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STF20140013_9thandMain_ZoningConfirmationLetter.pdf Attachment 1 Attachment 1 20 945HUMMINGBIRD HILL PARK S S T E D M O N D S S T 10 21 2 U P 212 T Subject Property BE 9 23 120 RS-6 9 31 951 1009 T MAINST WADE JAMES 950 THEATER 11 3 P 11 7 O N S T D A Y T O N S T 1 0 0 2 20 5 9 56 DAYTON 2 17 95 5 90 9 M A P L E S T H City of Edmonds Block 67, Lot 33 through Lot 40 Scale 1 inch = 150 feet Attachment 2 Wetland and Stream Delineation Report Nelson Property Edmonds, Washington Attachment 3 Wetland and Stream Delineation Report Nelson Property Edmonds, Washington Hart Crowser, Inc. 190 W Dayton Street, Suite 201 Edmonds, Washington 98020 Fax 425.778.9417 Tel 425.775.4682 Contents 1.0 INTRODUCTION 1 2.0 METHODS 1 Ћ͵Њ 5ĻƌźƓĻğƷźƚƓ Њ Ћ͵Ћ ‘ĻƷƌğƓķ /ƌğƭƭźŅźĭğƷźƚƓ ğƓķ wğƷźƓŭ Ћ 2.2.1 Wetland Classification 2 2.2.2 Wetland Rating 2 3.0 RESULTS 2 Ќ͵Њ {źƷĻ /ƚƓķźƷźƚƓƭ Ћ 4.0 REFERENCES 4 TABLES Table 1 Wetland A Classification, Rating, and Buffer Requirements 3 FIGURES Figure 1 Vicinity Map Figure 2 Wetlands and Streams APPENDIX A ‘ĻƷƌğƓķ 5ğƷğ CƚƩƒƭ APPENDIX B ‘ĻƷƌğƓķ wğƷźƓŭ CƚƩƒƭ DRAFT 12775-01 December 15, 2014 Wetland and Stream Delineation Report Nelson Property Edmonds, Washington 1.0 INTRODUCTION This report discusses the results of a wetland and stream delineation and hydrologic evaluation conducted on the property owned by Nelson Associates and Family, LLC (Nelson Property), located on Main Street between 9th Avenue South and 10th Avenue South in Edmonds, Washington (Figure 1). The study area that was investigated on the Nelson Property included parcels 30 through 40 as shown on Figure 2. The study area is located within Water Resource Inventory Area 8 Cedar/Sammamish watershed and is situated in Township 27 North, Range 3 East, and Southeast Quarter Section 24. The first part of the report describes the wetland and stream delineation followed by the hydrologic analysis. 2.0METHODS 2.1Delineation This wetland delineation was performed in accordance with the Regional Supplement to the US Army Corps of Engineers Wetlands Delineation Manual: Western Mountains, Valleys, and Coast Region (Environmental Laboratory 2010), which is consistent with the 1987 Corps of Engineers Wetlands Delineation Manual (Environmental Laboratory 1987). These methods use a three-parameter approach for identifying and delineating wetlands, which is based on the presence of field indicators for hydrophytic vegetation, hydric soils, and hydrology. To identify potential wetlands, wetland biologists evaluated field conditions by walking through the entire study area on November 26, 2014. For each location that appeared to have potential wetland characteristics, data on dominant plant species, soil conditions in test plots, and evidence of hydrologic conditions were recorded on routine wetland data forms. Adjacent upland locations were also analyzed. On the basis of the collected data, a determination of wetland or upland was made for each location examined. After the confirmation of all three wetland parameters, the boundaries of the wetland were geographically located during our field investigation using a Trimble GeoXH sub-meter global positioning system (GPS) unit. The GPS data were used to map the wetland boundary using geographic information system (GIS) software. The ordinary high water mark (OHWM) of the stream was also determined. We also used GPS units to record the geographic location of the stream within the study area. The GPS data was used to map the location of the stream that were observed within the study area. DRAFT 12775-01 December 15, 2014 2 Wetland and Stream Delineation Report Nelson Property 2.2Wetland Classification and Rating The methods to classify, rate, and assess the functions of the delineated wetlands are described below. Ћ͵Ћ͵Њ‘ĻƷƌğƓķ /ƌğƭƭźŅźĭğƷźƚƓ The wetlands in the study area were classified according to the US Fish and Wildlife Service classification system, which is based on an evaluation of attributes such as vegetation class, hydrologic regime, salinity, and substrate (Cowardin et al. 1979). The wetlands were also classified according to the hydrogeomorphic system, which is based on an evaluation of attributes such as the position of the wetland within the surrounding landscape, the source and location of water just before it enters the wetland, and the pattern of water movement in the wetland (Brinson 1993). Ћ͵Ћ͵Ћ‘ĻƷƌğƓķ wğƷźƓŭ The Edmonds Community Development Code (Chapter 23.40) requires the use of the City of Edmonds (City) rating form for determining the wetland category that is specified in the code. The Edmonds code has four wetland categories, with Category 1 wetlands exhibiting outstanding features and Category 4 wetlands exhibiting minimal attributes. The rating categories are used to identify permitted uses in the wetland and its buffer, to determine the width of buffers needed to protect the wetland from adjacent development, and to identify the mitigation ratios needed to compensate for potential impacts on wetlands. 3.0RESULTS 3.1Site Conditions The study area contains 10 parcels that are undeveloped except for parcel 30. The developed parcel has a gravel drive that intersects with Main Street and leads to a house at 931 Main Street. The study area primarily consists of a palustrine scrub-shrub wetland community (Figure 2). Upland areas outside the wetland are vegetated with a mixed coniferous and deciduous forest with a dense shrub understory. The study area slopes steeply to the north away from Main Street, except the area near the house is a relatively flat bench. A small perennial stream flows from a culvert under Main Street, along the south edge of the site, and then downslope to the northern edge of the study area (Figure 2). The stream then crosses into the adjacent Nelson properties to the north of the study area, down a concrete sluice way, and into a culvert. The culvert appeared to cross under Bell Street. The large scrub-shrub wetland, Wetland A, occupies the majority of the study area, from the bench area along Main Street to the stream valley below (Figure 2). Wetland A is 0.24 acres (10,642 square feet) in size and is palustrine scrub-shrub wetland (Table 1). The hydrogeomorphic classifications are depressional and slope wetland. Table 1 summarizes information on the size, vegetation, soils, and hydrology of Wetland A. The Cowardin (1979) classification, hydrogeomorphic classification, and the Edmonds category rating and buffer requirements are also provided. DRAFT 12775-01 December 15, 2014 3 Wetland and Stream Delineation Report Nelson Property Table 1 Wetland A Classification, Rating, and Buffer Requirements Wetland name Wetland A Location Central portion of study area Local jurisdiction Edmonds WRIA 8 Wetland rating Category 3, Appendix B Local jurisdiction 50 feet buffer width Cowardin Palustrine scrub-shrub classification Hydrogeomorphic Depressional classification outflow/Slope Wetland data form(s) Appendix A, DPWETA1 Upland data form(s) Appendix A, DP WL UPLA2 Size of entire 10,642 square feet (0.24 acre) wetland Dominant Wetland A is a scrub-shrub community dominated by salmonberry with the occasional red vegetation alder, red-osier dogwood, and western red cedar. Himalayan blackberry and English Ivy have invaded the margins of the wetland. The shrub vegetation is very dense and has little groundcover due to the full shade within the wetland. In more open areas where sunlight can penetrate, the understory consists of giant horsetail, lady fern, and water parsley. Several . western red cedar and red alder are rooted in or adjacent the wetland Soils Soils were examined to a 20-inch depth and exhibited hydric characteristics. At DPWETA1, soils were black (10YR 2/2) sandy clay loam to a depth of 5 inches, over an 11-inch layer of dark gray (10YR 4/1) sandy loam with redoximorphic concentrations (10YR 3/4, 10 percent, in the matrix). This profile meets the criteria for the hydric soil indicator depleted matrix (F3). Hydrology At DPWETA1, soils were saturated to the surface and had free water at 1 inch below the surface. There were 2 inches of inundation adjacent to the data plot. The delineation was completed after a heavy rain of 1 inch. A seep area that was sparsely vegetated was observed within the west side of the wetland. The main hydrologic inputs to this wetland include groundwater, overbank flow from the stream that flowed through the wetland, and secondarily runoff from the adjacent area and precipitation. This depressional outflow and slope wetland has an open outlet into the stream. An instream ponded area was observed and was vegetated with water parsley. Rationale for All three wetland parameters are met. delineation Rationale for The Edmonds Community Development Code (Chapter 23.40) provides definitions of local rating classification of wetlands and sets buffers based on wetland category. Standard buffer for a Category 3 is 50 feet. Buffer condition Buffers surrounding the wetland consist of forest habitat, streets, and residential properties. The primary vegetation within the immediate upland areas was big leaf maple, western red cedar, red alder, Himalayan blackberry and English ivy. DRAFT 12775-01 December 15, 2014 4 Wetland and Stream Delineation Report Nelson Property 4.0REFERENCES Brinson, M.M. 1993. A Hydrogeomorphic Classification for Wetlands. Technical Report WRP-DE-4. US Army Engineer Waterways Experiment Station, Vicksburg, Mississippi. August 1993. Cowardin, L.M., V. Carter, F.C. Golet, and E.T. LaRoe 1979. Classification of Wetlands and Deepwater Habitats of the United States. Office of Biological Services, U.S. Fish and Wildlife Service, FWS/OBS- 79/31, Washington, D.C. Environmental Laboratory 1987. Corps of Engineers Wetland Delineation Manual. Technical report Y- 87-1, National Technical Information Service, Springfield, Virginia. Environmental Laboratory 2010. Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys and Coast Region (Version 2.0), ed. J.S. Wakeley, R.W. Lichvar, and C.V. Noble. ERDC/EL TR-10-0. Vicksburg, MS: US Army Engineer Research and Development Center. R:\\NOTEBOOKS\\1277501_Nelson Property Wetland and Hydrologic Assessment\\Deliverables\\Reports\\Nelson Wetland Delineation 20141215\\Nelson Wetland Delineation 20141215.docx DRAFT 12775-01 December 15, 2014 FIGURES DRAFT 12775-01 December 15, 2014 Study Area ^_ Nelson Property Feet Main Street, Edmonds, WA 01,0002,0004,000 Vicinity Map N 12775-0112/2014 Figure 1 Nelson Property Main Street, Edmonds, WA Wetlands and Streams 127750112/2014 Figure 2 APPENDIX A Wetland Data Forms DRAFT 12775-01 December 15, 2014 WETLAND DETERMINATION DATA FORM Western Mountains, Valleys, and Coast Region Project Site: Nelson Property City/County: Edmonds/Snohomish Sampling Date: 11/26/14 Applicant/Owner: Nelson Associates and Family, LLC State: WA Sampling Point: DP WETA1 Investigator(s): Diane Hennessey, Maria Sandercock Section, Township, Range: T27N, R3E, Sect. 24 Landform (hillslope, terrace, etc.): slope Local relief (concave, convex, none): concave Slope (%): 4 Subregion (LRR): A Lat: 47.810545 Long: -122.364511 Datum: NAVD83 Soil Map Unit Name: Alderwood urban land complex, 8-15% slopes NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology , significantly disturbed? Yes No Are Vegetation , Soil , or Hydrology , naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Is the Sampled Area Yes No Hydric Soil Present? Yes No within a Wetland? Wetland Hydrology Present? Yes No Remarks: VEGETATION Use scientific names of plants Absolute Dominant Indicator Dominance Test Worksheet: Tree Stratum (Plot size: 5m diameter) % Cover Species? Status 1. Acer Macrophyllum 25 yes FACU Number of Dominant Species 5 (A) That Are OBL, FACW, or FAC: 2. Thuja plicata 25 yes FAC 3. Total Number of Dominant 7 (B) Species Across All Strata: 4. 50% = 25, 20% = 10 50 = Total Cover Percent of Dominant Species 70 (A/B) That Are OBL, FACW, or FAC: Sapling/Shrub Stratum (Plot size: 5m ) 1. Rubus spectabilis 30 yes FACW Prevalence Index worksheet: 2. Ilex sp. 10 yes FACU Total % Cover of: Multiply by: 3. Rubus armeniacus 5 no FACU OBL species x1 = 4. Hedera helix 4 no FACU FACW species x2 = 5. FAC species x3 = 50% = 24.5, 20% = 8.5 49 = Total Cover FACU species x4 = Herb Stratum (Plot size: 5m) UPL species x5 = 1. Equisetum sp. 35 yes FACW (A) (B) Column Totals: 2. Oenanthe sarmentosa 15 yes OBL Prevalence Index = B/A = Hydrophytic Vegetation Indicators: 3. Athyrium felix-femina 15 yes FACW 4. 1 Rapid Test for Hydrophytic Vegetation 5. 2 - Dominance Test is >50% 6. 1 3 - Prevalence Index is <3.0 7. 1 4 - Morphological Adaptations (Provide supporting data in Remarks or on a separate sheet) 8. 1 9. 5 - Wetland Non-Vascular Plants 10. 1 Problematic Hydrophytic Vegetation (Explain) 11. 1 Indicators of hydric soil and wetland hydrology must 50% = 32.5, 20% = 13 65 = Total Cover be present, unless disturbed or problematic. Woody Vine Stratum (Plot size: ) 1. Hydrophytic 2. Vegetation Yes No 50% = , 20% = = Total Cover Present? % Bare Ground in Herb Stratum Trees not rooted in wetland Remarks: US Army Corps of Engineers Western Mountains, Valleys, and Coast Version 2.0 Project Site: SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features 12 (inches) Color (moist) % Color (moist) % Type Loc Texture Remarks 0-5 10YR 2/2 100 SC Loam High organic content, gravel 5-16 10YR 4/1 90 10YR 3/4 10 C M SandyLoam prominent redox features 12 Type: C= Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. Location: PL=Pore Lining, M=Matrix Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils: 3 Histosol (A1) Sandy Redox (S5) 2 cm Muck (A10) Histic Epipedon (A2) Stripped Matrix (S6) Red Parent Material (TF2) Loamy Mucky Mineral (F1) (except MLRA 1) Black Histic (A3) Very Shallow Dark Surface (TF12) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Other (Explain in Remarks) Depleted Below Dark Surface (A11) Depleted Matrix (F3) Thick Dark Surface (A12) Redox Dark Surface (F6) 3 Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Depleted Dark Surface (F7) wetland hydrology must be present, Sandy Gleyed Matrix (S4) Redox Depressions (F8) unless disturbed or problematic. Restrictive Layer (if present): Type: Hydric Soils Present? Yes No Depth (inches): Remarks: Meets hydric soil criteria and F3 indicator HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Water-Stained Leaves (B9) Water-Stained Leaves (B9) High Water Table (A2) (except MLRA 1, 2, 4A, and 4B) (MLRA 1, 2, 4A, and 4B) Saturation (A3) Salt Crust (B11) Drainage Patterns (B10) Water Marks (B1) Aquatic Invertebrates (B13) Dry-Season Water Table (C2) Sediment Deposits (B2) Hydrogen Sulfide Odor (C1) Saturation Visible on Aerial Imagery (C9) Drift Deposits (B3) Oxidized Rhizospheres along Living Roots (C3) Geomorphic Position (D2) Algal Mat or Crust (B4) Presence of Reduced Iron (C4) Shallow Aquitard (D3) Iron Deposits (B5) Recent Iron Reduction in Tilled Soils (C6) FAC-Neutral Test (D5) Surface Soil Cracks (B6) Stunted or Stresses Plants (D1) (LRR A) Raised Ant Mounds (D6) (LRR A) Inundation Visible on Aerial Imagery (B7) Other (Explain in Remarks) Frost-Heave Hummocks (D7) Sparsely Vegetated Concave Surface (B8) Field Observations: Surface Water Present? Yes No Depth (inches): 2 Water Table Present? Yes No Depth (inches): 1 Saturation Present? Wetland Hydrology Present? Yes No Yes No Depth (inches): 0 (includes capillary fringe) Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: Very wet, seeps coming downslope. Near flowing stream. US Army Corps of Engineers Western Mountains, Valleys, and Coast Version 2.0 WETLAND DETERMINATION DATA FORM Western Mountains, Valleys, and Coast Region Project Site: Nelson Property City/County: Edmonds/Snohomish Sampling Date: 11/26/14 Applicant/Owner: Nelson Associates and Family, LLC State: WA Sampling Point: DP UPLA2 Investigator(s): Diane Hennessey, Maria Sandercock Section, Township, Range: T27N, R3E, Sect. 24 Landform (hillslope, terrace, etc.): slope Local relief (concave, convex, none): concave Slope (%): 4 Subregion (LRR): A Lat: 47.810545 Long: -122.364511 Datum: NAVD83 Soil Map Unit Name: Alderwood urban land complex, 8-15% slopes NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology , significantly disturbed? Yes No Are Vegetation , Soil , or Hydrology , naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Is the Sampled Area Yes No Hydric Soil Present? Yes No within a Wetland? Wetland Hydrology Present? Yes No Remarks: VEGETATION Use scientific names of plants Absolute Dominant Indicator Dominance Test Worksheet: Tree Stratum (Plot size: 5m diameter) % Cover Species? Status 1. Tsuga heterophylla 60 yes FACU Number of Dominant Species 1 (A) That Are OBL, FACW, or FAC: 2. Thuja plicata 70 yes FAC 3. Total Number of Dominant 4 (B) Species Across All Strata: 4. 50% = 115, 20% = 26 130 = Total Cover Percent of Dominant Species 25 (A/B) That Are OBL, FACW, or FAC: Sapling/Shrub Stratum (Plot size: 5m ) 1. Rubus armeniacus 15 yes FACU Prevalence Index worksheet: 2. Hedera helix 15 yes FACU Total % Cover of: Multiply by: 3. Laurus nobilis 2 no NI OBL species x1 = 4. FACW species x2 = 5. FAC species x3 = 50% = 16, 20% = 6 32 = Total Cover FACU species x4 = Herb Stratum (Plot size: ) UPL species x5 = 1. (A) (B) Column Totals: 2. Prevalence Index = B/A = Hydrophytic Vegetation Indicators: 3. 4. 