2020-08-27 Hearing Examiner Decision2
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CITY OF EDMONDS
121 51h Avenue North, Edmonds WA 98020
Phone: 425.771.0220 • Fax: 425.771.0221 • Web: www.edmondswa.gov
DEVELOPMENT SERVICES DEPARTMENT • PLANNING DIVISION
BEFORE THE HEARING EXAMINER FOR THE CITY
OF EDMONDS
Phil Olbrechts, Hearing Examiner
RE: Diamond Parking Services LLC FINDINGS OF FACT, CONCLUSIONS
OF LAW AND FINAL DECISION
Conditional Use (PLN2020-00037)
OVERVIEW
Diamond Parking Services LLC ("Applicant") has requested approval of a
conditional use permit application to establish commercial parking at three existing
parking areas at 306 Main Street, the Bank of America site. The application is approved
subject to conditions.
The Applicant has unwittingly found itself involved in an on -going hearing notice
issue raised by a third party that has led to unfortunate delays due to the need to re-
open the hearing twice to address potential and actual defects in public hearing notice.
The bulk of this decision addresses the notice issues because the third party has
indicated he will appeal this decision to the City Council on those issues. The need to
re -open a hearing is very rare and the examiner has only had to re -open a hearing less
than five times in the 2,000 hearings held by him and never twice. The circumstances
leading to these re -opened hearings were highly unique, resulting from a combination
of COVID, some ambiguous notice requirements and a litigant actively trying to force
procedural error from the City. Ultimately, it is highly debatable whether staff made
any error in hearing notice, but if such an error did occur it was limited to not posting
hearing notice in City Hall and the Library while those two buildings were closed
during COVID. The hearing was re -opened with posting of all required buildings to
correct this potential deficiency.
One obvious point to maintain proper perspective is that public notice procedures
do not involve the precision of designing O rings for space shuttles. Short of staff or
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the Applicant phoning every resident of Edmonds and repeatedly phoning them until
each has been personally contacted, there is no practicable means of assuring that every
potential interested person is made aware of a pending land use hearing. Instead,
adopted hearing procedures and the court opinions construing them require a
reasonable effort to apprise the potentially interested public of land use projects that
may affect them. In the implementation of these objectives, there are often multiple
means of providing notice within the parameters set by local code. Each method may
reach a slightly different group of people, but in the end if the procedures have been
reasonably interpreted and applied, the objectives of public notice have been achieved.
Cast in this light, the notice process for this proceeding fully met the objectives and
fully complied with the notice requirements adopted by the City Council.
There were two notice issues raised by the litigant, the first alleging defects in the
mailed notice and the second alleging defects in posted notice. Each is addressed
separately below.
Mailed Notice
During the August 27, 2020 hearing Finis Tupper asserted that the Applicant failed
to comply with the City's mailed notice requirements for the public hearing. After
extensive review of the City's mailed notice procedures and those of other jurisdictions,
the Applicant's mailed notice is found to be fully code compliant.
ECDC 20.03.003C 1 c requires hearing notice to be mailed to "[a]ll owners of real
property, as shown by the records of the County assessor within 300 feet of the
boundaries of the property(ies)..." It is important to recognize that ECDC 20.03.003C 1
doesn't require mailed notice to be mailed to the addresses listed in Assessor records,
but rather to the owners listed in those records. ECDC 20.03.003C doesn't specify how
the addresses for the specified owners are supposed to be determined. As noted in the
findings of fact of this decision, there are multiple ways to put together address lists for
the owners identified in Assessor records. It is concluded in this Decision that there
are multiple reasonable methods available to permit applicants to derive the addresses
for the 300-foot mailing list and that the method employed for this project was one of
those acceptable methods.
There is no case law directly on point as to what type of methodology is appropriate
for determining the addresses of property owners listed in Assessor records. However,
case law that addresses the adequacy of notice for permit review in general establishes
that the methodology must simply be reasonably calculated to apprise the public of a
contemplated permitting action. Perhaps the most helpful zoning case on zoning notice
is Barrie v. Kitsap County, 84 Wn.2d 579 (1974), which addressed a public notice that
mislead the public about a rezone application. The decision to approve the rezone was
overturned because the notice was misleading. Barrie did not address the adequacy of
mailed notice procedures. However, part of the Barrie ruling is pertinent to resolution
of the notice issue in this case, quoted as follows:
One of the basic touchstones of due process in any proceeding is notice
reasonably calculated under all the circumstances to apprise affected
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parties of the pending action and afford them an opportunity to present their
objections.
84 Wn.2d at 586.
The key phrase in the quote above for purposes of this proceeding is "reasonably
calculated." Due process case law is ultimately generally based upon a balancing of
public verses private interest. See, e.g. Post v. City of Tacoma, 167 Wn.2d 300, 313
(2009). Consequently, in assessing the adequacy of the methodology employed to
determine the addresses of property owners, factors relevant to the analysis include the
accuracy of the methodology and the resources that would be necessary to employ more
accurate methodologies. Given that mailed notice requirements have been around for
decades for most of Washington's cities and counties, the practices developed in other
communities are pertinent to assessing what types of notice practices are available and
feasible.
