Issacson Hearing Examiner Decision.pdflnc.189")
CITY OF EDMONDS
121 5TH AVENUE NORTH - Edmonds, WA 98020 - (425) 771-0220 - FAX (425) 771-0221
HEARING EXAMINER
In the Matter of the Applications of )
Brian and Cindy Isaacson )
For a Height Variance, a Critical Area )
Variance, and a Minor PRD Amendment )
Nos. V-08-53, V-08-72, and
LL -08-75
FINDINGS, CONCLUSIONS,
AND DECISION
GARY HAAKENSON
MAYOR
SUAD4ARY OF DECISION
The Applicants' requests, including a height variance, a critical areas variance, and a minor
planned residential development (PRD) amendment, relating to a proposed single-family
residence at 16007 - 73rd Place West in Edmonds, Washington are GRANTED, subject to
conditions.. .
SUMMARY OF RECORD
.g uest:
Brian and Cindy Isaacson (Applicants) requested a height variance (V-08-53), a critical area
reasonable use variance (V-08-72), and a minor PRD amendment (LL -08-75) related to a
proposed single-family residence at 15007 - 73rd Place West in Edmonds, Washington -
Hearing Date:
The City of Edmonds Hearing Examiner conducted an open record hearing on the requests on
February 5, 2009.'
Testimony:
At the open record hearing, the following individuals presented testimony under oath:
I . Kernen Lien, Planner, City of Edmonds
2. Brian Isaacson, Owner/Applicant
3. Mike O'Brien, O'Brien & Associates Architects, Applicant Representative
4. Charles Lee, Terra Associates, Inc-, Applicant Representative
5. Alvin Rutledge
6. Theresa Neal
Exhibits:
At the open record hearing, the following exhibits were admitted in the record:
1. City of Edmonds Planning Division Staff Report, dated January 23, 2009
' Monday February 16, 2009 was a legal Holiday and is excluded from the ten business day time frame for decision
issuance.
Findings, Conclusions, crud Decision
City of Edmonds Hearing Examiner
Isaacson, Nos V-2008-53, V-08--72, and LL -08-75 page I of 16
Incorporated August 11, 1890
Sister City - Hekinan, Japan
2. Lorian Woods Planned Residential Development Plat Map
3: Height Variance Application V-08-53
4. Statement in support of V-08-53
5. Height Variance Site Plans
6. Critical Area Variance Application V-08-72
7. Wetland Report
8. Planting Plan for Tree Cutting Permit Application File No. CU -06-104 & One
Sequoia Tree Removed & Replaced under a new 2008 CUP
9. Monitoring Plan for Planting Plan
10. Minor PRD Amendment Application LL -08-75.
11. Letter from Lorian Woods Homeowners Association
12. PRD Amendment Record of Survey
13. Zoning and Vicinity Map
14. CRA -2006-0147
15. Geotechnical Report: Terra Associates, Inc. June 6, 1989
16. Geotechnical Report: Terra Associates, Inc. September 14, 2005
17. Geotechnical Report: Landau Associates February 17, 2006
18. Geotechnical Report: Terra Associates, Inc. August 7, 2006
19. Geotechnical Report: Landau Associates December 28, 2006
20. Geotechnical Report: Terra Associates, Inc. March 31, 2008
21. Geotechnical Report: Terra Associates, Inc. July 8, 2008
22_ Geotechnical Report: Landau Associates July 22, 2008
23. August 28, 2008 letter of incompleteness
24. MDNS for Lorian Woods PRD
25. DNS for CU -06-104
26. Adoption of DNS for CU -06-104
27. Hearing Examiner Recommendation on Lorian Woods PRD
28. Proposed Lorian Woods CC&R's amendment
29. Variance Map
30. Area calculations for proposed residence
31. Public notice affidavits
32. Neal Comment Letter, dated February 2, 2009
Findings, " Conclusions, and Decision
City of Edmonds Hearing Examiner
Isaacson, Nos. V-2008-53, V-08-72, and LL -08-75 page 2 of 16
34. Affidavit of Publication from The Everett Herald, dated January 21, 2009
Upon consideration of the testimony and exhibits submitted at the open record hearing, the
Hearing Examiner enters the following findings and conclusions:
FINDINGS
1. The Applicants requested a height variance (file no. V-08-53), a critical area reasonable
use variance (V-08-72), and a minor PRD amendment (LL -08-75) related to a proposed
single-family residence at 16007 - 73d Place West in Edmonds, Washington.' The
Applicants request a nine -foot height variance from the maximum allowed 25 feet to a
maximum structure height of 34 feet. The critical area variance is requested to allow
development of a lot that is fully encumbered by critical areas and associated buffers.
The minor PRD amendment would allow a minor adjustment to the southern property
line, jogging the boundary line south 3.5 feet, increasing the size of the Applicants'
parcel by 175 square feet, to maintain all structural elements of the residence within the
lot boundaries_ It would also allow minor modification to the PRD's CC&Rs to be
effectuated to allow the eaves of the proposed structure to intrude into the required ten -
foot building setback from the shared lot line to the north. Exhibit 1, pages 1-3; Exhibits
3, 4, 5, 6, 7, 5, 9, 10, 1], and 12.