1 Rapid Test for Hydrophytic Vegetation 5. 2 - Dominance Test is >50% 6. 1 3 - Prevalence Index is <3.0 7. 1 4 - Morphological Adaptations (Provide supporting data in Remarks or on a separate sheet) 8. 1 9. 5 - Wetland Non-Vascular Plants 10. 1 Problematic Hydrophytic Vegetation (Explain) 11. 1 Indicators of hydric soil and wetland hydrology must 50% = , 20% = = Total Cover be present, unless disturbed or problematic. Woody Vine Stratum (Plot size: ) 1. Hydrophytic 2. Vegetation Yes No 50% = , 20% = = Total Cover Present? % Bare Ground in Herb Stratum Trees not rooted in wetland Remarks: US Army Corps of Engineers Western Mountains, Valleys, and Coast Version 2.0 Project Site: Nelson Property SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features 12 (inches) Color (moist) % Color (moist) % Type Loc Texture Remarks 0-16 10YR 3/3 100 Sandy loam 12 Type: C= Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. Location: PL=Pore Lining, M=Matrix Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils: 3 Histosol (A1) Sandy Redox (S5) 2 cm Muck (A10) Histic Epipedon (A2) Stripped Matrix (S6) Red Parent Material (TF2) Loamy Mucky Mineral (F1) (except MLRA 1) Black Histic (A3) Very Shallow Dark Surface (TF12) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Other (Explain in Remarks) Depleted Below Dark Surface (A11) Depleted Matrix (F3) Thick Dark Surface (A12) Redox Dark Surface (F6) 3 Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Depleted Dark Surface (F7) wetland hydrology must be present, Sandy Gleyed Matrix (S4) Redox Depressions (F8) unless disturbed or problematic. Restrictive Layer (if present): Type: Hydric Soils Present? Yes No Depth (inches): Remarks: Does not meet hydric soil criteria HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Water-Stained Leaves (B9) Water-Stained Leaves (B9) High Water Table (A2) (except MLRA 1, 2, 4A, and 4B) (MLRA 1, 2, 4A, and 4B) Saturation (A3) Salt Crust (B11) Drainage Patterns (B10) Water Marks (B1) Aquatic Invertebrates (B13) Dry-Season Water Table (C2) Sediment Deposits (B2) Hydrogen Sulfide Odor (C1) Saturation Visible on Aerial Imagery (C9) Drift Deposits (B3) Oxidized Rhizospheres along Living Roots (C3) Geomorphic Position (D2) Algal Mat or Crust (B4) Presence of Reduced Iron (C4) Shallow Aquitard (D3) Iron Deposits (B5) Recent Iron Reduction in Tilled Soils (C6) FAC-Neutral Test (D5) Surface Soil Cracks (B6) Stunted or Stresses Plants (D1) (LRR A) Raised Ant Mounds (D6) (LRR A) Inundation Visible on Aerial Imagery (B7) Other (Explain in Remarks) Frost-Heave Hummocks (D7) Sparsely Vegetated Concave Surface (B8) Field Observations: Surface Water Present? Yes No Depth (inches): - Water Table Present? Yes No Depth (inches): >16 Saturation Present? Wetland Hydrology Present? Yes No Yes No Depth (inches): >16 (includes capillary fringe) Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: Dry soils US Army Corps of Engineers Western Mountains, Valleys, and Coast Version 2.0 APPENDIX B Wetland Rating Forms DRAFT 12775-01 December 15, 2014 A Wetland name or number: WETLAND RATING FORM - WESTERN WASHINGTON Version 2 - Updated July 2006 to increase accuracy and reproducibility among users Updated Oct. 2008 with the new WDFW definitions for priority habitats Name of wetland (if known):Wetland ADate of site visit: 11/26/14 Rated byD. HennesseyTrained by Ecology? Yes No Date:5/1/06 SEC:24TWNSHP:27RNGE:3Is S/T/R in Appendix D? Yes No Map of wetland unit:FigureEstimated size:0.24 ac 2 SUMMARY OF RATING Category based on FUNCTIONS provided by wetland: IIIIIIIV Category I = Score >=70Score for Water Quality Functions12 Category II = Score 51-69Score for Hydrologic Functions8 Category III = Score 30-50Score for Habitat Functions16 TOTAL score for functions36 Category IV = Score <30 Category based on SPECIAL CHARACTERISTICS of wetland IIIDoes not Apply Final Category III (choose the "highest" category from above) Check the appropriate type and class of wetland being rated. Wetland TypeWetland Class EstuarineDepressional Natural Heritage WetlandRiverine BogLake-fringe Mature ForestSlope Old Growth ForestFlats Coastal LagoonFreshwater Tidal Interdunal Check if unit has None of the above multiple HGM classes present Comments: Wetland Rating Form - Western Washington 1 Herrera Environmental Consultants, Inc. Does the wetland unit being rated meet any of the criteria below? If you answer YES to any of the questions below, you will need to protect the wetland according to the regulations regarding the special characteristics found in the wetland. Check List for Wetlands That May Need Special Protection (in addition to the YESNO protection recommended for its category) Has the wetland unit been documented as a habitat for any federally listed SP1. animal or plant Threatened or Endangered species (T/E species)? For the purposes of this rating system, "documented" means the wetland is on the appropriate state or federal database. Has the wetland unit been documented as habitat for any state listed Threatened SP2. animal or Endangered species? For the purposes of this rating system, "documented" means the wetland is on the appropriate state database. Note: Wetlands with State listed plant species are categorized as Category I Natural Heritage Wetlands (see p. 19 of data form). Does the wetland unit contain individuals of Priority species listed by the SP3. WDFW for the state? Does the wetland unit have a local significance in addition to its functions? SP4. For example, the wetland has been identified in the Shoreline Master Program, the Critical Areas Ordinance, or in a local management plan as having special significance. To complete the next part of the data sheet, you will need to determine the Hydrogeomorphic Class of the wetland being rated. The hydrogeomorphic classification groups wetlands into those that function in similar ways. This simplifies the questions needed to answer how well the wetland functions. The Hydrogeomorphic Class of a wetland can be determined using the key below. See p. 24 for more detailed instructions on classifying wetlands. Wetland Rating Form - Western Washington 2 Herrera Environmental Consultants, Inc. Classification of Vegetated Wetlands in Western Washington If the hydrologic criteria listed in each question do not apply to the entire unit being rated, you probably have a unit with multiple HGM classes. In this case, indentify which hydrologic criteria in questions 1-7 apply and go to Question 8. 1. Are the water levels in the entire unit usually controlled by tides (i.e., except during floods)? NO - go to 2Tidal Fringe YES - the wetland class is If YES, is the salinity of the water during periods of annual low flow below 0.5 ppt (parts per thousand)? Freshwater Tidal FringeSaltwater Tidal Fringe (Estuarine) YES - NO - If your wetland can be classified as a Freshwater Tidal Fringe, use the forms for Riverine wetlands. If it is Saltwater Tidal Fringe, it is rated as an Estuarine wetland. Wetlands that were called estuarine in the first and second editions of the rating system are called Saltwater Tidal Fringe in the Hydrogeomorphic Classification. Estuarine wetlands were categorized separately in the earlier editions, and this separation is being kept in this revision. To maintain consistency between editions, the term "Estuarine" wetland is being kept. Please note, however, that the characteristics that define Category I and II estuarine wetlands have changed (see p. xx). 2. The entire wetland unit is flat and precipitation is only source (>90%) of water to it. Groundwater and surface water runoff are NOT sources of water to the unit. NO - go to 3Flats YES - the wetland class is Depressional If your wetland can be classified as a "Flats" wetland, use the form for wetlands. 3.meet both Does the entire wetland unit of the following criteria? The vegetated part of the wetland is on the shores of a body of permanent open water (without any vegetation on the surface) at least 20 acres (8 ha) in size; At least 30% of the open water area is deeper than 6.6 feet (2 m)? NO - go to 4Lake-fringe (Lacustrine Fringe) YES - the wetland class is 4.meet all Does the entire wetland unit of the following criteria? slope can be very gradual The wetland is on a slope (). The water flows through the wetland in one direction (unidirectional) and usually comes from seeps. It may flow subsurface, as sheetflow, or in a swale without distinct banks. without being impounded. The water leaves the wetland Surface water does not pond in these type of wetlands except occasionally in very small and shallow NOTE: depressions or behind hummocks (depressions are usually <3 feet in diameter and less than 1 foot deep). NO - go to 5Slope YES - the wetland class is Wetland Rating Form - Western Washington 3 Herrera Environmental Consultants, Inc. 5.meet all Does the entire wetland unit of the following criteria? The unit is in a valley, or stream channel, where it gets inundated by overbank flooding from that stream or river. The overbank flooding occurs once every two years. NO - go to 6Riverine YES - the wetland class is 6. Is the entire wetland unit in a topographic depression in which water ponds, or is saturated to the surface, at some time of This means that any outlet, if present, is higher than the interior of the wetland. the year? NO - go to 7Depressional YES - the wetland class is 7. Is the entire wetland unit located in a very flat area with no obvious depression and no overbank flooding? The unit does not pond surface water more than a few inches. The unit seems to be maintained by high ground water in the area. The wetland may be ditched, but has no obvious natural outlet. NO - go to 8Depressional YES - the wetland class is 8.Your wetland unit seems to be difficult to classify and probably contains several different HGM classes. For example, seeps at the base of a slope may grade into a riverine floodplain, or a small stream within a depressional wetland has a zone of flooding along its sides. GO BACK AND IDENTIFY WHICH OF THE HYDROLOGIC REGIMES DESCRIBED IN QUESTIONS 1-7 APPLY TO DIFFERENT AREAS IN THE UNIT (make a rough sketch to help you decide). Use the following table to identify the appropriate class to use for the rating system if you have several HGM classes within your wetland. NOTE: Use this table only if the class that is recommended in the second column represents 10% or more of the total area of the wetland being rated. If the area of the second class is less than 10% of the unit, classify the wetland using the class that represent more than 90% of the total area. HGM Classes Within a Delineated Wetland BoundaryClass to Use in Rating Slope + RiverineRiverine Slope + DepressionalDepressional Slope + Lake-fringeLake-fringe Depressional + Riverine along stream within boundaryDepressional Depressional + Lake-fringeDepressional Saltwater Tidal Fringe and any other class of freshwater wetlandTreat as ESTUARINE under wetlands with special characteristics If you are unable still to determine which of the above criteria apply to your wetland, or you have more than 2 HGM Depressional classes within a wetland boundary, classify the wetland as for the rating. Wetland Rating Form - Western Washington 4 Herrera Environmental Consultants, Inc. D Depressional and Flats Wetlands WATER QUALITY FUNCTIONS - Indicators that wetland functions to improve water quality. (see p. 38) D 1.Does the wetland unit have the potential to improve water quality? Points Characteristics of surface water flows out of the wetland: D 1.1 Unit is a depression with no surface water leaving it (no outlet)Points = 3 Unit has an intermittently flowing, or highly constricted permanently flowing Points = 2 outlet. permanently Unit has an unconstricted, or slightly constricted, surface outlet (Points = 1 1 flowing ). Unit is a flat depression (Q. 7 on key) or in the Flats class, with permenent Points = 1 surface outflow and no obvious natural outlet and/or outlet is a man-made ditch. (If ditch is not permanently flowing, treat unit as "intermittently flowing.") Provide photo or drawing Figure __ D 1.2The soil 2 inches below the surface (or duff layer) is clay or organic (use NRCS definitions): 0 YESPoints = 4 NOPoints = 0 D 1.3Characteristics of persistent vegetation (emergent, shrub, and/or forest Cowardin class): Wetland has persistent, ungrazed vegetation >=95% of area.Points = 5 5 Wetland has persistent, ungrazed vegetation >=1/2 of area.Points = 3 Wetland has persistent, ungrazed vegetation >=1/10 of area.Points = 1 Wetland has persistent, ungrazed vegetation <1/10 of areaPoints = 0 Map of Cowardin vegetation classes Figure __ D 1.4Characteristics of seasonal ponding or inundation. This is the area of the wetland that is ponded for at least 2 months, but dries out sometime during the year. Do not count the area that is permanently ponded. Estimate area as the average condition 5 out of 10 years. 0 Area seasonally ponded is >1/2 total area of wetland.Points = 4 Area seasonally ponded is >1/4 total area of wetland.Points = 2 Area seasonally ponded is <1/4 total area of wetland.Points = 0 Map of hydroperiods Figure __ 6 Add the points in the boxes above Total for D 1 (see p. 44) D 2.Does the wetland unit have the opportunity to improve water quality? Answer YES if you know or believe there are pollutants in ground water or surface water coming into the wetland that would otherwise reduce water quality in streams, lakes, or ground water downgradient from Note which of the following conditions provide the sources of pollutants: the wetland. Grazing in the wetland or within 150 feet. Untreated stormwater discharges to wetland. Tilled fields or orchards within 150 feet of wetland. A stream or culvert discharges into wetland that drains developed areas, residential areas, farmed fields, roads, or clear-cut logging. Multiplier Residential, urban areas, golf courses are within 150 feet of wetland. 2 Wetland is fed by ground water high in phosphorus or nitrogen. Other: 21 YES - multiplier is NO - multiplier is TOTAL - Water Quality FunctionsMultiply the score from D 1. by D 2. 12 Add score to table on p. 1 Wetland Rating Form - Western Washington 5 Herrera Environmental Consultants, Inc. D Depressional and Flats Wetlands HYDROLOGIC FUNCTIONS - Indicators that wetland functions to reduce flooding/stream degradation. (see p. 46)Points D 3.Does wetland unit have the potential to reduce flooding/erosion? D 3.1Characteristics of surface water flows out of the wetland: Unit is a depression with no surface water leaving it (no outlet).Points = 4 ORPoints = 2 Unit has an intermittently flowing, highly constricted permanently flowing outlet. Unit is a "flat" depression (Q. 7 on key), or in the Flats class, with Points = 1 0 no obvious natural outlet permanent surface outflow and and/or outlet If ditch is not permanently flowing, treat unit at is a man-made ditch. ( "intermittently flowing.") Unit has an unconstricted, or slightly constricted, surface outlet Points = 0 permanently flowing (). D 3.2Depth of storage during wet periods. Estimate the height of ponding above the bottom of the outlet. For units with no outlet measure from the surface of permanent water or deepest part (if dry). Marks of ponding are 3 feet or more above the surface or bottom of outlet.Points = 7 The wetland is a "headwater" wetland.Points = 5 1 Marks of ponding between 2 feet to <3 feet from surface or bottom of outlet.Points = 5 Marks are at least 0.5 feet to <2 feet from surface or bottom of outlet.Points = 3 Wetland is flat (yes to Q. 2 or Q. 7 on key) but has small depressions on the Points = 1 surface that trap water. Marks of ponding are less than 0.5 feet.Points = 0 D 3.3Contribution of wetland to storage in the watershed. Estimate the ratio of the area of upstream basin contributing surface water to the wetland to the area of the wetland itself. 3 The area of the basin is <10 times the area of the unit.Points = 5 The area of the basin is 10 to 100 times the area of the unit.Points = 3 The area of the basin is >100 times the area of the unit.Points = 0 Flats Points = 5 Entire unit is in the class (basin=wetland) 4 Add the points in the boxes above Total for D 3 (see p. 49) D 4.Does wetland unit have the opportunity to reduce flooding/erosion? Answer YES if the unit is in a location in the watershed where the flood storage, or reduction in water velocity, helps protect downstream property and aquatic resources from flooding or excessive and/or erosive flows. Answer NO if the water coming into the wetland is controlled by a structure such as flood gate, tide gate, flap valve, reservoir, etc. OR you estimate that more than 90% of the water in the wetland is from groundwater in areas where damaging groundwater flooding does not occur. Note which of the following indicators of opportunity apply: Wetland is in a headwater of a river or stream that has flooding problems. Wetland drains to a river or stream that has flooding problems. Wetland has no outlet and impounds surface runoff water that might otherwise flow into Multiplier a river or stream that has flooding problems. Other: 2 21 YES - multiplier is NO - multiplier is TOTAL - Hydrologic FunctionsMultiply the score from D 3. by D 4. 