PLN20100078 Hearing Examiner Decision.pdfCITY OF EDMONDS
121 5TH AVENUE NORTH • EDMONDS, WA 98020 • (425) 771-0220 • fax (425) 771-0221
HEARING EXAMINER
In the Matter of the Application of
City of Edmonds )
For a )
Substantial Conditional Use Permit_)
NOS. PLN 2010-0078
FINDINGS, CONCLUSIONS,
AND DECISION
MIKE COOPER
MAYOR
SUMMARY OF DECISION
The request for a shoreline conditional use permit to remove existing Pump Station No. 2 from
Shell Creek and to replace it outside the creek, including work within the creek and associated
wetlands, on privately owned property at 929 Cary Road in Edmonds, Washington is
APPROVED, subject to conditions.
SUMMARY OF RECORD
Request:
The City of Edmonds (Applicant) requested a shoreline conditional use permit to remove and
replace existing Pump Station No. 2 at 929 Cary Road in Edmonds. The project would include
work in Shell Creek and associated wetlands to install new water and sewer lines.
Hearing Date:
The Edmonds Hearing Examiner held an open record hearing on the request on February 17,
2011.
Testimony:
At the open record hearing the following individuals presented testimony under oath:
Kernen Lien, Planner, City of Edmonds
Pamela Lemcke, City of Edmonds Capital Projects Manager
Steven Quarterman
Alvin Rutledge
Findings, Conclusions, and Decision
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City of Edmonds SCUP, PLN2010-0078
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Incorporated August 11, 1890
Exhibits:
The following exhibits were admitted in the record:
Exhibit 1 Planning Division's Report and Recommendation, dated February 8, 2011, with
the following attachments:
1. Land Use application
2. Application Compliance Letter
3. JARPA Cover Letter, dated December 15, 2010
4. JARPA Application Form, dated received December 15, 2010
5. Sixty Percent Construction Plans, dated October 2010
6. Agency Review Draft, Critical Areas Report and Mitigation Plan, dated
December 2, 2010
7. ESA No Effects Technical Memorandum
8. Landau Geotechnical Report dated February 25, 2009
9. Zoning and Vicinity Map
10. Edmonds SMP Plate #2 (Shoreline Environment Map)
11. SEPA Checklist
12. SEPA Mitigated Determination of Non -Significance
13. Declaration of Mailing
14. Declaration of Posting
15. Affidavits of Publication
16. Engineering Comments
17. Hearing Examiner Public Project Advisory Report to City Council
18. Excerpt from Archaeological Investigation Report prepared by ERCI,
dated December 6, 2010
19. FEMA Flood Map FM5306IC1305E
Exhibit 2 Letter from Alvin Rutledge, dated February 11, 2011
Exhibit 3 Hydraulic Project Approval, issued February 17, 2011
Upon consideration of the testimony and exhibits submitted in the record, the Hearing Examiner
enters the following findings and conclusions:
FINDINGS
The City requested a shoreline conditional use permit to remove and replace existing
Pump Station No. 2 at 929 Cary Road in Edmonds. The project would include work
within Shell Creek and associated wetlands to install new water and sewer lines and
decommission the old pump station.' Exhibit 1, Attachment 1, Application, and
Attachment 2, Technical Memorandum.
' The subject property is comprised of three tax parcels: 27032400210800, 27032400210900, and 27032400212000,
all three located within a portion Section 24, Township 27 North, Range 3 E, W.M. Exhibit 1, Attachment 1.
Findings, Conclusions, and Decision
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City of Edmonds SCUP, PLN2010-0078
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2. The subject property is privately owned and developed with a single-family residence,
several residential accessory structures, and the existing pump station and utility lines.
The site and all surrounding parcels are zoned Single -Family Residential RS-12. The
single-family neighborhood is located just north of downtown Edmonds. The subject
property generally slopes down to Shell Creek, which bisects the site. Wetlands
occupying a relatively flat area along the on -site portion of the creek drain into Puget
Sound approximately 600 feet north of the project site. Typical residential vegetation
surrounds the home and outbuildings, while the area along the creek on -site is forested.
Exhibit 1, pages 2-3; Exhibit 1, Attachment 9.
3. When it was built in approximately 1960, existing Pump Station No. 2 was placed in the
on -site portion of Shell Creek. The pump station equipment is obsolete, rendering
replacement parts expensive or unavailable, and it is in jeopardy of failure. During
extremely high rain events, Pump Station No. 2 releases raw sewage. Due to its
placement, City utility personnel must stand in five feet of water to address needed
repairs. The pump station is a high on the City's list of utility upgrades due the
health/safety concerns, environmental concerns, and the projected costs of actual failure
of the station. Exhibit 1, Attachment 2; Lemcke Testimony, Exhibit 1, Attachment 17.
