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PLN20120033 Request for Reconsideration by City.pdfA OF EDAfO dCITY OF EDMONDS 121 5th Avenue North, Edmonds WA 98020 Phone: 425.771.0220 • Fax: 425.771.0221 • Web: www.edmondswa.gov DEVELOPMENT SERVICES DEPARTMENT ® PLANNING DIVISION Inc. 1890 April 8, 2013 Mr. Phil Olbrechts Hearing Examiner Sent via email and mail SUBJECT. Request for Reconsideration/Clarification of Hearing Examiner's Decision Hillman Variances - File No. PLN20120033 Dear Mr. Olbrechts, The City's Planning and Engineering Divisions are in receipt of the decision dated March 28, 2013 regarding Tom and Lin Hillman's requested setback variances and critical areas reasonable use variance for the construction of a new single-family home at the property addressed 1139 Sierra Place (File No. PLN20120033). Staff has reviewed the decision and is respectfully requesting reconsideration/clarification pursuant to Edmonds Community Development Code (ECDC) 20.06.010 related to the findings and conclusions of the decision, Conditions #1 and #2, and the City's appeal procedures. Pursuant to ECDC 20.06.010, parties of record may file a request for reconsideration of the Hearing Examiner's decision within 10 calendar days of the Hearing Examiner's written decision. Since 10 calendar days from the date of your decision (March 28, 2013) ended on a Sunday (April 7, 2013), ECDC 20.06.010.0 extends the deadline for requests for reconsideration to the next business day, which is today (April 8, 2013). The following includes a detailed explanation of staff s request for reconsideration/clarification as related to the findings and conclusions stated within the decision, Condition #1, Condition #2, and the City's appeal procedures: Hearing Examiner's Findings and Conclusions The first paragraph in the introduction of the decision summarizes the requested setback and critical areas variances; however, a portion of the request was omitted from this description. The requested street setback variance is to reduce the street setback from 25 feet to 12 feet for placement of the residence and to reduce the street setback from 25 feet to 3 feet for a retaining wall. This is in addition to the requested side setback variance to reduce the side setback from 10 feet to 3 feet for a retaining wall. Additionally, the introduction states that the reasonable use variance is approved for the encroachment within the wetland buffer, but it does not state whether it is also approved for encroachment within the stream buffer and within the wetland itself. Within the Findings of Fact (at the top of Page 9), the street setback variance request is stated as being a request to reduce the street setback from 25 feet to 10 feet for the residence, but the request to reduce the street setback from 25 feet to 3 feet for a retaining wall is omitted. The applicant requested to reduce both the street and western side setbacks to 3 feet for the construction of retaining walls associated with the development. Additionally, within the description of the reasonable use variance request on Page 9 and throughout the Findings of Fact and Conclusions of Law sections of the decision, the request to reduce the stream buffer is not specifically addressed. Staff would like clarification and confirmation from the Hearing Examiner that the portions of the proposal not specifically discussed within the findings and conclusions of the decision (i.e. the reduced street setback to 3 feet for a retaining wall and the reduced stream buffer) have been approved as part of the decision. Condition #1 Staff is requesting reconsideration/clarification of Condition #1 of the decision, which reads as follows: "As discussed in FOF No. 6, staff shall consult with a qualified Wetland biologist, who can be Andrea Bachman, to determine whether encroaching into the Category III wetland of the subject property causes significantly more damage to wetland functions than building within its buffer. If that is the case, staff shall displace as much of the wetland encroachment into the second story of the proposed home and further northward into the buffer as much as reasonably possible to reduce the encroachment into the wetland. The side yard variance granted by this decision may be extended further northward in order to accommodate any redesign of the proposal. Staff may waive the requirement for a redesign of the proposal if the environmental benefits of the redesign are nominal and the burden upon the applicant is substantial. " Staffs Response: In reviewing Condition #1, staff finds that this condition would be very difficult to administer, particularly because no quantitative measurement for compliance with this condition is provided. The condition states that staff may waive the requirement for a redesign if the environmental benefits of the redesign are nominal and the burden upon the applicant is substantial; however, this is not a quantifiable measurement. Additionally, displacing some of the wetland encroachment further northward would move the project further into an already reduced stream buffer. Staff needs a more quantifiable basis for implementing this condition, or possibly this issue needs to be remanded in order for the Hearing Examiner to take additional testimony in order to adequately determine if the proposal complies with all applicable criteria. Staffs decision on compliance with a condition such as Condition #1 would not be done until review of the building permit application, which does not have a public notice requirement. Additionally, building permits are only subject to LUPA appeal, while variances are appealable to the City Council. Since the allowed encroachment into the critical areas and associated buffers would not be determined until the building permit phase of the process, the neighbors would face different noticing and appeal processes during the building permit phase than they do now under the variance application review. Also, with no public notice requirements, interested parties may miss their appeal opportunity of the building permit. Possible Alternative Condition: If the Hearing Examiner finds that it is necessary for the applicant to reduce the encroachment into the wetland, staff suggests that Condition #1 be revised to provide a quantitative measurement for compliance. For example, the Hearing Examiner Page 2 of 5 could specify the amount of square footage