8 Add score to table on p. 1 Wetland Rating Form - Western Washington 6 Herrera Environmental Consultants, Inc. These questions apply to wetlands of all HGM classes HABITAT FUNCTIONS - Indicators that wetland functions to provide important habitat. H 1.Does the wetland unit have the potential to provide habitat for many species? Points (see p. 72) H 1.1 Vegetation structure Check the types of vegetation classes present (as defined by Cowardin). Size threshold for class is 1/4 acre or more than 10% of the area if unit is smaller than 2.5 acres. Aquatic bed Emergent plants Scrub/shrub (areas where shrubs have >30% cover) Forested (areas where trees have >30% cover) If the unit has a forested class, check if: 0 The forested class has 3 out of 5 strata (canopy, sub-canopy, shrubs, herbaceous, moss/ground-cover) that each cover 20% within the forested polygon Add the number of vegetation types that qualify. If you have: 4 structures or morePoints = 4 3 structuresPoints = 2 2 structuresPoints = 1 1 structurePoints = 0 Map of Cowardin classes Figure __ (see p. 73) H 1.2 Hydroperiods Check the types of water regimes (hydroperiods) present within the wetland. The water regime has to cover more than 10% of the wetland if less than 2.5 acres in size or 1/4 acre to count (see text for descriptions of hydroperiods). Permanently flooded or inundated4 or more types presentPoints = 3 Seasonally flooded or inundated3 types presentPoints = 2 3 Occasionally flooded or inundated2 types presentPoints = 1 Saturated only1 type presentPoints = 0 Permanently flowing stream or river in, or adjacent to, the wetland Seasonally flowing stream in, or adjacent to, the wetland Lake-fringe wetland = 2 points Freshwater tidal wetland = 2 points Map of hydroperiods Figure __ (see p. 75) H 1.3Richness of Plant Species Count the number of plant species in the wetland that cover at least 10 sq. ft. (different patches of the same species can be combined to meet the size threshold). You do not have to name the species. Do not include Eurasian Milfoil, reed canarygrass, purple loosestrife, Canadian Thistle. Points = 2 If you counted:>19 species 1 Points = 1 5-19 species List species below if you want to: <5 speciesPoints = 0 Total for page4 Wetland Rating Form - Western Washington 7 Herrera Environmental Consultants, Inc. (see p. 76) H 1.4 Interspersion of Habitats Points Decide from the diagrams below whether interspersion between Cowardin vegetation classes (described in H 1.1) or the classes and unvegetated areas (can include open water or mudflats) is high, medium, low, or none. 0 0 points1 point2 points None = Low = Moderate = \[riparian braided channels\] 3 points High = NOTE: If you have four or more vegetation types or three vegetation types and open water, the Use map of Cowardin vegetation classes. rating is always "high". (see p. 77) H 1.5Special Habitat Features Check the habitat features that are present in the wetland. The number of checks is the number of points you put into the next column. Large, downed, woody debris within the wetland (>4 inches in diameter and 6 feet long). Standing snags (diameter at the bottom >4 inches) in the wetland. Undercut banks are present for at least 6.6 feet (2 m) and/or overhanging vegetation extends at least 3.3 feet (1 m) over a stream (or ditch) in or contiguous with the wetland, 2 for at least 33 feet (10 m). Stable steep banks of fine material that might be used by beaver/muskrat for denning cut shrubs or trees that (>30° slope) OR signs of recent beaver activity are present ( have not yet turned brown/gray ). At least 1/4 acre of thin-stemmed presistent vegetation or woody branches are present in structures for egg-laying by areas that are permanently or seasonally inundated ( amphibians ). Invasive plants cover less than 25% of the wetland area in each stratum of plants. Note: The 20% stated in early printings of the manual on page 78 is an error. H 1. TOTAL Score - potential for providing habitat 6 Add the scores from H1.1, H1.2, H1.3, H1.4, H1.5 Comments: Wetland Rating Form - Western Washington 8 Herrera Environmental Consultants, Inc. H 2.Does the wetland unit have the opportunity to provide habitat for many species? Points (see p. 80) H 2.1 Buffers Choose the description that best represents condition of buffer of wetland unit. The highest scoring criterion that applies to the wetland is to be used in the rating. See text for definition of "undisturbed." 100 m (330 feet) of relatively undisturbed vegetated areas, rocky areas, Points = 5 or open water >95% of circumference. No structures are within relatively undisturbed also means no undisturbed part of buffer ( grazing, no landscaping, no daily human use ). 100 m (330 feet) of relatively undisturbed vegetated areas, rocky areas, Points = 4 or open water >50% of circumference. 50 m (170 feet) of relatively undisturbed vegetated areas, rocky areas, or Points = 4 open water >95% circumference. 100 m (330 feet) of relatively undisturbed vegetated areas, rocky areas, Points = 3 or open water for >25% circumference. 50 m (170 feet) of relatively undisturbed vegetated areas, rocky areas, or Points = 3 open water for >50% circumference. 3 If buffer does not meet any of the criteria above: No paved areas (except paved trails) or buildings within 25 m (80 feet) Points = 2 of wetland >95% circumference. Light to moderate grazing, or lawns are OK. No paved areas or buildings within 50 m of wetland for >50% Points = 2 circumference. Light to moderate grazing, or lawns are OK. Heavy grazing in buffer.Points = 1 Vegetated buffers are <2 m wide (6.6 feet) for more than 95% of the Points = 0 circumference (e.g., tilled fields, paving, basalt bedrock extend to edge of wetland). Buffer does not meet any of the criteria above.Points = 1 Aerial photo showing buffers Figure __ (see p. 81) H 2.2Corridors and Connections H 2.2.1Is the wetland part of a relatively undisturbed/unbroken vegetated corridor (riparian or upland) at least 150 feet wide, has at least 30% cover of shrubs, forest, or native undisturbed prairie, that connects to estuaries, other wetlands, or undisturbed uplands that are at least 250 acres in size? Dams in riparian corridors, heavily used gravel roads, and paved roads are considered breaks ( in the corridor. ) go to H 2.2.2 4 pointsgo to H 2.3NO = YES = () H 2.2.2Is the wetland part of a relatively undisturbed/unbroken vegetated corridor (either riparian or upland) at least 50 feet wide, has at least 30% cover of shrubs or forest, and connects to 1 ORLake- estuaries, other wetlands, or undisturbed uplands that are at least 25 acres in size a fringe wetland, if it does not have an undisturbed corridor as in the question above? go to H 2.2.3 2 pointsgo to H 2.3NO = YES = () H 2.2.3Is the wetland: within 5 miles (8 km) of a brackish or salt water estuary OR within 3 miles of a large field or pasture > 40 acres in size OR within 1 mile of a lake greater than 20 acres in size? 1 point0 points YES = NO = Total for page 4 Wetland Rating Form - Western Washington 9 Herrera Environmental Consultants, Inc. (see p. 82) H 2.3 Near or Adjacent to Other Priority Habitats Listed by WDFW Points NOTE: Which of the following priority habitats are within 330 feet (100 m) of the wetland unit? the connections do not have to be relatively undisturbed. These are DFW definitions. Check with your local DFW biologist if there are any questions Aspen stands: Pure or mixed stands of aspen >0.4 ha (1 acre). Biodiversity Areas and Corridors : Areas of habitat that are relatively important to full descriptions in WDFW PHS report p. various species of native fish and wildlife ( 152 ). Herbaceous Balds : Variable size patches of grass and forbs on shallow soils over bedrock. Old-growth/Mature forests : (Old growth west of Cascade crest) Stands of at least 2 tree species, forming a multi-layered canopy with occasional small openings; with at least 20 trees/ha (8/acre) >81 cm (32 in) dbh or > 200 years of age. (Mature forests) Stands with average diameters exceeding 53 cm (21 in) dbh; crown cover may be less than 100%; decay, decadance, numbers of snags, and quantity of large downed material is generally less than that found in old-growth; 80 - 200 years old west of the Cascade crest. Oregon white Oak: Woodland stands of pure oak or oak/conifer associations where full descrptions in WDFW PHS report canopy coverage of the oak component is 25% ( p. 158 ). Riparian : The area adjacent to aquatic systems with flowing water that contains elements of both aquatic and terrestrial ecosystems which mutually influence each other. Westside Prairies : Herbaceous, non-forested plant communities that can either take the full descriptions in WDFW PHS report p. 161 form of a dry prairie or a wet prairie (). 3 Instream : The combination of physical, biological, and chemical processes and conditions that interact to provide functional life hsitory requirements for instream fish and wildlife resources. Nearshore : Relatively undisturbed nearshore habitats. These include Coastal full descriptions of Nearshore, Open Coastal Nearshore, and Puget Sound Nearshore. ( habitats and the definition of relatively undisturbed are in WDFW report pp. 167-169 and glossary in Appendix A). Caves : Naturally occurring cavity, recess, void, or system of interconnected passages under the earth in soils, rock, ice, or other geological formations and is large enough to contain a human. Cliffs : Greater than 7.6 m (25 ft) high and occuring below 5,000 ft. Talus : Homogenous areas of rock rubble ranging in average size 0.15 - 2.0 m (0.5 - 6.5 ft), composed of basalt, andesite, and/or sedimentary rock, including riprap slides and mine tailings. May be associated with cliffs. Snags and Logs : Trees are considered snags if they are dead or dying and exhibit sufficient decay characteristics to enable cavity excavation/use by wildlife. Priority snags have a diameter at breast height of > 51 cm (20 in) in western Washington and are > 2 m (6.5 ft) in height. Priority logs are > 30 cm (12 in) in diameter at the largest end, and > 6 m (20 ft) long. If wetland has:3+ 4 points 11 point priority habitats = priority habitat = 23 points0 points priority habitats = No habitats = Note: all vegetated wetlands are by definition a priority habitat but are not included in this list. Nearby wetlands are addressed in question H 2.4 Wetland Rating Form - Western Washington 10 Herrera Environmental Consultants, Inc. (see p. 84) H 2.4 Wetland Landscape Points one Choose the description of the landscape around the wetland that best fits. There are at least 3 other wetlands within 1/2 mile, and the connections Points = 5 between them are relatively undisturbed (light grazing between wetlands OK, as is lake shore with some boating, but connections should NOT be bisected by paved roads, fill, fields, or other development). The wetland is Lake-fringe on a lake with little disturbance and there are Points = 5 3 3 other Lake-fringe wetlands within 1/2 mile. There are at least 3 other wetlands within 1/2 mile, BUT the connections Points = 3 between them are disturbed. withPoints = 3 The wetland is Lake-fringe on a lake disturbance, and there are 3 other Lake-fringe wetlands within 1/2 mile. There is at least 1 wetland within 1/2 mile.Points = 2 There are no wetlands within 1/2 mile.Points = 0 H 2. TOTAL Score - opportunity for providing habitat 10 Add the scores from H2.1, H2.2, H2.3, H2.4 Total Score for Habitat Functions16 - add the points for H1 and H2, and record the result on p. 1 Wetland Rating Form - Western Washington 11 Herrera Environmental Consultants, Inc. CATEGORIZATION BASED ON SPECIAL CHARACTERISTICS Please determine if the wetland meets the attributes described below and choose the appropriate answers and Category. Wetland Type Check off any criteria that apply to the wetland. Check the appropriate Category when the appropriate criteria are met. Category 0 (see p. 86) SC 1.0Estuarine Wetlands Does the wetland unit meet the following criteria for Estuarine wetlands? The dominant water regime is tidal, Vegetated, and With a salinity greater than 0.5 ppt. Go to SC 1.1 YES = NO - not an estuarine wetland 0 SC 1.1Is the wetland unit within a National Wildlife Refuge, National Park, National Estuary Reserve, Natural Area Preserve, State Park, or Educational, Environmental, or Scientific Reserve designated under WAC 332-30-151? Go to SC 1.2 Category INO = YES = SC 1.2Is the wetland unit at least 1 acre in size and meeting at least two of the following three conditions? The wetland is relatively undisturbed (has no diking, ditching, filling, cultivation, Spartina grazing, and has <10% cover of non-native plant species. If the non-native spp. are the only species that cover >10% of the wetland, then the wetland should be Spartina given a dual rating (I/II). The area of would be rated a Category II while the relatively undisturbed upper marsh with native species would be a Category I. Do not, 0 Spartina however, exclude the area of in determining the size threshold of 1 acre. At least 3/4 of the landward edge of the wetland has a 100 foot buffer of shrub, forest, or ungrazed or unmowed grassland. The wetland has at least two of the following features: tidal channels, depressions with open water, or continguous freshwater wetlands. Category ICategory II YES = NO = Wetland Rating Form - Western Washington 12 Herrera Environmental Consultants, Inc. (see p. 87) SC 2.0Natural Heritage Wetlands Category Natural Heritage wetlands have been identified by the Washington Natural Heritage 0 Program/DNR as either high quality undisturbed wetlands or wetlands that support state Threatened, Endangered, or Sensitive plant species. SC 2.1Is the wetland unit being rated in a Section/Township/Range that contains a Natural Heritage wetland? (This question is used to screen out most sites before you need to contact WNHP/DNR.) S/T/R information from Appendix D or accessed from WNHP/DNR web site (see p. 79)go to SC 3.2 YES - contact WNHP/DNR and NO SC 2.2Has DNR identified the wetland as a high quality undisturbed wetland or as a site with state Threatened or Endangered plant species? Category INO - not a Heritage wetland YES = 0 ( see p. 87) SC 3.0Bogs Does the wetland unit (or any part of the unit) meet both the criteria for soils and vegetation in If you answer Yes, you will still Use the key below to identify if the wetland is a bog. bogs? need to rate the wetland based on its function. 1.Does the unit have organic soil horizons (i.e., layers of organic soil), either peats or mucks, that compose 16 inches or more of the first 32 inches of the soil profile? (See Appendix B for a field key to identify organic oils.) go to Q. 3go to Q. 2 YES - NO - 2.Does the unit have organic soils, either peats or mucks, that are <16 inches deep over bedrock, or an impermeable hardpan such as clay or volcanic ash, or that are floating on a lake or pond? go to Q. 3 YES - NO - not a bog for purpose of rating 3.Does the unit have more than 70% cover of mosses at ground level, AND other plants, if present, consist of the "bog" species listed in Table 3 as a significant component of the vegetation (>30% of total shrub and herbaceous cover consists of species in Table 3)? go to Q. 4 YES - is a bog for purpose of ratingNO - NOTE: If you are uncertain about the extent of mosses in the understory you may substitute that criterion by measuring the pH of the water that seeps into a hole dug at least 16" deep. If the pH is less than 5.0 and the "bog" plant species in Table 3 are present, the wetland is a bog. 4.Is the unit forested (>30% cover) with sitka spruce, subalpine fir, western redcedar, western hemlock, lodgepole pine, quaking aspen, Englemann's spruce, or western white pine, WITH any of the species (or combination of species) on bog species plant list in >30% coverage of total Table 3 as a significant component of the ground cover ( shrub/herbaceous cover )? Category INO - not a bog for purpose of rating YES - Wetland Rating Form - Western Washington 13 Herrera Environmental Consultants, Inc. (see p. 90) SC 4.0Forested Wetlands Category Does the wetland unit have at least 1 acre of forest that meets one of these criteria for the If you answer Yes, you will still Department of Fish and Wildlife's forests as priority habitat? need to rate the wetland based on its functions. Old-growth forests : (west of Cascade Crest) Stands of at least 2 tree species, forming a multi-layered canopy with occasional small openings; with at least 8 trees/acre (20/hectare) that are at least 200 years of age OR have a diameter at breast height (dbh) of 32 inches (81 cm) or more. NOTE: The criterion for dbh is based on measurements for upland forests. 