PLN20150052_HE_Decision_UponReconsideration.pdf`17C. 189v
5 11
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CITY OF EDMONDS
121 5t" Avenue North, Edmonds WA 98020
Phone: 425.771.0220 • Fax: 425.771.0221 • Web: www.edmondswa
DEVELOPMENT SERVICES DEPARTMENT • PLANNING DIVISION
BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
Phil Olbrechts, Hearing Examiner
RE: Kent Dietz
FINDINGS OF FACT, CONCLUSIONS
Critical Area Reasonable Use OF LAW AND FINAL DECISION
UPON RECONSIDERATION
PLN20150052
INTRODUCTION
The applicant requests a reasonable use variance in order to construct a single-family
home with a 336sf footprint within the 100-foot critical area buffer of Shell Creek. The
reasonable use request was approved subject to conditions by decision dated April 7,
2016. The City of Edmonds requested reconsideration by email dated April 12, 2016.
The request for reconsideration was based upon the premise that the "reasonable use"
definition applied in the April 7, 2016 decision had been superseded by an amended
"reasonable use" definition amendment adopted by the City of Edmonds in 2013. This
Decision Upon Reconsideration is modified to incorporate the amended definition. The
outcome of the April 7, 2016 decision and conditions imposed remains the same.
ORAL TESTIMONY
Note: This hearing summary is provided as a courtesy to those who would benefit from a
general overview of the public testimony of the hearing referenced above. The summary is
not required or necessary to the decision issued by the Hearing Examiner. No assurances are
made as to completeness or accuracy. Nothing in this summary should be construed as a
finding or legal conclusion made by the Examiner.
Kernen Lien, Edmonds Senior Planner, summarized the proposal. In response to
examiner questions, Mr. Lien noted that City regulations and recommended
conditions don't require that the conditions of approval be recorded against the
property.
Reasonable Use Variance P. 1 Findings, Conclusions and Decision
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Kent Dietz, applicant, noted that the reason the buffer enhancement areas aren't larger
is because the rest of the property wouldn't benefit from any improvements. The
remaining area is already native growth.
Lynnette Callahan, neighboring property owner, noted that the site is not an attractive
nuisance as alleged in the exhibits. She has never seen the property serve as an
attractive nuisance. Neighboring property owners were not sent letters about the
proposal, only adjacent property owners. She saw approval as a slippery slope where
it could lead to other variance requests. There have been multiple owners of the
property who have all had to accept that development of the property is restricted.
Removal of the trees will cause stormwater problems.
Vi Walls, neighbor, asked questions about the proposal. She noted that she lives on
top of a hill and she used to dump her yard waste over her fence and was told she
could not do so, apparently because of the presence of critical areas.
Scott Blomenkamp, citizen, testified that the review process was in violation of WAC
197-11-340(2)(a), which prohibits an agency from acting on a proposal within 14
days of the issuance of the SEPA determination. The city set a hearing and prepared a
staff report within that 14-day period. He also stated that an appearance of fairness
presentation should have been made at the beginning of the hearing. Mr.
Blomenkamp believed that the City tends to overly rush development projects.
In rebuttal, Mr. Lien stated that Ms. Callahan was referring to a letter submitted by
the applicant on the issues regarding letters sent to adjoining property owners and the
property serving as an attractive nuisance.
Kent Dietz stated in rebuttal that the amount of trees being removed is minimized.
He noted that his comments about the property being an attractive nuisance were
based upon information given to him ftom neighboring property owners and also that
every time he goes to the property he has to close the gate. Neighbors have told him
that the property is often ftequented by young people.
EXHIBITS
Exhibit 1 Staff report dated March 17, 2016 with 39 attachments.
Exhibit 2 Staff power point.
Exhibit 3 Email ftom Lynnette Callahan dated March 23, 2016
Exhibit 4 Schenk reasonable use decision -- PLN 20130044; 20140008.
Staff sent an email to the examiner dated March 24, 2016 stating that a letter had been
submitted to the City's planning counter at 3:50 pm on March 24, 2016. Since the
hearing was already closed at that time and hearing participants did not have an
opportunity to respond to the letter, the letter was not admitted into the record.
Although the letter was emailed by staff to the examiner, the examiner did not read
the letter and has no knowledge of its contents.
Reasonable Use Variance p. 2 Findings, Conclusions and Decision
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
FINDINGS OF FACT
Procedural:
Applicant. The applicant is Kent Dietz.