2. The subject property, which is currently undeveloped, is Lot 2 of the Lorian Woods PRD,
located in a single-family residential neighborhood in northern Edmonds. The PRD was
approved in 1990 prior to the Growth Management Act and critical area regulations. As
explained by City of Edmonds Planning Division Staff (Staff:); the restrictions on
individual lots that could result from the critical areas on-site were not fully appreciated
at the time of PRD approval, as it predated adoption of critical areas regulations. Six of
the ten lots within the PRD are developed with single-family residences. The Applicants
bought Lot 2 in 2004. Exhibit 1, pages 5-6, Testimony ofMr. Lien; Exhibit 13.
3. In preparation for site development, the City conducted a critical areas review (CRA -
2006 -0147) of the site. Exhibit 14. Subsequent critical areas field studies revealed that
the site contains a Category N wetland and an associated Type Ns (seasonal, non -fish
bearing) stream. According to the City's critical areas regulations, Category N wetlands
require a 35 -foot buffer, and Ns streams require a 25 -foot buffer. ECDC 23.50 010Y,
ECDC 23.90.040.D. The stream and associated buffer are entirely located within the
wetland and its buffer. The wetland and required 35 -foot buffer encumber the entire
parcel. Exhibit 7, seepage 24.
4. The Lorian Woods PRD is located within the North Edmonds Earth Subsidence and
Landslide Hazard Area, as defined in the Edmonds Community Development Code. at
Chapter 19.10. There is a history of landslides in the vicinity dating at least from the
2 The subject property is mown as Tax Parcel Number 00790400000200. Exhibit I, page 3.
Findings, Conclusion.; and Decision
City ofEdnmonds Hearing Examiner
Isaacson, No& V-2008-53, V-08- 72, and LL -08-75 page 3 of 16
1940s, with activity in the immediate vicinity of the subject property as recently as
January 2006. Lot 2 sits on a steep to moderate west aspect slope that runs from the
eastern property boundary to 73" Place West. Development of the subject property is
constrained by slopes on-site and on the adjacent open space (Parcel A) to the east. - The
proposed building site slopes down to the west at grades ranging from 10 to 50 percent.
East of the building envelope, site slopes approach vertical grades. Exhibit 4, page 19;
Exhibits 15 through 22; Exhibit 2, pages 7-9; Exhibit i, page 9; Exhibit 12; Testimony of
Mr. O'Brien; Testimony ofMr. Lie.
5. In April 2007, the Applicants received approval of a conditional use permit (CU -06-104)
for drainage improvements and tree removal from the site and the adjacent common area.
As part of the review process for CU -06-104, a geotechnical analysis, planting plan, and
peer review of the geotechnical analysis and planting plan were conducted. In August
2007, the Applicants applied for a fill and grade permit (BLD -07-834 and BLD -07-833)
for additional drainage work (on their site and the adjacent common area) to help
stabilize the hillside above their building site in preparation for development. The
planting plan prepared in conjunction with CU -06-104 was revised, underwent further
peer review, and received approval during the review of the 2007 fill and grade permits.
The Applicants applied for an additional conditional use permit (CU -08-36) in May 2008
to remove a sequoia tree not identified for removal under CU -06-104_ Given that the
sequoia would be removed in order to construct the proposed home, Staff advised the
Applicants to withdraw the CU -08-36 application and address the tree removal under the
instant critical area reasonable use variance application (V-08-72). Exhibit I, pages 3-4;
Testimony ref Mr. Lien.
6. The subject property is zoned Single -Family Residential (RS -20). The minimum lot area
for standard subdivision lots in the RS -20 zone is 20,000 square feet, and the minimum
lot width is 100 feet_ The maximum residence height allowed is 25 feet_ F&nonds
Community Development Code (ECDC) 16.20. 030. Parcels surrounding the Lorian
Woods PRD are zoned RS -20 and RS -12. According to Staff, the neighborhood is
characterized by moderate to upscale homes, many of which have views of Puget Sound
and the Olympic Peninsula. Exhibit 13; Exhibit 1, page 5.
7. Lot 2 is 5,897 square feet in area. The longest of its four boundary lines is 104 feet long,
with all other boundaries of much shorter lengths, resulting in a trapezoidal shape that
would not satisfy the minimum 100 -foot lot width requirement of the RS -20 zone. Its
substandard area and width were approved for residential development via the City's
PRD process in 1990. Exhibit 1, page 8, Testimony of Mr. Lien; Exhibit 12, page 2.
8. The land in and around the Lorian Woods PRD has been geotechnically observed by the
same engineering firm periodically over the past 20 years. The Applicants consulted with
this same firm to review and prepare geotechnical engineering for the proposed
residence. Professional geotechnical recommendations for development of the site
restricted the potential placement of the residence within the subject property. These
recommendations include (but are not limited to): limiting temporary basement cuts to a
height of eight feet; construction of a catchment wall to control soils originating above
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Isaacson, Nos. V-2008-53, V-08-72, and I.Z.-08-75 page 4 of 16
the lot; prohibiting installation of a sliding glass door on the eastern main floor, and
placement of bedrooms on an upper story to protect sleeping inhabitants in the event of a
nighttime landslide. Site evaluation and more detailed geotechnical recommendations for
grading, drainage, and other design elements are detailed in Exhibit 20_ Testimony ofMr.
