Reconsideration PLN-2006-0116.pdf4'11c. is OV
CITY OF EDMONI)S
121 5TH AVENUE NORTH ® Edmonds, WA 98020 a (425) 771-0220 d FAX (425) 771.0221
HEARING EXAMINER
APPLICAANT:
1
i= I on 13 no I IN 11 Cor
Dennis Walcker
V-06-116
742 Daley Street
GARY HAAKENSON
MAYOR
1. On November 29, 2006, Finis Tupper, party of record, submitted a timely request for
reconsideration of the Examiner's decision on the subject application (See
Reconsideration Exhibit A).
2. Staff forwarded the request for reconsideration, with a cover memo to the Hearing
Examiner on December 1, 2006 (Reconsideration Exhibit B).
3. The reconsideration request raises the following issues:
a. Typographical Error under Major Issues (see Reconsideration Exhibit A):
The staff and hearing examiner reports both _included a typographical _error, which
referred to ECDC 20.40, 80 and 90. The correct citation is ECDC 23.40, 80 and 90
(Environmentally Critical Areas General Provisions, Geologically Hazardous Areas,
and Fish and Wildlife Habitat Conservation Areas). He requested that a correction be
made.
Hearing Examiner Response:
The typographical error is acknowledged and ECDC 23.40, 23.80 and 23.90 are the
correct citations. The staff and hearing examiner reports both included the correct
language, but both cited ECDC 20 instead of ECDC 23.
Incorporated A mp ist I I, 1890
Hearing Exaraxaer Reconsideration Decision
Case No.: VAR 06-116
Page 2
b. Incomplete Record and Historical Facts (see Reconsideration Exhibits A and B):
These two issues are closely related and will be addressed together. Mr. Tupper's
email, dated 10/25/06, was not referred to in the hearing examiner's report. His letter
included documentation of an 8/16/99 easement Between lot 10 and lot -9 adjacent -to
the alley. He alleged the -easement would -create a 19.5' wide access for
ingress/egress to the Walcker property. He argued that the current lack of access
from the alley, based on width of the existing alley at the property line, is a self-
created hardship due to the actions of the current owner.
Staff Response (see Reconsideration Exhibit B):
Mr. Tupper's letter was emailed to the hearing examiner on October 26, 2006.
The -original -easement discussed -by Mr. Tupper -only benefited the adjacent -lot and
did not reciprocally provide an easement to the Walcker property. Whether a
reciprocal easement exists has not been shown by anyone.
Hearing -Examiner Response:
The hearing examiner did not receive the 10/25/06 email from Mr. Tupper until
12/4/06 when he requested a copy from staff after reviewing Mr. Tupper's
reconsideration request and the staff cover memo. Staff apparently emailed it on
10/26/06, -but the hearing examiner has -no -record of-reeeiving -it -at -that time.
After reviewing Mr. Tupper's 10/25/06 email, with the attached easement
information, the hearing examiner concurs with the staff response noted above. No
information -has-been submitted into the record that shows the -lack of access from the
-alley -is due to actions of -the -applicant.
c. Critical Areas Com lip ance (see Reconsideration Exhibit A).
1) The intent of the critical areas ordinance is to not -reduce the buffer below -50% of
-the required .buffer.
Hearing Examiner Response:
The hearing examiner is -not sure which section -of -the -code Mr. Tupper is
referring to:
2) The driveway from Daley Street creates the need for the greater buffer reduction
from -Shell Creek.
Hearing Examiner Response
That is one of the reasons for the application for a variance.
Hearing Examiner Reconsideration Decision
Case No.: VAR 06-116
Page 3
3) Accesstothe single-family residence from the alley would minimize
encroachment on Shell Creek and preserve critical area habitat. Mr. Walcker's
releasing of the alley easement to Eaglewood Homes just prior to application for
the variance is a personal action taken to prevent access from the alley.
Hearing Examiner Response:
This issue has been discussed in other areas of this report. No evidence has been
entered into the record to show that the applicant -has given up access to the alley.
4) There are sightings of endangered, threatened and sensitive species on this
property.
Staff Response (see Reconsideration Exhibit B):
Perching trees for bald eagles are not protected. This site does not contain a
nesting tree for a bald eagle.
-Hearing Examiner Response:
The hearing examiner concurs with the staff statement noted above. Furthermore,
a technical memorandum submitted by Landau Associates, dated 11/6/06 (Exhibit
J of the -Examiner's original report) concluded that wildlife habitat functions are
expected -to be improved due -to the -proposed -buffer enhancement, which will
increase density, structure, and diversity of vegetation over the existing conditions
on the site. No substantive information was submitted to show otherwise.
6) ECDC 23.90.40(C) requires 30% retention of native vegetation on undeveloped
property.
