2002-06-06 Hearing Examiner MinutesCITY OF EDMONDS
VERBATIM TRANSCRIPTS OF HEARING EXAMINER HEARING
File Numbers P-02-1I, PRD-02-12 and AP-02-94
June 6, 2002
Mr. McConnell: Okay. It looks like we are at the main event. This one is Mr. Bullock's.
Mr. Bullock: Thank you, Mr. Examiner.
Mr. McConnell: Yeah, go ahead. This is for the Talbot Estates application, and the SEPA appeal. One thing I might
mention on this before he gets started. We have got... I have got a staff report right now, with 55 exhibits. Actually, I have
two staff reports —one for the SEPA appeal and one for the application, itself. When I prepare my reports this time, I will
actually have two reports that will be going out in the same packet. One will be on the SEPA issue, and that has a different
review and appeal process than the application, itself. I will handle them separately, although we will conduct the hearings
jointly, concurrently. I will have to sort out the issues between the two. Technically, with respect to the SEPA appeal, I can
only consider the issues that were raised in the appeal letter. On the application, itself, it's a broader thing. So I will have to
sort that out when I sit down and prepare my reports. But today we will just get all of the information that we can get into the
record, and I will do my best to do the sorting out once I get to my office. So, with those preliminary remarks, I will turn it
over to Mr. Bullock, who will be doing the staff report.
Mr. Bullock: Thank you, Mr. Examiner. Again, My name is Steve Bullock. I am representing the City on this matter. I am
a senior planner here. As the Examiner was just stating, I want to give a little bit more background about how we are going
to do this and why the reports are written up the way they are written up and why the attachments packet is set up the way it
is set up. The Examiner is going to be making a decision on the SEPA appeal. By our code, that appeal is specifically
appealable only to Superior Court. His decision is the final action in the City. Whatever decision the Hearing Examiner
makes on the SEPA appeal is the final decision that will happen within the City. If there is any desire on the part of any party
to appeal his decision on that, it will have to be to Superior Court. There is no further appeal of that action in the City. That
is one reason why there is a separate staff report written for the appeal issue as opposed to the plat and the PRD. Now, the
formal plat and the PRD is another matter. That is something that the Hearing Examiner does make a final decision on here
in the City, but or code for a plat and a PRD does provide for an appeal within the City. Again, if any part wishes to appeal a
decision of the Hearing Examiner on this proposed plat or the PRD, they will have the opportunity to appeal that to the City
Council. Again, that is the reason for a separate report.
Mr. Bullock: Because it is oftentimes awkward to determine when somebody submits a letter if this letter is being submitted
in regards to the SEPA appeal or in regards to the plat. I know it is difficult for people to maybe sort some of their comments
out —whether they are comments regarding issues they have with the subdivision or if they are issues they have with the
SEPA determination. We have chosen just to make one attachment packet that includes everything that we have submitted
up until this point and everything that we will be receiving during this meeting, as well. That packet will be the basis for the
record that either the plat and the subdivision will be appealed on to the City Council or the record that would be established
for any appeal on to Superior Court. That being said, I would like to enter the staff report for the plat and the PRD into the
record as Exhibit A.
Mr. McConnell: And the staff report has like 55 attachments, I believe.
Mr. Bullock: Yes, it does. No, that is included as Exhibit C.
Mr. McConnell: Oh, that's your Exhibit C. I see how you have done that. Okay.
Mr. Bullock: So, Exhibit B will be the staff report for the SEPA appeal. Exhibit C will be the attachments for all of those
things. That's all the stuff that came in prior to us sending our preliminary staff report out. Since we sent that out, we have
received a memorandum from a Mr. Jonathan Hatch, received June 4 that will be Exhibit D. We have also received a letter
from that will be Exhibit E. We received a letter from that will be Exhibit
F. We have received a letter from Wetland Resources, Inc. that will be Exhibit G. We received a survey map of a wetland
that will be Exhibit H. We received a photo exhibit with key that will be Exhibit I. We received a letter from Mr. Sullivan
that will be Exhibit J. We have received a letter from the applicant's traffic engineer that will be Exhibit K. We have
received a diagram of a stream bank, and that will be Exhibit L. I have copies of those last two exhibits for you, Mr. Hatch. I
think the other applicants and the Examiner already have those.
Mr. Bullock: If from this point on, you want to submit additional items into the record as exhibits, when you have an
opportunity to comment you can bring those up. When you are ready to make your comments, give them to me. I will do my
little notation and give copies of them on to the Examiner and you can make your testimony or other presentation. I think
that gets me caught up on all of the items in the record up until this point.
Mr. Bullock: I am going to start with the staff report for the SEPA appeal. Again, just by way of explanation, I know a lot
of people this may have been the first time you have ever heard of SEPA, which is an abbreviation for the State
Environmental Policy Act. You may have heard some different elements of that and maybe not have ever understood
exactly how it works and how the City and applicants are required to apply it. But when a project reaches a certain size, they
are required to go through the SEPA process, as we call it. For a project of this size —a seven -lot formal plot and PRD—it is
something that exceeds the SEPA thresholds and is required to go through the SEPA process. That is initiated by the
applicant submitting with their application and environmental checklist. This is a 20 some page document where the
applicant is required to address all forms of the environment on their property. That includes the natural environment,
vegetation, streams, slopes, things like that, as well as other cultural environmental issues being aesthetics, housing,
pollution, a number of things like that. In this case, the applicant did submit their environmental checklist. The City
reviewed it and at that point is required to issue an environmental determination.
Mr. Bullock: The City, in issuing an environmental determination, has basically three determinations that they can make.
They can make a determination of significance, otherwise known as a DS. That would be that the City feels there is a
determination of significance for the subject project, and that would initiate on the part of the applicant the requirement to
produce an environmental impact statement. The other determination that is most commonly used, probably, is what is called
a DNS —a determination of non -significance. At that point the applicant would have completed their responsibilities under
the SEPA, as would have the City. The third option is what is known as an MDNS—a mitigated determination of non -
significance, which case the City would issue a determination of non -significance with some conditions attached to it that
would ensure that there would be no adverse environmental impacts. Now, what that whole determination is based on is that
the City has to make a finding that there is likely to be a significant and adverse impact. It is not to say that there will be no
environmental impact. I think we would all agree that when development happens, there is some kind of environmental
impact on a neighborhood, a community, whatever it is. But for the City to make a finding of an MDNS or a DS, we have to
make the finding that there is going to be a significant and adverse impact. Both of those things have to be part of that. The
State law, as it directs us through the SEPA process, also says that we have to look at our current code that are in place. If
our current codes deal with those potential significant and adverse impacts, then we do not have to make any other threshold
determination other than a DNS in that we are going to rely on our City code to resolve whatever significant adverse impacts
there might be.
Mr. Bullock: When the City was reviewing this project, we looked at the fact that, yeah, there is a possibility that something
significant and bad could happen to this stream or to this slope environment. At the same time, the City has a critical areas
ordinance in place that limits how close you can build to streams. It limits how close you can build to steep slopes, so the
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 2
City felt we had codes in place that protected the City and the neighborhood from those potential significant adverse impacts.
That being the case, we deferred making any SEPA conditions to our code review of the project.
Mr. Bullock: After final review of the SEPA checklist and the project, staff s determination is that the only significant
adverse impact that the codes do not specifically address was potential traffic concerns. The City's traffic engineer reviewed
the proposal, reviewed what they are actually proposing to do with grading. They reviewed a traffic report submitted by the
applicant. Ultimately, they required the applicant to contribute their share of correcting some of the traffic problems that are
in that portion of the City. There share, in this case, was $1,200. The applicant has actually offered that up as part of their
traffic report, and the City Engineer and the responsible official agreed with that in issuing an MDNS—a mitigated
determination of non -significance —for the project with the condition that the applicant contribute $1,200 into the City's
traffic mitigation fund.
Mr. Bullock: The memorandum submitted by the applicant's attorney, Mr. Hatch, included in the record as Exhibit D,
itemizes basically from Pages 1 through 28 the concerns they have with the City's review and ultimately determination
through the SEPA process. Everyone of the items that Mr. Hatch brings up in there are code related issues about how the
project doesn't comply with the City's critical areas ordinance or that it doesn't comply with transportation requirements and
things like that. It is the City's position, in regards to this, that all those things are code related issues that is exactly why we
issued a mitigated determination. Those items are code issues. If you don't think that the project complies with those code
elements, we will deal with that in the code review of the project, which is the plat and the PRD—the Planned Residential
Development. It is not appropriately dealt with through a SEPA appeal.
Mr. Bullock: With that understanding, that goes to justify the City's position on the recommendation of the appeal, which is
identified on Page 2 of the staff report AP-2002-94, which is to deny the SEPA appeal and uphold the original SEPA
determination.
Mr. Bullock: Mr. Examiner. Would you like me to move ahead with the next staff report, or do you think it would be good
to...
Mr. McConnell: Let's do it all together because it will become too disjointed, otherwise.
Mr. Bullock: Okay. It will. It will. I am now going to move into the Planning Department's review of the formal plat and
the planned residential development, identified as the staff report for P-2002-11 and PRD-2002-12. I am going to put up
some overheads to assist us in some of our looking at the project and, hopefully, assist me in some of the things that I am
going to describe. I apologize that we don't have a screen that can go up higher and get you closer to it. There is a thing
right on the top of the head that you can tilt up.
Mr. McConnell: I guess that is about as focused as it gets.
Mr. Bullock: The subject property is approximately 91,000 square feet, so a little bit over two acres. The City has a planned
residential development code —a PRD Chapter. It is Chapter 20.35 in the Edmonds Community Development Code. What
that does is it allows an applicant to take a piece of property, utilizing the underlying zoning to determine how much density
is allowed out there on a particular property, and then develop it, not necessarily using all of the bulk standards required by
the underlying zone. One of the purposes behind that is there are a number of properties in the City of Edmonds now that
have sensitive feature associated with them. The properties that were easy to develop have all been developed, for the most
part. The properties that are left are the ones that have difficult situations associated with them —streams, steep slopes,
wetlands, a host of other items. That being the case, the planned residential development is a tool whereby the City and the
applicant can still conceivably develop the land to the development potential based on the size of their property, but maybe
reduce the actual lot size of individual lots, even down to the footprint of the buildings, and move the buildings around in
locations that protect the sensitive features of the site. That is one of the purposes behind the PRD.