200-year-old trees in wetlands will often have a smaller dbh because their 0 growth rates are often smaller. The DFW criterion is an "OR" so old- growth forests do not necessarily have to have trees of this diameter. Mature forests : (west of the Cascade Crest) Stands where the largest trees are 80 - 200 years old OR have average diameters (dbh) exceeding 21 inches (53 cm); crown cover may be less than 100%; decay, decadence, numbers of snags, and quantity of large downed material is generally less than that found in old-growth. Category I NO - not a forested wetland w/ special characteristics YES = 0 (see p. 91) SC 5.0Wetlands in Coastal Lagoons Does the wetland meet all of the following criteria of a wtland in a coastal lagoon? The wetland lies in a depression adjacent to marine waters that is wholly or partially separated from marine waters by sandbanks, gravel banks, shingle, or, less frequently, rocks. The lagoon in which the wetland is located contains surface water that is saline or needs to be brackish (>.5 ppt) during most of the year in at leat a portion of the lagoon ( measured near the bottom ). go to SC 5.1 YES = NO - not a wetland in a coastal lagoon SC 5.1Does the wetland meet all of the following 3 conditions? The wetland is relatively undisturbed (has no diking, ditching, filling, cultivation, grazing), and has less than 20% cover of invasive plant species (see list of invasive species on p. 74). At least 3/4 of the landward edge of the wetland has a 100 foot buffer of shrub, forest, or ungrazed or unmowed grassland. The wetland is larger than 1/10 acre (4,350 square feet). Category ICategory II YES = NO = Wetland Rating Form - Western Washington 14 Herrera Environmental Consultants, Inc. (see p. 93) SC 6.0Interdunal Wetlands Category Is the wetland unit west of the 1889 line (also called the Western Boundary of Upland Ownership or WBUO)? go to SC 6.1 YES - NO - not an interdunal wetland for rating If you answer YES, you will still need to rate the wetland based on its functions. In practical terms, that means the following geographic areas: Long Beach Peninsula - lands west of SR 103 Grayland-Westport - lands west of SR 105 0 Ocean Shores-Copalis - lands west of SR 1115 and SR 109. SC 6.1Is wetland 1 acre or larger, or is it in a mosaic of wetlands that is 1 acre or larger? go to SC 6.2 Category IINO - YES = SC 6.2Is the wetland unit between 0.1 and 1 acre, or is it in a mosaic of wetlands that is between 0.1 and 1 acre? Category III YES = Category of wetland based on Special CharacteristicsNo Choose the "highest" rating if wetland falls into several categories, and record on p. 1. If you answered NO for all types, enter "Not Applicable" on p. 1. Wetland Rating Form - Western Washington 15 Herrera Environmental Consultants, Inc. Attachment 4 1 2 3 /L— hC 95ahb5{ th 4 121 5 Avenue North, Edmonds WA 98020 www.edmondswa.gov 5 DEVELOPMENT SERVICES DEPARTMENT PLANNING DIVISION 6 7 8 BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS 9 Phil Olbrechts, Hearing Examiner 10 RE:Jordan Schenk FINDINGS OF FACT, CONCLUSIONS 11 OF LAW AND FINAL DECISION 12 PLN20130044 (critical areas) 13 andPLN2014000(height variance) 14 INTRODUCTION 15 The applicant requests a reasonable use exception to build a single-family home 16 within the 100 foot critical areas buffer of Shell Creek and a height variance to build 17 the home ten feet above the applicable 25 foot height limit. Both applications are denied because the applicant is not proposing a minimum reasonable use of his 18 property and because his biological assessment of stream impacts is based upon the incorrect premise that Shell Creek is a non-anadromous fish bearing stream with a 75 19 foot buffer. The findings and conclusions of this decision start at page 15, after a 20summary of hearing testimony. 21 ORAL TESTIMONY 22 Note: ŷźƭ ŷĻğƩźƓŭ ƭǒƒƒğƩǤ źƭ ƦƩƚǝźķĻķ ğƭ ğ ĭƚǒƩƷĻƭǤ Ʒƚ ƷŷƚƭĻ Ǟŷƚ Ǟƚǒƌķ ĬĻƓĻŅźƷ ŅƩƚƒ ğ ŭĻƓĻƩğƌ ƚǝĻƩǝźĻǞ ƚŅ ƷŷĻ ƦǒĬƌźĭ ƷĻƭƷźƒƚƓǤ ƚŅ ƷŷĻ ŷĻğƩźƓŭ ƩĻŅĻƩĻƓĭĻķ ğĬƚǝĻ͵ ŷĻ ƭǒƒƒğƩǤ źƭ 23 ƓƚƷ ƩĻƨǒźƩĻķ ƚƩ ƓĻĭĻƭƭğƩǤ Ʒƚ ƷŷĻ ķĻĭźƭźƚƓ źƭƭǒĻķ ĬǤ ƷŷĻ IĻğƩźƓŭ 9ǣğƒźƓĻƩ͵ bƚ ğƭƭǒƩğƓĭĻƭ 24 ğƩĻ ƒğķĻ ğƭ Ʒƚ ĭƚƒƦƌĻƷĻƓĻƭƭ ƚƩ ğĭĭǒƩğĭǤ͵ bƚƷŷźƓŭ źƓ Ʒŷźƭ ƭǒƒƒğƩǤ ƭŷƚǒƌķ ĬĻ ĭƚƓƭƷƩǒĻķ ğƭ ğ ŅźƓķźƓŭ ƚƩ ƌĻŭğƌ ĭƚƓĭƌǒƭźƚƓ ƒğķĻ ĬǤ ƷŷĻ 9ǣğƒźƓĻƩ͵ 25 Reasonable Use and Variance p. 1 Findings, Conclusions and Decision Attachment 5 KernenLien, Edmonds planner,stated that this hearing deals with two variance 1 applications. One is a critical area variance. During review the applicant considered a different number of alternatives to minimize critical area impact and he settled on a 2 height variance (the second variance) which is a request to construct the house to 35 feet. Because these variances are intertwined they have been combined for review by 3 the hearing examiner. The subject property is located at 742 Daley Street. Shell Creek cuts through the property. There are also steep slopes buffering the property. 4 There is a 100 foot buffer to Shell Creek. The entire property is encumbered by 5 critical area buffers. He submitted the staff report for the record as Exhibit 1. With regard to some specifics of the subject site, the slopes are greater than 40% which 6 makes it a potential landslide hazard. A critical area variance is required to develop on this property. The proposed house has a 720 sqft. footprint but it also includes 7 some overhangs to the south and towards the stream. There is a tandem garage on the 8 bottom with two floors of living space above. The property is zoned R6. Shell Creek runs from Yost Park to Puget Sound. 9 When the application for the critical area variance was made to the city, according to 10 Mr. Lien, Shell Creek was considered a non-anadromous fish bearing stream based on a report done in 2005. Attachment 24 in the staff report references the Landau report, 11 which stated that above Casper Street it was non-anadromous (staff showed a GIS 12 map with critical area layers, attachment 58 from the staff report). Mr. Lien stated that city staff has taken photos of salmon upstream from Caspar Street in 2012 at 7th 13 and Glenn Street. The staff determined that this section of Shell Creek should be considered an anadromous fish bearing stream. This means that a 100 foot buffer is 14 required in this area. With regard to reasonable economic use, Mr. Lien stated that this was vested to the definition that was in place when the application is made was 15 made. The code has since changed (ECDC 2040.210.B2). The staff report contains a 16 detailed analysis of all the criteria necessary for the variance. Mr. Lien then stated why the applicant had been unable to demonstrate reasonable economic use. The site 17 is entirely encumbered by critical area buffers. The city asked the applicant to demonstrate whether or not there was another reasonable economic use for the site. 18 For example, could a sale to a neighbor be considered a reasonable economic use to the site? Easements from the lots had been sold to neighbors in the past. Mr. Lien 19 noted that the applicant did not believe that sale to a neighbor would be a reasonable 20 economic use. The site had been on the market on and off since 2008. The applicant is not the property owner, currently; however, he is under contract based on the 21 granting of the variance. Mr. Lien questioned whether the applicant had the same expectations as an owner-applicant. He also noted that the staff was not basing their 22 recommendation solely on whether another reasonable economic use could be made with the property. 23 24 According to Mr. Lien, the staff questioned whether there could be an improvement which had less impact on the area. The proposal is for a residence which is 80% of 25 the average square foot of the average residence in the area. The code does not suggest that a home of a certain size, shape, or footprint is required. Reasonable economic use does not consider whether making a more profitable use of the site is Reasonable Use and Variance p. 2 Findings, Conclusions and Decision reasonable economic use criteria.A larger house maybe making more profitable use 1 of the site. The city asked the applicant to consider other options. While using potential alley access was deemed too narrow, the applicant considered a number of 2 house designs. Attachments 35 through 40 in the staff report show a number of different house designs, using various overhangs. The minimum use proposals shown 3 by the applicant are found in attachments 35 and 36. The current proposal has that basic footprints, but has large overhangs that impacts the critical area. Mr. Lien noted 4 that the roof area of will have an effect on the critical impact area and the staff feels 5 that there are other options. The applicant has shown that another house could be built that had less of an impact has shown that this is not the 6 minimum area. 7 Regarding ECDC 2238.210. Mr. Lien noted that the use limitations are based on the 8 critical areas of the site and that the applicant entered into a purchase and sale agreement with full knowledge that the site was limited by critical area issues. The 9 applicant was aware of the complications of getting the critical area variance. Reasonable economic use is not assoce 10 profitable use of the site and t preference. The staff noted that the applicant submitted a number of mitigation plans 11 to reduce impact to the stream and critical area. There was an impact report that the 12 proposed house would not have impacts on or off the site. The fact that the house is buffered by critical areas means that it could pose some threat. Mr. Lien stated that 13 any request for critical area variances potentially poses some threat to health, safety, and welfare. Because there is not a reason to build home larger than the minimum that 14 is necessary the staff decided that this caused an unreasonable threat to public health, safety, and welfare. The staff does not feel that there is enough data to determine 15 whether there is another reasonable economic use. There could be another single 16 family house constructed that would have less impact. The proposed application is not the minimum necessary. Staff concluded that the applicant does not comply with 17 this code section. With regard to special privileges, the staff noted that the size of the subject site is similar to other sites in Edmonds that are not encumbered by critical 18 areas. At one point in time this property was advertised for over $400,000. It is currently under contract for $95,000. Given the discounts, staff believes that granting 19 this variance would confer a special privilege to the applicant. The house should be 20 consistent with other houses not encumbered by a critical area, and granting a height variance would confer special privilege. Given these elements, the staff suggests that 21 the applicant is looking for more profitable use and therefore does not meet the criteria. With regard to consistency with the zoning ordinance, the applicant complies 22 with a number of them. The staff does not believe that the height variance would impact views and would preserve other natural features. However, the applicant 23 could build a house with less impact; this is not the minimum necessary. 24 In regard to the livable square feet of the home, Mr. Lien reported that it was 2970 25 sqft, and that the average in the area was 3400-3500 sf. Reasonable Use and Variance p. 3 Findings, Conclusions and Decision In regard to the minimum square feet needed to be Jeff 1 Taraday replied that it should meet the required standards for a single family home, that there were two off-street parking spaces required, which the applicant had 2 provided for in the 720 sqft footprint. Mr. Taraday stated that the drawings of the garage footprint are larger than necessary to include the parking spaces and 3 circulation that would allow access to the second floor. He stated that the minimum ground disturbance are that would be required and what is necessary for the minimum 4 number of parking spaces. 5 In regard to when the current owner bought the property, Mr. Lien replied that he 6 would have to look in the record. 7 Applicant Testimony 8 Mr. Schenk stated that this variance application is for 742 Daily St. The lot size is 9 10,454 sqft. and zoning is single family, RS-6. The site is located within the riparian buffer, Shell Creek. His request is for a critical area variance and a height variance. 10 Not all of the slope at Shell Creek is considered critical area. Recent photos taken yesterday show invasive species on site as well as a culvert with a rotting deck 11 connected to a chain-link fence. City Code, its primary use is 12 single-family residential. Mr. Schenk then went through the basic data provided in his attached presentation (Exhibit 2). He discussed the height variance as his one non- 13 standard development request, and went into the background of the critical area, discussing its prior classification as a non-anadromous fish bearing stream and its 14 change to an anadromous stream. He discussed the development changes that this entailed, including a change from a 75 to a 100 foot buffer. Mr. Schenk noted that the 15 findings presented to Edmonds in 2006, based on city employees siting of salmon in 16 the creek, were not investigated further. 17 With regard to the reasonable economic use, Mr. Schenk stated that exception 3931 was passed July 2, 2013, and ordinance 3952 amended the definition of reasonable 18 economic use. Reasonable economic use is to defend and protect the rights of the property owner. He noted that a determination of reasonable economic use should not 19 include what is personal to the owner. In the first variance request submitted July 1, 20 2013, the house design meets or exceeds all requirements. Mr. Schenk, using the data provided on his PowerPoint (Exhibit 2), demonstrated the location and details of the 21 proposed house on site as originally proposed which he stated met original standards. After the submission he learned that he needed the 100 foot buffer and that Shell 22 Creek had been deemed an anadromous stream. He met with the city for design working sessions in order to create a design that everyone would support. He stated 23 that he was told by the city attorney and planner that variances would be considered if 24 critical area issues were met. On January 10, 2014 Mr. Schenk submitted a proposal based on the design meetings. The changes and specifics of this new design are noted 25 in the PowerPoint and compared to the prior design. The cantilevers and overhangs from the new design are also noted. These include a decrease in the footprint and increase in the critical area buffer, a decrease in the house living area, etc. He Reasonable Use and Variance p. 4 Findings, Conclusions and Decision considers this design best for reasonable economic use because the height variance 1 allows for greater critical area buffers. He stated that on January 10, 2014 this revision was consistent with group discussions. He was initially told that the staff 2 report recommended approval, but was then informed that city planner had rejected th the plan. No explanation was given as it was considered a red line report. On June 4 3 the applicant was finally given information is to why the application was rejected which was one hundred and ten days later. 4 5 Mr. Schenk then provided a summary (detailed in Exhibit 2) as to why his application meets requirements and should be approved. He noted the overall benefits to the site, 6 its reasonable economic use of the site, and its buffer for critical area requirements. He noted that 58% of the site will be dedicated to the buffer, more than any other 7 property in the immediate area. By granting the height variance this allows for a 8 smaller footprint. In addition, the cantilevers and overhangs allow for a smaller footprint as well. He argued that the design minimizes impact to the site; that no view 9 corridors will be blocked. Mr. Schenk also stated that the site was currently an eyesore in the neighborhood. The chain-link fence and deck are falling down. It is 10 overrun by invasive species. There are limitations to the functions of riparian habitat. It has become a dumping ground for neighborhood yard waste. Buffer planning and 11 management will improve riparian buffer habitat. It will increase species diversity 12 and improve the walking path. 13 With regard to page 25 of the staff report, Mr. Schenk proceeded to address all the objections from the staff report (as noted in his presentation, Exhibit 2). He made 14 used to make determinations about structure size. He stated that minimum use to which a property 15 owner is entitled, and that ideas of minimum use and reasonable economic use should 16 not include personal ideas of use. He noted that a variance is the minimum necessary to allow rights to property owners, and, that in this case, minimum use is defined as a 17 reasonable economic use such as a single family residential structure. This is not a proposal of an alternative use, this is clearly a minimum use that is designed with 18 minimum impact to a critical area. His design has used the best available science and the plan enhances habitat area. 19 20 With regard to the house size, Mr. Schenk noted that he met with staff in design review session resulting in three separate house plans. Mr. Schenk utilized data from 21 his PowerPoint to discuss minimum and maximum guidelines for the house size. He stated that the design was developed during working sessions with the goal of 22 following guidelines while creating a design that would be similar to others in the area. He also provided data from sales records pulled for single family homes and 23 used these as a data set to demonstrate that the house size is less than the average of 24 both the neighborhood and the City of Edmonds.16.005001 (Code of Tax Area). 