VerbatimTranscript.pdf
CITY OF EDMONDS
VERBATIM TRANSCRIPTS OF HEARING EXAMINER HEARING
File Number V-2007-81
December 6, 2007
Hearing Examiner Rice:
Good afternoon. We’ll go ahead and get started. The only person here who doesn’t know me is
the applicant. Hello, my name is Sharon Rice. How do you say your last name?
Mr. Leiser:
Uh, Leiser.
Hearing Examiner Rice:
Leiser. Okay. I work with the firm Toweill Rice Taylor, Mr. Leiser, and our firm has been
appointed by the Edmonds City Council to provide land use hearing examiner services for the City. As the presiding official
today, I do have jurisdiction to hear and decide this application. As you know, you’re application is the only item on the
agenda. I’m going to go briefly through some procedural stuff so you understand your full rights and what my rights and
responsibilities, well I don’t have rights, but what my responsibilities are. I’ve got no right.
Hearing Examiner Rice:
Okay, the first thing is, Gina probably told you, we’ll hear from the City first and then from you,
and then we’ll take public comments. In the event that public comment raises questions or concerns that need to be
addressed, we’ll allow you and the City also to respond. Any evidence that I need to know to decide the application has to be
offered before we adjourn. If there’s stuff that you think I need to know that you don’t have with you today, we’ll make
arrangements to receive it. But I can’t take any evidence after we adjourn and neither can any reviewing body. So you need
to make sure it gets in today. I am limited in my consideration to everything that’s been offered. Have you had a chance to
review the documents the City prepared?
Mr. Leiser:
Yes.
Hearing Examiner Rice:
Okay. Can I get you to pull the microphone towards you a little bit because we are recording . . .
It’s a trick microphone. We’re recording in the event of an appeal and just to allow me to re-listen to the testimony in case I
need to during my deliberations. The other thing you should know is I won’t rule today on the application. I have 10 days by
State law and City code, so you can expect my decision 10 business days after the close of the record. If it closes today, it
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. So I think, unless you have any questions . . .
will be December 20
Mr. Leiser:
Not at this time.
Hearing Examiner Rice:
You can ask them as we go along, as well. I will call to order now the application of Shaun Leiser
for Variance 2007-81. This is November, no it’s not. It’s December 6, 2007, the City of Edmonds Land Use Hearing
Calendar. This variance is a request to allow variances from two side street, I believe, setbacks. Before the hearing, I was
given this packet of information by the City staff that includes the staff report, which is Exhibit 1, and on pages, actually
Page 9 of the staff report, additional exhibits are listed in detail. Mr. Leiser, you had an opportunity to review the documents.
Did you have any objections to anything that was offered?
Mr. Leiser:
No.
Hearing Examiner Rice:
Okay, then they will be admitted. And any additional documents will be numbered sequentially.
Before we take testimony, land use testimony has testimony given under oath to enhance the credibility of the record. So at
this time, I would like to ask everyone who plans to testify, please raise your right hand. Do you swear or affirm the
testimony you give will be true? If so, say I do. Okay, thank you. The record will reflect that all who testified are under
oath, and we’ll start with the City’s presentation.
Ms. Coccia:
Good afternoon. My name is Gina Coccia. I’m a planner in the Development Services Department. This
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proposal is for a new five-unit multi-family development in four buildings at 24110 – 84 Avenue West in a multiple
residential RM-2.4 zone. Three of these buildings will be single-family detached units, and one of the buildings will contain
two dwelling units, a duplex. There’s a turnaround space towards the center of the space, and the drive isle that accesses the
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site is from 84 Avenue West. Each building has garage parking, and there are two surface parking stalls proposed. This
project has some history in that the applicant has already gone through and obtained approval for the design by the ADB, File
ADB-2004-54, and for the setback variances requested today files V-2004-55 and V-2004-85. These approvals have since
expired and he’s going through the approval process again.
Ms. Coccia:
The applicant has stated that nothing has changed since the original permits were approved. The details of the
approval and expiration dates are found in the staff report, Exhibit 1. The applicant should be aware that the building permits
he has applied for are due to expire one year from the date of submittal, which is February 6, 2008. If the building permits
expire, the applicant would have to go through the ADB process again. Just to note.
Ms. Coccia:
So for this project, the notice of application and hearing was published in THE HERALD newspaper, posted on
the subject site, as well as the public safety complex, community development department and the library on October 3,
2007. Also, notices were mailed to everyone within 300 feet of the site. So the City has complied with the noticing
provisions in the code.
Ms. Coccia:
The applicant had originally submitted an environmental checklist review because the proposed buildings
required SEPA review in that there were five dwelling units proposed, along with approximately 15 cubic yards of grading.
So the original SEPA determination was adopted. The only mitigating measure was a traffic impact fee, which we now have
under our code, so we no longer use SEPA to require traffic impact fees. This project was reviewed by many City
departments, including the Engineering Division and the Engineering Program Manager has submitted a memo regarding this
project, Exhibit 7. So they require a stated condition that states, “All utility easements shall be maintained and no structures
shall be located within the easement area.