Mr. Bullock: A little bit more background on that, as well (and I will address this later on in my presentation, too), when the
City went through its Comprehensive Plan update back in the early to mid 90's we held a number of workshops with the
general public, the community, the neighborhoods. One of the overwhelming things that we heard back from the community
was that people did not want to see wholesale rezoning of the City. They did not want to see big areas of single-family being
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 3
rezoned into multi -family. They wanted the City to do everything possible to maintain its single-family characteristics. With
that in mind, the City Council and City staff reviewed a couple of alternatives for the City still being able to meet some of the
growth targets that are required of the City under the Growth Management Act. One of those was called a designed infill
alternative. The concept behind that strategy was to encourage the development of tools in our zoning code that let
developers build out properties using some of the same characteristics of the underlying zoning but that still achieve densities
that would be allowed by the size of the lot, but maybe not necessarily achieved using a typical subdivision process because
of the environmental constraints associated with most of the properties that are left to develop in this City. With the City
Council approving the Comprehensive Plan and this idea of doing designed infill, PRD's were one of the preferred tools for
allowing development to happen that would allow the City to achieve the population targets that are mandated by the State's
Growth Management Act while at the same time trying to protect and preserve the single-family characteristics of our
community without doing major rezoning of the City. That has been, I think, a very effective tool for the City, and it has
been something that the City has not had to do substantial rezoning of large portions of or City to meet those population
targets required by the State.
Mr. Bullock: So, with this project, with a lot that is over 91,000 square feet and with the way that the PRD code calls for
density to be determined based on the underlying zoning, the underlying in this area is what is called RS-12. That is single-
family residential with a minimum lot size of 12,000 square feet. The PRD goes further to say you would take the total size
of the property.
Mr. McConnell: Did that go off?
Mr. Bullock: Yeah, that was the back up. Just a moment.
Mr. McConnell: When I hear the tape recorder go, I get a little nervous because we have had situations where the situations
didn't work and we had to come back and do the hearing all over again.
Mr. Bullock: And none of us want to be part of that. So, the PRD allows them to take the underlying zoning, again, RS-12
(residential single-family with a minimum lot sizes of 12,000 feet) and divide the total size of the property by the underlying
zoning minimum lot size. In this case, 12,000. In this case you would end up with, I think it is 7.65 lots. The PRD chapter
very specifically says that when you have more than five lots in your development, you get to round to the closest whole
number to determine how many lots you are allowed. In the case of a property like this where you have this size of lot and
that underlying zoning coming out to a total of 7.65, you could potentially get eight lots based on the PRD code. In this code,
the applicant is proposing seven. Whether or not that is something they would be allowed to do under standard subdivision
practice is really not a criteria in reviewing or approving the planned residential development, but it is something we will get
into a little bit more later on.
Mr. Bullock: As you can see from the overhead, the property is fairly rectangular, approximately 200 feet in width and 400
feet in depth. It does curve along the south boundary where that is adjacent to 171" Southwest. The property, and I know
you are all very familiar with it, but it has on the east side of the property in the northeast corner of the property it slopes
down very steeply into a stream ravine. The remainder of the property on the western probably 2/3 and southern 3/4 is sloped
very gently from the south down to the north. The ravine is very heavily vegetated with native vegetation from trees, alders,
big leaf maples, other trees like that. Even some Douglas Fir and Hemlock, with a fairly think understory, as well, of
salmonberry and other items. All the properties surrounding this property are zoned with the exact same zoning
classification —residential single-family, with a minimum lot size of 12,000 square feet. A number of the properties are even
developed at the minimum standards. You know, close to 12,000 square feet with the minimum lot width required by the
underlying zoning. I might expand on that a little bit more to say that the minimum standards in the RS-12 zone are again, a
minimum lot size of 12,000 square feet and a minimum lot width of 80 feet, as determined by putting an 80-foot diameter
circle anywhere on the lot. So, as long as you can demonstrate those two things when you do a subdivision —if you are doing
just a straight subdivision and not a PRD—as long as the lot has at least 12,000 square feet and you can put a circle with a
diameter of 80 feet inside that lot, it is going to be a legal lot and the City is not going to have a whole lot of authority to deny
a subdivision or any lots in a subdivision that have those characteristics.
Mr. Bullock: I already addressed some of the items in the Comprehensive Plan about how the City got to where it is at with
its current Comprehensive Plan. Some of the things I identified in the Comprehensive Plan as preferred tools for
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 4
development in residential areas. There is also some specific policies regarding residential development, and also regarding
development on sloped areas and areas with significant topography. Those are all taken straight out of the Comprehensive
Plan and included in the staff report on Pages 4 and 5, with some comments below them. Staff s review of the project is that
in terms of preferred tools to be encouraged by the Comprehensive Plan (For example, the PRD, type of homes, development
in areas of significant slope and topography) the proposed subdivision complies with the Comprehensive Plan in all of those.
Mr. Bullock: We have already addressed the issue of how it complies with the environmental review process, so I would
like to spend the next while talking about critical areas. I am going to spend some time, while I do this, referring to the map
here. I think that will be the most clear. Make sure I don't pull my mike out of the...
Mr. McConnell: You are fine.
Mr. Bullock: All right. The applicant, when they submitted their application, included a topographic survey to start with.
The topographic survey was one of the things completed by their licensed surveyor. It shoots a number of points on the
property to establish topography lines. They submitted, as part of their application, where they considered the top of the
slope for the steep slope areas. That topography map also identified the areas of steep slope. The City's critical areas
ordinance has a section that deals with sloped areas, and there is four different categories. The highest category, or the most
protected category, is what is called the steep slope critical area —a steep slope hazard area. That is described as any slope
that has an inclination of over 40 percent, and it doesn't matter what kind of soil types are included. If it is over 40 percent, it
doesn't have to have necessarily clay type soils. It doesn't matter if it has bedrock soils, if it is over 40 percent it is going to
be considered a steep slope hazard area, and our critical areas ordinance has some very strict protections for those slopes. On
the topography map, and then also included on their subdivision plan, you will see this line that I have tried to highlight with
a solid brown pen that runs along here which identifies what they are considering the steep slope area —the areas of the site
that are over 40 percent. Also, further classified in our critical areas ordinance as having an elevation gain of over 20 feet,
which is why it stops at this southern portion right here and just goes straight down to the stream. So, from this point on,
heading north, the slope has an elevation (a height) of greater than 20 feet, and it has got an inclination of over 40 percent.
That would be for every 100 lineal feet, it has got 40 vertical feet of all. And you can change those ratios to whatever
applies. But that is how steep it is. That is very steep.
Mr. Bullock: The City's code, in regards to these steep slope hazard areas, says that the base buffer for those is 50 feet. On
top of that 50-foot buffer is what is called a 15-foot building setback. So the closest somebody could build a house to a steep
slope area, if they just came in and wanted to submit their building permit application, is 65 feet. The City's code, though,
does provide an applicant the opportunity to submit a geotechnical study with their proposal. That geotechnical... It is not
even a geotechnical study. It is a report by a geotech where he can identify that the stability of the slope would not be
compromised if that buffer is reduced. He gets to decide how much it gets reduced to, until a minimum, as established by our
code, of ten feet. The 15-foot building setback is not allowed to be reduced by the geotechnical engineer. So, the maximum
without having a geotechnical engineer involved at all would be 65-feet from the top of a steep slope hazard area. If he has a
geotechnical engineer involved, it could be reduced from that total of 65 feet down to a minimum of 25 feet or anywhere in
between. If a geotechnical engineer thought that the buffer needed to be maintained at 20 feet, for example, there would still
be a 15-foot building setback from that. So anywhere in that range. A geotechnical engineer could even say that it is going
to be safe even less than that 25 feet, but unless they went through some other review processes, City code would limit it to
25 feet. The 10-foot buffer and the 15-foot building setback.
Mr. Bullock: In this case, the applicant did submit with their application a preliminary report that identified the property
would be stable and that development on the property would not increase the ability for failures. His recommendation was
actually that the face of any footings that would be constructed on any of these lots would need to be at least 15 feet away
form the face of the slope. That is not talking about the top of the slope, his report, it is talking about the face of the slope.
He is also talking about the face of his footing, which is submerged. So the distance he is talking about is substantially less
than the minimum allowed by our code without going through other special procedures. And so, what the applicant has
showed is what is the minimum allowed by our code, even though their geotechnical engineer said it he feels it would be safe
even smaller than that —with less of a buffer than what our code requires. So what you will see here on this plat map is, first
of all the solid brown line or black line, which identifies the top of the steep slope area. Then they have also showed the 10-
foot steep slope buffer, the minimum allowed by our code. Then they are showing a 15-foot rear setback for all of their lots,
which would equate to the 15-foot building setback from that 10-foot buffer. So, in the City's review of the project, we
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 5
found that their proposal, in regards to the steep slope hazard area, does comply with our code. It is something that is
allowed by our code, and in fact, when you look at the actual placement of their individual homes, except for Lots 6 and 7,
the rest of them are even set back further, and one which is the existing house. The rest of them are set back substantially
from even that 25-foot line that they could potentially build to.
Mr. Bullock: The second critical area I want to address is the stream. The stream is identified on this map with this blue
line here. I dashed it in here because it was not actually surveyed. It wasn't on their property. And then it comes back on the
property here at the northeastern corner. The stream has a fairly steep gradient and the City has three classes of streams.
They have a Class I stream, which is really kind of reserved in the absolute non-event of the City ever acquiring land through
annexation that had a river in it. A Class I Stream, the criteria to meet that is so great that it requires a big river before it is
going to be classified as a Class I Stream. So there are no Class I Streams in the City of Edmonds, and the chances of us ever
having one are pretty much nil based on the fact that we are almost completely surrounded by other cities. The second one
would be a Class II Stream, which are streams that run year round or in the event that they don't run year round, but when
they do run they provide a migratory path for salmon. Then they would still be considered Class II Streams. The third one is
a Class III Stream, or a Category II Stream, which does not run year round. Obviously, this stream runs year round, so there
is one other thing to consider, and that is whether or not the stream is a migratory path for salmon or if it is not. The reason
that is significant is that if it is a migratory path for salmon, it does require greater buffers. In this case, the grading of the
stream is too steep, and because of its passage by the Lynnwood Treatment Plant, it doesn't allow for fish to come up to this
reach of the stream. Therefore, it is not considered a salmon bearing Class II Stream. That being the case, the stream
requires a 25-foot buffer. That buffer is measured from the bank of the stream. The stream, being located down here, the
City's method of determining the bank of the stream has been consistent for the entire time that our critical areas ordinance
has been in place, since 1992. That is that the channel that is formed by the water running in it, in which many cases is wider
than the actual (The tape changes sides here, and some of the testimony is lost).
Mr. Bullock: But the channel that is formed by the stream is going to be considered the bank of the stream. From the edge
of that bank, no matter what time of year it is (whether it is the middle of the summer or middle of winter) from the edge of
that stream bank is where we measure the 25-foot stream buffer. In this case, it is shown on this map by this dashed blue line
right here. As you can see... And this is the portion of the site where the stream is closest to the top of the steep slope area,
which is the reason it is shown here and not up here because the stream is getting so far away from the top of the steep slope.
