2001-12-20 Hearing Examiner MinutesCITY OF EDMONDS
TRANSCRIPTS OF HEARING EXAMINER HEARING
File Numbers P-01-78/PRD-01-79 and AP-01-165
December 20, 2001
Ron McConnell, the Hearing Examiner, explained that this hearing is a continuation of the request for formal plat and PRD
approval f and environmental determination or Talbot Commons. He briefly described the process that would be followed
for the remainder of the hearing. He said he anticipates that the hearing will be concluded today.
Gerald Steele, appellant, said that while he does not have any new issues to raise today, he would like to bring a few items to
the attention of the examiner. First, he noted that while the Hearing Examiner made the entire Southwest County Park plan
Exhibit K, he questioned whether or not he had been provided a full copy of the document. Mr. McConnell indicated that he
had not received a full copy, but would obtain one from the City. Mr. Steele particularly noted that Survey Result 8 of
Appendix A of the plan was the only comment they could find that was related to the trail connection to the proposed
development. It states "the only new trail I would consider would be one to consolidate access to the upper creek. Access to
the lower creek should be discouraged." Dr. Patrick Coleman, a member of the advisory committee for the Plan provided a
statement regarding this issue indicating that the only proposed development that was ever identified by the advisory
committee was the Thomas Belt Development that was being proposed in 1991-1992. This development is on Perrinville
Creek immediately south of the park. Dr. Coleman further pointed out that the extension of the Perrinville Creek Trail to a
housing development to the north must be an error. This statement provides further evidence that the note indicating a trail
connection to the proposed housing development does not justify a trail leaving the park in that direction. Mr. McConnell
entered this document into the record as Exhibit HH.
Lastly, Mr. Steele referred to Exhibit J, which was submitted by the City. This document is a map of all of the houses that
had accessed value of under $300,000. However, it does not mention the assessed value of the properties. After further
clarification, Mr. Steele said he came to the conclusion that assessed value of homes is really not a very valuable type of data
because when homes are sold, both the property and the building are included in the amount. He suggested that the data
provided is not necessarily related to the real value of the house.
Karen Biermanski, 8129 Frederick Place, Edmonds, said that she recently went through a house that was being sold on Talbot
Road and talked with a particular realtor who deals with view and waterfront properties only. He said that there is no way to
get a house with a view or waterfront property in Edmonds for under $600,000. She said that when they get their tax
assessment, the 50% value of the house and the assessed value of the land are two separate categories. She recalled that the
proposed value of the homes on the subject property is between $400,000 and $600,000, and this includes both the house and
the property together.
John Bissell recalled that Mr. Steele pointed out that the proposed project is not compatible to the surrounding development,
but there are surrounding uses that are in the RS-12 zone. There are also lots in the RS-20 zone that have been divided to the
RS-12 standards prior to the adoption of the RS-12 zone, and there are also many lots that comply with the RS-20 standards.
Mr. Steele suggested that they should not consider the adjacent RS-12 zoned area because it is not really relevant. But Mr.
Bissell pointed out that the projected is located on Cyrus Place, and the lots that are on the east side of Cyrus Place are zoned
RS-12. The properties on both sides of Cyrus Place are considered to be one neighborhood. Mr. Bissell also noted that there
are RS-12 lots on the boundary of the proposed site that come off of 1751 Street to the east and could be considered part of
the neighborhood, as well
Mr. Bissell pointed out that an RS-12 zone would allow a density of about 3 or 4 dwelling units per acre. The proposed
project would have about 2.1 dwelling units per acre. The RS-20 zone would allow slightly more than 2 units per acre.
Therefore, the proposal is in compliance with the density that was anticipated with the current RS-20 zone. He suggested that
any statement that the proposed project would not be compatible with the surrounding zones is erroneous because the density
would be equivalent to the RS-20 zone.
Mr. Bissell said another issue that was raised by Mr. Steele is the lot configuration. He referred to the attachments of a
person would see the buildings and development and not the lot lines. Therefore, to argue that a project is not compatible
because the lot lines go in unusual directions is nonsensical. They could reduce the lot areas to the size of the house and have
very regular shaped lots, but they would like to have their lot areas measure over 12,000 square feet. He suggested that the
shape of the lot has nothing to do with the compatibility of the development.
Next, Mr. Bissell referred to Mr. Steele's argument that the proposed development would not be in character with the
neighborhood. He suggested that the word "characteristic" is fairly subjective. For example, Mr. Steele has chosen specific
characteristics that he likes to support his argument, but the applicant sees the character of the neighborhood including a wide
variety of houses with general earth -tone characteristics. The proposed design leans towards a craftsman style design, which
also leans very heavily on the earth type of characteristics to be compatible with the basic design of the existing
neighborhood. They are also considering a characteristic of density that is compatible with the surrounding areas (about 2
units per acre). The houses will not be overwhelming large in size, and will be about average for this neighborhood. The
landscaping will also be designed to be compatible with the surrounding area.
Mr. Bissell said that Mr. Steele claims that an appraiser cannot differentiate between the value of a house and the value of a
lot. He suggested that if you consider the comparable value of vacant lots and houses in this area, it is possible to come up
with a value for a home. Unless an expert appraiser comes forth to testify on this point, Mr. Bissell suggested that his
testimony is just as valid as any other that has been provided thus far. Mr. Bissell also pointed out that the comment that was
raised earlier that the assessed value is usually about 50% of the real sales value is a gross generalization. When the assessor
reappraises an area, sometimes the assessed value is either high or low. The applicant no way of knowing if their assessed
value is high or low, but they are planning to build homes of 2,200 to 2,500 square that will be compatible with the
surrounding houses in value, structure and architectural detail. Therefore, they will warrant house values that are similar to
the rest of the neighborhood.
Mr. Bissell said the neighbors seem to be concerned that the houses that are built will compare to low-income homes, thus
driving down the value of their homes. That is not the applicant's intent. This is a wealthy neighborhood, and they want to
build the most expensive houses they can to make the most money they can.
Mr. Bissell said that Mr. Steele and another witness discussed that they had examined the entire neighborhood and found that
the majority of the homes were constructed as individual custom homes. Therefore, the appellant argues that if the proposed
project were developed as block of houses, they would be incompatible. This argument seems to say that any development
that includes more than one house would be incompatible. However, the City would not be able to support this argument. If
they can show that they are proposing houses that will be generally compatible, then the time at which they are constructed is
totally irrelevant.
Next, Mr. Bissell referred to the density issue. Mr. Steele alleges that the PRD is going to allow them to construct at a greater
density than would be allowed otherwise. Mr. Bissell advised that Mr. Steele referenced Section 20.35.050.0 which requires
that each project must demonstrate a clear benefit to the public. Item 4 of this section states that one possible idea for
providing a benefit to the public would be to have a lower density. While they are not proposing a lower density than what
would be allowed, they are not proposing a higher density either. Mr. Steele has indicated that without a PRD, the most lots
that would be allowed on the property is five. However, in the absence of a surveyor, Mr. Bissell suggested that these
calculations are irrelevant.
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Mr. Bissell referred to the map produced by Mr. Steele that proposes a density of five lots on the site, which is 1.8 dwelling
units per acre. He provided a copy of the case that went before the Growth Management Act (GMA) Hearings Board. Mr.
Steele objected to this case being entered into the record because the Growth Management Act Hearings Board is charged
with determining whether their development regulations and comprehensive plans comply with the GMA. This issue is a
project permit, and the GMA compliance is completely irrelevant to project permits. The only issue before them is what the
City regulations require. The GMA requirements are not applicable to this project. Mr. McConnell noted Mr. Steele's
objection and entered the document into the record as JJ (Lawrence Michael Investments, Chevron Inc. verses the Town of
Woodway).