Ms. Coccia:
This site is located in a neighborhood that is a mix of multi-family and single-family, and then down the street
there’s some commercial development that’s kind of near Safeway and an auto repair shop and a chiropractic office. To date,
no public comments have been received, although I see someone from the audience here that might like to provide testimony,
and that is welcome. So I think I’ll keep this brief and I’ll go over the criteria for a variance. The applicant has requested
two street setback variances because the project fronts on two streets. One of the streets is Edmonds Way, and the site does
not have any access from Edmonds Way due to the topography of the site; it’s way up the hill from it. That is one. The other
item is something that came up with the Architectural Design Board review the first time around, and it’s that the RM zone
does not permit parking in the setback areas. So he is requesting a variance to allow two surface parking stalls in the street
setback area in order to preserve some trees on site.
Ms. Coccia:
There are six criteria that the applicant must meet for a variance approval. One is special circumstances. Staff
believes that special circumstances exist on the property, including the shape of the property. The existing, large, mature
vegetation and the fact that the street, Edmonds Way, is separated by the site, the height of the slope, plus this road does not
have access to the site, nor would it ever.
Ms. Coccia:
Two is special privilege. The applicant has received variance approval for the same project in the past, where
he was required to prove that all six variance criteria were met. This is an example of how granting a variance would not be a
grant of special privilege.
Ms. Coccia:
Three, Comprehensive Plan. So Section 9 of Exhibit 1 discusses consistency with the Comprehensive Plan.
Mainly, I’d like to show that the proposal would encourage the preservation of trees and that the design proposal was
approved by the ADB. In doing so, they found it was consistent with the Comprehensive Plan.
Ms. Coccia:
Zoning ordinance. Section 11 of Exhibit 1 discusses the consistency with the criteria given in the zoning
ordinance of the City of Edmonds. If the proposed variance is approved, the use will be consistent with the zoning ordinance.
Ms. Coccia:
Not detrimental. Staff feels that this proposal does not appear to be detrimental. In fact, it provides for an
overall better design of the site. There are no known local views, so that didn’t seem to be an issue.
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Ms. Coccia:
Minimum variance. Staff feels that the street setback variances are the minimum necessary to both preserve the
existing trees and to comply with other codes. Therefore, based on the analysis and attachments in the staff report, staff
recommends approval of both the setback variances, with conditions. Would you like me to go through the conditions?
Hearing Examiner Rice:
No, I do have a question on one condition, but I have some other questions first.
Ms. Coccia:
Sure, I’d be happy to answer any questions at this time.
Hearing Examiner Rice:
Okay, great. I don’t really belief SEPA applies to variance applications, per say, so. And I
appreciate the SEPA analysis doesn’t speak to the criteria for variance approval. I’m curious, though; your staff report seems
to imply that the applicant would pay traffic impact mitigation fees subject to the ordinance that was approved after his other
application was decided.
Ms. Coccia:
So, that’s up to the Engineering Division to figure out the vesting on that, but I know that in the past, we’ve
used SEPA to require the applicant to pay these fees, and now it’s just in our code. That’s something the Engineering
Division sorts out. The applicant might be able to speak to that.
Hearing Examiner Rice:
Leaving that, the Engineering Department asked that the utility easements be honored. Do we
have any idea where on the site plan such utility easements might be located?
Ms. Coccia:
I think that was a standard default kind of statement. I didn’t notice anything; I didn’t see anything in the site
plan . . . Let me take a look here at Exhibit 9, the site plan. I don’t see any easements shown at all, actually. So, I would ask
the applicant if he knows of any easements on the property.
Hearing Examiner Rice:
Okay.
Mr. Leiser:
Do you want me to answer that now?
Hearing Examiner Rice:
Let me ask some more questions of staff, and then we’ll come back to that question. I also note
that in your staff report you said there are no critical areas adjacent to the property, but the slope adjacent to the property is
50%. Isn’t that a critical area?
Ms. Coccia:
So when this application came in for a critical areas review, that was under our old code prior to the spring of
2005 where it was determined that no critical areas are on or adjacent to the property, so it was issued a waiver. However,
when I was looking at that, I though, wow, that’s a pretty steep slope, and I pulled it up on our Lydar Map and scaled it off.
It appeared to be approximately 50%. That said, I’m not the planner that’s assigned to the building permit, so I’m not exactly
sure where we are on that. I don’t believe that the planner that was working on the building permit changed the original
critical areas determination based on our new code or if she just adopted the one under our old code. But if she changed it, a
geotechnical report would be required if the buildings were within 65 feet of the top of the slope.
Hearing Examiner Rice:
And that’s my question because if we’re talking about reducing a setback basically from the top of
the slope to 10 feet is my understanding, would that be permitted. Because the variance applications that are before us now
have to be decided under current code, regardless of how the previous variance applications were decided.
Ms. Coccia:
Right.
Hearing Examiner Rice:
I guess we need some information about what the required setback is and whether development on
this property would be required to comply with the setback.
Ms. Coccia:
So I would suggest that if we were to approve this variance from Edmonds Way, actually both of them, I guess,
that it should be looked at under our current code. In that case, a geotechnical report would be required in order to reduce the
setback from the top of the slope from 50 feet plus a 15-foot buffer to whatever the geotechnical engineer felt was
appropriate. So I feel like if the applicant and geotechnical engineer could prove that a 10-foot setback is appropriate based
on the soils or what not, that staff would be okay with that.
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Hearing Examiner Rice:
Clearly that would make since, but in order to approve the variance for the street setbacks, don’t I
have to review whether or not adequate evidence is provided to show that it’s going to comply with the critical areas
ordinance?
Ms. Coccia:
Yes.
