1999-10-07 Hearing Examiner MinutesHEARING EXAMINER HEARING OF OCTOBER 7, 1999
VERBATIM TRANSCRIPTS
File Numbers AP-99-185, S-98-108 &V-98-109
Ron McConnell, Hearing Examiner
Mr. McConnell: For the record, I am Ron McConnell, Hearing Examiner for the City. We have actually two items that are
on the agenda for this afternoon. The first is an application from Brier Ridge Partners. The application is for a short plat and
a variance. Then there is a SEPA appeal of that application filed by the Meadowdale Community Council filed by Wojtanik,
who is president of the organization. What I will do to begin with is have the staff make a brief presentation, first on the
application and then on the appeal. When this is all finished, you will see two reports coming out from me. They are two
different processes so there will be two reports that I will issue. We are not going to try to separate everything today. We
will hear everything as one hearing, but I will be issuing two reports. Everybody who has written a letter or speaks today will
receive two reports. The appeal process is very different for the two reports. These are quasi-judicial hearings, so anybody
who wishes to speak needs to go to the microphone and give their name and address. I will swear you in. If you are an
attorney only giving legal argument, say so and I don't need to swear you in. Otherwise, I will swear you in. I will not be
making a decision today. The City gives me two weeks to prepare a written decision. I will turn it over to the staff.
Ms. Kawamoto: My name is Karissa Kawamoto, planner from the City of Edmonds. I swear to tell the truth. This is a very
complex project that has been in application with the City since July of last year. This is the first public hearing on this
project. Because there are so many issues with this I did an overhead to try and clarify what the major issues are. There are
three critical areas on this site, or what are defined as critical areas in the City of Edmonds. Obviously, there is a steep slope.
That is very obvious when you drive around the site. That is defined by the pink highlight. The one going north/south is
more of a ridge. It drops on both sides. The curved one towards the bottom is more of a plateau here towards 72nd and then
starts dropping down as you head towards the north end of the elevation.
Ms. Kawamoto: There also is a Class 2 wetland that has been delineated on the site. That has been identified by the green
dashed line. The steep slope would be along this ridge and also this curved line. That is where the steep slopes are. Then the
wetland boundary is this green line here and that runs pretty much through the middle of the property. Then there is also a
Class 2 or Category 2 stream that runs somewhat parallel to Meadowdale Road. With those three types of critical areas on
the site, we have a special ordinance that is required by growth management to regulate these types of areas. Each critical
area (the steep slope, the wetland and the stream) have their own buffers and setbacks. This particular application, with the
steep slopes and the locations that they are and the degree of the steep slopes, render this property unbuildable with the
setbacks and buffers associated with them. They run into the wetland which we can't have development within the wetland.
The wetland buffer and setback kind of goes opposite the steep slope. The steep slope critical area is going down, and the
wetland buffer and setback go up the hill, essentially. The stream is somewhat off to the north and is encompassed by the
wetlands setback. The main issues are the steep slope and the wetland part of the property.
Ms. Kawamoto: The applicant has proposed four single-family lots. Three lots would be utilizing 72nd Avenue West for
access and Lot 4 is supposed to use North Meadowdale Road directly. What I have shown here on this drawing is... The
red areas are reduction areas —reduction in wetland buffer in setback both for Lot 4 with the driveway and for the road for
Lots 1, 2 and 3. To make up for the reduction in the buffer, the applicant has proposed additional buffer area as shown in
green hash marks. That is permitted in the code called wetland buffer averaging. They meet those criteria for wetland buffer
averaging. Then there is the additional setback on top of the wetland buffer, and that is one of the critical area variances that
they have requested.
Ms. Kawamoto: When this application first came in it was an application for a reasonable use exception and a wetland
buffer averaging. At that time when the application was brought in, there was already in process a four -lot short plat utilizing
the reasonable use exception with a very different set of circumstances, although staff recommended denial of that
application. The Hearing Examiner also concurred with staff and it was upheld by the City Council. Therefore, we went
back and looked at this project and determined that it could not meet the reasonable use criteria because they were essentially
creating their own hardship and, therefore, could not meet all of the reasonable use criteria.
Ms. Kawamoto: This is the first application which is using a critical areas variance in addition to the setback variances from
the standard ECDC regulations to gain approval of a subdivision. Through the review of this project, our SEPA official
determined that he could not guarantee that there were not going to be significant negative impacts as a result of this project.
As being the SEPA official, he has the authority to require further investigation of a project. In January we started the
process of an environmental impact statement which is allowed by the State SEPA regulations. The City went and
interviewed several geotechnical and wetlands specialists and retained Geo Group Northwest with B-12 consultants to
analyze a very limited scope EIS. They were instructed to look at the geotechnical feasibility and the potential wetland and
stream impacts as a result of a proposal like this. They also looked at several other alternatives to further reduce to a one lot,
two lots or three lots.
Ms. Kawamoto: As a result of their report, which I believe that many of you may not have seen this... It has been
available at the City for review both in draft and final form. In it the geotech reviewed and recommended that negative
impacts will not happen as a result of a four -lot subdivision on the site. It is zoned RS-20 and is almost a four acre piece of
property. If it were flat and dry, the applicant could get as many as eight lots out of the standard subdivision, and currently
they are applying for four.
Ms. Kawamoto: I guess I could go into the SEPA appeal, which was appealing the final document. There are several
opportunities for appeal provided with the SEPA regulations. However, we got one on just the final impact statement.
Within there, the Meadowdale Community Council appeal identified several issues. First off being notice, which staff is
fairly certain went through the proper SEPA mailing which is required. We did not hold a public hearing, and we were not
required to hold a public hearing on the scope of the EIS. The site is not posted as part of the SEPA process. It is only
posted as part of the public hearing process. As far as the traffic impacts, when the City receives a subdivision application it
is routed to the various departments within the City, including engineering. Engineering would let us know if they felt
additional traffic review would be required. Typically on a four lot subdivision, it would be fairly unusual to receive notice
from a traffic engineer that they felt the impacts would be so significant that a separate traffic analysis would be required.
Staff did not receive notification from the Engineering Division so we assumed that traffic should not be a part of the EIS,
itself.
Ms. Kawamoto: As part of the SEPA requirements, both the notice of the determination of significance and scope is routed
to various state agencies —both Fish and Wildlife, Department of Ecology, Department of Transportation. All of the major
state agencies are notified with SEPA. They are sent both the scope of work and the notification that we think there is a
project on the table that looks like it might have some serious impacts. We did not receive any comment from the state
agencies or outside public agencies on the SEPA notice or scope of work. I don't know how much in detail you want me to
get into the letter itself because I did try and break down in the staff report...
Mr. McConnell: Just summarize it.
Ms. Kawamoto: We do feel that Geo Group Northwest, through the EIS, sufficiently reviewed and provided response to the
initial Meadowdale Community Council letter that was submitted as part of the draft —as a response to the draft document.
Geo Group Northwest had a specific letter as an addendum to the EIS in response to the comment letter which I think kind of
reiterated what was in the appeal letter. Staff is recommending denial of the SEPA appeal on the basis that they did not have
a factual foundation, and it was not in line with what the Geo Northwest Report contained.
Ms. Kawamoto: We did receive a letter from Fish and Wildlife as part of the comment on the subdivision. We did not
receive any comment from them during this entire SEPA process, and I have not been able to touch base with them to
determine why. It is one of the attachments or exhibits from Patricia Thompson, I believe. Did I give you a copy? I mailed
several copies of the exhibits.
Ms. Kawamoto: Getting back to the subdivision, itself. They are asking for a critical areas variance from the steep slope
wetland buffer. They are actually in the steep slope critical area. The four home site locations are within the steep slope
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 2
critical area. They also need a wetland buffer critical area... Excuse me, it is a building setback from the wetland buffer
critical areas variance. Also, looking at how this was laid out, because of the setbacks suggested or recommended by Geo
Group Northwest in the FEIS, the homes are pushed away from the top of the slope and end up being fairly close to the
access easement. Standard City of Edmonds setback regulations require a street setback from the easement line. In this case,
they would be looking at a 25-foot setback from the easement line. As you can see on the overhead, they are proposing the
homes to be right up against the access easement, so they are requesting a standard ECDC setback variance from the street.
Ms. Kawamoto: At this time this is a preliminary subdivision hearing and we do not have a lot of specific details on the
design of the road or how wide it needs to be. It could need to be as wide as 27 feet depending on the design and materials
and type of construction. Things could change, so I have tried to accommodate those in the recommended conditions. As far
as whether or how the application complies with the various criteria it got very complicated because we were looking at both
setbacks from the standard ECDC plus standards from the critical areas ordinance. The critical areas variance only has two
criteria. Those are found in ECDC Section 20.15.13.170. They are essentially special circumstances and a granting of a
critical areas variance as the minimum necessary to accommodate the development proposal. Staff has tried to respond to
how this proposal meets those criteria. It was somewhat difficult when you are dealing with a critical areas ordinance that
was intended to preserve and protect critical areas and then apply variance criteria to them. Fortunately, the FEIS did a
substantial study on both the geotechnical feasibility and the potential impacts to the wetlands and stream and provided
mitigation recommendations within the FEIS, which I have tried to put in the staff recommendations.
Ms. Kawamoto: In conclusion, if the Hearing Examiner feels that the proposal meets the various criteria, I have outlined the
staff s recommended conditions.
Mr. McConnell: Okay, thank you. What I will do is enter the Planning Division staff report for S-98-108, V-98-109 as
Exhibit A and Planning Division staff report for AP-99-185 as Exhibit B. The letter received on July 6, 1999 from the
Meadowdale Community Council as Exhibit C. The applicant's response to the variance criteria received on September 13,
1999 will be Exhibit D. The letter received from Phyllis Wiggins dated September 14, 1999 as Exhibit E. The letter received
from Robert Anderson dated September 13, 1999 as Exhibit F. The letter received from Lorian Woods Homeowner's
Association dated September 14, 1999 as Exhibit G. The letter received from Mark Thomas and F.E. Johnson dated
September 15, 1999 will be Exhibit H. The letter from Glen Loboudger dated September 16, 1999 will be Exhibit I. Xerox
pictures from John Sherman Mills will be Exhibit J. The letter from Patricia Thompson from the State Department of Fish
and Wildlife dated October 4, 1999 will be Exhibit K. The memorandum from the applicant with attachments will become
Exhibit L. At this time, I will turn it over to the applicant. When the applicant is done with his presentation, we will hear
from the appellants. So, we will go from there. Can I get your name and address.
Mr. Reynolds: For the record, Dennis D. Reynolds. I am with Williams, Kaster & Gibbs in Seattle.
Mr. McConnell: Will you be giving testimony or just legal argument.
Mr. Reynolds: I will just present some opening statements and be kind of the ringmaster, and legal argument. No
testimony. A couple of preliminary matters. We want to launch, for the record, an objection to one exhibit presented by staff
as Exhibit K, the September 30, 1999 letter from Patricia Thompson, Wildlife Biologist.
Mr. McConnell: Okay, it was received on October 4.
Mr. Reynolds: It is dated September 30. In our brief, Mr. Examiner, we cite to Weyerhaeuser verses Pierce County (a
Court of Appeals decision). In that case it preserved the constitutional right to confront and cross-examine witnesses in a
quasi-judicial land use hearing. Ms. Thompson, at least would be presented with having some expertise on a matter of expert
opinion on wildlife and wildlife impacts. I would ask if you would inquire if she is present, your honor.