The Applicant in this case did what the majority of applicants have historically done
in Edmonds for mailed notice — it acquired a list of mailing addresses from the
Snohomish County Assessor's Office that lists the mailing addresses for all property
owners owning property within 300 feet of the Applicant's project site. Mr. Tupper
took issue with use of the Assessor records, correctly pointing out that the mailing lists
generated by the Assessor's Office don't list the physical addresses of the properties
owned by the property owners, which in the Assessor records are called "owner"
addresses. Rather, the list generated by the Assessor's Office contains the mailing
addresses of the property owners. These mailing addresses, called "taxpayer"
addresses in Assessor records, are the addresses submitted by the property owners to
the Assessor's Office, to serve as the address to mail property tax statements. When a
property owner resides at the property she owns, the owner and taxpayer addresses are
often the same. However, when the owner doesn't live at the property in question, such
as situations where the owner leases the property, the taxpayer address will often be
different from the owner's address.
At the hearing Mr. Tupper challenged use of the taxpayer addresses for mailed
notice, claiming the addresses should have been based upon owner addresses. Mr.
Tupper pointed out that a woman who acquired her mail by owner address did not
receive the hearing notice mailed to the taxpayer address. Mr. Tupper did not mention
in his challenge that this procedure conflicted with how City staff had sent mailed
notice for its own conditional use permit application, the Civic Center Playfield project,
which was approved by a Decision Upon Reconsideration dated February 26, 2020.
For that application, the City used its own GIS data to mail notice to all owner addresses
within 300 feet of the project site, instead of taxpayer addresses. Mr. Tupper's
residence was located within 300 feet of the project site, but he received his mail by a
post -office box listed in Assessor records as his taxpayer address, so he did not receive
the mail sent to his owner address. The examiner found the discrepancy in the mailing
procedure between this project and the Civic Center Playfield project after the close of
the August 27, 2020 hearing. As a result, the hearing was re -opened to give the City
an opportunity to explain the difference in mailed notice procedures for the Civic
Center Playfield project and this project. Staff was also asked to answer several other
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questions that would help clarify how mailing address lists are put together for
Edmonds and other communities, so that the accuracy and governmental burden for
various types of notice procedures could be assessed.
Mr. Tupper's experience and that of the woman he mentioned for purposes of this
hearing highlight the fact that no specific method of providing mailed notice will reach
every single person who owns property within 300 feet. Mail sent to Assessor "owner
addresses" will not reach people such as Mr. Tupper and mail sent to "taxpayer
addresses" will not reach people such as the woman mentioned by Mr. Tupper. There
is nothing in the record to reasonably suggest that the use of taxpayer addresses would
be materially more accurate than owner addresses, or vice versa. Given that taxpayer
addresses are the addresses that property owners themselves have requested for
mailing, it superficially appears that notice mailed to taxpayer addresses are more likely
to reach a property owner, but according to Mr. Tupper, that didn't occur for the woman
he referenced during the appeal hearing. There is nothing in the record to suggest that
there's any more feasible means of ensuring that mailed notice actually makes it to
property owners. City staff were asked by the Examiner in post -hearing briefing to
identify mailed notice methodologies employed in other jurisdictions and no more
accurate methods were identified.
The fact that in practical terms it's not feasible to ensure mailed notice with 100%
accuracy to property owners within 300 feet of a project is an extension of the concept
that the 300-foot requirement doesn't in itself guaranty that all potentially affected
persons will receive mailed. Mr. Tupper missed the opportunity to comment on the
Civic Playfield because of the fortuitous circumstance that he used a post office address
to receive his mail instead of a home mailbox. He could just as easily have not
received the notice because his home was located 301 feet from the project site instead
of 200 feet or whatever the actual distance from his home to the fields. The 300-foot
rule and the method employed to provide notice within that 300 feet are both
methodologies designed to undertake a reasonable effort to provide notice to potentially
affected property owners. No reviewing court could seriously require a jurisdiction to
provide notice with any more accuracy.
In their responses to the Examiner's inquiries about mailed notice methodology,
City staff stated they were unaware that the County was using taxpayer addresses
instead of owner addresses. For this reason, staff have determined that they will
generate owner addresses using City resources instead of having the Assessor's Office
generate its lists. As previously noted, ECDC 20.03.003C1 doesn't specify how
addresses are to be derived, it only specifies who the owners are to be (i.e. those listed
in Assessor records). The evidence in the record establishes that both owner and
taxpayer addresses are reasonable means of deriving addresses for the owners listed in
Assessor Records. Neither list is found to be more accurate than the other and there is
no evidence of any other method of assigning addresses that would generate more
accurate addresses with reasonable effort. The Civic Center examiner decision
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determined that owner addresses are a reasonably accurate means of providing mailed
notice. This Decision adds that taxpayer addresses are also an acceptable means'.