Hearing Examiner Rice:
So I don’t know. . . From our discussion now, I’m still not clear. If it’s a critical area and if
there’s a greater than 10-foot setback required from the top of this 50% slope, do I need review geotech before I can issue the
variance, itself?
Ms. Coccia:
Okay, not knowing that this project needed a variance at the time of the submittal when a planner would just
say, oh well, you need a geotechnical engineer to write a report saying that you can build close to the slope. So I guess I
could ask the applicant if he’s already working with a geotechnical engineer. If that’s already been done, I’m not exactly
sure, because I’m not the planner working on the building permit. But under the old code, yes, it was a waiver. Under the
new code I would say it was a steep slope.
Hearing Examiner Rice:
Okay. And then let me ask you this. Do we happen to know if the planner working on the
building permit would be available to testify today.
Ms. Coccia:
She has gone home for the day.
Hearing Examiner Rice:
Okay, so the answer is no.
Ms. Coccia:
No.
Hearing Examiner Rice:
I think we’re going to come back to the question of the steep slope. Regardless the slope and the
size and shape of the property are accepted by the City as satisfying the special circumstances inherent on the property,
Criteria 1 for variance approval?
Ms. Coccia:
Correct.
Hearing Examiner Rice:
Okay. On the question of parking. On Page 5 of the staff report you have off-street parking
regulations analysis, and you’re citing the code. It shows that three or more bedroom units require two parking spaces each.
Therefore, this five-unit development with three bedrooms each does require 10, and the applicant has proposed 10.
Ms. Coccia:
Right.
Hearing Examiner Rice:
Do we happen to know, is there any nearby safe on-street parking in case of guests or in case any
one unit has more than two cars?
Ms. Coccia:
When I drove by the site, I noticed it’s on a cul-de-sac. It’s not a busy, developed cul-de-sac. If I was a
neighbor visiting the site or a friend or a family member, I would probably just park on the. . . You know there’s not striped
parking spaces that I actually saw, but I probably would just park on the street.
Hearing Examiner Rice:
Okay, and there are no no-parking signs in that cul-de-sac?
Ms. Coccia:
Not that I saw. I didn’t see any.
Hearing Examiner Rice:
So in your analysis, that nearby cul-de-sac, and the site access from that cul-de-sac, correct?
Ms. Coccia:
Correct.
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Hearing Examiner Rice:
That’s the dead end of 84?
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Ms. Coccia:
Yes.
Hearing Examiner Rice:
In your analysis, there’s adequate or there is safe on-street parking there?
Ms. Coccia:
I didn’t any on-street striped parking, but I would park my car there.
Hearing Examiner Rice:
Is there a rule in Edmonds you can only park where it’s striped? I bet I’m in trouble if that’s the
case.
Ms. Coccia:
I don’t know. I should. Maybe the applicant knows more about the street.
Hearing Examiner Rice:
I’ll ask him also. Now I had some questions about your analysis. On Page 7 under Item D, I’m
not sure I understand what’s being said there. You’ve there’s a wide expanse between the edge of the developed portion of
Edmonds way right-of-way and the property line, which the 2004 staff report argued seems to reduce the need for a 15-foot
street setback.
Ms. Coccia:
Okay, so Meg was the original planner that worked on this project. In her staff report, she argued that
Edmonds Way, the actual paved portion of Edmonds Way, was actually further away from the property line than it looked in
that there’s a discrepancy between where the actual Edmonds Way was paved in relation to the edge of the right-of-way. It
actually feels like Edmonds Way is a lot further away than it would show on this map.
Hearing Examiner Rice:
Okay.
Ms. Coccia:
If you don’t go out to the site, you won’t really understand the feeling of how far Edmonds Way really is from
this property.
Hearing Examiner Rice:
No, I have driven by the site. What I don’t know is, is the City in a position to develop that extra
width of its right-of-way and are there any plans to do so on the horizon?
Ms. Coccia:
I don’t know of any plans, and it wasn’t brought to my attention through the review of the Engineering and
Public Works Departments.
Hearing Examiner Rice:
Now, my main concern on the variance criteria for approval is the final criteria, minimum
variance. I might have just generated this idea myself in my head, or I might have read it someplace in the file, but if the
applicant had fewer bedrooms, fewer parking spaces would be needed. So I’ve heard other variance applications in the City
of Edmonds before in which a theory was inserted such that the applicant could redo their proposal in order to not require the
variance, and therefore, this is not the minimum variance required. Could you address that?
Ms. Coccia:
I think this proposal before you is just one option. I think the applicant could have designed the proposal to
have fewer bedrooms, possibly. But I’m curious what that would do the rest of the site. I’m sure the applicant, in doing the
feasibility, probably came up with several ideas, and maybe the applicant can speak to why this one was chosen above all
others. The minimum necessary, one of the reasons I felt this project met the minimum necessary criteria is that this property
has, one, two, three, four, five sides, and we would treat this as a corner lot in that there are one, two, three property lines that
we would require a 15-foot street setback from. This proposal shows a 10-foot side setback essentially from all property
lines. I just didn’t feel like that was asking too much, I guess.
Hearing Examiner Rice:
You also on Page 8 of the staff report, you cite to it’s being the minimum necessary to preserve
trees. Could you speak to that?
Ms. Coccia:
Right. Let me get a good exhibit here that shows it. I mean, I know there’s some trees shown on the site plan
that the applicant is trying to preserve. Let me go through here and find a good exhibit. Do we have a landscape plan in
here?