4. Consistent with its adopted Capital Facilities Plan and its Sanitary Sewer Comprehensive
Plan, the City proposes to relocate Pump Station No. 2 east of Shell Creek, in the eastern
portion of the site near the end of Melody Lane. The existing pump station would be
decommissioned and modified to function as a manhole. At the same time, the following
utility improvements are proposed on -site: 1) approximately 564 linear feet of six-inch
diameter water line installed from the existing water line in Cary Road near the western
terminus of Melody Lane; 2) approximately 210 linear feet of eight -inch sanitary sewer
gravity line installed between the existing and new pump stations; and 3) approximately
240 linear feet of four -inch diameter sanitary sewer force main would be installed
between the new pump station and an existing sewer manhole in Melody Lane. The
proposal includes a ten -foot easement for the pipelines proposed within shoreline
jurisdiction. Exhibit 1, Attachment 2; Lemcke Testimony, Exhibit 1, Attachment 17,
Exhibit 1, page 5.
5. A portion of the proposed water line and sanitary sewer lines upgrades would occur
within Shell Creek and the associated wetland. The wetland is designated as Natural
Environment by the City of Edmonds Shoreline Master Program (SMP) and protected
pursuant to the Shoreline Management Act. Because the portions of the project outside
shoreline jurisdiction cannot be developed without the work in the shoreline area, the
entire project was reviewed for compliance with the criteria for shoreline conditional use
permit. Exhibit 1, Attachments 2 and 10; Lien Testimony; Exhibit 1, pages 2, 9 Edmonds
Community Development Code (ECDC) 23,10.215.
6. All improvements within the shoreline jurisdiction would be placed underground. The
only impacts to the shoreline area would be temporary disturbance of land surface and
vegetation, including removal of the minimum necessary number of trees. All disturbed
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City of Edmonds SCUP, PLN2010-0078 page 3 of 16
areas would be restored/revegetated to pre -project conditions or better. Exhibit 1,
Attachment 2; Lemcke Testimony.
7. Utility projects are allowed in the Natural Shoreline Environment subject to shoreline
conditional use permit review and approval. ECDC 23.10.120.B. Local public utility
facilities included in the capital facilities plan are allowed in the RS-12 zone. ECDC
16.20.010.A.
8. The City has received a signed easement from property owner, Mr. Strickland. Lemcke
Testimony.
9. The Applicant submitted a professionally prepared critical areas report, which surveyed
the project site for potential critical areas. The report identifies four critical areas
identified the following critical areas within the proposed project site: W1, a 3.3-acre
Category 3 wetland adjacent to Shell Creek in the east portion of the subject property;
Shell Creek, a Type F (fish bearing) stream; and the buffer of WI and the creek (which
overlap); and frequently flooded areas. These critical areas are protected pursuant to the
City's critical areas ordinance and are located within the Natural Shoreline Environment.
Exhibit 1, Attachment 6.
10. Shell Creek has been identified by Washington Department of Fish and Wildlife
(WDFW) as containing Coho salmon and resident cutthroat trout. The Edmonds Stream
Inventory (2002) reported observations of spawning Coho and Chum salmon in the
creek's lower reaches. Because it is an anadromous fish bearing stream, the standard
buffer for Shell Creek is 100 feet pursuant to ECDC 23.90.040.D.1. Exhibit 1, page 4;
Exhibit 1, Attachments 6 and 7.
11. The Applicant proposes to minimize impacts to the Natural Shoreline Environment and
critical areas through sensitive site design. Construction staging areas and site access
would be located away from the wetland and the interior section of the buffers to the
extent possible. Where conditions allow, underground directional drilling trench
construction methods will be used. Where underground drilling is not possible, trenches
have been designed near perpendicular to the waterways. Exhibit 1, Attachment 6,
Quarterman Testimony.
12. As proposed, the project would have the following unavoidable impacts: 3,867 square
feet of temporary impacts and zero permanent impacts to W 1; 762 square feet of
temporary and zero permanent impacts to Shell Creek; and 499 square feet of temporary
and 476 square feet of permanent impacts to the overlapping wetland/creek buffer.
Exhibit 1, Attachment 6.
13. Pursuant to ECDC 23.90.040.D.3, standard stream buffers may be reduced by averaging
buffer widths. Buffering averaging may be allowed when a qualified professional
demonstrates that: a) the total area contained in the buffer area, or the total buffer area
existing on a subject parcel for a stream extending off -site, after averaging is no less than
that which would be contained with the standard buffer; b) the buffer width at any single
Findings, Conclusions, and Decision
Edmonds Hearing Examiner
City of Edmonds SCUP, PLN2010-0078
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location is not reduced to less than 50 percent of the reduced or standard width; and c) the
functions and values of the stream and associated buffer will not be diminished through
the use of buffer averaging. Exhibit 1, page 11.