In this area, the edge of that stream buffer doesn't even get up to the top of the steep slope area as it moves along the
property. That being the case, the steep slope area provides greater protection to the stream than the stream buffer actually
provides. Our critical areas ordinance specifically talks about the fact that when you have multiple critical areas overlapping
each other, the one that provides the most protection is the one that should be used to determine the buffers. That is exactly
what we are doing in this case. For the small of the stream buffer that does actually project south past the end of the steep
slope area, there would still be a 15-foot building setback from the edge of that buffer. So that would come exactly to where
they are showing the edge of their open space down in the southeast corner of the property.
Mr. Bullock: The other item which... I can tell you that I have made numerous visits to the site and have walked over it a
number of times. While I am not a qualified wetland biologist, and I will never claim to be so, my training is as a landscape
architect, and I have had a number of wetland delineation and identification classes. In walking over the site, although I did
see occasionally some plants which are considered - plants, I didn't ever see any plants that were considered obligate
wetland plants plants that only grow where wetlands are. That being the case, along with the information submitted by the
applicant, our initial critical areas determination and then subsequent reviews of the site never led us to believe that there was
any wetland associated with the property. We started getting the letters from the surrounding neighborhood in regards to a
potential wetlands on the property. We let the applicant know, and also then received a subsequent report included with Mr.
Hatch's memo (Exhibit D of the record) which identified a wetland on an adjacent property in the northwestern portion of the
site. The report submitted by Mr. Hatch showed it up here. And the report stated within it that it also encroached onto the
subject property. The City staff s position with that is going to be that a 3-party report is going to be required to actually
delineate the wetland and confirm its class and whether or not there is the presence of wetland on the property.
Mr. Bullock: The critical areas ordinance as it refers to wetlands and what was described in the report submitted by Mr.
Hatch was that this was a Class III Wetland. A Class III Wetland has to be at least 2,500 square feet in area and it has to
contain at least one wetland class of plants. The report submitted says we have hydric soils out there. We have some
evidence of hydrology, which is the presence of water on the site, and that we have wetland type plants. A 3-party contract
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 6
will need to be performed, and a study will need to be done of the site to confirm that the wetland out there does meet those
criteria. If it is at least 2,500 square feet and does meet all of the other criteria for a Class III Wetland, it will need to be
protected. Buffers will need to be associated with it, and some kind of redesign of the plat and the PRD would have to be
accomplished. If the wetland ends up being less than 2,500 square feet or for some other reason does not classify as a Class
III Wetland, the City does not regulate it and it is not something that has to be addressed in the design of the plat. It could be
covered up. The applicant has submitted some additional exhibits —Exhibit G and Exhibit H in the packet. Exhibit G is a
report submitted by their wetland consultant, and Exhibit H is a survey that they did of both the adjacent wetland, as
delineated by the report that Mr. Hatch submitted, and then included the delineated edge that was done by the applicant's
wetland on their own property. Their conclusion is that the wetland, as shown on the survey map (Exhibit H) was under
2,200 square feet. So the applicant is saying that the wetland is not large enough to qualify as a Class III Wetland in the
City's critical areas ordinance, and therefore, is not regulated by the City. The City would agree with that. We are not going
to just taken their word for it. We are going to require a 3-party contract, which is a contract that they ultimately pay for, but
the City directs the consultant and the consultant works for the City in determining exactly the perimeter of that wetland and
what the dimensions of it are.
Mr. Bullock: So that is one additional condition that is going to need to be included with the plat and PRD that is not
included with the report that was sent to you. A 3-party contract to definitively delineate the edge of this potential wetland to
determine if it is going to be regulated by the City or not will need to be accomplished.
Mr. Bullock: The PRD ordinance, as it is written right now, requires that an applicant submit their proposed subdivision and
house designs to the City's Architectural Design Board for review. The City's PRD ordinance has an entire section
(20.35.060), which deals with single-family design criteria. Because the City is willing to consider some reductions in lot
area and lot width and setbacks through the process of a PRD, one of the things the Council wanted to ensure was going to
happen was that there would be some design controls for that subdivision that aren't a part of a typical subdivision process.
In a typical subdivision, as I had mentioned before, if a lot meets a minimum lot size and meets a minimum lot width, it is
going to be considered a buildable lot and people can do what they want on that lot when we are talking about building
homes. With the PRD ordinance, the Council wanted to make sure that if we are giving them some flexibility here, we are
going to have some design controls on what these homes will look like to ensure that they are going to fit into the residential
character of particular communities. That being the case, they listed a whole list of criteria that home designs needed to
accommodate to meet this single-family design criteria. One of their desire was to make sure that new neighborhoods
wouldn't just be big garage scapes, that there would be houses hiding behind three -car garage doors. They wanted to make
sure that homes had a very human scale to them, that they have a very obvious pedestrian connection to the street frontage,
the sidewalk, and the neighborhood as a whole. They wanted to do what they could to diminish the impact of garage scape,
so to speak.
Mr. Bullock: Well, the City's Architectural Design Board reviews the project for compliance with those single-family
design criteria . And on Pages 7 and 8 of the staff report, you will see the summary of their motion to the Examiner, which
has a number of different suggestions both for the review of the project and also for recommended conditions. They had
three specific recommended conditions that they would like to be included in the recommendation related to the design of the
project, and those are included in the recommendation section of the report. On Page 8 of the staff report, it addresses
specifically one of the items I addressed earlier —the size of the lot divided by the underlying zoning (12,000 square foot
minimum) comes out to 7.6 lots. That rounds up to 8, and the applicant is proposing 7. So they are obviously in compliance
with the density that they are allowed to apply for for a PRD.
Mr. Bullock: They are proposing to maintain at least the required setbacks from the underlying zoning around all of the
perimeters, and that is not difficult for them to do in that three of the four sides are going to be protected by the critical areas
and the critical areas setbacks and buffers. They are proposing to reduce the minimum lot width, which again, is something
that is permitted through the PRD process. The criteria that need to be addressed in getting some of those modifications
approved are identified on the lower part of Page 8. The first criteria is that the proposed PRD would provide more
landscaping and greater buffering than would be required with a standard subdivision. As you will see... In fact, I am going
to throw up the landscape plan, real quick.
Mr. McConnell: I heard that thing click. Did you just kick over to the other tape or...
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 7
Mr. Bullock: That's right.
Mr. McConnell: Okay.
Mr. Bullock: Now a standard subdivision isn't required to do any landscaping. There is no criteria in our code regarding a
formal subdivision that requires landscaping by an applicant. It is one of the criteria for allowing modification to standards
through the PRD process. So the PRD can conceivably get a community more than it would necessarily get if the property
were divided under a standard subdivision. In this case, you will see that the applicant, on the west property line, has the
access road coming in and they have it kind of bowed as it enters there. And it kind of bows along this entire length to where
the cul-de-sac head is. On the west side of the road there they have included in their landscape plan some fairly significant
vegetation. The applicant has also submitted into the record as Exhibit I (this is a photo exhibit with key) where they have
gone through and taken pictures of the perimeter of the site from their site looking at adjacent properties and looking at the
vegetation that is both on their property and on adjacent properties to confirm what kind of buffering there is going to be
between the proposed PRD and the existing development that surrounds the property. I think we would all agree that the
steep slope hazard area (the critical area to the east) is going to provide a fairly significant buffer from any of the
development to the east of this site. That is going to be a protected area where the applicant, or any future owners, is not
allowed to get in there and cut down trees and do things. This is a critical area and those things are to be left alone. There
may be provisions to address dangerous or emergency type situation, but the norm is to leave vegetation in the critical area
alone and let it do what it does. So there is significant screening and buffering on the east and north sides. On the west side
the applicant is proposing a significant amount of landscaping adjacent to the road. As their photo key shows, the adjacent
property owners to the west have a substantial amount of landscaping along that area, as well. So again, as compared with a
standard subdivision, a lot more landscaping is going to be provided around the perimeters of this than would be provided
through a standard subdivision process.
Mr. Bullock: The second item would be efficient and safe circulation. The narrowing of the lots has reduced the length of
the proposed road. Placing the road on the west side of the property as opposed to the east side of the property adjacent to the
critical area has limited the length of the road, as well. Architectural design is a third criteria, and we have already talked
about that in regards to the single-family design criteria. We have addressed the exterior setbacks.
Mr. Bullock: A fifth criteria is reduced visual impact. Something to consider here is with a typical subdivision and 12,000
square foot lots, the building footprint is allowed to be, in a situation like that, 35 percent of your total lot. So, a building
could be put on a 12,000 square foot lot that is roughly 1/3 of a lot. A third of 12,000 square feet is a footprint of 4,000
square feet. A 4,000 square foot footprint, now that doesn't even limit the fact that they might even go two stories, you are
talking about some fairly large, bulky buildings that potentially could be located there. That is not to say that is what would
happen. I mean, that is probably a little bit exaggerated, but the size of homes that could be put there potentially is very
large. In this situation, with much smaller lots, they are still limited by the same 35 percent lot coverage. They have not
requested to have that reduced. Their plan is to put homes on those lots that are still going to meet that minimum 35 percent
lot coverage. The size of their homes are going to be substantially smaller in visual bulk than what could potentially be there.
Mr. Bullock: I need to change my back up tape.
Mr. Bullock: Criteria 6 and 7 relate to the preservation of natural features and the reduction of impervious surfaces. We
have already kind of addressed those by the fact that critical areas are going to be protected by this proposal. While steep
slopes, as I eluded to briefly earlier, the minimum that a geotechnical engineer can reduce the buffer for a steep slope area is
from 50 feet down to 10 feet without going through additional processes. There are additional provisions in the City's
development code —in this critical areas ordinance —relating to steep slope hazard areas that would allow somebody to
propose and potentially gain approval to actually build on steep slopes. If the correct soil types are there and the correct
construction techniques are used, I think we all understand the fact that if you throw enough money at something you can
probably build anywhere and build it safely. If you spend enough. Our critical areas ordinance is required to address best
available science, in that we can't deny somebody from building on a steep slope if the purpose is to protect that steep slope
from failing and they can show us that it won't fail. We would be in a difficult position if we still said you can't build there.
That is why the City has another exemption process that could potentially allow somebody to build on a steep slope hazard
area. That is separate from the stream and the stream buffer issue.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 8
Mr. Bullock: What this PRD does is it takes this entirely out of the equation. It doesn't even leave the steep slope areas as
areas where an applicant might, at some point in time in the future, try to get a steep slope exemption to build in the steep
slope area. Therefore, the City's position is that this proposal and the PRD and the creation of the critical areas tract provides
greater protection for the critical areas tract than what might otherwise be provided through a standard subdivision process.