Hearing Examiner Rice:
The very last. Exhibit 16 at the back is a conceptual landscape plan.
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Ms. Coccia:
Let’s look at that. Exhibit 16. Now I pulled this from the old 2004 file.
Hearing Examiner Rice:
The variance is for these two parking spaces closest to the corner, right?
Ms. Coccia:
Right. So let’s ask the applicant. This might be an older site plan, but the original variance was approved
because he was trying to preserve trees, and I’m now sure that I have the correct exhibit here for the conceptual landscape
plan because I think the intent was to preserve trees, and this doesn’t really show those trees.
Hearing Examiner Rice:
Sure. Well then, let’s go ahead and let Mr. Leiser speak to that. You can start with the tree issue
or you can start anywhere.
Mr. Leiser:
I’ll start there because I’m going to have a hard time trying to touch every point, I guess. The best exhibit to
look at is going to the site plan on Exhibit 9.
Hearing Examiner Rice:
Which is Exhibit 9.
Mr. Leiser:
So if you look where the two parking stalls are, it shows a dashed line with a 15-foot front setback.
Hearing Examiner Rice:
Sure.
Mr. Leiser:
So to fit my parking within that 15 feet, I would have to shift the stalls to the northwest and by doing so, we
would be removing mature trees that we’re trying to maintain.
Hearing Examiner Rice:
Would that be all four of those trees shown there?
Mr. Leiser:
More than likely because it’s really, you know, we’re going to have to create a surface that’s going to be able to
hold up to the weight, and we don’t want the roots to deteriorate the parking surface and so forth. So we want to try and stay
as far away from the trees but still maintain them.
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Hearing Examiner Rice:
So that’s a 15-foot setback from 84. And aren’t we also trying to reduce a setback from
Edmonds Way at the same, at the other end of the parking stalls? So it would be the same, wouldn’t it?
Mr. Leiser:
Yes.
Hearing Examiner Rice:
Because we don’t have that 15-foot setback with a dotted line, do we? Am I missing that?
Mr. Leiser:
If you look at where it says 15-foot front setback where it angles there, it dashes across.
Hearing Examiner Rice:
I see. There it is. Okay. Okay, so it’s those four trees in particular?
Mr. Leiser:
That we would like to maintain, and that’s the reasoning for the variance on that setback.
Hearing Examiner Rice:
Okay. Mr. Leiser, have you spoken with a geotechnical engineer?
Mr. Leiser:
I do have a geotechnical engineer that I use consistently. I don’t believe that I had any . . Oh no, I believe I did
submit a geotechnical report to the City for building because I do remember now digging test holes on the property. I dug
them myself, so I know that there is some data that has been recorded and/or submitted to the City. Not knowing specifically
if it is touching on the points of the steep slopes, but the slope is a graded slope that grades down to Edmonds Way, which I
guess in my, I don’t know if you want to say educated or uneducated opinion, it’s not really, I guess in my mind, a slope of
concern. I guess that could be argued either way, but it’s really based on a geotech. It’s a slope that’s been a stable slope.
There’s no deterioration of it. It’s been there for days and days. You’d think if it had an issue, you would have seen an issue
just a couple days back when we had five inches of rain.
Hearing Examiner Rice:
Certainly.
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Mr. Leiser:
And I guess, you know, once again, the variance was approved once before. The reason why I’m here today is
because I missed the expiration. So once again, I’m asking for what once before was approved.
Hearing Examiner Rice:
Sure, and I understand that and appreciate the difficulty that puts you in. However, your
applications that are now before us have to be decided under the codes that were in effect at the time. As Ms. Coccia said,
the critical areas ordinance did change in 2005.
Mr. Leiser:
Understood.
Hearing Examiner Rice:
So there are new criteria that may have to be satisfied. What I’m think we’re going to have to do
is we’re, going to have to hold the record open for planning staff to address the issues. Is it a critical area? If not, end of
report. If it doesn’t satisfy the requirements for steep slope as a critical area. . . No, if it doesn’t we’re done. If it does, then
what setback is required and/or what information does the applicant have to provide. I feel like we’re going to have to need
some more information. In understand we’re in a hurry and we’d all like to get this wrapped up, so we’ll make that as fast as
possible, but I think I need more information from the City on that issue, and then the applicant would have to have an
opportunity to respond.
Mr. Leiser:
Would the variance be something that could be approved subject to the City’s interpretation of a geotechnical
report. Because basically the City’s going to interpret whether the geotech satisfies information necessary to build in the
area, so subject to the approval of the City’s report or inspection or review, you’re approval was approved.
Hearing Examiner Rice:
I could fashion a condition like that, and we probably would. But before we even get there, I’d
have to have analysis about whether or not the critical areas ordinance even applies.
Ms. Coccia:
Okay, so two things I was wrestling with. One, this application for a variance was submitted under the current
code, and under the current code, yes, I would change it in the system, yes it is a critical area because it’s on or adjacent to a
slope.
Hearing Examiner Rice:
What’s the cut off? Isn’t the cut off like 30% or 40%?
Ms. Coccia:
Actually 15%, so yes, this would be a critical area under our current code. When he submitted his building
permit application in February, even though the system says waiver for critical areas from 2004, the planner probably looked
at it and said, oh waiver, great, next. Under my review, I would say, definitely, this is a critical area. In doing so, that would
require the applicant, with his building permit, to submit a geotechnical report that addresses the critical areas requirements.