14. The buffer averaging proposal would add approximately 476 square feet located adjacent
to the area of impact, in one to one replacement of the permanently impacted critical
areas. The buffer impact occurs in the outer 40 feet of the standard 100 foot buffer,
reducing the buffer width at its narrowest point to 60 feet or greater. The area added
through buffer averaging has substantially similar characteristics to the impacted buffer
and as a result, the proposed buffer averaging not diminish the functions and values of the
stream. Exhibit 1, pages I1-12; Exhibit 1, Attachment 6.
15. In -stream work would be restricted to a Washington Department of Fish and Wildlife
(WDFW) in -stream work window. Temporary wetland, stream, and buffer impacts
would be mitigated by restoration, resulting in equivalent biologic and hydrologic
functions. Construction of the new pump station, associated vaults, and concrete pads in
the outer buffer area would result in permanent impacts, but they are expected to be
minimal due to the use of buffer averaging, which would replace the lost function and
value in another, contiguous location. The four trees to be removed would be replaced at
a two to one ratio and all other plants were selected to provide forage/habitat and/or
erosion control. According to the critical areas report, the proposed project mitigation
would result in no net loss of wetland, stream, and buffer functions and values. Exhibit 1,
Attachment 6; Quarterman Testimony.
16. The proposed new pump station and portions of the proposed utility line installation
would be located within the 100-year floodplain of Shell Creek. Permanent items would
include an at -grade concrete pad for a future odor control system and generator. These
improvements would not affect floodplain capacity. Exhibit 1, Attachment 6.
17. The project was reviewed for potential impacts to essential fish habitat pursuant to the
Endangered Species Act. The evaluation concluded as follows: that the project adds
relatively minimal amounts of new impervious surface and all runoff would be infiltrated
in the immediate area; that appropriate best management practices would be used to
control erosion; that the effects of construction -related diversion of 30 linear feet of Shell
Creek would be temporary and conducted during an approved in -stream work window.
There are no federally listed species present in Shell Creek or the project area. A "No
Adverse Effect" determination was made. Exhibit 1, Attachment 7.
18. The project area was surveyed for archeological evidence by a professional consultant,
who submitted a summary report. No protected cultural or resources or historic
properties were identified during site review. The report contained recommended
management practices were proposed to address the discovery of archeological resources.
Exhibit 1, Attachment 18.
19. The City of Edmonds only has two areas of Natural Shoreline Environment, which are
the Edmonds Marsh and the historically contiguous wetland to the east of State Route
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City of Edmonds SCUP, PLN2010-0078
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104, and the Shell Creek wetland and lower riparian zone, including the wetlands which
are now isolated on the east of the railroad tracks. The proposed utility project would
have no adverse impacts on the shoreline environment. Planning Staff submitted that it is
not likely that similar actions would occur in any of the City's Natural Shoreline
Environment. Exhibit 1, page 13; Lien Testimony.
20. The Applicant is required to obtain approval of a Section 404 Clean Water Act Permit
from the US Army Corps of Engineers. Exhibit 1, Attachment 7.
21. WDFW grated the Applicant's request for hydraulic project approval on February 17,
2011. The HPA's required provisions include, but are not limited to, completion no later
than December 31, 2012 and restriction of in -stream work to the period between July 1
and September 30 of 2011 and/or 2012. Exhibit 3.
22. Construction is proposed to begin by the end of June 2011. In -stream work is projected
to take two weeks, and construction of the pump station and remaining utility line install
should take 60 days. Lemcke Testimony.
23. Pursuant to the State Environmental Policy Act (SEPA), the City of Edmonds acted as
lead agency for review of environmental impacts caused by the proposal. In reaching the
environmental threshold determination, the City reviewed an environmental checklist and
application materials submitted by the Applicant. Upon completion of review, the City
issued a mitigated determination of non -significance (MDNS) was issued on January 11,
2011, which became final on February 1, 2011. No appeals were filed. Required
mitigation includes (paraphrased): a) compliance with all city shoreline management
regulations; b) compliance with recommended management practices in the case of
unanticipated discovery of archeological materials; and c) compliance with any
mitigation required in the WSFW's HPA approval. Exhibit 1, page 3; Exhibit 1,
Attachment 12; Lien Testimony.
24. Notice of shoreline permit application and public hearing date were published in The
Herald on January 11 and January 18, 2011, posted on -site and elsewhere, and mailed to
adjacent property owners consistent with requirements of the City code. Exhibit 1,
Attachments 13, 14, and 15; Lien Testimony; Exhibit 1, page 3.