Posted Notice
Mr. Tupper's second notice issue was with posted notice, specifically ECC
1.03.020, which governs the posting of notice for all City hearings. During the initial
hearing, staff made the compelling argument that ECC 1.03.020 doesn't apply to the
posting of land use hearings, because there are more detailed posting requirements in
the City's land use regulations. The City's position was also consistent with the
legislative history of ECC 1.03.020, which was likely enacted in order to provide
specific notice requirements for meetings subject to the Open Public Meetings Act.
Examiner hearings are not subject to the Open Public Meetings Act. However, upon
writing the decision after re -opening the hearing to gather information on the mailed
notice issue, the examiner found that the language to ECC 1.03.020 was too specific to
comport with its legislative intent and the staff s interpretation. During the initial
hearing, in response to questions inquiring about whether staff had posted at the
Edmonds post office as required by ECC 1.03.020, staff responded that they didn't
believe that ECC 1.03.020 applied to land use hearings. From this testimony it didn't
appear that staff had complied with ECC 1.03.020 and the hearing was re -opened to
correct the potential defect in posting notice.
When ECC 1.03.020 was adopted in 1984, former RCW 43.32.010 (now recodified
within the Open Public Meetings Act as RCW 42.30.060) required cities and counties
to adopt their own notice procedures for public meetings. ECDC 1.03.020 was likely
adopted to meet this requirement. As staff noted during initial hearing, the notice
requirements for land use hearings are addressed in detail in Chapter 20.03 ECDC. The
notice requirements for land use hearings are in fact far more comprehensive than those
for public hearings and have their own posting requirements. It would normally have
been reasonable to conclude that ECC 1.03.020 did not apply because it was adopted
for another purpose and did not materially add to the notice already required by Chapter
20.03 ECDC.
However, staffs position cannot be reconciled with the language in ECDC
1.03.020 that requires that the ECDC 1.03.020 notice must be posted for "any provision"
of the ECDC that requires notice. The City Council's inclusion of this verbiage leaves
no room to exempt other notice standards that were adopted for a different purpose —
"any" other provision is subject to ECDC 1.03.020.
' Although more than one means of deriving addresses may satisfy the City's mailing notice
requirements, staff should be consistent in the method they employ for their own applications to avoid
any appearance that certain types of applications are treated differently for improper purposes, such as
ensuring that some individuals don't receive notice. If staff choose to consistently use owner addresses
because it is more economical and/or timely to do so using its own GIS data, a court would likely find
that method to meet notice standards even though private applicants are allowed to submit Assessor
generated taxpayer addresses.
Conditional Use p. 5 Findings, Conclusions and Decision
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It is recognized that even with the "any" qualifier there is still potential room for
some disagreement, but ultimately the risk is very high that a reviewing judge will find
that the City has violated ECC 1.03.020 if the failure to comply with that section is not
remedied. If not found to be harmless error, such a violation could result in a remand
several months from now requiring the City to redo the entire hearing, creating
substantial delay to the Applicant. In order to protect the Applicant from this type of
delay and to provide the notice to which the public is entitled under ECDC 1.03.020,
staff was directed to post notice of a re -opened hearing to provide for additional public
comment.
The City requested reconsideration of the Examiner's order to correct the posting
notice, identifying for the first time that it did not post in the post office because the post
office had been closed. The examiner asked for additional information on the number
of people working in City Hall and the library during the pandemic and whether the City
was authorizing the public to access City Hall by appointment. City staff then withdrew
their request for reconsideration.
SUMMARY OF TESTIMONY
Note: This hearing summary is provided as a courtesy to those who would benefit from
a general overview of the public testimony of the hearing referenced above. The
summary is not required or necessary to the recommendation issued by the Hearing
Examiner. No assurances are made as to completeness or accuracy. Nothing in this
summary should be construed as a finding or legal conclusion made by the Examiner
or an indication of what the Examiner found significant.
Staff Presentation
Mike Clugston, City of Edmonds City Planning Division, presented a summary of the
proposal. Mr. Clugston noted that the parking areas are already developed and no
improvements or alterations are proposed. In response to an Examiner inquiry as to
why the change in use of the parking areas from private to commercial parking lots
didn't trigger currently applicable landscaping and access standards, Mr. Clugston
answered that the code doesn't require conformance to current standards because of the
proposed change in use. Mr. Clugston noted that the parking areas were created in the
50s and 60s and didn't precisely conform to current standards, but staff found the
existing landscaping to be sufficient.
Doina Copaceanu, Applicant, stated she had no comment.
Finis Tupper, 711 Daily Street, inquired of staff whether the hearing examiner is subject
to the Open Public Meetings Act. The Examiner responded that the hearing is not, as
the Act only applies to "governing bodies," which are defined as multi -member
decision making bodies. He noted that the Municipal Research Services Center has
opined that examiners are not "governing bodies" because they are single decision
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makers. Mr. Tupper wanted to know what the staff policy was on posting the staff
report. Mr. Clugston stated the report is typically posted a week beforehand. Mr.