Basically, the geotechnical engineer would have to write a memo and review the soil and the structural and say that he went
out to the site and is familiar with the project and that it’s not going to impact any critical areas off site. He would speak to
the foundation and how those are going to be designed. It’s my understanding that the building department would require a
geotechnical report anyway, so that’s probably what he was remembering. Planning does have different criteria, so it’s just
an addendum to his existing geotechnical report that would talk about the buffer and the slope, if any.
Hearing Examiner Rice:
So are you asserting. . . Are you arguing maybe I don’t need to review this information, it will all
be handled during building permit review?
Ms. Coccia:
It is handled during building permit review. However, it can only go as far as the setback would allow. So
during building permit review, right now, his variances are expired. The street setback is 15 feet. If the geotechnical
engineer found that it was okay, we could reduce the steep slope setback to be flush with 15 feet. He’s asking for 10-feet, so
he’d need a variance.
Hearing Examiner Rice:
He would need a variance from the critical areas as well? Because right now, we’re just talking
about street setbacks.
Ms. Coccia:
Right.
Hearing Examiner Rice:
And that would be a separate variance from a critical area buffer setback.
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Ms. Coccia:
Let me look at the code real quick and see exactly what the language says. One second.
Hearing Examiner Rice:
We might be able to whittle this out today instead of holding the record open. I’m just curious,
Mr. Leiser, what’s your target market for these? Are these rentals or are they for sale?
Mr. Leiser:
They’re rental units. I think one of your questions that I made note on was about reducing bedrooms or so
forth. I have multiple rental units, and a three-bedroom unit is by far the best rental unit. Even if I was to sell, I have both
build to sell and build as rental properties, but even based on sales too, obviously the more bedrooms you have, the better off
it is and the higher value the property and the higher tax base it is for the City and so forth for taxes and everything else. I
guess that touches on that note.
Mr. Leiser:
Another note I took was as far as your question with the parking in the cul-de-sac. The cul-de-sac has probably
got to be the most dead cul-de-sac there is. I mean, it’s like the cul-de-sac is there virtually almost to access my property.
Originally, there was a road that went down to SR-104 prior to them doing the widening of SR-104. When they did the
widening of SR-104, that’s probably when the steep slope was created to create a cut back in the degrees of the bank to have
a safe buffer or slope to SR-104. So I’m sure that engineering was looked at at that time, also, as to what would be a safe
slope for the type of soils that are there in the area so they wouldn’t have a wash out onto SR-104 or . . .
Hearing Examiner Rice:
Yeah, obviously, the City is not interested in that.
Mr. Leiser:
Exactly. But it did have a road down to SR-104, which was then blocked off at the time of the widening, which
then created the cul-de-sac.
Hearing Examiner Rice:
Right. I’m just going to assert, without any special knowledge, that the cul-de-sac isn’t actually
there to provide access to any particular property. It’s there to provide emergency vehicle turnaround access. And that is
required by fire code, most likely.
Mr. Leiser:
Correct.
Hearing Examiner Rice:
And therefore, whether cars may or may not park there speaks to the fire code. But we don’t have
any information on that, either.
Mr. Leiser:
Well the widths of the road, I mean I don’t know if it’s state or city or whichever land, but the cul-de-sac is also
fenced. So the paved area, and then there’s a large buffer between the paved area and the fencing, which is more than enough
area to be able to provide off-street parking or what have you.
Mr. Leiser:
The last note I have. This would be the minimum necessary to maintain the mature trees that we’re trying to
keep on site. It also, the engineering standards kind of drive a lot of building, I don’t want to say issues, but parameters, I
guess, for creating a workable site. I’m still going to have to have my turn around, which I have in there, which is the 30-foot
diameter turn around. By doing so, you know, one meeting the engineering standards, and then two meeting setbacks, I’m
really kind of limited to the amount of space that I have to create a nice project.
Hearing Examiner Rice:
How big is this parcel?
Mr. Leiser:
I believe it’s 13,200 square feet, 13,201.
Hearing Examiner Rice:
So, it’s just over an acre?
Mr. Leiser:
No an acre is 44,000 square feet.
Hearing Examiner Rice:
I’m sorry. It’s just over a quarter of an acre.
Mr. Leiser:
Yeah. And being that the property is an irregular shape with there being five sides. A standard corner lot, I
would have two setbacks, which on this one, I have three. So it’s creating an impact to me to where I have to keep shoving
my buildings farther and farther back.
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Hearing Examiner Rice:
Yeah. I don’t have questions on any of the criteria except for the minimum necessary criteria, and
I’m still struggling with that one. Did you find some critical areas language for us?
Ms. Coccia:
Right, so the minimum buffer. . . So structures can be located near a critical area, but it says that the minimum
buffer shall be equal to the height of the slope existing within the project area or 50-feet, whichever is greater. So I would
say 50 feet in this case. And then is says, buffer reduction. The buffer may be reduced to a minimum of 10 feet when a
qualified professional demonstrates to the satisfaction of the director that the reduction will adequately protect the proposed
development, adjacent developments and uses in the subject critical area.
Hearing Examiner Rice:
Can I get the citation you’re reading from?