25. The City received public comments posing informational questions about the proposal
including but not limited to the following: whether a building permit was required;
whether the old pump station parts were being removed and reused in the proposed new
location; whether any variance was required; what the construction hours of operation
would be; and the cost of the project. Rutledge Testimony, Exhibit 2.
26. Planning Staff and the Applicant representative responded to public concerns at hearing.
No building permit or variance is required for the pubic project. Old pump station parts
would be properly disposed of and not reused. The old pump station would be converted
to a manhole cover. Hours of construction would be Monday through Friday, 7:00 am
through 5:00 pm, excluding City -acknowledged holidays. The project will not go out to
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Edmonds Hearing Examiner
City of Edmonds SCUP, PLN2010-0078
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bid until after necessary permits are secured. The present cost estimate is $650,000. Lien
Testimony; Lemcke Testimony.
CONCLUSIONS
Jurisdiction:
The Hearing Examiner has jurisdiction to hear and decide shoreline permit requests pursuant to
Edmonds Community Development Code (ECDC) 20.01,003 and ECDC 20.55.030.
Criteria for Shoreline Conditional Use Permit Review:
The criteria for review of an SCUP are set forth in Washington Administrative Code (WAC)
173-27-160(1) which states that uses that are classified in the applicable master program as
conditional uses may be authorized provided that the applicant demonstrates all of the following:
1. That the proposed use is consistent with the policies of RCW 90.58.020 (the
Shoreline Management Act) and the local master program;
2. That the proposed use will not interfere with the normal public use of public
shorelines;
3. That the proposed use of the site and design of the project is compatible with other
authorized uses within the area and with uses planned for the area under the
comprehensive plan and shoreline master program;
4. That the proposed use will cause no significant adverse effects to the shoreline
environment in which it is to be located; and
5. That the public interest suffers no substantial detrimental effect.
Pursuant to WAC 173.27.160(2), in the granting of all shoreline conditional use permits,
consideration shall be given to the cumulative impact of additional requests for like actions in
the area. For example, if conditional use permits were granted for other developments in the
area where similar circumstances exist, the total of the conditional uses shall also remain
consistent with the policies of RCW 90.58.020 and shall not produce substantial adverse
effects to the shoreline environment.
Other Applicable Codes, Polices, and Regulations
ECDC 23.10.215 Special regulations — Authority of the city.
A. Land Outside the Jurisdiction of the Shoreline Management Act. In addition to the authority
described above, if a proposed use, development or activity includes areas both inside and
outside the jurisdiction of the Shoreline Management Act, the city may impose conditions or
restrictions on the use, development or activity outside the jurisdiction of the Shoreline
Management Act if necessary to bring the areas of the development within the jurisdiction of the
Shoreline Management Act into compliance with the Act, Chapters 173-16 and 173-27 WAC
and Chapters 20.10 and 20.55 ECDC.
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Edmonds Hearing Examiner
City of Edmonds SCUP, PLN2010-0078 page 7 of 16
ECDC 23.10 Edmonds Shoreline Master Program
The City of Edmonds Shoreline Master Program contains goals, policies, and regulations that are
applicable to the proposed development. Pursuant to ECDC 23.10.040, the regulations are
mandatory, whereas the goals and polices "are intended to form the policy for shoreline uses,
developments, and activities, as the basis of the regulations ... and to assist the city in
determining whether to grant, modify and grant, or deny each proposed use, development, or
activity." ECDC 23.10.040. The goals and policies of the Shoreline Master Program are
established in ECDC 23.10.050 - .095. A complete list of the City's shoreline goals and policies
will not be included in this decision but can be read in full in ECDC 23.10. Following are the
shoreline goals, policies, and regulations that apply to the instant application for shoreline
conditional use permit.
A. ECDC 23.10.060 Shoreline Use Elements Goals and Policies
i. Relevant Goals
a. ECDC 23.10.060.A.5: Ensure that proposed shoreline uses are distributed,
located and developed in a manner that will maintain or improve the
health, safety and welfare of the public.
b. ECDC 23.10.060.A.6: Ensure that proposed shoreline uses do not
minimize the rights of others or infringe upon the rights of private
ownership.
ii. Relevant Policies
a. ECDC 23.10.060.13.1: "Environmentally sensitive areas" and "critical
areas" are to be protected and regulated consistent with the city's
environmental review and critical areas regulations contained in Chapters
20.15A and 20.1513 ECDC.2
b. ECDC 23.10.060.B.6: Uses in shoreline areas should not degrade water
quality nor disrupt any more than is essential the land covered by water
and the land area adjacent to the ordinary high water mark.
c. ECDC 23.10.060.13.12.a: Shoreline use and development should be
provided for through a process of review and analysis that give priority to:
i. The protection and enhancement of the shoreline natural system;
ii. The provision for shoreline dependent uses;
iii. The provision for shoreline -oriented uses; and
iv. The accommodation of necessary uses that are neither shoreline -
dependent nor shoreline -oriented.