O'Brien; Testimony ofMr. Lie; Exhibit 21; Exhibit 20.
9. Given these geotechnical constraints, the Applicants retained professional architects to
design the residence to fit into the topography of the parcel with minimal impact and
maximum safety_ The location of the residence was situated as near to 73`d Place West as
possible, both to minimize cutting into the slope and to minimize the length of the
required driveway. Inclusion of the required catchment wall and an upper floor for
primary bedrooms added to the height of the house. The required limitation to eight -foot
cuts prevented the house from being sunk deeper into the site, as would have been done
on a less steep parcel.' Exhibit 4, pages 61-62; Testimony ofMr. O'Brien.
10, The Applicants' geotechnical consultants opined that, if the geotechnical engineering
recommendations in the reviews they conducted are incorporated into site design and
construction, development of the site as proposed would not increase the risk of
instability on the site or on adjacent properties. Exhibit 20, pages 8-9; Testimony ofMr.
Lie.
11. The City's geotechnical consultant, after reviewing the Applicants' geotechnical
submittals, recommended that slope replanting and associated landscaping plans for the
property be incorporated into the current permit process in order to protect slope stability_
Exhibit 22, page 3.
12. The conditions of approval for the 1990 Lorian Woods PRD include condition number
22, which states: "The Applicants shall draft all private restrictive covenants prior to
final approval of the plat." Exhibit 27, page 21. Staff testified that covenants, conditions,
and restrictions (CC&Rs) were "recorded with the plat" because they were included in a
note on the face of the recorded plat document and because they were considered by City
Council at time of final plat review. Testimony ofMr. Lien_
13. Section 7.5.1 of the CC&Rs requires a minimum living area of 3,000 square feet,
excluding the garage for every residence. Sections 7.5.2 through 7.5.4 establish
minimum square footage for various rooms in the residences, including master and spare
bedrooms and living rooms. Section 7.5.5 requires all portions of the structure, including
eaves, to be located within the boundaries of each lot and to be set back ten feet from any
shared lot lines. Finally, another section requires the roof to be finished with shakes or
tiles. The Applicants argue that they are bound legally to comply with the CC&R
provisions. Exhibit 4, Testimony ofMr. Isaacson.
s The driving factor in restriction depth of cuts to eight feet relates to worker safety during construction. Testimony
ofMr. Lie.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Isaacson, Nos V-2008-53, V08-72, and LL -08-7.5 page 5 of 16
14. According to Stam the City generally does not enforce CC&Rs; however because the
CC&Rs in the present case resulted from a PRD condition of approval from the hearing
examiner, were submitted to the City Council prior to final approval for the PRD, and are
mentioned on the face of the PRD that was signed by the City, Staff believes that in the
standards established by the CC&Rs in the present case should be recognized as
requirements for development of Lot 2. Testimony of Mr. Lien; Exhibit 1, page 7.
15. The CC&Rs' requirement for a three -car garage established the north -south dimension of
the foundation. Room sizes were also driven by the requirements of the CC&Rs. The
pitch of the roof (at 4:12) is the minimum pitch recommended in the roofing industry for
the materials allowed by the CC&Rs. These factors contributed to the Applicants'
ultimate inability to construct a residence in conformance with the 25 -foot height
limitation of the RS -20 zone. Testimony ofMr. O'Brien, Exhibit 4, page 61-62.
16. As proposed, the residence would impact 2,930 square feet of the Category N wetland
and 3,425 square feet of the associated buffer. Exhibit 7.
17. Hydrology of the on-site wetland crosses the site and drains to the City stormdrain in 73rd
Place West. The proposal would not alter this direction of flow; hydrology would still be
directed to the City stormdrain, avoiding impacts to off-site properties related to flooding
or increased site instability. Exhibit 7, Testimony of Mr. Lie.
18. In its present, predevelopment condition, the small, urban, slope wetland has limited
functions and values. Its hydrology emerges from seeps on the slope, and due to the
steepness of the slope, drains quickly, providing little to no function for stormwater
storage or flood flow attenuation. Being small and cut off from other critical areas, it
provides minimal value as wildlife habitat. Because it is impossible to avoid impacts to
the critical areas on-site, the Applicants proposed a mitigation plan based on
enhancement of the remaining wetland and buffer areas through planting trees and shrubs
on-site and in the adjacent open space off-site. A total of 38 trees, 245 shrubs, and 860
herbsfgroundcover plants would be installed. The proposed mitigation plan is consistent
with the mitigation sequencing recommended in the Washington Department of Ecology
manual Wetland N iti atian in Washington State Part 1: Aamey Policies and Guidance.
The plan includes monitoring the plantings for survival for a period of three years. The
mitigation would offset impacts from construction and result in increased overall
functions and values of the on-site wetland, improving water quality and wildlife habitat.