The reduction in the impervious surface is again part of reducing the size and length of the road is part of an efficiency issue,
as well.
Mr. Bullock: The decision criteria that need to be addressed to approve a PRD are included on Page 9 of the staff report.
We have addressed some of them already in our report. I guess, sufficed to say, the City's position is that the applicant does
meet all those decision criteria to get a PRD approved, and that leads us to our recommendation of approval for the PRD.
The lower section of Page 9 and then Page 10 address how the project meets the formal plat or the subdivision requirements.
Again, a lot of those requirements defer to the PRD. But we did address those and, again, come to the same conclusion as we
do during the review of the criteria for the PRD, which is that the project should be approved.
Mr. Bullock: With that, I would like to call your attention to the recommended conditions that start on Page 2. A number of
them are fairly standard conditions for subdivisions, but I want to highlight the ones I think that are specific and unique to
this project because of the project and also because of the fact that it is a PRD. The first one that I want to address is
Condition 3. The applicant, I think, in their latest version of their site plan, is demonstrating Section A, which is that they
need to show that the trail is in the outer 25 percent of the stream buffer or modify its location. I think in the latest site plan
they have shown that the buffer... The stream buffer is shown on the plat map as that dashed line to the west of the solid
blue line. The dashed blue line. The stream is the green line that is adjacent to it. It does not enter into the stream buffer at
all. So, here is the stream. Here is the stream buffer. The path doesn't even enter the stream buffer at all. Although the
critical areas ordinance does allow it to enter the outer 25 percent, their new proposal does not have it entering the stream
buffer at all. The critical areas ordinance does allow paths to be located in steep slope hazard areas as long as they are
designed correctly and installed correctly. That is kind of addressed under B.1. No, excuse me.
Mr. Bullock: Section 3B addresses the ADB recommended conditions for the PRD. First of all that walkways need to be
added to each lot from the front porch to the street. This is something that you will see included on the plat as of right now. I
think this is something that we are probably going to review more specifically when the building permits are issued for each
of the lots. A second item that the ADB would like to be seen included into the conditions are that street trees must be
planted on the front yards along the street of Lots 2 through 7. Their landscape plan does indicate that, but we would like to
keep that still in there as a condition. One concern they had is that if the storm water detention system ends up needing to be
in a vault of some sort, they would like to see that vault integrated into the design of the PRD, potentially even covered
instead of having an open pond. The current proposal has the storm water going down the bank in a tight line facility into a
diffuser system down by the stream and then into the stream. The applicant received some okay on that proposal from
Lynnwood since the stream goes into Lynnwood's sewer treatment plant, but or engineering department has not given final
approval of that proposal as of yet.
Mr. Bullock: Section E of Number 3 addresses the trail design, and they are going to need to submit construction plants
indicating that they are planning on doing it to the best available science and the best management practices for constructing
streams on steep slope areas. I think the rest of the recommended conditions on there are fairly standard ones for subdivision,
in general. If you have any questions on them, I would be happy to answer them. Otherwise, I think I will conclude my
presentation for now.
Mr. McConnell: Okay. I understand you want to add a condition 3H, which would address the wetland issue
Mr. Bullock: Thank you. Yes.
Mr. McConnell: I'll tell you what. Do you want to take a five-minute break, or do you want to just jump right in.
Mr. Hill: It is up to you, Mr. Examiner.
Mr. McConnell: Let's go for a while. Let's go for another 20 minutes or half hour. So, which one of you is going to start.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 9
Mr. Hill: Mr. McConnell, my name is Richard Hill. I am counsel for the applicant. The name of my firm is Phillips,
McCullough, Wilson, Hill and Fikso. It is a small firm with a long name. The street address is 2025 First Avenue, Suite
1130 in Seattle. The zip code 98121. Mike Smith, the planner with Lovell Sauerland, will make the presentation this
morning.
Mr. Smith: My name is Steven Michael Smith. I am the land use planner for Lovell Sauerland and Associates. We
represent the applicant in this case. Our street address is 19400 — 33rd Avenue West, Suite 200, Lynnwood. The zip code is
98036.
Mr. McConnell: Do you swear or affirm to tell the truth in this matter?
Mr. Smith: I do. First of all, I would like to thank staff, and really that means Steve across from me, with helping us with
this application since even before the time we brought it in. We knew we were going to be dealing with ...
Mr. McConnell: Could you speak up a little bit more. People in the back can't hear you.
Mr. Smith: Sorry. We knew that we had a new PRD code that needed to be...
Mr. McConnell: One thing I guess I need to get straightened out here because Mr. Hatch has raised that issue. I know the
PRD code has been updated. It was codified in 2002 and was adopted in 2001. But when was this application deemed to be
complete? Before or after the adoption of the new code?
Mr. Bullock: After.
Mr. Smith: So we knew that there was going to be a fair amount of scrutiny with this application. Steve has been
instrumental in helping us prepare an application that we believe puts forward a good design.
Mr. McConnell: I don't think that amplifies. Maybe it does a little bit. Speak right into it.
Mr. Smith: I don't want to choke on it here. Is this better? Okay. I will try to stay close here.
Mr. McConnell: Pretend you are a rock star.
Mr. Smith: Well, I did this instead. Throughout the process, through the commenting period, through development of the
application, Steve, has been very helpful. Even before we knew there was going to be an appeal, specifically, on this project,
Steve, Duane Bowman who is the director of the department, myself and Eric Sundquist who is the principal of Viking
Properties got together over some perceptions based on another appeal that maybe our open space wasn't usable enough and
that we should reconsider the design of the project. Sitting around the table, we settled on some revisions to the open space
that you see here that locates the open space more central to the project as opposed to the previous design, which had it
tucked back in the corner against the Burke's property, which is shown on the plat map. We believe this provides a better
circulation, and also visibility for safety, for that open space and makes it substantially more usable than the other design.
Steve was instrumental in helping us with that. At the same time, he indicated that having some additional landscaping
adjacent to the road and next to the Andree property, which is also shown on the plat map immediately to the west to the
road, some additional landscaping there would be helpful. Through that meeting and then subsequent design and
investigations, we decided that was something that was feasible. So the design you see here reflects that concern, as well. It
has been a dynamic process, and Steve has been very helpful with that, as well Duane Bowman the Director. We have put
absolutely our best foot forward as far as trying to put together an application that complies with admittedly subjective
standards to create something that will be a benefit to the City, the applicants and the neighborhood.
Mr. Smith: My primary testimony here, because Steve did such a thorough job going over the portions that he did, are going
to be based on the two memorandums from Jonathan Hatch that were received by the City on June 4t''. As much as I can, I
am going to try to follow the format of those memorandums, the first of which pertains to the SEPA appeal. As preliminary
matters, Mr. Hatch requests that an EIS (and I presume this means a determination of significance) be issued by the City and
that a heightened standard of review be applied to the environmental issues because of the sites presence on the City's
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 10
sensitive areas map. I did talk to Steve about the sensitive areas map and what affect that has on their review. He said that,
essentially, it is a relic and it has no real application. It used to require compliance with SEPA when it was used actively.
Even if it was to be used actively now, SEPA is already required, and the Edmonds Community Development Code 20.153
provides all of the critical area protections that the City has for development of properties currently. And so the higher
standard of review, whatever that is, really has no bearing on this project.
Mr. Smith: Also, as a preliminary matter, he raises the fact that the clear air review standard be used. RCW 43.21.C.090
provides that substantial ...
Mr. McConnell: I am sorry. Okay 43...
Mr. Smith: 21.C.090
Mr. McConnell: Okay.
Mr. Smith: Accords substantial weight to the staff determination which means that any appealing body has the burden of
proof. The burden of proof here is Mr. Hatch is to provide. Item E.1 of Mr. Hatch's SEPA appeal memorandum refers to the
geotechnical report and alleges errors with the geotechnical report related to the critical areas code and also Chapter 19.05,
which is the earth subsidence and landslide hazard area section of the code, which is related to building permits where there
is no building permit here. The two primary claims are that the report, by its own admission, is only preliminary and that
there is no evaluation of the subsurface soil conditions. And that is required by ECDC 19.05. I believe that, primarily, Mr.
Hatch is keying on a statement that is in the geotechnical report that there was no subsurface exploration conducted. He is
attempting to claim that exploration and evaluation are synonymous. My claim is that exploration and evaluation are
certainly not synonymous. I talked to - about this issue and I asked him directly whether he would consider that the
study he did not this property would qualify. . .
Mr. McConnell: This is hearsay. If Mr. Lew is here, that is fine. Otherwise, if you want to speak...
Mr. Smith: Okay, then my review of Mr. Lew's report shows that he visited the property. So he did do a first hand site
evaluation, and that is stated in the report. He did take a T-bar soil auger out to the property, which went below the surface.
Very strictly speaking, that would qualify as a subsurface exploration. He also studied geologic maps that he knows to be
fair representations of the area. According to his professional opinion, as a PHD Licensed Geotechnical Engineer in the State
of Washington, for the level of plans that we are producing and hopefully approving now, that this report is sound. When he
says that the report is preliminary, that refers to the fact that there are no specific building permits or foundations shown or
applied for at this time. In fact, the City would not allow us, because there is already a single-family residence on the
property, to submit a building permit. Or they would not review a single-family residential permit for this property until the
subdivision is recorded. In fact, the City will be requiring, as a matter of course, review under Chapter 19.05 at the time that
individual building permits are applied for. So I don't see that there is any impropriety here, and I don't see that the code is
circumvented.
Mr. Smith: Item E.2 refers to the slope buffer reduction. I believe that the primary point in E.2 is that there was no specific
request by form of application, variance, modification, something like that, specifically requesting that reduction to ten feet.
Because there was no decision by staff, that there is no right to appeal that decision. I think it is important to point out that
that section doesn't require any particular form of declaring the buffer that is proposed. In fact, we showed a 10-foot
proposed buffer on the subdivision, which staff realized was a reduction from 50 feet. We also called that out in the SEPA
environmental checklist. Staff acted on that checklist through their mitigated determination of non -significance, which was
issued April 30. In fact, that determination has been appealed. So I would offer that, in fact, the appeal was available, and
the appeal is made here today.
Mr. Smith: And then there was, I guess, another item regarding the fact that there was no justification for the 10-foot buffer
because our geotechnical report didn't meet Chapter 19.05. I maintain that it does meet 19.05. Discussions with City staff
have revealed that they agree with this determination and I don't know what further review would be reasonable to perform at
this point.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 11
Mr. Smith: Item E.3 is in regards to the stream buffer. There is an implied connection in E.3 that the top of bank means top
of slope. In fact, I have discussed this point with two biologists. We have a biologist here today that can go further into this
point if the Examiner believes there is still some lack of clarity on this point. But the top of bank has a well -established
technical, scientific meaning within water ecology for water ecology purposes. It has to do with the mark on the land where
the water has insized its surroundings, which is shown by Exhibit L, which was turned in prior to the hearing today. Like I
say, we have Bill Railton, who is a professional biologist, who is on the City's list of qualified consultants, here if further
technical information would be beneficial to the Examiner.