Mr. McConnell: Is Ms. Thompson present? Apparently not.
Mr. Reynolds: I would launch the objection that if she is not available for cross-examination (under the basis of the
Weyerhaeuser case) I really think the letter should be stricken. I can tell you it is prejudicial. For example (and I don't want
to paraphrase the contents of the letter) but to say that it is obvious that this individual talks about some types of habitat on
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 3
the property. But as the evidence would show, 88 percent of the site is undeveloped. Without this individual present, I have
no way to cross examine her to determine if her concerns, if any, are answered by the project mitigation imposed in the FEIS,
including what is a native growth protective easement. We don't need a ruling on that, but I want to lodge the objection.
This would be a ruling in due course.
Mr. McConnell: Your objection is noted.
Mr. Reynolds. We have no objection to the other exhibits, including the citizen letters. I have read through them and they
express concerns that I think are legitimate for the public to express. I don't see any of those letters as making statements of
expert opinion that I could see. If I miss anything, Mr. Examiner, of course unless the expert credentials of any of these
individuals are established they are really not entitled to make expert opinion on traffic, on wildlife or steep slope or other
matters of expert concern or testimony.
Mr. Reynolds: In terms of our presentation, we would urge that the correct and appropriate ruling on the SEPA appeal is
actua11 not to deny the appeal but to dismiss it. In our hearing brief on Pages 13 and 14, we provide authority of the
i6
Mining case that generalized complaints do not suffice for appropriate testimony in a quasi-judicial hearing on
either a SEPA appeal or a land use decision. Matters that require expert testimony, such as traffic impacts, wildlife impacts,
steep slope impacts and so forth are not presented by citizens. I am not aware that anyone will testify in these proceedings
other than their own experts. If the only response from the citizens today are generalized complaints and concerns, that is not
adequate testimony to support denial of a land use proposal or to support a SEPA appeal.
Mr. Reynolds: In terms of the two major concerns in the appeal, the "failure of the FEIS to discuss traffic or wildlife
impacts", in our brief on Page 10 and 11, we indicate that the citizens had an opportunity to comment on the scope of the
SEPA analysis as did the public agencies. No citizens provided suggested during the SEPA scoping process and no public
agency suggested that traffic or wildlife impacts should be an issue. For that matter no citizen commented that impacts
should be a subject of discussion in the FEIS. For your note taking, I ask that you to review 197-11-408 Sub 2 and Sub 1.
Those are the SEPA guidelines that explain the legal obligations of the failure to comment. Briefly, if there was an
opportunity to comment on the scope of the EIS and no comments were received then the party is estopped or precluded from
later stating that the environmental analysis is inadequate. Consequently, because there were no comments in the SEPA
scoping process, it is too late to now challenge the scope of the EIS and the appropriate decision is to dismiss the SEPA
appeal on procedural grounds. We also brief on Pages 8 and 9 that there was more than adequate notice under the SEPA
rules and the local ordinances as to the SEPA scoping process.
Mr. Reynolds: If you consider any issues on SEPA, despite our request and our motion to dismiss, the only matters that are
left are some concerns regarding the accuracy of surveys and the accuracy of geotechnical data. Both of those items are well
taken care of, in our opinion, in the comments in the FEIS as well as the staff report. We will also address those briefly in
our testimony.
Mr. Reynolds: Mr. Examiner, the only difference between the applicants through this proceeding (Sequoia Ridge Partners)
and staff is one issue only. As we read the staff report, they are recommending against approval of the swimming pool and
spa. We anticipate that some citizens will urge that approval of those associated or pertinent devices will present a
geotechnical hazard. You have introduced as an exhibit in this proceeding the FEIS. On Page 3, the City's own geotechnical
consultants find that with appropriate project mitigation, construction of a pool and spa present no geological hazard or
threat. We had asked the City's own geotechnical advisor to be present today and he will present brief testimony.
Mr. Reynolds: The only other concern of the SEPA appeal is the efficacy of the storm drainage system. We will present
testimony on that and refer you to Exhibit 8 in our materials which is a drainage report and technical calculations that support
the recommended storm drainage system. Mr. Examiner, those are the only comments I have on SEPA. We have briefed
that issue. I have been before the examiner before, and I know you diligently look at the written material and I won't repeat
it. I would like to turn to the plat variance. My role now is to briefly explain by way of opening statement or testimony and,
introduce our witnesses who will be brief and testify in a narrative fashion.
Mr. Reynolds: Mr. Examiner, staff states that this project is a complex project. It really isn't. It is a four -lot plat. Under
the SEPA guidelines, it is totally exempt from any kind of environmental analysis and normally wouldn't be before you. It
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 4
would be reviewed administratively. We wouldn't have a room of people if we didn't have sensitive or critical areas present.
The protection of environmentally sensitive areas is a concern of this hearing, Mr. Examiner. We believe it is the only
concern. The reason that you have this project, and I suspect the City will be faced with many more, is because of the impact
of the Growth Management Act. As you well know, the Growth Management Act provides for permanent infill. In a more
densely developed City like the City of Edmonds, the lots that are still available for development to meet the GMA
improvement infill criteria are lots that are more difficult to develop such as the subject parcel. So, it is no surprise that we
are here today discussing environmentally sensitive areas and the protection of those areas in the context of private
development. We believe that the presence of environmentally sensitive areas is a starting point, not an ending point.
Mr. Reynolds: In our briefing and testimony we will explain that this project was studied in great depth. In my 26 years
experience I have not seen a final environmental impact statement ever for a four -lot short plat. Two separate geotechnical
studies have been presented and a separate critical areas study has been presented. A detailed environmental impact
statement has been presented, too. In addition, you have recommended project mitigation and additional study including
monitoring of construction and post construction monitoring. This is a substantial amount of mitigation but completely
appropriate in the context of the sensitive areas issue. The developers have approached the project with special care, not just
because of sensitive areas, but because two of the Sequoia Ridge partners will live on site. This is not an example of a
development that is constructed and the developers run to Arizona and the problems are left with the citizens of the City.
This is the project that was approached from day one with scientific study in great depth. The developers will live on site.
The developers will testify today that they will accept everything recommended in mitigation in the staff report and the FEIS.
This is a rare hearing for me that we are not contesting. The reasonableness and the extent of project mitigation is very
unusual.
Mr. Reynolds: Mr. Examiner, I will turn to our witnesses.
Mr. McConnell: Do you have any other overheads. Otherwise I think we will turn it off.. .
Mr. Reynolds: I think you should turn it off. I don't think we will need it.
Mr. McConnell: Okay, we will turn the overhead off and the lights on.
Mr. Reynolds: If we have one theme of our witnesses, Mr. Examiner, is that all expended impacts have been identified and
they are all mitigated. It doesn't mean the citizens do not have legitimate concerns. It doesn't mean they do not have
questions. It does not mean they don't have a right to participate and know more about this project. The view of our client is
that it is completely appropriate in the public hearing process to obtain this type of information. We will be here today not
only to explain the project, but if there are questions raised, Mr. Jim Miller, one of the engineers on the project, has been
asked to take a list of the questions and then clean up and answer the citizen's questions on the record.
Mr. Reynolds: As I indicated, our experts are in attendance. We have really four experts. Bill Chang is with Geo Group
Northwest. Geo Group provided, at the City's request, a second geotechnical opinion on the project. They find that, as
mitigated, the project can be safely built. They will also be retained by our client to provide geotechnical monitoring if in the
wisdom of the Examiner and the City Council this project is approved. Charles Couverette is with Nelson-Couverette
Associates. They also provided a geotechnical report because of the importance of steep slopes and the concern over
potential erosion hazards. We have asked that group to be in attendance and testify. Tony Roth is with Pacific Engineering
who prepared the critical areas report. I believe he is in attendance. Jim Miller is with David Evans and Associates and is the
engineer for the project. He will explain our clients view of a number of the items on the SEPA appeal as well as support for
the requested land use proposal.
Mr. Reynolds: We have a few other interested participants. d'Elaine Johnson is the wife of John Johnson, the owners of the
subject parcel. We will have them testify first as to their ownership, why they are selling the property, their desires for
development and the fact that for the 40 years they lived on the property they never observed any slumpage or slope failure.
The testimony will be that if land use approval is obtained, the property will be sold and the proceeds will go to the Edmonds
Junior College Foundation —a rather unusual result in a land use hearing. This is my first example where, if the project is
successful, the recipients would be students through a scholarship fund. We have two representatives from the Edmonds
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 5
Junior College Foundation, and I believe Mr. Sherman will briefly explain the purposes
and goals of the Foundation.
Mr. McConnell: I applaud that, except I have no criteria... I am going to stick with the criteria that I am presented with by
the City Council. Unfortunately, ownership and philosophical issues are not part of the criteria that I can look at.
Mr. Reynolds: I understand that. We are not urging the fact that the Edmonds Junior College Foundation receives benefits
as part of our argument or brief. It is not mentioned in our brief. These folks are in attendance to support the project in the
same nature as some citizens are present to oppose it. Again, Mr. Examiner, I acknowledge that this issue is not addressed in
our brief, and it is not relevant to this purpose. I would like to start with the representative of the property owners d'Elaine
Johnson. I would like the opportunity, at the conclusion, to make some very brief legal arguments. We would like to reserve
some time for rebuttal, particularly for Mr. Miller, if there are some concerns or questions that come up.
Mr. McConnell: Sure.
Mr. Reynolds: Thank you for your attention to these comments.
Mr. Johnson: Delayne Johnson, 16122 72nd Avenue West, Edmonds, 98026-4517. I swear to tell the truth. I wanted to say
a few words from my heart. These words will explain why we are here today. Sequoia Ridge is one of the last chapters of
my life —a dream that started when I was age 4. In 1932, I was born a depression baby and a disabled child. There were five
children in our family. My mother and dad had a dime store. Having all five of us children plus mom and dad working, we
managed to have $20 per week. Dad, knowing that perhaps I could not really have a future, at age 4 started to dream with
me. He said, "Delayne, I think you could be a teacher." But he explained that teachers did not receive money. All they
could receive would be a note. In high school, I was very fortunate to have an instructor to believe in me enough so that she
opened doors for scholarships. She fought with the faculty for four hour, finally beating them down one by one that Delayne
would be the best investment for the scholarships. I also won some other art scholarships. As I was in college I also was put
on permanent music scholarships for four years —won the top Monson Scholarship of Central Washington University which
paid all of my expenses for a full year plus other minor things. In addition, working every spare moment I could have
including summers in canneries working 18-hour shifts, sleeping on a wet cold floors and being paid $1 an hour. The boys
received $2 an hour. My teaching career was from 1954 to 1978—doing my masters while teaching full time. I did my
masters at the University of Washington where I met my husband in a dance class. In 1978, I was forced into a disability
retirement. During that time I taught over 10,000 young people, K through adults, and it was one of the most rewarding
experiences I could have ever had. Just an example of what I experience almost every day of my life is a by-product of those
24 years —two weeks ago a student of mine flew in from Denver. I had him in the 60's. He wanted to show me his third
mansion building for himself as a successful architect and also to thank me again for inspiring him and aspiring him to reach
for the limits. He is also a very outstanding civic leader in Denver. That is just one example of my 10,000 wonderful
experiences.