Mr. McConnell noted that while he had nothing to do with the GMA hearing on this case, he was hired by the Town of
Woodway to be the moderator for the public hearings on this issue. He was not involved in the decision making process.
Mr. Bissell said that Mr. Steele is correct in his objection, only in that this case directs the Town of Woodway to change its
regulatory process to be compliant with GMA. However, he noted that cities and counties look at the cases that come out of
the GMA Hearings Board to try and make a determination as to what is legal and what is not. He said he is not suggesting
that the City alter their codes or policies. Nor is he saying that they should have a different decision because of this. But
what Mr. Steele is presenting is encouraging the City to do something that is not in compliance with their codes and
regulations that are in place. He is asking the City to reduce the density below what is allowed in the zone. Mr. Bissell
referred to Conclusion 22 on Page 33, which states that "future land use map designations for residential development that
permits four dwelling units per acre within the City limits is an appropriate urban density." The opponent is asking the City
to impose a density restriction on the project that is greater than the codes require. The proposed density is about 2.1 units
per acre. Mr. Steele's request is not appropriate, and the proposed development is in compliance with the code requirements.
Mr. Bissell recalled that the opponent provided testimony regarding light glare and noise issues, as well. His assumption is
that because the density would be increased, so would the light, noise and glare. He again, noted that the proposal would not
increase the density on the property. Even if the density were being increased, the issues involving light, glare and noise
would be regulated by the performance standards in Section 20.60 of the Edmonds Community Development Code (ECDC).
The City does not have a constant problem with complaints about light, noise and glare coming from the RS-6 or RM-1.5
zones because the performance standards function appropriately. Mr. Bissell suggested that the appellants are against the
project because they don't like the idea that development will occur on this site. Their complaints are not based on true
impacts, the code or real problems.
Next, Mr. Bissell referred to the issues related to parking that were brought up by the opponent. He pointed out that the code
requires two parking stalls per unit, and the proposal would include four parking stalls per unit. He referred to testimony
from an opponent that some properties in the area have as many as eleven parking stalls, but that does not mean that the
proposed project should have to exceed the code requirements. The City code requirements for parking seem to be working
well.
Mr. Bissell said that Mr. Steele alleges that the project does not comply with the section of the ECDC that requires that a
benefit be provided to the public. Mr. Bissell pointed out that Section 20.35.050.0 states that an applicant must meet one of
the four listed requirements or provide some other type of benefit to the public. Mr. Bissell advised that the proposal would
meet two of the four listed options: the creation of beneficial open space and the preservation of natural features. However,
Mr. Steele argues that the open space proposed on top of the hill does not benefit the public because it is too small. Mr.
Bissell said that the applicant concentrated on trying to keep the buildings low on the site so that views would not be blocked.
If the open space is located as proposed, the houses would be placed so as to protect the views of the properties to the east
and minimize their impact. They could put the houses higher on the hill in order to obtain a better view for the proposed
development and then place the open space near the street, but that would impact the views of the surrounding properties. He
concluded, therefore, that the open space, as proposed, provides a benefit to the public.
Secondly, Mr. Bissell explained that the proposal would also preserve some of the natural features on the site. He said Mr.
Steele has argued that the preservation of natural features would be required by ECDC 20.15.B—Critical Areas. While there
is no guarantee that they would get the exemption identified in this section, the applicant could hire a geotechnical engineer
and apply for an administrative conditional use permit. At that point, the City would have the project reviewed by a pier
group or they would enter into a three -party contract. The applicant would have to meet the conditions related to slope
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stability, soil type, moisture content, etc. While this has not been studied, there is no guarantee that the applicant would be
required to protect the ravine. Also, the code requires that this ravine be protected for slope safety. Because this is a native
growth protection area, the proposal would include a buffer that is substantially larger than the 25-foot requirement for the
stream area. The majority of testimony presented by witnesses of the opponent discussed the issue of protecting the ravine
for various kinds of wildlife. While the code does not require the protection of this wildlife, the applicant is also interested in
protecting the native species. That is why they are proposing a native growth protection area that is greater than what the
code requires. This is a public benefit.
Mr. Bissell referred to the issue of design requirements as found in ECDC 20.35.060.D.5. The following four criteria are
listed and the proposal is required to comply with at least one:
• Develop some sort of greenbelt, community building or recreation facility on the site. He suggested that this does
not mean to imply that all three of these must be provided in order to meet this requirement.
• Cluster the dwelling units around a common court, a playground or recreational area. Again, the word "or" implies
that there are options for meeting this requirement.
• Provide for common ownership of exterior spaces and community facilities.
• Provide usable lot areas of a minimum area with the balance of the site in common ownership.
Mr. Bissell pointed out that the project went through an Architectural Design Board (ADB) review and received a unanimous
recommendation for approval. It is the ADB's job to make a recommendation as to whether or not the project complies with
the design criteria. While Mr. Steele has alleged that the proposal does not meet any of these four criteria, Mr. Bissell said it
appears that the proposed project would comply with all. The ravine could be considered a greenbelt because it would
remain in its natural state. There is also a landscaped area proposed upslope from the houses. While the opponent does not
feel that this area is big enough, this is a landscaped area surrounding several houses that will act as a greenbelt. Also, the
site plan clusters eight dwelling units around a central area, with landscaping for the property owners to use. The opponent
has indicated that because this is not a paved area, it cannot be considered a court. However, Mr. Bissell suggested that there
is such a thing as a landscaped court. In addition, Mr. Bissell pointed out that the easements would provide exterior common
ownership spaces for the use of the community. Lastly, Mr. Bissell noted that while the opponents do not want small lot
sizes, the fourth criteria actually encourages this. It is true that the lot areas are relatively large in total square footage.
However, when encumbered by the easements to allow for the community use of the site, the usable lot areas will be slightly
larger than the house sizes with landscaped areas surrounding.
Mr. Bissell recalled that the opponent called an expert to speak regarding geotechnical issues. However, he pointed out that
the applicant hired a reputable, licensed geotechnical engineer who visited the site. He prepared and stamped the report
which complies with all of the requirements found in ECDC 20.15.B. It is now being disputed by the opponent without a
thorough review and without walking the slopes of the site (since they did not have permission to access the site) and without
digging test pits. He suggested that rather than following the opinion of someone who hasn't had the opportunity to conduct
a thorough review of the site, the City should accept the report that was provided by the applicant's geotechnical engineer.
Regarding wildlife protection issues, Mr. Bissell referred to the significant testimony presented. Because the applicant
concurs with these concerns, they are setting the project up as an NGPA. This testimony furthers the applicant's argument
that they are providing a public benefit by protecting this site. The code requires the protection of the stability of the slope
and from construction and misuse, but it does not require the applicant to protect the wildlife habitat on the slope. They are
choosing to protect the portion of the ravine that is within the ravine as a public benefit. The applicant would voluntarily
include specific information to the NGPA easement language to require this protection as recommended by the opponents
even though it is not required by the code.
Mr. Bissell advised that the City has limited tools for environmental protection. Section 20.153 and SEPA do not give the
City a whole lot of authority in this area. The City needs to use tools, such as the PRD, to encourage developers to do the
right thing. He noted that the applicant could submit a proposal for a standard plat that would have larger lot sizes.
However, they would have to contest the requirements for additional protection of the native growth protection area to make
the site work. They would also have to block more views. That is why the applicant chose to apply for a PRD. The PRD
allows an applicant to provide some type of community benefit while clustering the house in a manner that makes more sense
for the site.