2 ECDC 20.1513 is a reference to the City's previously environmentally sensitive areas regulations which are now
contained in ECDC 23.40 through 23.90. Exhibit 1, page 5.
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Edmonds Hearing Examiner
City of Edmonds SCUP, PLN2010-0078 page 8 of 16
d. ECDC 23.10.060.13.12.b: The priority system will recognize, but not be
limited to, the following criteria:
i. Protect and enhance natural systems:
(A)(1): Fish spawning, nursing, feeding areas, (beach, marshland,
aquatic vegetation, submerged land) — critical area — for migrating
fish;
B. ECDC 23.10.085 Conservation Element Goals and Policies
i. ECDC 23.10.085.A: It is the goal of the city to protect and enhance unique
and fragile areas of flora and fauna and scenic vistas to help assure the
continued availability of these resources for future generations...
ii. ECDC 23.10.085.B.2: Development in shoreline areas should be managed so
that adverse impacts on aquatic and land plants and animals are minimized.
C. ECDC 23.10.130 General regulations — Environmentally Sensitive Areas and Critical
Areas
i. ECDC 23.10.130.13 Development Limitations. All uses, developments, and
activities on sites containing environmentally sensitive areas and/or critical
areas must comply with all applicable local, state, and federal laws pertaining
to development in these areas. In addition, the site must be specifically
designed so that the hazards from or impact on the environmentally sensitive
area and/or critical area will be mitigated.
D. ECDC 23.10.135 General Regulations — Historical and Archeological Resources
i. ECDC 23.10.135.A, General. Uses, developments, and activities on sites of
historical or archeological significance or sites containing things of historical
or archeological significance must not unreasonable disrupt or destroy the
historical or archeological resource.
ii. ECDC 23.10.135.13, Resource Recovery. Whenever possible, things of
historical or archeological significance should be properly explored,
categorized, and recovered by qualified individuals prior to any disruptive
development, use or activity occurring on the subject property. If items of
historical or archeological significance are discovered after a use,
development or activity has commenced, all activity must cease until proper
disposition, including resource recovery, can be made of the significant items.
E. ECDC 23.10.175 Use regulations — Utilities, Government Facilities, and
Transportation Systems
i. ECDC 23.10.175.0 Limitations on locations.
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Edmonds Dearing Examiner
City of Edmonds SCUP, PLN2010-0078
page 9 of 16
1. Except for public pedestrian access mandated or permitted by this chapter
and utility lines, infrastructure, roadways and similar components necessary to
serve development within the shoreline area, utilities, government services
and facilities, and transportation systems may not be located within shoreline
areas unless this location is reasonably necessary for the efficient operation of
the utility, government facility or services or transportation system.
ii. ECDC 23.10.175.1) Placement and Design
1. When permitted within shoreline areas, utilities, government services and
facilities and transportation systems must be placed and designed to minimize
negative aesthetic impacts upon shoreline areas.
2. Except where this would not be feasible, all utility lines, pipes, conduits,
meters, vaults and similar infrastructures and appurtenances must be placed
underground consistent with the standards of the serving utility.
F. ECDC 23.10.210 General regulations— Land Surface Modification
i. ECDC 23.10.210.13, Land Surface Modification Landward of the Ordinary
High Water Mark. Land surface modifications landward of the ordinary high
water mark may be permitted only if no unique or significant natural area of
flora or fauna will be destroyed and only for the following purposes:
1. The land surface modification is proposed by a public agency to improve
public safety, recreation or access, or is intended to improve a condition of the
natural environment.
ii. ECDC 23.10.210.1) Additional Regulations. All land surface modifications
landward of the ordinary high water mark must comply with the following
requirements:
1. The land surface modification must be the minimum necessary to
accomplish the underlying reason for the land surface modification.
2. Care must be taken to not create any direct or indirect adverse impacts on
any adjoining property or the shoreline of statewide significance.
3. All surfaces exposed during land surface modification must be revegetated
or otherwise covered as quickly as possible to minimize erosion.
4. During land surface modification activities techniques should be employed
to prevent erosion and runoff onto adjacent properties or into the shoreline of
statewide significance.
5. Except as is necessary during construction, dirt, rocks, and similar materials
may not be stockpiled on the subject property. If stockpiling is necessary
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City of Edmonds SCUP, PLN2010-0078
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during construction, it must be located as far as possible from the shoreline
and strictly contained to prevent erosion and runoff.