25 Mr. Schenk stated that not granting single family residence that meets criteria is denying reasonable economic use. With regard to the staff argument that the applicant is not the property owner, he argues that he currently does not have a primary Reasonable Use and Variance p. 5 Findings, Conclusions and Decision residence and thatthe proposed residence will be his primary residence. Mr. Schenk 1 He stated that the staff was informed that this will be his primary residence. As to staff 2 suspicion that this purchase price of $95,000 is less than market price, the applicant believes that this is without basis or merit. The 2013 assessed value was $83,000. As 3 to staff suggestion that he has unreasonable investment-based expectations, the applicant noted easements sold on property had limited impact on the property. The 4 2006 sale was the last sale of the property for $270,000 at height of the market. A 5 2006 easement was sold and did not impact property value. He argued that economic use is a single family use and that the staff report denial is a denial of reasonable 6 economic use. As to the staff report comment that an alternative single-family residence might be a reasonable economic use, the applicant stated that this 7 is in fact the same use. While the staff report suggests that an 8 alternative house plan would have less impact to the critical area, the proposed footprint is minimum required for onsite parking by code. The search results 9 comparing size of house passes the reasonableness test for the R6 zone and city of Edmonds. The staff believes that the size of house is too large, but it meets standards 10 and passes the reasonableness test. The 720 sqft footprint minimizes impact of the riparian critical area buffer, as does the third story created by the height variance. The 11 house is placed close to the property line. The staff report states that an alternative 12 design would have minimum impact to the critical area and references other designs submitted by the applicant. All designs created have the same footprint. No other 13 designs provide reduced impact to the critical area. The proposed house size is below the average of the downtown city of the house size of Edmonds. The minimum size 14 only refers to as it would affect critical areas and minimum net loss to critical area functions, which means this is without basis or merit. The staff report makes an 15 incorrect assumption that areas under the overhang and cantilevers will not allow 16 such station growth. These areas are not considered part of the critical area buffer, but do provide a function filtering water entering the creek. Certain local species will 17 grow underneath the overhangs. 18 The critical areas existing on the site are not the result of the actions of the applicant, since the applicant did not create the critical areas. The applicant desires to build a 19 house based on development standard and following guidelines for critical areas, 20 minimum loss to the critical area function, and health and safety concerns met. The staff is trying to apply minimum code to a minimum house size which is an incorrect 21 use of the code. The staff argues that applicant entered into the contract understanding that critical areas would need to be addressed. This is correct. In early 22 February, 2013 applicant spoke to a planner named Gina prior to entering into his purchase contract. She indicated that since there had been no changes since the last 23 application had been approved by the city and hearing examiner decision, the process 24 should be relatively straight forward. The applicant confirmed that code dealing with critical area ordinance and reasonable economic use definition was unchanged, and 25 did not expect this to turn into this exhaustive process. Staff stated that prior staff report supporting the variance and the decision approving the application was Reasonable Use and Variance p. 6 Findings, Conclusions and Decision erroneous. The applicant believes that the conclusionsof the previous staff report 1 provide insight. 2 According to Mr. Schenk, the staff report indicates the desire to have a certain house size is related to actions of applicant and is designed to make more economic use in 3 house site. This goes against reasonable economic use. This statement is a contradiction that links house size to more profitable use of the site. A more 4 profitable use would be a building classed other than a single family residence. The 5 only element of the code that address a structure size is the requirement for single family residence. There is nothing in the code that prevents the applicant from 6 building this residence. The proposed residence will not create any health or safety issues. The proposal does not create safety issues to the public as long as the site is 7 developed under conditions of the geotechnical engineer and erosion and flooding 8 issues are dealt with. The staff report indicates that building in any critical area could potentially be a threat to the public. The staff references towards house size which, 9 per the code, only refers to use effect on the critical area and critical area net functions. This is an opinion without basis in merit. RS-6 zone is compliant with the 10 building codes which were created to ensure public safety is protected. 11 With regard to special circumstances, Mr. Schenk noted that this site is impacted 12 more than most. Strict interpretations of the 100ft area buffer would create a site in which no building would be allowed. The special conditions are not a result of the 13 actions of the applicant. Following this, the applicant would be denied any reasonable use of property permitted of other properties in the zone. The variance requested is 14 the minimum necessary to provide the applicant with such rights. The previous staff report states that all property owners have a right to request a reasonable economic 15 use if their property is otherwise unbuildable. Therefore this title does not confirm the 16 applicant any special privileges that would not be given to people with similar properties. 17 The staff report is taking into consideration the size of the house and the price paid 18 for the property. The applicant wants to build under the RS-6 zone guidelines. The applicants request for variance allows him to have the same ability to build under 19 these guidelines like his neighbors. The staff indicates that the building size is too 20 large; however, the criteria for basing house size is under the RS-6 zoning. The conclusion that the house is too large is the opinion of a staff member. Staff indicates 21 that the property was previously marketed at $469,950 price and states that the purchase price of the applicant for $95,000 is too low, attributing it to the fact that the 22 site is in a critical area and building is limited. Further research says that the property was listed from 2007 through 2008 through a broker for 290 days without receiving a 23 single offer. Applicant did further research, looking back for four and half years prior 24 to putting a contract on the property. The property had been listed for 208 days for $99,900 without receiving a single offer. The list price of a property has no merit in 25 determining the market value of the property. Market value is determined by supply and demand. Other properties in the area where marketed and sold in recent years Reasonable Use and Variance p. 7 Findings, Conclusions and Decision went for a higher price because they were larger lots with views. Critical areas do not 1 play a factor in pricing. 2 Mr. Schenk stated that the staff claims that allowing the variance on a critical area site that has been purchased at a lower price with the intent of buying of building on a 3 property similar to others in the area is not the intent of the critical area guidelines and are concerned that it will set a precedent for individuals buying less valuable 4 property in critical areas and attempting to use variances to increase their value, and 5 that this will be detrimental to the general public welfare. This seems to indicate that just because an applicant purchases a property knowing that it is located in a critical 6 area they should not have the right to reasonable economic use of that property. This limits rights of the property owner. All property owners have the right to request 7 reasonable economic use. The statement that the property was purchased at a discount 8 is the opinion of the staff member and there is no proof to the statement. This proposal is to build a house sized according to the RS-6 requirements while following 9 minimum use and impact to critical areas. Data provided demonstrates that the house size is less than average for the area and therefore is considered reasonable. Concern 10 about precedents is a non-issue as it does not affect the general public welfare. 11 Mr. Schenk said decisions should not be based on any something specific to the 12 property owner, such as the ability to secure a scenic view or to make more profitable use of the property. The staff report statement that property was purchased by 13 applicant knowing that critical area existed suggests that the applicant was looking to make a greater profit on this property. A more profitable use would be a building that 14 was not a single family residence. Structural size is only addressed by the RS-6 code. With regard to special privilege, approval will not grant special privilege to the 15 property in comparison to properties in the area with similar zoning. All property 16 owners have the right to request a variance f their property is so encumbered they need to for reasonable economic use. The idea of special privilege, according to the 17 staff, is based on the idea that the property has been purchased at a discount. At the time of contract this was fair market value. There is no basis or merit that this 18 property was undervalued. Variance is not a special privilege. Minimum use impact in critical areas and net loss of critical area functions are met by the proposal. RS-6 19 zoning is the only area that connects to house size, and the design will be consistent 20 with the purposes of the RS-6 zoning ordinance with the exception of the height variance. The height area variance will not impact views of other residents in the area 21 given the lower elevation of the subject site. The staff report states that natural features must be protected. With the height variance there is greater protection of 22 natural features allowing for a larger buffer and less impact on the site. Designing a structure with a smaller footprint and greater height provides greater protection in the 23 critical area which is viewed as the primary goal of the city. The variances approved 24 will not be detrimental. The approved variance is the minimum necessary to allow the owner to enjoy the property to the level of other residences in the vicinity. The height 25 variance was developed to minimize the amount of excavation work. The top two floors would conform to the development standard of RS-6. This height variance seeks to minimize impact to the slope. Reasonable Use and Variance p. 8 Findings, Conclusions and Decision 1 With regard to public comments received prior to the hearing, Mr. Schenk responded to some of those letters and emails. He noted that he currently lives four blocks 2 southeast of the property, his full-time occupation is in the finance industry, he is married and has three children, and spends time in the community with his family. 3 His office is in the neighborhood as well. He stated that he cared about the opinions of the public and his future neighbors. In response to public comments and emails to 4 the senior planner, the applicant noted that his proposal has been amended to deal 5 with the change in classification of the stream by creating the 100ft buffer, that he is requesting the height variance in order to be able to have economic use of his 6 property while following critical area guidelines, that the 35ft height variance will not have a detrimental effect on his neighbors as he blocks no view, that construction will 7 follow guidelines regarding groundwater, trees and habitat, and hillside stability. He 8 noted that his lot will have the larger buffer to the creek than any in the area. He will be eliminating invasive species and introducing back native species, he will clear the 9 area of debris and eliminate its use as a dumping ground and teenage gathering spot. In general, the applicant stated that his proposal does meet the definition of 10 reasonable economic use and minimum use. The variance for height is not a special privilege and was requested to create a design that would meet the C 11 reduce impact. While the staff stated that the prior approval for a variance on the lot 12 was erroneous, variances are allowed to applicants if strict adherence to code creates an unbuildable lot. 13 According to Mr. Schenk, it is questionable whether the staff is violating his 14 constitutional rights. The city attorney rejected first proposal without offering to meet and discuss detail. The staff was open to design meetings and the proposed design 15 resulted through consensus of applicant city attorney and planner; however, after 16 submission of the proposal the staff stated that they could no longer support the proposal. The city attorney would not response to inquiries as to the rejection until 17 110 days later. The applicant perceived a general lack of willingness to work for consensus on this issue. 18 Public Comments 19 20 Dawn Schaeffer stated she resides on Daley Street directly next door to the subject lot. She supports the recommendation not to grant the variance. She noted that the 21 10ft variance in height could affect herself and her neighbors because of the slope, and the home could reach up to 40ft in height. It would affect the privacy of the 22 neighbors and would block western sunlight from her property. She is concerned with resale values and stated that the proposed design has floor to ceiling windows 23 that look directly into her house. She states this is a violation based on page 19 of the 24 staff report. She stated that Mr. Schenk had submitted another design that would have had less of an impact. She stated that he purchased the lot for a reduced price 25 because he knew that it was in a critical area and he would have challenges building. His desire to have a home that is similar in size to surrounding homes should not be taken into account when considering reasonable economic. She said that you cannot Reasonable Use and Variance p. 9 Findings, Conclusions and Decision make an exception for a single individual without making the exception for all of the 1 people living in a critical area. The desire for a certain size is related to the actions of the applicant. This is connected to his desire to make more profitable property. 2 Allowing him to bypass the code is setting a dangerous precedent for the area. The rest of the residents have to abide by code. He knew what the restrictions were before 3 he decided to build. There is a lot of wildlife around this area, and she believes they will be affected by clearing the lot. All of the trees on the property are not reflected 4 on his plan. She asked to submit a photo of the great herons that feed in the Creek. 5 She stated that since it has been confirmed that it is a fish bearing stream the old variance approved should not be considered. The applicant has not demonstrated 6 compliance with criteria for critical use or economic use. She stated that her homes and several next to her are small homes and much smaller than the 3000+ average 7 that Mr. Schenk gave. She has observed dumping in the lots and have called the 8 Edmonds Police Department about it. They were told by the police that unless the police catch them in the act they cannot do anything about it. On the path from the 9 Schaeffer house to the lot, they have observed teenagers going down the path to go drink in the empty lot. She submitted two photographs of blue Heron submitted as 10 Exhibit 6. 11 Diana LeRoss testified that she is a neighbor who supports the staff recommendations 12 to reject the variance. Shell Creek is a fish bearing stream and should be protected. Slide 42 of the Schenk presentation states that he will not make more profitable use of 13 the property. She stated that there is a direct relationship between the size of the property and profitability. She believes that a smaller house could fulfill the critical 14 area criteria without making the impact and requiring the variances. She also noted that she suspects Mr. Schenk lied when he claimed that he will be a neighbor as it is 15 her understanding that there is a buyer in the wings. She wanted to clarify that her 16 letter regarding height variance simply meant that if there is a 35ft variance available that all of the neighbors would have taken it when they built their house. This 17 building would affect the privacy of her neighbors. They have large windows in the back of their home and the proposed home would look directly into the existing 18 home. That would require that they keep their blinds closed if they need privacy. 