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December 20, 2001 Page 4
Regarding the stormwater issue, Mr. Bissell noted previous testimony by Lynn Deramus, the appellant's geotechnical expert,
suggesting that the project should have to meet the requirements of the Department of Ecology Drainage Manual. She
testified that all cities were required to adopt the new manual by April of 2001. Mr. Bissell advised that said that he does
work in a number of cities and only knows of one that has adopted the new manual to date.
Mr. McConnell asked the City staff if the City has adopted the new manual yet. Mr. Bullock replied that one City Engineer
indicated that the City has adopted the manual, but he may be mistaken. He said he would like to speak with the City's
Hydraulics Engineer to find out if and when this manual was adopted. Mr. McConnell noted that if the application was
vested before the adoption of the new manual, then the project would not have to comply with the requirements of the new
manual. If the application was not vested prior to the adoption of the manual, it would have to comply with the new
requirements.
Mr. Steele said that because there is a SEPA requirement and a PRD requirement, the City is allowed to place additional
requirements on a project that go above those required by the code if justified.
Mr. Bissell advised that the preliminary drainage plan was designed to the standards identified by the Assistant City Engineer
who acts as the Hydraulics Engineer for the City. They have not received any adverse comments from him regarding this
project. Mr. Bissell advised that the Assistant City Engineer indicated that the City has not adopted the new manual as of
today. He said it is the applicant's intent to design to the appropriate standard that is identified by the City Engineer. Mr.
Steele is alleging that the impacts of the proposed project are greater than if they would have done a five -lot development,
and that could be true. However, the calculation of water detention and the calculation of water quality are based on
impervious surface requirements. Therefore, what is relevant is compliance with the code requirements that are in effect at
the time just as any development in the City would be required to do.
Mr. Bissell advised that the applicant proposes a 15-foot setback for Lot 8. He recalled that previous testimony indicated
how the proposal complies with the requirements for a variance. He recalled that Mr. Steele stated a couple of times that the
proposal does not comply with the special circumstance requirement because the applicant created the problem with the lot
line. Mr. Bissell suggested that the lot line is completely irrelevant. It looks funny because it skirts the top of the slope. The
topography is the relative issue, and Section 20.85 of the ECDC states that topography is considered a special circumstance.
The property has a number of topographical issues that would indicate an abundance of special circumstances on the site. He
emphasized that the applicant did not create the topography.
Mr. Bissell recalled that a few of the neighbors testified that they were concerned with driveway and headlight issues. They
stated that because the subject property is down in a hole, headlights would be pointing up as they exit the property. In
looking at the profile that was presented as one of the plan sheets (Page 3 of Attachment 4, Exhibit B), it clearly shows that
the property is a little higher than the surrounding area and the road exiting the project will actually be pointing down. He
noted that the road identified as Cyrus would not be regraded. Mr. Bissell, Mr. McConnell and Mr. Steele further discussed
the profile exhibit for clarification of the slope of the road. Mr. Steele said he would hope that the examiner would make it a
condition that this type of profile is used so that the lights of the cars will point down instead of up when they exit the project.
Mr. Bissell said that a concern was also expressed regarding the upper driveway leading to Lot 9 and to the existing house on
the hill. The applicant is proposing to realign the driveway as a safety measure, since the existing driveway does not meet the
current road standards for the City of Edmonds, the Department of Transportation, etc. The Engineering Department is
requiring that this driveway be straightened out to meet standards. This is an extra expense to the applicant, and the only
benefit is traffic safety.
Mr. Bissell said the opponent has requested that the construction hours applied to the project be stricter than what is normally
required by the City. He noted that the construction hours identified in the code apply to all development in the City. If
another property owner in this area decides to remodel his existing home, he would only be required to comply with the code
requirements related to construction hours. Mr. Bissell agreed that the surrounding neighborhood has special characteristics
that need to be addressed. However, these special characteristics should not have an impact on construction hours.
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Mr. Bissell said there was significant testimony provided regarding the trail idea placed in the NGPA. He advised that the
trail issue does not really matter to the applicant. If the City thinks it is a good idea to enhance the area, they would not
oppose it. The applicant agreed that the City plan does loosely call for the trail, but they can understand the opponent's point
that it does not. The applicant's only concern is that the trail is built in an environmentally sensitive way. As long as the trail
can be constructed in a way to meet the concerns brought up by the earlier testimony, they would support the construction of
the trail. Mr. Bissell suggested that Mr. Steele appears to be arguing a takings case on the applicant's behalf. If the applicant
is not arguing the taking, he questioned how someone who does not own the property can argue that there is a takings.
THE HEARING EXAMINER RECESSED THE MEETING FOR FIVE MINUTES.
Arvilla Ohlde, Parks and Recreation Director, advised that South County Park has an adopted plan. She specifically referred
to Appendix A —survey results related to the trail, which was referenced earlier in the meeting by Mr. Steele. She pointed
out that these comments all led to the adoption of the South County Park Comprehensive Plan, but the adopted plan is the
document that needs to be the bearing factor. Ms. Ohlde explained that her role as the Parks and Recreation Director for the
City of Edmonds is to respond to potential options for public trail access in natural open space areas. The potential option of
working with the current owner, the Talbot Partners, who is willing to write an easement to provide a public access trail is
compatible with the policies and criteria of the Comprehensive Park, Recreation and Open Space Plan. She stated that
specifically under the recommendation chapter of the plan, the policies and development criteria states "(1) where feasible,
public access into these areas should be encouraged, but environmentally sensitive areas protected from public intrusion."
Under this criteria, the City of Edmonds would work with the owner to establish a public trail along the Perrinville Creek
corridor. She advised that sensitivity to the type of trail, the level of development, the location, the intrusion or negative
effects to the natural creek and corridor, would all be defined in the agreement between the City and the Talbot Partners.
Hearing the public testimony from the environmental expert witnesses for the Talbot Group clearly supports the sensitivity of
the creek corridor, as does the policy criteria in the Comprehensive Plan.
Ms. Ohlde recalled that the representative from the Audubon Society stated that they were "amazed to see the habitat along
Perrinville Creek, as well as the diversity of the trees and the nesting." She suggested that the key to this statement is that he,
as a single, select individual, was allowed a one-time opportunity to view the natural habitat and corridor. She said that by
upholding the appeal, as the expert a chance for everyone, the greater public, to enjoy this same opportunity.
Ms. Ohlde advised that working to provide a public access trail that protects Perrinville Creek, wildlife and natural species is
the basic intent of the negotiated agreement between the City of Edmonds and the Talbot Partners. The statements regarding
degradation by the public, destruction of property, pillage and plunder are completely unfounded and over -exaggerated.
They are simply not true. She said the provision of natural public trails in environmentally sensitive areas is provided
throughout the City's parks and recreation system, and the benefits of the trail system as a natural open space site are seen at
the adjacent South County Park. Adverse impacts are not ramped, and statements of feared impact to the neighborhood are
simply not true.
Ms. Ohlde emphasized that now is the time for the City to work with one owner who is willing to create an agreement for a
public access trail where public corridors are preserved for future use. Securing public access and linking trails and corridors
historically proceeds in phases that eventually connect to make a continuous trail system. The appellant pointed out that the
development would create many lots with different individual owners. One particular citizen pointed out that while the creek
is considered public, the access is not easy. To reach the creek now, most individuals must seek permission from the
bordering owners. Ms. Ohlde emphasized that her request for securing access for a public trail and the willingness of Talbot
Partners to work with the City on the access easement would create a greater public benefit for future generations. Now is
the time to write a public access trail agreement with the current willing owner.
Mr. McConnell identified Ms. Ohlde's rebuttal statement as Exhibit KK.