6. Materials that will be deposited on the subject property must be clean and
not contain organic or inorganic substances that could pollute or otherwise be
detrimental to water quality or aquatic or shoreline habitats.
7. The city may require that land surface modifications be engineered and/or
supervised by an engineer or similarly qualified professional.
8. The city may require that land surface modifications be restricted to limited
times of the year.
iii. ECDC 23.10.210.E Land Surface Modifications in Conservancy or Natural
Shoreline Environments. Notwithstanding any other provision of this section,
land surface modifications in conservancy or natural environments should not
be allowed unless:
1. It is necessary to rehabilitate a stream, wetland, or otherwise improve or
enhance the natural environment; or
2. It is proposed by a public agency as part of development or use of the
subject property.
G. ECDC 23.10.215 Special regulations — Authority of the City of Edmonds
i. In addition to the authority described above, if a proposed use, development or
activity includes areas both inside and outside the jurisdiction of the Shoreline
Management Act, the city may impose conditions or restrictions on the use,
development or activity outside the jurisdiction of the Shoreline Management
Act if necessary to bring the areas of the development within the jurisdiction
of the Shoreline Management Act into compliance with the Act, Chapters
173-16 and 173-27 WAC and Chapters 20.10 and 20.55 ECDC.
Critical Areas Ordinance
A. ECDC 23.40 Environmentally Critical Area General Provisions
i. ECDC 23.40.160 Review criteria. Any alteration to a critical area, unless
otherwise provided for in this title, shall be reviewed and approved, approved
with conditions, or denied based on the proposal's ability to comply with all
of the following criteria:
1. The proposal minimizes the impact on critical areas in accordance with
ECDC 23.40.120, Mitigation sequencing;
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City of Edmonds SCUP, PLN2010-0078
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2. The proposal does not pose an unreasonable threat to the public health,
safety, or welfare on or off the development proposal site;
3. The proposal is consistent with the general purposes of this title and the
public interest;
4. Any alterations permitted to the critical area are mitigated in accordance
with ECDC 23.40.110, Mitigation requirements;
5. The proposal protects the critical area functions and values consistent with
the best available science and results in no net loss of critical area functions
and values; and
6. The proposal is consistent with other applicable regulations and standards.
B. ECDC 23.50 Wetlands
i. 23.50.040 E. Category 3 and 4 Wetlands. 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.
C. ECDC 23.70 Frequently Flooded Areas: Development standards and provisions for
protection of frequently flooded areas are provided as applicable to areas of special
flood hazard in the current editions of the International Residential Code and
International Building Code, as adopted in ECDC Title 19. Conformance with the
provisions for flood hazard reduction of the current editions of the International
Residential Code and International Building Code, as adopted in ECDC Title 19, shall
constitute conformance with ECDC 23.40.050, Protection of critical areas, per the
mandates of the Washington Growth Management Act and the purposes and
objectives of this title.
D. ECDC 23.90 Fish and Wildlife Habitat Conservation Areas
i. Pursuant to ECDC 23.90.040.A.1. No development shall be allowed within a
fish and wildlife habitat conservation area or buffer with which state or
federally endangered, threatened, or sensitive species have a primary
association, except that which is provided for by a management plan
established by the Washington Department of Fish and Wildlife or applicable
state or federal agency.
ii. ECDC 23.90.040.B.1. All activities, uses, and alterations proposed to be
located in water bodies used by anadromous fish or in areas that affect such
water bodies shall give special consideration to the preservation and
enhancement of anadromous fish habitat, including, but not limited to,
adhering to the following standards:
Findings, Conclusions, and Decision
Edmonds Hearing Examiner
City of Edmonds SCUP, PLN2010-0078
page 12 of 16
a. Activities shall be timed to occur only during the allowable work window
as designated by the Washington Department of Fish and Wildlife for the
applicable species;
b. An alternative alignment or location for the activity is not feasible;
c. The activity is designed so that it will not degrade the functions or values
of the fish habitat or other critical areas;
d. Shoreline erosion control measures shall be designed to use
bioengineering methods or soft armoring techniques, according to an
approved critical areas report; and
Any impacts to the functions or values of the fish and wildlife habitat
conservation area are mitigated in accordance with an approved critical
areas report.
iii. Pursuant to ECDC 23.90.040.D.3, the standard stream buffer may be reduced
by averaging buffer widths. Buffering averaging may be allowed when a
qualified professional demonstrates that:
a. The total area contained in the buffer area, or the total buffer area existing
on a subject parcel for a stream extending off -site, after averaging is no
less than that which would be contained with the standard buffer;
b. The buffer width at any single location is not reduced to less than 50
percent of the reduced or standard width; and
c. The functions and values of the stream and associated buffer will not be
diminished through the use of buffer averaging.