Ms. Johnson: In 1969, we purchased the lower part of our property, which I refer to as Mount Olympus because we look at
the Olympic Mountains, full range. In 1970 we purchased the upper grounds and the house that we now live in. But in 1956,
when John and I married, we always visited that area. In fact, there were even bear. I would sit down on the railroad tracks
where I did my very first paintings. In all that time from 1956 to present, we have never experienced a slide in that area. In
1980 I started my involvement with Edmonds Community College bringing art groups together —brining disabled classes to
the campus, facilitating many art related activities, bringing a gallery to the campus, anyway that I could facilitate the growth
and connection to the arts in South Snohomish County. In 1990, through the Edmonds Community College Foundation, we
were able to work out the concept of how my life and John's life and our property and assets could benefit education going
forward, that my career as an educator would not have ended in that 1978 not reporting to school everyday. By sectioning off
a portion of Mount Olympus (meaning Sequoia Ridge), John and I could immediately create 35 full-time arts scholarships
based on merit. These scholarships double every seven years. When John and I pass on our entire estate —all of our
belongings, our holdings and my art —will also be funneled into the foundation. The scholarships will then be in the
hundreds and every seven years those scholarships will be doubling.
Ms. Johnson: The native Americans have a saying, "Plans must look seven generations into the future." John's and my
plans look seven generations into the future multiplied unending. We are talking about grandchildren and the grandchildren's
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 6
grandchildren. There is no unending of giving to education. John and I do not have children. However, we do have your
children at heart. By teaching them young has no end. My dream will go beyond my lifeline through Sequoia Ridge and our
estate. Why the arts? The arts are the barometer of the health of society. When society fatigues, the arts die. When society
grows strong, the arts flourish. But, in America and our public school education, as economy increases the arts are the first to
be taken out. When economies are good, it is the last to be included. Through Sequoia Ridge and John's and my life, the arts
will always stand strong in South Snohomish County in our schools. These scholarships will allow the arts to flourish
educationally independent of the economy. The arts bring to a nation an economy. One of the latest programs I listened to
on national radio was talking about how towns have increased their strength like Edmonds through the arts. Through the arts
they are building. This is a nation-wide movement. We are talking about more than the education of the students.
Ms. Johnson: At age four, dad placed an educational dream in my spirit. He died when I was 18, and never lived to know
me with two degrees in hand or what I am passing forward because of what he taught me. But, still his spirit walks beside
me and my husband walks before me clearing a trail so that this dream will become a reality. I want to thank you for
standing with me and with Sequoia Ridge and John's and my life. Thank you.
Mr. Reynolds: Mr. Examiner, thank you for your patience with those comments. One thing I have learned in land
development over the past 26 years is that it is an emotional issue. I appreciate it. I have a note from one of my colleagues.
It is Edmonds Community College instead of Edmonds Junior College. Mr. Sherman, if you could come forward just briefly,
and the foundation would support the land use proposal.
Mr. Sherman: Thank you, Mr. Examiner. My name is Bob Sherman. I am a resident of 703 Spruce Street in Edmonds. I
swear to tell the truth. Recognizing your concerns, Mr. Examiner, about how appropriate my testimony is to this, I will keep
it as brief as possible. Delayne was eloquent in her talk about this wonderful gift that the Johnsons have given to Edmonds
Community College. I emphasize and certainly forgive your mistake as to whether it is Edmonds Junior or Edmonds
Community College. It is an important distinction because Edmonds Community College is part of a state community
college system that provides education all over the United States. In 1967 the legislature enacted a law that provided for this
education. They had a wonderful dream. Their dream was that any student, regardless of economic standing and regardless
of educational background, would have an open door to get into community colleges. It was a great dream. In 1981 I
became a trustee to Edmonds Community College —the Board of Trustees. About a month later we took a ten- percent cut in
funding that was across the board for government agencies. This became typical of what was happening to community
colleges. That open door closed and closed and closed and that access was not really so open to the people who really needed
it most of all. Shortly after I joined we formed the Edmonds Community College Foundation. The motivation of that
foundation was to provide scholarships to students. This wonderful gift of the Johnson's does exactly that. Fifty percent of
the income will be devoted to scholarships. Another part of our mission is to provide assistance to programs, to faculty, to
those folks. Again, that scholarship will provide that. 25 percent will go to that. Another is to provide and help with capital
funding for Edmonds Community College. Again, the Johnson gift does that through beautification programs on the campus.
Twenty five percent of the income will go to that. We are very moved by this gift. It is actually already in place as a trust. I
want to tell you, Mr. Examiner, that the value of that trust will have a direct affect on how many people get into Edmonds
Community College, those who are in need, and to the assistance of the public, itself. Thank you very much.
Mr. Reynolds: Mr. Examiner, our next witness would be John Thorson. He is one of the representatives of the Sequoia
Ridge partnership. As I indicated, he will live on the site, if in your wisdom and the City Council, these land use approvals
are approved. Mr. Thorson will address briefly his approach to the project and the scientific studies he asked to be
conducted, along with his agreement to prepare an environmental impact statement at his expense and a few other topics.
Mr. Thorson: My name is John Thorson. I live at 15621 — 48' Place West in Edmonds. I swear to tell the truth. Mr.
Examiner, thank you for the opportunity to comment on this project. My partner, Phil Holroyd, who is also here, started
working with me on this project in March of 1998. It seems kind of timely that we were to have a hearing about November
of last year on this project. Unfortunately, we are here a year later and are not there yet. I want to just tell you that my
partner and I have made an offer and proposed this development not as developers. I happen to be a venture capitalist. My
partner owns a small business. We both have small children and we are buying this property to live on it ourselves. We have
also started to market the other two lots. One to a friend of ours who we have known for some time who also has small
children and wants to live there and to a single school teacher who would also like to buy one of the lots. When we went into
this project and first looked at the property and the plan, it was an 8-lot PRD or 8-lot subdivision. We thought that was too
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 7
much. We loved the beauty of the property and we wanted to protect the environment as best we could. We came up with
the name of Sequoia Ridge because there are a lot of Sequoia trees on the property, believe it or not. In this environment they
do very well up there. One of the reasons they do very well is because of the drainage. It should be helpful to the overall
project. We fully expected to be in our new home right now at that property. Unfortunately, we are not there yet.
Mr. Thorson: We have sold our two homes that we lived in prior to in Edmonds to help finance this project. We have
ended up both relocating to smaller residences until these were built. The reason I say that is that it is their intent, as our
counsel has indicated, that we are going to live there. I have my plans completely ready to submit to the City if, in your
wisdom, this project is approved. We are not talking about huge residences on one -acre lots. We are talking about
moderately sized homes. The footprints are approximately 2000 to 2500 square feet. We are talking about a two-story home
that a normal family would live in. We have spent a considerable amount of money getting to this point. Not that the work
was completely unnecessary because, again, we want to make sure that our homes are safe and that our friends and neighbors
homes are safe that are going to live there.
Mr. Thorson: We have accepted the mitigation. While early on we were confused and upset, I suppose, at staff s
recommendation that a complete EIS be completed because as our counsel indicated it seems rather unreasonable and out of
character that a four -lot short subdivision would have a complete EIS completed on it. We went along with that. We did not
pull out of the project when we could have. We wanted to help the Johnsons and Edmonds Community College fulfill their
dream so we spent thousands and thousands of dollars to get to this point with consultants, environmentalists and
geotechnical consultants. Again, we are prepared to accept the staffs recommendation with a couple of variances. In fact,
we have started the process to retain a geotechnical consultant that will not only monitor during construction activities but
monitor after. Again, Mr. Examiner, it is not just to protect the neighbors, it is to protect our own homes. We think this is a
great project. We love living in the City of Edmonds and want to continue to be good citizens in the City of Edmonds and we
want to continue to be good neighbors. We have to live next to these people and with these people, and we are going to. I
think that we have done a very good job at protecting the environment and building a project that is suitable for the land,
itself, and taking into account all of the mitigation factors that have been recommended. Thank you.
Mr. Reynolds: Our next witness is Bill Chang with Geo Group Northwest. They did provide consulting to the City on
geotechnical issues and their reports and attachments to the FEIS. I would indicate one thing. Mr. Thorson said that we
disagreed with staff in one respect. There is a dispute over the pool and spa. As I indicated, Mr. Chang will address that in
his testimony. The efficacy of those two elements of the project are also discussed in the report found in the FEIS. Mr.
Chang, will you come forward?
Mr. Chang: My name is Bill Chang and I am with Geo Group Northwest Inc. based in Bellevue, Washington.
Mr. McConnell: Okay, your address there.
Mr. Chang: 13240 Northeast 20r' Street, Suite 12. I swear to tell the truth. Our involvement in this project was to address
geotechnical issues on the project and to prepare a limited scope EIS. In that regard, we coordinated the studies done by B-
12 Associates. They actually checked the wetlands delineation and addressed the impacts to the wetlands and the stream.
Our particular role was to address the issues regarding the geotechnical concerns for the proposed development. As such, we
recognized that in a typical geotechnical study we would do borings to actually find out what is underneath the site. In a
typical EIS study generally subsurface investigation is not performed. It is an impact study that does not get into specifics.
What we recommended to Mr. Thorson and also the City was that since this was a limited scope addressing specifically the
geotechnical issues, having borings would give us more confidence in proceeding ahead and making a good evaluation of the
site. Again, as such, the additional scope was approved. That is why as you can see the EIS (both preliminary and the final
EIS) contain the results of our geotechnical subsurface exploration.
Mr. Chang: Our involvement in this ... We were consultants to the City in preparing the EIS study for the site. It is my
understanding that we will be retained by the developer if this development goes ahead into the construction stage. As such,
we have a unique responsibility in making sure that things are done properly and that geotechnical issues are properly
addressed. I wanted to also address the issue that Mr. Reynolds mentioned before. In our environmental impact statement
we made a general statement that perhaps we did not advise the placement of pools and swimming pools on the slope. That
referred to traditional swimming pools (some contractor comes in and excavates a pit, lines it with wire mesh and chalk treats
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 8
it). In that process there is very little control. If there is a leak in the pool, it can result in soil erosion and perhaps ground
loss on a site like this. Then we were approached by the developer, Mr. Thorson, and he said well what if special design
features were incorporated. We said that certainly that could be considered. Things that we could think of are perhaps a
drainage system. A better analogy would be in the underground storage tank business years ago all of the fuel tanks put into
the ground were single. Over the years, 50 percent of them leaked. These days in order to have a gas station all of the tanks
have to have double containment. There is a leak detector in between. As far as I know there have been no tanks that have
leaked since they have been installed. Taking this same philosophy, I think a pool or a spa can be designed and placed
outside safely if it incorporates that type of a feature. With that, I think I want to wrap up my comments. We had freedom
evaluating the site conditions. We have taken into account previous studies that delineate areas of the Meadowdale Slide
Complex. In doing our studies we were not given any conditions but were given the freedom to fully evaluate the site. We
eagerly anticipate the opportunity to see the project go into construction. I think it can be done safely. Certain construction
techniques may not be routine but may have to be tailored for the site. But, we are sure that those can be accomplished.
Thank you very much.