19 Finis Tupper stated he lives on Daley Street. He wanted to make sure that the 20 Hearing Examiner does a site visit. He stated that after the original proposal and Hearing Examiner approval, he witnessed a blue Heron pull a cutthroat trout in the 21 stream behind his house. There is quite a bit of wildlife around the stream, and he does not consider the lot an eyesore. He believes that you could put a single-family 22 house on that lot, but the one that is proposed encroaches upon and does not enhance the habitat. Mr. Tupper stated that the buffer is supposed to be a 100ft, and it can only 23 be reduced by 50% under a reasonable use permit. The applicant is reducing it to 35% 24 or less. The code does not allow for more than a 50% reduction. He noted that this is not in the staff report or any of the documentation that Landau did for the applicant. If 25 you go through the sequence you can see that when Landau updated their report they updated based on being a non-fish bearing stream. Their letter clearly states that the update was done in June before the determination that there was a 100 foot buffer. Reasonable Use and Variance p. 10 Findings, Conclusions and Decision They started on the wrong premise and will have the wrong outcome. The staff asked 1 the applicant to do another critical area study and mitigation plan based on that change and he refused. The height variance is a 40% increase and that is unheard of 2 in this area. He hopes the Hearing E 3 Roberta Poletes said she lives on Daley Street. She questions the applicant speaking for the neighborhood in his statement that the lot is an eyesore. She says it is not 4 necessarily an eyesore, but it has been used as a dump. She agrees with everything 5 that Dawn Schaeffer has said and asks that the Hearing Examiner walk through the neighborhood and look at how the house would fit. The homes that surround at are 6 much more modest. 7 Gary Schenk stated that he has not had the opportunity to look at all of the 8 information in the report. He is concerned with some things that the City has done. The proposal was rejected the applicant was not given information as to why the 9 rejection was made. The applicant sold his house based on this deal going through and based on what he had been told by the city. Mr. Schenk is an employee for the 10 city government in the Puget Sound region and code enforcement building. There are code violations regarding invasive species on the lot and its use as a dumping ground 11 that need to be addressed. The building of the house would alleviate these issues. He 12 does not see how the building of the house would affect the wildlife, especially considering blue herons. With regard to the claim that this house is blocking sunlight, 13 he stated that the house would allow for more sunlight than the existing trees. The house seems to be the best use for the property. The laws in the codes of the city are 14 those that we should abide by. The height variance was the result of attempting to comply with the city and there should be some give and take. Everything that has 15 been proposed is in conformance with code and laws. The applicant asked why he 16 had been rejected and he was not given an answer. He is related to the applicant. 17 Bill Mitchell testified that he lives on Daley Street. He agrees with the staff that the variances should be denied. He moved into their house four years ago and before he 18 bought the property he paid a premium for the property because of the view the trees behind them and the neighborhood. He spoke with the city and with realtors to get an 19 understanding of building codes, etc. He thought they understood this to be the law, 20 but now sees that variances are allowed. He says that this does not affect him but it does affect his neighbors. They will not be able to look over the house at the trees 21 they will only be able to look at the new house. He does not like how it is affecting critical areas and height requirements. He requested the variances be denied. 22 Lynn Hilman said she has lived in Edmonds for ten years. She s 23 proposal. She stated that there is no way that an applicant or a city plan reviewer can 24 show compliance or noncompliance with a code requirement that is not there. There are no guidelines in Edmonds Code for what minimum is with respect to designing a 25 house for critical area lot. She stated that you cannot base denying a variance on the unprovable; if this is done, there will always be a house that is smaller than the one you propose until there is nothing left and the lot becomes essentially worthless. The Reasonable Use and Variance p. 11 Findings, Conclusions and Decision applicant participated in voluntary design meetings with city staff. Afterallthose 1 meetings, they still utation is damaged by this, and people will refuse to do business here at all. It is been claimed that the lot was a 2 reduced price because of being a critical area. She stated that the code does not include lot price as a criteria for variances. If this was so, variances could be bought; 3 instead, price is a factor personal to the owner. The price of this purchase agreement reflects market conditions and many have sold for low prices including those that 4 were not in critical areas. She noted that she will provide the city with copies of sales 5 records. She has been an architectural engineering and planning examiner for over 20 years. She has operated in over a dozen cities and understands meeting requirements 6 for approval. She never saw anyone deny someone a permit and said they typically guide applicants through the process to create acceptable plans. This is standard 7 practice in this industry. She would like to see the City of Edmonds and the Hearing 8 Examiner do the same thing here. She submitted her written comments and sales records as Exhibit 7. 9 Scott Pawling testified that he lives on Daley 10 Washington and has reviewed plans and assisted the City of Edmonds in geotechnical plans. He has a number of concerns. He stated that the footprint site is very 11 misleading. The impacts from the overhangs are substantial and do not allow 12 precipitation on that part of the ground. The idea that water flow from the hillside is not included does not make sense to him. The foundation is cutting off the water that 13 is flowing to the ground there. He does not know why it was necessary to go as high as 35ft in the design. He recommends a design with 30ft and a flat roof. The 2006 14 plan based on a non-anadromous fish bearing stream needs to be changed and updated. With regard to square footage, the statistics Mr. Schenk used are inaccurate. 15 He is referring to houses that are downtown in general not in the subject 16 neighborhood, and the homes were constructed prior to 2000 are much smaller. He stated that just because others were allowed to build in the stream in the past does not 17 mean that it should happen now. The reason that the buffer requirements were established is to help right some of the past wrongs. Just because there is a buffer 18 does not mean that it should be encroached upon by the applicant. Using the next- 19 and believes that a smaller house could be constructed. 20 Staff Rebuttal 21 Mr. Lien stated that there are differences between the 2006 variance and the variance 22 being considered today. A major change is regard to the classification of the stream. In 2006, it was a fish stream but not an anadromous fish stream. The 2006 23 classification allowed for a smaller buffer. With the change of classification, the 24 buffer becomes wider and you cannot do the same buffer with reductions. With regard to representation of staff to applicants requesting variances, the staff is always 25 very clear that they are not the ones that make the decisions and that it must go to hearing. The staff and the city attorney did work with Mr. Schenk to look at different alternatives. He noted that there is difficulty when considering the footprint of the site Reasonable Use and Variance p. 12 Findings, Conclusions and Decision and that the overhangs arenot counted in the 720sqft. Area. He claims this is a 1 misrepresentation of the footprint of the area and that the impervious surfaces the roof area of the building should be considered based on code. This is larger than the 2 720 sqft. He stated that the city did not deny any application; instead, this is done by the hearing examiner. What the city did do was tell Mr. Schenk that they would not 3 approve the current proposal. In February, there was a meeting with Mr. Schenk to let him know that the staff proposal would not recommend approval. They conversed 4 over the phone and decision was made to go through with the January proposal and 5 not go back to redesign. There was communication with staff but nothing necessarily in writing. 6 With regard to reasonable economic use, the staff stated that the definition does 7 consider a single-family residence to be a reasonable economic use. But the last line 8 says it will not consider situations personal to owner, such as trying to make more profitable use of the site. As mentioned in the public comments, a larger house can be 9 considered a more profitable use of the site. With regard to impact to the critical area in the minimum necessary, the staff did conclude that the critical area report 10 submitted by Landau does minimize net loss to the critical area given the current proposal. However, there could be less impact if there was a smaller footprint. And 11 that buffer could also be minimized to the maximum extent. He noted that there is a 12 fine distinction here. 13 With regard to an investment-backed expectations, the city attorney cited the case Buechel v. State Department of Ecology 125 Wn.2d 196 (1994). This case deals with 14 a variance with regard to a shoreline. He stated that this is very similar to the analysis that needs to be done here. One thing that this case talks about is reasonable use. This 15 does not involve the concept that Edmonds has in its code where reasonable use refers 16 to single-family home, but he states that this case is important in interpretation. In the case the applicant had a similarly restricted lot and very little buildable space, and the 17 Shoreline Hearings Board concluded that reasonable use of small shoreline parcels without the presence of homes is being made on Hood Canal in the vicinity of 18 applicants lot. Such use is available to applicant. In this situation we conclude that this prevents him from meeting the threshold of requirements under the Mason 19 County Shoreline Program. This is not directly applicable because of the Edmonds 20 single family use code language. The hearings board also noted that we cannot conclude on this record that the board decision that the landowner had reasonable use 21 is erroneous. The be a reasonable use of the small sliver of property finds support in this record and in case 22 law that shows that lots may have some economic value if the use is recreational. The size, location and physical attributes of a piece of property are relevant in 23 deciding what is a reasonable use of a particular parcel of land. 24 The city attorney noted that the applicant argues as if his parcel should be able to be 25 developed as any other property in Edmonds and that is not what the law requires. According to Buechel, To some extent the reasonable use of property depends on the expectations of the landowner at the time of purchase of the property. If existing land Reasonable Use and Variance p. 13 Findings, Conclusions and Decision regulations limit the permissible uses of the property at the time of acquisition a 1 purchaser cannot reasonably expect to use the land for prohibited purposes. Although not necessarily determined courts may use its zoning regulations in effect at times of 2 purchase to determine what is reasonable use of the land. Presumably regulations on use are reflected in the price that a purchaser pays for a preset property this land 3 owner knew when he purchased this lot that it did not meet requirementsThe city attorney 4 property (attachment 14 of staff report) which indicates that he is under contract to 5 purchase the property for $95,000; that there is an earnest money of $5000; and that he has not yet closed on the property because closing does not have to occur on or 6 before 15 days after variance receipt. Mr. Schenk confirmed the $5,000 is nonrefundable and that he has also invested $25,000 in pursuing the applications. 7 8 Applicant Rebuttal 9 Mr. Schenk stated that his intent is not trying to find the most profitable use of the site. This compromise design is less desirable to the market. In terms of caring about 10 the environment, he walks his lot every couple of weeks and his office is a block away. With regard to Dawn Schaeffer 11 light will be blocked less once his house is built. He has great concern with privacy. 12 He has attempted to place window to make views into residence minimal. With regard to the issue of fish, the issue is not whether there are fish present. The issue is 13 whether there was a blockage that prevents salmon from coming down the creek. The habitat today on that site is blackberry bushes, a culvert with a fence around it, and 14 yard waste. Clearing that out and putting in native plants will attract more animals. The habitat is currently not per code, and his proposal will give a cleaner site for the 15 City. With regard to the concern about people entering the site, he did not mean to 16 suggest that the current owners were dumping yard waste. From a public safety standpoint, improving the site would prevent a number of problems. The future buyer 17 referenced earlier is himself. He wants to live there himself. With regard to the property to the west, he has designed smaller windows facing this house. The 18 building height is 35ft above grade with regard to the structural engineer which means the concern about being over 35 feet is just not there. All the reports 19 were updated by Landau Associates, who conducted new site visits and the 20 conclusions are as stated. With regard to questions about average house size, there are some large houses in the neighborhood, so it depends on where one is looking in the 21 neighborhood. The house proposal is not grandfathered in any way, so this will be the largest buffer on the street. Besides the variance, he has stricter criteria than the rest 22 of the neighborhood homes. The class of stream has changed. Due process was not taken to determine whether salmon were in the Creek. Instead 2005 and 2006 23 blockages were stated, along with photos taken in 2009 of the salmon. When he spoke 24 to the planning department about purchasing a new report to see if salmon were present, the senior planner determined that the ultimate decision would be in the 25 planning department, who would give more weight to the actual photos, so he decided not to pay for the report because he did not think that it would be looked at. He has the most current results and environmental report. With regard to impervious surface Reasonable Use and Variance p. 14 Findings, Conclusions and Decision calculations, this is not required, but even with the impervious surface calculation it 1 would bring it up to 18%. The current code says up to 35% so he is still under. Mr. Schenk noted that the city planner has been above reproach and the planning 2 department has been responsive. It is been the city attorney who has not been responsive. 3 According to Mr. Schenk, regarding more profitable use of the site, he is just 4 interested in meeting requirements. The Mason County case referenced is clearly a 5 shoreline case. If it is labeled at as a recreational property someone can drive their boat up and enjoy the property. This is not the case here. There is no recreational use 6 of Shell Creek, and he does not understand why this would be applicable. The home he is proposing is to protect the waterway, not to use or enjoy the waterway. Mr. 7 Schenk asked about cases of taking property without just compensation. He stated 8 that he has more than the $5000 invested in this property and a year of his life. Again, this proposal is not his first choice. The proposal was made to meet requirements. His 9 original proposal was changed to meet the requirements creating minimum impact to the site. 10 EXHIBITS 11 12 Exhibit 1 Staff report dated June 4, 2014 with all 73 attachments. Exhibit 2 Schenck presentation outline and power point. 13 Exhibit 3 June 12, 2014 memo from Schenk to Lien Exhibit 4 site plans 14 Exhibit 5 Email chain dated February 15, 2014 involving city attorney Exhibit 6 Schaeffer photographs 15 Exhibit 7 Hilman comments and sales data 16 17 FINDINGS OF FACT 18 Procedural : 19 1. Applicant. The applicant is Jordan Schenk. 20 2. Hearing. A hearing was held at 3:00 pm on June 13, 2014 at the Edmonds 21 City Council meeting chambers. The record was left open for a site visit, which was conducted after 5:00 pm on the same day. 22 23 Substantive : 24 3. Site/Proposal Description. The applicant requests a reasonable use exception to build a single-family home within the 100 foot critical areas buffer of 25 Shell Creek and a height variance to build the home ten feet above the applicable 25 foot height limit. Both applications are denied because the applicant is not proposing a minimum reasonable use of his property and because his biological assessment of Reasonable Use and Variance p. 15 Findings, Conclusions and Decision stream impacts is based upon the incorrect premise that Shell Creek is a non- 1 anadromous fish bearing stream with a 75 foot buffer. 