Other Applicable Regulations
ECDC 20.55.060 states, "No construction authorized by an approved shoreline permit may begin
until 30 days after the final city decision on the proposal."
WAC 173-27-190 requires "each permit for a substantial development, conditional use or
variance, issued by local government to contain a provision that construction pursuant to the
permit shall not begin and is not authorized until twenty-one days from the date of filing as
defined in RCW 90.58.140(6) and WAC 173-27-130, or until all review proceedings initiated
within twenty-one days from the date of such filing have been terminated; except as provided in
RCW 90.58.140 (5)(a) and (b)."
Findings, Conclusions, and Decision
Edmonds Hearing Examiner
City of Edmonds SCUP, PLN2010-0078
page 13 of 16
Conclusions Based on Findings
1.
A. With conditions, the proposed utility upgrade is consistent with the policies of
the Shoreline Management Act. The policy of the SMA, as set forth in RCW
90.58.020, is to "provide for the management of the shorelines of the state by
planning for and fostering all reasonable and appropriate uses." This policy
"contemplates protecting against adverse effects to the public health, the land and its
vegetation and wildlife, and the waters of the state and their aquatic life, while
protecting generally public rights of navigation and corollary rights incidental
thereto." RCW 90.58.020. The utility upgrade project is a reasonable and appropriate
use for the Natural Shoreline Environment. The project would remove the existing,
failing pump station from the waters of the state and leave behind only underground
utilities, removing a source of pollution with a history of adverse environmental
effects to the waters of the state and potentially to public health. All disturbed areas
would be returned to pre -project conditions or better. The project would not impact
navigation. Findings 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,
22, and 23.
B. As conditioned, the project is consistent with the City of Edmonds Shoreline
Master Program. The project's location within shoreline jurisdiction is reasonably
necessary for the efficient operation of the sewer and water systems. Careful project
design has minimized impacts to the maximum extent possible. Replacement of the
aging sewer lift station would improve the health, safety, and welfare of the public, as
well as protect habitat functions and values along Shell Creek and in the associated
wetlands. The proposed project would not infringe on the rights of neighboring
property owners. Conditions of approval would ensure that best management
practices are employed during construction to prevent erosion and other damage to
water quality. No protected cultural resources or historic properties were identified
during an archaeological investigation within the projects area of potential effect.
Conditions require work to stop and that appropriate authorities are contacted if any
cultural resources are discovered during the course of construction. All project
components within the shoreline area would be placed underground, minimizing
adverse aesthetic and ecological impacts to the critical areas and floodplain. All
disturbed areas would except for 476 square feet of stream buffer would be
revegetated. Conditions would ensure the construction window is limited to the
WSFW work window. All temporarily impacted areas would be restored to existing
conditions or improved following construction. Conditions would ensure that all
trees removed are replaced at a two to one ratio. Proposed mitigation is consistent
with the requirements in ECDC 23.50.050.A. The project would not affect floodplain
capacity and would not degrade the functions and values of the fish habitat and the
other critical areas identified. The buffer averaging proposal is consistent with City
Code requirements. Findings 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,
20, 21, 22, and 23.
Findings, Conclusions, and Decision
Edmonds Hearing Examiner
City of Edmonds SCUP, PLN2010-0078
page 14 of 16
2. The proposed utility upgrade would not interfere with the normal public use of public
shorelines. The entirety of the project covered by the instant permit will be located
on private property that does not afford access to public shorelines. Findings 2 and 8,
3. The utility upgrade project is identified in the City's Sanitary Sewer Comprehensive
Plan, an adopted element of the City's Comprehensive Plan. With conditions, the
project would be compatible with other authorized uses within the zone and with uses
planned for the area under the comprehensive plan and shoreline master program.
The proposed project would serve and benefit the single family residences in the area,
as well as the public at large. Findings 3, 4, 5, 6, and 7.
4. The utility upgrade project will cause no significant adverse effects to the Natural
Shoreline Environment. SEPA review was conducted and an MDNS was issued and
not appealed. Findings 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, and 23.
5. By removing a known threat to public and environmental health, the project as
conditioned would enhance and benefit the public interest. Findings 4, 5, 6, and 23.
6. No other failing utility projects are known to exist in the City's Natural Shoreline
Environment. Even if additional conditional use permits were granted for similar
utility projects in the same shoreline designation, the cumulative effect of all such
conditional uses would remain consistent with the policies of RCW 98.58.020 and
would not create substantial adverse effects to the shoreline environment. Findings 3,
4,5,6,and 19.