Clugston stated that for this project the staff report was likely posted the preceding
Thursday or Friday. Mr. Tupper stated that it wasn't posted the preceding Thursday
but may have been posted the preceding Friday. Mr. Tupper asked where the staff
report and agenda packet was posted. Mr. Clugston stated that typically the agenda is
posted at the public safety building and the library. In this case those buildings were
closed so the agenda wasn't posted there. The agenda was posted on-line. The site
itself was also posted. Mr. Tupper noted that a new ordinance that had gone into effect
the preceding Sunday required posting at the post office and inquired whether that had
been done. Mr. Clugston responded that posting for land use actions is governed by
Chapter 20.03 ECDC. Mr. Tupper asked if the 300-foot mailing notice was created by
the applicant and Mr. Clugston responded it was. Mr. Clugston also confirmed that the
City doesn't verify the accuracy of the list as there's an affidavit signed and the list is
provided by the Assessor's Office. Mr. Tupper inquired whether the addresses were
owner or taxpayer for the mailed notice and Mr. Clugston responded owner. Mr.
Tupper noted that Assessor addresses are taxpayer addresses, not owner addresses. Mr.
Tupper noted that the Janet Bakker address used for mailing was the taxpayer address
and that "she did not receive the mail on this." He has an email from an Assessor
employee stating they use the taxpayer address.
Sharalyn Ramm, 110 3rd Ave N., inquired whether the City had looked into the tax
consequences of the proposal and how it would affect the economy of the City. She
believes that having to pay for parking will turn potential retail users away from the
downtown area. She suggested that one alternative may be for the City to lease the
parking area.
In rebuttal, Mr. Clugston noted that the notice requirements of Title 20 were covered
for the project. Mr. Clugston noted that parking needs are being assessed by the City
and that a parking study may be coming up in a year or so, but the proposal involves
private property. In response to examiner questions, Mr. Clugston confirmed that City
Code requires use of Assessor addresses and that's what the Applicant used for mailed
notice. Mr. Clugston noted that the Title 1 posting requirements are for City Council
postings. The Examiner requested a copy of the new Title 1 ordinance from Mr.
Clugston and said he would take judicial notice of it.
Grant Merit, nearby business tenant, noted he's very familiar with the parking lots and
said that everyone knows there's a serious parking problem in downtown Edmonds.
He works in downtown every day and is always fighting for three hour parking and
parking is being pushed out into residential areas. The proposal may not make a
difference in all of this by itself, but it's setting a precedent. Hopefully, downtown
Edmonds will continue to grow, but that will make parking worse and push it further
into residential areas.
Sharalyn Ramm recognized that parking lost to outdoor restaurant seating will be
available again on October 11, but there's also the issue of the City allowing a nine unit
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apartment building on Third and Bell that has no parking provided for the tenants. She
knows one of the tenants has two cars. This is happening more frequently and it's
putting more pressure on the businesses.
In response to Examiner questions, Mr. Clugston noted that the commercial use of the
Bank of America parking was not required parking for that use. The bank could lease
out their parking spaces all the time if they wanted to. When the nine unit apartment
building was constructed parking wasn't required. Since then the City Council has
adopted a new standard that requires one parking stall per unit. Mr. Clugston said it's
possible that some of the parking for the proposed parking area may have been required
in the 60s when the surrounding buildings were constructed, but the code currently
doesn't require parking for commercial buildings. All three lots are owned by the same
owner. Two of the lots are used by the bank. One of the lots is used for three hour
parking.
At the second hearing on November 11, 2020, Kelly Brewe stated she was concerned
about vehicles parking over the curb and encroaching onto her adjoining property,
which had an alley that was just wide enough to accommodate single -file parking. Mr.
Clugston responded that any re -striping would only be authorized on the Applicant's
property.
EXHIBITS
The following exhibits were admitted into the record during the August 27, 2020 and
November 12, 2020 hearing dates on the application:
Exhibit 1 Staff Report dated August 19, 2020 w/7 attachments (listed on page 1-2
of the Staff Report)
Exhibit 2 Staff report dated November 4, 2020 w/7 attachments.
Exhibit 3 Email correspondence between parties to hearing and Examiner
Exhibit 4 September 29, 2020 Declaration of Mailing (for Order Correcting
Notice)
Exhibit 5
Exhibit 6:
Procedural:
Email chain from Patrick Doherty with Ken Reidy, dated November 12,
2020.
Staff PowerPoint
FINDINGS OF FACT
1. Applicant. Diamond Parking Services LLC, attn: Doina Copaceanu, 4719
University Way NE, Suite 210, Seattle, WA 98105.
2. Hearing. A virtual hearing on the subject applications was held on August
27, 2020 at 3:00 pm in the Council Chambers of the Edmonds Public Safety Complex.