2. Hearing. A hearing was held at 3:00 pm on March 24, 2016 at the
Brackett Room of Edmonds City Hall.
Substantive:
3. Site/Proposal Description. The applicant requests a reasonable use variance
in order to construct a single-family home with a 336sf footprint within the 100-foot
critical area buffer of Shell Creek. The property is located at 742 Daley Street and has
steep slopes along the west side of the property and Shell Creek runs across the northeast
corner of the property. Shell Creek is identified as an anadromous fish bearing stream
which has 100 foot stream buffers pursuant to Edmonds Community Development Code
(ECDC) 23.90.040.D. Given the entire property is encompassed by the stream buffer, the
applicant is pursuing a critical area reasonable use variance to develop the site. The
property is 0.24 acres in size.
4. Characteristics of the Area. The subject site is located within a single-
family residential neighborhood in Edmonds. The site is one of the few undeveloped
parcels in the area and is completely surrounded by parcels that are currently
developed with single-family residences. The site and surrounding properties are
located within the RS-6 (Single -Family Residential) zone. North of the neighborhood
is the Holy Rosary Church and School site, which is zoned RS-12. West of the
neighborhood across 7th Avenue North is property zoned RM-1.5 (Multi -Family) that
is developed with a mix of multi -family and single family residences.
5. Adverse Impacts. As mitigated, impacts to Shell Creek will be minimized
and stream functions and values will be maintained. No other significant adverse
impacts are anticipated.
The two primary impacts of concern are to Shell Creek and a landslide hazard located
on the property. As noted in the critical areas report, Ex. 1, att. 5, the proposal will
result in unavoidable stream buffer impacts. As noted in the report and evident from
its references to credible scientific studies, the report is based upon best available
science. Since the entire property is encumbered by Shell Creek or its 100 foot buffer,
there is no way to build a home on the property without encroaching into the buffer.
To compensate for these impacts, the critical areas report recommends 1,617 square
feet of stream buffer enhancement with native trees and shrubs. The critical areas
report also recommends a five-year monitoring plan. The home is also located as far
as possible from the stream itself and the size of the residence's building footprint is
far smaller than that of neighboring properties or sizes usually associated with single -
Reasonable Use Variance p. 3 Findings, Conclusions and Decision
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
family homes. A split rail fence will also be installed close to the home to ensure that
no clearing or other development activity occurs outside of the footprint area. In
addition to adopting all of the critical area report recommendations, this decision will
also require that the buffer restrictions be recorded to provide notice to subsequent
property owners and to facilitate enforcement. As designed and mitigated, the critical
areas report concludes that the functions and values of the Shell Creek will be
maintained. There being no evidence to the contrary and given the expertise of the
report and minimized design impact, it is determined that the proposal will maintain
Shell Creek functions and values.
As previously noted, the southwest corner of the property has steep slopes. These
slopes meet or exceed 40% grade and therefore qualify as landslide hazard areas
pursuant to ECDC 23.80. The applicant had a geotechnical report prepared for the
proposal, which determined that the proposal would improve slope stability due to the
proposed reinforced concrete foundation and drainage controls (Ex. 1, att. 6-8 and
21). The proposed site work also includes slope stabilization measures composed of
gabion walls, which the geotechnical report describes as wire baskets of rocks. There
being no evidence to the contrary and given the expertise of the geotechnical report, it
is determined that the proposal will not adversely affect slope stability.
The proposal is fully compatible with surrounding homes. As noted in the critical
areas report, Ex. 1, att. 5, the proposed home is significantly smaller than surrounding
homes and the applicant is proposing a single-family home in an area zoned and
developed with single-family use. As noted in the staff report, the residence is not
likely to adversely affect the views of existing homes since the home will be located
on the downhill side of a steep slope.
There was some concern about the removal of trees, but there is no evidence to
suggest that this removal will create any significant adverse impacts. The amount of
trees that will be removed is not identified with any specificity in the record, except
for a comment in the environmental checklist that a large maple tree will be removed.
The area to be cleared is only about 800 square feet and the required mitigation
involves enhancing 1,689 square feet, which includes the installation of 15 native
trees. Given the determination in the critical areas report that the functions and values
of the stream will be maintained, the minimal amount of clearing proposed and the
absence of any evidence to the contrary, it is determined that removal of the trees will
not create any significant adverse impacts.