Mr. Reynolds: We are rapidly going through the list, Mr. Examiner. The next witness would be Charles Pervett. His
company prepared the initial geotechnical analysis that forms part of the EIS. I would like him to come up now. Before he
begins, one of the issues, Mr. Examiner, was addressed in the Hearing Examiner staff report regarding the stability of the
subsurface soils. You heard from the last witness that, unlike most projects, they did soil borings. We would like this
witness to explain the stability of the underlying soils because under the special design standards the homes are going to be
constructed with piling that are placed in the deep underlying soils. I will add that explanation to it. It is a little bit different
technique than I see normally for this type of construction.
Mr. Couverette: My name is Charles Couverette. My business address is 17311 — 135r' Avenue Northeast, Suite A500,
Woodinville, 98072. I swear to tell the truth. We did a preliminary study of the site in 1995. Pretty much, the preliminary
study is to give the developer the idea if his project is feasible due to constraints. It is limited. We used geologic
information —geologic maps. We went out and did some shallow holes and confirmed that information. We walked the
slopes and looked for seeps, that kind of stuff. Pretty much the borings that were completed by Geo Group confirmed what
we thought. The hillside is — by a dense sand deposit, glacially compacted. That means in a geologic sense that the
last ice ages where the ice was around 300 feet actually compacted these soils. As long as the foundations are into the slopes,
there is not a problem with foundation bearing. Anytime we get involved with a site where the slopes are 25 or 30 degrees or
more we always raise a concern of some superficial soil. It is not to be confused with a deep-seated landslide event. If you
go down into the Meadowdale Complex, the movements down there were tens of feet thick in certain areas and that is what
we term a landslide.
Mr. Couverette: What we talk about on these less shallow slopes is more of a slough event. It is more to protect both our
interests and a potential homeowner's interest as such that if a couple feet of soil moved on the surface it is not a catastrophic
event, but it can happen. When we go out and look at slopes like this and the trees are 80 to 100 years old (are well
developed), there is not any evidence that exists that says that this even can occur. It is just that it is kind of steep and if it
were to happen, it wouldn't necessarily surprise us. To a certain extent, that is how the area was mapped on the Roger Lowe
and the geoengineers maps for the Meadowdale slide. It is not in the slide complex, but it is around the outside. As an
engineer or a geologists you take a look at this and go, "I don't really think this is part of the complex and it hasn't moved.
But, it is on a slope so if it sloughs a little bit, don't be surprised." That is kind of the way it was mapped on the landslide
hazard map.
Mr. Couverette: For a little bit of clarification, I was an employee of Roger Lowe when the first ma was done. I was an
employee of Geo Engineers when the second map was made. I know D and I have spoke to
them several times over the years over the formation of those maps and actually did some of the explorations when they were
developed. Anyway, what do you do. You have a potential slough. It is not evident, but it might happen. You take your
foundations down a little bit deeper such that it would not impact the structure or the development (the living portion of the
development). That has been done. In our report we advised 15 feet back from the face of the slope. So if you were on the
slope and it was a 2:1 slope, you would go down 7'h feet in order to obtain that 15 feet. Geo Group is a little more
conservative. They were talking about actually taking the piling down 25 feet on the outer portions of the buildings, so that
certainly meets the criteria we have. We did not have a complete plan. It was more of a feasibility study when we looked at
it. Unless there are any questions, that is all I have.
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 9
Mr. Reynolds: Mr. Examiner, our next witness will be Tony Roth, who is with Pacific International Engineering. The
critical area report talks of steep slopes too and the primary discussion is wetlands. Before we get to that, I would like to
state for the record a suggestion so that I don't forget it. The examiner may want to give consideration to one additional
project condition. There has been some concern expressed about landscaping the decks in the final design phase. I would
recommend a condition that if any decks are located outside of the building envelope for the homes, any landscaping plan
should receive technical review. The concern really was sloping, and since a geotechnical consultant is required to monitor
both during construction and after construction, our client doesn't object to the expense of having a geotechnical review of
any landscaping plans or any deck plans. I believe that is within my authority to offer that suggestion.
Mr. McConnell: Sir could you come forward.
Mr. Roth: Mr. Examiner, my name is Anthony Roth. I work for Pacific International Engineering, 144 Railroad Avenue,
Suite 310 in Edmonds. I swear to tell the truth. I am a certified professional wetlands scientist with approximately 15 years
experience in delineation of wetlands and creation of mitigation to respond to the impacts to wetlands through development.
In May of 1998 I performed a site assessment and wetland delineation of the site (the subject property) finding approximately
1.12 acres of water resources on the site which included a Category 2 stream under the City's code 20.15.80.060.4.B—
Category 2 Wetland. My findings were part of a July 1998 report which provided mitigation approaches for the "as then"
conceptual site development. Those findings were based on my professional experience and my certification to accepted
professional standards.
Mr. Reynolds: Mr. Examiner, the last witness is Jim Miller, with David Evans and Associates. Again, I may ask him to
come back up after citizen testimony and questions. Mr. Miller, are you ready?
Mr. Miller: Good afternoon, Mr. Examiner. My name is Jim Miller and I am with the firm, David Evans and Associates.
Our address is 1620 West Marine View Drive, Suite 200, Everett, 98201. I swear to tell the truth. I am going to cover just a
few points regarding the application. As Mr. Reynolds has indicated, I have provided you some lengthy documentation, and
as I am aware you are pretty religious in going through that kind of documentation in your role as Hearing Examiner. A
couple of comments on the appeal issues. I think staff covered well the issue of notice. The comment I want to make is on
the issue of the adequacy of 72nd Avenue West. As the record shows, there would be a total of only eleven houses served by
the roadway if this proposed short plat were approved. That is only three of the lots within the short plat taking access from
this road. I think it is worthy to note that on traffic issues, four -lot short plats are categorically exempt under the SEPA
guidelines. I think that is a fairly strong statement by the State of Washington that the traffic for a four -lot short plat is
categorically considered insignificant by the State of Washington. I think that is fair standard.
Mr. Miller: In terms of wildlife habitat, I think that the opportunity existed, both during the scoping process and during the
comment on the draft EIS, for the Department of Fish and Wildlife to respond. I am aware through discussion with staff that
the notice did go. The notice of the EIS and the scoping did go to the Department of Fish and Wildlife. As the Examiner is
aware, that department keeps maps of rare and endangered species and their habitats as well as priority species and their
habitats. I am certain that those maps were consulted with respect to this particular piece of property. I am confident that is
the reason why there was nothing from that department to include wildlife habitat as an issue within the scoped EIS.
Similarly, when that department received a copy of the draft EIS that did not include a discussion of habitat outside of the
discussion you will find in the critical or sensitive areas report that Mr. Roth prepared. That department, once again, as a
response from the State of Washington Department of Fish and Wildlife chose not to make any comments regarding habitat.
So, I would just echo the request of Mr. Reynolds that it appears that the letter that you have from Ms. Thompson is both
untimely and did not appear as part of the scoping process or public comment process and it appears not to represent the
official position of the Department of Fish and Wildlife as they participated in the SEPA process on this application.
Mr. Miller: Another issue that is touched upon in the SEPA appeal is the question of accuracy. There was obviously some
confusion on the part of the appellant as to how the Meadowdale Slide Maps were put together and the level and detail of the
base map (the USGS Quadrangle Map on which they are located) as compared to the detailed on the survey conducted by our
office (David Evans and Associates.) We have licensed land surveyors prepare and supervise the topographic map as part of
the record. The top of bank shown on that map is indeed accurate and is based on field measurement. It is also based on a
considerable amount of boundary control with respect to surrounding properties. On the other hand, the USGS Quadrangle
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 10
Map is a map of a very large scale that is prepared from area photography and not field measurement. It is a very general and
approximate representation of topography, and the landslide hazard line that was put on that map as part of the geological
studies, again, is a very general and approximate representation of the limits of geotechnic phenomenon that are discussed in
the report that is associated with that map. I think you have a great deal of discussion by two professional geotechnical firms
about their on -site investigation, on -site evaluation and a review of all of the data referred to, including that landslide line.
Neither one of those firms had a concern with relationship with the topical bank with the landslide hazard line. They realize
that those are different lines.
Mr. Miller: I have touched on the fifth item that is part of the appeal so I am not going to go into that any further —the
accuracy of the geotechnical data. I think the appeals that you have before you have no technical expertise as part of them to
back up the contentions that are made by the appellant. There is no expert testimony behind the concerns that are expressed.
I agree with Mr. Reynolds that the public hearing process is the appropriate process for concerns to be expressed, but we also
realize that you need to have the expert testimony to back up the concerns if you are to operate as the appellants are
suggesting.
Mr. Miller: We have touched on the swimming pool and spa. I think it is clear that the experts have supported those
features as long as they are properly designed. You may want to include the same kind of review and conditions of approval
that Mr. Reynolds recommended for both those features and landscape features. One of the concerns is those reports did not
recommend native growth protection areas for the setback from the top of the slope. I think that is why the concern that there
be opportunity for landscape features and decks to be reviewed by the geotechnical engineer to ensure that there are no
unstable areas. The geotechnical engineer, again, did not recommend a native growth protection area.
Mr. Miller: The storm drainage system is another interesting topic and an important one I want to touch on. Accepted
engineering methodology suggests that with sites this close to Puget Sound, the most appropriate technology is to get the
stormwater as quickly and efficiently to the Sound as you can. Within the first thousand feet of the Sound, current
technology is not to contain stormwater—especially on steep slopes. That is an extra loading of the slope with detention
facilities that doesn't need to occur. The whole purpose of storm drainage detention system are to provide a slowing of
stormwater as it leaves the site so that there will not be scouring of the streams or erosion of the streams by rapid run off
events. There is very little in the way of stream channel that exists as part of this drainage system. In fact, we will be tying
into the pipeline drainage system within North Meadowdale Road. That travels very quickly down and under the Burlington
Northern railroad tracks and down into the Sound. The EIS points out that with the type of drainage system that has been
proposed, this should actually enhance slope stability and conditions on the site over either no drainage control or detention
on the site.
Mr. Miller: There is also a complaint in the appeal regarding the waiver of City street standards. Again, we are talking
about 11 residences on the street. There has been a review of the issue by the City Engineer, and I would concur with the
City Engineer that the improvements that are up there now are more than adequate, from a capacity and safety standpoint, to
accommodate the number of trips that would be generated. I would hearken back to my comments on the categorical
exemption standard in the state law that three additional residences served by this street cannot rise to the measure of a
significant adverse impact under the State's own legislative standards.
Mr. Miller: Coming now to the two basic issues. We requested critical areas variances to reduce the building setback area
from the wetland buffers and to reduce the setback from the top of the slope. More than enough testimony has dealt with the
setback from the top of the slope. I think it is important to note that this layout is one that clusters all of the proposed
development on the least steep portions of the property. All four of the building sites are the least sloping portions of the site.
It has been a real balancing act, as I think it was characterized by Ms. Kawamoto as the planner reviewing the project, to both
honor the protection of the critical areas and provide some reasonable use of the site. Again, I think the brief provided by Mr.