Mr. McConnell: Well, this is your show. If you want to enter this information into the record, then you...
Mr. Smith: Sure. Generally speaking, within ecological terminology, the top of a sloping area is referred to as the top of the
slope. The bottom of the sloping area is referred to as the tow of the slope. And top of bank has a very definite meaning
within stream ecology, meaning that level which is shown clearly as being insized by regular flow of the water on an annual
basis. I will turn it over to Bill after I finish my presentation on the SEPA appeal and before I start on the project, here.
Mr. Smith: Because the top of bank has a clear meaning, I don't believe that going into the ordinary meaning analysis, as
suggested by Mr. Hatch, has real value. Because I think to go to the definition that he is suggesting, we are ignoring a well -
established and recognized definition used by professionals in the field of stream ecology. We are, after all, here talking
about a stream.
Mr. Smith: Item EA refers to the placement of the trial within the inner 75 percent of the buffer. If we agree with Item E.3,
that the placement of the buffer is, in fact, from the bank of the stream, which is only a couple of feet wide, Item EA becomes
a moot point. Clearly, we are outside the buffer in its entirety, and that issue goes away.
Mr. Smith: Item E.5 relates to the presence of a wetland, which is, in fact, partially on our property. I have to admit we are
a little bit embarrassed. We performed a critical areas checklist process with the City prior to submittal of this project.
Through that process, we did send a biologist out on the property. We submitted the checklist, and that process did not reveal
the wetland that has now been shown to us. In fact, we have gone out and surveyed. Upon receipt of the first letter of SEPA
appeal, prior to the expanded list that we have now, I personally visited the property to walk the site and see if I could
ascertain what it was that this wetland question was really all about. On my recognizance, I found the area in question. This
was about two weeks ago. I wasn't sure at the time whether it would qualify as a wetland or not, but there was enough
question in my mind that I thought it would be a responsible thing for us to do to have a biologist come out and take a look at
the property and see whether he believes that area would qualify as a wetland or not. A week later, which was last week now,
myself, Bill Railton, and Jeff _ who is a licensed surveyor from our office, went and visited the property. When we
came to the area in question, we saw that there had been a previous recognizance on the adjacent property, although not on
our property that we could tell, showing a very definite boundary of wetland area. Considering that this hearing was coming,
we realized that there was a potential issue here and felt like it was critical to the project to know exactly how big that
wetland was. While we were at the property, we placed a wetland flag, which Mr. Railton believed fairly represents the
boundary of the wetland on our property. Following our field inspection and discussions with the surveyor, we decided that
the only way to properly address this issue was to make our best efforts to get the property owner on the adjacent properties
permission to go onto his property and to have our field crews go out and locate the flags that had been placed out on the
adjacent property, as well as the flag that we had placed on our property to determine an actual boundary and actual square
footage so that we would have the information to decide whether we had a true regulatory problem or not.
Mr. Smith: I called the owner, David Andree, that afternoon. He agreed on very short notice that afternoon to come to our
office to talk to us about this issue. We were informed at the time that he had no knowledge, whatsoever, about the fact that
any wetland flags had been placed on his property. At the time, he was very angry. He did, however, give us the permission
to go onto his property and survey the flags because he realized that this was a potential encumbrance to his property and he
also felt that it was necessary to get the information. So we sent the field crews out. I talked to Mr. Andree the next day.
Mr. Andree is here, so he can confirm this. This is not hearsay. I talked to Mr. Andree the next day, and he relayed a story to
me that, following his meeting with us, he had gone out to the property and personally witnessed a garden hose entering into
the northern edge of the wetland on his property that was turned on. The hose went onto the property of Robert and Virginia
Burks, which is shown on the plat map. He probably called the sheriff and filed a police report. The officer apparently told
him that this was a trespass issue, that this was a civil matter.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 12
Mr. McConnell: That is a civil matter that I won't get into.
Mr. Smith: But I want it to be in the record because it influences the size of the wetland. With this information, I sent the
report, filed with Mr. Hatch's SEPA appeal, to our biologist and had him look at that report to see what he thought of it.
What he said was that one of the two test pits
Mr. Hill: This is hearsay.
Mr. Smith: I will have Mr. Railton testify to this himself. He is here.
Mr. McConnell: Okay. Why don't you have him do that and you can go ahead...
Mr. Smith: He can address the top of the bank issue as well as what he saw with the wetland report, himself. The end result
with the wetland, as I see it, is that however the wetland came to be as it is right now, is immaterial. The fact that there was
artificial water introduced to this wetland, does not change the fact that, even with this artificial influence, the size of it is
well under the regulatory threshold. Bill will speak to this, but he is confident that we would, if we had to go out and do it
again, show that it is even smaller than this size. But I don't' believe that having the tri-party agreement in place is going to
produce anything substantial that is not already in the record. My recommendation is that we not be required to go through a
tri-party contract because the information needed is already in the file to determine compliance with the code.
Mr. Smith: The final item in the SEPA appeal relates to the traffic study. I had a conversation with Darrell Smith, who is
apparently available for questions if need be. He related to me that the standard City procedures is for projects of this size
that projects are only required to evaluate traffic to the preliminary level, which is exactly what we have done. There is no
evidence in the file that there are any level of service or concurrency problems anywhere in the area. And the only objective
issue that has come up is the issue of sight distance. Our traffic engineer, licensed traffic engineer, Dale Watkins, wrote a
letter from his site inspection that he performed again yesterday that is Exhibit K. His determination is that, actually, there is
more sight distance there than he had previously surveyed and that, actually, our sight distance is closer to 200 feet whereas
residential streets, the range of 100 to 200 feet is generally considered to be adequate-200 obviously being at the long range
of that. That is all explained in his letter.
Mr. Hill: For the record, where is that.
Mr. Smith: Exhibit K. We believe that staff was fully justified in issuing the MDNS that they did. The fact that we are
being requested to issue a determination of significance rather than an EIS or rather than an MDNS with further mitigations
or strictly code compliance makes it seem that we are attempting to delay the project and force undue expense on the
applicant. I suppose to conclude the SEPA appeal presentation, I would like to turn the microphone over to Bill Railton.
Mr. Railton: Before you do that, did you have anything that you wanted to say about the PRD and the...
Mr. Smith: I was going to do that after ...
Mr. Hill: Why don't you just go straight on through if that is okay with Mr. McConnell?
Mr. McConnell: That's fine.
Mr. Smith: Regarding objections to the project, following the first appeal and discussions with staff, we decided to examine
what kind of project would be possible on this property if we did not process a PRD. What would the lot yield be? What
would the lots look like? What kind of a project would we have if we removed the PRD from consideration? The drawing
that we came up with is in the record as Exhibit 16.
Mr. McConnell: I think it is attachment... Let's make sure we get this down. It is Attachment 16 to Exhibit C.
Mr. Bullock: It is from the attachment packet. Exhibit C.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 13
Mr. McConnell: C.16
Mr. Smith: C.16. Sorry. What we came up with, in my professional opinion as a planner, is not anywhere near as quality
of project as the one we have with the PRD. We do have seven lots. And I suppose that strictly from an economic
standpoint, it is probably fairly close to equivalent, aside from the fact that it would be cheaper because we wouldn't have all
the amenities. If we did process this application instead of the PRD that we have, we would have seven lots. Really, from
the applicant's perspective that is one of the more important considerations since sale price is often determined by that. And
whether the overall project is economically viable has to do with its costs and what the economic return is at the end. So the
fact that there are seven lots available without the PRD, I suppose it is comforting. If we don't prevail here then at least we
will have a viable project of a different sort. If we did this conventional subdivision, there are some very specific items that
would be lacking. There would be no playground. There would be no project design controls or controls over design of the
homes. So the 3-car garages that Steve was predicting that many people really like to have very probably would be installed
at least on some of those lots. We would have minimum landscaping. There would be no pedestrian trails. The protection to
the native growth protection area would be reduced, in addition to the fact that the City would conceivably allow some
development of the slopes. Generally speaking, native growth protection easements provide less protection than separate
tracts. The reason is that the homeowner looks at his tax records. He owns the entire property even if there is a protective
easement over that. They perceive that that's their property and they are going to do what they want with it. So, setting aside
in a separate tract certainly provides additional protection not available through the conventional subdivision alternative.
Mr. Smith: The last item that would not be part of the application, is that there would be no arboretum adjacent to 171st
where Sealawn Drive connects into 171". Our perception is that as people are coming out of Sealawn Drive and see this
arboretum that is going to be directly across the street as they are exiting onto 17111, that is actually going to provide an
aesthetic improvement over what is there now. We will leave the trees that are there, and we will supplement that with
further plantings. Our perception is that there is substantial public benefit to the neighborhood, to the future residents, and
the City as a whole in processing this as a planned residential development.
Mr. Smith: The procedural conflict, and this may get argued as hearsay as well, between the process required by the PRD
code verses the standard hearing proceedings, I know that Mr. Bullock had a conversation with the City Attorney, and I have
talked with Mr. Hill, here. Both of them agree that, as standard statutory rules of interpretation dictate, a new code would
take precedence over a older code, and that a more specific would take precedence over a general. In both cases, it indicates
that the new PRD code would control. Mr. Bullock has indicated that this is an item that they wish to clarify in the future,
but doesn't see it as something that prevents us from proceeding with this application today.
Mr. Smith: Critical area non -compliance —I think that we have covered that fairly carefully. And then conformity with the
planned residential development, which is Item C in the second memorandum, wishes that building designs be final at this
stage of the development. At this point, certainly it is Viking Properties' intent to build the homes that have been very
carefully shown. The lots are not all... Obviously, they are not very large rectangles that can have almost any home design
on them. Really, the lots have been designed fairly carefully for the house, and vice versa. The entire project has been
designed as a whole. However, if Mr. Sundquist ends up recording the subdivision and there is a potential homebuyer who
comes by the property and says, "Wow, I really love this subdivision plan, but if you could change the footprint a little bit."
(There is a little bit of conversation that is missing from the tape.) I don't think that Viking Properties is opposed to
entertaining some revisions, either. Of course, any new plan that we put together has to comply with the Architectural
Design Board requests, the PRD code requirements, and will be reviewed by staff for conformance with same. So the design
controls are there. In any event, the homes that will end up being built are significantly better than something with no
controls, which would be the alternative if the PRD was not in place. So there is already substantially more control than there
would be otherwise.
Mr. Smith: I think that Steve has already explained the photo exhibit fairly clearly, so I am not going to go into that
specifically. I think that is all I have for my direct testimony.