Ms. Coccia:
Edmonds Community Development Code, Chapter 23.80.070.A.1.a. And then under 23.80.070.A.2,
alterations. This applicable to this project. Alterations. Alterations of an erosion or a landslide hazard area and/or buffer
may only occur for activities for which a hazardous analysis is submitted that certifies that a) the development will not
increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions. b) the
development will not decrease slope stability on adjacent properties, and c) such alterations will not adversely impact other
critical areas. So when applicants come in with their building permit and they’re meeting setbacks but they’re not meeting
the critical area buffer, they supply us with a geotechnical report that shows that whatever they’re proposing to do can be
done safely and the geotechnical engineer typically writes a geotechnical report for our building department. As part of that,
they will address the sections I just quoted and how it can be built safely and not affect the critical area or adjacent properties.
The code allows the applicant to get up to the property line even. However, we always have setbacks so they can never do
that unless there are no setbacks for the zone.
Hearing Examiner Rice:
Okay, and it sounded like under A.1, the determination would be made by the director.
Ms. Coccia:
Right.
Hearing Examiner Rice:
And under A.2, was there any language about whose doing the review there? Is that engineering?
Ms. Coccia:
Actually, this whole critical areas chapter is subject to review by the director and planning staff does the
review.
Hearing Examiner Rice:
Okay. So then the critical areas issue, how would you recommend that I handle the critical areas
issue?
Ms. Coccia:
Staff would recommend that we add a condition of approval that says that the applicant will need to provide the
Planning Division with a geotechnical report that addresses all these criteria in ECDC 23.80.070.A.2, alterations to critical
areas.
Hearing Examiner Rice:
And also A.1, correct, because he’s requesting to reduce the buffer, as well?
Ms. Coccia:
Yes. Well, yes, we feel that 2 also. . . 1 is done by 2, but yes, 1 and 2. Because in this other section, in 23.40,
it says that there’s a 15-foot setback from the edge of any critical area buffer so it would ultimately be 65 feet. He’d have to
stay at least 65 feet back from the top of the slope if he didn’t want to submit a geotechnical report.
Hearing Examiner Rice:
And I’m looking now, Mr. Leiser, at Exhibit 9, the contour lines. Where is the top of the slope in
relationship to the property boundary?
Mr. Leiser:
I believe the top of the slope would be right on the angled property line down to SR-104. Basically where the
dot is next to F26, which is by the fir trees, the mature trees we’re trying to maintain.
Hearing Examiner Rice:
Yeah, okay.
Mr. Leiser:
So all those dashed lines, I believe, are two-foot intervals, I believe.
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Hearing Examiner Rice:
The line that has circles on it is the property boundary? No the solid line is the property
boundary, right?
Mr. Leiser:
Correct.
Hearing Examiner Rice:
And then, what is the line with the circles?
Mr. Leiser:
The line with the circles is the state fence that I was talking about before. The state basically put in a metal
cyclone fence which basically goes around that property and encapsulates the highway, the state route, and then goes up and
actually encapsulates the whole cul-de-sac all the way up to Highway 99 to where the Gregerson’s homes are.
Hearing Examiner Rice:
Okay, so you’re guessing the top of the slope is the dotted line that crosses the fence?
Mr. Leiser:
The top would basically be where the S is, where it says 60.0241.
Hearing Examiner Rice:
Okay, so yeah, that dotted line, if you follow it, it crosses the fence, and in fact it goes into your
garage, or into your structure. Is that right?
Mr. Leiser:
I wouldn’t say that’s necessarily the top of the slope. I guess that’s just more of a contour line.
Hearing Examiner Rice:
It’s just a contour line, right? And that’s very widely set, so that’s obviously not sloped there. It’s
a 2-foot elevation difference. So then, I don’t know, I’m not a geotechnical engineer. I don’t know where the actually the
top of the slope would be demarcated, but chances are good it’s not that line because that’s too wide.
Mr. Leiser:
Correct. A better depiction would be the next line down, which carries along parallel with the property line.
Ms. Coccia:
Staff would agree with that. That’s the one we would look at when we review a building permit.
Hearing Examiner Rice:
Okay. So can staff submit that recommended condition of approval in writing and give the
applicant a chance to review that? I don’t know if you want to do that by email or whatever and just fax it to me, that would
be fine.
Ms. Coccia:
Sure.
Hearing Examiner Rice:
Mr. Leiser, did you have other information you wanted to offer?
Mr. Leiser:
No, I think I’ve stated most everything I need to.
Hearing Examiner Rice:
Okay, before we turn it over to public testimony, I’m still stuck on the minimum variance issue.
Ms. Coccia:
I think the applicant brought up a good point. There’s a huge fence that encloses most of the property, and
treating the west property line as a street setback doesn’t feel appropriate. But having it be 10 feet, which corresponds with a
side setback feels much more appropriate. I guess I could add that.
Hearing Examiner Rice:
And that speaks to the fact that it’s not adjacent to an actual street? I’m not sure what you’re
saying.
Ms. Coccia:
I guest to Number 10 because it corresponds to a side setback and because when you are going our there it feels
like a side setback. If you’re up near the fence, you don’t really see the street.
Hearing Examiner Rice:
It actually functions as a side setback, in other words?
Ms. Coccia:
Right. Thank you.
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Hearing Examiner Rice:
Okay, well that’s helpful.
Mr. Leiser:
And generally a corner lot, your property line is within, I guess it varies, but maybe within 5 or 10 feet of the
road or so forth. But the road is probably, as a guestimate, like 30 feet or more away. So there’s actually already a large
setback. So as you say, I mean it pretty much already acts as if it is.