The plantings would stabilize the slope, reduce erosion (improving water quality off-site),
and increase species diversity and vegetative structure, resulting in increased cover and
forage opportunities for birds and small mammals. Exhibit 7,
19. The proposed single-family residence would contain 3,299 square feet in living area
(excluding garage, stairways, and elevator), making it the smallest residence in the PRD.'
' 'Testimony from the Applicants' architect revealed that geotechmeal and CC&R requirements established the
necessary minimum footprint for the proposed residence, and that the apparently "extra" 299 square feet could not
be shaved off of the footprint of the residence, meaning that the 299 square feet did not represent "extra." impact to
the critical areas Testimony ofMr_ D Brien.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Isaacson, No& V-2008 53, V-08- 72, and LL -a8-75 page 6 of 16
It was specifically designed to fit into the existing site topography, incorporating a "stair
step" design keeping the living area as close to grade as possible. According to the
Snohomish County website, its size would be consistent with existing homes in the
surrounding neighborhood. The PRD itself was designed to be compatible with the
natural constraints of the overall property through preservation of 74% of the overall site
in open space. Exhibit 1, pages 10-11; Testimony ofMr. O'Brien; Exhibit 27, pages 5-6.
20. Due to its location on the slope, the proposed residence would not infringe on views of
the surrounding properties. Exhibit 1, page 11; Testimony ofMr. Lien; Testimony ofMr.
O'Brien.
21. Because of the previously discussed geotechnical site restrictions and the minimum
dimensions of the garage required by the CC&Rs, the Applicants' architects were unable
to design the residence such that all portions of the structure remained within the
development envelope prescribed by the PRD: no portion of the structure — including
eaves — is allowed to protrude into the required ten -foot setback from the shared property
boundary with Lot 1 (the site's north boundary). The ten -foot setback is required by
subsection 7.5.5 of the CC&Rs. To remedy this conflict, the Applicants have proposed a
minor PRD amendment, allowing an exception for Lot 2 from subsection 7.5.5. The
Lorian Woods Homeowners Association approved the proposed minor PRD amendment.
Exhibit 10; Exhibit 1, page 7; Testimony ofMr. O'Brien, Exhibit 28.
22. Similarly, the Applicants' architects were unable to design the residence such that all
parts of the structure remained within the boundaries of Lot 2. As designed, a small
portion of the eaves would protrude across the southern lot line into the adjacent open
space parcel. Because such a protrusion is not allowed and because the residence cannot
be moved within the parcel or reduced in size, the Applicants requested a minor
amendment to the lot boundary (LL -08-75). As proposed, a 50 -foot by 3.5 -,foot portion
of Parcel A would be added to Lot 2 (for a total increase of 175 square feet). The
proposed lot line adjustment necessitates approval of an amendment to the PRD's
CC&Rs. On January 15, 2009, the Lorian Woods PRD homeowners' association agreed
to the minor CC&R amend mi ent, allowing alteration of the property line. Only the eaves
of the structure would be located within this area, not the footprint of the building.
Exhibit 10, Exhibit 11; Exhibit 12; Testimony ofMr. O'Brien; Testimony ofMr.
Isaacson.
23. City Staff testified that reduction of Parcel A by 175 square feet would not be
inconsistent with the conditions or requirements of the 1990 PRD approval. It would not
change the number or orientation of lots, and it would not reduce any tenant or public use
area within Parcel A, due to the presence of the slope. Staff recommended that approval
of the variances be conditioned on prior recording of the lot line adjustment. Exhibit 1,
pages 18, 21; Testimony ofMr. Lien.
24. While the PRD would. allow 100% lot coverage, the proposed residence would have a
footprint of considerably less than 100%. Exhibit 1, page 6; Exhibit 5, Sheet 1.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Isaacson, Nos. V-2008-53, V-08-72, and LL -08-75 page 7 of 16
25. Construction of single-family residences is exempt from SEPA review pursuant to WAC
197-11-800(1)(b)(i). The exemption in WAC 197-11-800(6)(b) would apply to the
height variance request, but not the critical area reasonable use variance request. The
Lorian Woods PRD was reviewed for compliance with the requirements of the State
Environmental Policy Act (SEPA) and a Mitigated Determination of Non -Significance
(MDNS) issued on December 15, 1989 (Exhibit 24). Site work for the subject property
underwent SEPA review for the tree removal applied for under CU -06-104 and a
Determination of Nonsignificance (DNS) issued on March 21, 2007 (Exhibit 25).
Relating to the instant applications, on December 29, 2008 the City of Edmonds adopted
the DNS issued on March 21, 2007, on the grounds that the proposals would not result in
any additional environmental impacts beyond those already evaluated under the adopted
document (Exhibit 26). No appeals of the DNS adoption were filed. Exhibit 1, pages 4-
5, Testimony ofMr. Lien; Exhibits 24, 25, and 26.
26. Development of Lot 2 must comply with the mitigation measures imposed in the 1989
MDNS issued for the Lorian Woods PRD, which include the following:
• Development of the subject property shall be subject to review under
Chapter 19.10 of the Edmonds Community Development Code;
• The Applicant shall submit an erosion control plan for review and
approval by the City Engineer prior to issuance of any grading permit.