Mr. Hill: There is just one more item. Could you, again, for the record. I know Mr. McConnell is probably familiar with
you, but could you for the record explain your professional training and background?
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 14
Mr. Smith: Certainly. I am a professional land use planner for Lovell Sauerland and Associates. I have worked there for
the last five years. Before that I worked for professional consultants representing projects of this type, as well as commercial
and industrial projects through the land use permitting process for about three years prior. I worked for Whatcom County for
about a year and prior to that graduated from Western Washington University with an environmental policy and assessment
degree and worked an internship with Whatcom County prior to my full-time position there. So I have been fairly active in
Snohomish County and working with the City of Edmonds for about eight years now.
Mr. Hill: Can you just summarize approximately how many subdivisions and short subdivisions you have been involved in
in this area?
Mr. Smith: Certainly over 100. I haven't catalogued them for some time. But certainly over 100.
Mr. Hill: And as a planner with Lovell Sauerland, have you had any opportunity to develop any knowledge that would
relate to some of the issues raised in the appeal relating to wetlands, traffic and steep slopes?
Mr. Smith: Absolutely. All the same. Wetlands, steep slopes and traffic are probably the three biggest environmental
issues in this region. So nearly every project we work on has a combination of those factors.
Mr. Hill: Okay, thank you. Mr. McConnell, unless you have questions, I was going to call Mr. Railton.
Mr. McConnell: Please do.
Mr. Railton: I am William Railton with Wetland Resources Incorporated, 9505 — 191h Avenue Southeast, Suite 106, Everett,
98208.
Mr. McConnell: How do you spell your last name?
Mr.Railton: R—A—I—L—T—O—N
Mr. McConnell: Okay. And do you swear or affirm to tell the truth in this matter?
Mr. Railton: I do.
Mr. McConnell: Okay.
Mr. Hill: Mr. Railton, I have asked you to address four issues to the Examiner. First if you could just summarize for the
examiner your professional qualifications. Secondly, if you could ... Actually why don't I just ask...
Mr. Railton: I am the principal ecologist for Wetland Resources. I am the owner of the company. I started the company
about 13 years ago. We do between 250 and 300 and wetland delineation, critical areas study and mitigation plans per year
in Whatcom, Skagit, Snohomish, Canyon and Island Counties. Prior to that, I worked for ten years with the U.S. Soil
Conversation Service, which is now the Natural Resource Conservation Service as a resource planner and as a engineering
technician. That's it.
Mr. Hill: That's great. Mr. Railton, were you here this morning when you heard Mr. Bullock testify about the practice of
the City of Edmonds and the use of the phrase "top of bank" for purposes of critical areas buffer?
Mr. Railton: Yes, I was.
Mr. Hill: And did you also here Mr. Smith testify about his understanding of the ecologist's world view on "top of bank for
stream buffer requirements?"
Mr. Railton: Yes, I did.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 15
Mr. Hill: And are you familiar with Exhibit L in the record, which is a channel width drawing?
Mr. Railton: Yes, I am.
Mr. Hill: Okay. Based on what you have heard and Exhibit L, could you explain your perspective on the issue of "top of
bank" for stream buffer requirements?"
Mr. Railton: In speaking about streams, "top of bank" is usually defined as the outermost portion of the channel. The
channel is carved by what is normal high and low flows. The "top of bank" would typically be the area below which we
would not be finding vegetation, or certainly not upland vegetation. The combination of top of bank, low flow, moderate
flow, and the high flow would comprise the channel. So, as described by both gentleman, the top of bank would be that area
where you would normally find high annual flows.
Mr. Hill: And are you familiar with the applicant's proposed top of bank line on their subdivision drawings?
Mr. Railton: I have seen it on the subdivision drawing.
Mr. Hill: Is that line consistent with your understanding of top of bank?
Mr. Railton: Yes, it is.
Mr. Hill: Secondly, Mr. Railton, Exhibit G in the record is the critical area recognizance report from Wetland Resources Inc.
dated June 3, 2002. Are you familiar with that document?
Mr. Railton: Yes, I am.
Mr. Hill: Is that a document that you prepared?
Mr. Railton: Yes, it is.
Mr. Hill: Could you just briefly describe for the examiner, what steps you took to prepare that document and what
conclusions you reached?
Mr. Railton: I visited the site in the company of Jeff _ and Mike Smith from Lovell Sauerland on June 3. They took
me to this area of concern that was along the western property line and asked me to determine if I thought that was a
jurisdictional wetland. I observed that there had been evidence of ponding at the surface. There was leaf litter on the ground.
There was some moderate to what we would call facultative wetland type of vegetation. This would be the kind of vegetation
we would expect to find 50 to 75 percent of the time growing in wetlands. I then augered holes into that area that showed
inundation at the surface to determine if it was underlaid with hydric soils, and found that towards the center portion of the
area we did have hydric soils. Towards some of the outer portions, where it appeared that there had been some ponding we
did not have hydric soils. There was also a vegetation break off site beyond the fence line to the west. We observed wetland
flagging hung on the property to the west. The flagging was hung on both sides, north and south, where the wetland crossed
underneath the fence. There were initials on the flags, which my field experience indicated the TA would indicate Terra
Associates had probably been on the site. I then hung a flag at the eastern most edge of the wetland as I observed it on site.
Mr. _ and Mr. Smith, then, measured to the Terra Associate flag back to my flagging and estimated the area to be about
500 square feet.
Mr. Railton: By visually observing the flags to the western, we made another estimate that this area was another 1,200 to
1,300 square feet in area. It was my feeling, at the time on site, that this was certainly less than the 2,500 square feet of
isolated wetland that is exempt by City of Edmonds Code.
Mr. Hill: Thank you, Mr. Railton. Have you had occasion to review the May 31, 2002 Terra Associates report, which is
attached, I believe as Exhibit B to Mr. Hatch's memorandum, which is Exhibit D in the record?
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 16
Mr. Railton: Yes, I have.
Mr. Hill: Do you have any observations to make with respect to that report that you would be in the position to share with
the Examiner?
Mr. Railton: Mr. Smith informed me several days ago that he had been told by the property owner to the west that he had
observed a garden hose running down into this slightly depressed area and that there was water running into it. He asked me
if I saw anything in Terra's reports that might have been affected by any increase in water added to the area. There are four
data sheets, or what are referred to as field data sheets, at the end of the Terra Report. The first one is a conclusion that the
criteria for wetlands was met. In the conclusion at the bottom of that sheet, Terra refers to significant evidence of hydrology
and hydric soil. The second data sheet is a conclusion of not being wetlands, so this would have been an upland evaluation
site. The third one is an indication that wetland conditions were met. In this one, though, I find that the conclusion at the
bottom of the page is lack of leaf litter and obvious signs of recent ponding water. Compacted soil layer at six inches may be
impermeable to water. It appears to me, from this conclusion, that this particular data site, a great deal of influence was put
on the observation of recent ponding. I felt that this conclusion may have been influenced if additional water had been added
to the site recently.
Mr. Hill: Thank you. I have no further questions.
Mr. McConnell: Thank you very much. Do you have anything further.
Mr. Railton: Nothing further.
Mr. McConnell: Let's take about a five-minute break and just stretch a little bit. I will go and sharpen some pencils.
Mr. McConnell: Okay, we have plenty of tapes.
Mr. Bullock: Oh yeah. I brought a box.
Mr. McConnell: Okay. Mr. Hatch. Do you want to use that table, or do you care?
Mr. Hatch: This might work better.
Mr. McConnell: Fine. We will just have him clear that off. Why don't you take it? I don't know where they went. They
were just here. It's up to you.
Mr. Hatch: I have got quite a bit of space.
Mr. McConnell: Sure, okay.
Mr. Bullock: I will bring out another table.
Mr. McConnell: Okay. Let's just get another one.
Mr. Hatch: Yeah. Here we go. Let's make it easy. We will try to accommodate everybody.
Mr. McConnell: We'll make it work. Look at that. There you go. Okay, are you ready? Okay. Folks, let's take our seats
again. Mr. Hatch, I will turn it over to you.
Mr. Hatch: Thank you, Mr. Examiner. Can you hear me okay?
Mr. McConnell: Sure.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 17
Mr. Hatch: For purposes of the record, I will identify myself. I am Jonathan Hatch. I am an attorney at law. My office
address is 152 — Third Avenue South, Suite 101, Edmonds, WA, 98020. I am the attorney representing the SEPA appellants
in this matter. I also represent those same parties in regard to various objections to the applications, themselves.
Mr. McConnell: Let me just ask. Are you just going to be giving legal argument, or will you be slipping into testimony?
Mr. Hatch: As near as I can tell, Mr. Examiner, this is going to be legal argument. To the degree that I slip, I am sure
someone will point it out.
Mr. McConnell: Okay.
Mr. Hatch: Before we get into the substantive issues, there are some procedural issues that I think we need to clarify or
address, not the least of which is the case number for the SEPA appeal. The notice that my office received a few days ago
noticing this hearing identifies the SEPA appeal case number as AP-2002-57. The materials that we received today identify
it as Appeal Number AP-2002-94. I am a little confused as to which thing we are appealing here.
Mr. Bullock: It is 94.
Mr. Hatch: So the one we got on the notice is incorrect?
Mr. Bullock: It looks like there was a typo, yes.
Mr. Hatch: Okay.
Mr. McConnell: Okay, it is 94 then. All right.
Mr. Hatch: I raise that because the materials that I filed identify that as Appeal 57. So for purposes of the record, I would
like to make it very clear, at this point, that the memorandum should be amended for purposes of the record to reflect that this
is a memorandum in support of the SEPA appeal AP-2002-94, and not 57 as identified in the notice that we received.
Mr. McConnell: Okay.
Mr. Hatch: The second item, the materials that we provided indicated that I was representing 23 parties. In fact, we
apparently failed to include one in our lists. For the record, I also want to identify as an additional appellant and party
represented in this matter, Edward Thomas Jr. and Tracy Jo Thomas, whose address is 17020 — 761 Avenue West, Edmonds,
WA 98026.
Mr. Bullock: Could you repeat their name again for me, please?
Mr. Hatch: Yes. Edward Thomas Jr. and Tracy Jo Thomas.
Mr. Bullock: Is that with a Y or an IE?
Mr. Hatch: Which.
Mr. Bullock: Tracy?
Mr. Hatch: Oh. Y. I am sorry. One final procedural matter that I would like to at least make a record of is my concern
about the representation on the staff report on the SEPA appeal —specifically in regard to Section III dealing with appeals. I
think this is a potentially problematic recitation where reference is made... It says Section 20.105.070 outlines that the
appeal from the Hearing Examiner's determination in this matter must be appealed to the Superior Court within 21 calendar
days of the Hearing Examiner's decision. Unfortunately, State law in this State makes it quite clear that you are not allowed
to appeal a SEPA action unless it is attached to the underlying permit action to which it refers. As a practical matter, I want
to make it very clear on the record right now, that we do not believe that this is a correct statement of the appeal procedure.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 18
Mr. McConnell: I agree. I think it is from the final action of the City is the way it should read.