Hearing Examiner Rice:
I understand, but I have to apply the code to your property line and not to the right-of-way outside
of your property line, which the City could or could not choose to use or the state could or could not choose to use for
whatever purpose at some other time. Although the right-of-way adjacent to 104 seems much less likely to ever be utilized
for any purpose. It’s a steep slope, so what are they going to put on it? All right, let’s open it up for public comment.
Please.
Mr. Rutledge:
Al Rutledge, 7101 Lake Ballinger Way, Edmonds. There’s two or three items. The first one is, you have an
easement, the City of Edmonds and the property owner, if they make a change, that easement can go out eventually, so that
easement should be worded differently. It should be worded as an easement change.
Hearing Examiner Rice:
Do you mean the condition about the easement?
Mr. Rutledge:
Well, I’ve been involved with property two or three years ago, and I have property on an easement.
Easements today, they tell you not to buy property years ago. Today it can be changed to easements so the person that owns
an easement can fight in the court. It all depends on how that is filed in the court. The language, that you can always change
that back. Sometimes, years ago, when you bought a piece of property, you might have a road go down with four homes off
there, but it says that the owner back in 48, what was it 48, that decided he had a lot there on the corner, but the easement, he
sold all the lots, but if they finally ever decide to sell that, they can take the easement back off. So I don’t know what the . . .
the easement would be the only thing is it should be changed where, unless easement change, if somebody makes an
easement change, a person can do, you know, what he wants with it.
Mr. Rutledge:
The other thing is on the building application process, this one came back in 2004. There’s been changes in
the City. If you allow anything from 2004 up to date, think this whole process should be the same way. If you run against a
thing here that they have changed, and you’re going with the applicant on that, that should be for the whole complete process.
Otherwise, he should file all over again and put everything in at one time. So I know what it says here, you’re continuing his
date until February, but I do think that has to be looked like.
Mr. Rutledge:
The other concern I have with the building heights. I went through here. He has three floors. I did find the
second floor, that’s on A.3 and A.5, and it’s A.4 in the packet, but I did find it in the page here. It is in here. Then this roof,
he’s got 4 to 8 feet. He doesn’t clearly say how high his roof’s going to be. You can go 25 feet. There’s places in the City
here that have 30 feet. I mean they go they put their roof on the corner like he’s trying to do, but he doesn’t want to get into
the spot where he’s at 32 or 34 feet here. But it doesn’t say. . . He says here four to eight feet here on the roof, and that’s on
Page A.6.
Mr. Rutledge:
The last issue I have is since this is a rental unit, they should be reporting to crime watch in that area to make
sure that when people rent their facilities, they know what the report is on the crime watch. They’re all different. That just
protects the renter for renting the unit, also, at the same time.
Hearing Examiner Rice:
Thank you.
Mr. Rutledge:
That’s about Edmonds Way is 104, it’s a busy street, too.
Hearing Examiner Rice:
Thank you. Mr. Leiser, where is the duplex on your site plan?
Mr. Leiser:
It is 24118 A and B.
Hearing Examiner Rice:
Okay. Now, I understand this application is in a strange posture because it was previously
approved. But again, because the variances that were previously approved have expired, they have to be reapproved under
the current regime, which has changed no only in the code, but in the Hearing Examiner. So things have changed, and I
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remain concerned about the minimum necessary criteria, which is the last one. So again, I’ve decided other variances in the
City of Edmonds where people were required to change their site plan, or that’s not true, people were not require to. But the
variance was denied because it was possible to remove the need for a variance by changing the site plan. In this case, there’s
clearly a hardship, I mean there’s clearly a special circumstance, all the other criteria are clearly satisfied from what I’ve read
in my opinion. But I don’t feel that the minimum necessary criteria has been demonstrated to be satisfied. So I just want to
ask on the record again, if you guys want to try again.
Ms. Coccia:
So maybe the applicant can talk about the length and the width of the duplex building. Also the property at
24112 and maybe the market and how . . . (The tape changed at this point.) Because if the variance isn’t granted, then bulk
of the buildings will need to be reduced by about at least five feet, I think.
Hearing Examiner Rice:
I understand that, and I appreciate that a great amount of thought has gone into this.
Unfortunately, I don’t have “no harm no foul” authority. I only have “it has to satisfy the code” authority, and that’s why I’m
kind of going over and over this point because I have to apply the rules as they’re written. And the rules say it has to be the
minimum necessary variance from the code to allow basically reasonable use. The code doesn’t require and applicant to be
afforded the most profitable use of his property. It requires him to be provided the reasonable use of his property. That’s the
problem.
Mr. Leiser:
I think a lot of it has to do with creating workable, drivable access. To be able . . . We actually looked at
different designs.
Hearing Examiner Rice:
Okay.
Mr. Leiser:
But this was by far the most appropriate way to locate the houses in a manner that could still meet the parking
diameter minimum with the location of the houses.
Ms. Coccia:
See it looks like on Exhibit. . . I’m just looking at the floor plans here for those two buildings to get an idea of
how wide they are. It looks like, if you look at the floor plans for 24118 A and B and 24112. . .
Hearing Examiner Rice:
Can you tell me what sheet that is?
Ms. Coccia:
Sorry, I kind of taped over it. It looks like A.4 possibly.
Hearing Examiner Rice:
Second floor plan to 118, 112 and 116?
Ms. Coccia:
Yes. It looks like they’re only 20 feet wide in most spots.
Hearing Examiner Rice:
And what’s only 20 feet wide?