• No grading shall take place on the property between the months of
October to May.
• All grading work shall be done during normal working hours of the
City of Edmonds, 8 am to 5 pm Monday to Friday.
• The Applicant shall be responsible for providing verification of the
total amount of excavated material prior to finalizing the grading
permit. A soils engineer shall monitor the site during grading.
• Development of individual lots shall be subject to environmental
review and compliance with Chapter 19.05 of the ECDC. All permits
shall be subject to review by the City of Edmonds soils engineer.
• Development shall conform to the recommendations found in the
report from Terra Associates, Inc., dated June 6, 1989 and any
recommendations from the City's consulting soils engineer, Landau
Associates.
Exhibit 24.
27. The Comprehensive Plan designation of the subject property is "Single Family -
Resource7. Staff identified the following Comprehensive Plan goals and policies as
being applicable to the proposal:
Residential Development
B. Goal. High quality residential development which is appropriate to
the diverse lifestyle of Edmonds residents should be maintained
Findings, Conclusions andDecision
City of Edmonds Hearing Examiner
Isaacson, Nos. V-2008-53, V-08-72, and LL -08-75 page 8 of 16
and promoted. The options available to the City to influence the
quality of housing to all citizens should be approached realistically
in balancing economic and aesthetic considerations, in accordance
with the following policies:
B. l Encourage those building custom homes to design and construct
homes with architectural lines which enable them to harmonize
with the surroundings, adding to the community identity and
desirability.
B.3 Minimize encroachment of view of existing homes by new
construction or additions to existing structures.
B.6 Require that new residential development be compatible with the
natural constraints of the slope, soils, geology, vegetation and
drainage_
City of Edmonds Comprehensive Plan (2006), pages 53-54, Exhibit 1, page 10.
28. Notice of Application and Notice of Hearing were published in the Herald Newspaper
and posted at the subject site, as well as the Public Safety Complex, Community
Development Department, and the Library. All notices were also mailed to residents and
owners within 300 feet of the site, consistent with the noticing provisions of ECDC
20.91. Exhibit 1, page 5, Exhihit 31,
29. The City received written and oral public comments on the applications. One upslope
neighbor expressed concerns regarding slope stability. Exhibit 32. This neighbor
appeared at hearing and testified that from the documents and geotechnical and
architectural testimony at hearing, she felt the Applicants "are doing a good job" of
designing with slope stability in mind. Testimony ofMs. Neal. Additional oral comment
addressed the fact that some of the geotechnical studies and earlier applications are more
than one year old, and expressed concern that the instant applications — if approved —
would only be valid for a period of one year. Testimony ofMr. Rutledge. Additional
written comment expressed the opinion that the size and shape and location of Lot 2
should be considered self-created hardship on the part of the previous property owner
(the PRD developer). Exhibit 33.
30. In response to the question regarding whether the size, shape, and location of Lot 2
should be considered self-created hardship on the part of the previous owner, Staff
testified that approval of the PRD by the City was the act that created Lot 2 as a
developable residential lot and that the Applicants had no part in creating the special
circumstances constraining development of Lot 2. Testimony ofMr. Lien.
Findings, Conclusions, and Decision
City of Edmonds Hearing Emminer
Isaacson, Nos V-2008-53, V 08-72, and LL -08-75 page 9 of 16
CONCLUSIONS
Jurisdiction:
The Hearing Examiner has jurisdiction to hear and decide variance requests pursuant to
Edmonds Community Development Code 20. 100.0 10(B).
Minor PRD amendments can be approved pursuant to ECDC 20.35.110.A. Such a decision
would normally be reviewed for approval administratively; however due to the
interconnectedness of this application with the two requested variances, the matter is
appropriately consolidated with them pursuant to ECDC 2090.010(B) and decision authority in
the matter is appropriately delegated to the Examiner by the Director.
Criteria for Review: Variance
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 1'7.00.030 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 pian;
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;
Findings, Conclusions, and Decision
City of Edmonds Hearing .examiner
Isaacson, Nos. V-2008-53, V-08-72, and LL -08-75 page 10 of 16
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 -
Criteria for Review: Critical Area Reasonable Use Variance
Pursuant to ECDC 23.40.210A.2, a reasonable use exception may be authorized as a variance
only if an Applicant demonstrates that:
1. The application of this title would deny all reasonable economic use of a property
or subject parcel;
2. No other reasonable economic use of the property consistent with the underlying
zoning and city comprehensive plan has less impact on the critical area;
3. The proposed impact to the critical area is the minimum necessary to allow for
reasonable economic use of the property-,
4. The inability of the applicant to derive reasonable economic use of the property is
not the result of actions by the applicant after the effective date of the ordinance
codified in this title or its predecessor;
5. The proposal does not pose an unreasonable threat to the public health, safety, or
welfare on or off the development proposal site;
6. The proposal minimizes net loss of critical area functions and values consistent
with best available science; and
7. The proposal is consistent with other applicable regulations and standards -
Further, ECDC 23.40.210.B states that a variance may be granted if the applicant demonstrates
that the requested action conforms to all of the following specific criteria:
1. Special conditions and circumstances exist that are peculiar to the land, the lot or
something inherent in the land and that are not applicable to other lands in the
same district.