2 The subject property is located at 742 Daley Street. The property has steep slopes along the west side of the property and Shell Creek runs across the northeast corner of 3 the property. Shell Creek is identified as an anadromous fish bearing stream which has 100 foot stream buffers pursuant to Edmonds Community Development Code 4 (ECDC) 23.90.040.D. Given the entire property is encompassed by the stream buffer, 5 the applicant is pursuing a critical area variance to develop the site. The applicant considered several alternative house designs for the property in order to minimize 6 impact to the critical area and to demonstrate reasonable economic use. Ultimately, the applicant settled on a design for a house 35-feet in height. The maximum 7 allowable height in the RS-6 zone is 25 feet, so the proposed house requires a 10-feet 8 height variance. Given that the two variance applications are intricately intertwined, both requests have been consolidated into a single development project pursuant to 9 ECDC 20.01.002.B and are being reviewed concurrently. 10 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 11 parcels in the area and is completely surrounded by parcels that are currently 12 developed with single-family residences. The site and surrounding properties are located within the RS-6 (Single-Family Residential) zone (Attachment 63). North of 13 the neighborhood is the Holy Rosary Church and School site which is zoned RS-12. th West of the neighborhood across 7 Avenue North is property zoned RM-1.5 (Multi- 14 Family) that is developed with a mix of multi-family and single family residences. 15 5. Adverse Impacts. The applicant has not established that the proposal 16 would not material impair the critical area functions and values of Shell Creek and its associated buffer. 17 upon the erroneous premise that Shell Creek is a non-anadromous fish bearing stream subject to a 75 foot buffer as opposed to a anadromous fish bearing stream subject to 18 a 100 foot buffer. The 100 foot stream buffer is imposed by ECDC 23.90.040(D)(1)(b) and the 25 foot height limit is imposed by ECDC 16.20.030. 19 20 The applicants expert critical area analysis was prepared in 2006 and updated in 2013. See att. 5, 6 and 8. Both of these reports were based upon the understanding 21 that only non-anadromous fish access the stream at the project site. Since 2006 fish have been observed by staff up stream of a culvert that had been considered to block 22 fish passage to the applicants property. Staff have concluded that anadromous fish now do pass through Shell Creek at the project . The applicant has presented no 23 evidence to the contrary. Given the uncontested evidence presented by staff, it is 24 determined that anadromous fish do pass through the subject property and that it should be classified as an anadromous fish bearing stream. Anadromous fish bearing 25 streams are more environmentally sensitive than non-anadromous fish bearing streams as established by the fact that City code requirements impose a 75 foot buffer for non-anadromous fish bearing streams and a 100 foot buffer for anadromous fish Reasonable Use and Variance p. 16 Findings, Conclusions and Decision 2006critical area analysis expressly notes its 1 understanding that anadromous fish only pass to points downstream of the project site. Att. 5, p. 3-2. The applicants 2013 makes no mention of the change in stream 2 classification and the applicant stated in correspondence with the City that he would not be updating the reports to address the presence of non-anadromous fish. Att. 27, 3 p. 5. 4 Neighbors testified and presented photographs depicting the presence of blue heron at 5 the project site. Any reapplication should also address whether there is any blue heron habitat present that is protected by the Citys critical area regulations. 6 The height variance raises concerns over privacy issues. A neighbor testified that the 7 increase in height would result in a home with a line of site directly into her windows. 8 If the applicant is be given the benefit of a height to which no other homes are entitled in the vicinity, that added benefit should not result in a privacy detriment to 9 adjoining neighbors. Although the issue does not need to be resolved for this application because the variance is denied for other reasons, it should be addressed in 10 any similar future variance application. The applicants will have to demonstrate that any height variance will not result in any line of sight from the windows of the 11 proposed home into the windows of any adjoining homes. Beyond the privacy issue, 12 there are no other adverse impacts identifiable in the record from the proposed height variance. As noted in the staff report, the home is located at the bottom of a steep 13 slope and the difference in grade is more than enough prevent the proposed added height from adversely affecting any views. 14 6. Minimum Reasonable Use. The minimum reasonable use of the subject property 15 is a home that minimizes to the maximum extent impacts to Shell Creek and its buffer. 16 As identified in the staff report, this would be a home with living space limited to that 17 exceeds this minimum reasonable use because it includes a second story overhang comprising several hundred square feet that will block sunlight to critical area buffer 18 vegetation. 19 As outlined in the Conclusions of Law, minimum reasonable use is a principle derived 20 from constitutional takings law that involves a balancing of the burden on the property owner verses public benefit. Investment backed expectations are a major factor. On 21 February 8, 2013, well after adoption of currently applicable critical area regulations, the applicant entered into a purchase and sale agreement to purchase the property for 22 $95,000. See Att. 14. Closing is contingent on the applicant acquiring approval of a reasonable use variance to construct a single-family home. The property had 23 previously been on the market for $469,950. See Att. 67. There is no question that 24 the applicant has acquired the property at a deeply discounted price and that he was well aware that acquisition of a reasonable use approval was not a given. The 25 limitations on development were well known in the real estate market, as the property had been on the market at an offering price of $99,990 for 208 days without a single offer prior to the purchase made by the applicant. See att. 12. Reasonable Use and Variance p. 17 Findings, Conclusions and Decision 1 Beyond the presence of critical areas, the lot is well suited to accommodate a single family home. The lot itself is fairly small at 0.24 acres, but this is large enough to 2 accommodate averaged sized homes in the Edmonds community. The lot is of a size that is the same size or even slightly larger than surrounding lots developed with full 3 size homes, as shown the adjoining vicinity in Att. 9 and as confirmed by the 4 5 The public interest served by the stream buffer is fairly high. Of the six types of buffers required to protect stream habitat, the 100 foot buffer imposed for anadromous 6 fish streams is the second largest imposed by the City of Edmonds. See ECDC 23.90.040(D)(1). This indicates that the type of stream affected by the proposal is 7 one of the most sensitive and/or ecologically valuable in the City. The impacts of the 8 proposal on this highly sensitive critical area have not been adequately evaluated. The applicant relies upon habitat management studies completed in 2006 (att. 6) and 2013 9 (att. 8) to argue that impacts are mitigated, but these studies were completed at a time when the stream was considered to be non-fish bearing and only subject to a 75 foot 10 buffer. There is no information in the record to establish that the proposal is still adequately mitigated to prevent impacts to the higher sensitivity of the stream. 11 12 Given the factors above, a minimum use of the property using the liberal construction requirement of the Citys reasonable use definition would have to be 13 considered the minimum size at which a marketable home could be constructed without a loss. Sales data provided by the applicant for home sales in the City of 14 Edmonds between 2008 and 2013 show at least seven homes with less than 650 square feet of living space selling at prices ranging from $35,000 to $550,000 with only two 15 of the seven selling for less than $199,000. See att. 31. From this data it appears 16 likely that a new home could be built and sold without a loss from a vacant purchase price of $95,000 as paid by the applicant. Of course, a more solid finding would be 17 based upon information on the costs of home construction and the locational characteristics and conditions of the homes sold. However, the burden of proof lies on 18 1 the applicant to establish he is being denied minimum reasonable use and there is nothing in the record that suggests that it would not be possible to build a marketable 19 home without a loss. 20 650 square feet is used as a minimum reasonable use size because it is approximately 21 the minimum sized home that could be placed upon a two car tandem garage. As noted in the staff report, ECDC16.20.030 requires two on-site parking stalls for the 22 proposal. Consequently, the minimum critical area buffer disturbance for a single- family home compliant with City code would be a home with living space limited to 23 24 1 ECDC 23.40.210(A)(2) provides that a reasonable use request may 25 Reasonable Use and Variance p. 18 Findings, Conclusions and Decision 2 the area above a two stall tandemparking garage. The living space in such a 1 3 configuration would be limited to 626 square feet. See att. 31. 2 footprint of a tandem two car garage. 4 However, it also includes a second story overhang with 180 square feet overhanging 3 the southern foundation and 464 square feet overhanging the east foundation. See att. 31. As noted in the staff report, this overhang can adversely affect the critical areas by 4 blocking sunlight to vegetation. The applicant argues there is no evidence to support 5 this, but this position fails to recognize that the applicant bears the burden of 6 mitigation plan recognizes the important function of buffer vegetation in protecting critical area functions. See att. 5. It is reasonable to conclude that blocking sunlight to 7 vegetation will adversely affect it. Given these facts, it is incumbent upon the 8 applicant to establish that the overhang he proposes will create no such adverse impacts. In the absence of any expert testimony or other evidence supporting the 9 affect the critical area. More likely than not, given that the overhang is several 10 hundred square feet in area, the overhang will harm critical area function. 11 CONCLUSIONS OF LAW 12 Procedural : 13 1.Authority of Hearing Examiner. ECDC 20.85.020 provides the Hearing 14 Examiner with the authority to review and act upon variance applications as Type III- 15 A. 16 Substantive : 17 2. Zoning Designations. The area is zoned Single-Family Residential (RS- 6). 18 19 20 2 Tandem stalls would apparently be necessary to maintain separation from the stream. 21 3 The city attorney testified that the City disputes whether the size of the garage proposed by the applicant is absolutely necessary to accommodate two parking stalls, circulation and second floor 22 access. The City has not identified any specific reasons why the footprint is too small. In order to provide some clarity to the applicant as to what constitutes minimum reasonable use and in pursuance 23 of the liberal construction requirement of the Citys reasonable use definition, the 626 square foot design presented by the applicant is determined by this decision to meet the minimum reasonable use requirements of the Citys reasonable use regulations. 24 4 The text to att. 31, page 3, notes that the length of the southern overhang in att. F (from which the 180 25 square feet was derived) underrepresents the length of the overhang. It is unclear if this error extends into the 180 square foot figure depicted in att. F. The actual area of the southern overhang may be more than180 square feet. Reasonable Use and Variance p. 19 Findings, Conclusions and Decision 3.Review Criteria and Application. Variances to height requirements are set 1 by ECDC 20.85.010, quoted below and applied through corresponding conclusions of law. Reasonable use exceptions to critical area stream buffers are governed by 2 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. 3 HEIGHT VARIANCE 4 5 ECDC 20.85.010: No variance may be approved unless all of the findings in this section can be made. 6 ECDC 20.85.010.A(1) Special Circumstances: That, because of special 7 circumstances relating to the property, the strict enforcement of the zoning ordinance would deprive the owner of use rights and privileges permitted to other properties in 8 the vicinity with the same zoning. 9 a.Special circumstances include the size, shape, topography, location or 10 surroundings of the property, public necessity as of public structures and uses as set forth in ECDC 17.00.030 and environmental factors such as 11 vegetation, streams, ponds and wildlife habitats. 12 b.Special circumstances should not be predicated upon any factor personal 13 to the owner such as age or disability, extra expense which may be necessary to comply with the zoning ordinance, the ability to secure a 14 scenic view, the ability to make more profitable use of the property, nor any factor resulting from the action of the owner or any past owner of the same 15 property; 16 4. The criterion is met. The staff report argues that the criterion is not met 17 because the applicant would enjoy reasonable use from a single-story 625 foot 18 the criterion above that fails to recognize that the criterion extends beyond the deprivation of rights to the deprivation of privileges. Limited to one story of living 19 space, the applicant is left with a home that is several times smaller than surrounding homes. Allowance of the variance would double that size and still result in a house 20 that is only at 84% of the average home size in the City of Edmonds. See att. 31, p. 5. 21 The need for the variance is completely attributable to the critical areas on site, since it is solely because of those critical areas that the size of the home is limited. 22 ECDC 20.85.010(B) Special Privilege: That the approval of the variance would 23 not be a grant of special privilege to the property in comparison with the limitations upon other properties in the vicinity with the same zoning; 24 25 5. The granting of the variance would create a special privilege, because the applicant has provided no evidence that other homes in the vicinity are constructed at heights exceeding 25 feet. Given that the applicant is already conferred a reasonable use of his property with a single story of living space as determined in the Reasonable Use and Variance p. 20 Findings, Conclusions and Decision conclusions of law below, it cannot be concluded under these circumstances that the 1 extra height associated with a variance would not constitute a special privilege if no one else has built to that extra height as well. 2 ECDC 20.85.101(C) Comprehensive Plan: That the approval of the variance will 3 be consistent with the comprehensive plan; 4 6. The requested setback variances are consistent with the comprehensive 5 plan for the reasons outlined at Section VII of the staff report, adopted and incorporated by this reference as if set forth in full. 6 ECDC 20.85.010(D) Zoning Ordinance: That the approval of the variance will be 7 consistent with the purposes of the zoning ordinance and the zone district in which 8 the property is located; 9 7. The proposal is consistent with the purpose of the RS-6 zoning district as outlined in Section X of the staff report, adopted and incorporated by this reference as 10 if set forth in full. 11 12 ECDC 20.85.010(E) Not Detrimental: That the variance as approved or conditionally approved will not be significantly detrimental to the public health, 13 safety and welfare or injurious to the property or improvements in the vicinity and same zone; 14 8. The criterion is not met. The applicant has not demonstrated that the 15 added height would not adversely affect the privacy of adjoining home owners as 16 determined in Finding of Fact No. 5. 17 ECDC 20.85.010(F) Minimum Variance: That the approved variance is the minimum necessary to allow the owner the rights enjoyed by other properties in the 18 vicinity with the same zoning. 19 9. The criterion is not met. As determined in the conclusions of law below, 20 the applicant can enjoy reasonable use of the subject property with just one story of living space. Although the applicant may not enjoy the same development potential 21 as other owners in the vicinity and same zoning, one story of living space does allow the applicant reasonable use of his property, a right enjoyed by his neighbors as well. 22 23 BUFFER ENCROACHMENT REASONABLE USE REQUEST 24 ECDC 23.40.210(A)(2)(a) : The application of this title would deny all reasonable 25 economic use of a property or subject parcel; Reasonable economic use(s The minimum use to which a property owner is entitled under applicable state and federal Reasonable Use and Variance p. 21 Findings, Conclusions and Decision constitutional provisions in order to avoid a taking and/or violation of substantive due 1 hall be liberally construed to protect the constitutional property rights of the applicant. For example, the minimum reasonable use 2 of a residential lot which meets or exceeds minimum bulk requirements is use for one single-family residential structure. De 3 not include consideration of factors personal to the owner such as a desire to make a 4 10. Under the definition above, there is no question that the stream buffer denies the 5 applicant all reasonable use of the subject property. The subject lot meets minimum bulk and dimensional standards in the RS-6 zoning district. Consequently, a single family 6 home qualifies as a minimum reasonable use under the definition. The property is completely encumbered by the stream or stream buffer and City regulations prohibit the 7 area regulations are depriving the applicant of a minimum reasonable use of the property. 