The hearing was re -opened through September 25, 2020 by order dated September 10,
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2020 for information from staff to clarify its mailed notice procedures. On September
29, 2020, the Examiner issued an Order Correcting Notice to reopen the hearing with
corrected posted notice. The City made a request for reconsideration on October 7,
2020 and then withdrew it on October 9, 2020. The re -opened hearing with corrected
posted notice was virtually held on November 12, 2020.
Substantive:
3. Site and Proposal Description. Diamond Parking Services has requested approval
of a conditional use permit application to establish commercial parking at three existing
parking areas at 306 Main Street, the Bank of America site. The parking lots are
privately owned and have been managed for private and public use for many years.
Two of the parking lots have been used for the Bank of America and a third has been
used to provide three-hour parking. The two lots used by the Bank of America will
continue to be used for bank parking during bank business hours and will be used for
paid parking the off -hours. The third area will be commercial parking 24/7. There will
be no change to access or the parking lots themselves, just the establishment of paid
parking on portions of the lots.
4. Characteristics of the Area. The Bank of America site is at the southeast corner of
Main Street and 3rd Avenue South, two blocks west of the fountain and three blocks
east of the Ferry terminal. Surrounding parcels are developed with a mix of commercial
and multiple residential uses (Att. 3).
5. Adverse Impacts of Proposed Use. The proposal will not create any significant
adverse land use impacts. The proposal is categorically exempt from State
Environmental Protection Act review under WAC 197- 11-800(6). The parking areas
in question are already developed and have been used for decades as parking areas.
Surrounding areas are developed with commercial uses so there are no issues of
compatibility as commercial parking does not inherently involve any significant land
use impacts such as loud noise or offensive odor. As shown in the aerial photograph
of Att. 5, the parking areas are landscaped and are consistent in appearance with
surrounding parking and commercial uses. No critical areas are located at the project
site.
During the re -opened hearing Ms. Brewe expressed concern over vehicles parking over
the curb onto her property. A condition of approval has been added that requires the
Applicant to place signs and/or installing fencing restricting parking to the parking lot
if Ms. Brewe can present photographs or other evidence to City staff that vehicles have
encroached onto her property more than once within the first year of parking lot
operation.
6. Adequacy of Public Hearing Mailed Notice. Mailed notice was sent to property
owners within 300 feet of the project site using a list of property owners generated by
the Snohomish County Assessor's Office. The County's Assessor provides what it
classifies as "taxpayer addresses" for the mailing addresses of the property owners.
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The Applicant mails the public hearing notice to the taxpayer addresses identified on
the mailing list and submits a notarized declaration to the City certifying "that the
names and addresses provided represent all properties located within 300 feet of the
subject property."
The "taxpayer addresses" generated by the Assessor's Office are not necessarily the
physical addresses of the subject property. They are self-selected addresses submitted
by property owners to the County so that tax statements and the like are sent to a
location where the property owner is more likely to receive them. Property owners
presumably provide these alternative addresses in situations such as where the property
is leased to tenants or the property owner receives mail at a post office box instead of
the property itself. When a property owner requests a 300-foot mailing list, the
Assessor's Office only provides taxpayer addresses.
The City has historically not used the Snohomish County Assessor mailing lists for its
own applications. It uses the addresses from the City's GIS parcel layer, which is based
upon property addresses generated from the Snohomish County Assessor's Office,
which is updated quarterly. City staff are also willing to accept mailing lists from
private applicants prepared by the post office or a title company, so long as the lists are
based upon Assessor records.
The methodology employed by other jurisdictions is relevant to the feasibility and
accuracy of the options for deriving mailing addresses of property owners. Mailed
notice requirements have been in city and county codes for decades and it is reasonable
to conclude that over this period of time communities have adopted procedures that
strike a reasonable balance between accuracy and feasibility. In response to Examiner
questions regarding the practices of other jurisdictions, City staff submitted the
regulatory requirements of the City of Shoreline, Mill Creek and Gig Harbor, as well
as the mailing requirements imposed by state law for all development permits governed
by the Regulatory Reform Act and the Shoreline Management Act. In general, all these
jurisdictions had the same type of mailed notice procedures adopted by Edmonds, i.e.
requiring notice to be mailed to property owners identified in County Assessor records
within 300 or 500 feet of a project site and not specifying how the mailing addresses
are to be derived for those owner lists. City staff were not able to answer the examiner's
inquiry about whether other jurisdictions specifically require owner or taxpayer
addresses, or gave the option for both.
The one outlier to the jurisdictions listed by City staff was the City of Mill Creek.
Section 14.07.030A2 of the Mill Creek code requires that notice be mailed to both "all
property owners as shown on the records of the county assessor and to all street
addresses ofproperties within 500 feet." It appears from this language that Mill Creek
requires notice to be mailed to both the taxpayer and the owner addresses. This section
of Mill Creek's code has been in place since at least 2013, when it was last amended.
