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2007-06-21 Hearing Examiner MinutesCITY OF EDMONDS VERBATIM TRANSCRIPTS OF HEARING EXAMINER HEARING File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21.) 2007 Ms. Ainsworth Taylor: My name is Julie Ainsworth Taylor. I'm a member of the firm Toll, Rice, Taylor. Our firm has been appointed by the Edmonds City Council to provide land use hearing examiner services for land use applications and appeals in the City. It's about 3:10 in the afternoon on Thursday, June 21, 2007. We've got three items on the docket today that are all consolidated as one interest matter. The first one is File Number AP-07-1, which is an appeal by Lora Petso of the Mitigated Determination of Nonsignificance issued for a 27-lot plat and PRD. We have a second matter on the docket, File Number AP-07-2, the appeal of Heather Marks and Cliff Sanderlin, also the MDNS for the plat. Finally, we have File Numbers P-07-17 and PRD-07-18, which is an application by the Burnstead Corporation for a 27-lot preliminary plat and planned residential development of 5.61 acres in the City of Edmonds located at 23708 — 1041 Avenue West, which is in a residential (RS-8) zone. Ms. Ainsworth Taylor: So if we could just start out by introducing yourselves and spell your last names so we can know the parties of record on this matter. Ms. Brown: I'm Tiffany Brown, B R O W N, and I represent the applicant, Burnstead Construction Company. I have my consultants here to answer any questions about this hearing. Would you like me to introduce them, as well? Ms. Ainsworth Taylor: Yes, please. Mr. Lutz: Jerry Lutz, an attorney with Perkins Coie, L U T Z. Ms. Hernandez: Nichole Hernandez, civil engineer with the Blue Line group. Ms. Enenhisel: Louis Enenhisel, Wetland Ecologist with Wetland Resources. Ms. Ainsworth Taylor: Can you spell that? Ms. Enenhisel: E N E N H I S E L. Ms. Ainsworth Taylor: One more time. Ms. Enenhisel: E N E N H I S E L. Chesterfield: My name is Lane Chesterfield of the City of Edmonds. I'm the stormwater engineering program manager. My last name, C H E S T E R F I E L D. Ms. McConnell: Gene McConnell, M C C O N N E L L, City of Edmonds acting engineering program manager. Mr. McGrady: My name is Patrick McGrady, M C G R A D Y. I'm a transportation engineer with Reed Middleton. Ms. Ainsworth Taylor: And Reed Middleton is acting as consultant to the City on this? Ms. McGrady: Yes. Ms. Stewart: I'm Karen Stewart, senior planner at Reed Middleton, and I'm the project planner for this review. Ms. Cunningham: I'm Diane Cunningham and I'm from the Planning Department. Ms. Ainsworth Taylor: And the appellants on this matter? Ms. Petso: I'm Lora Petso, last name's P E T S O. Ms. Marks: I'm Heather Marks, last name, M A R K S. Ms. Ainsworth Taylor: Will Mr. Sanderlin be joining us today? Ms. Marks: He's back there; he's not going to come to the stand. Ms. Stewart: Madame Hearing Examiner. There are a couple of additional City staff; individuals in the audience who did review these applications. I'm wondering if you would like to include them at this time. Ms. Ainsworth Taylor: Yeah, I would put add them when they come up and talk. Go ahead. Ms. Stewart: We have Brian McIntosh, M C I N T O S H. He's the Parks and Recreation Director for the City. And John Westfall, W E S T F A L L, Fire Marshal. And that last gentleman? Ms. Cunningham: Don Fiene, Assistant City Engineer. Ms. Stewart: Don Fiene Ms. Cunningham: F I E N E, Assistant City Engineer. Ms. Stewart: And have we missed anybody else from the City staff who will be testifying today? Okay, I believe that's everyone. Thank you. (I CAN'T HEAR WHAT THEY ARE SAYING THROUGH THIS SECTION AT ALL. Ms. Ainsworth Taylor: Okay. I do need to open up with one thing, a disclosure statement for myself. Along with my contract with the City of Edmonds and other cities and counties throughout the State, I'm in a contract with the State of Washington, working with the Puget Sound Growth Management Hearings Board. Ms. Petso, one of the appellants, did file a ?9 with the Board. The case has been closed and is no longer open for the Board, and I participated in no way in that decision at all. I just wanted to disclose that, if Ms. Petso has any objections or any parties have any objections to the ?? of this hearing to address it. Ms. ??: You didn't participate in the Growth Management Hearings Board? Ms. Ainsworth Taylor: I did not in the ?? of that decision because the Board Members ?? their own decision. I'm aware of your matter. I'm aware of the facts behind the matter, but I had no decision ?? before this. Ms. ??: Did you do research on the matter? Ms. Ainsworth Taylor: No, I did not. Ms. ??: Okay. What were you're duties? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: My duties with the State is I serve as a ?? for the board, and I do assist in research ... (I can't hear what she is saying here at all.) Ms. ??: So you didn't research ... Ms. Ainsworth Taylor: No, I did not. Ms. Ainsworth Taylor: So seeing as there is no objection to .... We can go ahead and proceed. THERE WAS SOME DISCUSSION ABOUT THE MICROPHONE AND WHETHER OR NOT IT WAS ON. Ms. Ainsworth Taylor: In doing this matter, having both the appeals and the plat applications before us at the same time, I would like to go ahead and set up the hearing, just have the City do their presentation first on their review of the plat and how they deal with compliance of the codes and what processes they went through in developing that review. In other words, make a presentation on that. Then I will have the applicant give their presentation and do whatever supplementation of what the City provided encountering any further information on that. That will set the grounding of the facts of the matter so that then the environmental analysis that was done and the concerns of the appellants we'll have a clear understanding of what's going on instead of just jumping into the appeal portion of the matter. So is everybody clear on that? Ms. Petso: Does that mean that for all three matters today, all I need is one set of exhibits and one opportunity to make my appeal, and then it would apply to the PRD, the subdivision, too, to the extent of the ?? matters. Ms. Ainsworth Taylor: So you want to address both your appeal and the actual underlying plat, as well? Ms. Petso: Well, yeah. Otherwise, I would have to go through some of the material twice. Ms. Ainsworth Taylor: There's no need to go over it twice. You can make one single presentation and you can counter ?? Ms. Ainsworth Taylor: What I would like to ask for now, since there's a lot of people in the room and a lot of people will be talking or addressing me. Everybody who plans on providing testimony, testifying, you may. If you could go ahead and stand right now, and we'll do a group oath so everybody's sworn into testify under oath. If anybody's going to provide facts or analysis or comment probably should. So raise your right hand. Everyone hereby swears and affirms the testimony you will be giving today will be the truth? Everyone responded positively. Ms. Ainsworth Taylor: Thank you. You can have a seat. Anybody else who did not take the oath who decides later on when they hear things that they'd like to testify, please just let me know on the honor system basis a little bit, that you didn't take the oath and we can affirm you at that time. When you are speaking, I would like you to go to the podium because I think that mike wise, the tables don't have mikes on them, but the staff it looks like there is a mike on each one. Okay, so you will need to go to the mike to make your presentation, and it appears there are mikes on the tables. The same, of course, applies to the appellants when they make their presentation. If you're a member of the public, when you step forward to the mike, please give your name and your address, so we can assign that, in fact, you came. Ms. Ainsworth Taylor: So let's start actually with some of the exhibits that we've received from the City so far so that everybody knows how the exhibits are being handled by me and so when you make reference to them we can all get on the same plane. From the City I have already received Exhibits in regards to the plat, it, being proposed by Burnstead and the SEPA appeal uphold from Ms. Petso and Ms. Marks. In regards to the plat, I have a staff report prepared by the City and it has 16 separate attachments to it. These should be available in your packets, as well. I believe the staff report is Exhibit A, which has the corresponding exhibits behind it, 1 through 16. In the SEPA appeal, I also have the staff report, and labeled the appeal Exhibit A and distinguish that some the exhibits are separate from those of the plat and some of them may be dual exhibits. Along with that staff report, there were nine attachments to that staff report. In addition to that, labeled as Appeal Exhibit B, I have a letter dated June 11, 2007 drafted by Perkins and Coie in response to the appeal issues. With that there were six separate exhibits. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: And then in addition to that, on the appeal today there is it looks like another copy of the June 111 letter, so I already have that submitted into the record. I will just set that off to the side. It looks like I have enlarged versions of the plat maps and design maps for the plat. I am assuming these are the same ones as the reduced versions within the plats. Ms. Cunningham: Yes. Ms. Ainsworth Taylor: So these are just enlarged and they will be referenced as enlarged attachments supplementing those smaller attachments. Then I have an aerial photo of the map. Can you explain the context of the aerial photo? I thought there were some aerial photos in the exhibit already. Ms. Stewart: This is Karen Stewart. This is an exhibit that we were hoping to display today. We weren't aware that ... Ms. Ainsworth Taylor: So this is for ?? purposes only? Ms. Stewart: Correct. Ms. Ainsworth Taylor: Any objections from the applicant or the appellants on the use of this as an enlarged view of an exhibit to demonstrate the property? Ms. ??: I do have to ask that you don't have any electronic ways of showing our materials. Ms. Ainsworth Taylor: I know your objection, but also that problem could be rectified by you calling ahead to the City and letting them know that you needed equipment. That's kind of the usual course unless you have your own equipment that you bring with you. I understand your objection, but a little preparation would have been better on that. Ms. ??: On the exhibits, I prepared, I believe I included their map as part of my Exhibit 2, so I obviously can't object to having it used today, but I did want to let you know. I also can at least tell you where I obtained the map from so there's some context to it. I obtained it from the City's grant application packet for the half million dollars from the State to acquire the portion of the property that the City bought. Ms. Ainsworth Taylor: Thank you. Okay, Ms. Stewart, if you want to go ahead and make your presentation. Ms. Stewart: This is a proposed consolidated application involving the formal plat, as well as a planned residential development. The application is to divide, subdivide a 5.61 acre site into a 27-lot subdivision. That's in the RS-8, single- family residential zone. Consistent with the City's procedures, these consolidated applications have already been at a public meeting before the Architectural Design Board, and I believe that you have the findings of that Board. In the staff report, it's Attachment 10. Ms. Ainsworth Taylor: And what were the findings of the Board in that matter? Ms. Stewart: The Board recommended approval of the proposal with a number of conditions. Ms. Ainsworth Taylor: I believe there was four conditions that they ... Ms. Stewart: That's correct. Would you like me to read into the record the actual conditions? Ms. Ainsworth Taylor: Please. Yes, I do. Ms. Stewart: The Architectural Design Board reviewed the proposed PRD subdivision on May 2, 2007 and recommended approval of the project with the following four conditions. Number 1 — A variety of materials or building forms must be used on all sides of the homes. Number 2 — Building plans for individual lots must be evaluated at time of building code application review for consistency with ECDC 20.35.060-Design Criteria. Number 3 — The conceptual landscape plans shall Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 be implemented and the plantings shall be maintained. Number 4 — The Design Board would support the inclusion of a secondary street setback for non -habitable portions of the building to allow porches and other entryway type features to project within 15 feet of the street property line. Ms. Ainsworth Taylor: Okay, I missed that. Ms. Stewart: The fourth condition? Ms. Ainsworth Taylor: Well, the four conditions, I have a variety of materials, building plans for individual lots evaluated at time, site plan consistent with maximum coverage, 35%, and conceptual landscape plan implemented. That's the only four that I have in the decision. Oh, that's the staff report. Sorry. Ms. Stewart: There was a modification at the public meeting. Ms. Ainsworth Taylor: Okay, that's actually Exhibit ??. The actual decision of the Design Review Board. Ms. Stewart: Oh, correct. I apologize. That's right. Ms. Ainsworth Taylor: I was paying attention. That's the staff report. Ms. Stewart: And then after the findings, after that meeting, the applicant did submit a letter, and I may need a little help, 1 believe it's Attachment 12, it's the letter signed by the ?? Group, representative for the applicant dated May 9, 2007. Ms. Ainsworth Taylor: Dated May 7th, received May 121 Ms. Stewart: Okay, that requests modification of their proposal consistent with this Condition 4. Ms. Ainsworth Taylor: And that's the reduced front yard setback from 25 to 15 feet? Is that what you are referencing there? They had said to 20 feet, and then they wanted 15. Ms. Stewart: Correct. For the non -habitable portions. For the porches and entryways, and this would allow some modulation of the building and some flexibility in design, show some variation as you headed down the street. Ms. Ainsworth Taylor: This is varying the streetscape ??, Ms. Stewart: Correct. And allowing for different housing types design, too. Ms. Stewart: Staff also conducted a review of consistency of these proposals with the City's comprehensive plan, and I have a staff report that's discussed and put together goals and policies related to residential development. There's a specific policy addressing planned residential development, and then the goals and policies related to vegetation and wildlife were evaluated. These proposals compared and staff determined that the project would comply with the residential development goals and policies of the City's comprehensive plan, as well as those related to preservation of vegetation and wildlife habitat. The latter one we'll be discussing more as we get into the issue of the SEPA appeal, but in general, the existing trees on the site consistent with the MDNS conditions are recommended to be preserved to the greatest extent possible. Ms. Ainsworth Taylor: And these are the trees within the northeast corner of the site, contained within Tract E that you're referencing? Ms. Stewart: Correct. Ms. Ainsworth Taylor: And this was the heaviest concentration of trees it appears by your preliminary plat. Ms. Stewart: That's correct. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Stewart: We also evaluated compliance of the proposed actions with Chapter 20.35 ECDC, which addresses planned residential development. In particular, there's decision criteria for approval of planned residential developments, reference to what the Architectural Design Board considered and ECDC 20.35.060, regarding design criteria for single-family developments of this type, as well as A-3 in this section deals with minimum impervious areas and advocates shared driveways. The subject applications propose two such shared driveways. Criteria A-4 requires open space of at least 10% of the entire site, and the applicant is proposing 25,185 square feet of open space, which slightly exceeds the required requirement, which would be 24,423 square feet. And then another criteria relates to preservation of the site natural features such as the woodlands, which we just mentioned the growth of trees in the northeast corner in particular. The applicant is proposing to retain 64% of the existing trees on this site in an open space tract. Ms. Stewart: The applicant is also proposing alternative standards that affect building setbacks. That's outlined on the site plan. They're proposing side setbacks. What would normally be required would be 7.5 feet, and they are requesting allowance down to 5 feet. The street building setbacks, as modified by their proposal, typically would be 25 feet, and with this proposed PRD, allowing 20-foot street setbacks, with the additional allowance for the porches and entryways of 15 feet. Ms. Ainsworth Taylor: And the rear yard setbacks? Ms. Stewart: The rear yard setbacks would be maintained at the 15 feet. The proposed lot sizes would vary from 5,700 square feet up to 8,361 square feet. Lot widths would range from 60 to 70 feet. Ms. Ainsworth Taylor: And this varies from the RS code requirements? Ms. Stewart: That's correct. This would be under the alternative standards, PRD alternative requests, consistent with ECDC 20.35.030. The criteria for allowing these alternatives relates to the proposal's conceptual landscape plan, which is providing more landscaping and greater buffering from the adjacent areas. Efficient and safe circulation, the proposed new neighborhood collector terminating in a cul-de-sac is proposed to be a 50-foot right-of-way, and this would serve the 27 new homes and meet public safety requirements without significantly affecting the existing traffic patterns in the area. Ms. Ainsworth Taylor: And the internal street structure is a 50-foot wide right-of-way, inclusive of sidewalk, planter strips, design, or ... Ms. Stewart: I believe so, but I might let Patrick answer that. Would you like the answer right now, or ... Ms. Ainsworth Taylor: Yeah, Go ahead. Step up to the microphone. Basically, Ms. Stewart mentioned that the internal road system would be a 50-foot right-of-way. Is that inclusive of the design standards? Is that 50-foot right-of-way inclusive of the sidewalk, planter areas, how is the City street design standards for this residential. Mr. McGrady: Yes, all of the public improvements to it would include sidewalks and the curbs and any buffer area that would be between the curbing and sidewalk. That would all be within the City's right-of-way, yes. Ms. Ainsworth Taylor: And I did note while you were standing up there, I did note that in the file there was reference to on -street parking, specifically made available within the plat; 14 parallel parking spots. I am unsure exactly where those parking locations were, you know whatever I'm missing. Mr. McGrady: I know what you're referencing, but I can't tell you off the top of my head exactly where they're located. Ms. Ainsworth Taylor: Can you tell me what document that you're looking at? Mr. McGrady: I'm looking at Sheet 105 of the preliminary plat. Yes, that same one. And, if you look along the edge of the roadway, that borders Lots 22, 23, 24, 25, 26 and 27, so they're all on the inside of that U shape. That's the area of the parking. Ms. Ainsworth Taylor: And that will be designated as a parking area there? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. McGrady: Yes. Ms. Ainsworth Taylor: Okay. Ms. Stewart: We are reviewing criteria for establishing alternative development standards. Next, is architectural design, which we've already discussed. The Architectural Board ahs recommended approval of this project, the proposal, finding that the proposed residence would meet the criteria. Regarding exterior setbacks, they are proposed to be maintained within enhanced landscaping consistent with the landscaping plan. Reduced visual impact, the utility lines will be buried consistent with ECDC 18.05. The landscaped and open spaces would also serve to reduce visual impacts. Ms. Stewart: The next criteria is preservation of natural features. The majority of the existing significant trees will be preserved in a common open space. Ms. Ainsworth Taylor: Would that be dedicated to homeowners in this location? Ms. Stewart: Correct. In a little bit, I will talk about the open space and recreation components of this proposal. Open space will be used in a couple of different ways. The next criteria is reduction of impervious surfaces. Minimization of the road area and building footprints by the clustering would result in the overall reduction of impervious area for the proposed development as compared to a standard subdivision. So with that, staff believes that all the PRD alternative standards approval criteria have been met. Ms. Stewart: Next, turning to decision criteria for PRD's, ECDC 20.35.050, and I am in the Staff Report, Page 12, for those who are following along. The PRD needs to be consistent with five decision criteria. The staff, in doing our evaluation, found that Criteria 3, Criteria 1, and Criteria 5 are met by this proposal. Criteria 1 relates to the Architectural Design Board's review of the proposal for compliance with 20.35.060 in the code, calling for design review of these single-family projects. Criteria 3 is met by the proposal, including two shared driveways, and Criteria 5 is met with the existing growth of large trees in the northeast corner of the site that would be set aside as open space. That was the design criteria. Ms. Stewart: Next are public facilities, and this is proposed residential development, site plan and vicinity map shows that it's surrounding, in general, on the west and south by existing residential development. There to the southeast is an area that's a cemetery, Westlawn Memorial Park, I believe it's been named. Immediately adjacent to the east of this subject property is the old Woodway Elementary School facility, which will eventually be developed into a City park. To the north of the parcel, on your aerial photo depicted as Parcel B, is a treed area that is not subject to this particular application but does have existing vegetation. Ms. Ainsworth Taylor: And would that be an easement area? Ms. Stewart: Correct. Ms. Ainsworth Taylor: And it's vegetated, it's not like a transmission line? Ms. Stewart: No, I'm not aware that there's a transmission line in there when I visited the site. The public facilities are available in this area because of the existing residential development, so water and sewer, this is an area within the City limits, so it would be served by public facilities. One thing that would look a little different, perhaps, would be the underground utility wires in the area. Ms. Ainsworth Taylor: Is most of the surrounding area now underground or exposed wiring? Ms. Stewart: I'm not sure. I'm looking at our engineers. Mr. McGrady: There's a fair amount still overhead. Ms. Ainsworth Taylor: So it's in the process of being ... Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Stewart: Yeah, new development consistent with the City code now would require undergrounding of the wiring. Ms. Stewart: The development is proposing to construct a new public roadway with a cul-de-sac, and would be responsible to contain stormwater on site, as well as provide an active recreation area to serve the residents of the new neighborhood. As part of their, and they'll probably elaborate on the types of homes that they're planning on constructing, it's described in some of their materials that they would be energy efficient homes. A perimeter design and enhanced landscape area is proposed at the entry, as well as along the perimeter to assist in providing separation from the adjacent areas. Ms. Stewart: Another important criteria for PRD's is to provide open space and recreation. The proposed site plan indicates the creation of four open space tracts, and Tract C is in the center of the site and this would also be the proposed location for a future stormwater vault. That would be subgrade, and then above that would be located the active recreation compliment of the proposed development. A conceptual landscape plan shows that this area would consist of a tot toy, several benches, a picnic table, and a paved walking area to serve the neighborhood. It would be maintained by the new homeowners association. Ms. Stewart: Streets and sidewalks. The proposed PRD subdivision would necessitate construction of a new neighborhood collector. The development would be served by 5-foot wide sidewalks and, as we already had discussed, 14 on -street parallel parking spaces in an 8.5-foot width parking lane on just one side of the street. It would terminate at proposed Lot 26, before it would get into safety considerations of the turnaround for a fire truck in towards the cul-de-sac. Ms. Stewart: So staff, in reviewing these decision criteria for PRD, have found that the proposal does meet these criteria, with conditions as recommended by the Engineering Department and the Traffic Engineer. Ms. Ainsworth Taylor: Are those incorporated in your conditions of approval noted in the Staff Report? Ms. Stewart: Yes, they are. Ms. Ainsworth Taylor: Could you point to which ones those are? Ms. Stewart: It's on Page 3 of the staff recommendation, and I believe it's all of the conditions, with the exception of the SEPA and MDNS, those conditions are ... Ms. Ainsworth Taylor: You'll come to the MDNS ... Ms. Stewart: Correct. Correct. Ms. Ainsworth Taylor: Was there separate documents submitted in the exhibit, because I can see it basically setting forth from transportation, their recommendations? Ms. Stewart: Those have been combined in the Staff Report. There is ... Ms. Ainsworth Taylor: They must have sent an internal memo saying, this is what we recommend as conditions. That's what I'm looking for. Ms. Stewart: Right. That's two places. There's Attachment 15 to the Staff Report that are the traffic comments, and then there's the engineering requirements for plats from the Engineering Department. Ms. Ainsworth Taylor: What I have is Exhibit 15, which was submitted to me at a later date. At the original time, it wasn't available, at time of valing. I have a memorandum from Reed Middleton, with a letter attachment from Transportation Engineering Northwest. Ms. Stewart: Correct. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: But I'm not seeing laid out condition conditions, like Condition 1, Condition 2. I'm seeing more just general comments to responses to public comment that was raised on the traffic issues, and then I've seen a statement saying the traffic study's satisfactory. I don't see our conditions of approval are, streets will be designed to City of Edmonds residential standards, blah, blah, blah. Ms. Stewart: Where that is detailed is in the Engineering Division Report, which is listed as Attachment 14 to the Staff Report, which is a matrix. Item 3 lays out the required street improvements, and there's 6 items under Item 3 that are required to be features of the street engineering for this proposal. Item 4 addresses the requirement for the street turnaround, in this case a cul-de-sac, to be consistent with adopted City standards. Item 5 addresses sidewalks, and Number 6 addresses street lights. And then Item 14 does address providing street signs, so it would be contained in that attachment, the requirements. Ms. Ainsworth Taylor: Okay. Great. Thank you. Ms. Stewart: Uh huh. Then I'm turning to Page 13 of the Staff Report, compliance with the subdivision code, which is Chapter 20.75 ECDC. I believe there's seven items here that were relevant to this project, or at least needed to be considered. First of all is the environmental. The critical areas ordinance will ensure that environmental resources are being protected in the City of Edmonds, and one of the things that we'll certainly be talking about with the SEPA appeal will be the off -site landslide hazard area that is located on Parcel B of your aerial photo so that EPA easement property. So we're talking off the northwest corner of this site. The City has asked for the identification of the toe of the slope, and the applicant is proposing a 15-foot setback for that lot, the proposed Lot 11 of the site plan, there would be a 15-foot setback both in the north, as well as on the west. This would maintain at least a 20-foot setback from the toe of the slope of the identified off -site landslide hazard area. Ms. Ainsworth Taylor: Looking at your Exhibit 7 to the Staff Report, I'm seeing that that's your delineation of the toe, that steep slope here. Ms. Stewart: That's correct. Ms. Ainsworth Taylor: Is that slope sloping towards the property or sloping towards the property... Ms. Stewart: Sloping towards the property. Ms. Ainsworth Taylor: So from the toe of the slope, the back property on 11 is 5 feet, correct? Ms. Stewart: Correct. Ms. Ainsworth Taylor: Okay. Ms. Stewart: And then in further discussion of the environmental subdivision review criteria, the site primarily is a cleared level site, with existing ball fields. However, on the northerly portion there are some existing trees. The majority of the mature trees in the northeast corner of the site are proposed to be preserved and set aside in a common open space tract. Ms. Stewart: Then moving to the criteria of lot and street layout, this requires staff to find that the proposed subdivision is consistent with the dimensional requirements of the zoning ordinance. Based on review of the PRD code and conformance with this application to that, each of the lots appear to be buildable. Lot sizes and dimension, because this is a planned residential development, and I've already addressed the alternative site proposal, alternative standards rather, related to setbacks and lot sizes and widths. Those are for your consideration and supersede the standard lot size and dimensions and setbacks that would be consistent with the RS 8000 zone. For dedications and improvements, we're referring to staff Attachment 14, which is the City Engineer's Report. And flood plain management, the last criteria, the project is not in a FEMA designated flood plain, so that's not relevant. Ms. Stewart: So those conclude my comments. if you've got questions at this time, we do have other staff here to address your concerns and comments. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: The State law also requires that every subdivision demonstrate that schools will be addressed, enhance the schools, safe walking to schools. Will the children be bused to school or walk to school. I'm not aware if the City of Edmonds collects impact fees for schools. Ms. Stewart: I'm going to double check with the code on that. Ms. Ainsworth Taylor: In general, I need to, for subdivision we have to, regardless of whether you take impact fees or not, whether provisions have been made for safe walking and student access to schools. So I guess my question is threefold. Within the Edmonds School District, the nearest elementary school is where, and will the children be bused. If they are being walked, does 2371 provide a safe walking area for them. If they are bused, where's the bus service. Do they have a safe bus waiting area. That's not under Edmonds code. That's under State law. Ms. Stewart: Okay. Ms. Ainsworth Taylor: So I do need that. If you haven't researched that, I can hold the record open for that specific submittal, because it is a specific requirement of the State. Ms. Stewart: Okay. I will need to submit that at a later time. Ms. Ainsworth Taylor: Okay. So we will note that at the close of the record to hold that ... The one thing I didn't notice in the exhibits that were provided, which I also like to have, is affidavit of notice of this public hearing, so that I can make sure it's done within the allocated, I believe that Edmonds Code has 10 days prior to the public hearing. Do we have any affidavit of posting, let's see posting, publication, mailing to I believe it is 300, maybe 500 feet, whatever your code. Ms. Cunningham: I don't have that with me, but I will provide them. Ms. Stewart: So we will provide that information. We did comply with those requirements. Ms. Ainsworth Taylor: But you're testifying that you provided publication, posting and mailing 10 days prior to the hearing. Ms. Cunningham: Yes. Ms. Stewart: We do. Ms. Ainsworth Taylor: Okay. I just wanted clarity with you, because just how the lines are drawn, Lot 3 will gain access from the cul-de-sac, itself, and not from the shared driveway of 1 and 2, correct? Ms. Stewart: That's correct. Ms. Ainsworth Taylor: This looks like the line almost cuts across, but it's kind of dashed. They will access that way? Ms. Stewart: That's my interpretation is that they will have a long driveway. So the share driveways that I was referring to would serve Lots 1 and 2 in the proposed site plan, and ... Ms. Stewart: On the proposed preliminary plat PRD site plan, the shared driveways are shown to serve in the southeast corner, Lots 1 and 2, and then in the northwest corner, Lots 11 and 12. Ms. Ainsworth Taylor: And I did see ... You made a statement, both in your staff report and in your presentation, that adequate public services were available, specifically in regard to public sewer and water, which is being served by Olympic View Water and Sewer District, as noted on your plat map. Do you have a letter of availability from this jurisdiction that they have the capability to provide water and sewer to the area and at a rate that would meet Edmonds.... Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Stewart: I do have a letter from the Snohomish Public Utility District regarding providing electricity to the plat, but I'm not aware that the other agencies, other service providers, have actually commented. They have been sent the materials, and we'll need to follow up on that. So you're interested specifically ... Ms. Ainsworth Taylor: Usually, in most jurisdictions I work, the purveyor of water and sewer will provide a letter, an actual certificate, that they have the capability to serve this development at the time of development. Just so that we know for sure they can do it. And it could be a simple letter on their letterhead that says we have the ability to serve the 27-lot plat at the time of development. Ms. Stewart: Okay. That could be something that the applicant has acquired. In our engineering requirements for the plat, it was noted that they do need to meet the requirements of Olympic View Water and Sewer District for connection to public water and sewer. But I understand you are asking for a letter of service availability... Ms. Ainsworth Taylor: From the agency, actually the purveyors, that they do have the availability of it. Just so that we have something in the record that makes them aware of it. There's a question on the PRD requirements in regards to the reduced proposed lot sizing. In a cursory review of the code, I noticed that one of the parameters, too, was that they were similar to the surrounding lot developments, nothing too far off. In the Staff Report you made reference, I believe it was in your Staff Report, but I read a lot of documents yesterday, that the surrounding area is primarily larger than 8,000 square foot lots. So I guess can you just touch on how you feel that 5,700 to 8,300 square foot lots sizes and the narrowing widths would be compatible to the surrounding character of the neighborhood? Ms. Stewart: Yes. Two comments on that. One is that the majority of the lots that are proposed under 6,000 square feet are in the northern area, so it would not be immediately adjacent to a developed residential property. In addition, that is part of the rationale for requiring additional landscaping in maintaining that 15-foot setback along the perimeter of the development to ensure compatibility. Ms. Ainsworth Taylor: Okay. I wondered if you could try to touch on briefly the stormwater drainage design. My review shows that it's going to be an underground tank, underground vault, in Tract C, and that everything will be a catch basin designed to close that area with a water quality separator, as in two points in your stormwater here, public works... Ms. Chesterfield: Yes, I'm Glen Chesterfield. I'm the stormwater program manager. When I looked at that, it was in a preliminary state. I looked like they were going to have three point drains in the bottom of the vault. But again, this is all preliminary so ... Ms. Ainsworth Taylor: But you will agree that right now, the preliminary draft shows the storm drainage is to go to Tract C in an underground vault? Mr. Chesterfield: Yes. Ms. Ainsworth Taylor: And all the street runoff will be collected and moved to that single facility? Mr. Chesterfield: Yes. Ms. Ainsworth Taylor: And where the drains will be ... Mr. Chesterfield: The last time I looked at it, it looked like the roof and footing drains were going to go to that facility, as well. Ms. Ainsworth Taylor: Okay. Has the applicant addressed the hazard area in their design? Mr. Chesterfield: Yes. Ms. Ainsworth Taylor: Given the topography and soil drainage of that land, will that one catch basin or one drainage facility be sufficient? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Chesterfield: Yes. The soil types are consistent with a system that should be able to infiltrate fairly rapidly. Ms. Ainsworth Taylor: Okay, great. Thank you. Anything else you want to add at this time, Ms. Stewart? Ms. Stewart: Not at this time. Ms. Ainsworth Taylor: Okay, we will go ahead and move to the applicant's side of the room. You can do your presentation however you would like, whether you want to fill in some of the blanks, respond to some of the questions or concerns that have been raised... Ms. Brown: Tiffany Brown, Burnstead Construction, representing the applicant. First of all, I agree with Karen's description of the project. I think she did a very good job; I think it was very thorough, so I have no objections. We read through the Staff Report, we understand the Staff Report, and we have no objections to complying with the Staff Report and the conditions and recommendations involved. Ms. Brown: There were a couple of questions that came up during Karen's presentation. One of them was the water and sewer letter. That was submitted with our application. It was on the utilities consortium form that's required as part of the City of Edmonds application. We met with the Olympic View Water and Sewer District, in which we received project numbers, and those were also put on the form so that they are aware of it, and they gave us availability of the utilities. Ms. Brown: The second item that I remember is the school letter, which we will look into and we'll figure why it's not part of the record now. We'll have to leave that open and get that to you, but we are aware of it and understand what needs to be part of it. Ms. Ainsworth Taylor: Have you had any communications with the school so far? Ms. Brown: I have had communications. I'm aware that there are no impact fees, but exactly where the approval is at, I do not know. More importantly, I understand that there are a few people in the community that have questions and concerns regarding this plat, and so I have everybody here that I can think of. Hopefully, we can answer some questions and get everything straightened out and move forward. With that, that is all I have to say. Ms. Ainsworth Taylor: Can you fill me in on the stormwater design. Is it still slated for Tract C as it reads in the documentation right now? At one point there was a potential to do joint drainage with the City of Edmonds on the other parcel that has existing structures on it, but that seems to have been abandoned, that idea. Ms. Brown: It had not been abandoned. What we have tried to do is show that we can stand alone by ourselves so that we understand that we can take care of our own impacts. However, we are very open in working with the City in trying to come to terms, if its workable, on creating a joint facility should they choose to do so. But we wanted to make sure that our site first complied with the code. That's where we are now, and in that plan that you have in front of you, it's underneath the park in a vault. Ms. Ainsworth Taylor: Underneath where you have the tot lot? Ms. Brown: That is correct. Ms. Ainsworth Taylor: That active rec area. In the far northern corner where there's the tree preservation area, let's call it, and you have a rockery that's going along Lot 17, is this a grading aspect? Ms. Brown: That's correct. Ms. Ainsworth Taylor: Would there be any delineation or separation of that tract or a description that would be fencing and signage that that says it's an open space preservation area? Is anything like that proposed for that area to preserve it in more it's current state? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Brown: I'm unaware of any City code that requires a split rail fence to protect the treed area, but we would have no objection to putting that up should they choose to request that. Ms. Ainsworth Taylor: Okay, great. Do you have anything else to ... Ms. Brown: No. Ms. Ainsworth Taylor: Okay. Mr. Lutz: Can we reserve response to the statements of the appellants? Ms. Ainsworth Taylor: Yes, don't worry. Actually, before we move to the appellant section of this, though, I do want to give members of the public who are specifically addressing the plat concerns, themselves, not in support or opposition for the appeal of the SEPA documentation, the environmental analysis, but if you have questions or concerns for the City, for the applicant, in direct relation to the design, to the subdivision, itself, this is not an opportunity to address any concerns that were raised by the appellant. If anybody wants to give public testimony on that aspect, they could go ahead and take the microphone. At this point, how I usually run the meeting, it is a question and answer period, so if you have questions in regards to the proposal or questions I can answer, ask them and I will address them to either the City or the applicants to answer the questions so that you can get your concerns addressed and see how their designing it. Hopefully, it might alleviate some of the concerns that you have. So is anybody wanting to speak on that? Why don't we start in the back corner and move on. So when you come to the podium, once again, state your name and your address. Mr. Miller: My name is Richard Miller. Address is 23623 — 107`h Place West in Edmonds. Our home borders the Burnstead property; we are located on the west side adjacent to lot, I think it's 11 or so, I just looked through the material now, so I ... Ms. Ainsworth Taylor: Okay. It's 10 Mr. Miller: I support all the concerns that have been raised in these appeals. In particularly, I'm concerned about water drainage in the area. This entire area has a long history of very poor drainage, not just in the installed street systems, but on the current baseball fields, themselves. Particularly during heavy rains, I don't know if you are aware of it, but there's a ditch and a drainage area to the very northwest portion of that property. Those areas fill up or become near filled during the very heavy rains, and I'm very concerned about what will be done in the grading process. Will the homes that will be adjacent to ours on the left side force water into our yards. I would ask that you and/or the City require that the elevation of that property not be raised at all at this point so there's no impact of water draining into the adjacent homes. Mr. Miller: Second, this is a more minor point, but just reading through the material quickly, I noticed there was the determination that no views have been obstructed. I would take issue with that. We've lived there for 26 years, and one of the main reasons we purchased that home was to be able to look out across those fields and enjoy the open space and the trees, and that is going to be entirely decimated and the view is going to be probably at the side or back of a house, and that's a significant change. I would ask you to consider all of those issues raised in the appeals very carefully. Ms. Ainsworth Taylor: For the applicant, in response to that question, both in your grading design for the property and, once again, in your stormwater drainage, the site is relatively flat, as I understand it now. So how much grading, I think I saw 20,000 cubic yards.... I'll have the Nicole, the civil engineer, look for an answer to this technical detail of drainage. Yes please. Ms. Hernandez: Nicole Hernandez, with the T1 group. First, I would just like to, I guess, address Mr. Miller's question or concern about drainage. Ms. Ainsworth Taylor: Now, I'm using as reference Sheets 3 and 5, which is labeled preliminary cut and fill grading plan. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Hernandez: Okay. Yes, we will be utilizing a catch basin and conveyance system to collect the stormwater from the new street. That will all be conveyed into, I believe, Tract C, is the tract letter. That will go into an open bottom infiltration vault that will also incorporate some point drains that will be approximately 20 feet deep to allow the stormwater to get to the soils that are very conducive to infiltration and should help alleviate some of the, I guess, the neighbors concerns about the current site not having good drainage. The existing ball fields that are out there now are heavily compacted soils, and you know, are almost kind of act as impervious surfaces because of the compaction. I think that's why some of the drainage issues are coming about now. Ms. Hernandez: To address your question, and also Mr. Miller's question about grading, we're not proposing very much grading for the site. The cut and fill quantities that you had mentioned from our temporary erosion control and grading plan are predominantly from the excavation of the infiltration vault, and just minor excavation of unsuitable soils and things like that. We're not proposing to really raise the site, except for a little bit along the western boundary, where there is an existing storm drainage type swale there, just to kind of level out the lots along that western boundary. Ms. Ainsworth Taylor: In the corner western area, would grading be done to level with the adjacent properties, or would you be grading away a little bit? Ms. Hernandez: Just kind of filling in that Swale area is primarily the grading we're going to be doing there. Then also, the other grading would be adjacent to the open space tract that contains the trees, which is why we have the rockery there. Currently, that portion of the site is higher than the rest of the site, and that's why we have the rockery along there. Ms. Ainsworth Taylor: And your storm drainage system is designed for a 100-year flood, a 100-year storm event. Ms. Hernandez: Yes, it's designed to meet the City's stormwater code. Ms. Ainsworth Taylor: Which I'm assuming is a 100-year storm event. Mr. Chesterfield: Yes. Ms. Ainsworth Taylor: Okay, anything else? Ms. Hernandez: No, unless you had additional questions. Ms. Ainsworth Taylor: No, that's all for now. Thank you. Ms. Brown: My soils engineer is also here. He was no here when we did the swearing in, so that will need to be done. I asked him to share information specifically on infiltration and the reasons behind the direct complaints from the nearby neighbors about groundwater puddling, and I would like him to speak now. Ms. Ainsworth Taylor: You want to come the podium and raise your right hand, and we can go ahead and swear you in. Do you swear or affirm that the testimony you are about to give will be the truth? Mr. Kindrid: I do. Ms. Ainsworth Taylor: And can you give us your name? Mr. Kindrid: My name is Scott Kindrid, and I'm with Associated Earth Sciences. Ms. Ainsworth Taylor: What can you tell us about the soils on this site. I remember in the soils report, you did a couple, six or seven, exploration pits. Mr. Kindrid: Yeah, we did a number of exploration pits and conducted infiltration testing on three of those. And the soils that were encountered in the six pits were what we refer to as advanced outwash, which is a combination of gravel and sand, Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 with a trace of silt. These soils were relatively consistent across the site, at least in the general grouping, the percentages of gravel and sand do vary in different types and in different locations. Ms. Ainsworth Taylor: Just so I have my records clear. The results of your testing were submitted as being an attachment to Exhibit 5, which was the storm drainage report. There's a letter dated February 13, 2007. Mr. Kindrid: That's correct. Ms. Ainsworth Taylor: It was authored by you, no it was authored by Frank Walker. Mr. Kindrid: Frank and myself and Curtis are all on design. Frank is a geologist, and he mostly did the field explorations and wrote up the geological descriptions. I wrote up the engineering sections of the report. Mr. Kindrid: As I was saying, we also conducted three infiltration tests. Again, the results were relatively consistent in those three tests. The soils fall into a category of what I would call moderately permeable. The one element that I want to touch on are the point drains in the infiltration facility and the advantage of those drains as they allow the water to get deep into the subsurface and bypass any layers that may be impermeable near the surface. It provides essentially a better infiltration condition than the existing ground surface. Ms. Ainsworth Taylor: Anything else? Mr. Kindrid: It's probably just a general summary, and I would be happy to address any questions you might have. Ms. Ainsworth Taylor: I don't at this time, but we may come up with some more for you later. Mr. Kindrid: Okay. Ms. Ainsworth Taylor: Okay, other members of the public. Who would like to speak now? Mr. Clarke: Good afternoon. My name is Kevin Clarke, C L A R K E, and I'm a resident at 23924 — 107' Place West. I live in the southwesterly most home in Woodway Meadows, which is the adjacent subdivision. I'm here representing myself, although I think I represent the neighbors who live at the south end of 1071 Place West, which is a cul-de-sac. As a way of background and disclosure, I think it's fair that I disclose that in a professional capacity, I have represented the City. I am a state certified general real estate appraiser, I have the ?? designation. In my professional capacity, I have analyzed subdivisions such as proposed here at the subject property, as well as a wide variety of mixed -use properties and complex commercial developments. I understand the public process we're going through; I understand your challenge. I also understand the challenge the developer's going through with the development timelines and obtaining grandfathering and permits through the City. Mr. Clarke: I've been impressed with the developer's public meetings and working with the public on addressing issues. I am not opposed to this development; that's not the purpose of my being here. I have concern that if this project is approved as proposed, there's no guarantee that some of the efforts to work with the City with respect to some issues associated with stormwater drainage and traffic and signage to the development with, indeed, be worked out through the parties. So let me give you a little background. I've lived in this neighborhood since 1984, and I hate to admit that in second grade I attended the elementary school that's currently closed. I've lived here all my life. Mr. Clarke: The house that I currently live in is at the south end of the subdivision, and as this stormwater study indicates presently the stormwater system carries water through 1071 Place West southward and it enters into a catch basin that's at my driveway and then runs through an easement across my property to the current vault that's located behind my property in an emergency access lane that's about 20 feet wide. Every year since we have lived there, several times a year, the cul-de-sac floods to the point where at least a half dozen residents are unable to get into our homes, and two of the residents, our property and Mr. Feltman, the adjacent land owner to the east of me, our properties flood significantly to where there's significant damage that's created, even to the point where the water goes into his home. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Clarke: We have been working with the City of Edmonds since our annexation to this area in 1995 to fix this stormwater problem, and they have been very diligent in trying everything to fix this problem, which included creating and installing a new underground storage vault in an excess right-of-way that is off 107' Place West. It still continues to flood, and the reality is, and Mr. Don Fiene is who we have been working with, he's acknowledged to our neighborhood that our system has failed. The drainage system in our current subdivision that services over 50 homes has failed. It's important to note that this system connects to 237' and 104t'', which is where the elementary school is right now. So all of the water that comes from the east drains down to a large culvert or catch basin right there at the corner of 237t' and 104'. It's at the northwest corner of that intersection. That incurs a significant flooding problem throughout the year. Ms. Ainsworth Taylor: As I understand the presentation both by the City and the applicant, the storm water runoff is rated by the parcel as flowing down towards your parcel as I see on a map within Exhibit 5 as showing the drainage pattern currently existing on the property would be eliminated because the stormwater that's being generated by the parcel, itself, would not be retained and infiltrated within. It should no longer be impacting the downstream flow from the property. Mr. Clarke: I don't believe that's true. Part of the issue is when Woodway Meadows was originally platted through Snohomish County. Ms. Ainsworth Taylor: Which is the residential area you live in? Mr. Clarke: Correct. We were in unincorporated Snohomish County. My particular lot was preserved as a drainage wetland area for this entire community because of the drainage issues that have occurred for years and years and years. This was a gravel pit. This whole area was. And Woodway Meadows Subdivision was created on excess cemetery land to the west and to the north. The playfields at the elementary school have over the years been improved, but this entire area has had a drainage problem. After a period of time, which was less than 24 months, the developer went back to Snohomish County and said, just like this study, gee, it's dry, there's no problems, and they obtained approval to build on that wetland area, which is where my house is right now. And so this neighborhood, this whole community, including the elementary school, has suffered from some type of underground water migration or some type of drainage issue where the water has never been able to absorb into the soils and be able to dissipate through the neighborhood. Mr. Clarke: There's never been a study done that I've ever seen, either by the City or any other agency, that addresses this issue. I understand how the vault is proposed, and you've referenced the exhibit where it shows the off drain flow, but that drain flow comes 107'. It comes right down to my house. Ms. Ainsworth Taylor: I see that you're in the corner and that's where ... Mr. Clarke: And the issue is, when this property was owned by the school district, the City promised the neighbors that they would work with the school district to create a vault at the front of the subdivision, our subdivision, which is on the park property, to alleviate this whole problem so we don't have the easterly flow of stormwater and we don't have the problem with our failed system. We stop it before it comes into our system. All I'm asking is, and the developers indicated that they would do this, that we would work with the City to make sure that this is cured. Because if it's not, the neighbors of his subdivision, at that cul-de-sac, have no choice but to initiate some type of legal action because of the diminishing value associated with this stormwater problem that we will have to disclose if we sell our homes. And it's a real problem, and we fight it. Right now, there are times of the year where ambulance, a fire truck, a police car, they can't get down there to service. If somebody's having a heart attack, they couldn't get in there. We can't even get into our homes without hiking across each other's yards to get to our front doors. Mr. Clarke: It's a real problem, so I have made this a priority with the City. They've seen photographs that have been entered into the City Council meetings. Again, Mr. Fiene has been really good at working with us, but there's been no representation in any of these reports presented to you today by either the City or the applicant, the seriousness of this issue. In fact, if you actually read the one report, it talks about ponding or pooling. I think that is a very mild understatement. But I recognize that, as professionals, we go out and make our field views, and they did this on December 8, 2006, and it could be a dry day and they didn't interview anybody to find out what the issues are. So that's really important. Do you have any questions of me on that? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Clarke: The next issue is the traffic study. The traffic study only focuses on two intersection points. One is 2371 and 104' and the other is Firdale Way and 237' or 1001h and 2371h, which is the intersection to the east because that's a signalized intersection. Ms. Ainsworth Taylor: I'm showing 2371, 2381, 1001, and 1041 Mr. Clarke: 100' and 238t1 that's the easterly signalized intersection where the current Woodway Mini Mart, used to be a Texaco Gas Station, is, and the small little clinic. And then to the west of that is the intersection of 237t1 and 104'. Okay. Ms. Ainsworth Taylor: So you're saying the report only addresses those two because I have four intersections evaluated. Mr. Clarke: You only have two intersections. Ms. Ainsworth Taylor: I have four, at 1041h and 237t'. I have 1041 and 238t1. 1 have ... Mr. Clarke: 104' and 238' and 104t1 and 237t1i are the same intersection, basically. I mean, they're 25 feet apart. They are separate intersections, but they handle ... Three intersections. The problem that we have suffered with as neighbors, and we have been working with the City on this, and it's still a continued problem, in on 237t1 currently from 104' westerly to the very entrance point of the proposed subdivision entrance point, on the other side of that street, there are no parking signs. As the Women's Tennis Club, which is located just east of the intersection of 238' and 104t1, you can see it on your map, and as the park uses its property, the excess demand for parking spills into this street and people illegally park on this street, even to the point of parking on that bend, which is right where the access point is for this proposed subdivision. Right now, there's a blind spot that's created by the S configuration of the road on 2371 where if you were going eastbound on 2371 towards 104t', you cannot see the oncoming traffic if they're traveling at a speed limit that's typical, which is about 25 miles per hour. When roadside parking occurs on that location, it creates real safety issues, and we have not been able to solve this problem as residents because most of these people come from outside of our area. These are not neighbors who live in the neighborhood; these are people who are coming to use the park or to use it as spill over parking for either the Klahaya Tennis Club or if there's a soccer game up there, like in the fall when soccer occurs up there and you have one team playing, or two teams playing and two teams waiting, it is just a parking lot within the parking lot and in the public street. It's a real public problem. Unfortunately, as neighbors, when we ask people to move, we get all kinds of nasty comments to us and gestures and statements. It's a real frustrating problem. Ms. Ainsworth Taylor: But won't the developer's proposal actually cure that problem? Mr. Clarke: No, because what they ... Ms. Ainsworth Taylor: Since the overflow parking onto the street is generated by soccer and the ball fields themselves, there is a good chance that removing those will, in fact, cure the parking problems associated with off -site parking. Mr. Clarke: There will be a park created on the easterly portion of the school, which now has a building on it. Ms. Ainsworth Taylor: And is there not on -site parking there? Mr. Clarke: That is filled up. Ms. Ainsworth Taylor: Because of the use of soccer and ... Mr. Clarke: So now people overfill the proposed park, which we haven't seen the plan yet. So we don't know what the park is going to be yet. So we don't know what type of use is going to be generated and what the parking demand is going to be. Ms. Ainsworth Taylor: But we're looking at the development impacts of this proposal, and we're not looking at the development impacts of what the City may plan on doing with their park. We're looking at ... My decision is based on impacts generated by this facility here. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Clarke: I appreciate that, but the traffic study has to recognize the existing uses that are adjacent to the neighborhood that generate traffic both in and out of the neighborhood and the traffic generated by the proposed development. The access point that's currently proposed is right on the bend, so you're going to adding more cars dumping onto a street that is already congested because the majority of the homes in Woodway Meadows are west of that access point. So we're talking 50 some homes that are flowing easterly; there's only one way to go in and out of our subdivision. And so now we're dumping in 27 new homes from the north coming into that bend, and I think it's going to be a problem. I think it's going to be a major problem, particularly on weekends and nights when the recreation occurs. If they have a soccer field at the park, you haven't eliminated the soccer field. The problem is still there except you've eliminated parking. That's the point I'm trying to make. Unless you can visualize how this has operated for years and years and years, it's really hard to get the flow of ... But you're doing well. Ms. Ainsworth Taylor: I understand the parking issues related to soccer and baseball; I experience those. Mr. Clarke: And the Klahaya Women's Tennis Club which is down there, which is a private club. But more importantly, I really am concerned about that ingress and egress point being on the bend. I really believe if the developer and the City and the community would work together, I think there could be a great win/win created of redirecting how their entrance point comes onto that street, 237t'', with working lands that will not diminish the number of units they have, the open park area in the northeast corner of this site. For example, part of that park area that is there, that they have set aside in the northeast corner of their site, that's their private property. If that was exchanged with the City of Edmonds portion that is next to their proposed driveway; so the City gives them part of the park property, their park property comes part of the park property. You could reconfigure that just a little bit east and it won't be a problem. Ms. Ainsworth Taylor: Just because it's not on the bend. Mr. Clarke: That's right. More importantly, the gentleman who lives across the street from that proposed driveway, he is a disabled individual. Though you wouldn't know it, but he is confined to a wheel chair, and he is on that sidewalk more than any of us doing gardening and working in the neighborhood and community. It's just an unsafe condition, and I think there are solutions if we work together. But I understand that the developer wants to get their project permitted and grandfathered and moving forward so they can make their timetable. But I think this could be really looked at in a meeting or two, and it could be just a real win/win. So that traffic issue, the study does not address the fact that they single ingress and egress point to that proposed subdivision is on the bend, and I don't believe the current City of Edmonds zoning code would allow a 27- lot loop to be built on the bend if there was any other place that they could put the access point. The way the property was sold and divided, that's the only point because there's private property to the west. It's bordered all the way by private property, well the park, and they can't access their subdivision northward because of the easement, but also because of the configuration of 104' that has that sharp bend at the north end of the school property. Ms. Ainsworth Taylor: On the residential development on the other side of the easement. Mr. Clarke: That's right. When Eckelbarger looked at creating the development points for Woodway Meadows to begin with, they looked at various access points, and that was one of the points that they looked at. Snohomish County wouldn't allow them to have access up there. Ms. Ainsworth Taylor: We're not dealing with Snohomish County. We're dealing with the City of Edmonds right now. Mr. Clarke: I realize that, but it's a physical issue. And then you have the legal issue of the private property owners that surround the property. I empathize with the developer only having a single ingress and egress point. You couldn't have designed the subdivision any other way to have vehicles go in and out, but I think we can be flexible if we really look at it. Mr. Clarke: Obviously, the next issue, and I really like their signage at the front, their entrance is very attractive. I love their subdivisions; they do quality work. But I am a little bit concerned. I know there is a setback. There's a landscape area to the monument signage that's proposed, and the monument signage is very attractive. But I think it may create a blind spot for those who are coming out of there to see the traffic that's going eastbound on 237'. I think by moving that to the east and doing that land swap kind of an idea, it may take away that problem. So that's that area. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Clarke: Next, though I'm not an expert, my kids went to the school, I can tell you where the elementary school is and the sidewalk capacity and where they go. Sherwood Elementary School services this area, and it's located directly north of the proposed subdivision. Currently, the access road that provides vehicle access to that school features a black top sidewalk on the west side of the street. Kids have the choice of walking to the school, or they can catch the bus at the front or at the old elementary school site, which is at 237t1i and 104'. There's also a middle school bus stop at that location, and it's been there for years and years and years. So it's serviced well, the kids walk, Sherwood Elementary has adequate capacity for the kids, so this isn't going to pose a burden or any kind of an issue. Ms. Ainsworth Taylor: Anything else? Mr. Clarke: Yeah, finally, I want it to be clear that I'm not opposing the project. I think there's some enhancements that could make it really a quality improvement for all of us and then also alleviate this drainage issue that we've been struggling with for almost two decades now. That's my comments. Ms. Ainsworth Taylor: Okay, great. Since we have kind of a question and answer period going here, asking the applicant or the City, however, best you feel, once again on the drainage aspect of it, if you can address some of those concerns that were raised. Also, on the traffic study, specifically the site distance on that bend for safe ingress and egress of vehicles, which also, I guess, will be in conjunction with the monument site blockage problem that you might address. So I think that's really the two things: stormwater aspects again and traffic, the traffic study. Do you have a transportation engineer here? Ms. Stewart: No, he isn't here. He's on vacation. Ms. Ainsworth Taylor: Thank you Mr. Clarke. Specifically his concerns seem to be primarily on the parking on 237" and the impact on site distance and relative safety there. I think you could address the monument sign, as well. Mr. McGrady: My name is Patrick McGrady and I appreciate Mr. Clarke's comments; they're very insightful. Indeed, when the studies were done. (The tape changed here, so I might have missed something.) When you have a snapshot of the conditions that you use in your analysis, issues like the illegal parking for events is not always obvious. So I appreciate that. Having been to the site, I can see that, indeed the parking on that side of the road would impair a driver's vision as you come around the roadway on 2371. Okay, when they're looking at the driveway being on the bend, or a curb, typically, the issue with the access points is indeed sight lines, sight distance, so you can see left and right and see sufficient distance down the roadway in order to see if I have a safe gap in traffic or not. Typically, when it's on the outside of the bend on this one, and the roadway is curving, you know, it typically enhances that sight line somewhat, depending on how share the bend is. If the bend is considerably sharp, then what gave you a benefit initially can turn into a detriment. I can see that with that illegal parking, that would indeed impair that sight line there. In the same manner for that sight line, the monument would have to be in consideration as to high that could be and where it is located to ensure that that doesn't impair it as well. That's a good point. Ms. Ainsworth Taylor: Does the City have standards in regards to subdivision monument signs having any interference with sight lines, to be setback, height limitation, vegetation limitation, etc. Mr. McGrady: What would be used is the standard ASHTO requirements for sight lines, and that is just ... Ms. Ainsworth Taylor: And I believe the traffic study, the traffic engineer did analyze the sight lines, comparing them to the actual standards of how that, given the illegal parking aspect of it, that curvage of the road met with actual standards. Mr. McGrady: That's correct. Ms. Ainsworth Taylor: It actually exceed actual standards, if I remember. Mr. McGrady: That was one of the items in the field, myself, that I measured out to see that it was within the sign standards. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: Although you did not prepare the transportation study, in your role with the City, I assume you reviewed it. Mr. McGrady: Yes, I did. Ms. Ainsworth Taylor: And you found that the analysis the transportation engineer developed utilizing the intersections that they did utilize for the study, the number of intersections, and the alignment of those intersections. And their analysis was up to typical standards for developing the study. In other words, you evaluated enough intersections... Mr. McGrady: Yes, I looked at that as far as content, methodology and conclusions of the analysis. The number of intersections that were selected was a result of the preparer of the study meeting with the City prior to doing the study. Ms. Ainsworth Taylor: So in conjunction, the City and the traffic engineer that developed the study basically concurred on which intersections he/she should be basing the opinion and the study on? Mr. McGrady: The study was based upon the guidance of the City. Ms. Ainsworth Taylor: Okay. And just while we're on traffic studies, 260 daily trips and either with or without the proposed project, it looks like the level of service would maintain an A or B standard. Mr. McGrady: Yes, there's considerable reserve capacity in there. And part of that, too, is the main roadway's a free flowing roadway and those side streets are still getting sufficient gaps. So yes, there is a good deal of capacity left. Ms. Ainsworth Taylor: Is 2371h also classified as a residential collector, or is that an arterial? Mr. McGrady: I would be very surprised if that's an arterial. I don't believe so. I would have to look on the City's map to answer that, but I would not expect it to be an arterial, not at all, since it is a contained community. When I went through it, I looked and drove through all those roads, and I counted 59 homes currently on there. Ms. Ainsworth Taylor: The classification of the internal street and the plat is a residential collector if I remember hearing right? Mr. McGrady: I don't have an answer. Ms. Ainsworth Taylor: I am assuming it would be since it is dumping into a bigger neighborhood collector, but what your street classifications are, I'm not sure. Mr. McGrady: Okay. Ms. Ainsworth Taylor: Okay. And so in response to the drainage issues. Ms. Brown: Can I further add to the traffic component? Ms. Ainsworth Taylor: Sure. Ms. Brown: Two issues. Let me make sure that I have everything here. One of the questions was the fact that the intersections weren't four but two because of the relative proximity. A comment from my engineer, and you do have these as part of our response, as well. But I would like to read it for the record. We would agree that the intersections of 238' Street Southwest and 100' Avenue Northeast are non standard and that they're closely spaced, but they operate in coordination. Our traffic analysis evaluated these intersections using standard engineering practice during, and were based on weekday pm peak hour conditions. Ms. Ainsworth Taylor: Can you tell me what letter you are referencing, which document? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Brown: This is in our response to you from our attorney. Mr. McGrady: It's dated June 8t1i. Ms. Ainsworth Taylor: The June 111 letter? Ms. Brown: June 81. It would be in our response to the appeal that was sent to you, let's see... Mr. McGrady: It's Exhibit D. Ms. Ainsworth Taylor: Exhibit B? Mr. McGrady: D as in Delta. D as in Dog. Ms. Ainsworth Taylor: Okay, I see it. Ms. Brown: So I would like to just make sure that you knew that we took ... This is also handled in the appeal, so I suppose these are a lot of the same answers that would be given, so I wanted to make sure that you understood that we addressed these and took them seriously when the neighbors mentioned them to begin with. Ms. Brown: The second item was, in fact, the ASHTO requirements. ASHTO requires 200 feet of stopping sight distance and 335 feet of entering sight distance for a 30-mile per hour design speed onto 237t1i Place Southwest. Field measured sight distance onto 2371 are estimated to be approximately 350 feet to the southwest and 485 feet to the east, both of which exceed ASHTO minimum sight distance requirements. So we did understand their concern about sight distance, and we did do the study to verify that we exceeded ASHTO requirements. Ms. Ainsworth Taylor: And that's part of the traffic study? Ms. Brown: Yes, that's on Page 18 of the traffic study. Ms. Ainsworth Taylor: And it's also noting on there, too, is traffic impact fees due to the City in the amount of $20,699.44. Ms. Brown: Correct. Ms. Ainsworth Taylor: Based on the City's impact fee rate? Ms. Brown: Correct. Ms. Ainsworth Taylor: Okay. Ms. Brown: The last concern that Mr. Clarke mentioned was the monument into the entry of the subdivision and Burnstead Construction's monument must abide by the building setbacks. I have not personally read the Edmonds City Code on sign permitting, but that is something that we understand, and it cannot obstruct views as you come out onto 237"'. Ms. Brown: Should I speak on behalf of the drainage while I am up here? Ms. Ainsworth Taylor: If you want to, or you could let your consultant. Ms. Brown: I'll take a stab at it, and then if you would like to add, please let me know. We understand Mr. Clarke's concern on the flooding. We did a downstream analysis. Unfortunately, when we went to the City to obtain the records on what they might have based on his complaints, they didn't have any records available to us. We are putting the vault on our property, which is in the pathway to the cul-de-sac that he is referring to. We are required, and code is very strict when it Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 comes to detention standards, to maintain the downstream rates, if not improve the downstream rates. The way we have it designed, we are not increasing the downstream rates to his property at all, or in that vicinity. Ms. Brown: Furthermore, I think it's important to note that we are willing to work with the City. However, in case the City does not develop the park or does whatever they choose to do or doesn't do it in the time that we do ours, we must show that we can stand alone. And we are detaining the detention water, or detaining the water runoff per code. So I guess I'm not understanding where we're not meeting code, where people are expressing their concerns. I understand their concerns, but we're abiding by code, we have met code, and if I'm misunderstanding somebody, I would be more than happy to have my engineer express more detailed information. Ms. Ainsworth Taylor: I don't think they're denying that you're probably not meeting code standards for the City. Their issue was that the code standards for the City aren't apparently rectifying or remedying the problems that existed in the past. Ms. Brown: Which we feel that we have done the extensive amount of research to show that this will substantially improve the downstream rate, so that's I guess where, I guess I didn't see somebody disputing the numbers that we have given. Ms. Ainsworth Taylor: No, I didn't see that, as well. Ms. Brown: Okay, I just wanted to make sure. That's all I have to say. Ms. Ainsworth Taylor: Okay, good. Mr. Sanderlin, right? Mr. Sanderlin: Cliff Sanderlin. I'm a co -appellant with Heather Marks. I wanted to just add... Ms. Ainsworth Taylor: Can I get your street address? Mr. Sanderlin: Oh, I'm sorry. 10522 — 235' Place Southwest, 98020. I would like to add something to the very thorough report from Mr. Clarke, especially about traffic. As he mentioned, there are fluctuations in parking in the area and traffic fluctuates a lot depending on whether there's a swim meet or whatever happening in the neighborhood. However, no one has addressed the issue of traffic during the construction of the site. According to the information I have from the City of Edmonds, approximately 20,000 cubic yards will be graded and there'll be fill. Not knowing exactly where that's going to housed, I understand from engineering friends that the standard method is to truck all of that off site and store it somewhere and then bring back an equivalent amount of perhaps better soil, top soil, that sort of thing. If the standard dump truck, I think is maybe five yards, maybe five cubic yards capacity, that translates to 4,000 trips each way. So there's 8,000 dump trucks coming and going in the dangerous intersection that Mr. Clarke and others have described. Mr. Sanderlin: I think that the builder and the City should give serious consideration to the land swap that Mr. Clarke suggested. I guess it was raised at an earlier date and no one expressed any interest. But it seems like a sensible approach, and I urge you to take another look at that. Thank you. Ms. Ainsworth Taylor: Okay. Did you want to address the fill, if I remember right, from your temporary erosion control. The grading was going to be stored on the site and additional fill may be brought in. But the target is to utilize on -site grading as fill, itself. But you can clarify that if I misspoke what I read. Ms. Brown: The excavation from the vault area will have to be dispersed, and it's actually 18 yards per truck load; it's not 5, so we're down to 1,100 trips, I guess, for the record. They are very large trucks. I just wanted to make that correction. If we can disperse and spread over as top soil, we will do so. But if not, that vault area will need to be excavated and taken to an off -site location. That is how we do construction. Ms. Ainsworth Taylor: And you haven't determined on your soils analysis whether any of that can be used on site yet based on soil analysis you've done so far to date? Ms. Brown: Did we look at what could be dispersed back over on site? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Hernandez: Well, with our cut and fill, we're trying to balance the site as much as we can, so it's 20,000 cubic yards of cut and 20,000 cubic yards of fill. So unsuitable material will have to be hauled off site, but we're trying to balance as much as we can with the grading. Ms. Brown: So worse case scenario if all 20,000 yards had to be removed, it would be 1,100 truck loads. Ms. Ainsworth Taylor: And then that's all. Any other public comments in regards to the plat, itself? Ms. ??: Some of my testimony will refer to it, but I would rather keep my testimony all in one piece. Ms. Ainsworth Taylor: That's fine. We did have somebody in the back. Yes, go ahead. That's you. Mr. O'Leary: Hello my name is John O'Leary, and I live at 10606, 23111 Street Southwest. Ms. Ainsworth Taylor: John O'Leary? Mr. O'Leary: That's correct. Of course, I've got a whole mess of concerns about this, but I'm going to focus primarily on two. One is just street lighting. It wasn't very well addressed in the plan. In Attachment 14, Page 1, Number 6 in the Engineer's Report, it was mentioned, but nothing specific was designed. Also, in the Woodway Elementary Statement of Compliance, Page 2, Paragraph 2, and that's in Attachment 2, it also wasn't addressed specifically. My concern with that is that light pollution is definitely an issue in the urban areas and suburban areas, and my hope would be that it would be designed so that there'd be a minimum of light radiating upwards. Mr. O'Leary: The other issue is the soil in the area, and this might be something that the gentleman from Associated Earth Sciences may wish to address. But he described the soil as advanced outwash, and my understanding is that would most likely be considered Vashon Advanced Outwash, is that correct? Mr. Kindrid: Probably yes. Mr. O'Leary: Yeah, and I believe that that would be the same aquifer that is recharged for Deer Creek, which is the primary water source for Olympic View Water and Sewer. In Attachment 5, Page 5, which was the stormwater drainage report, they did not design for a very significant storm event and a lot of materials, let's see, I believe the number was around 65%, would be filtered out that would go into that aquifer. Anyway, so that is also a concern if we're channeling street runoff directly into that aquifer. Thank you very much. Ms. Ainsworth Taylor: So you testimony is that there's an aquifer that underlies the property? Mr. O'Leary: I would expect so, yes. I mean, I am certainly not an authority. I haven't had a chance to look at a lot of well logs, and there aren't a lot of well logs for the area, at least that I've found. Ms. Ainsworth Taylor: And then, just for the record, I'm seeing an Exhibit 5, Page 5, that you denoted, the design is for a 100-year storm event, and the water quality analysis, using the vortex system, is at 80% or greater sediment removal into the system. Mr. O'Leary: Okay, so I misspoke on the 65%, 80%. Ms. Ainsworth Taylor: 64% is the water quality design ... If I could have the soils engineer come back up and maybe address some of his concerns on the aquifer of the Vashon glacial period soil till... Mr. Kindrid: Unfortunately, I'm not familiar with the ground water aquifer in that area, so I can't speak to that. Ms. Ainsworth Taylor: But in regards to soils for the area and infiltration, is it conducive to filtering prior to an aquifer? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Kindrid: In general, the wells for the ground water aquifer system would be quite deep; they're probably several hundred feet deep. I believe the treatment before the infiltration vault, as it mentioned, would remove 80% of the sediment. Certainly, the remaining sediment would be filtered out within several feet of the bottom of the facility. So, I don't know if Blue Line might have anything else to say about the treatment, because we actually weren't involved with that. Ms. Ainsworth Taylor: Okay. Any further comments? Another comment, Mr. Sanderlin, you're limited to two. Mr. Sanderlin: I just wanted to mention that Mr. O'Leary, I believe is a civil engineer. Anyway, you work in the field of water. Mr. O'Leary: I'm not qualified. Mr. Sanderlin: Not qualified, okay, sorry. Ms. Ainsworth Taylor: Either that or he's not going to confess up. Mr. Sanderlin: The other point I wanted to make is regarding the runoff, stormwater runoff. I worked at People for Puget Sound, which is very concerned with the condition of the Sound and it's in deep trouble. One of the concerns I have about the water quality is that people will be putting fertilizer and pesticides and herbicides on their lawns to keep them perfect. When this storm comes along, it's going to wash all of this down into the aquifer. It will find its way into Puget Sound. There's also the issue of dissolved copper and other elements that don't filter out using just standard filtration equipment. They are best filtered through loam with grass growing on it. I'm not an engineer either, but I hang out with them. Anyway, thank you. Ms. Ainsworth Taylor: Any other public comments at this time. Mr. Hertrich: Excuse me, am I too late. Ms. Ainsworth Taylor: No you're not. Did you just slip in the door on me? Did you take the oath? You will take it? Thank you. Do you hereby swear or affirm the testimony you are about to give will be the truth? Mr. Hertrich: Yes, I do. Ms. Ainsworth Taylor: Go ahead and give your name and your address. Mr. Hertrich: My name is Roger, last name is Hertrich, H E R T R I C H. Haven't had a lot of preparation time, I'm sorry, but I am familiar with PRD's and how they work. I must say it's very logically laid out and it appears that everything fits, but there seems to be some problems, in my mind, when I thought out code calls for no variances granted for, well I guess it's no height variances, I'm sorry. I misunderstood that when I read it. Of course there are variances, and that's what the PRD is really all about. My concern is how does it fit within the existing community. Ms. Ainsworth Taylor: You mean compatibility with the surrounding community? Mr. Hertrich: Yes, exactly. Thank you for the help. On one side, of course, you have a hillside, so anything can fit up to that, that's not a problem. But when you have homes that are adjacent, right along the lot lines on the south and on the east, especially, what you're seeing up on those lots, is well, maybe there might be 9,000 square feet, but they might be 90 foot in width. So one house, if I look on the south side, now has the ends of two residences or possibly one long residence. But the thing is that these houses have less than standard setbacks. In other words, where you would normally have a setback between buildings that's being reduced, and if you allow porches, etc. to stick out into that setback, pretty soon you have, it's like a wall of houses and very little space in between. Ms. Ainsworth Taylor: If I could stop you right there, because you did come a little bit late. The rear yard setbacks will be maintained at code. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Stewart: Correct. Ms. Ainsworth Taylor: So those are the same rear yard setbacks. Mr. Hertrich: Rear yard. All right. It's 15 feet, I believe. Is that correct. Ms. Stewart: Uh huh. Mr. Hertrich: But the side yard setbacks are less than what you would normally find in an RS-8. Consequently, the compatibility with the adjoining lots, where there's generally openness and considerable more space in each lot, what the people enjoy. Now they're surrounded by more or less continuous. That would be the effect that you have, and of course, the closer you get together and the closer you are as far as the way they line up, it really eliminates light at certain times of the day as the light tries to come in at a sharp angle at later times of the year or in the mornings possibly. Whichever way the sun happens to be going according to where you're standing, you can create quite a shadow affect, and that effects the quality of living for the people adjacent to those properties. So, that's number one concern. Mr. Hertrich: The idea that we're putting all these lots together, and I believe, what do we have, 6,000 square foot lots compared to like 8,000 or 9,000 in the neighborhood. So they don't quite measure up. It seems odd to me that someone had said you could take a put 30 lots on this property under a normal subdivision. Well, I don't know under a normal subdivision, of course, it wouldn't allow lot sizes of this size, so I don't understand how you could fit 30 lots into it. To me, even though you have square footage allowable for x number of lots, by the time you get done laying out a normal subdivision, you would actually end up with larger lots and less of them. I think that certainly would fit the neighborhood much better. Mr. Hertrich: Let me plow through my notes here for a minutes. I believe the lot coverage, there was an indication that, and the ADB did discuss it, that the lot coverage definitely has to be 35% or less, and I understand it's 35.8 according to what I read on one of the notes, unless it's been corrected. Ms. Ainsworth Taylor: I'm showing on the preliminary plat map a 35 percent maximum lot coverage. Mr. Hertrich: But somewhere in the literature I found, as far as the report goes, it will take me a while to find it again, it said 35.8, so I would question that. Ms. Ainsworth Taylor: Okay. Is that based on the comments at the ADB meeting? Mr. Hertrich: Well I read several reports very quickly, okay. So I can't tell you the source at the present time. Of course, the idea, again when I mention setbacks, normally it would be 7'h between lots, and that would be a total of 15 feet. Today, they are proposing five, which is 2 lots together, that's only 10 feet. That's quite a reduction. That's 30%, and in other words, it makes a very narrow alley and light lane. Mr. Hertrich: The ADB also noted, and there was some concern about the porches that protrude out into the front of the lot. They suggested that that all looked good; I understand they wanted to reduce the setback to 20 feet because the whole project would be normally the portion that would stick out more or be closer to the street. But at the same time, there was a concern that several projected further than looked proper. So I take that observation, whether they mentioned it in their decision as to a decision, I don't know, but it was raised as a question. Mr. Hertrich: Excuse me while I look again. By the way, I did like the character of the houses; the looks of them are very pleasant. I can't be more complimentary for what you're getting on such a small lot. Again, I would like to question how far you are actually from the critical area. There was some mention in my quick reading that there was a variable distance of setback from that, and I understand the code requires 15-foot setback from the edge. I got the idea that ... Ms. Ainsworth Taylor: Are you talking about steep slope within the easement? Mr. Hertrich: Yeah, I'm talking about the critical area, right. You must have read this. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: I did. Mr. Hertrich: Okay, so we're not getting anything by you, but maybe that draws some recollection. The variable was, I can't remember the exact numbers, but it didn't look like it was the same all the way, and I would question that. Ms. Ainsworth Taylor: The code wanted 50 feet from the base of the toe on a steep slope, but you can reduce it down to 15 feet, I believe... Mr. Hertrich: Yeah, quite a change. As a matter of fact, the degree of change is probably not evident to the neighborhood because it's on the back side, but there are rules that need to be complied with for environmental reasons. If I'm talking environmental things, I hope that's alright because I understand that's part of this. Ms. Ainsworth Taylor: That's why I'm here is to make sure that we follow the right rules. Mr. Hertrich: Okay. I don't quite understand, when they say a variance request, do they really have to go through a variance, or does the PRD take care of those in the application. Ms. Ainsworth Taylor: The PRD takes care of it. Mr. Hertrich: Okay, question, there are no variances being requested after the fact. We've been surprised a few times when all of a sudden eight out of 15 buildings want new building heights after the fact. Ms. Ainsworth Taylor: What I approve will be what's being presented in the application and the documents that are being submitted today, and everything will be delineated out. If they choose to want to change any of those, they will have to go through an amendment process. Mr. Hertrich: The City, I think, in the present PRD process, requires some indication that variances will be applied for, and generally, those are height variances that concern most people, and that's the one part of the code that says no variances in a PRD for heights. Yet, after the fact, you can't keep someone from coming in and requesting a variance in height. You just can't disallow it after they've been granted. So the last time the City discussed PRD's they wanted to make sure that everything was up front and so I would appreciate that question being asked and having it being put on record that there will be no height variances requested. You can't keep it from happening, but at least we can get it out and have it on the record. Ms. Ainsworth Taylor: I know coming before me is a variance, and I will remember your statement. Mr. Hertrich: Good. Is there going to be any more public testimony as we go along here? Ms. Ainsworth Taylor: You may be called as the SEPA appeal, but this is pretty much your time to get out your ... Mr. Hertrich: If I read quick, I might find something extra. Would that be allowed? Ms. Ainsworth Taylor: Yes. Mr. Hertrich: Thank you. Ms. Ainsworth Taylor: Okay, thank you. City staff, if you could respond to once again, the comments in regards to the lot size, versus traditional platting, traditional subdivision comparison to the PRD requirements for smaller plats. I know that was referenced. And then maybe anything on the Architectural Review Board, any of those changes. Mr. Hertrich: Excuse me. I found that thing I was forgetting. May I? Ms. Ainsworth Taylor: Sure. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Hertrich: Thank you. Roger Hertrich. As shown on Attachment 6, 20-60, it talks about our code, and it says that the critical areas ordinance cannot be counted towards the satisfaction of useable open space. My question to you, is that particular part of the code being satisfied? That's 20.35.060. Ms. Ainsworth Taylor: I'll be reviewing that in decision, but as far as I'm aware, no critical area, itself, is located on the site. The critical area is off site, though under the Edmonds Community Code, critical areas and areas immediately adjacent to critical areas are controlled by the regulations, as well, or subject to the rules and regulations, as well. Mr. Hertrich: How about the treed area in the corner? Ms. Ainsworth Taylor: Wooded areas are not classified as a critical area under the development code. Mr. Hertrich: Okay, thank you. Ms. Ainsworth Taylor: But that will be in my review. Ms. Stewart. Ms. Stewart: Regarding, there was some mention of 35.8% impervious cover. That number was in the checklist. Ms. Ainsworth Taylor: That's been modified? Ms. Stewart: Correct. 35%. Regarding the height limitations, there are no proposals to exceed the standard 35-foot height limit for a new development in this area. Or is it 25, I'm sorry. Then, there was a question about the lot sizes and the compatibility and the side setbacks. It's 7.5 feet is the standard side setback for 8,000 square foot lots, and what is proposed and part of the benefit of a planned residential development is clustering of the homes, allowing open space, both for passive and active uses. So it's a different way of developing a neighborhood, basically, and so what is proposed are slightly closer side setbacks, so five feet is the difference there. There was some concern about the shadowing effect for off -site properties. I can check how that was addressed in the checklist. There weren't particular shadowing studies done, so if there are some particular residences that are of concern, that might be helpful, and we might be able to look at some additional conditions. But again, the perimeter 15-foot setbacks are what's called for in the code, and the applicant is abiding by that. Ms. Stewart: Then there was some discussion comparing and contrasting the standard subdivision based on the 8,000 square foot lots and contrasting it with this proposal, which would have lots ranging from slightly over 8,000 square feet down to slightly under 6,000 square feet. The difference again, is accounted by the open space areas that are left to compare those two. Ms. Ainsworth Taylor: Okay. Ms. Brown. Ms. Brown: There was a concern about the architectural control board and their decision in giving us a 15-foot street setback for porches or I guess uninhabited areas of the home. Just to clarify, we initially went in with a 20-foot setback; they granted us that. They gave that to us. That was not in question, nor was it ever requested by us. That was granted to us by the Architectural Design Board. Second of all, the 35.8%, I want to make this very clear, that is site coverage. That is the whole parcel, as its proposed will cover 35.8%. The 35% is individual lot coverage, which will be followed at the time of building permit, that we cannot cover more than 35% of the actual lot. So the 35.8% is still correct, but it is a site coverage. Ms. Ainsworth Taylor: Okay, thank you. Ms. Brown: And again, we did not apply for any variances, nor do we plan to. The design alternative standard request is what is allowed in accordance to the PRD code, and that is what we have put forth. I believe some of the residents may be looking at an older site plan that titled it variance. A new updated site plan was submitted where that was crossed off and the correct verbiage is alternative standard request. Ms. Ainsworth Taylor: Yeah, actually the preliminary plat I have still has it PRD variance request. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Brown: That has been updated and it was given to the City and it should be forwarded to you, as well. Variance is incorrect; we are not applying for a variance. Ms. Ainsworth Taylor: Actually, Mr. Clarke and then ... Mr. Clarke: Kevin Clarke. I know this may be my last bite at the apple, but I am a little concerned with the dialogue and how it's being presented. Regarding storm drainage, I appreciate Ms. Brown's response. She said the City didn't provide us a study or any file associated with problems in the area. That may be a fact, but I know there is a file that is inches thick. There is even a proposal in the City budget for allocating monies to the storm drainage problem. There is a file; it needs to be recognized. Mr. Fiene, unfortunately, just left, but we have worked with him. I am on the record saying Mr. Fiene knows about this problem. He's come out to our house several times, and we've worked drawings and talked about budgeting. We can't just say that the record says they asked the City, and the City didn't give them anything so they're clear. I think that is a misrepresentation of the facts. But there is a drainage problem in this area. The City needs to recognize it. The developer, now that they know it, clearly on the record, and this was mentioned at the public meeting that they held at Sherwood Elementary School, it wasn't recorded, but it was mentioned to them by myself. They need to address it. The study doesn't address it. In fact, the study says specifically, the excess drainage will come down 107t1i into my property. That's what the study says. Mr. Clarke: Next, if you look at that drawing that is part of that Blue Line group exhibit, and unfortunately it doesn't have title, but it's that drainage, little map. I would appreciate you looking at that map and then looking on Page 18 of the traffic impact study that deals with site distance analysis. As a professional, I appreciate the words that are used, but if you look in the second paragraph in the site distance analysis, Page 18, it says, "field measured site distances onto 2371 Place Southwest are estimated to be approximately 350 feet." It's impossible for them to be 350 feet in a southwesterly direction, recognizing the curve of the street and the lots that are there. There's three lots, actually 2'/z lots when you go on the next side of the bend. But this traffic study does not say that there's no parking signs on the north side of that street and the reason why those no parking signs were put there. Because of site distance issues relative to the existing curb cut that's part of the parking lot of the playfield of the existing school, which is the exact location where the proposed ingress and egress is for the subdivision. So there's a problem. Mr. Clarke: You can read the signs. The signs are there. No parking from 104t1i westerly to that bend in the road. The problem is from the bend of the road where the applicant's southeast property line is, that corner westerly on 237', it is not a no parking zone. So the home that is adjacent to the entrance, if they have visitors, which they do, they park on the north side of the street and you can't see coming around there the traffic that's coming westbound, as it is right now. That's not including people coming out of a subdivision. Just put cars out there. Take City cars out there and look at it. It's not... The problem is that this has been addressed and then the gentleman gets up here and reads out of the traffic study that says that, well it complies, but it doesn't. It's not 350 feet; it's an impossibility that's 350 feet of unobstructed site if there's cars parked there. Those people have the right to park, and that's a 50-foot right-of-way. It's not wide enough at the bend to have the level of traffic that's going to go in and out of that subdivision. At 59 homes and 27 lots, we're increasing the traffic flow at that bend to 50%. And it's a dangerous problem already. So it needs to be addressed, and not just say well the traffic study addressed it because it didn't. There's no where in this document is that concern or that issue raised. So I think that needs to be clearly put on the record in relationship to the traffic study. Mr. Clarke: It's also to know the rest of that sentence says that's 480 feet and there's no qualifiers of estimated or approximately, and that's because it's a straight shot. So now I ask you, if 480 of straight roadway up 2371 was determined to be a site distance issue to the City that put no parking signs up there, how could that bend, at "350 feet" not be a site distance issue. It has to be. It's just common sense, and it's a physical reality of the configuration of the subdivision. Ms. Ainsworth Taylor: Ms. Brown, in your transportation engineer's comments, I don't see any specific reference to site distance. Do you remember any ... I'm looking at the one that is an attachment to the SEPA appeal; it's one of the letters that was provided. Ms. Brown: No site distance would not have been in that actual letter. It was just in the traffic report. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: Okay, because he just maybe, when he comes back from vacation, a short paragraph on how in terms of site distance (the tape changes sides at this point, so something was probably left off.). Do you have any further comments. Mr. Lutz: Yes, just to give some sort of legal response to the challenge that Mr. Clarke made, just for a point of clarification. Ms. Ainsworth Taylor: Okay. Let's go ahead and finish with Mr. Clarke's comments and then we'll ... Mr. Lutz: Sure. Jerry Lutz with Perkins Coie for Burnstead Construction. Mr. Clarke's comments, I think reflect a fundamental misunderstanding of what we're trying to consider with this application. To talk first about drainage. The Burnstead project is designed to handle the drainage from the Burnstead property in a way that complies with code and because it complies with current code, it will as a matter of fact, improve the drainage situation for the relatively impervious hard fields that exist now. So the neighbors will experience somewhat less, hopefully, drainage problem. But Burnstead, as the developer of this PRD, is not proposing and is not obligated to fix a failed off -site drainage system that's part of the City's system. That being said, as we mentioned at the start, Burnstead has been willing to talk to the City and it's my understanding that the City, when it goes through its own development plans for the adjacent park that it's planning, is trying to figure out additional solutions that might provide some additional relief. If that happens, great, and we're going to try and be good neighbors and support those things, but to suggest that somehow it is an obligation of this development to fix an existing off -site problem is just a fundamental understanding of the obligations of the developer and the law that applies. Mr. Lutz: And I guess the same thing, and it was just striking to me to listen to Mr. Clarke's concerns about traffic because I guess I can understand them. He mentioned that people don't really drive the speed limit, people are parking illegally and ignoring signs. It's all associated with some fields that are going away. Your point was, well at least when these fields go away, that parking problem should be ameliorated for a while. Mr. Clarke's point is well, the City's going to build new fields next door. We hope that's true and we assume that's true. That's the City's plan. When they do that, if there are problems associated with the parking associated with those fields or parking on the street that's a problem, the City can address that at least to the extent it can control illegal behavior as part of that process. Again, it doesn't really affect the proposal that we're making, and it's not something that Burnstead on his property can control. So it just seemed to me that it was important to try and clarify the scope of what we're talking about. There are some people who really want a larger park, a different proposal, but that's not what we're doing. Burnstead owns this property, and he's moving forward with a development proposal and wants to be a good neighbor but wants to help people have a clear understanding of what it is we're proposing and what we're obligated to do. Thank you. Mr. Fiene: Don Fiene, Assistant City Engineer. I would just like to make some comments about the drainage situation in that area. First of all, I think even before it annexed into the City over 11 years ago, we knew there was quite a bit of problems as far as their was virtually no drainage system. What drainage system there was put in at Woodway Meadows was very poor and it failed. So subsequently, since it's come into the City, we have been steadily putting in infiltration systems, which for the most part do work well in that area. We did have a basin study for that area, a Southwest Edmonds Basin Study. We had public meetings. Ms. Ainsworth Taylor: Did that include the Burnstead property? Mr. Fiene: Yes, it included that whole area. I think it's over a 100 acre area. We had public meetings, we took public input, and one of the main concerns was the area that the Clarkes mentioned. I think that for the most part, Mr. Clarke gave a pretty accurate assessment of the area. However, a couple of points I guess I should make is we did install the new infiltration system he mentioned and the drainage problems, the flooding in that intersection, that cul-de-sac, is quite a bit less than it was before. Whereas it used to flood several times a year, now it's every year or two. That's one of the aspects of drainage laws that you're supposed to make sure things don't get worse. However, we have had a long-term plan that was in the Southwest Edmonds Basin Study to put a facility in at what's now a park site. It was the school site before. We tried to get an easement to build that system in when the school still owned the property. However, they were holding us up because they said we may be doing something there, we may be selling the property. Eventually, they did so we are planning on building that facility in conjunction with the park. We think that's going to be a great help for that situation. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Fiene: The one inaccuracy, I would say as far as the consultant, is the issue of records. We have the record for the Southwest Edmonds Basin Study. I either provided it or I certainly would have if it was asked for. There's no problem with us providing records, and we do have a pretty detailed record there at the school site. I think that pretty much covers the issues we have. Ms. Ainsworth Taylor: We need to kind of move along a little bit to Ms. Stewart. Do you have a comment? Ms. Stewart: I need to make a correction to one of the attachments to the Staff Report. In assembling these documents, I didn't have an opportunity to see them ahead of time, and it came to light when you were talking about whether or not there were variance requests. The Attachment 2 to the Staff Report, addressing the SEPA appeal, is the correct site plan, and should be substituted for Attachment 1, which is in the Staff Report, which is an older version of the site plan. You will notice in the attachment listing, it did refer to the May 9, 2007 document. So the correct version is the May 9' site plan. It appears right now as Attachment 2 in the SEPA appeal staff report. Ms. Ainsworth Taylor: Okay. Ms. Stewart: And it uses the correct phrase, PRD alternative standards request as opposed to variance. Ms. Ainsworth Taylor: Mr. Clarke, I'll let you testify only if you are going to provide me something new. I'm not going to allow it to just keep going back and forth. Mr. Clarke: It is new. Thank you. Page 3, outside analysis of the downstream drainage path. The second paragraph specifically says, if the water on site did not fully infiltrate the flow would continue southwest along dot, dot, dot, and it's on the map. This study specifically says that that if that system does not handle the water, it's coming my way. They need to indemnify, they need to guarantee that my property will not decrease in value because of their iffing and their what iffing statement. That is weasel words. It doesn't say this system is designed to guarantee to take care of all drainage associated with this development. And it doesn't compare the difference between drainage now, unimproved, and drainage improved with 27 houses. With all of those roof and footing drains coming right into the stormwater system, they testify that the roof drains are going to the storm system rather than hook into the individual lots of the homeowners. That's a lot of water. If this system doesn't, we're back to where we are. And that's a concern. We don't have the opportunity to fix this after they develop it. We don't. There's no going back. We can fix and design it now. Let's design the quality into the proposal. Let's make sure it's going to work and professionals will testify that it will work, guaranteed. Maybe the system needs to be over capacity to guarantee there will not be any additional demand on the system. That report doesn't say that. Ms. Ainsworth Taylor: Thank you. Anybody else? Mr. Hertrich: Sorry about that. This is new. Actually one of the comments I'd like to make is I heard someone from staff or whoever it was got up and said a PRD is clustered housing. Well, I call this a block layout, linier. There is no clustering. They are all the same dimensions from each other and it occupies literally the whole property except for a few little spots of open space. So I know what clustered housing looks like. You have a steep slope and you put them all in the little plateau in one area, they get clustered. But here, the property all looks the same. Mr. Hertrich: In regard to that neighborhood feel, I wonder what neighborhood we're trying to compare this to because none of the other neighborhoods have anything less than 25-foot front yard setback. Now if the developer wanted to propose 20 feet, and now staff, and I do not understand why Steve Bullock would suggest that we ought to reduce it even more. Because if they want to reduce the setback in the front to get the so called neighborhood feel, it makes it look more like apartment rows more than anything else, in my mind. That's my own personal feeling. At the same time, if you're going to give up ... And if the developer's happy with the shorter front yard, then have him put the five feet on the back of the property where you adjoin the residents that are going to be affected by this long, massive bunch of buildings. Mr. Hertrich: Also, at the same time, we had the ADB, and I want to quote them from Page 12 of the May 2nd meeting. They talk about consistency with the design criteria 20.35.60. In this they say the design board would support the inclusion of this secondary setback after the City Planner proposed it. And it goes on to allow porches and stuff to be within 15 feet. Now they say that all of the things that they made a decision on are consistent with the comprehensive plan. There is nothing Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 in the comprehensive plan that discusses short little front yards. No where in our City does it suggest that. Secondly, it's not an adopted City policy to allow that specific dimension. The Board is not in position to create ... Ms. Ainsworth Taylor: Yes, the Board is in a position. They are in the position to make a recommendation through the staff and based on comments to me on what they feel should be applied. Mr. Hertrich: I heard the presentation say we were granted, we were granted the 15 foot. There is no granting by staff at that point. So that total statement is incorrect. They made a suggestion, and I'm suggesting that the developer was closer to a reasonable adjustment rather than a radical adjustment. Ms. Ainsworth Taylor: Thank you. Any other public comments in regards to the plat? Any other comments, anything new. Mr. ??: May I offer an illustration into the record? Ms. Ainsworth Taylor: Is it already in the record, per chance? Mr. ??: It's a modification of something that's in the record. Ms. Ainsworth Taylor: For what intent? Mr. ??: To show a proximity to Deer Creek. Ms Ainsworth Taylor: Okay. Anything else on the plat? Okay, then we're moving on to the appeal. We are done with the plat. We have everything else on what's going on with the plat; traffic, drainage, schools, roads, everything we've always wanted to know but were afraid to ask. Ms. Ainsworth Taylor: So for the appeal, we'll have the appellants start, whoever wants to be the first of you to start, it doesn't matter. You can each present (She is explaining how the appeal hearing would proceed, but someone is rattling papers and I can't hear what is going on.) You have now provided these exhibits to the parties and to the City? Ms. Petso: Oh yes. This is not like a lawsuit or anything. This is just items for the public record. Ms. Ainsworth Taylor: But they're also exhibits that you're using to support your case, that they have the right to basically challenge and object to. Ms. Petso: I don't understand. How do you object to public comment? I thought this was a public hearing combined with my appeal. Ms. Ainsworth Taylor: It is a public hearing combined with an appeal, but you've got lots of documents like CC and R's and whether those are applicable to those matter. Ms. Petso: Well those are CC and R's. Ms. Ainsworth Taylor: I'm only prepared to listen to the appeal that I have records for, which was the written appeal that they (Again, I can't understand what she is saying because someone is rattling papers and coughing into the microphone.) Ms. Petso: That's not the way the processes have worked before, nor is it my understanding. My understanding is that this was noticed as a public hearing, and also the document deadline was the 21', which is today, so I submitted them today. I ask that you take a recess while staff runs some copies for us, but there's no way that this can be excluded without providing a serious error of process that's going to result in we know aware. Ms. Ainsworth Taylor: How is the appeal handled? I understood that there had to be a deadline after an MDNS was issued, and the appeals themselves were filed in a timely manner, so these additional things become ... Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: She's given both Heather and I permission to address the plat in our regular proposal, and so if you want to consider that all of these exhibits address the plat only, that's fine with me. Ms. Ainsworth Taylor: As long as they're applicable to the plat, but if they're applicable to your appeal... The way the appeal, at least, works for me, maybe historically it hasn't worked this way in the City of Edmonds before I started working here, it is done similar to a trial situation. You are appealing, you filed your appeal to the City, and you did it in a timely manner. Typically, I'll be offering the City and applicants a chance to respond to that review. Ms. Petso: Well, just a month ago, we just did it. We went through apparently an entirely different process, and it was considered an open record hearing, and I provided all of the exhibits because after this it's apparently a closed record hearing. So obviously, you bring your exhibits to the open record hearing, and I have done so. Ms. Ainsworth Taylor: Okay, different ground here. Before you start speaking, I would like to finish up with what I have to say so ... The appellants will give their presentation, it will be limited. If you want to address plat based issues, note that you are addressing plat based issues. You set forth in your appeal certain items, certain claims that you had, issues in regards to the Mitigated Determination of Significance. Those are your appeal issues, and only those items are addressed on your appeal issue. Ms. Petso: I don't understand then what I would be expected to do with something like drainage issues, which is both an appeal and a plat issue and everybody so far has talked about it. Ms. Ainsworth Taylor: Well, in your appeal you said you appealed for failure of public notice, so that's an issue on appeal. You're going to be arguing how the City failed to give public notice. You said they failed to evaluate environmental impacts, identify environmentally significant features, require an EIS, and provide adequate information. So those are your issues on appeal, and that's what you're arguing. So if you want to in your argument say they didn't properly evaluate the drainage issues and this is how so, and these also apply to the plat. That's fine. Ms. Petso: Okay. Ms. Ainsworth Taylor: Those are your issues, so don't go beyond those. Ms. Petso: I'm sorry, do you have a copy of my appeal letter? Ms. Ainsworth Taylor: Yeah. Ms. Petso: Okay so, on Page 3, we have drainage. On the bottom of Page 3 we have aesthetics. On Page 4 we have traffic and safe access to the park, lack of emergency exits, lack of street design safety and aesthetics, and put visitor parking and the fish and wildlife habitat conservation act. Okay so Okay let's perhaps we could just go along with this and if ... Okay, anyway. It totally lost track of where I was going to start. Ms. Ainsworth Taylor: So you will have an opportunity to present your case, using any witnesses you may want to call. The City will have the opportunity to cross examine those witnesses, to challenge any of your exhibits and then you will have time to rebut. I would like to, given the time of the day, I'd like to limit your presentation to no more than an hour if possible. Ms. Petso: I have no idea if I can do that or not. But given that people were previously being given numerous shots at the mike, I would like to just go through my presentation and see how we do. Ms. Petso: I believe according to the code for these hearings in Edmonds, I read that people can talk as long as they want and if necessary, the hearing can be continued. But those people talking aren't ??, especially the presenters. Ms. Ainsworth Taylor: The rules of procedure do allow me to limit time on the person speaking if necessary. It's normally done in the public format where we're having all the people come up to the mike so that we're not having people just keep Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 talking and talking and talking. But an hour of argument time in court, I mean, in Supreme Court you get 15 minutes. So this is a pretty good time limit. I'm saying an hour of time, because otherwise, we are going to be here an awful lot of time. Ms. Petso: I could really do with a 2-minute recess which we would like to have the staff make copies of the exhibits before we get going? Ms. Ainsworth Taylor: Do you want to see the copies of the exhibits? Mr. Lutz: Okay, I will probably allow you to voice any objections, and staff as well because you are a party to this, as well. Ms. Petso: Okay, to start off with this, I do want to mention because it came up earlier, that I am a commissioner with Olympic View, and so I can't testify to staff matters like how they're going to get the water there and that sort of thing, but I will let you know that yes, it is the aquifer that drains to Deer Creek, and no, Deer Creek is not a low-water source. It's considered ground water under the influence; it runs down and hits the famous clay layer of Woodway and then runs over to Deer Creek and comes out the side of the hill. We treat it in a plant at that site. There's a watershed study for Deer Creek and Olympic View will have a copy of it. It shouldn't take any great effort for anybody to pick one of those up. Ms. Petso: I would also like to ask, were you able to make your site visit, and did you do it today? Ms. Ainsworth Taylor: No I haven't. Ms. Petso: Oh, you have not done the site visit. Okay, it's my understand that's supposed to occur before the hearing and new fences have gone up today, which are going to make that a lot more difficult for you to get in. I would recommend the Marks residence as perhaps the easiest access to the site at this time. Ms. Petso: So looking at the exhibits, on Page 3 I've provided for you on the back of that same map showing ... Ms. Ainsworth Taylor: Are these the documents that you submitted just earlier? Ms. Petso: Yeah, right there with the big paper clip. The top page. The colored map of this site, which shows the full-sized athletic fields. It actually shows the entire property. The green is what the City bought. The little yellow circle is an ornamental cherry tree. Ms. Ainsworth Taylor: We're only concerned with what's in the pink lines. Ms. Petso: Okay, so in the pink lines are the two full-sized playfields and also the drainage ditch that the Millers were referring to is along the far left of that photo. Ms. Ainsworth Taylor: And is it on the plat? Ms. Petso: Well, it varies. It's on a different spot on the plat than it is on the study which Don referred to. The 2003 Edmonds Drainage Basin Study locates that drainage ditch at a different spot. So it depends which set you read, where it is. For sure it's at the northwest corner of the property. The ditch is a deliberate part of the existing drainage system. It was shown in Exhibit 1. In Exhibit 1 of my materials, I have the Southwest Drainage Basin Study Map of that ditch. By the way, the Drainage Basin Study is part of the comp plan for the City. The ditch was expanded in 1983 at citizen request, and that letter's attached at Page 46 because the ditch was overfilling. I've enclosed another exhibit, which shows that when the ditch was first expanded, there was no vegetation. Today, if you look at the packet of materials, jumping to Page 35, you can see now what the drainage ditch looks like today. When you go do your site visit, it's at the far northwest corner of the property that you will see this vegetation. One concern, of course, that's been raised in the appeals is that the wetland report didn't do any soil samples. Part of our definition of a wetland is that the soil is saturated. So if you're going to determine whether that's wetland vegetation and that soil is continually saturated, you would need to probably sample it rather than just say, gosh, I didn't see standing water. For all I know, the wetland consultant didn't even walk onto the property and locate the ditch because it's in the furthest possible point from the parking lot. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: There's also a portion of the building area, if you look back on Page 3, the existing structure extends over into the property in pink. That existing structure does contain asbestos, and the asbestos has to be mitigated. There's been an appeal because of the demolition of the buildings, in order to determine the asbestos mitigation plan. Last week I filed a public records request seeking the plan. Ms. Ainsworth Taylor: Isn't that building on the City's property? Ms. Petso: No, there's 2'/ feet of it in the pink property, which puts it on this property. Ms. Ainsworth Taylor: And whose liable for the removal of the building? Is not the City? Ms. Petso: The demo work will be done by the City, but the environmental impact will be everywhere. Ms. Ainsworth Taylor: But then, isn't that concern of that environmental impact addressed to the City in their mitigation determination for that parcel of land and that removal? Ms. Petso: I doubt it because the Hearing Examiner probably said the same thing you just did. I'm more concerned with the stuff in the green line. So it probably wasn't addressed. The SEPA had a demolition plan for that item, and to be honest, there is even some question as to whether or not it's a constitutional gift of public funds to be giving the demolition service away free to Burnstead. I don't have a resolution on that. The Blue Line denotes a portion of a fish and wildlife habitat conservation area. By the way, that is a critical area under our ordinances, and it is not only adjacent to the property, but as you can see from my rough map, it's on the property. Ms. Petso: If you look at Exhibit 2, I've taken a photocopy of the fish and wildlife habitat conservation area as it appears on the City's Critical Area Map, and I have brought, my husband made some nice scale overheads for us, overlaying the Burnstead property with the critical areas. It shows on the overheads that a critical area is on the Burnstead property. As you pointed out earlier, even if it wasn't, the fish and wildlife habitat conservation area and the Critical Area Ordinances apply to this. As Roger Hertrich pointed out earlier, if the land is in a fish and wildlife habitat conservation area, it cannot be counted towards the open space of the development, which means that the development does not meet the 10% requirement of the PRD. Ms. Petso: This fish and wildlife habitat conservation area was identified in the checklist, the environmental checklist at Page 9. Although I was somewhat confused for a while because at Page 11 it said there's no environmentally sensitive areas. It's right at the top, Page 9, Question C, is the site part of the migration route? If so, explain. The answer is not to our knowledge. However, a portion of the property is within a fish and wildlife habitat conservation area. Now I'll discuss later the requirements that come from that, but one of the immediate requirements that come from that, and I think that applies even if it's adjacent to a fish and wildlife habitat conservation area, is an environmental assessment is triggered. Ms. Petso: I have attached the flow chart from our minutes, from our board minutes, which shows how this fish and wildlife habitat environmental analysis is supposed to occur. What's supposed to happen is if there's one in your City property ... Ms. Ainsworth Taylor: What exhibit are you referencing? Ms. Petso: Ah hang on two seconds, and then I can put an exhibit number on it. Okay, the flow chart, and it's a very tiny print but I'm sure you can get bigger print from the City. It's amazing how quickly things can disappear. The flow chart's Exhibit 52. Basically, it provides if there's a Fish and Wildlife Area, you check and see if it's within 300 feet. If it's within 300 feet, you do an assessment of the habitat. The assessment will include a detailed map and a report from a biologist. If it is determined by that assessment that the habitat is degraded, then you proceed with such steps as a mitigation plan or you simply protect the area. In the case of our PRD ordinance, I believe it requires you just to totally protect the area. I needs owns designation as a critical area protection area or something. Ms. Petso: On Page 24 of the materials I gave you, there's a photograph of the area showing the variety of habitat available there, and it includes tall grasses, bushes, smaller trees, taller trees, and even downed logs. These are all quality habitat elements. I have a copy if you want, we can walk through this. So I have the critical areas ordinance, maybe I have the Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 wrong version, but I have a Chapter 23.40.040, the designation of critical areas. Number B.5, well no. Critical areas regulated by this title include, Number 5, fish and wildlife habitat conservation areas as designated in Chapter 23.90. When you go to Chapter 23.90, you will find that not only do they have to meet the requirements of the critical areas ordinance, but they also need to provide additional studies and follow additional procedures specific to a fish and wildlife habitat conservation area. Ms. Petso: In trying to put together my materials for this, I made a number of public records requests to the City regarding this critical area, and this ties in, by the way, to one of the notice violations. One of the requirements is that the notice indicate critical areas on the property. If the notice had done so, and if I had known that the City was going to disregard the regulations and not have a detailed map or a biological assessment of this area, I would have been able to take care of those things myself, although at my own expense. But as it is, I didn't realize until I started doing public records requests about the week of June 12', and this I my Exhibit 44. I submitted a public records request for the for the official fish and wildlife habitat conservation area assessment, and I got the steep slope report or soil samples. I submitted a second request, and still didn't come up with it. So I submitted a third request, specifically for the biologist's report. They haven't come up, and I suspect it hasn't been done. And it needs to be done. Ms. Petso: You know, one of the things that we ran into with our last SEPA appeal is the City likes to say, well we can do that later. Well, this ordinance is specifically tied to SEPA. It says do this report when you do the SEPA. Okay, so the thing needs to be done. Ms. Petso: Also, I noted in my appeal about the playgrounds in the park. This is one of the environmentally sensitive areas by the way. Ms. Ainsworth Taylor: How is a park an environmentally sensitive area. Ms. Petso: Now the park is an environmentally sensitive area because the WACs define it that way. It's 197-11-330-3-E-1. You know, it makes sense because SEPA defines recreation as part of the environment. So obviously, a park or sports field is part of the environmentally sensitive areas. Ms. Ainsworth Taylor: A park is not defined as environmental sensitive area. Ms. Petso: No, it's not a critical area. It's an environmentally sensitive area. Ms. Ainsworth Taylor: Under the Edmonds Code? It has no special designation under the Edmonds Code. Ms. Petso: Edmonds code doesn't have environmentally sensitive areas. The WAC does. I assume the checklist was based on the WAC. Okay, so anyway. Boy this is jumping around a lot more than I intended it to. I'm very sorry. The property is an existing City park. Ms. Ainsworth Taylor: The Burnstead property is owned by ... Ms. Petso: The ownership doesn't matter. It's always been a park and it's never been owned by the City. We have dozens of parks that are not owned by the City. The property is an existing City park. Ms. Ainsworth Taylor: I'm going to stop you right there because the property is owned by the Burnstead Corporation. Ms. Petso: That's correct. Ms. Ainsworth Taylor: It may have existing ball fields and soccer fields on it that had been previously utilized as a public park by City and County residents, but Burnstead now owns it. They purchased it and it is not a City park. Ms. Petso: They purchased it subject to the interlocal agreements that provided for the park. That's in Exhibit 22 or it's probably easier if you look on Page 11 of my materials. The restriction is detailed as follows: Snohomish County Regional Recreational Task Force Interlocal Agreement, the purchase was done subject to this restriction. It's on both the City Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 transaction, it's on the sale to Burnstead, and it's on the Burnstead title insurance policy. The signs on the property do continue to designate the property as a City park. It's listed in the comp plan, and comp plan consistency is going to be one of the requirements. This is hard to present when you're so totally not agreeing, but anyway, Page 12 please. Ms. Ainsworth Taylor: I guess my question is, in reading the rebuttal from Mr. Lutz is that the ILA that you're referencing in your documentation on Page 11 has been terminated. Ms. Petso: No it hasn't. It was ... It requires that it can only be terminated by agreement of all three parties, with the formalities used to put it in place. The formalities used to put it in place were under RCW 39.34 or vice a versa 34.39, I can't remember which one it is, covering interlocal agreements. It says that government agencies can't do this sort of thing without approval of their legislative bodies. The County went through a process to approve it, which you actually know because you said you worked on the Management Hearing Board case. I challenged the Counties process as violating their comp plan. The Growth Management Hearings Board never decided on the merits. They basically said the property's in the City of Edmonds, take it up with them. Ms. Petso: So the County did go through a termination process on this, but that's only one of the three parties. The City, on the other hand, didn't. In fact, on March 20r' of this year, just a couple of months ago, the Mayor came to City Council and said would you please ratify my accidental oops attempt at terminating this contract without your approval. The Council said no. That information is basically on Page. Oh it's tough to get out of order. The Council basically said no, we can't see what's in it for the City. To quote Council Member Dawson, she understood the school district's motivation to terminate the ILA, but was uncertain of the benefit to the City. Again, she made here comment again, and this is all in the materials. Ms. Petso: The other item in the materials that I think you need to be aware of is that even the County's termination was illegal. At the County hearing, it was pointed out that the termination provisions, Paragraph 0.4 said the contract continues for 10 years. Paragraph 0.5 said it can only be terminated on the agreement of the parties of such. Ms. Ainsworth Taylor: I'm actually going to stop you here because although I understand your premise that the ILA is still in, if in play, in part, or if the Burnstead Corporation is held to the restrictions of it, my jurisdictions isn't to determine whether the County or the City acted appropriately to terminate or not terminate the ILA. I have no jurisdiction over making that determination. Ms. Petso: No, your jurisdiction is, however, to determine the environmental impacts, and one of the environmental impacts of this is that they are going to up homes on not only a property planned for a City park, but property that is an existing City park. So I need to present this evidence because you apparently didn't believe it was a City park. Ms. Ainsworth Taylor: I completely understand that should be the basis of your SEPA appeal, but once again, to go into the details of the ILA agreement and what the Mayor said and what the City Council said, that goes to the validity of the ILA, which I have no jurisdiction over. I have no determination of its validity, Snohomish County's actions, the City's actions or the school district's actions. Ms. Petso: Okay, I'll approach it from the perspective, then, that you have jurisdiction over deciding if this is consistent with the City plan. Ms. Ainsworth Taylor: Yup. Ms. Petso: So on Page 12 the City Park Plan is shown, well one page from it. The subject property is delineated down at the bottom of the left hand corner, and as a big purple star. You may not be able to read, but I'm sure the staff can get you the full blown up size. It says proposed neighborhood park. The little arrow beside the property stands for trail connection, as in a proposed trail connection to the other nearby property. The map also shows the desperate need for neighborhood parks in this part of town. There are no parks. The parks are denoted in green, so you can see that about 115 of the town is completely lacking in parks. Even the nearby green spot that's labeled R-44 on your picture isn't a park either. It's a cemetery. So it's really the bottom quarter of the town has no parks. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: The baseball field is listed in the field inventory of the comp plan, as is the soccer field. Let me show you just one picture of how these fields are counted because it's really interesting. On Page 5. Ms. Ainsworth Taylor: Page 5 of... Ms. Petso: Of the materials, the smaller packet. This photo was taken last spring of 2006, demonstrating how the playfield is used. Even though it designates that there's only a baseball field there, the comprehensive plan also counts it as a soccer field. As you can see, there's only one team practicing on the baseball field, but there's also two teams of T-ball kids also practicing on the soccer field. So the impact of the loss of this planned use, the environmental impact, will be huge because of the lack of fields. Let me see if I can locate the area... I have to do this from memory because I can't find it. The field shortages documented in the comprehensive plan currently, 38 acres of open space. Ms. Ainsworth Taylor: Can you once again reference for me where you're ... Ms. Petso: I'm sorry. Page 14. We're short 30 acres of open space, although I think 2 acres of what the City has already purchased would reduce that down to 28 acres. We're short 28 acres of neighborhood park, and I suppose we can drop that down by three because of the small park the City acquired. We're short seven baseball field, half a softball field, and four soccer fields, as well. The loss of planned fields and existing fields in a town already facing a shortage, renders this inconsistent with the comp plan. I understand the zoning, I saw something in the letter about the zoning. But the purpose of creating an actual zoning ordinance is to provide for houses and compatible uses. They're equal purposes under our zoning ordinance. Ms. Petso: If you look at the zoning ordinance, it also provides not only that those two are equal uses, but that they're equally important under the purpose section. So both are allowed uses. However, under the comp plan, the park is the planned use. I would like to give a personal illustration of this. (The tape changed here so there is probably something missing.) Typically use you use Westgate Elementary as a field. This year some T-ball teams took it over, and we've played, in fact, near Roger's house. The field at Roger's house is not full sized like the field in the photo is, and so it involves a drop off of about 5 feet halfway out to left field. It also involves an enormous safety hazard to children on the big toy because somebody cleverly located the big toy right behind first base. Ms. Ainsworth Taylor: I'm going to stop you once again and ask you how that relates to the Burnstead property and the environmental analysis. I understand that that part of the environmental analysis, recreational aspects of the environment need to be analyzed. Ms. Petso: Okay, and full-sized playfields are needed suitable for safe adult play, and these are full-sized playfields. Ms. Ainsworth Taylor: It's true, but the only way to maintain them as a full-sized playfield would be for Burnstead not to develop his site. Ms. Petso: That's correct. Ms. Ainsworth Taylor: The site was available for development and purchased by the City. Ms. Petso: No, the site was available for sale and was purchased by Burnstead. Ms. Ainsworth Taylor: And the City, I'm sure, had the ability to make that purchase, as well Ms. Petso: No, the City had the opportunity and made several full -price offers for the property, excuse me, not full price. The City made several offers for the property. The second to the last offer was to buy all 11 acres. It was declined. The City requested rights of first refusal. The City offered them $1.7 million, and the school district said no, $7.3. Ms. Ainsworth Taylor: Okay, regardless of all that... Ms. Petso: The final offer. . Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: The final offer stayed somewhere in the middle. The property owner, the school district, has every right to sale their property to whoever they would like to sell it to, just like you as a homeowner can sell your house to whoever you would like to sell it. They decided to sell part of the property to the City and part of the property to the Burnstead Corporation. Ms. Petso: Correct. Ms. Ainsworth Taylor: And so how does the Burnstead developing this property so impact recreational aspects? Ms. Petso: Because the contract for the playfields was to run to 2009, and Burnstead accepted the contract. Ms. Ainsworth Taylor: Keep out of the contract since it is out my jurisdiction. Ms. Petso: Okay. Because the property is planned by the City for acquisition to meet park needs, we are deficient in park needs; we are not deficient in housing. Ms. Ainsworth Taylor: It sounds to me that the argument that should be made in the Legislature for the City to encourage them to purchase the property. It doesn't have any impact ... Ms. Petso: Oh, it was when it was bought. Six of the seven Council Members voted to buy it at the last one, and you haven't let me talk about the last one. At the last meeting, and it's in the exhibits, six of the seven Council Members wanted to purchase the 5'/2 acres because that's what they could get a yes on. They also, at the same time, asked the school district to give them the opportunity to the end of the year to come up with the money to purchase the remainder. It is not a policy change in the comp plan that occurred. It was simply the inability to get the school district to give them another few months. Ms. Ainsworth Taylor: And that's totally within the discretion of the school district. Ms. Petso: Absolutely, but the development impacts are not. In much the same way as they're not supposed to cut down the trees and put a rockery in a fish and wildlife habitat conservation area, they're not supposed to build houses on playfields in the City with a documented shortage of playfields that is meeting it's growth management goals. Ms. Ainsworth Taylor: And do you have case law citation for that? I mean where is that, your personal statement? Ms. Petso: No, I have it. It's the Weyerhaeuser versus Pierce County. What says is that while the comprehensive plan is usually just a guiding document... Ms. Ainsworth Taylor: A guiding framework. Ms. Petso: Thank you, that's the words. When the ordinances, the development ordinances... Ms. Ainsworth Taylor: Development regulations. Ms. Petso: Thank you, development regulations Ms. Ainsworth Taylor: When there's a conflict with the development regulations... Ms. Petso: No, no, there's no conflict here. But when the development regulations require consistent with the comp plan, then you can look at the comp plan, so that's what I'm doing. Ms. Ainsworth Taylor: When there's inconsistency between the comp plan and the development regs, the development regs always control. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: No, there is no inconsistency. The RS zoning allows ?? for houses. It's our Com Plan that, in this case, I'm saying determines which it is. The reason you don't disregard the comp plan is that Weyerhaeuser case which says, if all the little statutes say look to the comp plan, then you may. It was to overturn the over reading of the Mount Vernon case, I forgot what that's called, citizens versus ... Ms. Ainsworth Taylor: Citizens versus Mount Vernon. Ms. Petso: That one. Ms. Ainsworth Taylor: Citizens of Mount Vernon ... Ms. Petso: But I think the Board said something like that was being read over broad and we don't mean that you totally blow off the comp plan at all times. You do when the developer makes ?? to the comp plan, that's what you do. Ms. Petso: The school district did try to get a comp plan amendment, but it they withdrew it. Actually for the reason that I've been saying, because one of the criteria to get a comp plan amendment would be maintaining the appropriate balance of land uses in the City. Ms. Ainsworth Taylor: Again, we're looking at the appeal and the appeal. Ms. Petso: All right, I'll get on to the plat in just a second. Because we're jumping around I have to take just a second to figure out what we've skipped. Well, okay. I guess as long as we're looking at consistency with the comp plan, I should address the comp plan provisions other than the map that provides for a park, and I guess I'll do other than the promote health, general welfare and values of the community because that's probably related to the park. Ms. Ainsworth Taylor: That's actually related to the zoning ordinance as a whole to benefit the public safety and welfare. Ms. Petso: Policy C would be conserve and restore natural beauty and other natural resources, so my contention would be that the fish and wildlife habitat conservation area would fall as a beautiful and natural resource and ought to be preserved. It certainly shouldn't be half designated for Lots 17 and 18 and then a rockery/retaining wall inserted into it. Oh, I can't talk about Policy E because it says to provide adequate public services, including parks. So, I'll move onto drainage for a second, if I can find it in here. Ms. Petso: By the way, the drainage issue is, I think, one that we determined at our last SEPA appeal was probably fully well ready for an environmental impact statement, and the reasoning there is it's just guaranteed to create an impact. When we say that, staff says, well, we can only regulate to the extent of our code. But the SEPA law says if you have a significant adverse environmental impact not covered in the codes and not capable of mitigation, that's when you do the study. So this is when you do the study, when you have the situation we're in now. Ms. Petso: There we are. I found it. Okay, there's two separate sections to my drainage issues. One is the elimination of the existing drainage ditch because, to me, that's guaranteed to put water in the Miller's back yard. Now you heard from them earlier. It was fascinating, when the Millers said don't raise your property so that the water floods into our yard, the builder came up and said, oh no, no, we're just going to kind of fill in the ditch. But then, when Kevin came up and was worried about all the dump trucks and stuff leaving the site, the builder said, oh no, we're leaving the dirt on the site. Well, if the dirt's on the site from excavations and things, it's probably going to raise the property behind the Miller's house. If that occurs, and even perhaps if it doesn't occur, then the water's going to land in the Miller's back yard. Ms. Petso: Now, there's some speculation that since the facility was being sized however it is being sized, that that would eliminate the need for this drainage ditch, but it's not going to happen because, for example, and it's in the 2003 drainage basin study, some of the water in this ditch comes from off site, down that steep slope. Other water in the ditch, of course, doesn't. It comes from the property. But the ditch is in this area, where the water collects off the steep slope. It isn't going to be connected to the drainage facility that Bumstead is building. And so, you know the way the land slopes there. It will, in fact, wind up in the Miller's back yard if that drainage ditch is eliminated. That drainage ditch, by the way, is not an informal drainage ditch. It was done on purpose, and it's in the City's Southwest Drainage Basin Study. I strongly encourage Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 you to get a copy of that from staff because all I've done in my materials is to quote the study. I haven't actually got a copy of it. Although I drew a couple of exhibits from it, like Exhibit 1 there. Ms. Petso: If you look on Page 31, for a moment please, of the materials, you can see an overview of where the flooding and ponding occurs. I'm sorry, Kevin, I know its flooding and not ponding, but the study calls it ponding. I want to read some of the comments. Page 4-9 of the drainage basin study, numerous drainage problems exist within the Woodway Meadows 238t' catchment. The problems are summarized as limited drainage facilities ponding on the right-of-way and multiple private properties. Another way I have right here to describe the problem is to say that our children grew up playing in the flooded cul-de-sac on the south end of 1071, and I have a feeling that, if you would like, we could probably provide some nice video tape of the kids riding their bikes through the flood. Ms. Ainsworth Taylor: I guess my question is following on the presentation earlier is that, I understand and based on the testimony and everything given, that in the Woodway Meadows to the south of this site has some issues in drainage. I don't think the City is even disputing that. Ms. Petso: Okay. Ms. Ainsworth Taylor: They've agreed that there's flooding issues, but as Mr. Lutz said how the Burnstead property is not required to correct Woodway's problems, or Woodway Meadows' problems. Ms. Petso: Okay. Ms Ainsworth Taylor: They're required to address their impacts that their own development's going to be creating. So can you try and keep your testimony to what you feel their impacts may be. Ms. Petso: Sure, and they're also not allowed to let it get worse. Ms. Ainsworth Taylor: Right. Ms. Petso: Okay, so according to the drainage basin study, it modeled using an infiltration rate of six inches per hour. Somewhere in here in my materials... Ms. Ainsworth Taylor: I believe Burnstead has modeled at a 100-year storm, with a detention of... Ms. Petso: You know, 10 inch, and I'm not a drainage expert, but I gather that that's probably faster as it anticipates 10 inches per hour rather than six, but I could be wrong. Anyway, the six inches was chosen by our plan because it was long- term and sustainable. Our plan does say that short term, you could probably do, and I can't find it in here, but it's in here, you could probably do eight to twenty inches of infiltration short term. But after a couple of years, because of the effect of the sediment in the system, it can't dissipate that much any more. So what we have in place is a comprehensive plan that says for this area of town, we use six inches per hour. Ms. Ainsworth Taylor: The comprehensive plan you're referencing in that regard is that southwest drainage plan. Ms. Petso: Yes, the 2003 Southwest Drainage Basin Study. It says that that's a sustainable rate for the area. Now, if they were able to come in and say, well, but we did a study right here, exactly where we're doing the thing and its billion inches per hours, that would be different. But actually, if you look at their little schematics of where they dug their holes, none of their holes were dug where they're putting the drainage facility. And I don't know why that is, but it is. Ms. Ainsworth Taylor: Well, I guess I question you saying that the Southwest Drainage Basin Study says six inches is a good number. Ms. Petso: It is. It says what to use for building and siting... Ms. Ainsworth Taylor: And they're using 10. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: These guys are using 10 inches per hour, assuming that's how fast they can dissipate water, when in fact they can only dissipate or infiltrate it at 6 inches per hour. Let me go on. So their facility winds up undersized as a result. For example, the studies show that for a 2-year event, properly constructed 48-inch diameter dry well could infiltrate the runoff for 1,600 square foot tributary area without overflowing. The 5-year event could handle only 1,300 square feet. I guess we didn't study the 100-year event. The applicant is proposing to drain 6,500 square feet into a single -facility, and we're showing these other facilities can only cover 1,600 and 1,300. Ms. Petso: The study, by the way, also specifically says, no way, no how, do you channel water in this part of town into a single facility. You spread it around into smaller facilities. Okay, on to a larger infiltration facility, then. The studies show that if 100-foot pipe, I believe the applicant's suggestion is a 132 foot vault, the 100-foot pipe can infiltrate 14,000 square feet for a 2-year event and 11,000 square feet for a 5-year event. Again, the applicant has 65,000 square feet of roadway to drain. So if a 100-foot pipe is only doing 11,000, then I guess they're going to need a much larger facility. Probably the 10 inches per hour accounts for the difference, but that's not the rate you're supposed to use there. Ms. Petso: Two more concerns that will probably really scare Kevin. Apparently, according to the ADB minutes, the facility, and by the way, this comp plan I'm talking about sets out a maintenance schedule for this part of town, specifically, as in here's how you're going to maintain this part of town because we have issues. The applicant is proposing this be maintained by the homeowners association, and ... Ms. Ainsworth Taylor: A stormwater maintenance agreement is entered with the homeowners association. Ms. Petso: Actually, the document I saw claimed it was in the CC and R's, and I can find it, that's why I attached the CC and R's. Actually, it's because I wanted to waste a lot of money on photocopies. The other problems is that the emergency drainage from this facility... Ms. Ainsworth Taylor: The proposed facility that Burnstead is proposing? Ms. Petso: Uh huh, the proposed facility that Burnstead has in mind, in the event they can't infiltrate at 10 whatevers per hour and does overflow, the overflow goes onto 237'. That's the existing street into the neighborhood, which then runs down to Kevin's house. It's interesting. It would be nice if this was only just about Kevin, because he's well trained in sandbagging and stuff like that. Although perhaps not quite as well as Mr. Feldman. But I've talked to some folks who because of the elevation rise in this neighborhood isn't all that much, it doesn't take much before a flood at Kevin's house becomes a flood at my house. So even though I live a little bit up stream and at a higher altitude than Kevin, it could still be a problem. Ms. Petso: Oh, I finally found the other part. Concentration of drainage runoff should be avoided wherever possible by employing large numbers of small distributed infiltration facilities as compared to using pipes and dishes that route flow to a few large facilities, or in this case, one. Ms. Ainsworth Taylor: This is once again coming from the drainage basin study? Ms. Petso: Yeah. Page 4-10. Ms. Ainsworth Taylor: I don't have the study. Ms. Petso: I know, but if you jot down the page, I bet you could see it. Otherwise, you can read it on Page 34 of my materials. Again, on Page 4-11, a dispersed infiltration facility concept, using dry wells and infiltration pipes, is the recommended method for disposing of stormwater runoff in the drainage system. The intent of this concept is to keep runoff water dispersed in low quantities rather than collecting and concentrating water in large volumes at a single location. So I think that since the facility doesn't comply with the comp plan and doesn't look like it's going to be able to do the job, and since, although nobody cares we already have existing problems, the environmental study is the appropriate answer to the drainage issue. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: Plat issue. I don't know if this a plat or an environmental issue. I put it in my appeal as an environmental issue; it's probably both because the PRD ordinance requires a buffer. There is none, at least I couldn't find one, but it sounds like there's a number of site plans floating around, and maybe I don't have the right one. But in the early days of PRD's we used to do perimeter buffers, and they were outside of the lots; they weren't on the lots, you know. And they had like space so if somebody was running a weed whacker or mowing a lawn, you weren't 2 feet away from it if you were walking on a path in the proposed City park. You were like 20 feet away from it because there was buffer there. It doesn't look like we're going to get that. It looks like the buffer is a fence, and that they'll be a couple of trees. I'm particularly concerned about the east side of the development, bordering the City park, because at the park planning meetings, people have requested a perimeter trail to the park. Walking is one of the main forms of recreation that people are seeking. Ms. Petso: Do you need a citing for the buffering requirement or not? Ms. Ainsworth Taylor: No, go ahead. I'm a multi-tasker. Ms. Petso: Okay, and landscaping, it looks to me on that stretch of, I can't remember, it's three or four lots... I know I think it's going to be reduced by at least one lot because of the fish and wildlife habitat conservation area, but even so, you still have three or four lots left with a couple of trees along them, and that's supposed to be a buffer. That's not what it should be. Ms. Petso: Undergrounding of utilities. We're supposed to rely on the code. Somebody cited the code section 18.45, I think I heard, I'm not sure. It says that if you can show it's going to be expensive to put the utilities underground, you can have a variance. So that isn't going to help. So if you would kindly turn to Page 36 of the packet, I'll show you a photograph. Ms. Ainsworth Taylor: Well, I believe Burnstead has proposing to underground. Ms. Petso: Well, the proposal is to underground, but as Mr. Hertrich told you, if you don't write it in now as a condition of what we're doing, it won't happen because they'll come in through a variance hearing and say well, we can show it's going to be more expensive to underground, and they won't be undergrounded. So on Page 36 of my materials, there's a photo showing the existing Woodway Meadows neighborhood. On Page 37 is a photo of exactly the area that Kevin was concerned about. This brings up, by the way, the photo on Page 37 brings up another concern with the public notice. That's your land use sign. Ms. Ainsworth Taylor: On Page 37? Ms Petso: On Page 37. Do you see the three or four yellow cones on the ground? Ms. Ainsworth Taylor: Oh, so it's facing out towards the street as people are going ... Ms. Petso: There's a sign leaning up against the fence there. I gather the cones are to prevent people from walking by when its windy and getting hit with the sign. I don't know. It was ?? by the way because if the sign blew over you probably would get hit, but anyway, yeah, so that's another concern about the notice. One, they didn't tell us about the fish and wildlife habitat conservation area, which has to be in the notice of application, which I attached as one of my exhibits. And two, the sign is so ??, nobody knows about this anyway. Ms. Ainsworth Taylor: I thought they all came to see me. Ms. Petso: They probably did. There's an aesthetic issue, as well, which will probably be taken care of when somebody does the required study of the fish and wildlife habitat conservation area. But if you look on Page 38, this photo is taken from what will become the City park property, and that is everything pretty much you see to the right and in front of you in this picture is the fish and wildlife habitat conservation area, with the possible exception since we don't have a detailed map made yet of the area, of the four tree on the left, which land in Lot 17 or 18. It's obvious which lot they're going to land in, and they're scheduled to be cut down. So the point of this photo is that if you take off the four trees in the far left, aesthetically, you lose about 1/3 or possibly half of the backdrop to the park. Independent of whether you decide if there's a fish and wildlife habitat conservation area there, the aesthetic value of those four trees is obvious. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: Staff, in their reply to my appeal, claims that mitigation addresses the trees, but obviously, you know, those are like 65 to 80 feet tall, and you can't just plant a tree there, and you know, have mitigated the aesthetic impact. The staff also claims that more trees will be retained than if it was developed as a subdivision, but because it's a fish and wildlife habitat conservation area, I doubt that's true. It's a critical area, and it's going to be protected, and so there's no benefit in that sense to the proposal. Ms. Petso: The drainage ditch intermittent stream, I've already talked about, that the wetland consultant needs to determine if what was started out as a man made drainage ditch is now a critical area. This was really interesting. I had a concern, of course, of displaced playground users, and there was a question in the EIS about people who would be displaced by the proposal. And the answer is all those kids on Page 6 or whatever would be displaced by the proposal because they won't be able to get out there and do their thing. Ms. Petso: Oh, speaking of which, if you would turn to Page 24, I think, no I can't find it, oh rats, okay. There's some new fencing gone up in the area that will probably make your site visit, which ought to have already been done, by the way, a little more difficult because the first set of fences was apparently put on the Burnstead property. Although baseball practices and such other park uses have been going on behind the fences ... Oh here we are, Page 21. As you've heard, our neighbor in a wheelchair, Gary, all residents can get into the property, except the three parents who were too lazy to hike around through the trees, in the photo on Page 21. But the baseball team had no problem getting out there. So Gary went down to the Council on June 5' and got access to the property as shown, as he raised an ADB issue. On Page 22, you can see where the access to the property now is. The only way to get there now, because the demolition people have put up their fences, would be to hike through the woods. But that's okay, you'll probably want to see the critical area, anyway. Okay, back to where I was. Ms. Petso: So displaced, staff says usually the ?? units, but my contention is all these kids are going to be displaced. Staff contains that the setbacks from the plan are consistent with City code. But they're not because the code requires greater building setbacks from a fish and wildlife habitat conservation area than what's in the proposal. The proposal's probably okay for PRD boundary setbacks, but it's not okay for setbacks from a critical area. And so, any lots that wind up, I think 17 and 18 are toast, but whatever's next to them, if they wind up next to a critical area, they can't be 5 feet from the property line or whatever the ADB approved. They have to be further than that. Ms. Petso: Okay, back to drainage again. Staff says if it meets codes, it doesn't matter that it's not big enough or floods Kevin's house. I think Kevin would disagree. And under SEPA, the existence of a drainage code isn't what justifies a DNS, or an MDNS, particularly in this case. It's not a mitigating condition to stop the drainage. Rather, the City has to show that the codes will minimize or eliminate the impact or that the impact has been legislatively accepted. Neither is the case here. There's no mitigation proposed, and we specifically have the Southwest Drainage Basin Study telling us no, we don't want flooding in that area, here's our proposed improvements, here's what our strategy is going to be. It's going to be dispersed infiltration facilities, and here's the study rates we're going to build for. And you know, it's probably not in the plan, but I'm sure it doesn't plan to channel overflow down to an already ponding cul-de-sac. Ms Petso: Subdivision ordinance. It has to be consistent with the comprehensive plan, and I've tried to show you it's not, both on parks and on drainage. Zoning ordinance. Oh, hang on, I found some more parks stuff, but maybe I'm not allowed to say it. It will be a second. Oh good, I am allowed to say this. Where environmental resources exist, this is under our subdivision ordinance, 85.81, such as trees streams, oh trees is good enough, let's stop there, oh, or wildlife habitats, the proposal shall be designed to minimize significant adverse environmental impacts to the resources. Permanent restrictions may be imposed to avoid impact. And of course, my contention would be that the stand of trees counts as that, even if you don't want to go through and dig out the critical areas map, except the code requires you to deal with the critical areas map, so I hope you do or direct staff to do so. Ms. Petso: The subdivision ordinance also provides for minimal grading and street and house and lot placement consistent with the existing topography. The existing topography is like 95% dead flat, and again, the PRD allows you to shift around lot locations a little bit, but you're not minimizing grading if you take the one tiny portion of the property that has a slight 6- foot incline and decide that you need to cut right through it and create a retaining wall. So I would say it fails to meet that requirement. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: It shall be designed to minimize off -site impacts on drainage, view and so forth. If you look at the Miller property, which as a view right now through what will become the City park, through and to the City park, they will be looking at two or three tracts that are separated, well 10 feet by the time you count everybody's setback, two or three chunks that separate the homes. So it's solid house, 10 feet, solid house, 10 feet, solid house. I think I was very clear understanding Mr. Miller complaining about that as obstructing his view. It should also minimize outside drainage impacts, and I suspects you wouldn't let Kevin get up here again, but filling in the existing drainage ditch and providing that the emergency overflow drainage runs into Kevin's house, is probably not a good way to minimize. In my opinion, failing to underground utilities, if you don't require it for us, will also create an off -site impact because we can't get in or out without the visual impact of this neighborhood. Ms. Petso: The proposal has to be consistent with the comp plan, and I think I've already gone through most of that. It also has to be consistent with the zoning ordinance, and I don't think it is because under the zoning ordinance, they're supposed to list the modifications on the subdivision application form. They weren't listed and it's still hard to tell even what modifications have been made. Ms. Ainsworth Taylor: Modifications meaning PRD specifications? Ms. Petso: Yes, some of the PRD specifications. Others I can't tell if they've been modified or not. For example, there was some discussion of the 35% lot coverage area. And then somebody produced a document that says no actually, it's 35.8%, and the numbers show it's even more than that because the environmental impact checklist response only talked about half of the impervious surfaces. The checklist speaks of about 66,000, and I have on here 65,927 square feet in driveway and road. What was left out was the 60,258 for dwelling units. So I hope this is wrong, but if I add those two together, then we're going to have what, 70% lot coverage. No I hope I don't get that. I hope I'm wrong there, because that's just, I mean it's horrible. That would be awful. I would be concerned that it's not consistent with the zoning ordinance. Ms. Petso: The other concern I have, which Mr. Hertrich raised, was that there's this like random secondary street setback created at the ADB hearing. And by the way, I think that you may not know this because of two comments you've made today, but there was no opportunity for public comment at those meetings. This is our first opportunity to comment on what the ADB did and approved. They just sit there, and them and the staff and the applicant all have a discussion, and so the comments we make now are being made at our first opportunity to say, whoa, where did this random variance come from, that's not allowed under the zoning ordinance. Ms. Petso: Okay, PRD issues. You've heard preservation of existing site amenities such as what I like to say, preserve a portion of the trees. Oh, create permanent useable and community -owned, oh, commonly -owned, sorry, open space, which serves the development. This is obviously served to an extent because they put in a big toy by the drainage pond, but there'll probably be one of those in the park, anyway. But useable open space does not meet the 10% requirement because they can't count the stuff in the fish and wildlife habitat conservation area. Ms. Petso: Clustered structures. As Roger said, this hasn't really happened. And implement the policies of the comp plan, and I think you'll probably hit me if I tried to talk about either the park or the drainage again, but I'll mention the comp plan also protects fish and wildlife habitat conservation areas. Ms. Petso: Criteria. Requires landscaping and greater buffering than would otherwise be provided through a subdivision. This proposal offers no greater buffering on the site perimeter. In fact, a subdivision would be much preferable because the buildings would be further apart. Also, you mentioned earlier about the green strip along the street when you were asking staff about the right-of-way. I don't see a green strip along the sidewalk. Ms. Ainsworth Taylor: A planting strip. Ms. Petso: A planting strip, thank you. And if they're going to underground utilities, that would be a good place to put them. Kevin brought this one up under A-2, they're supposed to show that site access is not safe. And you can deny the PRD if they can't. It's very unusual in its configuration and is situated on a curb. It not only poses a hazard for the reasons Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Kevin stated, but it poses a hazard to existing residents who will have to cross it to access the park. Right now, we can access the park by staying safely on the sidewalk, and we won't be able to if that becomes some sort of access. Ms Petso: Another requirement. These are not optional. These are requirements. The visual effect must be minimized through reduced building volumes or through landscape or buffering techniques. In his proposal, there is no change to building volumes, and there is no landscape buffer. The PRD process must preserve unique, natural features if such exist on a site. But instead, they want to run a rockery through the fish and wildlife habitat conservation area. Ms. Petso: Reduction of impervious surfaces is one of the requirements, believe it or not, and it has not been achieved in this project. In fact, the roof areas may have been maximized and lot coverage probably exceeds code. That's the 35% plus the other 35%. When compared with a standard subdivision, I am absolutely certain, and I'll sit and do the calculations and submit it as a supplemental exhibit, that you couldn't possibly cover 70% of the site with impervious surfaces in the standard subdivision. It couldn't happen. Ms. Petso: Another PRD requirement is a clear benefit should be realized by the public. Here there isn't one. Like I said just a moment ago, a subdivision would probably be superior. Staff materials claim that this benefit is from, A-3, two shared driveways, which doesn't seem to help a whole lot, and A-5 because they're saving some of the trees in the fish and wildlife habitat conservation area. Now that requirement says that if they want to claim that's their benefit, they need to preserve significant natural features of the subject property not otherwise protected by the community development code. And let's see, I think that's 20.35.060, and it's A-5, hopefully, although I may have my citations wrong. My contention would be that the fish and wildlife habitat conservation area is already protected by the community development code, and in fact, would not doubt be better protected than what the applicant has proposed here. Ms. Petso: To follow along with that, when the site is probably mapped in the critical areas study and evaluated by a biologists, I have a feeling that the fish and wildlife habitat conservation area will be seen to desire a buffer if any of the existing tree area is outside of the mapped area because some of the highest quality habitat, some of the variations, are on the edges of that area. Ms. Petso: Okay, the PRD must be served by adequate facilities, and this includes stormwater. It also includes, of course, the playfields. And the playfields are being displaced, so there's already a shortage, so the PRD will not be served by adequate playfields no matter what because we don't have them in this town. Nothing in this town is served by adequately playfields, but that situation is hardly improved by adding homes on top of one of the existing playfields. Ms. Petso: Perimeter buffer. This one's good. I like this one. It is clear that this one intended to have a natural buffer and not just a fence with a couple of trees. The perimeter buffer shall either provide the same front, side and rear setbacks for all lots along the perimeter, that would be to create the subdivision kind of effect, you know, not go house to house like we've been talking about with 10 feet between each, or so if you want to cluster, if you want to knock it down to 10 feet between homes, you should provide a landscape buffer, open space, or recreation area of a depth equal to the rear setback. I don't know, if the rear setback might be 15, 20 or 25 feet, but a fence doesn't provide a 15, 20 or 25 foot buffer. I would give it four to six inches max. So this proposal fails that buffering requirement in all respects. The landscape plan, as I read it, shows just three deciduous trees and six evergreens scattered in the backyards along the proposed park. And I guess I'm only addressing that because I don't happen to live where the Miller's do, but I have a feeling that... The same concern I have for buffering along the edge of the park is probably shared by the homeowners on the south and west of the property. Ms. Petso: 10%, that would be 10% of the gross lot area shall be set aside for usable open space and recreation facilities shall be provided and effectively integrated into the development. Actually, having so much of the open space up there with the entry monument, I'm not sure that's really effectively integrated, but anyway. Required landscape buffers and critical areas do not count towards the useable open space requirement. So I reran the numbers for the open space, taking out the fish and wildlife tract. Actually because you can't really tell where the map is, I took out only 80% of Tract E because we don't have the detailed map that the study will provide to know exactly. But taking out 80% of Tract E and using Tract A, C and F, the total is now 17,700, and the project has a deficit of 6,700 square feet of useable open space. Ms. Petso: Oh, yeah, this one's great. Since individual site plans have not been submitted, because the ADB seemed to think it was okay to wait on those, then the criteria that the ADB is supposed to say is satisfied isn't satisfied. It can't be Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 because we don't have the individual site plans. What we do have, at most, are some pictures. There's four pictures of homes, and I have no idea what exhibit number those appeared in. I know they're in the staff document somewhere. Staff claims several architectural techniques have been used to minimize the prominence of the 2-car garages. I think in one case, it was an artistic technique. I think they drew the house picture from the side, that makes a 3-car garage look like a 2-car garage. If the house picture is looked at from the other side, it's probably a 3-car garage. Ms Petso: Another of their drawings actually steps the garage forward towards the street. It jets out. That is not a minimizing technique, and the ADB should never have approved it and I don't know why they did unless they... Well, I don't know because there's no public comment at ADB meetings. Ms. Petso: Homes must have a strong connection between the street and the house, which can be accomplished by providing a pedestrian walk. Garages facing the street should be no wider than half the width of the house. If you look at the pictures provided, there's, at least the first of the home, plainly, the garage takes more than half the width of the house. The garage is accentuated from the street and sticks out from the side of the house, totally dominating the front exposure. Oh yeah, and then there's the design that sticks it out. The fourth home appears to lack a pedestrian connection the street. Rather, it has a circular driveway. Ms. Petso: 06-013, significant trees and topography should be retained. I am not going to talk about it too much more except to say fish and wildlife habitat area and the drainage ditch, those are useful portions of the topography. Ms. Petso: Here's a bit about the designation for a fish and wildlife habitat conservation area. It needs a separate open space, and it needs to designated critical area open space to distinguish it from the useable open space. Ms. Petso: Planting strips. Ah, I knew this would come up. In 10.06.013.7 that they ought to happen, so there you go. And gee I don't get two or three tries like Kevin or Roger got, but ... Ms. Ainsworth Taylor: Can you wrap it up please. Ms. Petso: Uh huh. I'm just checking to make sure, since I probably don't get two or three tries. Ms. Ainsworth Taylor: You will have a short rebuttal after. Ms. Petso: Oh good, so I will get one more try. Okay, great. Thanks. Ms. Ainsworth Taylor: I'll ask the applicant and staff. Would you like the other appellants to give their presentations now or do you want to respond to Ms. Petso's remarks first? Ms. Brown: We only have a few comments on what she proposed. We're confident that all of her concerns are addressed in the letter that was written to you. However, I did want to express in further detail on the fish and wildlife habitat conservation area that she referenced. Mr. Lutz: So I think the answer is, at your direction, we feel comfortable we can be pretty quick if you would like us to respond to Ms. Petso now. Ms. Ainsworth Taylor: Well, let's see. Maybe we can combine responses. Let's have Ms. Marks go ahead a do her presentation, and will be given an opportunity to respond. Then we've got a bunch of exhibits to consider. Mr. Lutz: Can we ask questions of Ms. Petso? (The tape changed sides here, so I think there is something missing.) Ms. Ainsworth Taylor: We need to look at the exhibits to make sure there's no... Could you provide them with your stack... I would assume both your briefing and your stack of potential exhibits. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: Do they just want to look at it right now, and then give it back. Ms. Ainsworth Taylor: Yeah, if you just want to look at it ... (There are multiple people talking during this part of the tape, so I can't really make out any specific conversation. I think they are just sorting out the stack of exhibits.) Ms. Ainsworth Taylor: Okay, do we have a mike. Okay. We are back on after entertaining a brief recess on the case before us. It is time for Ms. Marks, who is appealing the MDNS for the City's determination. Ms. Marks: My name is Heather Marks, and I live at 10522 — 2351 Place Southwest, also known as Robbers Roost Road, Edmonds, 98020. I might mention that the name of this road goes back to an earlier development of the Sherwood Park Neighborhood, when people on that road didn't cooperate with the developer, since it had been there a long time. So he named it Robbers Roost. So I guess we have a history behind this. Ms. Marks: I'm going to call three people, I actually had already decided I was going to have Mr. Clarke be my Exhibit B because he put forth the thing very well. So I will ask him, do you want to come up and speak? Ms. Ainsworth Taylor: Why don't you actually start with your remarks and comments, and then as you need your witnesses to come in and support your testimony or have it addressed further, you can call them forward. Ms. Marks: Okay, and I'll let them let me know... So I'm appealing the MDNS. I live on the buffer side of the area. I've lived there for about 21 years, and get out there at least twice a day for that period of time, walking the dogs and you know, kids and stuff like that. So I want to have the EIS on this environmental statement done because while, yes, I would like to have the whole thing for the park and I, you know, I'm still, you know, wishing that we could, you know, have that donated to us, and we would call it Burnstead Sunshine Park, but... Anyway, regardless, they have an environmental impact statement. Because of what we've already heard today, I don't know if you've picked up on the themes so far, it's been drainage and flooding, safety, traffic, and loss of the trees in that middle portion. And those are the things that I'm. . Ms. Ainsworth Taylor: Your appeal that you filed with the City addresses these three issues: drainage, drainage safety, and the combined environmental hazards which are directed specifically to demolition and waste removal and asbestos and then traffic congestion. Ms. Marks: And I will ... Ms. Ainsworth Taylor: So those are where you need to ... Ms. Marks: Correct. Okay, but I want you to realize that what has been said actually is what I planned to talk about anyway. Because when I'm talking about the cumulative impacts, and I'm talking about the 11 acres, it's only where those 11 acres, by nature, do not observe property lines That's drainage. Drainage is actually the big one because any of the infrastructure that I've dealt with here goes back to the drainage. So when I, let's see, in one of the replies to my statement, my appeal, it said that Ms. Marks incorrectly alleges that and EIS should be required. I do contest that because ... Ms. Ainsworth Taylor: You're looking at the Perkins Coie letter of June I I'? Ms. Marks: Uh huh. Right. Where it talks about significant or reasonable likelihood. And that's true ... But reading through the SEPA checklist, I see things that are going to happen, and they are going to have an impact on the community surrounding the development, and I don't mean just the minimal little, I won't say little, but the Woodway Meadows and people in Robbers Roost and so forth. I'm talking about a larger area as it pertains to the drainage and also the traffic. Those are the two things. But anyway, this development proposal for the ball fields at the Old Woodway Elementary is likely to have probably significant adverse environmental impact on the surrounding community based on the proposed action as specified in the WAC blah, blah, blah, 330 and blah, blah, blah, 444. The cumulative impacts, both direct and indirect, are adverse, and they're actually demonstrated in the SEPA checklist by the acknowledged increase in taxes for the current residents of the area. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: Okay, I'm going to stop you there because economic impacts are not considered environmental under SEPA. Ms. Marks: No, but I said that they're demonstrated by. I didn't say the taxes, themselves, were. But they are indirect. I mean, the taxes are an indirect result of ... I'll continue, residents of the area will be impacted by these increased property taxes this development will cause so that we can support the additional public services of the 27 homes in the development, in addition to the fact that our land values are going to rise. But... So that's an interim cost and that has to be considered as a part of the SEPA because it relates to the drainage issues and the other infrastructure that will be needed, roads and so forth. Any development in the community also involves health hazards, such as the dust and so forth when the construction starts. Residents will also lose the use of the prime wildlife and plant habitat area for them, their children, and pets to continue enjoying. Ms. Marks: The builder will be gone, but the mitigation fee of the $22,000 plus to handle all the traffic impacts in the large area will not cover transportation infrastructure, which will have to be developed and built to solve the problems as specified in the WAC 197.11.444. Ms. Ainsworth Taylor: You understand where that $20,000 figure came from? Ms. Marks: Yes, it came from, what was it, $840 some dollars per house. Ms. Ainsworth Taylor: And that's set by your City Council. Ms. Marks: Yup, that's right. That's right. However, it is not going to mitigate the large traffic problem. One of the things, and I'll bring it up here, that is missing, critical information that is missing from this, is that of the residents who already live there because while it's good to have the numbers for traffic studies and soil samples and how drainage patterns are supposed to go, if you don't talk to the residents, serving, I don't mean have a community meeting, because you didn't get any information out of there that was addressed in any of the things. In fact, I don't remember of seeing the minutes from that. But the thing is, people here can actually, even if end up building, can do things, give you information that's going to keep you from having a problem later on. But once again, once the developer is gone, they don't have to deal with that. We're the ones that do. And that's why this hearing is taking so long, because it is very important to us. If we can't get things across now, as somebody else said, it's not going to happen, and we're the ones who are going to get stuck with it. Ms. Marks: So the full and accurate consideration was not given to all the required elements of the environment, as specified in the 444, so I do request an environmental impact statement to help determine what will really be needed if the development is made so it can mitigate any problems that the surrounding community is going to have to endure for the rest of their lives or for however long they live there. And I plan to live there for a while. Ms. Marks: In terms of the significant part, which was nicely defined in the letter from Perkins Coie, I think that the current community is significantly impacted. And as I said, as an example, our taxes will rise based on the hidden development costs that the developer is not required to cover. And I will get to what those need to be. In fact, in the WAC in 330, it mentions that the same proposal for one area may not have a significant adverse impact, but it would for an other area, and that is the case here, both with drainage and with the traffic and the safety problems that have already been mentioned actually. Ms. Marks: The other part is that several marginal impacts, when considered together, may result in a significant adverse impact, which is why I am using the cumulative impact. And let's see, so anyway, that's why I have stayed for this whole meeting. I wanted ... Okay, so anyway, the context of these may vary with the physical setting, the significance involves context and intensity, and does not lend itself to a formula or quantifiable test. The context may vary with the physical setting. Intensity becomes of a magnitude and duration of an impact. The severity of an impact should be weighed along with the likelihood of its occurrence. Since we know our taxes are going to rise, and we know the things that always happen, taxes and everything, this is an inevitable result that we will end up paying for these infrastructure additions. So an impact may be significant if its change of occurrence is not great, but the resulting environmental impact would be severe if it occurred. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Marks: I support my appeal, as I said already. As far as getting into the cumulative impacts, I went through the SEPA checklist, and I'm addressing specific things, but they fall within my general concerns. The residents in the area would be impacted, as I mentioned, by these hidden development costs. And so with B, environmental elements checklist, in dealing with earth, the drainage issue is one that we've talked about. I think I can still add a few things, maybe. I had noticed in one of the drawings that as a part of the drainage, there was an infiltration pond on the park property, and I know that... Ms. Ainsworth Taylor: You are now referring to the City's parcel? Ms. Marks: Yeah, right. Right. The current City owned property. So actually, I thought maybe you could help explain what's really going on with that. I brought that up in my appeal because that does, once again, combine the two tracts, if drainage ends up going over and into an open pond on the currently City owned property. I know that you also have set it up so that all of the water draining from your property would go into storm drains underneath, but since this is a preliminary plan and said that this still could happen, I really want to address this because this is a really big issue. So maybe you can help me understand this better. Ms. Marks: I was wondering, this is still a possibility, right. I mean you said you weren't ruling it out. I heard that today. Ms. Brown: If we could meet City code requirements to do a joint facility, and the City would like to work with Burnstead, that is still an option. Ms. Marks: And it would be an open pond? Ms. Brown: Engineering has not been completed on that. We could not even tell you right now. Ms. Marks: Because the way it looks, well the way it... Mr. ??: We are not proposing an open pond. We're proposing an infiltration pipe at the park. Ms. Marks: So it wouldn't be taking up property on top of the land that we would be using for a park. Ms. Brown: It would not be above ground. Mr. ??: Just to be clear, Burnstead is not proposing that joint development. It's something that we're going to work with the City on outside of this proceeding if it makes sense. Ms. Marks: Okay, I realize that I shouldn't just let things go by without questioning them, though. If that's the case, then who pays for the infiltration pond. Ms. Ainsworth Taylor: Those would all have to situations worked out during the design of the facility to make sure that it worked. Burnstead's responsible for handling the stormwater that they generate from their property. How they go about that, whether its by containing it completely and paying for all the infrastructure themselves, or whether they work out a joint agreement, sharing costs with the City, is up to them. All that matters is that they are handling what they're supposed to for the project. So it's separate. Whether they are going to do this, whether they're going to work with the City really isn't up for consideration here. All that's for consideration is are they handling the water from their property. Ms. Marks: Right, except that as it would impact me. If they would end up building a pond up there, which is what it looked like, I think they used an infiltration pond, and little kids playing in the park, that is not a good situation. So that is what I wanted to address. Also, if I was going to end up having to pay for that, as a part of the hidden development costs, I wouldn't be happy about that, either. Ms. Marks: The other thing I was wondering, with the drainage, we're talking about how ... People were talking about how the ditch up here, and it's ... This was in your packet, but there isn't any explanation with it as far as what it was actually showing. I was wondering if somebody could explain that. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: It was showing the downstream water flow. It shows how the water flows southward out of the parcel towards Mr. Clarke's property. Ms. Marks: Right, so. Ms. Ainsworth Taylor: The flow currently existing on that seems to be how the water flowed, and that's what the engineer was trying to convey. At least that's how I interpret it. Ms. Marks: Okay, so does that mean, then that when you have the underground water retention areas, that then that will be drained down through here? I mean will there be ... Where will it go once it's in those underground vaults. Ms. Ainsworth Taylor: Well, it's my understanding, you know, based on the geotechnical engineer's report, that we will have the point drains in the vault, which will direct the runoff into the subsurface area about 20 feet deep, and he doesn't anticipate that it's going to surface someplace somewhere else. Ms. Marks: So it's not going to go into a storm drainage system of the City's? Ms. Ainsworth Taylor: No, no. Ms. Marks: Okay, it's going to go back down... Ms. Ainsworth Taylor: Down into the ground. Ms. Marks: Okay, all right, so you've already clarified two things here, okay. Let's see, another part of that with the infiltration was, let's see if I can find it. When Mr. Miller was talking about how the water drains down and floods his basement or, actually it's not a basement, it's a lower level, when that 20,000 cubic yards of soil is removed and put back in some fashion, even though they're going to try and level out that playing field, so to speak, there will also be concrete foundations in there. Because of that, if you put the 20,000 cubic yards back, that land is going to be a little bit higher than what it is right now. Right? I mean, how can you compress all of that into the same elevation. Ms. Brown: Well, some of the soils that are excavated will have to be hauled off site because they would be unsuitable for construction uses. But we're not anticipating, based on our preliminary grading plan, and we haven't done extensive earthwork calculations yet at this point, but based on our preliminary grading plan, we are anticipating essentially a balanced site, because there's not a lot of earthwork that needs to happen to get level pads for the homes we would build. The earthwork would be stripping and soil excavation for the vault. Ms. Marks: But you will have to put in foundations? Ms. Brown: Correct, which will be hauled off site. Ms. Marks: Okay, but it said you are also putting back 20,00 cubic yards. Ms. Brown: The cut and fill, there may be some soils that need to be hauled off. Ms. Marks: I guess my main concern here is that if land or the development ends up being elevated, even six inches or something like that, it can end up causing flooding problems for the people in Woodway Meadows. I mean, you read stories about this all the time where somebody's property, the water is running off and it's flooding somebody elses. So this is a really big concern for this area. And we know that Bumstead does quality work. I've heard it from others and I've heard it from you. So rather than just trying to meet the minimal code for the City of Edmonds, it just seems like it would be in your best interest if you deal with this to go a little beyond that, which is why I think it would be good to have an environmental impact statement. Ms. Marks: As far as the emissions during construction, the current residents of the neighborhood, 1 think this is a project that's planned for about two years, the completion. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Brown: The construction or the home building? Ms. Marks: Well the whole thing. We're living there, so we'll see just the whole thing. Ms. Brown: Well, from start to selling the last home, it could be over multiple years. Ms. Marks: Okay so for however long the construction is going on, and I know there'll be different kinds of things going into the air. In the beginning it will be more from the soils and so forth, but there'll be vehicle and tool, diesel and gas emissions, and then large amounts of dust from the excavation, which will be airborne. And I know that you plan to water the sound, but there isn't a real plan that's mentioned here, as far as specifically how it's going to be taken care of. I know you have a lot of confidence in what you're doing, but to those of us who are hearing this, it's like vapor ware because we're being promised things, but then there's nothing behind it to let us know that it's actually going to happen. From my own experience, I know that when the City of Edmonds tells a developer they should only cut down a few trees, the developer will go in and clear cut the entire thing. And then they get a slap on the wrist, and the trees are gone forever. That happened in a lot across from me, and it happened in a big way down here at the waterfront. So it may seem like we're whining, but we also know that that has happened in the past. So with the emissions and so forth, we really need to have a plan because there are people with allergies and asthma. Ms. Marks: I don't know if you realize it, but for probably more than 20 years, there have been herbicides and so forth put on that playfields, and the residue is still in the dirt. I don't know if you've done any studies to determine just how much it is. I really think it would be good to have a third party come in and do a test of that because just in the last year and a half, after they put supposedly non -toxic pesticides on there, our dogs have been up there, and one dog go so ill it almost died. So there really is, it's worth looking into. There was a case in Seattle about a month ago where a couple on Queen Anne Hill at a hearing like this where it's dealing with demolition, raised some of the same issues about toxic airborne things. And in that case, the Hearing Examiner decided that the developer needed to take care of that before the permits put together. Ms. Marks: So I noticed that you mentioned your best management practices in there, and I'm wondering when will we know what those terms of specific measures taken to make sure we don't have toxins in the air and so forth from the construction. When will we know what the actual procedure is for taking care of that? Ms. Brown: Best management practices are industry standards that are set by the industry and sometimes by state and local laws that set certain things they have to do like reducing traffic coming in and out, sweeping the streets to reduce the tracked out dirt, watering down soils, etc. And those are all just industry standard practices that the Department of Ecology requires. And also, with toxic clean up and removal of infill, those are standards that are set by the industry or the state laws, themselves. Ms. Marks: Right. I understand. Ms. Brown: It's not like we need to develop an individual plan. Ms. Marks: Except that for each site, it seems like they would need to use whatever the best management practices are and adapt it to that site since not everything is a cookie cutter. When you're talking about the water and with drainage, you said that the source of the runoff, including the storm water, would only be answered... That it was only the on -site water. So I'm wondering. You kind of addressed this, I think, earlier, but since that area, that playfield area is actually kind of a collection point for the water that drains off of the hills and so forth, are you really addressing the water that will be draining off of the hills because that's off site. Ms. Brown: We actually did include an off -site tributary area that included the back of the lots at the top of the hill, that hillside and along that ... And we did account for that flow in our drainage design, and the flow that goes into that swale now. This is also addressing Ms. Petso's concern, too, about the drainage ditch being filled and where would the water go. That has been accounted for in our preliminary designs. You know, it may require something along the back of the lots that border that easement to pick up that water, but that water has been accounted for in our preliminary design. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Marks: Why is it only the back half of the lot that you include in there? Ms. Brown: It's just based on topography and the existing stream out there, and assuming that when that plat was put in that storm drainage was put in and that stream wasn't flowing ... Ms. Marks: It wasn't. Anyways, I was just curious about that. I know that there used to be a stream, this would be in the 30's that ran right along the edge of our property. Our neighbor has lived at that house for more than 60 years, and she actually gave us a picture of a sawmill that was in our backyard, with a goat tied to it. So I know that there are water issues there. Ms. Marks: Anyway, I feel that the mitigation dealing with these things is just inadequate so far. In terms of the wetlands report, the area where the playfields are, I know is not a wetlands, but up in the forested area, and I know that in the area that is the wooded area just to the north of the playfields. Ms. Ainsworth Taylor: This is the area contained within the easement? Ms. Marks: Yeah, and that's wetlands. If you look at the plants, the site includes, but is not limited to, alder willow, maple, madronna, ash, hemlock fir, cedar, pine, cottonwood, and also solal, huckleberry, Oregon grape, Indian plum, wild currant, bitter cherry, sword fern, bracken fern, twin flower, m?? wart, dove geranium, and curly everlasting. I know that twin flower, well there's several that indicate that it tends to be a wet area, but twin flowers tend to grow in the wet areas, too. Ms. Ainsworth Taylor: Could I get a copy of the report? Ms. Marks: I gave it to you there. Ms. Ainsworth Taylor: You're biologist report's in here? Ms. Marks: No, I can give you a copy of the books that I used and I could have you copy them... Ms. Ainsworth Taylor: Okay, that's fine. I just wanted... Ms. Marks: Anyway, it's like I said, I go out there today because I'm a amateur naturalist. I have my bird card with me. I carry it with me all the time, so that I'm not school in it officially, but I do go out hiking. And I've hiked with a biologist, so I've learned a lot. Ms. Ainsworth Taylor: Your plant and animal analysis is your own? Ms. Marks: It's my own, but actually it's based on, what is it, the northwest, it's that book by, is it Pol?? and McKinnon. As far as the animals, we have more than song birds and rodents there. And you do acknowledge that part of this is within a fish and wildlife habitat conservation area. The birds are including, but not limited to great horned owls, eagles, robins, swallows, kill deer, hawks, Canadian geese and piliated woodpeckers are frequent visitors to the property. In addition to the songbirds, among them ?? and ??wrens and chickadees. Every year, swallows feed on insects they catch in the grassy area where the baseball diamond is. While they're not birds at night, there are bats out. As we know, bats help to provide flowers and so forth. Ms. Marks: For noise on B-2 and 3, the current residents of the property. The two years is not a short-term project. It's two years of some kind of noise and problems going on. So it would be good to have a specific plan to help mitigate this problem for the neighbors. Ms. Marks: Let's see here, I've already addressed the fish and wildlife habitat. In terms of the recreation part, which is the wooded area, which his a good part of the cumulative impact, the proposed measures really don't reduce, or excuse me they do reduce the recreation opportunities for the area around the development. I don't mean just the adjacent neighbors. There is, I'd say, a radius of about five miles. There area lot of people who come up from Shoreline, and since we use their parks, I think it's okay if they use ours. Come from Shoreline, and they go north and east up into Edmonds. And you can see that Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 with the petitions we collected more than a year ago to have the City buy the whole property. So the proposal mitigation isn't going to reduce the impact on the current community and park users, so the trees that are on that point of leased land, that's going to be for the homeowners to enjoy, right? Ms. Brown: That's correct. Ms. Marks: Which means that that is being taken away from the people who already use it. That is a huge impact. I mean, I think you got a bit of a sense of how people feel about those trees, and I think that if ... Well, we still would like to call it Burnstead Park, but if that doesn't happen, I think the idea of swapping land would also be in the Burnstead's best interest. In fact, it would even go along with the address because the address of the place is on 1041 Street, 23708 — 1041 Street, and it doesn't empty onto 1041 Street. It empties onto 2371. I can't figure out how that address came to be. But if you swap, if you swap, you know, it would set things right. Ms. Brown: Can I clarify one thing. The trees will remain, and it will also be a part of the easement that's already there for the homeowners association to use. Just like the public can use the rest of the easement. The easement on the far side of the property, that stays. Ms. Marks: I know. I know the BPA easement does, but I'm talking about ... Ms. Brown: On the north side of the property, there's no easement on the north side of the property. Ms. Marks: No, because it's owned by the City. Ms. Brown: Yeah, the City owns that, I understand that. Ms. Marks: Right, but I'm talking about the trees where, right, that point. So that's going to be open to the neighborhood, surrounding neighborhood to use? Ms. Brown: It's based on City requirement, but right now it's on our property. Ms. Marks: I know it's on your property, but you're listing it as an open space. Ms. Brown: Usually the open space would be dedicated to the homeowners, and so that corner of the property would technically be owned by the residents of that development. But in a lot of situations, other people walk through. Ms. Marks: Right, but if there's a fence around it, it makes it hard. Ms. Brown: We can't put a fence through that because it is trees. Ms. Marks: The other thing that is really big is the transportation and traffic. One thing I want to clarify. Kevin was talking about the parking problem along the streets. That is not because of the use of the soccer fields and baseball fields. That hasn't been a problem. It is because of the Klahaya Swim and Tennis Club across the Street. So just because the soccer fields and baseball fields might not be there, the parking problem will still be a problem and the safety issues that were mentioned will still be safety issues. So, as I had mentioned before, the proposed mitigation fees, they're only going to deal with what's happening right in the cul-de-sac, and probably they'll just be administrative costs. Ms. Marks: But the real problem, and this was addressed earlier, the intersections, both of 2371 and 104' and 2381 and 104', as well as the light at 2381 Southwest and 100' Avenue. I had addressed this fairly extensively in my appeal, and there was a letter in the response to that, which said that according to the statistics, it was not a problem. But this is where you really need to listen to the people who live there because right now, people are upset about the way the traffic is there. And when you end up adding an additional 270 trips a day to that area, it's going to be really bad, because that area, that route is the only way out, as I've shown in my earlier appeal with the map. It's the only way out, not just for Woodway Meadows or for where I live. It covers a huge area. We're talking a lot of square miles and thousands of people. And I can tell you, Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 when that traffic light at 2381 and 1001, when you're trying to go from west to east and you need to catch a bus, and that traffic green light is only five seconds long... Ms. Marks: I took pictures of it before I came here, and I found that you can get 2'/2 cars through that light. If they're already standing there, and this is a really big issue. The reply to me said that, well, they're coordinated. Well, I can tell you, those lights are not well coordinated. When you try to make a right hand turn from 238' onto 104' and get through the second light, which is barely a block away, it's actually not a whole block, you can't do it I'd say 75 or 80% of the time. You have to stop for two traffic lights, and that is without the additional traffic. So you know, I realize that the traffic analysis was, you know, the books and everything treat standard, probably municipal areas, okay, this is not standard. And all you have to do is talk to anybody who has to use that route, and they will tell you the same thing. So the intersection of 2381 Southwest and 1041 is inadequate and unsafe for traffic and pedestrians. Residents in the area are on record with the City of Edmonds noting the problem. Before we became part of Edmonds, the county of Snohomish kept hearing from us. In fact, have a series of folios that one of the people living further south on 1041 gave me where he an email trail with Edmonds, talking about this problem, and it was a year ago. The problem still isn't fixed, even though they said that they were going to take care of it. So that's what I'm putting in there for my Exhibit A. Ms. Marks: Somebody was mentioning that intersection, well, it's 238' coming up to 104', kind of like a T intersection. 237' comes out so that it's, I don't know how far away, 20, I don't know, I mean it's really, so it makes that a very complex intersection for all of the reasons that were mentioned earlier. It needs to be addressed. It said that there were only three accidents in five years, this was in the response to my appeal, and there was only one injury. Well, does it take a person getting killed to have to do something about it. That's what usually happens, I know. They usually have a quota and you have to have like three people killed at a site or something before it happens. So I'm wondering, what's your quota for what has to happen. Are we looking at... Ms. Marks: Isn't the City supposed to be taking are of its citizens? Is it supposed to be preventing health hazards, taking care of their health? So this thing about well, there have only been three accidents, they didn't count how many near misses there were. The other thing is, the lighting at that intersection is terrible, so when you were doing the traffic study and so forth, and there also weren't very many cars using that intersection at that time because of the severe weather we had. As far as the traffic light at 238' and 100', the analysis does not address the congestion at this non-standard intersection. I can appreciate the statistics make it look okay, but it doesn't work that way in real life. The double intersection at 238' and 100' Avenue provides the only practical exit and entrance for commuters to a much wider area, as I've mentioned. And I have a map with my appeal, showing that area. And that includes not only Edmonds, but people from just five blocks over the line into King County and Shoreline, who use that a lot. Ms. Marks: So a direct count of the morning commute, that's to be ignored. It wasn't... They didn't do a count of the morning commute, I don't think. And I would say that those intersections are pretty heavily impacted in the morning. At night, when you're coming in, the people are coming from the south down 81 and then have to make a left hand turn to try to get into the left hand turn lane of the intersection at 104'. There are often cars that are obstructing the intersection because there is not enough room to get more than about three cars into that left hand turn lane. So that is a big problem. And as I said, engineers from Snohomish County and Edmonds have worked with this lagging system for years. I'm talking about, at least, well let's see, we've been in the City of Edmonds for at what, 11 or 12 years, and Snohomish County was working with it before that, so it's been at least 15 or 16 years. Ms. Marks: The other thing was that the study was done during this period when winter storms had reduced traffic flow. While the actual day that the traffic analysis was done, it may not have been snowing that day, but that whole period from the end of November, up through the middle of January, was not a regular traffic pattern because, even if it wasn't snowing at the time, other roads were icy or a lot of people stayed home to work. A lot of them worked from home, I did that. So the traffic pattern and the ?? were not the average ones. In fact, I think there was something the reply to my appeal that said there wasn't an abnormal traffic pattern. I was wondering what you used for the normal traffic pattern at that site, since you'd only been there, I think it was once or maybe twice. Ms. Marks: So the SEPA requires that the indirect and direct cumulative impacts all be evaluated. The other thing that was not taken into consideration was the Brightwater construction that's going to be going on just south of, well right there at the County line. Are you aware of that? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Brown: Oh yeah. Ms. Marks: Okay, well this route is the only route that the skilled craftsman, and what I mean by that, just anybody working on it, will be taking to get to the job site. So that construction will last until the year 2010. So yes, yes, that's the route they'll take. And maybe if you don't believe me, it would be a good idea to research that because if that is in there too, during the construction on the Burnstead property, our community's toast. I am getting close to the end. Ms. Marks: So anyway, as I keep mentioning, the survey that's missing, well all this information is of the residents who live there now, and they can tell you where there are holes in the information you have, and there are holes. So I really would like to know how the current mitigation measures that are in the current report are going to resolve the problems, both that I brought up and that other people have brought up today. And as I said, there are fumes here. Drainage, traffic, safety, woodlands, Burnstead Park. That does have a nice ring to it, doesn't it? I'm not done here, okay. So residents of the area are going to be impacted by this, and I, you know, it's not just residents who are living right around the area. It is in a large area. Ms. Marks: Let's see here, so I will, before I totally conclude here, I will have my other witnesses come up. Mr. Southcote-Want: My name is Colin Southcote-Want. I live at 10616 — 237t' Place Southwest. Ms. Ainsworth Taylor: Can you spell your last name please? Mr. Southcote-Want: Yes, S O U T H C O T E — W A N T. And I'm going to be speaking in support of some of the issues that have been raised. First of all, I agree absolutely that both ends on 2381 Street are a problem right now, and will be exacerbated by the increase in traffic, and that subdivision definitely needs to be looked at to improve that. I want to take a moment, having mentioned the fish and wildlife habitat conservation area, and I want to make sure you understood the maps that were provided previously. Ms. Ainsworth Taylor: Actually, Mr. Marks didn't provide any maps. Mr. Southcote-Want: Oh, sorry. They're in all those materials. This was a portion of the City's critical areas map, and this big area here was the old Edmonds Woodway High School. As you can see, the map includes a little leg sticking out, which goes into the property, which was the old Edmonds Woodway Elementary School. We wanted to see how far that overlapped, both portions of the property, so we blew that up and made a transparency. We blew the leg up, and you have these materials. Basically, they show that the area does, in fact, go into the Burnstead property. So you know, that's something, we did it twice. Actually we did it on our map, with basically the same results. So that's something to be looked at. It guess, you know, the habitat area is critical, and we do enjoy the birds. Particularly we enjoy the eagles and the hawks. I watch the dogs frighten them away, and it's quite an amazing thing to see. Mr. Southcote-Want: Heather also mentioned the reduction in recreational opportunities, and I wanted to bring back again in front of you one topic which I know you don't want to deal with and Burnstead definitely don't want you to deal with, and that's the issue of these interlocal agreements, the 1997... Ms. Ainsworth Taylor: You don't need to talk about them. Once again, I have no jurisdiction over them, so I can't decide anything on it. They're not before me, and they really have nothing to do with this appeal. Mr. Southcote-Want: Well, there is an important point, a very important point. Ms. Ainsworth Taylor: You get one important point and then. . Mr. Southcote-Want: The important point is that with their eyes fully open, the Edmonds City Council voted not to... Ms. Ainsworth Taylor: Purchase the property. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Southcote-Want: Excuse me. Ms. Ainsworth Taylor: I'm going to stop you right there because it has nothing to do with it and is not in play for my jurisdiction. Mr. Southcote-Want: It is perfectly in play. Ms. Ainsworth Taylor: It is not in play for my jurisdiction. Mr. Southcote-Want: I told you you didn't want to bring this up and they don't want you to. But you've got to free yourself to look at it. Ms. Ainsworth Taylor: I have no authority over whether there is an agreement or not. Mr. Southcote-Want: Well, it will certainly be brought up on further appeal, which is my final question to you. Would you please make sure that you let us know exactly what the appeals process is that follows this because in the last few months, we've been dealing with an appeal on the ?? property. We were told by the hearing examiner, specifically, that we have to appeal within 21 days. So we appealed it in 21 days and then the City came along and said, by golly, you're too early. And it was thrown out of court because we followed the hearing examiner's specific instruction. So I would ask you, please, don't lead us down the road here on the appeals process. And I would ask if you would require the City to let us know, really let us know because the Mayor came out with an article in the newspaper saying that it cost $20,000 for the City to defend itself against an appeal that we wouldn't have brought if we had been given instructions on how to appeal a hearing examiner. Ms. Ainsworth Taylor: I'm assuming, based on the 21 days, that he was referencing, the prior hearing examiner, he was referencing the 21 days that's required if this appeal goes forward to court. It's under a LUPA Action, a Land Use Petition Act, and there you do have to file within 21 days. You may have been thrown out of court, and this is hypothetically and completely off the record, because you had exhausted your administrative process. Mr. Southcote-Want: No, we were thrown out because it wasn't connected with the permits not being issued. Ms. Ainsworth Taylor: Okay. Well the final action had occurred and ... Mr. Southcote-Want: That's what they ... Ms. Ainsworth Taylor: I don't know the code completely, I mean I've only been here, this is my second time here, but I would assume that this appeal doesn't go up to City Council. It goes right to Superior Court. I think it does go direct to Superior Court, and you would have a 21-day appeal. But you will get in the decision. There will be an attachment to the decision explaining the appeal process. Mr. Southcote-Want: Okay. Thank you. Ms. Ainsworth Taylor: Ms. Marks, did you have another witness to speak? Mr. Clarke: Kevin Clarke, 23924 — 107th Place West. To enter the record, I would like the record to show that the sun is setting and it's shining on your face, and I think we all owe you a professional hats off. I have had the opportunity of being in Federal Court and Superior Court and the Tax Appeals Board and bankruptcy court, and I've never seen a charter of facts sit through four hours of non stop without a break, being the stenographer and the charter of facts. So thank you for your efforts. Sometimes more is less and less is more. I would appreciate your professional discretion to include my prior testimony relating the preliminary plat to be included as my testimony with respect to the drainage and the traffic issues, and I won't go through that again. Ms. Ainsworth Taylor: It's all incorporated by virtue of your testimony that you gave on the plat as appeal evidence for Ms. Marks. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Clarke: Thank you. That's it. Ms. Ainsworth Taylor: Anybody else, Ms. Marks. Ms. Marks: One more. Roger. Mr. Hertrich: Roger Hertrich, again. I have to concur entirely with Laura's effort and as Kevin mentioned, any of the previous testimony, I would like to do as he just did. I'd appreciate that. And I'd like to just cover a couple of items that you've probably already heard about, but I think that need to be. The checklist, obviously, was somewhat deficient. Some of the issues that had been brought up, of course, basically really weren't addressed well enough, and that has to do with drainage. Naturally, the developer says I'll do mine as prescribed, but the City will have to do their own, or they can work with us, or we can work together. But I believe the decision on accepting, on the appeal, is that there are basic questions to be determined, and part of that, there has to be some sort of a judgment for an answer. And I think the answer really is one where the City is responsible for completeness, and that completeness, this project cannot go forward until you have that completeness. It has to be like an ordered court because you have, and I suggest as part of my thought on it, that there needs to be an independent person to deal with that drainage issue, a consultant, agreed upon by both parties, that would look at the whole issue and determine if more investigation needs to be made and come up with a mitigated answer that forces both parties, the City and the developer, to participate as they agreed they would. And the City participate as we don't know if they will. The City has their budget and they have their engineers, and they do what they want to do. We'll do it in the future or we have a problem there as described by the City, I think. They recognize that something exists, but they don't seem to be moving forward. I don't see how this project can move forward without the combination of both because you have an area -wide problem. Mr. Hertrich: I have questions about lot coverage, again, please. Ms. Ainsworth Taylor: The lot coverage isn't part of the appeal. Mr. Hertrich: Well I'm putting it in as part of the appeal. Ms. Ainsworth Taylor: Well, you don't get to do that. (I can't hear what she is saying here because Mr. Hertrich keeps cutting her off.) Mr. Hertrich: You don't have that? Ms. Ainsworth Taylor: We've heard about lot coverage. The issues on appeal that we're discussing now are the issues raised by Ms. Marks and Ms. Petso, and specific lot coverage was not addressed in either of those appeals. We did hear it in the open testimony for the preliminary plat, and there were people who spoke on whether it was 35% or 38%. Ms. Petso did address it. When she was speaking, she was speaking in reference to the plat. It was not specifically delineated in the appeal. So I'm not going to let you talk about that one. And we have had information coming out so I'm satisfied with that. Mr. Hertrich: And we're not going to deal with open space, either. Ms. Ainsworth Taylor: Well, if you feel you can add anything more to the open space argument that has been presented by Ms. Marks and Ms. Petso in regards to ... Mr. Hertrich: Well, let me suggest this. That the dimensions that were submitted or have been dealt with by the applicant are basically, I consider deficient because we have the new evidence of fish, wildlife areas, and the deductions from the original coverages. And because of that it changes the whole scenario both on lot coverage and open space. That's the reason I was mentioning lot coverage, right. You start with a new dimension, and now you've reworked the problem. And my suggestion is that part of that coverage, we're talking about how much of a lot you cover, are we talking about. Ms. Ainsworth Taylor: I said we're not getting into lot coverage. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Hertrich: May I ask this? Are we talking about, when you use those figures, are we talking about the roof coverage or are we talking about the foundation dimension, because I think that's important. If for example, anything that's been brought UP... Ms. Ainsworth Taylor: I'm going to say, you can specifically ask the Building Department for the Edmonds City Council or the City of Edmonds, tomorrow you can call them and ask him how they calculate their numbers. Mr. Hertrich: No, I'm asking how this was calculated. That's my question. Ms. Ainsworth Taylor: How this was calculated would have been based on how the City of Edmonds code reads. Mr. Hertrich: Is there some way I can provide you with that answer, and then from that... Ms. Ainsworth Taylor: Well, I'm hoping it's in this book right here, but... Mr. Hertrich: I hope so too. But we have to have people working from a set of set numbers, and we need to know what those numbers are and what they were from. And then we have to look at new calculations completely on all the dimensions. This is a wide open situation. So I'm suggesting, as part of the appeal, that there's a problem here. Ms. Ainsworth Taylor: That's no what's being appealed. The design of the plat is not what's being appealed. What's being appealed is their environmental determination. Their determination that you just need to mitigate ... Mr. Hertrich: Okay. I've discussed the drainage. Now I will discuss the traffic because it is obvious that the traffic impacts haven't taken into consideration the usage on the park, and the combination of the two traffics in that area. I think were deficient on information. I'll just leave it that way. And is there any part of the ADB that we can deal with on this. Ms. Ainsworth Taylor: Remember, you're looking at just their environmental analysis, and not the planned use. Mr. Hertrich: Because I already, I think, appealed the ADB decision to you earlier in my discussion. Ms. Ainsworth Taylor: Yes. Besides, their decision is just a recommendation. Mr. Hertrich: The reason I bring this up because without public participation when you have a single hearing for multiple things, you are the decider on the ADB. Ms. Ainsworth Taylor: The burden lies heavy. Mr. Hertrich: Yeah, well it does because we've had no participation with the testimony given, no arguments being able to be made to this. I find... Ms. Ainsworth Taylor: I understand your concern about the ADB process, and once again, I'll say for the ADB process, they make a recommendation to me that I can either accept or deny depending on how I feel about it. If you, as a citizen, are unsatisfied with how the ADB process works, you need to address your City Council and change that process. That's not my process to change. Mr. Hertrich: Okay, at what point do I appeal the ADB decision. Ms. Ainsworth Taylor: Well, personally, I don't even think the ADB decision is appealable because it's not a final decision. It's a recommendation. Mr. Hertrich: It's a recommendation. Ms. Ainsworth Taylor: Uh huh. So you don't need to appeal it. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Hertrich: Unfortunately a recommendation without equal testimony, equal weighted. Ms. Ainsworth Taylor: You can do as you did today and voice your opinion on the recommendation to try and get the decision maker to ... Mr. Hertrich: I don't think it was correct. Thank you. Ms. Ainsworth Taylor: Okay. Ms. Marks: I conclude that this development proposal on the ball fields of the old elementary is likely to have an significant adverse environmental impact on the surrounding community, direct and indirect, based on the proposed action as specified in the WAC 330, 444 and everything else that you can think of. So, I really, I still will favor the park, the whole thing. However, you know, to help make the whole neighborhood believe in the process and understand, I really think an environmental impact study should be done because it will help us settle a lot of these issues that have been brought up today. That doesn't mean that the development doesn't go forward, but it certainly can answer a lot of problems, a lot of questions, I'm worry. And since Burnstead prides itself on a quality product, I've heard them say that here, and I've also heard them say this at the community meeting, and I've heard other people say that they have a quality product, and I've heard you say today that you want to be a good neighbor. But if you only comply with the minimal amount of the ordinance, just what the ordinances say you have to do minimally in order to get your permits to build, then is that really being a good neighbor when all of these other things are getting brought up. Is that going to help you keep your reputation for quality if you don't treat the neighbors in a quality way? Thank you. Ms. Ainsworth Taylor: Okay. Mr. Lutz. Mr. Lutz: I'm sorry. One of my questions was how you prefer the order to go in terms of response. Because I know we both have hopefully very short responses. Ms. Ainsworth Taylor: It' doesn't matter to me whether the City wants to defend their actions first and then supplement with the documents that you've provided and the analysis you provided. Mr. Lutz: Thank you. Ms. Stewart: Just a couple of general responses to both of the SEPA appeals. The staff report, with the attachments, dated June 8, 2007, is a response to the appeal. Attached to the staff report is Attachment 7, which is the threshold determination and mitigated determination of nonsignificance. It mentions six recommended mitigation measures that these should become conditions of approval. The threshold determination was reached based on a review of the available checklist submitted by the applicant, as well as additional application submittals, including the traffic impact study and the preliminary storm drainage report, which included appendices which are key to this project. Ms. Stewart: There were questions about what staff relied upon in terms of the impervious area calculations, and it is contained in the storm drainage report. There are two different tables. One's entitled Woodway Elementary Impervious Area Calculations. And there's notes regarding the calculations. So staff reviewed those. Ms. Stewart: In addition, there's been mention of another type of critical area, and it's been characterized as a fish and wildlife habitat conservation area. Prior to issuing the threshold determination, staff also reviewed a critical areas recognizance report, dated and signed March 20, 2007, and I'm going to enter that into the record. I'm not quite sure if that has been entered. Ms. Ainsworth Taylor: I do not see that one in the record. It will be submitted as part of the reports that were relied on for the MDNS. Ms. Stewart: And this is summarizing a staff site visit early on in the review of this proposal. And on Page 2, I'd like to direct your attention to the middle of the page, where there's a statement that says that this site does not appear to be located Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 within the conservation. It appears to be located on the adjacent parcel to the north, is where the fish and wildlife habitat conservation area is understood to be. Ms. Ainsworth Taylor: So then, hence, you're disputing the map that was prepared by the appellant Petso, who had the map area overlaid into that northern section of the property? Ms. Stewart: That's correct. Lastly, I would like to mention what the appeal procedure are for your determination here. There's essentially three actions. The first is your decision on the planned residential development application and as per information from the City Attorney, Scott Snyder, that decision is appealable to Superior Court under the Land Use Petition Act, and that's according to ECDC 20.35.080.A.4. Then the second decision that you will be making relates to the subdivision preliminary plat approval. That is appealable to the Edmonds City Council pursuant to ECDC 20.100.010.13. And then, finally, your decision on the SEPA appeal is appealable to the Superior Court. This concludes my comments. Ms. Ainsworth Taylor: Okay. (Again, there are multiple people talking here.) Mr. Lutz: I would like to introduce our wetlands expert. Ms. Ainsworth Taylor: Can you remind me who you are. Mr. Enenhisel: Yes, my name is Louis Enenhisel, I'm a senior ?? of wetland resources and a professional wetlands scientist. I also have a minor in ?? from a masters degree. I guess first, to address the ?? of our site. It says that we walked the entire site, that we took core samples of the soils and looked at the plants. Both per my assessment and from Mrs. Marks assessment, most of the plants on this site are ?? or ??, meaning they don't grow in wetlands. There's no wetlands on the site. He intermittent stream is not an intermittent stream, it's a ditch. I doesn't convey any hydrology. It doesn't go anywhere, it doesn't convey... Ms. Ainsworth Taylor: The intermittent stream is the swale ditch? Mr. Enenhisel: Yeah, the swale ditch is not an intermittent stream. They mentioned that it might be an intermittent stream, but it's not. As far as, I guess the next issue is the fish and wildlife habitat conservation area, and I walked through there... My understanding is the fish and wildlife habitat conservation area is associated with wetlands or streams. You know, it protects fish and wildlife. There's no wetland or stream in that area. As far as the wildlife, I don't dispute the species that Mrs. Marks said are there, but there's no ... The habitat species maps that the Department of Fish and Wildlife in Washington provides state where all of the species and habitats of concern are, and there's none within two miles of this site. So while there's wildlife there, undoubtedly, it's not a concern. And in addition, most of that area is not going to be disturbed. The map they based it on the critical areas study, or excuse me, City's critical area maps are generally broad scale overview maps, sort of give you a first idea. They are usually superseded by a site visit. So I would dispute that there's even a fish and wildlife habitat conservation area on this site. I think that does it. Mr. Lutz: At one point, in Ms. Petso's Exhibit 52, there is a flow chart that she referred to. And in that flow chart, if you do a site visit and determine that it's not a critical area, then there's no further action. So I just wanted to make that point. Mr. Lutz: The next issue, and hopefully I can just make this really short. Ms. Ainsworth Taylor: Do you have questions? Mr. Lutz: I have no questions. Ms. Ainsworth Taylor: I know you can have the last chance... Ms. Petso: Yeah, it's that halo. I was wondering, who on the checklist said there was a wildlife conservation area. Who put that into the checklist? Mr. Lutz: I believe it was the City. I'm not sure who... Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: I don't think the City filled out the SEPA checklist for you, did they? Ms. Brown: In the pre application meeting, the City indicated that it would be their preference if we stayed, if any of those trees could be saved in the corner. Ms. Petso: But that is ... Ms. Brown: Because it was adjacent to a potential fish and wildlife area. Ms. Lutz: I think the question is how did we get it wrong in the first place if it's determined not to be a ... The initial checklist said it might be a fish and wildlife habitat area, and then subsequently, the City looked at it and said, no it's not. The question, I think, is how did you come up with it in the first place. Ms. Petso: Right, and therefore, how can we believe anything? How did it get in there and it wasn't changed in any of the other information we had since that time. So we're going by what the checklist says. Mr. Lutz: Yeah, and I think the answer was that somebody went and looked at it and said, no, whatever broad scale information source was the source of that statement in the checklist was not accurate and so ... Ms. Petso: Could we get some documentation on how that determination was made or not made? Whoever is making the determination officially is not here. I would like to know ... Mr. Enenhisel: It wasn't. I didn't see anything when I wrote the report that would indicate it was a fish and wildlife area, so I didn't address it. Ms. Ainsworth Taylor: Any other questions by the appellant of the wetland biologist? Ms. Petso: Well, yeah, if we're allowed to ... Are we allowed to ask the attorney a question too, or just him? Ms. Ainsworth Taylor: He wouldn't be a witness. Ms. Petso: Okay, I can only ask this guy. You said you took some soil samples. How do we get a copy of the results of the soil samples? Mr. Enenhisel: When you do a ?? it's sort of a quick fast look at the site, and so I didn't take the edits. The soils in general on site where it wasn't filled are of sandy loam about ?? 44. Ms. Petso: We know that from the other report. But your soil samples, you're not doing a report for them. Mr. Enenhisel: No. Ms. Petso: Okay, how many did you take? Mr. Enenhisel: I didn't document any soil samples. I just walked and ... (I can't understand what he's saying here). Ms. Petso: Did you take any from the ditch? Mr. Enenhisel: Yes, I took some in the bottom of that ditch because that was the first... When we looked at this site, it was when Burnstead was in feasibility, so because I realized our liability, I realized it was in my best interest to know whether there were wetlands or streams or anything on the site. Ms. Petso: But you don't do a report on the soils. I mean, did you even note somewhere in your notes whether they were all dry. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Enenhisel: Yeah, they were all dry. (Again, he said a few more words, but Ms. Petso was talking too, and I couldn't make out what he was saying.) Ms. Petso: Okay. Mr. Enenhisel: You know, it's a determination of what's there and not the detailed site conditions. Ms. Ainsworth Taylor: Any other questions. Ms. Petso: Yes. When you did your walk through of the fish and wildlife habitat area, were you just looking for streams? Mr. Enenhisel: I was looking for streams, as well as wetlands. Ms. Petso: Okay, so you weren't looking for Fish and Wildlife Habitat. Mr. Enenhisel: As I said earlier, there's trees which make habitat, but there's no reasons per the Edmonds Code that this would be a fish and wildlife habitat area. Ms. Petso: Except that it appeared on the critical area map, right, of the City. Mr. Enenhisel: I haven't seen the map, and I assume that's the case. Ms. Petso: How did you determine, then, that in your opinion the parcel on the Burnstead property wasn't official wildlife habitat but the immediately adjacent City property was? Mr. Enenhisel: I didn't say that. I don't think either of those are. I don't think there's ... Ms. Petso: You think the map is so general that it's actually wrong and that it even jumped across the street from the other high school to call it a fish and wildlife habitat. Mr. Enenhisel: You know, a lot times those maps show sites that don't show wetlands on them, and when you go on site, there's wetlands. Everytime, it's regulated as a wetland if that's the case. Site visits generally supersede broad scale maps. Mr. Petso: Oh that's right, because you were looking for wetlands. Mr. Enenhisel: No, I was looking for wetlands and streams, which comprise critical fish and wildlife habitat conservation areas. Ms. Petso: Okay. Ms. Ainsworth Taylor: Anything else. Mr. Lutz: On the question of the comprehensive plan's requirement and the consistency with the comprehensive plan, I don't think I need to introduce this, but in our letter we provided a single page as Exhibit S, which has an asterisk next to the entry for old Woodway Elementary, Edmonds School District, and it says 3.3 acres acquired developed. And so, as we understand the City's current comprehensive plan park element, there's only a 3 acre parks requirement, which the City satisfied by acquiring 5 plus acres. And again, in Ms. Petso's exhibits, you will find, and I didn't write down the number, but quite a bit of correspondence which shows, at least, the Mayor's interpretation of the comprehensive plan being that interpretation. I suspect she disagrees with the Mayor's interpretation, but it is in the exhibits which were submitted. Mr. Lutz: For the question of infiltration and drainage dispersal, I would like to ask Nicole to quickly address that if you could. The on site ... Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Hernandez: Oh, okay. Ms. Ainsworth Taylor: Am I talking loud enough. I hope I'm being picked upon some of these... Mr. Lutz: I'm sorry. Ms. Ainsworth Taylor: Definitely, Ms. Hernandez needs to be there, I my mind. We don't want to just hear one side of everything. Ms. Hernandez: Hi, Nicole Hernandez, with the Blue Line Group again. I think what you're asking me to address is one of the items that Ms. Petso said regarding the City's Drainage Basin Analysis Report, not wanting all of the stormwater to be directed to one concentrated area for infiltration, but to kind of spread out the infiltration throughout the larger area. And I think it may have been incorrectly stated earlier by someone here, that the roof and footing drains would also be directed into the catch basin and pipe system that will be in the street that then goes into the large infiltration vault. And that's not actually what we're proposing. We are proposing that the roof and footing drains for the individual homes be infiltrated on each lot in some sort of a dry well type system and that the runoff from the right-of-way, the roads and sidewalk, would be what is directed into the infiltration vault. Ms. Hernandez: With regards to the 6 inches per hour infiltration rate that Ms. Petso is referring to from the City's drainage analysis, you know, we feel confident with our geotechnical engineer's analysis using the 10 inches per hour for our design. That also included a factor of safety of 31/2. I don't know what type of infiltration system the City's report was referring with the 6 inches per hour if they were utilizing point drains and things like that, because those do change the infiltration rate. I think that was it. Mr. Lutz: That was all I have to say, but you will allow cross examination? Ms. Ainsworth Taylor: Ms. Marks, Ms. Petso, any questions in regards to Ms. Hernandez' testimony on the drainage? Ms. Petso: On drainage. Ms. Ainsworth Taylor: On drainage. That's what Ms. Hernandez was testifying on. Ms. Petso: So were you saying that the homes, themselves, take care of the 60,000 square feet that are not draining into the road system? Ms. Hernandez: Correct. Ms. Petso: So the central facility only takes in the 66,000? Ms. Hernandez: Correct. Ms. Petso: And how does the outside flow get into that main system, that central system? Ms. Hernandez: Well, it hasn't been totally determined yet, but as I stated earlier, that we would likely put some sort of French drain type system along the back of the lots that the, I guess, panhandle of the City property there, to collect the flow that's coming off that hillside. Ms. Petso: When are you going to make that determination? Ms. Hernandez: During our final engineering design. Ms. Petso: And so, if it's insufficient and if .. . Ms. Hernandez: If what is insufficient? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: If you decide not to put a French drain in and then the guys have big pines in their back yard, what's the recourse? Ms. Hernandez: Well, we need to account for that off -site flow in our drainage design, per the City code. So we will be accounting for that. Ms. Petso: You're not going to do that during the SEPA process. When do you do it? Ms. Hernandez: It has been accounted for in our vault design, we just haven't shown the detail of design on the back of the lot. Ms. Petso: Okay, a minute ago, you were going to do a French drain on the lot. Now you're going to run it back to the vault again? Ms. Hernandez: No. Ms. Petso: Why don't the French drains collect it and connect to the vaults. Ms. Hernandez: To the vaults, correct. Ms. Petso: Okay, so what happens to the Millers, say, who are like two houses down from the ones you say you might have extra drainage too. Too late, or were you not going to include them. I mean, they're like the closest people to the deepest part of the ditch. They're the ones that called in 1983 and said, fill it up. They aren't going to make it deeper because it's filling up. Ms. Hernandez: Well, we are required to collect and deal with the flow that's coming off the hillside. Ms. Petso: Right, I guess my point is it comes off the hillside and it goes to Miller's house. It doesn't just stop on the lots that are long the north end of the property. We have this little map that shows it flowing along the west edge of the property. Ms. Hernandez: Correct. We will intercept it before it gets to the west edge of the property with the drains that run along the backs of the lots. Ms. Petso: Okay. So you're saying it can't get to ... Ms. Hernandez: That's what, I mean it's in our best interest to do that for Burnstead, as well. Because obviously you don't want their homes flooding or anything happening there. Ms. Petso: You know, to be honest with you, Ms. Hernandez, it was because based on what happened with the Clarkes, I assumed that nobody took care of it, they bought a house and surprise, now they are underwater. That's why I'm wondering, if she approves this thing and you decide later, after she approves it environmentally, to not put those storm drains in, what recourse do people have. Ms. Hernandez: The City still needs to review and approve our final construction. The City code will require us to collect and deal with that stormwater that's coming onto our site, because it is an off -site tributary area to our property. Ms. Petso: But we can't require French drains? Ms. Hernandez: No, but we would have to deal with it in another way then, and you know, as part of our engineering review, they may require us to put in French drains, but we have not done a detailed design yet. Ms. Petso: And if they don't, there's no recourse for the property owners. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Hernandez: If it's not a French drain, it will be something. Ms. Petso: Could you also tell me, you mentioned preparing for a 100-year storm. Which City code requires you to do that? Do you know. Mr. Fiene: It's 18.30.230. Ms. Petso: I mean which provision? Because in 18.30, I don't see anything in there about the 100-year storm. Mr. Fiene: The 100-year storm is actually spelled out 100-year storm. 2, 10 and 100 for a system that drains to a stream, 10 and 100 for a systems that don't go into streams. I don't have the actual, it's under 06.1. Ms. Ainsworth Taylor: 18.30.60? Mr. Fiene: Yes. Ms. Ainsworth Taylor: And all developments greater than or equal to one acre that discharge directly or indirectly to a stream, it talks about that in Part B, so it is 060.1.A,B,C,D,E,F, talks about the different standards for different areas. Ms. Petso: I guess my concern is, since this doesn't discharge to a stream, and somebody decides they don't have to meet any standards. So I just wanted to make sure it was in the code somewhere because... Mr. Fiene: If it doesn't drain into a stream, you don't have to do the 2-year, but you still have to the 10 and 100. Ms. Hernandez: 10 — 24 hour, 100 — 24 hour designed storm systems. That's in sub part C, all other development. Ms. Petso: Thanks. Ms. Hernandez: The all inclusive all others. Ms. Marks: Would the flow control and water quality facility support the analysis, and I think several other ... It's based on a 1992 Washington State Department of Ecology Manual, and there's also a 2001 or 2005 manual, right. Ms. Hernandez: Yes, there's a 2005. Ms. Marks: So I was wondering why it's based on an old manual. Mr. Fiene: We're not comfortable with the newer one. Ms. Hernandez: That manual was adopted by the City of Edmonds, and they have chose, for right now, not to adopt the 2005 manual. Mr. Fiene: A lot of cities are reluctant to adopt that, but it's a whole other subject and I'm not going there. Ms. Marks: Okay, that explains that. Ms. Ainsworth Taylor: Any other questions at this time for Ms. Hernandez? Mr. Lutz. Mr. Lutz: I actually, if he would indulge me, I just have one question for Mr. Fiene, and Mr. Fiene thank you. Based on your responses earlier to Mr. Clarke, it's clear that you have a good understanding of the drainage issues that are in the area surrounding this project. Mr. Fiene: Yes. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Lutz: Do you believe that an EIS is necessary in order to study drainage from this plat to avoid significant adverse impacts to off -site properties, or can we rely on the City's code for drainage? Mr. Fiene: I'm not an expert on the EIS. From my perspective, that's more of a planning issue. But what I can say is that our code requirement is that Burnstead takes care of their drainage, and I wouldn't think that we need to go to that detail for that aspect of it. And the City is dealing with the drainage problem there, and I would like to comment, there was one comment, I guess by Mr. Hertrich, that it's an area wide problem, and he's wondering about the City's efforts to do something. I could show a map of all the different systems we've put in in that area. We've spent a disproportionate amount of time, you know, involved in that area taking care of drainage problems. So we're diligent, and we do intend to build a system at the new park. It's going to be part of that project. I'm going to be at the meeting next week discussing that, so it's an answer to your question. I thought I'd make that comment, as well. Mr. Lutz: All right, thank you. I'm through. Ms. Ainsworth Taylor: I guess it's back to Ms. Marks and Ms. Petso. Ms. Petso: I guess I'll start with the rebuttal. Would you say that this is consistent with the drainage basin study, the comp plan, that says assume 6 inches per hour for long term, and don't use a centralized facility. Mr. Fiene: Okay, the basin study, I mean, it did say the 6 inch as an average to be used for the long term infiltration rate. But it also said it could vary between 2 and 10 and that you should do a site specific analysis. And that's what we'll hold Burnstead to. Ms. Petso: Except that this is site specific, I mean the Southwest Drainage Basin Study is site specific to this area of town. Mr. Fiene: Right, but it's a study. We didn't do infiltration rate analysis in every individual site throughout the area. It's an overall for the area to give us some benchmark on what to be looking for. Ms. Petso: Are you comfortable with the fact that none of their infiltration testing is at the location where they're going to put the infiltration thing, facility. Mr. Fiene: We'll review that, you know, when it comes to that point during the storm drainage report, when it's submitted to the City. Ms. Petso: Can I ask why we shouldn't review that in an environmental impact statement? Mr. Fiene: Once again, I'm not an environmental impact statement expert. I think that's more of a planning question for the planning manager than it would be for me, but once again, I think they're responsibility, as far as the drainage laws to take care of the drainage on their site, and make sure it's no worse than it was before under the criteria. Ms. Ainsworth Taylor: Just to clarify. As part of the environmental review, I show that there was a stormwater drainage report submitted, the one that's in the record. Mr. Fiene: We need a more detailed report than what's there before we ... Ms. Ainsworth Taylor: The other one that Ms. Hernandez referenced before. Mr. Fiene: I think that she did refer that there's going to be a more detailed report to follow and that's what we expect. Ms. Petso: Now, why would you have the emergency overflow go out on 237' where it already floods Kevin's house? Because you can be sure that if this new project is flooding, Kevin's house is already under stress, if not under water. Mr. Fiene: It has no where else. I mean, it really has nowhere else to go. I mean that's the downstream system. That's what's happening now. Right now, there is a situation. We can't make it any worse than we did before, once again. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: So how are you not making it worse by routing emergency extra water to Kevin's house? Mr. Fiene: I don't know where you're getting this statement that we are doing that. What we're doing, are you talking about the Burnstead development? Ms. Petso: Yeah, the project, somewhere in this, the project says that the vault that's going to go under the play area will be set up so that if it can't handle the water on site, the water will first overflow into the street on the new development, which, you know, may not bother Kevin much. But after it rises, it will topple over into the drainage system currently on 2371 Mr. Fiene: Well actually, their overflow should go in the same pattern it does now. That will be a requirement. So if it goes towards, I think it was Mr. Miller in that area, that would be where it would go now. You do not want to send drainage into a direction it's not already going. So it would flow in that matter. So if that's not what they're showing, that would probably be something we would address on our review. Ms. Petso: Here's my concern then, is that the water currently going to Mr. Miller's house, I have been assured, will be collected and conveyed to this other facility. And I've been told that that facility will then drain on 237'. Mr. Fiene: Once again, we're looking at the design storm. You're talking about emergency overflow, which could be for a 500-year event. It could be for a much larger event. But whatever it is ... I mean, the drainage law, the way it is, is that you have to maintain natural drainage patterns, and that's what we're going to hold them to. Ms. Petso: But you said there's no where else for the water to go a couple of minutes ago. So if you don't put it on 2371 and it isn't getting there right now. It's being sucked up by some tree in the drainage ditch. What do we do then? Mr. Fiene: I don't know what else to say. I mean... Ms. Petso: Can we talk about the maintenance. In that study, what's the recommended maintenance for this part of town? Do you remember? Mr. Fiene: Maintenance. Our requirement for City systems? Ms. Petso: Yeah, what you would do if you had this thing. Mr. Fiene: Our City code regarding maintenance as far as on municipal operations is that we inspect the system once a year and factor as necessary. We also are required to inspect private systems of a certain size or bigger, such as this one, on a yearly basis and report if there's any problems. Ms. Petso: If you were to find a problem, since this isn't your system, what do you do? Mr. Fiene: You would notify them and put them on report that they need to maintain their system. Ms. Petso: No, not them, because they'll be gone. Mr. Fiene: Right, it would be the homeowners association. Ms. Petso: And if the homeowners association would rather spend their money on other things because it isn't there house that floods, it's Kevin's, what do we do? Mr. Fiene: They could get fined. Ms. Petso: Is this like the fines for accidentally cutting down trees, or is this a fine that would provide for ... Mr. Fiene: The fine is per the code. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: Oh, per the code. And you don't know how much those are? Mr. Fiene: Not off hand. I'd have to look that one up. Ms. Petso: Okay. In that document over there, it suggested a more heightened maintenance for the southwest Edmonds area no doubt due to the existing problems. Is the one year normal, or is the one year more heightened. Mr. Fiene: I would have to double check on that. Ms. Petso: Okay thanks. Ms. Ainsworth Taylor: Anything Ms. Marks? Ms. Marks: I don't know if I should ask him or... I guess... That is what kind of enforcement procedure is there ... I have to make sure I really understand this so that when Burnstead has completed the homes and they've left, and then the system doesn't work, I mean by chance, maybe inadvertently it was the Corps of Engineers, the same ones who built the dykes down in New Orleans or something like that, so they really were sure that it was going to work, and you can be really sure something is going to work, but we are human and we make mistakes. But if two years after or a year after we've completed the project, so they don't have any legal liability for it, you know, the idea of the homeowners association having, and not just the homeowners association, but the people around it that are flooded. Ms. Brown: It's actually pretty standard for the homeowners association to be responsible for maintenance. Ms. Marks: That may be, but I mean there's no enforcement for say, Burnstead to come back and two years later and make good on a plan that we are... This is the thing. We are to accept it now. We are to trust, and that's what it boils down to, is that we are to trust the City and Burnstead that all of their calculations are right and then if something goes array, we're the ones to get stuck with it. Mr. Fiene: That's just like any development ... Ms. Marks: That's why we're saying this development... Mr. Fiene: On the other hand, if you go back to 1977, the City didn't even have a stormwater management code. I mean, the progress has been enormous. I mean, it will probably continue to be more aggressive over the years, but the bottom line is this is the City code, and this is what we go by. Ms. Marks: So that's why it is so critical to this whole area that we have an environmental impact because, I mean, we are being asked to accept this on faith. And I know that they have all the best intentions. They have good workers and everything, but we've been burned before when the City has said, trust us. Ms. Ainsworth Taylor: Thank you, Ms. Marks. Anything else in closing? Mr. Lutz: My only closing is that we appreciate your time. We appreciate the appellants' concerns. From the perspective of the requirement of an environmental impact statement, the question is, have we provided the information that the City needs to reasonably determine, if they enforce their code as it's written, and if we do the work we're supposed to do, which if we don't we'll get in trouble, they are confident that there's not likely to be a significant environmental problem caused by this development. And the answer is, based on all the evidence, that there is no potentially significant adverse impact that's been identified by any of the studies that won't be handled by code and proper code enforcement. So for that reason, the appeal should be dismissed. And then as far as the PRD application is concerned, we have to follow up on the school district issue. Ms. Ainsworth Taylor: Yeah, there's a few things. We'll go through the list. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Lutz: And really, apart from that, we're very confident that the proposal meets City code and we are comfortable with staff s recommendation. We're comfortable with the Architectural recommendation if you choose to accept it. We look forward to your decision. Since I just did that, I'm the lawyer, and I want to give the last word to Ms. Brown, since this is her project. Ms. Ainsworth Taylor: Any final comments, Ms. Brown, in response to the appeal? Ms. Brown: I would. On behalf of the applicant, I respect you for being here. I know that you guys have concerns, and just like everybody, you have the right to speak your opinion based on your experiences. I get that. As the developer, what I'm required to do is prove to you, based on county codes and hired professionals trained to do their job, and I'm going to do the best I can to make sure that your concerns are met. I feel that I've done that here today. I know you see differently, and we can sit here and view opinions for another six hours, but I know none of us want to do that. But I just need you to know and have it be on record that I do understand and appreciate your concerns, and I respect the fact that you have the right to voice them. Ms. Ainsworth Taylor: Any rebuttal closing comments, Ms. Petso and then Ms. Marks, or you can switch around, if you would like. Ms. Petso: Regarding the assertion, I guess, that the Mayor chooses to interpret one small portion of the comp plan to mean it was supposed to be a 3-acre neighborhood park on the site, you're right. I don't agree with that interpretation. In fact, there's text in the comp plan which indicates that the 3-acre number is derived by taking seven sites needing neighborhood parks and dividing the 20-acre shortage of neighborhood parks, and you get the number 3. It has no significance in terms of somebody saying that's how it should be. In fact, that's pretty much the minimum size neighborhood park for the City. When you combine that 3-acre neighborhood park with the 2-acres of open space, you're still left with trail deficits and playfield deficits, which the City's grant application indicates could be met and better met by following the comprehensive plan, which says acquire the property. Ms. Petso: With regard to the Mayor's interpretation, another concern is for Exhibits 18, 19, 20 and 21, that deeply indicate the Mayor's not entirely total enthusiasm for this project. I mean he's enthusiastic for the houses, not to acquire the property for a park. He has a column in the Enterprise in 2005, a memo to Council in 2005, both saying well, if you insist, I have to follow Council policy. The City Council minutes of January 18, 2005 are even funnier. They say something... Ms. Ainsworth Taylor: Once again, how does this apply to your appeal of the environmental issue on what the Council wanted and what the Mayor was saying. That's a done issue. They've done what they've done and... Ms. Petso: I'm sorry. I was rebutting his comment that the Mayor's interpretation of the comprehensive plan was appropriate. I'm trying to show it isn't appropriate based on his conduct. For example, on 4/11/2006, he threatened to veto Council if they voted to buy the entire property for a park. Now, on the other hand, Council's attitude is different, and they're the ones who set policy. On March 20, 2007, just a couple of months ago, Deanna Dawson said, no we haven't amended the comp plan. Not a problem. The comp plan says what it always says, the properties a park. Ms. Petso: The other comment by the attorney I would rebut is that there were no significant adverse environmental impacts not addressed by the code. And I think that probably above all people, Don made that most clear. Just one example from his testimony was that we can't change the direction water's going to flow, even if we take the water from the drainage ditch behind the Miller's house and either dump it on the Miller's property or convey it out to 2371 instead of letting the trees in the current drainage swell suck it up. We've changed that water. Don said there's nothing he could do about it; there's no where else for the water to go. The overflow will have to go onto 2371, the system that I think even you can see it earlier, appears to be overburdened. Now what that gives us is a significant, as in flooding, adverse, as in flooding, environmental drainage impact not addressed by the code. And that's in the EIS. Ms. Petso: Oh, one other comment about the Attorney's rebuttal. I've pulled out Exhibit 52 or whatever, and this is incredibly tiny type so I urge you to force staff to give you big copy that can actually be read. If there may be a fish and wildlife habitat conservation area on or near the subject property, a critical area report is triggered to determine if the critical habitat is within 200 feet of the adjacent parcel. Now, using the City's critical area map and the scale on the map, not merely Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 my overheads, which apparently Council doesn't like, but if you take the City's critical area map and measure it on the scale, this actually intrudes into the Burnstead property over the 200 feet. Never mind, the critical area is within 200 feet of the property. It doesn't say anything on here about a site visit finding no stream means you don't have to do this stuff. In fact, it says if you go to the next step, then, and the critical area report does identify an area within 200 feet, then you have to provide an assessment of habitat and identify proposed impacts from the potential development. And then if there are any proposed impacts, you then have to take the next step, dealing with mitigation. Ms. Petso: The problem is here, that the report requirement wasn't even satisfied. The code lays out very specifically in two places what the report has to require. One is the critical area ordinance and the other is in the fish and wildlife habitat conservation area ordinance. The evidence of most concern that I've been trying to get from the City for about a week now are a detailed map of the critical area, and a biologist's opinion on the value of the habitat and what kind of buffers are needed. So it didn't say anything about doing a site visit and skipping the report. That's not a part of our code. Ms. Petso: The comprehensive plan, oh, and that reminds me too. In the critical area ordinance it says that actually the fish and wildlife habitat one it says any urban open space is a critical area, a fish and wildlife habitat area, which is cute. I don't probably agree with it, but at least it will get the ball rolling on analyzing the actual fish and wildlife habitat that is there. I'm not going to insist that the ball fields make good habitat, but certainly the wooded area does. Ms. Petso: Under our comp plan, all feasible means shall be used to preserve the following open spaces: lands which have unique suitability for future recreational uses, both passive and active. Now, you guys can build your homes on any dinky little parcel in the City. Instead of 27 in one place, you might get 27 in 13 different places, but you can build them there. Playfields can't be put there. These lands have unique suitability for future recreational uses, both active and passive. Ms. Petso: Okay, and I need to get my materials here. Under the fish and wildlife habitat conservation ordinance or the critical areas ordinance, it's the critical areas ordinance actually, the applicant shall avoid all impacts that degrade the functions and values of critical areas. Now when we get the biologist's report, we're going to know the effect of cutting down a bunch of trees, installing the rockery and other impacts on the critical area, and that's in the critical area ordinance, and this property's designated in our critical areas map as being a critical area. Ms. Petso: One more shot at drainage that we probably didn't deal with fully before is the high ground water aspect. Ms. Ainsworth Taylor: You never raised higher ground water as part of your appeal. Ms. Petso: Oh that's right. So I can't do it now. Okay. As Don indicated the long-term infiltration rate, he said 6 inches could be okay and 10 could also be okay, but that's not what the drainage basin study says. The drainage basin says that the short-term rate could be as high as 8 to 20 inches, but it should be reduced by a safety factor to account for the progressive clogging. It specifically says the average infiltration rate of 6 inches per hour is considered to be a long-term rate that can be sustained over a multiple year period. And believe me, that's what we want. I don't care how good the consultants are, I don't want a report for our neighborhood that is relied upon that can't be sustained for more than a couple of years, and then the flooding is gone. It works okay for Burnstead; they'll have the houses sold by then. But it doesn't work okay for the neighborhood. Ms. Petso: Okay, anyway, it can be sustained over a multiple year period, assuming the facilities are maintained by sediment removal. Again, it's not in the CC and R's yet, you know when it's in, I very seriously doubt any homeowners are going to choose to maintain the facility when the flooding is directed not at their house but at Mr. Clarke's. Furthermore, infiltration, oh I can't read that sentence, because it's not rebuttal. Oh well, it's in the materials on Page 32. Ms. Petso: At the Architectural Design Board Meeting, we apparently had some sort of a drainage expert serving on the committee because he evaluated specifically the vortex separator that's planned for pretreatment and said quote, it does a good job in terms of overall mass sediment removal, but it does not get the fine particles based on the modeling he has seen and the ?? he has reviewed. It will have a tendency to plug the surface code, press over the surface, and reduce the infiltration capacity. As a way to address, he suggested a more rigorous maintenance program. He assumed the City would be responsible for maintenance and when he was told it wasn't, he said he saw an obvious enforcement concern and suggested that perhaps oversizing the facility would be a way to give more reliability. You can't really do that here because Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 the amount of space allocated on Parcel C can't be changed if a larger facility is needed, and he noted that in his comments in the ADB minutes. In fact, he was specifically concerned that he didn't want to see them not have set aside enough space at this point and then find that this facility isn't bit enough. Ms. Petso: It's interesting that so much has been deferred, for example the determination of whether the houses are going to comply. The ADB says we'll look at them when we have actual housing plans, and yet they're issuing their PRD approval now. That's an unacceptable deferral. The plans, under the conditions of the PRD ordinance, you have to approve the plans now. Under SEPA, SEPA has to occur before the City commits to a particular course of action. As I've just explained with the drainage, let's suppose we defer the rest of the drainage analysis and don't do an EIS, and then we find out, when we're doing our detailed engineering work, that gee, the facility needs to be bigger after all. Petso was right all those months ago. It will be too late; the City's already approve the PRD. There's no where else with 70% lot coverage to stick a drainage facility and Don's already said there's no where for the excess water to go now. Ms. Petso: I somehow get the feeling that the intention here is to just blow off all the SEPA concerns and not do an EIS, but I think that if we do that, we're going to get committed to a particular course of action and not be able to fix it if the detailed engineering suggests we should. If the information... Well, the other thing is they have to provide the information. For example, if the information is essential to a reasoned choice and the cost is not exorbitant, then it needs to be provided. That was WAC 197-11-158. Under that, we should be looking at the habitat assessment and we should be looking at the detailed drainage picture. We should actually have a study that talked about what infiltration might do on Parcel C rather than here and here. I mean I'm much more confident in the City's number that says this whole area of the town typically drains like this because we studied it. And they don't have vested interest in making the study one way or another. That is like an objective consultant report. Ms. Ainsworth Taylor: Can you wrap up your rebuttal so this other person has a chance to offer hers. And we've got procedural issues to finish up, too. Ms. Petso: Okay. The impervious surface calculation was brought up in the rebuttal and I wanted to make sure you take a look at that. Because the PRD requirements are for reducing impervious surfaces, and these numbers here show 66,000 square feet that will be drained by vault C, the vault on Parcel C, and another 60,000 square feet that will be drained on each individual home. This can't be said to reduce the impervious surfaces. I also want to mention that there is no clear benefit from this PRD because the features that are being protected are protected by other... Well, in the first place, they're not fully protected, and in the second place, they're protected by the parts of the code. Ms. Petso: For your reference, the definition of lot coverage has been provided in one of my exhibits, as has the definition of structure, and yes the answer is that driveways are included in lot coverage under our code. They are not included in lot coverage under the proposal. I guess your only option here is to do the math, but if the houses are already at 35% and then you add the driveways, you're over. Ms. Ainsworth Taylor: Okay, you have one minute. Ms. Petso: Oh dear. Okay, this is actually kind of important. The wetland guy got up here and said he couldn't find a wetland, but if you check our definition of a wetland, the wetland doesn't mean you look at it and see a stream, it means when you take soil samples, they're moist. And there's evidence that there is frequently standing water on the location, and we've certainly provided that evidence. It's actually recognized as a drainage ditch. So I'd like you to consider not just whether the fish and wildlife habitat conservation is a critical area, but also the wetland. Ms. Petso: Oh, a final note is that the critical areas report is required whether the critical area is on or just adjacent to the property, so whatever piece of evidence that the staff came up with, here it is recognizance report, that says the critical area appears to be located on the adjacent parcel to the north. Well, that parcel's only 92 feet wide. So the critical area is certainly within the 200 feet if it's located on the parcel to the north. So it still needs a map. And like you said earlier. The critical areas are treated under the code here the same whether they're on the property or within 200 feet adjacent to the property. And I guess finally... Ms. Ainsworth Taylor: Last point. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: Okay, I have to conclude with the appeal issues, in part because the site visit is required by you prior to this hearing. When we did the appeal last time, we were told we had to appeal within 21 days, like you heard. And then we were told to wait for the permits. And so when you give us our instructions on how to appeal, could you tell us what permits to wait for? I mean, do we wait until the tree cutting permits are issued, or do we wait until the site permits are issued? Ms. Ainsworth Taylor: The appeal information that I'll provide you is appeal to my decision, and my decision alone. I mean, it is a final decision of the City at that point, and I can't be giving you legal analysis on whether everything that's been done by the City. That's up to you, it's not up to me. Ms. Petso: Could you ask the City to notify the parties of record when the final decision has been taken. Ms. Ainsworth Taylor: You will all get a copy of a final decision mailed to you. Ms. Petso: No, not your final decision. The City's. Ms. Ainsworth Taylor: Well, the issue that I'm doing here, the appeal issue, is a final determination by me. The PRD is a final determination by me. The only one is the plat, and that goes to City Council. The two that appeal to Superior Court are final decisions for the City, and you have no other recourse than the court. Ms. Petso: Oh, I understand that, but the difficulty that you've just noted comes in in figuring out what's final when. Ms. Ainsworth Taylor: That's, I can't hold your hand through that. That's not my responsibility. Ms. Petso: Okay, so appeal instructions will not be included? Ms. Ainsworth Taylor: There will be simple appeal instructions just saying this decision is final and this is how you appeal it, either to City Council or to court. Ms. Petso: Okay, that's a start. Thanks. Ms. Ainsworth Taylor: Ms. Marks, your final comments. Ms. Marks: This whole thing isn't my final comment, I assure you, okay. I just wanted to, for the record, say that the infiltration, we're talking about the stormwater, that it must be treated so that downstream there isn't going to be particulates, it's called, they should have a downstream analysis of the granulate. The other thing is that Edmonds has outdated standards, and I want to have that just in the record. I know you can't do anything about it, but I want it in there. And that apparently, part of what's in the newer versions has to do with the Everett Soils, which are mentioned in here, and they're no longer looked at with the same characteristics in the new standards, as with the standards that were used for this. So I hope that there's an EIS. I think that we should have a third parry who would do it because, you know, not have scientist who are working for Burnstead. We need to have something where we have an outside third party look at the whole situation. I hope that what people have said here, that is those residents, is really taken into consideration, even though they may not be soil experts or they may not be an expert in this or that. They are an expert in where they live, and their experiences are real. It would be like having a doctor tell the father of a son that he doesn't know what it's like to be a father, just because you have credentials. But it's living it, so anyway, that's my two bits. Thank you. (Note: the remainder of the transcript is as accurate as I could transcribe, given that I couldn't hear the hearing examiner clearly.) Ms. Ainsworth Taylor: Okay, we need to enter these exhibits into the record. We're going to start with the exhibits that were submitted to me by the City, which I noted earlier, I had designated as plat exhibits with Exhibits A and B in the staff report, having 16 separate attachments to those. They will be delineated in my decisions, each of those described by name. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 They're also included in on Page 15 of the staff report. And I have separate on the appeal exhibits. Exhibit A, the City's response to the appeal, with 9 exhibits. Mr. Lutz: Is that Exhibit A or B? Ms. Ainsworth Taylor: It's Exhibit A to the appeal. Mr. Lutz: Oh, okay. Ms. Ainsworth Taylor: And the separate listing of the items on the exhibit are listed on Page 7 of the report. Exhibit B to the appeal matter is the Perkins Coie letter dated the III, and that's the copy I would need. And with that, there was 6 attachments to that. Also coming in, just noting that I have large versions of the plat, site plans that are pretty much included as Exhibits 4 of the main plat. I would like to make two ??, in regards to the plat, itself, Exhibit B would be would be a letter from the school district. Exhibit C is going to be the sewer and water availability letter, and Exhibit D, which will be more from the City is the notice affidavit that says the code was complied with in some regards. Ms. Brown: Can I have clarification on Exhibit C, the utility letter? Ms. Ainsworth Taylor: Yes. Ms. Brown: The way the sewer and water district handles this is they give us progress numbers. Ms. Ainsworth Taylor: If that's how they handle notifying you of the availability of sewer and water for this development, then that is fine. Ms. Petso: I have a question too, on the exhibit about the school issues. When does the public get an opportunity then to respond to that issue. I know a lot of the people testified tonight about how it's not a great roadway, and to be honest the City park eliminates the current bus stop pick up. So I'm wondering, when that letter comes, what opportunity we have to tell you what we call the local information about... Ms. Ainsworth Taylor: Well, I guess any issues you wanted to address on whether this plat had impacts on schools within the area were available to be addressed a, at the plat matter, which we've heard, or under your SEPA appeal. Neither times have ... All I'm asking for the school impact, and based on testimony I heard, the way I interpreted it is that student walking and sidewalks was adequate and school bus stops are provided on that road. So my response to you is you don't have a rebuttal. Ms. Petso: So won't we even be given a copy of Exhibit B? Ms. Ainsworth Taylor: You can get one through the City. Ms. Petso: Okay, but not as parties of record to having spoke on the plat issues, you're not going to give us one. Ms. Ainsworth Taylor: I'm not going to copy the entire exhibits and send them out to you, no. You'll get a copy of the decision, not of all the exhibits. Any supplemental exhibits that we're talking about now that you would like copies of, the City holds the official record. Ms. Petso: Why would you say that we had to address school issues prior to them having been addressed by the City, you know what I mean. If it's a requirement, shouldn't they have presented on it, and then we get a chance to ... Ms. Ainsworth Taylor: They should have presented on it. They didn't. It is a concern that normally comes up when I hear plats. I hear traffic, I hear wildlife impacts, I hear open space and I hear schools. If somebody has a concern, we have to raise that. Ms. Petso: We didn't know what they had said about it? Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Ainsworth Taylor: If you want to let that, go ahead. You can get a copy from the City as soon as we submit it. Seeing that, I'm assuming, also, Ms. Petso, that the environmental checklist, the MDNS went out to the school district. Notice of this hearing is usually sent out to those type of agencies, along with it being published in the newspaper. If the school district had any problems about it, they would have a representative here. Moving on to other exhibits. There will was the illustrative exhibit which I'm not going to really enter as anything other than an illustrative exhibit, so it doesn't come in. The same with the other map that the gentleman submitted to note where Deer Creek was in relationship to the property, since this is also an illustrative exhibit. Ms. Ainsworth Taylor: Moving on to the SEPA official documents that came in. Exhibit C will be the City of Edmonds Critical Areas Recognizance Report that they provided. Exhibit D is Ms. Petso's briefing on the issues on her appeal, which had with it a total of 60 Exhibits. Do you have any objection to any of those exhibits, Mr. Lutz? Mr. Lutz: No, but we would, at the City's convenience, like to get copies of the exhibits Ms. Ainsworth Taylor: Okay. No objection from the City on anything? I haven't reviewed each of these individually, and I don't where they pertain to exactly on the appeal, so I'll go ahead and submit them into the record and give them the weight that I feel in my review of them. I will notice that numerous testimony was received in regards to the 2003 Southwest Edmonds Drainage Basin Study, and is that in here? Ms. Petso: Only in excerpts. Ms. Ainsworth Taylor: Are the excerpts that you relied on for your argument in here? Ms. Petso: They're in the main brief and Exhibit 1, I think. Ms. Ainsworth Taylor: Exhibit 1 is just one figure. Ms. Petso: Yeah, it's the map that shows the existing drainage Swale. Ms. Ainsworth Taylor: The sites that you're referencing in your brief are those from the plan? Ms. Petso: Yes, and they have page numbers. Ms. Ainsworth Taylor: Excerpted in here? Ms. Petso: No. Ms. Ainsworth Taylor: Then you need to provide me with those excerpts of that plan because you're using it as supporting argument. Ms. Petso: Okay, how do I get that to you. Ms. Ainsworth Taylor: You will be submitting it to the City. Diane will you take it? And then they will forward it on to me. The same will hold true with that. So also, if there's anything that you're referencing, any detailed document that you're not providing an exact excerpt in there. At the same time, you might as well provide another set of copy for the City to pass on to the applicant. Ms. Petso: Do you want a large form of the critical areas map, or do you just need the small picture that I provided? (The tape changed her, so I didn't catch the answer to her questions.) Ms. Ainsworth Taylor: So any excerpt that you bring in of the 2003, what I'm going to do, is your Attachment 1 or your Exhibit 1, that will all become 2003 basin study, Attachment 1 to your brief you don't have to keep adding. The whole excerpt things would be that one exhibit. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Ms. Petso: So if I get the whole book, we're all going to call it Exhibit 1? Ms. Ainsworth Taylor: You can make copies of the pages that you want studied. In other words, you don't have to provide the entire booklet or manual, whatever it is. Just those pages you're citing as reference. Then I have Exhibit D, which is Ms. Marks... Ms. Petso: Actually, I think I was D. You're going to have to make her E, unless I didn't hear right. Ms. Ainsworth Taylor: You're right. E is the letter that you prepared dated today, June 21, 2007, and that goes through the arguments that you presented. In addition to that, you have one attachment, which talks about ... Ms. Marks: It's the email that I mentioned about a neighbor who tried to work with the City on ... Ms. Ainsworth Taylor: So an email attachment to demonstrate traffic issues on that spot. Ms. Marks: I had planned to show pictures, and I don't know that you would actually look at them anyways. I could email them to you if you want. Ms. Ainsworth Taylor: Okay, so I'm just thinking of a deadline for you getting the documents. The notice should be no problem. You have indicated you already have something with the sewer and water availability, so just primarily in regards to the school impacts. Do you think by next Thursday, you could have something filed with the County? We are getting up into the holiday time coming up. Mr. Lutz: I'm not sure how long the hearing could be held open, but I would expect to be able to track down this letter. Ms. Ainsworth Taylor: So you think there's a letter floating around out there. Mr. Lutz: It's not entirely clear. Ms. Ainsworth Taylor: Is it possible to set a deadline for Thursday? Ms. Brown: I'm concerned that we're working a vacation time, so people I need to talk to, I'm not certain they're available. Could we put a timeline on it from a week from now and ... Ms. Ainsworth Taylor: And notify me, but I'll officially try to set the date at 6/28. You're under the same parameter, 6/28, that's next Thursday, to having the excerpts of that basin plan that you want to have submitted in support of that. So that would be the tag date for the official close of the record at the close of business on the 28t1i. Under the City's code for doing plats and somehow SEPA appeals, they give me 10 working days, which is not going to happen on this case, maybe on straight plats, but not on a SEPA appeal. So I would like to have ... (There was various discussion about a possible date for the decision to be issued, but too many people were speaking to catch what was being said.) Ms. Ainsworth Taylor: Friday, the 131 is officially the 10' working day, minus the 4'. I'm actually thinking, based on the extensive record and the other things going in, that I'm going to need at least 15 to 20 days. Mr. Lutz: Can I ask a question of the City staff. Do we know if there is a piece of this that goes to the Council, what the Council's August schedule is and if there's any ... I mean, they don't call a recess for a month or anything like that? Ms. Cunningham: No, no they don't. Ms. Ainsworth Taylor: I guess I'm going to propose maybe by the 20', if that works. Ms. Petso: That's for your decision. Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76 Mr. Lutz: You have no objection. Ms. Ainsworth Taylor: It's really controlled by the applicant. No objections from the City or anybody on that. Okay. So we're going with July 20r''. If I happen to get it done earlier, it will be submitted to you earlier. I don't hold it until the actual due date. If I need any further clarification or find in my review I need an additional document, I will issue an order on that, and I will have you submit those documents, once again, to the City if there's clarification that I'm needing on that. If I'm asking for clarification, I will allow a rebuttal of anything that's been presented, that will be said in the record, as well. Ms. Brown: I have one thing to clarify. Your decision on the SEPA appeal and the PRD will be issued... Ms. Ainsworth Taylor: It will all be a consolidated decision. I really can't issue a plat without making a SEPA determination. And noting that, my standard review on this matter, the plat and the PRD is conformance with the code. For the SEPA appeal, it's looking at their determination that they made, the City's determination, and I look at it based on the standards to determine if they made an error in their judgment in my opinion. So a little bit different. But that's it. If you have nothing further, it's 9:45. I TESTIFY THAT THESE VERBATIM TRANSCRIPTS ARE COMPLETE AND ACCURATE TO THE BEST OF MY ABILITY TO TRANSCRIBE THE PROCEEDINGS. Karin Noyes, Transcriber Date Verbatim Hearing Examiner Transcripts File Numbers AP-07-1, AP-07-2, P-07-17, and PRD-07-18 June 21, 2007 Page 76