Staff Response (see Reconsideration Exhibit B).
The 30% vegetation retention applies only to lots in the RS -12 -or RS 20 zone, and
this lot is in the RS -6 zone.
Hearing Examiner Reponse:
The hearing examiner_concurs with -the staff response noted -above.
6) ECDC 23.90.40(D)1 requires critical areas review and stream classification by a
qualified biologist. Shannon Moore of Landau Associates, writer of the buffer
mitigation plan, is -a Senior Project Scientist. Her qualifications -are not included
in the report _and the report. The .report _does _describe the -best -available science
used to determine proper stream classification and substantiates the decision.
Hearing Examiner Reconsideration Decision
Case No.: VAR 06-116
-Page 4
Hearing Examiner Response:
Shannon Moore is a Senior Project Scientist with Landau Associates, which is a
qualified technical consultant on the city's approved list. City staff reviewed and
approved her report and no evidence -was submitted which would question her
qualifications.
7). Previous staff reports prior to new code section classified Shell Creek as Category
2 with Salmonids.
Hearing Examiner Response:
This statement is acknowledged.
A Compliance with Requirements for A Reasonable Use (See Reconsideration Exhibit
A):
The previous owner of the property recorded an easement to provide adequate
-ingress/egress from the alley to -the -southwest -corner of -this undeveloped -site. On
August 26, 2006, Waleker-and Eaglewaod Homes entered into _an_agreemcnt to
release this easement leaving only a 7.5 -foot access to the subject property.
Accessing the home from Daley Street causes a considerable loss of native
vegetation. Access from the alley would -lessen the -impact on the steep slopes.
Staff Response .(see Reconsideration Exhibit B):
The original easement discussed by Mr. Tupper only benefited the adjacent lot and
did not reciprocally provide an easement -to -the Walcker property. Whether a
-reciprocal easement exists -has not been shown by anyone.
Hearing Examiner Response:
The hearing -examiner concurs -with -the -staff response above, and notes that the
request was reviewed by the Fire Department, Public Works Department, Planning
Division, Parks and Recreation Department, and Engineering Division before staff
recommended approval of the applicant's request on 10/13/06 (see Exhibit A of the
Examiner's original decision).
5. Mr. Tupper -made similar arguments in his request for reconsideration and his
accompanying letter as he did at the public hearing. The Examiner considered those
arguments when the decision was being prepared.
6. Afterconsideringthe request for -reconsideration, and after re=reviewing the -original -file
on this application, the Examiner reconfirms his decision on the subject application.
Hearing Examiner Reconsideration Decision
Case No.: VAR 06-116
-Page 5
RECONSIDERATION DECISION:
Based -upon -the foregoing, the November 28, 2006 Hearing Examiner decision on -the subject
-case remains unchanged, except the -typographical error on Page 1 of that decision is
acknowledged and ECDC 20.40, 80 and 90 cited in the report are changed to read ECDC 23.40,
80 and 90.
Entered this 6th day of December 2006 -pursuant to the authority -granted the Hearings Examiner
under .Chapter 20.100 -of the Community Development -Code of the .City of Edmonds.
Ron McConnell, AICP
Hearing Examiner
APPEAL:
The following is a summary of the deadlines and procedures for filing an appeal. Any person
wishing -to file -an appeal -should contact -the Planning Department for further -procedural
information.
Section 20.105.020.A & B describe how appeals of a Hearing Examiner decision or
recommendation shall be made. The appeal shall be made in writing, and shall include the
decision -being appealed along with the name of the -project and the date of the decision, -the
name of the individual or group appealing the decision, their interest in the matter, and
reasons why the appellant believes the decision to be wrong. The appeal must be filed with
the Community Development Director within ten (10) working days after the date of the
decision being appealed.
TIME LIMITS FOR RECONSIDERATION AND APPEAL:
The time limits for Reconsideration and Appeals 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 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 5 of the appeal period, an individual would have 9
more days in which to file an appeal after the Hearing Examiner issues -his decision on the
reconsideration request.
LAPSE OF APPROVAL:
Section 20.05.020.0 states 'Unless the owner obtains a building permit, or if no building is
required, substantially commences the use allowed within one year from the date of approval,
Hearing Examiner Reconsideration Decision
Case No.: VAR 06-116
Page 6
the -conditional -use .permit shall expire and be -null and void, unless the -owner files an
application for an extension of the time before the expiration date.'
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.
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.
RECONSIDERAT_I-ON EXHIBTI'S:
The following reconsideration exhibits were offered and entered into the record.