8 ECDC 23.40.210(A)(2)(b): No other reasonable economic use of the property 9 consistent with the underlying zoning and the city comprehensive plan has less impact on the critical area; 10 11. The criterion is met. As concluded in Conclusion of Law No. 10, a single- 11 family home is defined as a minimum reasonable use for the subject property. As a minimum reasonable use, no other type of reasonable use could be required for the 12 property unless it allowed for a greater economic return on the property. As outlined in ECDC 16.20.010, more intense uses allowed for the subject property include uses such as 13 churches and schools relatively small lot. None of these types of uses could be construed as creating less 14 impact to reasonable use referenced in the criterion above 15 encompasses different project design as opposed to different types of uses, then as determined in Finding of Fact No. 6 the applicant has failed to establish that a smaller 16 home would not have less of an impact to critical areas. ECDC 23.40.210(A)(2)(c): The proposed impact to the critical area is the minimum 17 necessary to allow for reasonable economic use of the property; 18 12. The criterion is not met. The proposal does not minimize impacts to critical areas. The proposed second story overhang could be removed and still leave the applicant with 19 reasonable use. 20 As determined in Finding of Fact No. 6, impacts to Shell Creek are not minimized, because the proposal includes an overhang over critical area vegetation that exceeds the 21 footprint for minimum reasonable use by several hundred square feet. This overhang will block sunlight to buffer vegetation, thereby adversely affecting the vegetation and its 22 associated critical area function and value. 23 Fact No. 6 is a single family home with a footprint limited to accommodating a tandem 24 two car garage with living space located above it. This minimum reasonable use is based upon a number of constitutional balancing factors used by the courts in assessing 25 ECDC 23.40.320, is based upon constitutional takings law, so that law must be referenced to determine what constitutes minimum reasonable use. Reasonable Use and Variance p. 22 Findings, Conclusions and Decision In the context of regulatory takings caused by stream and buffer regulation, a taking will 1 most often occur under either a Lucas analysis where the property owner is deprived of all reasonable economical use or a Penn Central analysis where the burden on the 2 property owner is weighed against the public need and benefit of the regulations in question. 3 The Lucas analysis comes from Lucas v. South Carolina Coastal Commission, 505 U.S. 4 1003 (1992). public verses private interests is required to determine if a property owner is entitled to 5 compensation under the takings clause. The U.S. Supreme Court in Lucas ruled that when regulations deprive a property owner of all economically viable use, a categorical 6 takings has occurred and compensation is due unless the regulations fall into some very limited exceptions. A footnote in Lucas explained that the categorical rule would not 7 apply if the diminution in value were 95% instead of 100%. The court acknowledged that anything more than a total loss would require a Penn Central takings analysis. 8 was put to the test in Palazzolo v. Rhode 9 Island, 533 U.S. 606 (2001). In that case Mr. Palazzolo owned an 18 acre subdivision containing 74 lots. The subdivision was undeveloped and covered with wetlands with an 10 indeterminate area of uplands. The only way to develop the lots located in wetlands was to fill them. Subsequent to the subdivision of the 18 acre parcel the Rhode Island 11 Legislature adopted regulations that prevent Mr. Palazzolo from filling the wetlands. 12 Prior to adoption of the wetland regucould have developed a subdivision worth about $3.1 million. After adoption of the regulations Mr. Palazzolo 13 could only fill the upland portions of his parcel, which would only enable a development worth about $200,000. The Supreme Court ruled that the remaining $200,000 qualified 14 as economically viable use and, therefore, no Lucas categorical takings had occurred. In short, Mr. Lucas was left with less than 10% of the development potential of his property 15 and no categorical takings had occurred. As identified in Finding of Fact No. 6, for this proposal City staff are asserting that the applicant should build a house limited to 626 16 square feet. This area is about a fifth of the average size of a home built sold in Edmonds 17 today. See att. 31, p. 3. It is unclear what the average sales price is in Edmonds currently, but given these factors it is very unlikely that the applicant would be losing 18 more than 90% value if the applicant is limited to building a 626 square foot home. Imposing the maximum house area advocated by the City would not constitute a 19 categorical takings under Lucas. 20 In the absence of a categorical takings, the remaining way to establish a regulatory takings is through a Penn Central analysis. Penn Central is a United States Supreme 21 Court case that created the concept of regulatory takings, where just compensation under th the 5 Amendment takings clause can be required by over-regulation of property without 22 any physical appropriation such as in a typical road condemnation case. See Penn Central v. New York City,438 U.S. 104 (1978) The Court ruled that w hether a regulatory action 23 that diminishes the value of a claimant's property constitutes a "taking" of that property depends on several factors, including the economic impact of the regulation on the claimant, particularly 24 the extent to which the regulation has interfered with distinct investment-backed expectations, as well as the character of the governmental action. Those regulatory factors have been developed 25 and expanded upon in Washington State court opinions assessing regulatory takings. See, e.g. Guimont v. Clark, 121 Wn.2d at 603-604, 610 (1993); Presbytery of Seattle v. King County, 114 Wn.2d 320, 331, 787 P.2d 907 (1990). Those factors, in turn, have been applied into assessing Mason County shoreline variances in Buechel v. Dept. of Ecology, Reasonable Use and Variance p. 23 Findings, Conclusions and Decision 125 Wn.2d 196, 884 P.2d 910 (1994). The Buechel ruling was applied by the City Council in its 1 construction of its critical area reasonable use provisions in the Hillman reasonable use request, City of Edmonds Resolution 1294. The factors used to assess reasonable use in Buechel include 2 the size, location and physical attributes of the property; the expectations of the owner at the time of purchase of the property; the zoning regulations in effect at the time of purchase; the purchase 3 price of the property; and the cumulative environmental impacts of the proposed development. See 125 Wn.2d at 207-208. These factors were applied and assessed in Finding of Fact No. 6. 4 th There have been surprisingly few cases that have applied 5 Amendment takings claims to wetland and/or stream buffer regulation. None have assessed Penn Central takings claims 5 5 in the State of Washington to wetland regulations. One case outside of Washington provides some insight as to how the regulation should be applied. See Friedenburg v. New York State 6 Dept. of Environmental Conservation, 3 A.D.3d 86 (2003). In Friedenburg the property owner was denied a permit to fill wetlands in order to build a single-family home on a 2.5 acre 7 waterfront parcel. The only use remaining use the property owner had with the denial of the wetlands permit was access rights to the shoreline. The denial of the permit devalued the 8 property from $665,000 to $31,500 based upon the findings of the trial court as to what the property could be used for. The value of the property would have been $50,000 if additional use 9 rights alleged by the government defendant applied, such as the construction of a catwalk or moorage for a houseboat. The New York Supreme Court applied federal constitutional takings 10 case law and ruled that a takings occurred whether the property was valued at $50,000 or $35,000. The Court reasoned that the property owner experienced either a 95% or 92.5% reduction in value 11 and that in either case the reduction was significant. The Court found that the public benefit conferred by wetlands protection did not justify the taking of public property. It noted that if 12 there are no direct reciprocal benefits to the property owner, the property owner should not bear the burden of providing those benefits to the general public. Due to the significant loss in value 13 and the lack of reciprocity in the benefits of wetland protection, the Court found a takings 14 Finding of Fact No. 6 applies the Penn Central factors of investment backed expectations, purchase price, lot size, environmental impacts and City regulations in effect at the time of 15 purchase. As determined in Finding of Fact No. 6, a balancing of these factors results in the entitlement of one single family home with living space limited to the area above a two car 16 tandem garage. The minimum reasonable use set by Finding of Fact No. 6 provides the applicants with use rights 17 that are wholly distinguishable from those in Friedenburg. Most notably, the applicant will suffer no reduction in value subsequent to the purchase of the subject property. The applicant has 18 pointed to no evidence that establishes a reduction in value below the $95,000 purchase price. As noted in Finding of Fact No. 6, homes similar in size to those set by Finding of Fact No. 6 sell for 19 prices as high as $550,000. From the limited information in the record, it is likely that the applicants will be able to build a 625 square foot home and then sell it at a profit. It is also of 20 choose to abandon their proposal as a result of their decision, they can get out of their purchase 21 and sale agreement with losses limited to the $5,000 earnest money. See Schenk testimony. 22 A second distinguishing factor is that the concept of reciprocal public benefit addressed in Friedenburg is turned on its head. If the applicant is permitted to build the home he is proposing, 23 he stands to make an extraordinary large profit for single-family home development. T o protect 24 those wetlands. In short, solely because of the environmental significance of Shell Creek, the 25 5 In the Presbytery case the court outlined the factors involved in a Penn Central analysis of a wetlands takings claim, but then declined to apply them because the applicant had not exhausted his administrative remedies prior to filing suit. Reasonable Use and Variance p. 24 Findings, Conclusions and Decision applicant only has to risk $5,000 in earnest money to develop a $95,000 lot into a home worth 1 hundreds of thousands of dollars. Mr. Schenk argues that he is entitled to a larger home because the average sized home in 2 Edmonds is considerably larger than 625 square feet. He provides extensive data on the size of homes located in the vicinity of the subject parcel as well as the City of Edmonds as a whole. Mr. 3 Schenk points to no legal authority or compelling reason as to why his minimal investment in the subject property entitles him to an average sized home, which is about 3,100 square feet based on 4 home sale records for downtown Edmonds since 1900. See att. 31, p. 12. With no reduction in value evident from limiting a future home to 625 square feet, there is no compelling reason to 5 authorize any larger home. 6 A final legal issue that should be addressed is the reasonable use definition requirement that 7 owner. For this case a liberal construction is already built into the defi the applicant is entitled to a single-family home. Given the absence of any reduction in property 8 should be on fairly solid legal ground. 9 10 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 11 the ordinance codified in this title or its predecessor; 13. The criterion is met. The inability to derive reasonable use is wholly 12 attributable to the critical areas ordinance, which encumbers the entirety of the subject lot 13 with a stream buffer. The staff report concludes that the lack of reasonable use results from the actions of the applicant in purchasing the property with knowledge of the critical 14 area restrictions. However, with or without this knowledge, the critical areas ordinance prohibits all reasonable development of the property. The lack of development options 15 restrictions. 16 17 ECDC 23.40.210(A)(2)(e): The proposal does not pose an unreasonable threat to the 18 public health, safety, or welfare on or off the development proposal site; 14. The criterion is not met. As determined in Finding of Fact No. 5, the 19 applicant has failed to demonstrate that the proposal will not adversely affect Shell Creek or its buffer. Although not necessary for the conclusion that the criterion quoted above is 20 not met, the cumulative impacts of the proposal are also a concern. As the amount of 21 vacant land in the City of Edmonds continues to decrease, development pressures for environmentally sensitive lots such as the one at hand will increase. It will be difficult to 22 conclude that public health, safety and welfare is not threatened if development such as proposed in this application is allowed to proliferate within the critical area buffers of the 23 24 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 25 15. The criterion is not met. As determined in Finding of Fact No. 6, the proposal does not minimize impacts to critical areas. Reasonable Use and Variance p. 25 Findings, Conclusions and Decision ECDC 23.40.210(A)(2)(g): The proposal is consistent with other applicable regulations 1 and standards. 2 16. With the exception of the height subject to the proposed height variance, 3 the proposal is consistent with all other applicable regulations and standards. As noted in the staff report, staff has determined compliance with all applicable 4 development standards and there is no evidence to the contrary. 5 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 6 lands in the same district; 7 17. The property is completely encumbered with critical area buffers, which 8 qualifies as a special condition and circumstance. Most lots in the vicinity and district are not fully encumbered by critical area buffers. 9 ECDC 23.40.210(B)(2): The special conditions and circumstances do not result from 10 the actions of the applicant; 11 18. See COL No. 13. 12 ECDC 23.40.210(B)(3): A literal interpretation of the provisions of this title would 13 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 14 the variance requested is the minimum necessary to provide the applicant with such rights; 15 19. See COL No. 10. 16 ECDC 23.40.210(B)(4): Granting the variance requested will not confer on the 17 applicant any special privilege that is denied by this title to other lands, structures, or 18 buildings under similar circumstances; 19 20. The criterion is met. Authorizing the variance would enable the applicant to build a home that is similar in size (and even a bit smaller) to the homes that surround 20 it. 21 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 22 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 23 24 21. The criterion is not met. As determined in Finding of Fact No. 5, the applicant has not provided sufficient evidence to support a finding that the proposal will 25 not damage Shell Creek or its buffer. Reasonable Use and Variance p. 26 Findings, Conclusions and Decision ECDC 23.40.210(B)(6): The decision to grant the variance is based upon the best 1 available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat. 2 22. The criterion is not met. As determined in Finding of Fact No. 5, the 3 applicant has not provided sufficient evidence to support a finding that the proposal will not damage Shell Creek or its buffer. In particular, the habitat analysis done for 4 5 subject property. 6 7 DECISION 8 The height variance and reasonable use request are denied. The applications must 9 conform to all applicable criteria. Several criteria for each application are not met as outlined in the Conclusions of Law of this decision. 10 Dated this 27th day of June, 2014. 11 12 13 14 Edmonds Hearing Examiner 15 Appeal Right and Valuation Notices 16 17 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 18 of this decision as required by ECDC 20.07.004(B). Reconsideration may be requested 19 within 10 calendar days of issuance of this decision as required by ECDC 20.06.010. 20 Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation. 21 22 23 24 25 Reasonable Use and Variance p. 27 Findings, Conclusions and Decision