that must be displaced from the first floor to the second floor and/or the Hearing Examiner could specify a measurable area within the wetland that cannot be impacted by the development. Alternatively, the Hearing Examiner could remand this issue to take additional testimony in order to determine if the proposal complies with all applicable criteria. Condition #2 Staff is requesting reconsideration/clarification of Condition #2 of the decision, which reads as follows: "If no stormwater monitoring plan is required by the City's stormwater regulations, the applicant shall prepare a three stormwater monitoring plan that verifies that the stormwater system fully prevents any increase in stormwater discharges to neighboring properties. City staff shall require improvements to the stormwater system to the extent that the system fails to prevent increases in stormwater run-off to neighboring properties. The monitoring plan shall be subject to the approval of City engineering staff prior to the issuance of any building permits for the proposal. " Staff s Reading of Condition #2: The City's stormwater regulations do not require a stormwater monitoring plan. This being the case, the Hearing Examiner is requiring a stormwater monitoring plan (to be Approved by the Engineering Division) to verify that the proposed stormwater system fully prevents any increase in stormwater discharges to the neighboring properties compared to the pre -development condition. Further, the condition states that City staff shall require improvements to the stormwater system to the extent that the system fails to prevent increase in stormwater runoff to neighboring properties. This monitoring plan shall be in place for a three-year period. Staff s Response: Staff feels that implementation of this condition is not feasible due to the following: 1) The request to compare the amount of water leaving the site after development would imply that there is data available or easily attainable for the amount of water that leaves the pre - developed site. In order to determine if there is an increase in stormwater discharges from the subject property, there needs to be a baseline assessment of what the discharges are in the current pre -developed conditions. Obtaining this data is extraordinarily difficult and expensive given it is diffused flow off the wetland into the stream. 2) For a single-family residence with impervious surfaces between 2,000 square feet(sf) and 5,000 sf, a stormwater management system is required that meets the current City of Edmonds' stormwater regulations. The City's regulations attempt to match the post - development stormwater runoff rates from the property with the pre -development stormwater runoff rates from the property up to the 10-year, 24-hour storm event only.' Any larger event will result in more runoff than the pre -development flows. (Note that the City of Edmonds requirements in this regard are more stringent that the current Department of Ecology regulations.) 1 The event that has a 10% chance of being exceeded in any given year. Page 3 of 5 Possible Alternative Condition: If it is determined by the Hearing Examiner that the City's stormwater regulations are not stringent enough, then City staff requests that the Hearing Examiner consider conditions that are measurable and can be administered. An alternative condition to Condition #2 is to increase the design of the stormwater management system to a larger storm event, such as a 25-year, 50-year or 100-year, 24 hour event. This will require the applicant to provide more on -site storage of stormwater flows from the developed property prior to discharging to the stream. Appeal Procedures When issuing the decision on the subject request for reconsideration, staff asks that the Hearing Examiner provide clarification on the City's appeal procedures. On Page 12 of the decision, ECDC 20.85.020 is referenced, which states that the Hearing Examiner shall review variances as Type III -A decisions. Additionally, ECDC 23.40.210.0 states that the Hearing Examiner shall also review critical areas variance application as Type III -A decisions. These two code sections, however, are in conflict with the permit type and decision framework of ECDC 20.01.003, which lists variances as Type III-B decisions. This conflict was missed during an update to the ECDC; however, it was the intention that variances would be reviewed as Type III-B decisions, which are appealable to the City Council. Pursuant to ECDC 20.01.000.13, the provisions of this title supersede all other procedural requirements that may exist in other sections of the city code. Therefore, whenever there is a conflict between the text of the ECDC related to the decision type and the table of ECDC 20.01.003.A, the table prevails. As such, the Hearing Examiner's decision on the setback variances and critical areas reasonable use variance is a Type III-B decision. When issuing the decision on the subject reconsideration request, please clarify that the decision is subject to the appeal procedures applicable to Type III-B decisions (appealable to the City Council) so that all parties of record are clear on the appropriate appeal measures. I have reviewed this request for reconsideration with the Planning and Engineering Divisions and believe the content of this request to be true and accurate. City staff respectfully requests that the Hearing Examiner reconsider/clarify the findings and conclusions of the decision on the Hillman variance request in addition to Conditions #1 and #2 and add clarification of the City's appeal procedures. Thank you for your time. If you have any questions on the City's request for reconsideration, please contact me at Jen.Machuga@edmondswa.gov or (425) 771-0220. Sincerely, Jennifer Machuga Associate Planner CC: File No. PLN20120033 City of Edmonds Tom and Lin Hillman Ida Fernandez Planning & Engineering Divisions 15915 — 74th Pl. W 1133 Sierra Pl. 121 — 5th Ave. S Edmonds, WA 98026 Edmonds, WA 98020 Edmonds, WA 98020 Page 4 of 5 Cheri Zehner Adam and Emily Fountain Todd and Candy Brown 1027 Carol Way 602 — 12th Ave. N 1135 Sierra Pl. Edmonds, WA 98020 Edmonds, WA 98020 Edmonds, WA 98020 Stephen Schroeder & Cheryl Beighle 1142 Vista Pl. Edmonds, WA 98020 Alvin Rutledge 7101 Lake Ballinger Way Edmonds, WA 98026 David Thorpe 21117 Shell Valley Rd. Edmonds, WA 98026 Katherine Ericson P.O. Box 757 Edmonds, WA 98020 Page 5 of 5