Steve Bullock, City of Edmonds Planner, said he would address some of the SEPA concerns and some of the opposition that
has been raised by the appellants regarding the mitigation measures. He advised that the City is not proposing a trail project
that would result in the construction of a trail on this site immediately. The mitigation measure is about reserving the ability
for the City to do this at some point in the future. Just because they are reserving their right to do this, does not mean that it
will actually happen. He said that in his conversation with Ms. Ohlde, there has been a desire to have a trail from South
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County Park all the way to Talbot Road. There are a number of properties that the stream corridor runs through, and a
number of property owners would have to grant some type of easement to allow this to happen. Until the easements have
been obtained by the City, it is unlikely that the City will propose this type of project. If they do obtain the easements, the
City would also have to go through an entire project review and propose a project that is consistent with the critical areas
ordinance. They don't want to develop something that would degrade the ravine and stream environment. He emphasized
that the mitigation measure is entirely set up to reserve the City's ability to consider this option and potentially do it as a
consolidated management program.
Mr. Bullock advised that because of the steep slopes, the activity that takes place in the ravine is significantly more
detrimental to the slope than activity that would take place on a trail. Because there is no trail in the ravine now, any activity
that takes place in there would likely have a significant adverse impact. He referenced Attachment 6 of Exhibit A, which is
an excerpt from the Southwest County Park Master Plan. He read the following from Page 39: "The layout of potential new
trails on the drawing attempts to address the need to make connections within the existing trail system and find the balance
between access and restriction on site. The access is the heart of the management problem in open space lands. If not
enough access is allowed, the more adventurous visitors will leave the established trails and seek out special hidden places.
If too much access is allowed, then the character and ecology of the landscape is compromised and the balance is upset." Mr.
Bullock suggesting that this gets to the point of what the City is trying to accomplish with the proposed mitigation measure.
The stream corridor and ravine area is very sensitive, and they are concerned about people getting in this area on undeveloped
trails and causing detriment to the sensitive environment. If there is an opportunity in the future to develop a trail though this
area to resolve some of the compatibility issues while complying with the requirements of the sensitive areas ordinance, a
public benefit would be provided.
Mr. Bullock referenced concerns raised by the appellant regarding the City making an environmental determination. He said
the City feels that a development adjacent to the steep slope ravine and stream corridor definitely raises the possibility of a
significant adverse impact to that area. The City has an adopted document (Southwest County Park Master Plan) that
identifies a trail connecting through the ravine. He said that in the staff's interpretation of the Master Plan, the reference of
the Master Plan Map to a proposed housing development is not a reference to a specific housing development, as argued by
the appellant, but any housing development that is located along or adjacent to the steep slope ravine area that could
potentially gain access through a trail.
Next, Mr. Bullock said that when identifying a SEPA mitigation measure, any condition that the City applies to a project is
roughly proportional so that the cost of performing the mitigation compares to the potential impact caused by the
development. They are asking that the applicant provide an easement or dedication of property that gives the City an
opportunity to consider trail options in the future. Because this is almost a no cost condition, staff does not feel that they
have violated the requirement that the conditions be roughly proportional to the impact caused by the development. Staff
feels they have addressed all of the issues that need to be addressed to make a mitigation measure in the SEPA process.
Mr. Bullock said that there have been no public comments regarding the other portion of the mitigation measure which was
an easement or dedication that would reserve the City's right to be able to get into the steep slope/stream corridor area to do
restoration of the stream. Therefore, staff assumes that there is no opposition to that measure.
Mr. Bullock advised that the additional mitigation measures proposed by the appellant would be addressed in more detail as
he presents his rebuttal statements regarding the plat and PRD proposal. He suggested that if the code is not specific enough
and one or more of these mitigation measures might provide some more specificity, it may be appropriate to place an
additional condition on the PRD and plat application, but not as a change to the SEPA mitigation measures.
Mr. Bullock noted that the appellant stressed, on numerous occasions in their testimony, that the project is not compatible
with the surrounding neighborhoods. One of the things they pointed to as being the most incompatible was the fact that the
lot sizes are not consistent and that no long driveways would be provided to accommodate an extraordinary amount of
parking. The appellant did not present significant issue regarding the value or design of the proposed homes. Staff s position
is that the PRD ordinance was adopted and included into the City codes for this specific type of development. If reduced lot
sizes are not something that should be allowed in the City, the City should never have adopted a PRD ordinance or it should
be written significantly different so as not to allow lots that are smaller than the minimum allowed by the underlying zoning.
However, the PRD ordinance is written specifically to allow smaller lot sizes as long as specific criteria can be met.
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Mr. Bullock said the appellant also chose not to include any of the lots from the RS-12 zones to the east as being
incompatible. In Mr. Steele's rebuttal he indicated that there are a number of homes that exit off of Talbot Road and some off
of Cyrus Place (the same road that the proposed development would gain access from) are located in the RS-12 zone. Mr.
Bullock noted that there are also other cul-de-sac developments that access off of Talbot Road that are also zoned RS-12. He
concluded that all of these properties should be considered when reviewing the compatibility of the proposed project.
Mr. Bullock recalled that the appellant illustrated that a typical subdivision for this property would allow for five lots on the
site and concluded that a PRD or plat should not include more than five lots. Mr. Bullock said the PRD ordinance is very
specific as to how the density or unit count is calculated. The appellant's proposal for determining the unit count is
inconsistent with the method described in the code. The applicant and staff have used the ordinance criteria to determine the
proposed density. Mr. Bullock referred to a previous statement by the appellant that the proposed development equals eight
house per acre, but this is misleading because it calculates the area where the actual houses are located and does not take into
account the entire property.
Mr. Bullock referenced statements by the appellant that Talbot Park should be developed on a lot -by -lot basis instead of tract
development. However, this is not a criteria outlined in the PRD chapter. The appellant also stated that Exhibits I and J,
which address square footage of homes and value of structures in that area, are not compatible. The appellant speculates why
this exhibit shows homes that have footprints from 2,500 to 3,000 square feet when the applicant is proposing homes that are
2,200 to 2,500. They have also stated that the value of homes cannot be determined. Mr. Bullock explained that staff has
shown a range of house sizes because it is difficult to tell, from looking at the exterior of a house and its elevation, how many
square feet a home actually is. In regard to value, Mr. Bullock said that appraisers can easily determine the value of a
structure as opposed to the value of the land, and they do so on a common basis. The intent of the exhibit was to make some
compatibility judgments related to the value of the home that did not include the value of the land. Because land values vary
depending upon the location, staff felt that including the value of the land in these figures could skew the measure of
compatibility.
Mr. Bullock said the appellant referred to the ECDC 20.35.050.C, which is a section of the PRD chapter that identifies
criteria that has to be met. The appellant has suggested that a PRD application should be required to meet this criteria over
and above what a standard subdivision should provide. However, Section A of the PRD chapter is specific in identifying
which properties would qualify for a PRD. Section B identifies how the perimeter of a PRD should be dealt with, and
Section C states that a clear public benefit must be provided. It provides a list of what could be considered benefits.
However, this is not an exhaustive list. Mr. Bullock emphasized that the staff has reviewed the proposal and feels that it does
meet the criteria identified in Sections A, B and C of Chapter 20.35.050. Therefore, the property does qualify to be
developed as a PRD. The perimeter has been treated as described in Section B, and there are several clear public benefits as
provided for in Section C.