6. Minimum Reasonable Use. Finding of Fact No. 6 of the Schenk decision
contains a detailed analysis of how to determine minimum reasonable use for the
subject property. Although in this case the purchase price for the subject property was
$20,000 instead of the $95,000 to be paid by Mr. Schenk and as identified in Finding
of Fact No. 5 stream impacts have been adequately evaluated and mitigated, the
analysis is otherwise the same. As was the case for the $95,000 purchase price, Mr.
Dietz will certainly have no trouble realizing a reasonable economic return on his
property if he is allowed to build a single-family home of minimum dimensions on the
Reasonable Use Variance p. 4 Findings, Conclusions and Decision
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
subject property. As determined in the Schenk decision, specifically footnote 3 of that
decision, a home with a first floor limited to a two car garage would constitute
minimum reasonable use with a building footprint of 626 square feet. Although the
Schenk application proposed a 626 square footprint, it was denied because it had an
extensive second floor overhang that would adversely affect the stream buffer. In this
application the applicant proposes a 336 square foot building footprint, but instead of
in a garage he proposes to place the parking spaces on the proposed 460 square foot
driveway. The administrative record does not contain any information on the
dimensions of the size of the driveway proposed in the Schenk application, however
from the minimal size of the driveway proposed for this application it does not appear
likely that Mr. Schenk's driveway would have been significantly less in area. Of
additional significance is the fact that without a home there is no other reasonable use
of the property that could be less intense. The stream itself is not large enough to
provide for any type of recreational use and as a lot in the middle of a single-family
neighborhood, the lot cannot be reasonably considered to serve as a site for other
recreational uses such as camping. As noted in the staff report, there is no interest
from adjoining neighbors in purchasing the property as an addition to their own
property. From all of these considerations it is determined that the proposal constitutes
a minimum reasonable use of the property.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. ECDC 20.85.020 provides the Hearing
Examiner with the authority to review and act upon variance applications as Type III -
A.
Substantive:
2. ZoninDesignations. The area is zoned Single -Family Residential (RS-
6).
3. Review Criteria and Application. Reasonable use exceptions to critical
area stream buffers are governed by ECDC 23.40.210(A)(2) and 23.40.210(B).
Applicable criteria are quoted in italics below and applied through corresponding
conclusions of law.
ECDC 23.40.210(A)(2)(a): The application of this title would deny all reasonable
economic use of a property or subject parcel;
"Reasonable economic use(s)" is defined pursuant to ECDC 23.40.320 as follows:
"[Tjhe minimum use to which a property owner is entitled under applicable state
and federal constitutional provisions in order to avoid a taking and/or violation of
substantive due process.
Reasonable Use Variance p. 5 Findings, Conclusions and Decision
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4. Applying the definition above, it is determined that the stream buffer denies
the applicant all reasonable use of the subject property. Takings and substantive due
process case law is highly complex and subjective, rendering it difficult to predict how a
court would rule on a takings or substantive due process challenge. Raising the stakes, if
development is incorrectly denied, the City can be held liable for damages to the property
owner. The closest Washington State case that addresses development rights attaching to
a single-family lot is Buechel v. Department of Ecology, 125 Wn.2d 196 (1994). That
case did not directly apply constitutional requirements attaching to takings and
substantive due process, but it did apply highly similar concepts through a reasonable use
provision contained within Mason County's shoreline regulations. As here, the
reasonable use provisions in Mason County's shoreline regulations were highly
restrictive. The applicant requested a variance based upon reasonable use criteria to build
within a shoreline setback along Hood Canal. Without the variance there was no space
for a single-family home. The subject lot only had 1,000 square feet of developable space
because the rest of the property was submerged. The property was zoned for residential
use, but the court sustained a County rejection of the variance request on the basis that
the property could be used for recreational use, such as for a dock or boathouse. It was
significant to the court that other properties in the vicinity were also exclusively used for
similar types of recreational uses.
Unlike the Buechel case, there is no other recreational or any other reasonable use to
which the property could be used. As determined in Finding of Fact No. 6, the stream is
not large enough for recreational use and as a small lot located in the middle of a single-
family neighborhood the lot is not suitable for camping or any other type of other
recreational use. Further, adjoining neighbors are also not interested in adding the
property to their own lot. Authorizing a lawn mower shed or other residential accessory
structure for the lot also could not be considered reasonable for a property owner that
doesn't live adjacent to the property. Given that the lot is large enough to accommodate a
single-family home; that the lot is zoned for residential use; and that there is no
conceivable reasonable use of the property available that would be less intense; it must be
concluded that denial of the reasonable use application would deny the applicant of all
reasonable use of the property.