Mr. Hatch: Right. So we are in agreement on that, I take it.
Mr. McConnell: Yes.
Mr. Hatch: Okay. Good. Okay. Before I address some of the specific points or elaborate on some of the specific points in
the memorandum that I filed, I would like to respond, briefly, to some of the comments that were made in the opening
presentation by Mr. Bullock on behalf of the City and perhaps by the applicant, as well. Let me begin by saying, and I will
reiterate the comments that were made by the applicant, in my dealings with Mr. Bullock throughout this process, he has
been very cooperative and very helpful and every bit professional about this entire process. We simply have some areas
where we can agree to disagree, I guess. And I want to address those now.
Mr. Hatch: My initial concern, as it relates to the SEPA appeal, is what I perceive to be the City's position that there is
virtually nothing they need to do in a SEPA appeal. I draw that conclusion because in Mr. Bullock's opening comments, he
indicated that to the degree that an issue was somehow addressed in the critical areas ordinance, they didn't need to worry
about it because it was going to be dealt with somehow in the processing in the application. On the other hand, he indicated
that in regard to the wetlands issue we raised, if it is not a regulated wetlands, they don't worry about that either. As a
consequence, I am led to conclude that from the City's perspective, if it is not regulated by the City, they don't worry about
it. And if it is regulated by the City, they don't worry about it.
Mr. McConnell: I don't think that was quite it, but go ahead.
Mr. Hatch: That's the obvious conclusion that is drawn, Mr. Examiner, because it was quite clear, from the comments that
were made, that if the area under concern is part of the critical areas ordinance, they don't address that in the SEPA review. I
think that statement was quite clear. Essentially, what Mr. Bullock also indicated was if it fell outside the regulation under
the critical areas ordinance, it wasn't something they were going worry about either. I fail to see how you can draw any other
conclusion but that the fact that, from the City's perspective, the SEPA review process is simply a rubber stamp. Now, that
causes me some concern. In light of this particularly application, it is very problematic because under State law, the SEPA
process is the governing policy regarding property developed in this State in so far as it effects the environment. Moreover,
local governments have a responsible, both legal and fiduciary, to the citizens of this State to see to it that the process is full,
complete, and genuine. In this particular instance, if the City's basic position is that they don't have to take into account
critical areas ordinance issues during the SEPA review process, I fail to see how the SEPA review process in this City
constitutes a review at all.
Mr. Hatch: Now, insofar as the specific issues that we raised in our memorandum. Our position is that the environmental
review process, rather than being ancillary to consideration of the critical areas ordinance, is an integral part of that process.
You cannot separate the two. In the process of reviewing a proposed project under SEPA, it is absolutely essential that the
City review its own ordinances as they relate to protection of the environment to see whether or not the proposed project
conforms with those ordinances. Now, this isn't just my perspective on things. This is State law. The case that we sited the
materials, the Gardner case verses Pierce County Commissioners, makes it quite clear that if a local body makes a
determination of non -significance in the face of what appears to be a violation of law related to development standards or the
environment without a specific factual basis for having done so, they have made a clearly erroneous determination of non -
significance. That's the law. And in this particular instance, it is out position that in numerous specifics, the City failed to
make any factual determination regarding these matters in making its SEPA determination of non -significance. And in fact,
they have essentially conceded that point.
Mr. Hatch: I would also like to preliminarily address a couple of comments that were made by Mr. Smith on behalf of the
applicant before I launch into the more substantive issues. In our materials, we make reference to the environmentally
sensitive areas map. Now, I know the City Planning Division and the applicant would both like to pretend that doesn't exist,
and Mr. Smith indicated or characterized it as a relic (or I guess he was actually quoting Mr. Bullock in characterizing that
map as a relic). That is going to come as a shock to the City of Edmonds City Council because they just readopted it as part
of the Comprehensive Plan last fall in their 2001 Comprehensive Plan, as we point out in our memorandum. For purposes of
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 19
the record at this time, I would like to offer as an additional exhibit to the record, a copy of the environmentally sensitive
areas map, with the subject property delineated on it.
Mr. McConnell: The map will become Exhibit M, as in Mike.
Mr. Hill: The applicant has no objection to the Exhibit. Of course, the Examiner can take judicial notice of it anyway.
Mr. Hatch: The Comprehensive Plan that was adopted by the City Council last year and which governs this particular
application, specifically identifies the Edmonds Environmentally Sensitive Areas Map as one of the governing documents
that dictates what the Comprehensive Plan of this City is. While the Environmentally Sensitive Ordinance was repealed by
the City Council, by the language of the Comprehensive Plan, it was their clear intent to continue the Environmentally
Sensitive Areas Map as a component of the Comprehensive Plan. That is clearly set out in the Comp Plan, itself, on Page 10
where the Council adopted the following language, "Repeal or modification of the text of the original ordinances or
resolution adopting and/or amending any of the foregoing plans or maps (this follows a listing of maps which includes the
one we are referring to) shall not affect the validity of said plans or maps which are hereby readopted." Now I would contend
that there couldn't be a much clearer statement of legislative intent on the part of the City Council, but to maintain that map
as part of the Comp Plan of this City.
Mr. Hatch: Now that is important in our view because that Comprehensive Plan clearly indicates that the subject property
lies squarely in the middle of one of the sensitive areas identified on the map. The reason I think that is important is because
in its initial evaluation of a subject property. It is our perspective that the City must make sort of an initial or global
assessment of whether the property in question is likely to present any significant environmental concerns. Obviously, if the
property is located up on Highway 99 someplace immediately adjacent to a shopping center on a well -developed commercial
area, the likelihood of significant environmental concerns covered by the critical areas ordinance act is pretty remote. But
when they are presented with a property that is essentially undeveloped, and which has already been identified in the
Comprehensive Plan as an environmentally sensitive area, our belief is that there antenna ought to go up. That requires them
to approach that situation with some degree of caution. Now, in this particularly instance, it appears from what has been said
here today that the City's response to that was to fall back on the idea that the critical areas ordinance would somehow come
into play somewhere after the SEPA process was concluded. We believe that is procedurally bankrupt and really completely
vitiates the purpose for a SEPA review.
Mr. Hatch: The other comment made by Mr. Smith was that, recognizing that the clear air standard applies, that somehow
we have the burden of doing something here. Again, that misstates the law. As our memorandum points out, the City has
the burden of establishing that they complied with SEPA and that their review constituted a review of materials which were
sufficient, adequate and accurate enough to reasonably give credence to their ultimate conclusions. We don't have to prove
or do anything. We have no burden here other than to question what they have done, and that is what we are doing.
Mr. Hatch: The final area that I will talk a little bit more in a few minutes about is with regard to the geotechnical report.
Both the City's staff report and comments made by Mr. Smith seem to be expressing some consternation over my reference
to Chapter 19.05, which deals largely with the issue of building permits. The only reason that section is raised in our
memorandum is the fact that the portion of the critical areas ordinances that give authority to the Planning Director to reduce
a steep slope buffer area is very specific in saying that in order to do that, and as a precondition to doing that, there must be in
possession of the City Planning Division a geotechnical report which complies with the provisions of this Chapter 19.05.
That is the only reason for that reference in the materials. And I will address that again in a little bit more detail in a minute.
Mr. Hatch: Mr. Smith also had some concerns about the issue we raised in our memorandum regarding the slope buffer
reduction issue. I am not here today suggesting that somehow these appellants should have had the opportunity to appeal the
buffer reduction and didn't get a chance to do so. We are going to talk about that issue today. My concern here is the fact
that it appears from the record that the Planning Division just sort of presumptively approached this as though they were
dealing with an application with a 10-foot buffer with no formal action on it and without any factual justification in the
record for the fact that they were doing that. The problem here is that it sort of typifies what I see as a somewhat laze fare
attitude about what the obligation is in reviewing these matters as one of these applications comes through. Mr. Smith, I am
sorry, Mr. Bullock, I believe it was, made reference to the fact that the geotechnical advisor makes the decision about how far
to reduce the buffer. That is categorically incorrect, with all due respect to Mr. Bullock. That is not what the statute says.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 20
The statute says that the authority to reduce the buffer is granted solely to the Planning Director after he has been given a
report from a geotech, which meets the requirements of Chapter 19.05 and which clearly establishes that to do so is not going
to be environmentally damaging. Now, our concern here is that the report that was presented doesn't comply with the statute
and because of its own internal concessions regarding the preliminary nature of the report, it cannot, by its terms, clearly
establish anything. And I will get to that in a little bit more detail in a minute.
Mr. Hatch: I am not going to address in great detail the wetlands issue today, partly because the applicant's already
conceded that they are somewhat embarrassed by the issue, and also because the City has made a recommendation which I
hope and assume the Examiner will agree is appropriate, which is to require a third party report to be done on this particular
property to see what the nature, extent, delineation of that wetland is and the degree to which that will impact this project and
require environmental buffers which may have a significant impact on the way this project is currently configured.
Mr. Hatch: Let's shift gears for a minute then and talk a little bit more specifically about our concerns in this area. With
regard to the SEPA appeal process, the law in this State quite clearly indicates that at this level, this is a quasi-judicial
proceeding, and that the standard to be applied in reviewing the City's action is the clearly erroneous standard, which is to
say that the entire record (everything that is submitted at this hearing and everything which is a part of a record of this
hearing) can and must be considered. Additionally, the public policy behind SEPA must be considered. Essentially, it
involves determining whether on a review of the entire record the public policy behind SEPA has been honored and whether
the materials and the process followed by the City in conducting its environmental review establishes in the mind of the
reviewer, in this case yourself, that they haven't made a mistake. Now that is the bottom line. Our belief is they made a
mistake. And the mistake is that they concluded that, given the information they had and the information they actually
considered, that there was no risk of a significant environmental impact from this project. The problem I have with that, and
the problem the appellants are raising today is the fact that the critical areas ordinance, the underlying axiom behind that
ordinance is that those buffers are necessary to prevent precisely that. That is a significant environmental impact, which is to
say that if the environmental buffers are violated by terms of the proposed project, it is essentially a given, or at least it is
presumed, that a significant environmental impact will thereby result. Otherwise, there is no reason to have the buffer in the
first place.
Mr. Hatch: As a consequence of that, in doing an environmental review of a proposed project, it is incumbent on the City,
in our view, to evaluate each and every environmental buffer that may come into play in regard to a project, and as part of the
SEPA process, determine whether the buffers are being violated, and if so, to what degree, and if so, whether or not that
violation can somehow be justified or mitigated in some fashion. In our view, none of that was done in this case. And it is
fairly clear from Mr. Bullock's statements that it wasn't.