Next, Mr. Bullock said the appellant also stated that the critical areas ordinance (ECDC 20.15.B.110.C.2) requires that the
critical area be set aside as a critical area tract. This section does reference a critical area tract, but is related to geologically
hazardous areas. He noted that Section 160 of the same critical areas ordinance provides detailed direction on how to deal
with critical areas tracts and easements. It states that a critical areas tract or easement is acceptable. It discusses, in detail,
how and when a critical areas tract or easement is to be applied. The purpose of this reference in the geologically hazardous
areas section was to make sure that Section 160 was also applied.
Mr. Bullock noted that one condition that the appellant proposes as a SEPA mitigation measure refers to light and glare. This
condition would require that bulbs be shielded with fixtures to ensure that the light from the bulbs will not be visible from
other properties. Mr. Bullock pointed out that the City has a light and glare ordinance. However, he suggested that perhaps
this condition could provide some more specific direction to the applicant when choosing fixtures and he would not be
opposed to including this as a condition of the plat or PRD. However, it should not be applied to fixtures that are required in
the public right-of-way such as streetlights.
Mr. Bullock advised that staff feels the current code requirements for noise limitations is much more specific than what the
appellant has proposed. Staff recommends that this not be accepted as a mitigation measure. He suggested that the Hearing
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Examiner could refer to the current noise ordinance as a part of the record of decision, but that is not necessary in staff s
opinion.
Mr. Bullock referred to the 15 to 20-foot opaque screen that the appellant has requested the applicant be required to provide
along Cyrus Place. He noted that the landscape plan that has been proposed comes very close to providing this type of
screen. Also, as pointed out by the applicant, the Architectural Design Board reviewed the landscaping plan and found that it
was appropriate as proposed. City staff agrees.
THE HEARING EXAMINER RECESSED THE MEETING FOR FIVE MINUTES.
Mr. Steele requested that Don Norman respond to a comment that Ms. Ohlde made that Mr. Norman had viewed the habitat
along Perrinville Creek and found it amazing. Ms. Ohlde suggested that it would be wonderful to allow everyone to see this
habitat.
Mr. Norman said he was able to view a significant amount of the habitat from the road without the use of a trail. He said his
point is not so much that the habitat there needs to be accessed by a lot of people to inherently protect it. His concern is that
the value of the habitat for nesting and other sensitive activities that occur with wildlife would be disturbed by people. A trail
should not necessarily be placed in a location where sensitive activities such as nesting, roosting and foraging occur. There is
plenty of precedence in other parks where trails are closed during certain times of the year to prevent public access. He
suggested that the bottom of the creek bed is so unique and sensitive that a trail would not really be warranted.
Also, Mr. Norman said that in his submitted testimony (Exhibit Y) he mentioned that the access for the creek, as one of the
components of the NDNS, is not clear in the environmental determination and SEPA appeal. He said his written comments
indicate that there is no need for a road or access to the creek for restoration purposes that could not be accomplished by
simply just walking up the creek, etc. Mr. McConnell advised that the City is seeking an easement to allow them to do
restorative work on the creek, not a road to allow vehicular access. Mr. McConnell said he understands there are two issues
related to the easement. One is related to future trail access and the other is related to an easement that would allow City
access for restoration work. Mr. Norman suggested that the access for restoration is unclear in the environmental
determination and may entail putting in a road or other type of large-scale access that they feel is not necessary.
Mr. Steele referred to Mr. Bullock's comment that no one has opposed the second part of Condition 1, which is the City's
access for maintenance and restoration. He said the appellant is not concerned about granting the City the ability to access
the area, but there needs to be some tighter standards placed on the access so that the primary function of the access is to
protect the fish and wildlife habitat.
Mr. Steele said that both Mr. Bissell and Mr. Bullock raised a point regarding the surrounding uses in the RS-12 zones. He
noted that the RS-12 zone is clearly a different neighborhood adjacent to the RS-20 zone because the zoning is what really
creates the neighborhood. The City should not allow the intrusion of adjacent neighborhoods to influence the low -density
neighborhood. That does not mean that there should not be compatibility with other adjacent neighborhoods, but that is a
different kind of compatibility. Mr. Steele recalled that Mr. Bissell has argued that the PRD is compatible simply because it
has a density equal to the RS-20 neighborhood. However, the code requires that a development cannot exceed the density of
the existing neighborhood. It also has several conditions on consistency and compatibility which clearly reference features
other than density. Mr. Bissell suggested that the lot shape is irrelevant, but because different people will own each of the
lots, there will be different management and land use styles on each.
Mr. Steele referred to Mr. Bullock's previous comment that Section 20.15.B.160 of the critical areas ordinance allows both
tracts and easements to protect critical areas. Mr. Bullock also pointed out that 20.15.B.110.0 requires tracts for geological
areas, but stated that this was just a reference to Section 20.15.B.160. However, the interpretation of law is that the more
specific reference takes precedence over the more general reference. He suggested that 20.15.B.I IO.0 would be the most
specific reference. Therefore, the geologically hazardous area should be required to be placed in a tract. Mr. Steele pointed
out that there is a private covenant on this land that requires 12,000 square foot lot sizes. If the geologically hazard tract is
required, then a standard subdivision would allow no more than five lots on the subject property.
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Mr. Steele recalled various comments by Mr. Bissell regarding the design of the proposed houses and their compatibility with
the surrounding neighborhood. However, there are no other places in the surrounding low -density neighborhoods where
houses are placed close together. Viewing the proposed development would be like viewing an apartment house in a low -
density, single-family neighborhood, which is incompatible.
While Mr. Bissell has commented that the time of building the houses is irrelevant, Mr. Steele referred to his exhibit stating
that the houses in the neighborhood are a mix of ages, with no two houses or group of houses built at a single time. He
suggested that this issue could be addressed if the applicant were to sell the lots for individual development rather than
building all the houses at the same time.
Mr. Steele referenced Mr. Bissell's comments regarding the PRD Section 20.35.050.C, which requires a public benefit. Mr.
Bissell stated that the proposed development would neither increase nor decrease the density allowed on the site. He also
suggested that the five -lot subdivision proposed by the appellant does not identify the maximum number of lots that would be
allowed on the site with a standard subdivision. Mr. Steele said this exercise was his best attempt to show the most lots
possible with a standard subdivision without variances. He challenged Mr. Bissell to have his engineer provide a better
layout for a standard subdivision on the site that would allow more than five lots.
Mr. Steele said that Mr. Bissell brought forth a case from the City of Woodway that was identified as Exhibit JJ. He noted
that Page 25 of the final decision and order for this case points to a decision related to the challenge of a land use designation
in Federal Way's Comprehensive Plan. The Board agreed with Federal Way and determined that the land use designation
was an appropriate urban density because the environmentally sensitive feature that would be protected was a wetlands
system that was large in scope, high ranked in value and complex in structure and function. Mr. Steele suggested that
Perrinville Creek is this same type of wetland situation and the GMA does allow lower densities and so does the ECDC.
Mr. Steele recalled that Mr. Bissell suggested that the problems associated with light, noise and glare could be resolved by
the City's performance standards. However, the performance standards do not contemplate a PRD. Even though the project
density meets the RS-20 requirements, because all of the units will be placed in a small area the impacts will be greater than
any other form of development allowed in this zone. He suggested, therefore, that the City's performance standards do not
go far enough to protect the surrounding properties, and the issues raised by the appellant should be addressed.
Mr. Steele recalled that Mr. Bissell pointed out that the code requires that two parking spaces be provided for each unit and
the applicant provides four. However, Mr. Steele pointed out that the average number of parking spots for homes located
along Cyrus Place is eleven. This is the character of the neighborhood. When there are small dinner parties, everyone can
park on the site without impacting the rest of the neighborhood. The proposed development would require that visitors park
on the street, creating substantial impacts that are inconsistent with the character of the neighborhood. The appellant has
suggested that guest parking be an additional requirement because the code requirements for parking are not adequate to
address the needs of the PRD.