ECDC 23.40.210(A)(2)(b): No other reasonable economic use of the property
consistent with the underlying zoning and the city comprehensive plan has less impact on
the critical area;
5. The criterion is met. As discussed in Conclusion of Law No. 4, if the
applicant is not allowed to build a single-family home he will have no reasonable use left
for the property. All other reasonable uses allowed for the property in the applicable
zoning district, such as churches, schools and local public facilities are more intense.
Some types of public facilities may in fact be less intense, such as perhaps a water pump
house, but the property is privately owned and there is nothing in the record to suggest
that a public utility or municipality would ever need to develop the property for public
use or use it for public park or open space purposes.
ECDC 23.40.210(A)(2)(c): The proposed impact to the critical area is the minimum
necessary to allow for reasonable economic use of the property;
6. The criterion is met. As noted in the critical areas report, Ex. 1, att. 5, the
property is located as far from critical areas as possible given the site constraints. Further,
Reasonable Use Variance p. 6 Findings, Conclusions and Decision
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
as determined in Finding of Fact No. 6, the proposed house also has the minimum
footprint that could be reasonably required of a single-family home. Given that a single-
family home is the minimum use that could be authorized for the home, the minimum
size and optimal location proposed by the applicant is determined to reduce impacts to
the minimum necessary as required by the criterion.
ECDC 23.40.210(A)(2)(d): 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;
7. The criterion is met. The inability to derive reasonable use is wholly
attributable to the critical areas ordinance, which encumbers the entirety of the subject lot
with a stream buffer.
ECDC 23.40.210(A)(2)(e): The proposal does not pose an unreasonable threat to the
public health, safety, or welfare on or off the development proposal site;
8. The criterion is met. As determined in Finding of Fact No. 5, there are no
significant adverse impacts associated with the proposal. This conclusion could not be
reached in the Schenk decision because the critical areas study prepared for the Schenk
application was based upon an inaccurate critical areas classification of Shell Creek.
ECDC 23.40.210(A)(2)(f): The proposal minimizes net loss of critical area functions and
values consistent with the best available science; and
9. The criterion is met. As determined in Findings of Fact No. 5 and 6, the
proposal minimizes impacts to critical areas and the critical areas analysis upon which
these conclusions were drawn was based upon best available science. (See Ex. 1, att. 5.)
ECDC 23.40.210(A)(2)(g): The proposal is consistent with other applicable regulations
and standards.
10. As noted in the staff report, staff has determined compliance with all
applicable development standards and there is no evidence to the contrary.
ECDC 23.40.210(B)(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;
11. The property is completely encumbered with critical area buffers, which
qualifies as a special condition and circumstance. Most lots in the vicinity and district are
not fully encumbered by critical area buffers.
ECDC 23.40.210(B)(2): The special conditions and circumstances do not result from
the actions of the applicant;
12. The criterion is met. See COL No. 7.
ECDC 23.40.210(B)(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;
Reasonable Use Variance p. 7 Findings, Conclusions and Decision
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
13. The criterion is met. Imposition of critical area buffers would deprive the
applicant of all reasonable economic use for the reasons outlined in COL No. 4. The
variance is for the minimum necessary for the reasons outlined in COL No. 4 and 6.
Other properties of similar size in the surrounding neighborhood and zone were allowed
to be developed with single family homes, so authorization of the variance is necessary to
enable the applicant to enjoy the same minimum development rights.
ECDC 23.40.210(B)(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;
14. The criterion is met. Authorizing the variance would enable the applicant to
build a single-family home in a single-family neighborhood that is developed and zoned
for single-family use.
ECDC 23.40.210(B)(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
15. The criterion is met. As determined in Finding of Fact No. 5, the applicant
has demonstrated that the proposal will maintain the functions and values of Shell Creek
and will not adversely affect slope stability of on -site steep slopes. The proposal will not
be materially detrimental to the public because as determined in Finding of Fact No. 5 it
will not create any significant adverse impacts.
ECDC 23.40.210(B)(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.
16. The criterion is met. As determined in Findings of Fact No. 5 and 6, the
proposal minimizes impacts to critical areas and the critical areas analysis upon which
these conclusions were drawn was based upon best available science. (See Ex. 1, att. 5.)