2. The special conditions and circumstances do not result from the actions of the
applicant.
3. A literal interpretation of the provisions of this title would deprive the applicant of
all reasonable economic uses and privileges permitted to other properties in the
vicinity and zone of the subject property under the terms of this title, and the
variance requested is the minimum necessary to provide the applicant with such
rights.
Findings, Conclusions, and Decision
City of Edmonds Hearing F_xaminer
Isaacson, Nos V-2008-53, V-08-72, and LL -08-75 page 11 of 16
4. Granting the variance requested will not confer on the applicant any special
privilege that is denied by this title to other lands, structures or buildings under
similar circumstances_
5. The granting of the variance is consistent with the general purpose and intent of
this title, and will not further degrade the functions or values of the associated
critical areas or otherwise be materially detrimental to the public welfare or
injurious to the property or improvements in the vicinity of the subject property;
and
6. The decision to grant the variance is based upon the best available science and
gives special consideration to conservation or protection measures necessary to
preserve or enhance anadromous fish habitat.
Criteria for Review: Minor PRD Amendment: Lot Line Adjustment
Pursuant to ECDC 20.35.110.A, minor changes to lot lines which do not change the number or
orientation of the lots approved through the PRD process may be authorized if these changes ...
are due to circumstances not known at the time the final plan was approved .... Minor location,
siting, or lot line changes shall be performed through a lot line adjustment between a property
owner of a specific lot and the homeowners' association as the owner of the open space. No
change authorized by this section may case any of the following:
a. A change in the use, intensity or character of the development;
b. An increase in the overall ground coverage of structures;
c. A decrease in approved traffic circulation utility; and/or
d. Any reduction in public use or tenant use areas which include but are not limited to
perimeter buffers/setbacks, utility easements, required critical areas open space,
usable open space, off-street parking, loading zones, right-of-way or pavement width.
Conclusions Based on Findings:
Critical Area Variance
1. Application of the standard prohibition for development of critical areas and of the 35 -
foot buffer for Category IV wetlands would deny the Applicants all reasonable use of
their property, because the wetland and buffer encumber the entire site. No other use of
the site would be consistent with the zoning of the underlying land or the PRD approval.
The only option with less impact on the critical areas is not to develop the site, which
would deprive Applicants of reasonable use_ Findings Nos 2, 3, 4, 6, 7, and 18.
2. In addition to the site's encumbrance by wetland and associated buffer, it is severely
constrained by steep slopes. 'While the PRD would allow up to 100% site coverage by
structure, the Applicants propose a residence that fits within the building envelope
identified as geotechnically feasible by credible professionals. The residence cannot be
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Isaacson, Nos V-2008-53, V-0&-72, and LL -08-75 page 12 of 16
moved within the building envelope nor compacted into a less spread out footprint due to
the requirements to stair step the structure into the hillside and to keep cuts to a maximum
of eight feet. The proposed impact to the critical areas is the minimum necessary to
allow use of the site. The Examiner does not rely on the requirements of the CC&Rs to
conclude that the record demonstrates compliance with the minimum necessary criterion
for critical area variance approval. Findings Nos 3, 4, 7, 8, 9, 10, 16, and 24.
3. No action taken by any property owner after the effective date of the critical areas
regulations has resulted in the Applicants' present inability to derive use of the site
without variance approval. The existence of wetlands, stream, and steep slopes is not the
result of any action by the Applicants or any former owners of the property_ The City
approved Lot 2 as a buildable lot in 1990, prior to adoption of the City's critical areas
regulations. The Applicants did not take possession until 2004. Findings Nos. 2, 3, 4, 8,
9, and 30.
4. With conditions ensuring that all geotechnical recommendations are followed during site
preparation and construction, development of Lot 2 would not pose an unreasonable
threat to public health or safety. Credible professional engineering testimony established
that construction consistent with geotechnical recommendations would not increase the
risk of slope instability. Runoff from the site would be captured and directed into
stormdrains. The proposed plantings would stabilize the slope, provide enhanced water
quality, and improve wildlife habitat for the remaining critical area. Findings Nos. 8, 9,
10, 17, 18, and 26.
While the proposals would result in impacts to critical areas, this is allowed pursuant to
the critical areas regulations. ECDC 23.50.010.E states, "Activities and uses that result in
unavoidable and necessary impacts may be permitted in Category 3 and 4 wetlands and
associated buffers in accordance with an approved critical areas report and mitigation
plan." The City has reviewed and approved the Applicants' proposed planting/mitigation
plan. Undeveloped portions of the site and off-site areas within adjacent Parcel A would
be enhanced, resulting in smaller but overall higher functioning critical areas. The
proposed mitigation plan is consistent with state recommended mitigation sequencing.
Findings Nos 3, 16, 18, and 19.
6. Site slopes result in geotechnical limitations on development that by themselves
constitute `special circumstances' for the purposes of variance application review. The
Applicants (and previous owners of the property) are in no way responsible for the slopes
and resulting geotechnical limitations. The Examiner does not rely on the size or location
of the lot in concluding that special circumstances have been demonstrated. Findings
Nos 4, 8, 9, 10, and 19.