Reynolds talks in great detail about the reasonable use standard. The variances we are requesting are the least that we can do
to accommodate the four building sites that are proposed. The variances are determined by the detailed analysis done by both
the geotechnical engineering and by Mr. Roth, the wetlands scientist that did the sensitive areas report on the streams and
wetlands. What these also result in is the desirable placement of the access road that serves Lots 1, 2 and 3. It is the location
of that access road that drives the setback of the residences from that particular access road, thus the setback variance that we
are requesting.
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 11
Mr. Miller: I provided a detailed statement of findings for the critical areas variance and I would like to provide a couple of
comments right now regarding the setback variance. Obviously, the special circumstances that exist on this site are the
topography and critical areas. A very small portion of the site is available for development. Again, we are talking about less
than 12 percent of the site being utilized as part of this short subdivision proposal. There certainly are no adverse impacts
that could be anticipated to surrounding residents or to the public as a result of this proposal. The safety issues have been
dealt with. The traffic issues have been dealt with. The drainage issues have been dealt with. If you look at the topography
of this site, the actual houses will be virtually invisible to surrounding residences. The most visual exposure would be from
North Meadowdale Road, and from there all of the development is clustered in the southwest corner of the property with the
exception of the one building site on Lot 4. With 88 percent of the property in native growth protection area, there would be
substantial significant large trees screening all of the development.
Mr. Miller: Running to the public safety issue. Again, the geotechnical reports and the drainage analysis and the lack of
need for a traffic analysis indicates that we are well within acceptable standards for public safety. In terms of consistency
with local codes and the Comprehensive Plan, I think those issues that were discussed in the EIS and we are discussing in this
hearing go to the policies of the Comp Plan that are relevant to this piece of property. What we are doing is trying, as best we
can, to balance all those objectives set forth for hillside development in Edmonds in the Comprehensive Plan and the
Edmonds Community Development Code to select the best housing sites and improvements. Those, I believe, provide what
are necessary to make the findings in support of the variance that we have requested. I think the rest of the record speaks for
itself in terms of description of the project. If you have got any questions regarding the preliminary development plan that
we have prepared for the property —the lots, the building site locations, the roadway access and the draining —I would be
happy to answer those.
Mr. McConnell: I am sure we will have lots of questions as we go along. You will have an opportunity to respond.
Mr. Reynolds: Mr. Examiner, that completes our testimony. Just a couple of housekeeping matters before you turn to the
citizen testimony. Did I hear you correct, Mr. Examiner? We have introduced our hearing memorandum.
Mr. McConnell: Exhibit L.
Mr. Reynolds: Yes, Exhibit L. Thank you. Number two. I have not had our experts describe their educational credentials.
Unless there is an objection from the appellant, if you could give us a few days to hold the record open, I would like to
submit the resumes of Mr. Chang, Mr. Pervert, Mr. Roth and Mr. Miller. I think their credentials... Otherwise, I could
establish them today if that would be easier.
Mr. McConnell: Let's keep the record open.
Mr. Reynolds: Thank you. Those would be Exhibit L-9, 10 and 11 and 12. Those will be attachments to our brief. I have
my paralegal here and we will get those out shortly. We will provide a copy to the representative of the Meadowdale
Community Council. Can you inquire, Mr. Examiner, I have an extra copy of our brief and exhibits for a representative of
the appellant. I am not sure who is speaking.
Mr. McConnell: Who is the leadoff for the appellant? There is your person.
Mr. Reynolds: Thank you sir. I will walk that over to you.
Mr. McConnell: Let's take a couple minute break. Let's just take a few minutes and I will run and sharpen pencils and we
will come right back.
Mr. McConnell: Whenever you are ready.
Mr. Wojtanik: Hello, Mr. Examiner. My name is Drew Wojtanik. I am the president of the local established Meadowdale
Community Council. We are the residents that live on the street that is going to be the access to Lots 1-3 of the four lot
proposed subdivision.
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 12
Mr. McConnell: Before you go any further, just state your address.
Mr. Wojtanik: Yes, it is 16306 — 72nd Avenue West, Edmonds, 98026. I swear to tell the truth. Basically, I am here to lend
some verbal support for letters that we've already put on record to oppose the City regarding this subdivision. We are of the
opinion that several of these are contentious issues that are of major importance to us. We do identify a number of other
issues that I am not going to speak about today. I am going to concentrate my comments on a couple of areas that we find
most important and certainly contentious. I also would like to address, basically, this letter here that is ...
Mr. McConnell: You mean the staff report?
Mr. Wojtanik: Yes, the staff report. I will go to ... First of all, lets address Page 4 of 7—Issues raised by the appellant.
Inadequate notice to the neighborhood resulting in staff s omission of two subject areas of concern from the EIS review —
mainly traffic and wildlife habitat. Those are the two areas that I am going to concentrate my attention to. First of all, on the
inadequate notice, the Meadowdale Community Council was established back in 1995 as basically a citizens' concern group.
The purpose at that time was because on that same street, that is a substandard street, the Green Terra who is another
proposed development, was subdividing there, as well. At that time, the City's Engineering Department basically went on
record saying that that street was a substandard street and objected to the subdivision of that development. As a result of that,
we turn around and as a community council we considered the alternatives to possibly having the street widened to meet code
standards. We went on record, at that time, to basically oppose the widening of the street based on the fact that there was
going to be this other small subdivision. However, when we went on record at that time to oppose the widening of the street,
we did not give a blanket statement basically saying that we were never going to oppose any other developments that may
happen on our street. That is what is happening now.
Mr. Wojtanik: We became aware of this regarding the notification process kind of haphazardly. Some residents on the
street (and we actually represent 11 different homes that don't necessarily all border the street but have concerns about this
street access area) ... On the notification, the fact is that some people on that street received notification of this proposal,
while others did not. As we understand the standards required by the state is that the City has to notify any resident within
300 feet of the actual development. However, that 300 feet does not include most of the residents who live along that street.
Therefore, we are very concerned that we did not receive adequate notice in advance of this proposal and had very little time
to respond or formulate any strategy for a response. However, we did do that. We did it in the short order. We went on
record with our first letter to the City, I believe it was September 13, 1999, regarding the draft EIS.
Mr. Wojtanik: Since then, we have been receiving some additional haphazard notifications regarding the final EIS as well
as the hearing date and the revised hearing date or time for today. I am the president of that community council; however, I
did not receive the last two notifications that announced the change in time of this particular hearing. I am still a little bit
concerned that the City is not necessarily taking concerns with the neighboring homes and residents that live along that area.
Mr. Wojtanik: Okay. Let's move on to the street, itself. The street is considered substandard. That is the bottom line. I
realize that we are talking about only three additional homes on this particular street. However, the street was already
overtaxed. I am curious, the last couple of speakers have mentioned that this did not require a consideration because of the
fact that it is only three more houses. I am curious as to what would be the threshold. What would be the trigger, as to when
would this street be looked at again by the City engineering department? We are considerably substandard for purposes of
emergency vehicle access and as such, we would like to have this put back into a concern area that the City reconsider
whether the street should be examined as being substandard and what should be done about it to satisfy our concerns in that
area.
Mr. Wojtanik: Okay. Moving on to the other major topic we have, which is the wildlife habitat area. It is a bit curious that
the City that represents us as taxpayers and homeowners in that area chose to not include that as one of the scope issues in the
original EIS. As the local residents who live there we brought that up as a concern issue and asked the City to add that to
basically the final EIS requirements. However, that has not been done. Now, I understand that the fact that a letter that was
submitted by a representative of the Fish and Wildlife Services is being contested as far as its omission. I find that rather
curious in the fact that I was provided a copy of the brief by the proponent's attorneys here. As a result of that, if I may go to
Page 12 (I believe it is)... It is interesting that they are asking that this submission letter not be considered because of the
fact that the representative from the Fish and Wildlife Service is not here and that they cannot be cross examined. However,
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 13
in Lines 12 through 17, they go in and actually start to reference the letter and make some counter arguments to it. I find that
rather incredible that they want it to be excluded, but at the same time they are going to go ahead and identify it and start to
counter it within their brief. I have not had sufficient time to actually examine this brief thoroughly, as you can imagine, I
received it when I walked in today. I ask that you take that into consideration. I think the letter is appropriate. It is certainly
on Fish and Wildlife letterhead. I don't know about this particular individuals qualification, but they claim to be a wildlife
biologist. They have concerns for the area and those concerns are further expressed by the residents who live in the area, and
I think it would behoove the City to now go back and ask for the wildlife survey to actually be done. There appears to be
some conflict about possibly endangered or threatened species in those areas. The City has gone on record to claim that there
may only be two identified in that area. However, according to Fish and Wildlife personnel, there may be as many as 159
different species that actually could reside in that particular area. Without an examination, without a survey to be done by a
professional in that area, I don't think we have that question answered adequately.
Mr. Wojtanik: Okay. Regarding the landslide hazard area. Yes, there is a confusion between the proponents drawings,
which as I understand were land based verses what was on file with the City which was aerial photographs with the landslide
hazard line drawn on it. It is curious that between the two, the landslide hazard line does not exist on the proponent's actual
scale drawings. This, again, is a question. I don't know the answer to it. You are right. As this last gentleman mentioned,
we don't have expert testimony. You are right. We are just residents. We just live in the area. However, I happen to be an
environmental consultant, myself. I have a masters degree. So, I think I have got some qualifications to question areas
regarding absence of adequate review.
Mr. McConnell: Excuse me sir. Mr. Reynolds is submitting resumes of all of the proponent's witnesses. If you want to
submit your resume, you will be allowed to do so.
Mr. Wojtanik: Well that would be fine sir. But, I am not here representing my company, where these gentlemen are. I am
here as a resident and a homeowner living in the area.
Mr. McConnell: You can still submit your resume.
Mr. Wojtanik: I would be happy to submit my resume. That will be fine sir. Thank you. Anyway, the bottom line is we
are not geologists. We are not hypergeologists. We are not engineers. But, the fact is that there is a question, a concern by
the residents living in the area, that the landslide hazard zone was erroneously or for some reason excluded, and we ask the
City to take that into consideration and clear up that discrepancy to satisfy the concerns of the local residents.
Mr. Wojtanik: It is also curious, and I go to Page 5 of 7 regarding the slide areas. There are a number of . .
Mr. McConnell: You are talking about 5 of 7?
Mr. Wotanik: Five of 7 sir. In Paragraph E—Appellant Issue. The proponent has marched a number of experts up here
giving their qualifications as to why there should be no concerns over the slide area. However, it is curious to us as to how a
slide that was actually experienced in that almost immediate vicinity only several years ago was excluded from any of the
discussion in their supporting documentation to this point. The slide area referred to, and I will quote here. "The slide area
referred to in Geo Group Northwest's response letter as being 1000 feet away was is, in fact, only 350 feet away on the same
stretch of bluff and in the very same designated landslide area as the proposed development." I also heard one engineer who
stood up here and talked about the fact that it is not deep-rooted erosion that is the concern, but it is the sloughing off of the
top. If I understood correctly, he said the sloughing could happen. He basically went on record to say that it won't happen.
However, I found it curious that he did kind of make the statement (and I paraphrase if I may) that the sloughing would not
be a big concern, and it would only be the top couple feet of soil. I contend that that top couple feet of soil may be weighing
a number of tons, and if that was running down a very steep slope at a residence that was below that area, that would
certainly be a concern to me. I wouldn't care if it came from 20 feet deep or two feet deep. The fact exists that there was a
slide in the area. The reason for the slide is under contention between the City and the landowners in that area. I won't go
into that issue. But the fact that it did exist and the fact that it has been ignored or erroneously identified as to its location by
the proponent raises another red flag that needs to be considered by you, sir.