The record generated for this proceeding does not reveal any material difference in
accuracy between taxpayer and property owner addresses. Both address lists are not
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100% effective as demonstrated for this project and the City's Civic Field conditional
use permit application, PLN20190058, PLN20190059 and PLN20190060. In the Civic
Field applications, the City used owner addresses. Finis Tupper, who lives within 300
feet of the Civic Field project site, didn't receive the notice because he receives mail
by post office box as opposed to a mailbox at his owner address. For this project, which
as previously noted used taxpayer addresses, Mr. Tupper states that Janet Bakker didn't
get mailed notice for the property she owns within 300 feet of the project site because
it wasn't mailed to her owner address, which differs from her taxpayer address located
in Seattle as shown in Att. 6 to the first staff report, Ex. 1. It's unknown why Ms.
Bakker didn't receive notice if it was mailed to her Seattle address.
Most of the information in this finding was based upon the information presented in
Attachment 2 to Ex. 2, the City's responses to written questions posed by the Hearing
Examiner. All hearing participants were given an opportunity to cross-examine staff
and/or present their own evidence on the issue and chose not to do so. The Examiner's
findings and conclusions are strictly limited to what's submitted into the record and
beyond asking questions of the hearing parties, the Examiner cannot conduct his own
investigation or engage in any significant cross-examination on issues while
maintaining his role as an objective decision maker. From the information submitted
into the record the preponderance of evidence establishes that use of either taxpayer or
property owner records establishes a reasonable balance between effective notice and
the burden placed on the City and/or applicant in complying with notice requirements.
As shown in Att. 6 to Ex. 1, the 300-foot address list generated for this project involved
89 property owners. Requiring city staff and/or the applicant to verify that every single
of these property owners actually received the mailed notice would be an absurd
undertaking. As previously noted, neither taxpayer nor owner addresses are 100%
effective in reaching all property owners. Despite this, both lists are taken to be
reasonably accurate since they are based upon addresses generated by the Snohomish
County Assessor's Office, which uses those addresses to assess property taxes.
The combined approach of using both taxpayer and owner addresses in Mill Creek
evidences a potentially reasonable alternative that is more effective than the singular
use of one or the other address lists, but the evidence does not establish that doubling
the amount of mailing (or going through dozens of addresses to ascertain when
taxpayer/owner addresses differ) merits the additional effort. The need for this dual
approach is undermined by the fact that the state legislature has not found it necessary
to require such a dual approach in its notice mandates to all cities and counties under
the Shoreline Management Act and the Regulatory Reform Act. In addition, it should
be recognized that in addition to the mailed notice, City hearing notice requirements
also include posting the property and publishing notice in the local newspaper. See
ECDC 20.03.003D. These additional notice requirements provide reasonable
assurance the property owners who don't learn of a project through the mailed notice
will get this from the other means of notice, if not from seeing the notice directly, then
from word of mouth from neighbors who have seen the notice themselves. For all these
reasons, the use of either taxpayer addresses or owner addresses is found to be a
Conditional Use P. 11 Findings, Conclusions and Decision
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reasonably effective means of providing notice to property owners within 300 feet of a
development project.
7. Posted Notice. At the August 27, 2020 hearing staff testified that they had not
posted notice of the hearing at Edmonds City Hall or the Edmonds Library because the
buildings were closed during COVID. In response to questions on whether they had
posted at the post office, staff responded that they didn't believe that ECC 1.03.020
required them to post notice at the post office. As of the close of hearing on August
27, 2020, the preponderance of evidence established that staff had not posted at the post
office because they didn't believe they were obligated to do so. Subsequent to the
August 27, 2020 hearing, in their staff report for the re -opened hearing, Ex. 2, staff
clarified that they had not posted at the post office because the building had been
demolished. However, staff also acknowledged that the public had limited access to
City Hall prior to the hearing for appointments and also that City employees worked at
City Hall. The record still doesn't contain any information on how many people have
access to the public safety complex, which includes the City's municipal court. As
testified by staff at the November 12, 2020 hearing, notice of the re -opened November
12, 2020 public hearing was posted at Edmonds City Hall and the Edmonds Public
Safety Complex on October 27, 2020. Staff did not post at the public library because
it was closed due to COVID and staff had no access to it.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. ECDC 20.01.003 provides that the
Hearing Examiner will hold a hearing and issue a final decision on conditional use
permits.
2. Adequacy of Mailed Notice. As outlined in Finding of Fact No. 6, the
addresses used for mailed notice of the public hearing for this application were mailed
to Assessor taxpayer addresses. Use of these addresses satisfied the City's mailed
notice requirements because the addresses were a reasonably accurate means of
providing notice to property owners within 300 feet of the project site. This
conclusion of law is based upon the legal reasoning outlined in the Overview section
of this Decision, adopted by this reference.