DECISION
Based on the preceding findings and conclusions, the request for a shoreline conditional use
permit to remove existing Pump Station No. 2 from Shell Creek and to replace it outside the
creek, including work within the creek and associated wetlands, on privately owned property at
929 Cary Road in Edmonds, Washington is APPROVED, subject to the following conditions:
No construction authorized by the instant permit may begin until 30 days after the final
city decision on the proposal and/or until DOE reviews and approves the SCUP.
2. All work pursuant to the SCUP shall be consistent with the mitigation measures
identified in the SEPA Mitigated Determination of Non -Significance, including:
i. The project must comply with all City of Edmonds critical areas regulations
(Edmonds Community Development Code Title 23 "Natural Resources").
Specifically, the mitigation measures identified in the Agency Review Draft
Critical Areas Report for the Pump Station No. 2 Replacement Project prepared
by Landau Associates dated December 2, 2010 must be implemented. Any trees
that are removed in conjunction with the project must be replaced at a ratio of 2:1.
Any proposed changes to the Agency Review Draft of the Critical Areas Report
Findings, Conclusions, and Decision
Edmonds Hearing Examiner
City of Edmonds SCUP, PLN2010-0078
page 15 of 16
or mitigation measures must be approved by the City of Edmonds Planning
Division.
ii. In the event that any ground -disturbing activities during the project uncover
protected cultural materials or human remains, all work in the immediate vicinity
should stop, the area should be secured, and any equipment moved to a safe
distance. The contractor should then contact the appropriate agency and tribe as
identified in the Unanticipated Discoveries Protocol (UDP) included as Appendix
3 of the Archaeological Investigation Report prepared for the project. A copy of
the UDP in Appendix 3 shall be provided to the contractor and the UDP must
remain on site at all times during the implementation of the project.
iii. The project must comply with hydraulic project approval (HPA) from the
Washington State Department of Fish and Wildlife and any other federal, state, or
local permits required for the project.
DECIDED this 4th day of March 2011.
Findings, Conclusions, and Decision
Edmonds Hearing Examiner
City of Edmonds SCUP, PLN2010-0078
Sharon A. Rice
City of Edmonds Hearing Examiner
page 16 of 16
CITY OF EDMONDS MIKE COOPER
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. Apy person wishing to file or respond to a request for reconsideration or an appeal should
contact the Planning Division of the Development Services Department for complete procedural
information.
REQUEST FOR RECONSIDERATION
Section 20.06.010 of the Edmonds Community Development Code (ECDC) allows the Hearing Examiner
to reconsider his or her decision or recommendation if a written request is filed within ten (10) calendar
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. Reconsideration is limited to allegations
of. 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 at the time of
public hearing. Reconsideration is not a condition precedent to any appeal.
APPEALS
Pursuant to Section 20.01.003(B), Hearing Examiner decisions on shoreline conditional use permits may
be appealed to the City Council in a closed record appeal proceeding. Pursuant to ECDC 20.07.004,
persons entitled to appeal include (1) the Applicant; (2) anyone who has individually 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. Appeals must be in writing and include (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. Appeals must be filed with the Director of the
Development Services Department no later than 4:00 pm on the 14th calendar day after the date of the
decision being appealed and must be accompanied by any required appeal fee.
THE LRVMS 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.
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 •
l.. . - r r _t_-___.- T_.__-
CITY OF EDMONDS
121 5TH AVENUE NORTH • EDMONDS, WA 98020 • (425) 771-0220 • fax (425) 771-0221
kJOW HEARING EXAMINER
OFFICE OF THE HEARING EXAMINER
11)c.
'� c 189� CITY OF EDMONDS, WASHINGTON
Regarding the request of )
City of Edmonds )
For a Shoreline Conditional Use Permit )
MIKE COOPER
MAYOR
*q,f
Case No. PLN-2010-0078 19
dF,o�
DECLARATION OF SERVICE
I, Sharon A. Rice, the undersigned, do hereby declare:
1. That the "Offices of Sharon Rice Hearing Examiner PLLC" maintains a professional
services agreement with the City of Edmonds, Washington for the provision of Hearing
Examiner services, and I make this declaration in that capacity; 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 March 4, 2011, I served a copy of the decision in case PLN-
2010-0078 upon the following individuals at the addresses below by first class US Mail:
Pam Lemcke, Capital Projects
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
Clerk of the Edmonds City Council
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
Alvin Rutledge
7101 Lake Ballinger Way
Edmonds, WA 98026
Edmonds Development Services
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
Rex Strickland
929 Cary Road
Edmonds, WA 98020
Steve Quarterman, Landau Assoc.
130 - 2nd Avenue South
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 4th day of March 2011 at Edmonds, Washington.
Sharon A. Rice
• Incorporated August 11, 1890 •