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 14
Mr. Wojtanik: Finally, I think we were kind of rejoiced to find that the City staff did agree with us for a change in the fact
that they agreed that the pools and spas are a concern and should not be granted. However, I have heard some statements
today that that would still be open for consideration and still considered by you. I would encourage you to take a very strong
look at that particular area and recognize that while there may be some leak detections that could be installed, those leak
detection systems would not address the additional weight that is going to be encouraged by not only the structure, itself, but
the water that is going to be put in it. I find it kind of odd that the landscaping is a concern. They talked about not having
lawns. They talked about, in their EIS's, they talked about having native habitat in there when in fact they are talking about
putting a structure that would weigh numerous tons on the top of a hillside that is already a concern. I believe that concludes
my remarks. Now, I do have several other representatives from the Meadowdale Community Council who would like to
speak.
Mr. Reynolds: If I could interrupt for just a second, not to provide testimony. I have one witness that has a time constraint.
Mr. Roth. He presented the critical areas studies. We would like to inquire if anyone has any questions on that study. If not,
we can excuse him.
Mr. McConnell: Does anyone have questions regarding the critical areas study? Apparently not. Mr. Roth, you may be
excused.
Mr. Reynolds: Thank you.
Mr. Duffy: Mr. Examiner, my name is Mike Duffy, 16238 — 72°d Avenue West, Edmonds, 98026 I swear to tell the truth. I
think Drew spoke very well for the council. I have just a few things that I made notes on today. To be very candid and
direct, I live within the notification of the proposed development by the Thorsons. I was very confused about this entire
process. I am worried and concerned that somehow there was a well -greased thing happening. The reason I bring this up is
because as just a homeowner this kind of disturbed me on a point of principal. For instance, when we got our first notice
(and this has been brought up by our good friend counsel here regarding to the fact that we never responded to any of the
notifications regarding SEPA or the other stuff that I am not aware of) ...
Mr. Duffy: My wife and I received this notice in the mail. We both looked at it and tried to figure out where it was. It was
just a notice with an address of 161xx on it. That was basically it. We did our good citizen thing. We walked down and
there was no indication about what this meant. It appeared to me that this could be even more typos. With an xx, I didn't
know what that meant. I have a friend in real estate and I asked him to pick it up on his database to see if there is anything
that makes sense. We didn't even know where it was. Because there was another development immediately to the south of
us, we assumed that all of these typos compounded and maybe that was it. I left it on my desk. Then we received other
notices with the same thing. I thought, something is going on here, so I passed it on to some other neighbors who hadn't
even heard of this yet. This notification thing from the very beginning has been odd to me. I personally take exception to the
way the City handled it. I am not certain they did their due diligence on notifying me. That is one issue that I think hopefully
addresses some of the concerns the counsel raised regarding the fact that we never did respond. It is very confusing for a
homeowner to figure this out.
Mr. Duffy: The road issue is probably my big concern because we live on that road. We heard testimony here and I take
exception to our good counsel here that said that this hearing should be handled by experts only and that the citizens should
be allowed to grumble and then go home. I kind of feel that somehow I have something to say. We had an expert here who
said that there are eleven homes on that road. I take exception. I am embarrassed to say anything, but I count 15 homes on
that road that are serviced, not eleven. So, even experts can be wrong. I know, I live there. We can debate that later, but
according to my count, there are 15 homes. I can probably clearly show that. Experts can be wrong. Maybe citizens can be
right from time to time.
Mr. Duffy: The wildlife issue was brought up by the president of our council and he did a very wonderful job on that, but
there is another issue. Woodpeckers and herrings do exist. The eagles do exist. There are quite a few eagles that forever are
circling. I think we all see them and I don't think anyone would dispute that. The woodpeckers are a source of joy to Linda
and myself. We have quite a few that come through our area and go on. We even have an owl. From time to time you can
hear an owl hooting in the bushes. I am hoping to get a picture of it. I hope it is a spotted owl. Regardless, these wildlife
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 15
issues shouldn't be dismissed because the person who wrote a letter is not here to defend the letter. I don't think the
expectations were to have the person here anyway. In closing my arguments in support...
Mr. Duffy: Let me back up on the road issue. I live on the road. There are 15 homes that service that road. The road, we
went through in 1995... As Drew suggested, we went through a battle and they widened the road. There was a compromise
because on my driveway and on Drew's driveway, the slope is too great to encroach that way. So, what happens if you really
want to widen the road, you have to go the other way to an embankment. You may be aware of that, I don't know. It looks
like it would be pretty expensive, and I am not sure it is the right thing to do. I don't know how the issue is to be handled.
Regardless, if we are going to get increased traffic, someone should address the road issue. I can't understand how it wasn't
addressed. It just baffles me that if we went through a major fight in 1995, why all of a sudden is everything okay now. I
don't understand that.
Mr. McConnell: Well, we have a City representative. Maybe he can be here to address some of those issues.
Mr. Duffy: Maybe so. Maybe that is good.
Mr. McConnell: He is sitting in the back of the room right now.
Mr. Duffy: Somehow this all comes out of common sense. Again, I appreciate the good counsel's professionalism —very
nicely done. I learned a lot today regarding the issues over there. The slide clearly was between my home and the Johnson's
home. It was pretty close and it was pretty ugly. Regardless, at the end of the day we all need to be neighbors and live
together and a lot of times these controversies to not lend to good neighborhood camaraderie. The ambiance and the quality
of life that we all expect is degraded. I would just like to add those emotional issues to the testimony, as well.
Mr. McConnell: Thank you. Who is speaking next? Are there any of the neighbors who would like to speak?
Mr. Anderson: My name is Robert Anderson. My current address is 614 Daniels Drive Northeast, East Wenatchee, 98802.
You have a letter from me and my wife. I swear to tell the truth. You have a letter from us in your file. My wife and I,
Joanna, are the co -developers of the Lorian Woods development immediately to the west of the development. I
want to just highlight a couple of my concerns. First of all to say that Dr. Mary Neering, who is president of the Lorian
Woods Homeowners' Association, did not receive a notification of the rescheduling of this portion of the hearing until this
afternoon. She rescheduled all of her patients for this afternoon and had to leave since her staff was screaming at her about a
half an hour ago. I want to highlight a couple of concerns that I mentioned in my letter. After the presentations over the last
hour and a half, I have to say that I don't understand... We did have some mitigation with Mr. Thorson about this
development as he began it and how we could be profited with him. I don't understand the waiving of numerous setbacks —
particularly the 15-foot setback from the wetlands and the very substantial setback from the City's requirements from the
building line on the west. That is somewhat alarming to us. We don't understand how those things can be waived so easily.
Mr. Anderson: The other concern that I want to highlight is that we have lived on this property since 1962 and we have
dealt with the issue that we are all concerned about in this area. That issue is water. While water is the universal solvent and
the sustainer of life, water can also be very hazardous as we have learned on our property. The west slope of what may now
become known as Sequoia Ridge seeps water all of the time. The thing I want to point out, and I have not had any
information from riparian engineers, is that the flow of the water shifts all of the time. It shifts from day to day, week to
week, year to year. We were able to get permission to go through with our development at considerable expense, which Mr.
Thorson will understand, based upon certain water measurements and flows. We are concerned that this development might
in one way or another interfere with those or change that flow of water. No one knows where the springs that issue from the
west slope come from. I am somewhat alarmed that we may find out that it is connected with the subject property and may
adversely affect the City's willingness to let us go ahead and develop our Lots 1, 2 and 5. Those are our major concerns. We
set those before you.
Mr. McConnell: Who is next?
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 16
Mr. Judson: Mr. Examiner, for the record, my name is Henry Judson. I am an attorney in Seattle. I am here on behalf of
the legal guardian of Mary Jane Wang. Mary Jane Wang owns a piece of property located at 16015 — 75' Southwest, which I
believe is down slope from the proposed development.
Mr. McConnell: Okay, can I get your name and address?
Mr. Judson: Yes sir. Henry Judson. My address is 101 Yesler Way, Suite 602, Seattle, 98104.
Mr. McConnell: Will you be giving testimony.
Mr. Judson: No testimony this afternoon, Mr. Examiner. My purpose for being here as I said, I represent a professional
guardianship agency known as Care Planning Associates. They, as of last Friday, were appointed as the successor guardian
of the person of the estate of Mary Jane Wang who is an incapacitated 96 year old woman who is currently living in an
assisted living type of setting and has for a number of years. This guardianship has been in affect for the last 12 years
commencing in 1986 through the Snohomish County Superior Court. I am here on very short notice, first of all because of
the appointment of my client as successor guardian, letters were issued last Friday. It was only after that time that the prior
guardian, apparently through other counsel who was affiliated with this fairly complex guardianship case, forwarded notice
of this hearing. This has been a tremendous amount of catch up.
Mr. Judson: My purpose in coming today is to essentially request that the record be left open as far as this one property in
order to permit my client to submit some written comment regarding the hearing today. I understand that there are time
constraints with regard to your report, Mr. Examiner. Therefore, I would not want to interfere with that.
Mr. McConnell: My two weeks start after the hearing closes.
Mr. Judson: I understand that. What I would request would be that the record would be left open to permit my client to
submit something for a period of approximately seven days. In all candor, I can't say that notice was not provided to the
former guardian. I don't know what, if any action, he may have taken. He is currently out of the country. He resigned
abruptly and left the country. I am really in a position on behalf of my client of not being able to appear at this hearing and
comment directly. I have contacted staff who very kindly provided me with a copy of the staff report yesterday afternoon. I
reviewed that, but I have not had a chance to review the EIS nor has my client for that matter. That would be my request
today. If that could be dealt with then I have nothing further to say.
Mr. McConnell: All right. I am going to leave it open for a few days.
Mr. Reynolds: We don't have any objection. I have an extra copy of my materials for Mr. Judson, too.
Mr. Judson: Thank you very much, Mr. Examiner.
Mr. McConnell: Who would like to speak next? No one would like to speak next. Mr. Miller, it looks like it comes back to
you.
Mr. Miller: Jim Miller with David Evans and Associates. I actually have only two brief comments. One will be to refer to
something that we haven't entered as an exhibit but that we have relied on. I will have to say that I have been down 72nd
Avenue West and am aware of how many homes are served by it. I am sure the Examiner will visit this site.
Mr. McConnell: I can't tell you how many homes are on it, but I have been on the site.
Mr. Miller: The exhibit immediately behind me...
Mr. McConnell: Okay, we will make the road access drawing Exhibit M.
Mr. Miller: This is an exhibit that has been prepared by the Johnsons and actually shows all of the houses that currently
exist that take direct access to that stretch of 72nd Avenue Southwest that lies south of 164' Street. There may be some
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 17
confusion. The 15 houses being counted may, indeed, deal with houses that lie on the northerly stretch of 72°d Avenue north
of 164t' or houses that are served by 164r''. But it doesn't take a whole lot of counting to figure out that there are eight homes
that have driveways that have direct access on that portion of 72nd Avenue Southwest lying south of 164t' Street. Of course,
this also depicts how the access would be extended through the Johnson's property for the three proposed lots. There has not
been a larger scale drawing, even those this may not be to scale, that depicts this kind of information. I think it is useful.