3. Adequacy of Posted Notice. As outlined in the Finding of Fact No. 7 and
the Overview section of this decision (adopted by this reference), notice was not
posted as required by ECC 1.03.020 for the August 27, 2020 hearing. The failure to
properly post was remedied by a subsequent posting for the re -opened November 12,
2020 hearing.
Although staff eventually clarified that notice could not be posted at the post office
identified by ECC 1.03.020 because it had been demolished, there was still a
compliance issue with posting notice at City Hall and the Civic Center (now named
Public Safety Complex). Despite the two buildings being generally closed to the
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public, City and court employees and some limited members of the public by
appointment were still accessing the buildings. For these reasons, the validity of the
proceedings was still in question and it was prudent to re -advertise the hearing to
correct any defect a reviewing court would find in the failure to post notice. For the
November 12, 2020 re -opened hearing, staff posted the hearing notice as required by
ECC 1.03.020 at the Public Safety Complex and City Hall. Notice was not posted at
the library because it was closed to the public due to COVID and staff didn't have
access to it. Given staff s lack of access to the library, ECC 1.03.020 would have to
be construed as having an implied exception for circumstances where posting would
be infeasible or useless due to closure. In the alternative, given the lack of public
access to the posting facilities there would likely qualify as harmless error under RCW
36.70C.130(1)(a).
Staff s posting conformed to the version of ECC currently in effect for the November
12, 2020 re -opened hearing, not the version that may have applied for the initial
August 27, 2020 hearing. The older version required posting at the post office and the
current version does not. The version of ECC 1.03.020 in effect at the time of posting
applied because the vested rights doctrine does not apply to procedural requirements
and also does not apply to conditional use permits. See Potala Village Kirkland, LLC
v. City of Kirkland, 183 Wn. App. 191 (2014), review denied, 182 Wn.2d 1004 (2015);
Graham Neighborhood Ass 'n v. F. G. Associates, 162 Wn. App. 98 (2011) (vested
rights doctrine doesn't apply to procedural requirements).
The practice of remedying a defect in public notice by re -doing the notice is a common
practice and validated by cases such as Bjarnson v. Kitsap County, 78 Wn. App. 840
(Wash. Ct. App. 1995), in which the court found it appropriate to remedy an
appearance of fairness violation by redoing a land use hearing without the
participation of a county commissioner who had violated the doctrine. At the very
least, the correction of posting error would render the initial error harmless and thus
eliminate any grounds for reversal under RCW 36.70C.130(1)(a).
4. Re -Opening Hearing. The hearing was properly re -opened to address potential
defects in public notice.
As outlined in Finding of Fact No. 2, the hearing was re -opened twice to address
potential defects in the public notice provided by the Applicant and staff for the project.
The first time was after the examiner discovered after close of the hearing that the
mailed notice parameters employed by the Applicant was not consistent with the mailed
notice parameters validated by a prior decision issued by the Examiner. The second
time was after the examiner discovered after close of the hearing that staffs position
advocated at the hearing on the proper posting of land use public hearing was not
consistent with ECC 1.03.020.
City regulations do not directly address when hearings can be re -opened. However, the
City's permit processing regulations are based upon the Regulatory Reform Act,
Chapter 36.7013 RCW, which requires that such regulations, "[e]xcept for the appeal
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of a determination of significance as provided in RCW 43.21 C. 075, provide for no more
than one open record hearing and one closed record appeal." This requirement would
be undermined if multiple hearings are redesignated as re -opened hearings. The line
to be drawn at what point new evidence creates the prohibited second hearing is
clarified by the Land Use Petition Act ("LUPA"), Chapter 36.70C RCW, which limits
judicial review of local land use decisions to the evidence considered in the open record
hearing created by the local jurisdiction, subject to a list of narrow exceptions.
Authorizing consideration of new evidence at the local level under those same
exceptions serves the functional purpose of aligning local review of new evidence with
judicial review.
RCW 36.70C.120 is the LUPA statute that limits judicial review of local land use
decisions to the evidence presented in the open record hearing of the local jurisdiction.
This limitation only applies to hearings in which "the parties to the quasi-judicial
proceeding had an opportunity consistent with due to process to make a record on the
factual issues." RCW 36.70C.120(1). ECDC 20.06.100C4 authorizes the public to
participate in hearings on conditional use permits. If the required notice for the hearing
has not been provided, those that have missed the opportunity to participate due to the
notice defect have arguably been deprived of the opportunity consistent with due
process to make a record on the factual issues. For this reasons, a court will almost
assuredly consider new evidence in a LUPA appeal regarding improper notice. As
such, reopening a hearing to consider this type of evidence at the local level should also
be construed as not creating a prohibited second hearing. Indeed, to construe the
situation otherwise would significantly undermine the permit processing efficiency
objectives of the one hearing rule itself. It would create a situation where an applicant
could be subject to a judicial ruling two years after final decision requiring a rehearing
due to the notice defect, as opposed to having the defect corrected immediately by the
local jurisdiction.
5. Timeliness of Final Decision. The Final Decision in this matter was completed
within ten business days of the close of the record as required by state and city
regulations.