Miscellaneous Issues
17. Appearance of Fairness "Script". One of the hearing participants expressed -
some confusion about the absence of an appearance of fairness "script" in the hearing that
is typically used in City Council and Planning Commission hearings. These scripts are
usually comprised of the presiding officer asking if any members of the decision making
body have engaged in any ex parte communications or have any association with the
application that could make them appear to be biased. These scripts are recommended for
multimember bodies but are not mandated by state law. The scripts are recommended
because if a potential appearance of fairness violation is disclosed and no objection is
made from the audience, the city or county has immunized itself from challenge. If an
objection is not timely made, it is considered waived and cannot be raised on appeal.
Reasonable Use Variance P. 8 Findings, Conclusions and Decision
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
See Lakeside Industries v. Thurston County, 119 Wn. App. 886 (2004); King County
v. Central Puget Sound Growth Management Hearings Board, 91 Wn. App. 1 (1998),
partially reversed on other grounds, 138 Wn.2d 161 (1999); RCW 42.36.080. Of
course, there is no point in a hearing examiner going through a script and asking
himself questions about whether he has engaged in ex parte contacts or has any
associations with a project if the examiner has not made any such contacts and has no
association with the application. In this case the examiner had no ex parte contacts or
associations with the project beyond reviewing the prior Schenk application, which
would likely not be considered an appearance of fairness issue (although the examiner
did disclose and enter the Schenk decision in any event). Consequently, there was no
duty to go through any script or go through disclosures.
18. SEPA Review. It was also argued during the hearing that the City violated
WAC 197-11-340(2)(a) by scheduling the application hearing and issuing a staff
report within 14 days of issuance of the DNS. WAC 197-11-340(2)(a) provides that a
municipality may not "act" on an application within 14 days of the issuance of a DNS.
This issue cannot be resolved by the hearing examiner because the examiner has no
jurisdiction to address SEPA compliance issues absent an appeal of the issuance of the
DNS.
DECISION
The reasonable use variance is approved, subject to the following conditions:
The applicant is responsible for seeking and obtaining all other required local,
state and federal permits.
2. The mitigation measures detailed in the Critical Areas Study and Mitigation Plan
prepared by Wetland Resources, Inc. revised on January 7, 2016 contained in
Attachment 20 of this staff report must be implemented prior to issuance of
Certificate of Occupation for the residence constructed consistent with this
approval.
3. Signs shall be installed on the fence delineating the setback area from the critical
area buffer. The signs shall be consistent with the requirements of ECDC
23.90.030.F.2.a.
4. At time of building permit application, the applicant shall provide an updated
estimate for the cost of plant materials, labor, monitoring, and maintenance. This
shall be used as the basis for a maintenance bond which will be 15% of the
estimate. The maintenance bond must be secured prior to issuance of Certificate
of Occupation.
5. A monitoring report must be submitted to the City of Edmonds for each of the
five year monitoring periods. The monitoring report shall document milestones,
success, problems, and contingency actions required to ensure success of the
mitigation.
6. Compliance with Engineering codes and construction standards will be reviewed
with the building permit application for development of the site. The applicant is
Reasonable Use Variance P. 9 Findings, Conclusions and Decision
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
encouraged, wherever feasible, to incorporate pervious pavements, rain gardens
and/or other low impact development techniques into the project design.
7. The City of Edmonds has two easements that encumber the subject property.
One is for the construction, maintenance and repair of said stream channel and
the other is a utility easement for installation, operation and maintenance of a
fish ladder and diversion structure. Please refer to recording documents
48207160100 and 49003150306, respectively. Easement areas shall also be
shown on any future building permit applications.
8. The conditions of approval shall be recorded upon the property with express
reference to the restriction that no development activity or other disturbance
of the area outside the rail fence is allowed except as authorized by the City's
critical area regulations. The recording document shall be approved by
planning staff and recorded prior to occupancy.
Dated this 26th day of April, 2016.
Ph'if A.Olbrechts
Edmonds Hearing Examiner
Appeal Right and Valuation Notices
This land use decision is final and subject to closed record appeal to the City Council as
authorized by ECDC 20.01.003. Appeals must be filed within 14 days of the issuance
of this decision as required by ECDC 20.07.004(B).
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Reasonable Use Variance P. 10 Findings, Conclusions and Decision