A. Reconsideration Request from Finis Tupper, dated 10/26/06
B. Memo from Meg Gruwell, dated 12/1/06
-C. Email from Finis Tupper, dated 10/25/06, with attached easement -information
PARTIES of RECORD:
Dennis Walcker Sacha Maxwell and Shannon Moore
P. -O. Box -996 Landau Associates
Lynnwood, WA 98046 13.0 2nd Ave..S
Edmonds, WA 98020
Greg & Cindy Olson
Kirsten Hayford
725 Sprague Street
727 -Sprague -Street
Edmonds, WA 98020
Edmonds, WA 98020
Roger Hertrich
Finis Tupper
1020 Puget Drive
711 Daley Street
Edmonds, WA 98020
Edmonds, WA 98020
Sandy Zickuher Dave Arnim
721 Sprague Street 755 Daley Street
Edmonds, WA 98020 Edmonds, WA 98020
Planning Division Engineering Division
Public Works Director
AM
Crry OF
EDMONDS
121 5TH AVENUE NORTH • EDMONDS, WA 98020 • (425) 771-0220 ° FAX (425) 771-0221
Website: wwwdedmonds.wams
DEVELOPMENT SERVICES DEPARTMENT
Planning ® Building ® Engineering
December 1, 2006
To: Mr, Ron McConnell, FAICP
Hearing Examiner
Fax: (425) 452-9363
From: Ms. Meg Gruwell, AICP
Senior Planner
Subject: File V-06-116 Dennis Walcker Variance
GARY HAAKENSON
MAYOR
Transmitting: Request for Reconsideration from Finis Tupper, Dated November 29,
2006
Comment: This is a timely request for reconsideration. Regarding the
content:
• 1 show that I e-mailed his letter to you on October
26th, Let me know if you don't have it.
® The original easement discussed only benefited the
adjacent lot and did not reciprocally provide an
easement to the Walcker property. Whether a
reciprocal easement exists has not been shown by
anyone.
® Perching trees for bald eagles are not protected.
This site does not contain a nesting tree, nor is it
within 800 feet of a nesting tree for a bald eagle.
® The 30% vegetation retention applies only to lots in
the RS -12 or RS -20 zone, and this is in the RS -6
zone.
Please provide your written response within 5 working days.
If you have any questions please call me at (425) 771-0220,
extension 1330.
[ncorporcate d flragust 11, 1890
November 29, 2006
Ron McConnell, FAICP
Hearing Examiner
City of Edmonds
1215"' Ave. N.
Edmonds WA 98020
RE: REQUEST FOR RECONSIDERATION
V-06-116
Dennis Walcker, Applicant
742 Daley St., Edmonds WA 98020
Dear Mr. McConnell:
Pursuant to ECDC 20.100.010 (G), I present the following specific references to your
findings and approval for the Critical Areas Variance and Reasonable Use Exception for
your reconsideration. The findings, conclusions and decision are a verbatim copy of the
staff report. There is no response to any of the Hearing Comments and Exhibits or any
explanation, why the decision complies with the legal requirements of the ECDC.
Example
Findings, Major Issues: compliance with ECDC 20.40 (Rezones) ECDC 20.80 (Text &
Map changes) ECDC 20.90 (Application process).
This typographical error is part of the staff report. Clearly, this demonstrates the staff
report was copied without reference to the code. This should read ECDC 23.40, ECDC
23.80 and ECDC 23.90. I request the findings be amended and this correction be made.
Introduction
After reviewing the findings including correspondence and exhibits sections, I find you
have either chosen to omit or the staff failed to provide you with my letter of October
25,2006. The record is incomplete. Not all documents and letters are included in the
findings.
This letter to the Hearing Examiner including documentation of an 8/16/1999 Easement
between Lot 10 & Lot 9 adjacent to the alley creating 19.5' wide access for ingress/egress
to the Walcker property and a copy of the 8/29/2006 Release of the same Easement by
Dennis Walcker to Eaglewood Homes. Nowhere in your findings, facts and conclusions
(including Exhibit list) are the letter, testimony and documents noted or referenced. The
Applicant in response to my letter provided these same documents to the record (Exhibit I
with 3 attachments) His letter is noted in Exhibit list but no description of the legal
property documents recording the easements and the release of the easements.
Misconstruing the fact of the 12 x 14 -foot easement to the subject property as a turn-
around is blatant misrepresentation of the history of the property. Not incorporating this
fact under (Ala) Introduction, History, Facts:) with a new conclusion is inappropriate.
The code requires the Hearing Examiner's explanation and evidentiary support of the
decision. See ECDC 200.100.010 (E). In these findings, conclusions, and decision there
is no original work of the Hearing Examiner.
HISTORICAL FACTS:
The City of Edmonds vacated a portion of the between Daley & Sprague Streets and 7t"
and 8"' Ave. N. by Ordinance 2364, effective date May 9, 1983.