Mr. Steele said thatMr. Bissell discussed the benefits that would be provided to the public (Section 20.35.050.C) and stated
that it is the developer's position that there is no public benefit to the project outside of the two issues he addressed in this
section. The two benefits he noted were: the creation of beneficial open space and protecting natural features. Mr. Steele
said that if the Examiner finds that the public has not been protected sufficiently by the creation of beneficial open space or
the protection of natural features, the Examiner could conclude that the application does not meet the public benefit
requirement. There was also the suggestion that the applicant could apply for permission to build in the ravine. However, it
is highly unlikely, based on the public record that has been established, that this permission would be granted. He referred to
a report from the appellant's geologist, Lynn Deramus, which notes that two different soil types have been identified by the
applicant's geologist: one that is unstable and one that is stable. The entire ravine is made up of unstable soil. The unstable
soil also extends into the buffer. Ms. Deramus concluded that where there are unstable soils in the buffer area, there needs to
be a50-foot setback. However, a 25-foot setback could be allowed as a compromise.
Mr. Steele said the applicant has indicated that their geotechnical comments have been provided by an expert who produces a
lot of these reports. However, the report indicates that it is only a cursory look. There were no soil borings or cores taken.
There was no identification of the boundaries of the unstable and stable soil elements. It certainly appears that the developer
bought a study that would support the smallest setback possible. He said there is no justification in the report, according to
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the expert testimony the appellant provided, that would support the reduced setback. The applicant has indicated that he is
providing greater protection for natural features than what is required in the code. However, regardless of the type of
subdivision, the same type of protections would be required. Mr. Steele concluded that the applicant is proposing no greater
protections. In fact, because of the proposed trail, there would be substantially less protection.
Mr. Steele referred to Ms. Ohlde's comment that many times there are trails along creeks and sensitive habitat areas, but she
did not provide any evidence to support this statement. Mr. Steele said he suspects that sensible planners would not plan
trails in highly unstable creek ravines such as this. Trails near creeks are generally located on stable soil. Rather than
supporting Mr. Bissell's comment that the proposal protects the natural features of the site, the appellant argues that the
critical areas code protects these features. If the applicant were to apply for a subdivision, and somehow get around the
geological requirement that all of the lower area must be a tract and get permission to build inside the ravine, they might find
that the applicant is protecting natural features. However, this permission has not been granted. Therefore, the applicant is
only following the code requirements for a subdivision.
Regarding the creation of beneficial open space, Mr. Steele argued that the relatively small open space, that isn't even an
open space tract, has no public access. This is not truly the creation of significant open space. With any 20,000 square foot
lot there will be a significant amount of open space. The applicant has not shown that the proposed open space is any better
than what would be provided with a standard subdivision. If it is not better than a standard subdivision, it cannot be
considered a public benefit. The public benefit must be above and beyond that which is required to subdivide the land.
Mr. Steele said Mr. Bissell stated that the houses have been located where they will not impact the views of the surrounding
property owners. He also stated that the open space at the top of the hill protects these views. Mr. Steele argued that the
landforms are very complex in this area, which is characteristic of the entire neighborhood. Because the houses in an R-20
zone are so spread apart, they will not substantially block any views. A development that would place homes on the top of
the hill in 20,000 square foot lots would not block any views and would be compatible with the type of development that
already exists in the neighborhood.
Mr. Steele said that both Mr. Bissell and Mr. Bullock commented that the ADB has recommended approval of the
application. However, the Hearing Examiner should keep in mind that the ADB recommendation for approval was all done
at a meeting where there was no opportunity for public comment. Perhaps they would not have recommended approval if
they had heard the comments that are being brought forth by the public now.
Mr. Steele said that Mr. Bissell argued that the applicant has met all four of the design concepts presented in Section
20.35.060.D.5 of the ECDC. He said he was providing a greenbelt by the ravine. However, the greenbelt in the ravine is not
being provided by the PRD design. It is being provided by the critical areas ordinance. Mr. Bissell also noted the open space
that is being provided on the backside of several houses. Mr. Steele suggested that this is merely the backyard of the
individual properties and would not have the characteristic of a greenbelt.
Mr. Steele referred to Mr. Bissell's statement that the proposal meets the requirement for dwellings to be clustered around a
court. However, Mr. Steele noted that Tract 997 is 3,000 square feet in size and provides the turn around space for the road.
This space is smaller than any of the proposed building lots. He suggested that it is merely an enhanced cul-de-sac, and the
implication of buildings clustered around a court must be something more than a cul-de-sac. He suggested that this brings
forth the concept of an active use area that the houses face onto and not just a turn around.
Mr. Steele said the code requires common ownership of exterior spaces and community facilities. He suggested that the
word ownership has a different meaning than the word easement, which means right of use. The applicant is arguing that the
common ownership is being met with a common easement, but this cannot be considered a legal definition consistent with
the language of this code section. Ownership requires a common tract, which is not being proposed. Lastly, Mr. Steele
pointed to the criteria that lots be of minimum area with the balance of the site being under common ownership. Again, he
indicated that the easements would meet the common ownership requirement. However, an easement is a right of use and not
ownership. Ownership would require a tract.
Regarding stormwater, Mr. Steele said there were comments related to the work performed by the appellant's geotechnical
expert. Lynne Deramus was unable to attend the hearing, and he requested that the appellant be allowed to purchase a copy
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December 20, 2001 Page 11
of today's tape so that it can be expressed mailed to her tomorrow in order to obtain her comments regarding geotechnical
and stormwater issues. He asked that she have until two weeks from tomorrow to submit a written rebuttal on those
comments. Mr. McConnell said that is too much time. Mr. Steele reminded the Examiner of the problems surrounding the
Christmas and New Years holidays. Mr. McConnell noted that they need to meet the regulatory format provisions as far as
timing. After further discussion, Mr. McConnell granted the appellant a week to obtain a response from their geotechnical
expert, Lynne Deramus. Staff was directed to provide a tape of the hearing to Mr. Steele by tomorrow.
Mr. Bullock inquired regarding the appellant's exact concerns related to stormwater issues. Mr. Steele explained that the
appellant believes that under the SEPA appeal, the new stormwater manual should be used even if the City has not formally
implemented it. Mr. Bissell has indicated that he received a response from the City that they have not formally implemented
this document, and the appellant would like an answer by tomorrow as to whether or not the City has formally implemented
the document. Mr. Bullock suggested that the City's Assistant Engineer be asked to provide a memorandum regarding this
issue instead of allowing additional time for geotechnical comments. Mr. McConnell agreed that, at this time, it does not
appear that the City has adopted the new document. Therefore, the comments provided previously by Ms. Deramus will
stand, and it is unlikely that anything has changed that would warrant further response from her. However, he granted the
appellant up to a week to provide this response.
Mr. Steele recalled that Mr. Bissell commented that he expected the stormwater impacts of his subdivision to be greater than
that of a five -lot development. He indicated that he would be required to comply with the City code. However, the appellant
feels that this issue should be addressed further by their geotechnical expert as part of the SEPA appeal.
Mr. Steele referred to the proposal for a 15-foot front setback for Lot 8, which the appellant has opposed. Mr. Bissell noted
the appellant's position that the proposal would not comply with the variance requirement because the applicant was a party
to the creation of the lot line between Lots A and B, which led to the tightness on the site and subsequent need for a variance
to the setback. Mr. Steele suggested that the applicant has not made a case for this variance. They have indicated that they
can accommodate the full setback by adjusting three lots a little bit and then moving one of the houses back into the hillside.