Ms. Coccia:
The second floor plan for 24112 and 24116 and 24118. Maybe the applicant can remind us how many square
feet these units are.
Mr. Leiser:
The units’ square footage sizes are based on the site plan. The square footages are within a norm, if not below,
square footage size for a three-bedroom unit. I guess I’d also note, we oriented the houses in such a way to maintain as many
as the on-site mature trees. If they oriented them in other ways, we’d also be losing more trees, which I think is a large
consideration to consider being as many projects wipe out as many trees as possible. In this way, we tried to maintain as
many on-site mature trees as we could with the orientation of the buildings.
Hearing Examiner Rice:
So what are the square footages?
Ms. Coccia:
So in Exhibit 9, there’s a chart right above the title “Site Plan,” and it says building area and square feet. And
you have the building areas for each of the four buildings. It looks like Building 1 is the largest. That must be the duplex at
2,944 square feet. That’s right, so Building 1A is 1,472 square feet. Building 1B, the other part of the duplex, is 1,472
square feet. Building 2 is 1,472 square feet. Buildings 3 and 4 are 1,472 square feet. So each dwelling unit is less than 1,500
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square feet in area, so the applicant has a better idea of if that’s a standard housing size, if that’s smaller than normal, if it’s
way bigger than normal. I’m not really sure, but the applicant . . .
Mr. Leiser:
Like I said, I have other rental units. Most of my three-bedroom units are 1,600 square foot plus. Basically, we
used the same design for each building. With regards to the duplex, we didn’t have. . . If we were to maintain the two-car
garages on there, it would have expanded them beyond our property lines. And then, also, it would have created another
issue with parking turn around.
Ms. Coccia:
So I guess staff feels that a 1,472 square foot dwelling unit is not an enormous size for one dwelling unit and is
pretty minimal. I would say that.
Mr. Leiser:
And also let’s look at other designs that we designed. We weren’t needing the amount of units that we could
build for the lot size, square footage, which wouldn’t be in the best interest of meeting the land use and so forth to make the
most amount of use out of the size land that you have available to decrease sprawl and so forth.
Hearing Examiner Rice:
What is the minimum density.
Ms. Coccia:
Sure. So this project is in the RM-2.4 zone, so that means the minimum lot area per dwelling unit is 2,400
square feet.
Hearing Examiner Rice:
And is there a maximum for that area per unit?
Ms. Coccia:
No.
Hearing Examiner Rice:
Okay. Okay, anything further.
Ms. Coccia:
I don’t have anything further.
Hearing Examiner Rice:
Okay, anything from the applicant?
Mr. Leiser:
I guess to add, once again, that we’re trying to maintain the mature trees on site and meet the allowable and
appropriate number of units for the land.
Hearing Examiner Rice:
Actually, that’s the question I was asking for. 2,400 square feet doesn’t answer my questions. Is
there a range of units that’s allowed in this zone?
Ms. Coccia:
Well, I just took the number 13,201 square feet divided by 2,400 square feet per dwelling unit, and I came up
with 5.5 as the maximum number of dwelling units.
Hearing Examiner Rice:
Got it. The zoning code or the Comprehensive Plan designation, do they have a range of limits of
unit numbers?
Ms. Coccia:
No. Well, the Comprehensive Plan has a land use table that shows the comparable land use designations, the
zoning with the comp plan designations. This is consistent with the comp plan designation.
Hearing Examiner Rice:
Okay, but neither plan calls for a maximum or minimum number of units for the zone?
Ms. Coccia:
No.
Hearing Examiner Rice:
And I assume neither plan addresses square footage per unit.
Ms. Coccia:
Right. Well, the zoning ordinance. . .
Hearing Examiner Rice:
I don’t mean lot square footage, I mean residential unit square footage.
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Ms. Coccia:
That is correct. Yes, you’re right.
Mr. Leiser:
I guess the only other thing to add would just be based on the ADB review. They had many positive comments
about the design and orientation and usage of land and so forth that were all positive comments.
Hearing Examiner Rice:
Okay, I’ll be sure and look at that ADB report very closely.
Ms. Coccia:
I have one last question. So staff is going to draft up a condition related to the geotechnical report that is going
to be requested. I noticed that your geotechnical engineer on Exhibit 9 is Liu and Associates, and we’re very familiar with
their work, so I’ll be drafting up the condition, and I can just email that to you, Shaun?
Mr. Leiser:
Yes, that’s fine.
Ms. Coccia:
And then I’ll email it to you, too.
Hearing Examiner Rice:
After you two come to an agreement on that. Did you have any questions or concerns about the
other conditions of approval that are recommended?
Mr. Leiser:
No.
Hearing Examiner Rice:
Okay. Then, I’m not actually going to hold the record open for that. I’m just going to allow you
to submit that after. . . I mean, it’s entered. We’re entering that as an additional recommended condition of approval, it’s not
an exhibit. So you can just submit that to me as soon as possible.
Ms. Coccia:
Okay, I will do that.
Hearing Examiner Rice:
Okay, then we’ll close. We’re adjourned. Thanks everybody.
Ms. Coccia:
Thank you.
Mr. Leiser:
Thank you.
I TESTIFY THAT THESE VERBATIM TRANSCRIPTS ARE COMPLETE AND ACCURATE TO THE BEST OF MY
ABILITY TO TRANSCRIBE THE PROCEEDINGS.
__________________________________________________________ ____________________________________
Karin Noyes, Transcriber Date
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