That would clarify the numbers as I have represented, which may not be the same stretch of roadway that Mr. Duffy is
referring to.
Mr. Duffy: Mr. Examiner, may we address that while he is on that point?
Mr. McConnell: You will have a chance to respond. We will go back and forth and make sure everyone can say what they
want.
Mr. Miller: Another comment I would make is that the reason you don't see the landslide hazard line on our map is because
as represented by Mr. Pervett, that line does not lie on our property. Of course, the location of that line has to be inferred
because it is on a USGS Quadrangle map. It does not have a label description. There isn't any survey that can be referenced
to locate that line. I think there may be some confusion about that line. That is the limits for the area that was studied by the
geotechnical engineers. That is not the location of specific landslide contact areas, which is another phenomenon that was
discussed in some of the correspondence. That is all I have to offer.
Mr. McConnell: Okay. Yes Sir.
Mr. Duffy: My name is Mike Duffy. Just to clarify my remarks, I included the three homes in my homes in my count, plus
the one lot that is a building lot that can be a home. There is one lot that I understand is a building lot. With the three lots
that are proposed and the existing that service the road, that is 15.
Mr. McConnell: Okay. Anything further that I haven't heard? Okay. I would like to get a response from the City. We
have had questions of the City Engineer.
Mr. Hyde: I am Gordy Hyde. I am not the City Engineer, but I represent the City Engineer. My title is Development
Services Engineer, and I swear to tell the truth. I am going to respond to a couple of different things that have been raised,
and then I guess I am available to answer questions as well. The City's street code, as adopted by the City Council in 1987,
breaks out level of development width and design standards based on the number of homes for the four lots that have the
potential for accessing that road. The divisions in those widths are 1 and 2 lots, 3 and 4 lots, 5 to 9 lots, 10 to 15 lots and 16
and more. For clarification, the standards that would be imposed whether eight lots access a section of roadway or nine lots
access a piece of roadway would be the same. It could change, depending on the zoning that the property is in at the point of
going to ten.
Mr. Hyde: The other issue I guess I have is that in 1995, I believe it was quoted, there was an appeal for the Green Terra
Development. On that particular one, the City Engineer had approved development standards that would require the
improvement of 72nd Avenue West north of 164r' Street to I believe it was a 24-foot wide standard. That was appealed, and
as a result of that appeal a negotiated settlement (a directive that came from the hearing examiner) indicated what the level of
development could be from an economic and an environmental and practical standpoint. That was, to my understanding, the
level of development. The Green Terra improved the road and in the course of the appeal, there was an earlier appeal that
was indicated. One that took place in the Ballinger area early in the 90's where staff had made a determination on a
development that we did not require the road standards to the City code. Hence, it was appealed. In that case, we had not
made the standard because there had been numerous discussions with the neighbors and property owners in the area that
indicated that they did not want the road widened. So that we would not incur the additional cost and time constraints of an
appeal, we did not require the additional widening. Of course, at that time the Hearing Examiner found that the road did need
to be widened and that the City standards did need to be upheld. We passed requirements along to the developer.
Mr. Hyde: This is a separate case. It is somewhat like comparing apples to oranges or English to metric from a
measurement standpoint. In this case, we did not require the developers of the Johnson property to improve to the City
mandated standards because we had direction from the Hearing Examiner, and of course from Council then, that 72nd Avenue
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 18
had been widened to its widest practical width. The reason the whole street standard requirement was imposed on this
particular proposed development was the creation of an emergency vehicle turnaround and public urn around at the end of
72nd
Mr. McConnell: Karissa, do you have anything to add.
Ms. Kawamoto: A couple of things. As far as notification, just to clarify how the City goes about obtaining the list. As part
of the filing requirements for a subdivision or any project action, the applicant is responsible for providing that list. They
sign an affidavit acknowledging that to the best of their understanding they have provided the names and addresses of
property owners within 300 feet of their site. That is our standard mailing requirement. If someone comments and becomes
a party of record (either at a hearing as in this situation or in writing) they are added to that list. Both the SEPA and the
public hearing notices used that list. There was a new list generated by the applicant in August or September to hopefully
guarantee that he had the proper mailing list. We use a list provided by the applicant. Staff does not double-check the list to
guarantee its accuracy. That is put on the applicant to prove.
Ms. Kawamoto: Setback from top of bank and Meadowdale Landslide Hazard... I just want to make sure, Mr. Examiner,
you understand what those two items are breaking out. Because there is (in a typical steep slope hazard area) a defined top
and tow. Within that top and tow we require a surveyor to delineate those slopes that are steeper than 40 percent with a
minimum 20-foot rise. On this property, the whole site is essentially a steep slope critical area. The top of bank referred to
both on the site plan and in the Environmental Impact Statement are recommendations from that geotech who studied the site
and not necessarily the standard 25-foot critical area setback and buffer. That is not... On this, that 25-foot setback and
buffer is probably out in the street in this case. I do have to confirm with what Mr. Miller referred to as the Meadowdale
Landslide Hazard Area. There are two portions of the site that are identified on the landslide hazard map. They are within
the final Environmental Impact Statement. They are shown as having a two percent or nine percent hazard risk and it might
be better to ask Bill Chang if you have questions about that or where they are on the site because he did look at that as part of
his review in the final EIS.
Ms. Kawamoto: That should do it unless you have other questions of me.
Mr. McConnell: Mr. Chang, do you want to clarify that?
Mr. Chang: Yes. My name is Bill Chang, and I am stepping up to clarify a question. The question in point is the landslide
hazard map in regards to the proposed site. It is near the back of the document behind the
Ms. Kawamoto: It is a colored map. One more.
Mr. McConnell: I got it.
Mr. Chang: No, keep going. That is the geologic map.
Mr. McConnell: There. Here it is.
Mr. Chang: That is the one. On this map, the project area is roughly sketched in in red lines. It is the hashed area. As you
can see, there is a portion of that area that is covered by blue and a portion of the site that is covered by gray. Now, the blue
area has the designation (it is not very readable but it says 3B02)... The 3 refers to hazards from ground material of the
material that has not previously failed. Those are all areas that have not previously failed to our knowledge. But there is a
potential for sloughage. The gray area is similar coded (3A06). Three obviously is landslide hazard that have not previously
failed. The A refers to possible slumpage. The blue one has a B designation. The B designation is debris flows or debris
slides. Then there is the numbers, which is the probability of occurrence in a 25-year period. For example the gray area says
06 or 05. That is a five- percent probability in 25 years. That was a designation that the previous body assigned to this,
although it has never failed to their knowledge. The blue area has a 02, so that is a two- percent probability within 25 years.
Mr. Miller was correct in saying that none of these areas have previously failed or are documented to have failed. However,
they are in this designation of potential slough or potential slump areas. The amount of designation has the probabilities
designated on that. Does that clear up the point?
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 19
Mr. McConnell: Very much.
Mr. Chang: Okay. Thank you.
Mr. McConnell: Just for the record. You were speaking Mr. Chang. You prepared this document for the City? You were
hired by the City to do that?
Mr. Chang: That is correct.
Mr. McConnell: Okay. Anyone else?
Mr. Wojtanik: Drew Wojtanik with Meadowdale Community Council, again. Just to follow up on a couple of points that
were raised here. First of all, regarding notification. They have been spotty, at best, if I may go on record to say that
regarding the change of date of this particular meeting time. I received no notice of this. So, the list that Ms. Kawamoto is
speaking of, I am not sure who is on it. It seems that I get partial notifications. Sometimes... Like I received this but I
didn't receive the notice as to the time change. So, I am not sure why I am receiving part of this information and part of it I
am not. Ms. Kawamoto said that only those within 300 feet are required to be notified. However, my neighbor that lives at
the head of the street received this notification and she lives further from this development than me. I don't understand how
this list is generated, how it is maintained, or its integrity. It is all in question. I am going to put that to bed and say that I am
not on the list or at least I am not on it all the time.
Mr. Wojtanik: Regarding the landslide hazard areas, again, we are not geotechnical engineers, nor are we geologists or well
versed in the particular areas. What we do bring to you, though, is from our letter of submission of August 23, in which we
raised the issue as to why their performance topos differ from what is presented in the City of Edmonds Landslide Hazard
Map of Roger Lowe and Associates October 16, 1979. Why are they different. I understand that one is aerial verses land
views. However, I apologize for not understanding exactly what Mr. Chang was mentioning. Why is the landslide hazard
line not existing on this other one? He is not contesting that apparently there is an area that should still be designated, it is
just not depicted on the topo. I ask that that be looked into and clarified.
Mr. Wojtanik: I believe that is it. Yes. Thank you very much.
Mr. McConnell: Okay, there is one more person who signed up. Mr. Warner, do you have something to say?
Mr. Warner: My name is Charles Warner. I reside at 20021 — 88' Avenue West in Edmonds. I apologize. I left briefly,
but I had something I wanted to add. Staff mentioned at the beginning of this hearing that there were two criteria for meeting
the critical areas variance, and one of those was special circumstances. I would like the record to reflect that this special
circumstances goes on to say that you would have to show that there were special circumstances that deny all reasonable use
of the property. That is a term that is critical in evaluating these projects in critical areas because it has been argued by staff
that the allowance of a single-family home on an existing lot in the City of Edmonds is evidence of reasonable use. That has
been upheld by this Hearing Examiner and has been upheld on appeal by the City Council.
Mr. Warner: I was prepared to come to the September 10 hearing with a whole lot of stuff. Now, we have gotten very
involved in a lot of emotional testimony. We have got a lot of expert testimony talking about the geological aspects and the
wetland impacts and a lot of great professional testimony. I don't quarrel with any of it. In fact I have long been a proponent
of utilizing the scientific experts in allowing the reasonable development of property within the City of Edmonds. The
problem with this proposal has got nothing to do with the number of homes allowed and where they are located because we
have expert testimony saying that impacts are minimal. There is an environmental impact statement, geotechnical reports,
wetland analysis. The problem with this proposal is that it is illegal in the City of Edmonds. We know it is illegal because
this staff has argued that, and I am going to quote, "the location of a proposed lot does not allow home construction due to
buffer setback requirements for the critical area." This in spite of a competent geotechnical report. So, what we are doing in
this case is proposing a house... We are proposing a new lot in a critical area where a lot doesn't currently exist to allow
construction of a house. Even though there is competent geotechnical data to suggest a house could be there. I believe the
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 20
intent of the critical areas ordinance was to allow the location of a house on a steep slope if you could show that there were
no hazards. Staff is already against it. The Hearing Examiner has upheld and the City Council has upheld it on appeal.
Mr. Warner: Staff has argued that a variance proposed in order to locate a building pad as far from the top of a critical areas
slope as possible is a self-created hardship. Request of a variance to accommodate a new lot is a special privilege.
Reasonable use is evidenced by the existence of a single-family residence regardless of the lot size or the underlying zoning.