While it is nice to be able to build on flat land, Mr. Steele pointed out that the slope on the property is not significant.
Therefore, the slope does not present a special circumstance that would prevent the lots from being developed.
Mr. Steele said the driveway profile that is shown on Page 4, of Attachment 4, Exhibit B is good. However, he noted that
from the high point of the driveways down to Cyrus Place there is a nine -foot drop in elevation. He suggested that with that
amount of drop it would be possible to design a driveway that always pointed down so that the lights do not flash onto the
properties on the other side of Cyrus Place. The proposed driveway design indicates about 150 feet where there is a drop in
elevation of about eight feet. For the remaining distance of about 30 feet, it rises two feet. He suggested that cars going
through that with their lights on would flash the people across the street. This could be resolved by requiring that the
driveway grade be redesigned so that the car lights always point down. .
Mr. Steele recalled Mr. Bissell's previous comment that existing properties could be remodeled using the construction hours
identified in the code. However, Mr. Steele suggested that development in the area creates a SEPA impact that is much
beyond what the code is intended to deal with as a remodel or construction of a single house. The appellants continue to ask,
as a SEPA mitigation, for a constraint on construction hours and music being played so that it can be heard off site.
Mr. Steele said that subsequent owners who purchased the houses and have ownership of the properties where the easement
is applicable can bring claims forward under Dolan. While the City has indicated that the easement is free to the City, they
should recognize that there will be substantial impacts on the unstable ravine and future owners could bring claims forward
under Dolan.
Mr. Steele recalled that Ms. Ohlde pointed to Appendix A of the Southwest County Master Plan. She noted that two
comments (Number 1 and 33) were contradictory to what the appellant said. Mr. Steele noted that they only pointed out one
comment that seemed to be most applicable. However, they found several other comments that were going in the same
direction. Mr. Steele pointed out that the two comments noted by Ms. Ohlde do not really stand for the proposition she said
they stand for. Number 1 says they should provide a trail to the creek, not along the creek as is being proposed. Also, that
same comment refers to the southern portion of the site where there was some interest in having a trail coming into the park
Hearing Examiner Transcripts
File Numbers P-01 -78/PRD-01 -79 and AP-01-165
December 20, 2001 Page 12
(Exhibit HH). Mr. Steele advised that Ms. Ohlde interpreted Number 33 as asking for a few trails along the stream that is
located inside of the park. However, this comment does not justify asking for a trail along the stream outside of the park.
Mr. Steele noted that Mr. Bullock advised that the City is not proposing a trail at this time. Therefore, the environmental
impacts of this condition should not be considered. However, the appellant feels this condition is clearly intended to be a
step towards the implementation of a trail. Therefore, SEPA requires that the environmental impacts be addressed at the
earliest time. If the City is seeking to implement a trail in this location, they should consider the environmental impacts now.
Except for the comments made by the appellant, there was nothing in the record showing the environmental impacts of the
trail. Therefore, he concluded that the applicant has not provided adequate information in the environmental documents to
address the impact of this trail, and this should be done now before the trail is further implemented.
Mr. Steele said that Mr. Bullock commented that any activity in the ravine, without a trail, would create a significant adverse
impact. However, when reading the Southwest County Park Plan, which has been provided as part of the record, he noted
that the City has trails in this park, but there is an awful lot of off -trail activity as well. He noted that the property being
considered at this time is located on private land now. If the City puts an easement in for a trail, that portion would become
public use. Since there would be no fences on the sides of the trail, they would see the same disturbing activity that takes
place in the park happening on this site as well. He emphasized that this is a highly unstable area.
Mr. Steele recalled that Mr. Bullock indicated that the appellant has not voiced any negative impact or nexus. However, he
said the impact was obvious because development adjacent to a ravine would create impacts. Mr. Bullock's solution to this
development is to provide a critical areas buffer and then encourage the public to access the area. The appellant's solution is
to put up signs saying that the area cannot be accessed. Placing a public trail through this unstable area does not address the
impacts. He said the impacts are not obvious. If you want to protect the ravine from the adjacent development, the correct
procedure would be to provide the proper, recorded protected critical area tract and then provide enforcement. It is not to
provide a trail and then encourage people to play down there.
Mr. Steele recalled Mr. Bullock's suggested that the statement regarding the trail connection to a proposed housing
development in the Southwest County Park Plan was not really referencing a specific housing development. Mr. Steele
suggested that there is no way any reasonable person would interpret that language as such.
Mr. Steele said staff suggested that if the appellant would like to make a request for additional mitigation measures, these
should be applied to the plat approval, and not to SEPA. However, Mr. Steele pointed out that the function of SEPA is to
identify adverse impacts. If a probable adverse significant impact is identified, then either an EIS or additional mitigation to
address the significant impacts would be required.
Next, Mr. Steele referred to Mr. Bullock's comment that while the appellants find the project incompatible, they did not talk
about the design or value of the homes. Mr. Steele said that he agrees with staff that the PRD was adopted in City codes to
allow smaller lots. But only if the project, as a whole, is compatible. There are a lot of ways to create small lots. For
example, a bunch of 20,000 square foot rectangular lots could be laid out. Then a 5,000 square foot building area could be
placed in that rectangle, with the remaining 15,000 square feet going into a common tract. This would be a way of using
smaller lots with common tracts that would be consistent with the neighborhood and the PRD ordinance. The appellants are
not directly opposing the project just because of the smaller lots. They are opposing the project because it is not compatible
with the rest of the neighborhood.
Mr. Steele said it was suggested that the drawing of a five -lot standard subdivision, even if 100 percent accurate in showing
the maximum number of lots that can be created by a standard subdivision, is irrelevant. It was stated that in order to make it
relevant the code would have to be changed. Mr. Steele suggested that this statement is not true because the code requires
compatibility. The PRD must be compatible with the rest of the neighborhood that was developed under the standard zoning.
When going beyond the standard subdivision by creating more lots than allowed in a standard subdivision, the issue of
compatibility must be addressed. Mr. Steele said it was suggested that it is misleading for the appellants to note that
approximately eight houses are being proposed on approximately one acre of property. However, that is an aspect of
neighborhood compatibility.
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Mr. Steele recalled that there was some argument as to why houses of 2,500 to 3,000 square feet (Exhibit II) were shown
when all of the proposed houses would be less than 2,500 square feet. He again stated that this information was not very
useful. The staff and applicant also provided further justification of the assessed value of buildings verses lots. He suggested
that they should consider the selling price of the lots being created compared to the selling price of other lots in the
neighborhood when considering compatibility.
Mr. Steele said staff indicated that they were not opposed to having a more clear light fixture condition for the lights on
private property, supporting the one the appellant has requested. Therefore, he hoped the Examiner would provide for this
condition. He agreed that this condition is not intended to apply to streetlights or other lights on public property.
Mr. Steele said the appellants have requested a 15 to 20-foot opaque screen on Cyrus Place. The suggestion was that the
plans proposed are similar to this type of screen. The appellants feel this is a significant enough issue that the proposal that
was approved by the ADB is not sufficient. The appellants ask that more conditions be placed on this that would say that
within a reasonable number of years the plantings would be sufficiently dense to provide an opaque screen on Cyrus Place.
They also request that the height of the plantings be limited to 20 or 25 feet through the choice of plants. Anything over that
height would block the view of the houses above.
Mr. McConnell said he would keep the hearing open administratively to allow for the comments from the appellant's
geotechnical expert. He noted that if she were to Fed Ex her comments by December 28, it would get to the City on
December 31. Therefore, Mr. McConnell advised that the hearing would be opened administratively until December 31,
2001. He said it would also be interesting to receive comment from the City Engineering Department regarding the adoption
of the stormwater standards. Mr. Steele and Mr. Bullock agreed.