7. Single-family residential development of Lot 2 would not constitute special privilege.
The proposed residence occupies less of the site than may be developed according to
PRD approval. The size of the residence would be smaller than existing residences
within the PRD and comparable to existing residences in the surrounding neighborhoods.
Findings Nos. 2, 4, 6, 19, and 24_
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Isaacson, Nos. V-2008-53, V-08-72, and LL -08-75 page 13 of 16
Height variance
1. Due to significant geotechnical limitations resulting from the steep slopes on-site, strict
enforcement of the 25 -foot maximum height restriction of the RS 20 zone would deprive
the Applicants of the right to develop Lot 2. Geotechnical recommendations that restrict
development of the site include the location of the building pad, the limitation to eight -
foot maximum cuts, the requirement to install a catchment wall, and the requirement to
place bedrooms on an upper floor in the event of a nighttime slide event. These factors,
as established by credible engineering expert testimony, satisfy the requirement that
special circumstances dictate the need for a height variance. But for the slopes and
resulting geotechnical limitations, no height variance would be necessary. Neither the
Applicants nor any previous owner of Lot 2 is responsible for the slopes and resultant
geotechnical limitations. Findings Nos 2, 4, 7, 8, 9, 10, and 30.
2. Approval of the variance would not be a grant of special privilege. The variance would
only allow residential use of an approved lot in a PRD in an RS -20 zone. Findings Nos. 2,
4, 6, and 19.
3. The variance would be consistent with the Comprehensive Plan. The residence would
not impact views from surrounding residences. Findings Nos. 20 and 27.
4. The variance would be consistent with the purposes of the zoning ordinance. One of the
purposes of the zoning ordinance is to protect the character of residential uses within the
City by regulating individual parcels of land to prevent unreasonable detrimental effects_
ECDC 16.00.010(B)(3). One of the purposes of the residential zones is to preserve
views. ECC 16.10.000. The variance would be consistent with these purposes because
it would result in development consistent with existing residences in the neighborhood,
would not increase slope instability, and would not impact views. Findings Nos. 10, 19,
and 20.
5. With conditions ensuring geotechnical recommendations are fully incorporated into
design and construction, the height variance, which would allow construction of a
residence on-site, would not be detrimental to the public health, safety, or welfare, or
injurious to property or improvements in the vicinity. Stormwater runoff would be
directed into stormdrains, consistent with the predeveloped condition. Credible evidence
supports the conclusion that development of the lot would not increase risk of slope
instability. Findings Nos. 8, 9, 10, 17, and 18.
6. Due to the slopes and resulting geotechnical limitations on construction, the nine -foot
variance would be the minimum necessary to allow the Applicants the right to develop
their residential property_ Geotechnical limitations directly resulting from the steepness
of the slope limit the depth of cuts, require construction of a catchment wall, and require
placement of bedrooms on an upper floor. These factors drive the need for a structure that
is taller than 25 feet. The height of the residence would not adversely impact any
surrounding properties because of the lot's placement on the slope. The size of the
proposed residence would be compatible with other residences in the neighborhood.
Findings Nos 4, 8, 9, 10, 19, and 20.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Isaacson, Nos V-2008-53, V-08-72, and LL -0S-75 page 14 of 16
Minor PRD Amendment
1. The proposed minor change to lot boundaries between Lot 2 and Parcel A would not
change the number or orientation of any lot. There would be no change in use, intensity
or character of development, no increase in coverage by structure, and no impact to
traffic circulation. The 175 square feet that would be removed from open space use is not
an area used by tenants or the public because of its location on a steep slope. The minor
amendment would not, therefore, reduce required open space or tenant use areas.
Findings Nos 21, 22, and 23.
2. With a condition requiring the lot line adjustment to be recorded before commencement
of grading or building permit issuance, the minor PRD amendment would be consistent
with ECDC 2035.110A. The significance of development limitation on Lot 2 was not
fully appreciated at the time of its approval because the City's critical areas regulations
had not yet been adopted. The Lorian Woods homeowners' association is in agreement
with the proposed amendment_ Findings Nos. 21, 22, and 23.
DECISION
Based on the preceding findings and conclusions, the requested height variance, critical area
reasonable use variance, and minor PRD amendment related to a proposed single-family
residence at 16007 - 73'a Place West in Edmonds, Washington are GRANTED, subject to the
following conditions:
1. The Applicants must obtain all necessary building permits.
2. The Applicants must comply with all the terms of any future permits, including
compliance with all geotechnical recommendations accepted by the City. Development
of Lot 2 is further required to comply with the original conditions of approval for the
PRD as well as the mitigation measures required by the MDNS issued during PRD
review.
3. The amendment to the Lorian Woods CC&Rs allowing eaves to extend into the setback
from Lot 1 must be recorded prior to the issuance of building permits.
4. The Applicants or successors in interest must act on the approved variances within one
year from the date of approval or the variances 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.