The Edmonds City Council approval of the street vacation was based on following:
"WHEREAS, ...the City Council finds that there will be no significant adverse
environmental impacts, and
WHEREAS, ...said property dedicated for street purposes should be vacated subject to
the grant of certain easements to the City by the abutting property owners, and,
WHEREAS, the abutting property owners have tendered the grant of such easements as
compensation for the area to be vacated..."
Prior to selling the adjacent western portion of the property including Lot 10, Paul &
Charlotte Bushue recorded an easement granting ingress and egress over the west 12 feet,
of the north 1/2 of the vacated alley abutting Lot 10, Block 84, Plat City of Edmonds Vol.
2, page 39, Records of Snohomish County WA.
On August 29, 2006, Walcker declared, conveyed and quit claimed to Eaglewood Homes
the above easement creating only 7.5 -ft access to his property.
With the easement, alley access to the property is 19.5 foot travel lane within the right-of-
way more than the required minimum of 12 -foot travel lane.
Conclusion: No access from the alley base on width of the existing alley at the property
line is a self-created hardship due to the actions of the current owner and not the City of
Edmonds.
CRITICAL AREAS COMPLIANCE:
A. The intent of the critical areas ordinance is to not reduce the buffer below 50 percent
of the required buffer.
B. The driveway from Daley Street creates the need for the greater buffer reduction from
Shell Creek.
C. Access to the single-family residence from the alley would minimize encroachment
on Shell Creek and preserve critical area habitat. Mr. Walcker's releasing of the alley
easement to Eaglewood Homes just prior to application of the variance is a personal
action taken to prevent access from the alley.
N
D. There are sightings of Endangered, Threatened and Sensitive Species on this
property. ECDC 23.90.040 Development standards — Specific Habitats
A. Endangered, Threatened, and Sensitive Species.
3. Bald eagle habitat shall be protected pursuant to the Washington State bald
eagle protection rules (WAC 232-12-292).
On many occasions in the summer time I have witness bald eagles using the large
Douglas Fir located next to fish ladder and above the stream. These are the same
eagles that nest in Hutt Park and travel daily between that location and Unocal Dock
at Marina Beach Park. Construction of proposed driveway off Daley St. would
require the removal of this tree. - -
E. ECDC 23.90.40(C) requires 30 percent retention of native vegetation on undeveloped
property. Most of the mature trees on the west of Shell Creek will be logged. This
standard is not being met.
F. ECDC 23.90.40 (D) 1 requires critical areas review and steam classification by a
qualified biologist. Shannon Moore, of Landau Associates, writer of the Buffer
mitigation plan, title is Senior Project Scientist. Her credentials and qualifications are
not included in the report. The report does describe the best available science used to
determine proper stream classification and substantiate the decision.
G. Previous staff reports prior to new code section classified Shell Creek as Category 2
with Salmonoids. ECDC 20.15B.060 (A) 4. [repealed by Ord. 3.5271
Conclusion: ECDC 23.90 Site development standards have not been met.
COMPLIANCE WITH REQUIREMENTS FOR A REASONABLE USE.
Fact: The applicant is required to prove all criteria in ECDC 23.40.210 (A) 2, (B) &
ECDC 20.85 are satisfied.
c. The proposed impact to the critical area is the minimum necessary to all for reasonable
economic use of the property;
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 codifed in
this title or its predecessor.
(4) Not Required as a Result of the Applicant: The applicant is responsible for the release
of easement, this was done after the adoption of the critical areas ordinance. ECDC 23.40
[Ord. 3527§ 2, 2004]
Conclusion: The previous owner of the property recorded an easement to provide
adequate ingress/egress from the alley to the southwest corner of this undeveloped site.
On August 26, 2006, Walcker and Eaglewood Homes entered into an agreement to
release this easement leaving only 7.5 -ft right-of-way access. Access from the alley
would have less impact on the environmentally protected critical areas. The proposal
does not minimize the net loss of critical areas. Accessing the home from Daley St.
causes a considerable amount of loss native vegetation including older trees. Access from
the alley would lessen the impact on the steep slopes by eliminating the need for the
rockery and driveway located inside the required buffer zone. The applicant is unable to
satisfy all the criteria, the 7.5 -ft access width off the alley is the direct result of his
actions. Therefore, the disturbance and encroachment upon Shell Creek shall be
minimized by requiring the applicant to access from the alley between Daley & Sprague
Sts. and east of 7'h Ave. N.
If the staff failed to provide you a copy of my letter, I would suggest you ask them for it.
Also I would point out most Hearing Examiner's require the testimony be sworn. I don't
remember you requiring an oath of any of the hearing witnesses. The documentation and
testimony of the applicant and his representatives in support of this application not
including or acknowledging the Release of Easement is perjury.
Yours truly,
Finis Tupper
711 Daley St.
Edmonds WA 98020