The applicant is creating a need for a variance by proposing a lot that is undevelopable without a critical areas variance. The
reasonable use request is a result of the proposed subdivision. Therefore, it is ineligible for a critical areas variance. In spite
of the geotechnical report, the ratio of the lot which the critical areas ordinance renders unbuildable is not reason for granting
a variance. Reasonable use exceptions specifically prohibit granting due to actions of an owner through subdivision. These
findings were upheld by the Hearing Examiner. Reconsideration arguments were rejected by the Hearing Examiner. The
City Council, on appeal, upheld the decision of the Hearing Examiner.
Mr. Warner: These arguments were all presented and upheld concurrent with the proposal before us. Concurrent. Staff
knows that this project is illegal. Staff has misled the proponents of this project into thinking that an environmental impact
statement mitigates the community development code. There is no provision in the Edmonds Community Development
Code that says you can substitute an environmental impact statement for meeting the criteria in the code. I think we can
show that you can develop that site and have minimal impacts to the environment and the neighborhood and everything else
and that is all fine and good. But I take exception to the process that is being used here. The degree of subjectivity that staff
is allowed to use in presenting a proposal as either a proponent or an opponent of it... All citizens are entitled to the equal
treatment under the laws of the City. Until the City changes the law, rulings must be consistent.
Mr. Warner: I have been told by staff that this is different because they are not asking for a reasonable use exception. They
are only asking for a critical areas variance. That argument has been rejected by the Hearing Examiner. It was not my intent
to pick apart this proposal, although any cursory review of this report finds so many flaws in this process that it is
unbelievable. This is one of the most corrupt documents I have ever seen come out of a planning department. The applicant
has not made any statements addressing the variance criteria for the several variances that are being requested. If you read
the report by staff you have staff responses. What is missing are declarations by the proponent. I have never ever seen where
staff can come in here and just declare for the applicant that all of these criteria are met. The variances proposed in this
project are non-specific. They are non-specific in that, okay, we are going to reduce the setback from the road, but we don't
know where that is going to be. The Edmonds Community Development Code has very specific criteria for a variance. The
variance must be specific. It must be shown to be the minimum necessary, and the finding has to be at the time that the
variance proposed. You can't just blanketly say that you are going to reduce it from the street, but we don't know how far.
Mr. Warner: I did want to point out that even though if you read the code, Title 32—Critical Areas Ordinance, there is
ambiguity whether a reasonable use exception is required for all critical areas variances. There is an exception in the code
when proposing a stream crossing. It is very specific that a reasonable use exception is required. Therefore, the reasonable
use criteria must be met. I also believe Title 32 says that any stream crossing can only comply with Title 32 if it is public
crossing and not a driveway, if it currently exists or if it is the only alternative. The stream crossing proposed here is not a
public crossing. It does not currently exist, and it is not the only alternative.
Mr. Warner: In regards to mitigation proposed, Title 32, "stream setbacks are from top of bank associated with the stream."
Where is the top of the bank associated with this stream? The stream crossing can be averted. You can continue the road off
of 761 Avenue West. "A stream crossing can only be allowed for a previously approved right of way or an existing exclusive
access." 20.15.B.080 Section 2—"averaging is only allowed when..." None of the criteria contained in that section have
been addressed here. No where have they shown that the averaging they are proposing is the least impact to the critical area.
When making the determination of reasonable use the City has always looked towards the definition contained in the
reasonable use exception. That is the burden they have put on property owners in this City. Until they change the law, I
suggest they don't change the methodology.
Mr. Warner: I am also going to point out, just for the record, the access road proposed for the three houses at the top of this
project appears to meet the definition of a street because the Johnson property is apparently proposing to access from that
same street. I would like to see the City Engineer address that in some manner and determine why we have four houses
accessing and it is not termed a street with street setbacks. Thank you.
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 21
Mr. McConnell: Okay, anyone else.
Mr. Reynolds: For the record, Dennis Reynolds. I think we should probably present some testimony since there have been
numerous issues raised on posting of the proper notices. I am not sure who performed that duty.
Ms. Johnson: d'Elaine Johnson, and I will tell the truth. The sign above and below was placed by the City. The City would
know who they sent out to place the sign. The sign was placed within the 300-foot location.
Mr. McConnell: For the record she was pointing to the east side of 72nd at the edge of her property.
Ms. Johnson: That is correct. It would be within the 300-foot requirement. Within two days (Sunday morning) somebody
from the development moved the sign to there. That would be the corner of 164th and 721 on the north side corner. I don't
have a calendar. Would people help me out on the date of that Sunday. That would be two Sundays ago. The sign had only
been out two days and then it was moved. It was the Sunday morning that it had been moved. The sign said that it is a crime
to move the City's sign. The police were called to talk to Phil Lehn. Phil Lehn then had various people meet him out in the
street, I believe. I believe that Wojtanik was one of them. I think Wells was one. I was not in the group. There was one
more person. The police advised them of what they had done. The police moved the sign back, making sure that everyone
understood that was where it was to be. Everyone had seen him place it back in the original location in the exact same hole
that the City had originally put it. Any more questions.
Mr. Reynolds: Explain to the examiner what the sign said.
Ms. Johnson: The sign gave the time of the hearing, the location, the description of the project. I brought the sign back
today. It is down at the front receiving counter for you to look at it. The date of today at 1:00 was stated verbally when we
were dismissed two weeks ago. All of us left here verbally knowing it was 1:00. There was an error on the sign. I reposted
the new time when it was sent to me as soon as the City mailed the correction to me. It has been out for about ten days. I did
that personally myself.
Mr. Reynolds: The only other matter I have in the way of evidence... I did do a public disclosure request to the City files.
There are affidavits on record of notices both for the SEPA scoping and the hearing including a list of where the notices were
sent. I would ask, Mr. Examiner, that since notice is an issue (I realize that the major if not the sole contention of notice is
disagreement with the 300-foot standard. Nonetheless, I would request that staff make part of the record the notice including
the affidavit and the mailing list.
Mr. McConnell: We will make that part of the record. That will become Exhibit N.
Mr. Reynolds: I have just a few brief closing arguments. I can do it in two minutes or less. It has been a long afternoon and
we do have an extensive brief. Bare with me. I took a number of notes during Mr. Warner's testimony and I need to back
up. Three closing points, Mr. Examiner. First, on the notice it appears that the major complaint is disagreement with the
ordinance standard of 300 feet. I ask that you acknowledge that. Number 2 on the variance being easily granted. As per Dr.
Anderson's testimony, I don't believe the process demonstrates any corruption and it obviously doesn't demonstrate that
there is a deal here. The record is quite clear that our clients only go to this point with extraordinary cost and expense of
scientific study, which frankly the public deserves and is entitled to and is required by the critical areas ordinance. If these
variances are approved there would be substantial additional special development expense so the slopes and values of the
critical area are protected. For any outside party to look at the history of this matter and suggest that this has been an easy
process, variances are easily and that public officials are somehow not doing their job, I think that is a stretch.
Mr. Reynolds: The only way this property can be developed is with an incredible degree of scientific study and expense and
special design standards. That is to be expected in a critical area. We don't object to it. We simply point it out.
Mr. Reynolds: Finally, on the landslide hazard map there was potential for sloughing, that is only superficial sloughing in
the top several feet of the soil. The FEIS states that is going to occur sometime no matter what happens. If this property is
never developed, that phenomenon will occur sometime in recorded history. Testimony is that the deep-seated soils are very
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 22
stable and there is no testimony that there is a potential of sloughing or failure of the deep-seated soils. Those are really the
soils of concern. Finally, the testimony shows that if the project is developed, the project of sloughing of the superficial soils
is actually probably lessened. If the project is built there is probably more stability provided for the near surface soils
because of the collection of ground water and its diversion off of the site.
Mr. Reynolds: In summary I thank you for the opportunity on behalf of the property developers and property owner. Where
we have asked the public to give expert opinion on topics that require an expert is certainly not to suggest that you have no
role here. It is our clients hope that this project is approved. He will be a good neighbor and hope that offer would be
reciprocated.
Mr. Reynolds: In terms of Mr. Warner's testimony, I have taken great pains to lay out a legal analysis in our brief on the
variance issue. We have addressed the reasonable use standard. I think that standard is in the ordinance that we tipped on
directly. I don't know all of the prior hearings. I don't know all of the prior rulings and decisions in the City. I will state
that as a member of the bar and a long time land use attorney I think that the interpretation of the ordinance as presented by
staff are supported from a legal analysis standpoint as faithful to the intent and purposes of the critical areas ordinance. I
actually agree with Mr. Warner in many respects when he states that it was never the intent of purpose of the critical areas
ordinance to preclude development in a critical area if you can show scientifically that the area is protected. If staff or the
staff or the examiner has ruled otherwise, frankly if staff or the examiner has ruled otherwise from a land development
standpoint and as a land use attorney, I regret those rulings. If there have been those ruling in the past, let's not repeat those
errors. I believe that the staff interpretation presented today and our legal support is faithful to the Growth Management Act
and the critical area ordinance.
Mr. McConnell: Okay, I will close the hearing now for all oral testimony. I will keep it open for Reed to allow his
materials to be submitted by Thursday, October 14.
Mr. Wojtanik: Mr. Examiner. Is the hearing now closed.
Mr. McConnell: It is unless you have something additional to say.
Mr. Wojtanik: I just want to address that issue about the sign.
Mr. McConnell: Go ahead.
Mr. Wojtanik: Mr. Wojtanik. I just want to address the issue that Mrs. Johnson brought up about posting the sign and the
communications I had with Ms. Kawamoto following that. It is correct I believe that is was posted approximately a week and
a half ago. That was posted only after prompting of local residents. They had no notification other than spotty mailings on
behalf of the City. There was one posted sign on North Meadowdale Beach Road which, I guess, addresses Lot 4 but had
nothing to do with Lots 1, 2 and 3. As Mrs. Johnson pointed out, where the sign was actually posted may have been with in
the 300 feet requirement. However, let's get beyond the black and white of the law and look at the spirit of the law. What is
the purpose of the posting? To notify those who may be impacted by the development. This was posted at the end of a dead
end street where residents would have no reason to go down there other than to walk their dogs or whatever the case may be.
It was posted in the bushes. On behalf of one of the residents that live along that street, they called the City and asked that
the sign be moved to the head of the street so that all the people who live on the street would be so notified of the hearing.
The City refused to do that or did not act upon that. One of the residents (and I won't name names) did move it to the head of
the street, meeting what I would expect to be the spirit of the posting (maybe not the black and white of the law). As a result
of that the local police were involved. They responded, came out and interviewed our reporting party and talked to some of
the residents along the street. The sign was moved back down. When the police officer spoke with me out in the street, what
he said to me (I believe it was either a Saturday or a Sunday a week and a half ago or two weeks ago now) was that he was
going to call the City on Monday and strongly recommend to the Planning Department that they post a second sign out at the
head of the street so that people could see what the hearing... That has never been done as far as I know. There has been no
posting. Whether that conversation took place or not, I don't know.
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 23
Mr. McConnell: Anything further. I guess not. I will close the public hearing for oral testimony. It will be open for
written testimony from Mr. Judson until October 14.
These are the official transcripts of the Hearing Examiner Hearing dated October 7, 1999. I testify that they are accurate and
complete.
Karin Noyes, Transcriber
Date
Verbatim Transcripts of Hearing Examiner Hearing
File Nos. Ap-99-185, S-98-108, V-98-109
Hearing Date: October 7, 1999
Hearing Examiner: Ron McConnell
Page 24