Mr. Bissell said that a lot of what Mr. Steele said was simply a restatement of what was said before, and no further rebuttal is
necessary. Mr. Bissell said that while staff could agree with the condition for light and glare protection, the applicant feels
that if the code is sufficient for everyone else in the City, it should be sufficient for this site, too.
Mr. Bissell said Mr. Steele argues that zone districts separate neighborhoods. However, as he thinks of neighborhoods he is
aware of in the City, he finds that Seaview neighborhood has both RS-8 and RS-12 zones. The area known as the "Bowl of
Edmonds" has BN, BC, RM-1.5, RM-2.4, RM-3, RS-6, RS-8 and RS-12. Therefore, there is nothing to support the idea that
neighborhoods are defined by their zone districts. Between the comments provided by both the staff and himself, Mr. Bissell
said it clearly show that the RS-12 areas are part of this neighborhood.
Mr. Bissell noted the appellant's argument that there is a big difference between tracts and easements, saying essentially, that
the areas the applicant is showing as landscaping or community areas are "part of people's backyards." Being that the PRD
is binding, the easements are restricted to the uses called out on the PRD—purely for community space and landscaping.
This is different than easements in a standard subdivision.
Mr. Bissell clarified his argument regarding the public benefit issue. There is a steep slope on the site, and the applicant is
asking that the buffer be reduced to the minimum allowed. However, they are not asking that the process allow them to
intrude into the steep slope area. He pointed out that this is a public benefit because the code protections for a steep slope are
different than the code protections for a wildlife protection area. The appellants have argued throughout the hearings that
they want this tract protected as a wildlife protection area. The applicant concurs, and intends to have the easements do this.
However, the code would not require that the steep slope be protected. The applicant is proposing to do substantially more
protection than required by code, including the conditions suggested by the appellant's biologist related to the protection of
the bird species identified.
Mr. Bissell said the appellant referred to the slope as a very unstable, or incredibly unstable slope. However, there is no
information in the record that clearly illustrates this property as having that kind of a slope. The applicant has provided
information on the record from their geotechnical engineer supporting the reduction of the buffer. They also have statements
from the appellant's witness, Ms. Deramus, pointing out that the type of material has the potential of being unstable. That is
different than saying that the slope is very unstable.
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Mr. Bissell said that he objects to another continuation of the hearing. It sounds like the Hearing Examiner is agreeing to the
continuance, but would not delay the issuance date of the Hearing Examiner Report. Mr. McConnell said that is what he is
hoping to do. Mr. McConnell said he is hoping to have the report out by January 7, 2002, if possible. Mr. Bissell said that
his concern is that the report not be delayed due to the issuance of the continuation requested by the appellants. In addition to
his issues related to the time delay, Mr. Bissell said he objects to the continuance because they are asking someone to submit
additional information that he will not be allowed an opportunity to rebut. When Mr. McConnell inquired if Mr. Bissell
would like the opportunity to rebut, Mr. Bissell indicated that he did not. Mr. Bissell suggested that this issue is a "dead
horse" and there is no purpose in pursuing further information. He noted that the applicant would comply with the code. The
City Hydraulics Engineer has considered the downstream issues, and the applicant's report also addresses the impacts of
downstream issues. Whether they were to design to the new or old standards, there is no evidence to suggest that the
conditions would be altered in any way. Therefore, there is no need for the additional information.
Mr. McConnell said that so far, the appellant has not shown that the environment would be impacted one way or another
depending upon which code document is used. He said he has not seen any substantive information that has been presented
showing that one document would provide significantly more protection than another.
Mr. Bissell said that in the previous arguments the appellant argued that the proposal would not meet the special
circumstance criteria because of where the lot is located now. This statement was later changed to say that they don't meet
the minimum variance requirements because they don't have to move the houses very much. The applicant's response is that
this is actually a detriment. Later, the appellant made the applicant's detriment point for them when he talked about trees.
The appellant would like a covenant or condition placed on the property making sure that the trees on the subject property
never get higher than 25 feet to protect from view blockage. He noted that there are very few native growth trees that grow to
less than 40 feet. Mr. Bissell said the subdivision was designed to keep the houses on the site low to prevent view blockage.
There are some people who reside off of 175' who look over this property. They are not present to testify because the
project protects their views. Most of testimony given has come from people whose views will not be blocked no matter
where the houses are located. He said he assumes that if the project were to block some of these people's views, they would
testify about the problem. He emphasized that the property has been designed to protect the views of the surrounding
properties. He agreed that they could push the houses around with little impact. However, they would end up blocking the
views of people uphill. That would be a detriment to the public, and the intent is to protect property values. He concluded
that the project can meet the variance criteria because they are trying to design a project that protects the neighborhood
values. Obviously, because of the statements made by the appellant, they are concerned with view blockage, as well.
Mr. Bullock said it seems as if some of the opposition to the mitigation measure to provide future access for the City to
potentially put in a trail is because there are not any specific designs for the trial to identify the impacts. It is the City's
position that this mitigation measure does not say that a trail will be put in. It gives the City the future right and ability to do
that, but it would be a separate project requiring its own SEPA review and permit review. All of the standards and extra
assurances the appellants want to place as conditions would be placed on a permit application for the trail project. All of the
potential impacts would be addressed or the project would be eliminated. He concluded that it is not appropriate to deal with
these impacts at this time.
Mr. Bullock said that one of the reasons the trail was brought up as a possibility is that the geotechnical report shows the fact
that there is an old logging road running along the side of the steep slope area. Because of the existing trail bed this access
would not require any significant encroachment or grading. Also, because the Southwest County Park Master Plan identifies
a trail connection to the park in this area, staff felt this would be an opportunity to introduce a trail that would be very low
impact. The trail grade is already established, but this would still be a separate project, requiring its own review process.
This only reserves the right to consider this trail in the future.
Mr. Bullock referred to the issue of tracts verses easements in critical areas. He said the section of the code Mr. Steele
referred to when saying that a tract is required is ECDC 20.15B.110.C.2. This section specifically deals with landslide
hazard areas, which are defined in the code as slopes that are less than 40 percent in inclination and greater than what is
defined to be an erosion protection area. The steep slope ravine on this property is covered by Section D of the geologically
hazardous areas section, which is the steep slope hazard area. This relates to all sloped areas that have an inclination of 40
percent or greater, but does not include landslide hazard areas. He noted that in reading the steep slope hazard section, there
is no specific stipulation that says a critical areas tract must be created. It falls upon the City to require this through Section
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160, the critical areas tracts and easement section of the Critical Areas Ordinance. Consistent with Mr. Steele's position that
by rule of law the City must deal with the most specific as opposed to the most general, Mr. Bullock pointed out that Section
110 deals with the steep slope areas. Steep slope areas are areas the City is concerned with and, ultimately, they want to put
in tracts or easements. The tracts or easements are specifically dealt with in Section 160 of the critical areas ordinance. The
staff uses this section to determine if critical areas tracts or easements are required and how they should be done. Mr.
Bullock concluded that the specific section Mr. Steele referenced does not even apply to the steep slope on the subject
property.
Mr. McConnell continued the public hearing administratively until the close of business on December 31, 2001.
I TESTIFY THAT THESE MINUTES ARE COMPLETE AND ACCURATE TO THE BEST OF MY UNDERSTANDING
OF THE PROCEEDINGS.
Karin Noyes, Transcriber
Date
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File Numbers P-01 -78/PRD-01 -79 and AP-01-165
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