable development
standards. Findings 2, 3, 4, S, 7, and 8.
3. As conditioned, the proposal would not be detrimental to the public health, safety, or
welfare, and would not have adverse impacts on surrounding uses. The project would not
result in a change to the nature and volume of customer traffic or activity. The relocation
of the drive through lanes would reduce the potential for vehicle -pedestrian conflicts.
The longer lanes would provide increased on-site stacking for vehicles, reducing the
possibility of traffic impacts on 3rd Avenue. The project would enhance the appearance
of the building, add landscaping, and improve customer safety without impacting the
view corridor of the existing neighborhood. Compliance with all building, engineering,
tree, and fire requirements would be ensured through building permit review. Findings 3,
4, 5, 8, 10, 11, 16, 17, 18, 19, and 20.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 9 of 11
4. Conditional use approval should be transferable to future bank operators on-site, but not
to operators of any other kind of business. The impacts of a bank with drive through
lanes are what was reviewed prior to this decision. Other types of business could have
different traffic patterns and overall impacts on the neighborhood. Future public
processes would allow the potential impacts of any non-bank use to be fully considered
prior to its use of the drive through lanes. Findings 3, 5, and 21.
5. Pedestrian access is provided from the Main Street side walk. Compliance with
Engineering codes and construction standards would be ensured through the building
permit process. The proposal would eliminate an existing curb cut. Findings 10, 11,
and 20.
6. The proposed building would be oriented to the street. The project would enhance the
pedestrian streetscape by providing open space, landscaping, and street furniture. As
conditioned, no expanses of blank walls would be presented to the streets. Findings 11,
12, and 13.
7. Pursuant to ECDC 20.13.000, the Hearing Examiner is authorized to interpret and modify
the requirements of the landscaping requirements contained in ECDC 20.13. Based on
this authority, the project may retain the existing mature deciduous trees and dense shrub
along the northern site boundary, even though its retention would cause the project to
provide less than 50% evergreen tree species as required by ECDC 20.13.030.C.1. The
existing landscaping satisfies the screen purpose of Type IH landscaping at ECDC
20.13.030.0 in its present condition. Replacement would not only be unnecessary, but
would actually result in an interruption of Type HI screening for the length of time it
would take new plantings to reach maturity. Findings 15, 16, 17, 18, and 19.
DECISION
Based on the preceding findings and conclusions, the request for design review approval and a
CUP to allow two drive through teller lanes at a proposed new Washington Federal Savings
Bank building, to replace the existing structure at 229 Main Street, in Edmonds, Washington is
GRANTED, subject to the following conditions:
1. Compliance with Engineering codes and construction standards will be reviewed
with the building permit application for re -development.
2. Landscaping generally consistent with the landscape plan in Attachment 7, Sheet
L-1 shall be provided.
3. The street tree species shall be reviewed and approved by the Parks Department
for compliance with the Street Tree Plan.
4. The eastern facade of the building facing 3rd Avenue North shall include the
second window depicted in Attachment 18.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 10 of 11
5. This conditional use permit shall be transferable to subsequent property owners if
the subsequent uses are banks. If subsequent uses of the property include a drive-
in business that is something other than a bank, conditional use permission for the
drive through lanes shall become void.
6. By this condition, the Applicant is advised that the design review approval
granted herein shall be subject to the time limits established at ECDC 20.12.090.
7. By this condition, the Applicant is advised that the conditional use approval
granted herein shall be subject to the time limits established at ECDC
20.05.050.C.
DECIDED this 21 st day of October 2010.
Toweill Rice Taylor LLC
City of Edmonds Hearing Examiners
By:
Shaio16114
n A. Rice
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Washington Federal Savings Bank CUP, No. PLN2010-00611PLN2010-0065 page 11 of 11