During the hearing review process Finis Tupper, not the Applicant, objected to the
timeliness of the Decision, twice, asserting that the Final Decision should have been
issued within ten days of the close of the initial hearing on August 27, 2020. Neither
state nor City regulations required the decision to be issued within ten working days of
the first day of hearing on August 27, 2020. Rather, both regulations only required that
the Final Decision be issued within ten working days of the close of the hearing, which
was done in this case. RCW 35A.63.170 requires hearing examiner decisions to be
issued within "ten working days following conclusion of all testimony and hearings."
ECDC 20.06.13013 provides that decisions shall be issued "...within 10 working days
after the close of the record of the hearing and within 90 days of the opening of the
hearing..." This Final Decision was issued on November 15, 2020, two days after the
close of the November 12, 2020 hearing. This two day time period was clearly within
ten working days of the "conclusion of all testimony and hearings" as required by RCW
Conditional Use p. 14 Findings, Conclusions and Decision
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35A.63.170 and within ten working days of the "close of the record of the hearing" as
required by ECDC 20.06.130B.
Substantive:
6. Zoning Designations. The parking areas are zoned a combination of BD 1
and BD2.
7. Permit Review Criteria. Conditional use permit criteria are governed by
ECDC 20.05.010. Variance criteria are governed by ECDC 20.85.010. All applicable
criteria are quoted in italics below and applied through corresponding conclusions of
law.
ECDC 20.050.010: No conditional use permit may be approved unless all of the
findings in this section can be made.
A. That the proposal is consistent with the comprehensive plan.
8. The criterion is met. The Comp Plan is silent on commercial parking.
However, since the City's zoning regulations authorize commercial parking in the
Downtown Business zones through a conditional use permit, it is found to be consistent
with the Comprehensive Plan.
ECDC 20.05.010(B): Zoning Ordinance. That the proposed use, and its location, is
consistent with the purposes of the zoning ordinance and the purposes of the zone
district in which the use is to be located, and that the proposed use will meet all
applicable requirements of the zoning ordinance.
9. The criterion is met. According to the use table in ECDC 16.43-1,
commercial parking lots are authorized in the BD 1 and BD2 sites as conditional uses.
As identified in the staff report, new commercial parking lots are subject to landscaping
standards
ECDC 20.05.010(C): Not Detrimental. That the use, as approved or conditionally
approved, will not be significantly detrimental to the public health, safety and welfare,
and to nearby private property or improvements unless the use is a public necessity.
10. The criterion is met. As determined in Finding of Fact No. 5, the proposal will not
create any significant adverse impacts, which includes impacts to adjoining property
owners.
Conditional Use
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At the hearing, a couple Edmonds business owners and/or workers expressed concern
over the lack of parking in downtown Edmonds and a further concern that if people
have to pay for parking, this will dissuade people from patronizing downtown
businesses. In response, City staff noted that the City is studying the issue and looking
for solutions. Legally, that solution cannot involve the Applicant because the
Applicant's proposal is not causing or contributing to parking problems. Development
can only be made to mitigate impacts that it creates. See RCW 82.02.020; Burton v.
Clark County, 91 Wn. App. 505 (1998). The Applicant is currently not required to
make its parking areas available to the public. Consequently, the Applicant's choice to
use those areas for paid parking does not create any additionally need for parking that
the Applicant can be legally required to mitigate.
ECDC 20.05.010(D): Transferability. The hearing examiner shall determine whether
the conditional use permit shall run with the land or shall be personal. If it runs with
the land and the hearing examiner finds it in the public interest, the hearing examiner
may require that it be recorded in the form of a covenant with the Snohomish County
auditor. The hearing examiner may also determine whether the conditional use permit
may or may not be used by a subsequent user of the same property.
11. As requested by the City, the conditional use permit shall run with the land.
DECISION
The conditional use permit is approved and authorized to run with the land as
proposed subject to the following conditions:
1. A building permit is required for improvements to the site including but not limited
to signage, kiosk installation, restriping, updating landscaping, etc.
2. Diamond Parking Services must obtain a City business license.
3. If Kelly Brewe, as an adjoining property owner, documents that vehicles have
encroached onto her property on more than one occasion within the first year of
parking lot operation, the Applicant shall install signage, enhanced curbing and/or
fencing as determined necessary by staff to prevent further encroachments.
Dated this 15th day of November 2020.
Conditional Use
Phir A. Qlbrechts
City of Edmonds Hearing Examiner
p. 16 Findings, Conclusions and Decision
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Appeal Right and Valuation Notices
This land use decision is final and subject to closed record appeal to the City Council
as authorized by ECDC 20.01.003. Appeals must be filed within 14 days of the issuance
of this decision as required by ECDC 20.06.030(B). Reconsideration may be requested
within 10 calendar days of issuance of this decision as required by ECDC 20.06.140.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Conditional Use
p. 17 Findings, Conclusions and Decision