5. The Applicants shall submit Minor PRD Amendment documents to be recorded to the
City of Edmonds' Planning Division for review prior to recording for review and
acceptance by City Planning Division Staff prior to recording.
6. The Applicants must record the approved Minor PRD Amendment documents with the
Snohomish County Auditor's office.
Findings, Conclusions, and Decision
City of Edmonds hearing Examiner
Isaacson, Nos. V-2008-53, V -O8-72, and LL -08--73 page 15 of 16
7. After recoding the Minor PRD Amendment, the Applicants shall provide the City of
Edmonds Planning Division with three copies of the recorded documents with the
recording number on them. The City will not consider the Minor PRD Amendment to
have been completed until this is done_
DECIDED this 2& day of February 2009.
Toweill Rice Taylor LLC
City of Edmonds Hearing Examiners
By:
Sharon A. Rice
Findings, Conclusions, and Decision
City ofEdmonds Hearing Examiner
.Isaacson, Nos V-2008-53, V08-72, and LL- 08-75 page 16 of 16
r,c is9IJ
CITY OF EDMONDS GARYHAAKENSON
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. Anson wishing to file or respond to a request -for reconsideration, or an appeal should
contact the Planning Division of the Develoument Services Department for farther procedural
information.
REQUEST FOR RECONSIDERATION
Section 20,100.010(G) of the Edmonds Community Development Code (ECDC) requires the Hearing
Examiner to reconsider his or her decision or recommendation if a written request is filed within ten (10)
working days of the date of the initial decision by any person who attends the public hearing and signs the
attendance register and/or presents testimony, or by any person holding an ownership interest in a tract of
land which is the subject of such decision or recommendation. The reconsideration request must cite
specific references to the findings and/or the criteria contained in the ordinances governing the type of
application being reviewed.
APPEALS
Chapter 20.105 of the ECDC contains the appeal procedures for Hearing Examiner decisions. Pursuant to
Section 20.105.040(A), persons entitled to appeal include (1) the Applicant; (2) anyone who has
submitted a written document to the City of Edmonds concerning the application prior to or at the
hearing; or (3) anyone testifying on the application at the hearing. Sections 20.105.020(A) requires
appeals to be in writing, and state (1) the decision being appealed, the name of the project applicant, and
the date of the decision; (2) the name and address of the person (or group) appealing the decision, and his
or her interest in the matter; and (3) the reasons why the person appealing believes the decision to be
wrong. Pursuant to Section 20.105.020(B), the appeal must be filed with the Director of the Development
Services Department within 14 calendar days after the date of the decision being appealed. The appeal
must be accompanied by any required appeal fee.
TIME LiMiTS FOR RECONSIDERATION AND APPEAL
The time limits for Reconsideration and Appeal run concurrently. If a request for reconsideration is filed
before the time limit for filing an appeal has expired, the time clock for filing an appeal is stopped until a
decision on the reconsideration request is completed. Once the Hearing Examiner has issued his or her
decision on the reconsideration request, the time clock for filing an appeal continues from the point it was
stopped. For example, if a reconsideration request is filed on day five of the appeal period, an individual
would have nine more days in which to file an appeal after the Hearing Examiner issues his decision on
the reconsideration request.
LAPSE OF APPROVAL
Section 20.85.020(C) of the ECDC states, "[tjhe approved variance must be acted on by the owner within
one year from the elate 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 Assessors Office.
• Incorporated August 11, 1890 •
Sister City - Hekinan, Japan
rho.189v
121 5TH AVENUE NORTH - Edmonds, WA 98020- (425) 771.0220• FAX (425) 771-0221
HEARING EXAMINER
OFFICE OF THE HEARING EXAMINER
CI'T'Y OF EDMONDS, WASHINGTON
Applicants }
BRIAN AND CINDY ISAACSON }
For a Height Variance, a Critical Area }
Variance and a Minor PRD Amendment
I, Sharon A. Rice, the undersigned, do hereby declare:
Case Nos. V-08-53, V-08-72, and
LL -08-75
GARY HAAKENSON
MAYOR
DECLARATION OF SERVICE
1. That I am a partner in the firm of Toweill Rice Taylor LLC, which maintains a professional
services agreement with the City of Edmonds, Washington for the provision of Hearing Examiner
services, and make this declaration in that capacity;
2. 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;
3. On February 19, 2009 I served a copy of the decision in case V-08-53, V-08-72, and LL -08-75
upon the following individuals at the addresses below by first class US Mail.
Brian and Cindy Isaacson Steve Johnson, Lorian Woods HOA
114 Second Ave. S 745 Laurel Street
Edmonds, WA 98020 Edmonds, WA 98020
Clerk of the Edmonds City Council
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
City of Edmonds Planning Division
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
Alvin Rutledge
7101 Lake Ballinger Way
Edmonds, WA 98026
Theresa Neal
16116 — 72 d Avenue W
Edmonds, WA 98026
Finis Tupper
711 Daley 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: r�
DATED THIS Ivl clay of 2009 at Kirkland, Washington.
Sharon A. Rice, Toweill Rice Taylor LLC
Serving as Hearing Examiner for Edmonds, Washington
Incorporated August 11, 1890
Sister City - Hekinan, Japan