Mr. Hatch: Getting into the specifics of this situation, with regard to the geotechnical report issue, there are some that might
consider this to be nitpicking, but you know we are a Country and a State and a City of laws. We are governed by the rules
and regulations that our legislative bodies enact, and our legislative body here in Edmonds, the City Council, has enacted an
ordinance that says that a geotechnical report that is going to be used as part of a consideration of buffers, as they affect steep
slopes, has to meet certain basic requirements. In our view, the report filed by Dr. Lee or Low, I am not sure how to
pronounce his name, fails to do that. And in fact, in fairness to the good doctor, he essentially acknowledges that it is not a
complete report. He indicates it is preliminary. Again, I come back to the point that a preliminary report, in reviewing a
SEPA matter, is not adequate. If it is not a final report, then what good is it? You can't come back with a final report after
the SEPA process has been completed and all appeals have been finalized and then file a report. It wouldn't be admitted to
the SEPA record. It couldn't be. Consequently, if it is not a final report, I submit it has little or no value in the evaluation of
the process. Now that is particularly critical here because the geotech's report acknowledges internally that there is no
subsurface soil analysis or evaluation, and in fact, says that no development should occur unless and until that is done. It
admits that there may be some modification of his conclusions based on those findings. Now, under those circumstances, our
view is that there is no conceivable or logical way in which someone doing a SEPA review could conclude that that report
justifies reducing a buffer from 50 feet to 10 feet and thereby concluding that there is no environmental impact.
Mr. Hatch: In regard to the steep slope issue, this is obviously integrally related to the geotech report issue. Presumptively
in this City there is a 50-foot buffer, as Mr. Bullock has acknowledged back from the top of a steep slope. In this case, this is
not just a slope, this is a steep slope hazard area —one of the most potentially and environmentally difficult situations to
address. In this particular instance, the applicant didn't make any formal request to reduce from 50 feet to 10 feet, and maybe
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 21
they don't have to. Although at least implied in the statute is the fact that there has to be a request before there can be action
to grant such a thing. But there was no formal request to do that. They did file a preliminary plat map that had a 10-foot
buffer and so, presumptively, that was what they were asking for. But there was never any specific action taken on that, and
there was certainly no findings in the record whereby the City Planning Director or his designee says that they are reducing it
from 50 feet down to 10 feet based on the necessary standards. The statement made by Mr. Bullock is the buffer can be 10
feet, and then leaves it there. There is nothing in the record that establishes why it should be, why it ought to be, or anything
else. It is just can be. And so the entire review of this project was based on an underlying assumption regarding the width of
the buffer, which isn't justified by any factual material in the record. It is not insignificant. If the slope buffer is 50 feet,
taken together with the 15-foot building setback that Mr. Bullock referred to, this would move the entire buffer process 65
feet from the bluff, that were are talking about or the top of the slope that were are talking about, and would essentially cut
most of those lots on that dwelling in half. So, it is not an insignificant issue.
Mr. Hatch: Our concern here is that, again, in the process of doing the environmental review, I think the City staff kind of
mixed their apples and oranges. This is not just a building standards question. This is an environmental question, and that is
what SEPA is all about. In evaluating the environmental impact, our view is they have to presume that there is a damage
going to be caused to the environment if anything is built inside of 65 feet from that bluff. The only way they consider
anything else is if there is some record that would establish justification for doing so. In our view, that is totally lacking in
the record.
Mr. Hatch: With regard to the stream buffer issue, I guess all I can say about that is this. Fortunately, our State Supreme
Court has given us the answer to that one. The applicant has brought up an environmental hydrologist to give us a definition
of what top of the bank means. Well, with all due respect and in recognition of his qualifications and experience, it is
irrelevant because, in this particular instance, our State Supreme Court has said unless a term is defined in the statute, giving
special meaning of some kind, we must look to the ordinary usage of the word. Not ordinary usage in terms of some
specialization or specialty, but ordinary use on the street. And I say that because, in this particular case, it is clear why that is
true. I could bring in half a dozen expert, some of whom I could probably across the street from where we are sitting, that
would give you a definition of bank that will talk about accounts and checking accounts and loans and all kinds of things. I
could bring an expert from Boeing who would talk about bank in terms of aerodynamics and flight path and all kinds of
things. The term bank is susceptible to lots of definitions and there are many specialized definitions of that term. But what
our Supreme Court has said is if the term is not identified and specifically defined in the statute, we must look to common
usage. In that regard, the Supreme Court, in numerous cases (four of five of which have been decide within the last calendar
year) have said what you look to are dictionaries. Go see what people mean when they say these words. In our
memorandum, I cite for your information and for your review, several definitional citations from a number of well-known
and acknowledged dictionary references that I got out of the public library that define bank as it relates to a body of water,
which is what we are talking about here. In that particular context, it is very clear that the definition of the term bank means
the top of a slope, the adjoining slope, the steep cliff, the bank, call it whatever you want, adjacent to a stream bed.
Mr. Hatch: Now, I recognize from what Mr. Bullock has said that the City may not have always interpreted the ordinance
that way, but you know what, I don't think that matters. You can't rely on a continuing history of error to justify current
application of that same error. It is a bit akin to telling the IRS collection agent that "gee, you haven't filed a tax return in 20
years, I don't know why I should have to file one now." That is not the way it works. It may be because no one has ever
raised the issue before, but we are doing so and I am doing so today. I find it kind of interesting because in Mr. Bullock's
staff report, he specifically uses the term top of the bank, and in doing so, he is talking about the top of the steep slope. That
is the phrase he chose to use. And I think that is enlightening because I suspect that is the term most of us would use in
connection with that particular geographic situation. It is our position that the ordinance that governs stream buffers in this
City very clearly requires that the buffer must be initiated from the point at the top of the adjoining slope —the steep slope or
acclivity as it is defined in our memorandum. If you want to march in experts all day long and talk about stream beds and
stream cuts and everything else, it is not relevant. Those folks should be testifying to the City Council about establishing
some kind of definition if they don't like the one that Webster's gives to it. In our view, in this particular situation and as
required by State law, the definitions we have to look to are the ones that you and I use on the street and which Webster has
given us in the library. Not those that are given by any number of experts or specialists from half a dozen different fields
who have half a dozen different definitions for the term. If the City Council wants to redefine, or I should say define or
change what that means, all they have to do is pass a definition in the ordinance and do so. They have not, and we are bound
by what Webster tells us.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 22
Mr. Hatch: Now, the impact of that is significant in this case because what that basically means is that the stream buffer, if
measured from the top of the slope (That has been clearly defined on the plat map and Mr. Bullock was kind enough to point
that out for us) would require that the setback from the top of the slope be 25 feet plus 15 feet for the building setback,
meaning there couldn't be anything built closer than 40 feet to the top of the slope. If one looks at the plat plan as it is
currently drawn (and it is up on the board right now) at least two of these houses would be sitting squarely in the middle of
that setback.
Mr. McConnell: Let me just use an analogy here. I have got a question I just have to ask. In this State, then taking that to
the extreme if you would, if you use that same definition, if you were to go down the Columbia River Gorge, what I here you
saying is that the top of the bank is the top of the Columbia River Gorge at the very top of the gorge.
Mr. Hatch: It may well be.
Mr. McConnell: And so everything in between is part of that riverbank.
Mr. Hatch: It may well be.
Mr. McConnell: I just wanted to make sure that I understand you.
Mr. Hatch: I may be. I didn't define the term, you know. It may well be the impact. I don't know. You would have to
take it on a case -by -case basis, Mr. Examiner, and in this particular instance ...
Mr. McConnell: Well no. I think we have to take it as a general ... It is not a case -by -case, it is a general definition. If it
is not defined by the City then it becomes a general definition, and it becomes a definition that applies personally.
Mr. Hatch: What I meant by that is not that we define it on a case -by -case basis, but you would have to look at the physical
topography of each situation to see where the top of the bank was. Yes, my belief is that the statute, as currently drafted,
clearly requires that the measurement be taken from the top of the immediately adjoining slope, wherever that happens to
take you. If it takes you up three feet, fine. If it takes you up 150 feet, fine. If it takes you up a half a mile, fine. Again, I
didn't define these terms, and I didn't enact the ordinance. I am simply indicating what I believe they clearly say.
Mr. Hatch: Okay. As I say, this has a significant impact because insofar as this project is concerned, it would directly
impact several of the buildings which are proposed. I also go back the point that I made earlier, which is at least until the
record contains sufficient justification for moving the slope up, our contention is that the slope buffer includes most of these
buildings, as well. But having said that, even if the slope buffer can somehow later be justified to be reduced, our position is
that the stream buffer precludes the development as it is currently configured, in several respects. This also impacts the trail
for reasons which are delineated in our materials. And that is because the trail, itself, as it is currently drawn, wanders
basically from south to north kind of along the edge of, sometimes on top of, sometimes part of the slope that we have been
talking about. The ordinances in this City clearly require that a trail can only be located in the stream buffer if it is located in
the outer 25 percent of that buffer. Given our position, that would preclude the trail from being constructed anywhere on the
slope and would require it to be constructed on the highlands, if you will, running essentially through the back yards of all of
the properties that are currently drawn on the map.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 23
Mr. Hatch: This is an issue that amplifies our concern that in virtually every respect where a buffer issue is involved, it
appears that the City's position is that they won't worry about any of that stuff until they get down to actually breaking
ground or until they get around to issuing a building permit. In our view, that is too late for any number of reasons, not the
least of which is it preclude the ability of anybody who has an opposing view or an opposing interpretation to have any say in
the matter because the SEPA process is over. And that is not what SEPA requires procedurally
Mr. Hatch: With regard to the wetlands issue, I briefly indicated earlier I am not going to beat that one to death because it
sounds like the City, at least, believes that it is appropriate for some additional studies to be done. I simply would reiterate
the fact that we apparently have some factual dispute here regarding where and to what extent there is a wetlands there is
involve here. It seems to me that the only practical answer to that is to require that third -party review and to determine or
delineate exactly where those wetlands are and take appropriate action to buffer them if they fall within the regulations of the
City. I would also indicate, however, that I don't know that I absolutely agree with the City's position that if it is an
unregulated buffer under City law that it doesn't have any applicability under SEPA. SEPA doesn't have buffers in it. SEPA
talks about environmental impact, and when you are looking at a site plan, you are to look at the totality of impacts. Here we
have a stream, we have slopes, we have the potential for wetlands. We have any number of environmentally sensitive issues,
and it is the totality of that review which should be the determining factor in whether a DS or a MNDS or whatever is issued.
In this particular instance, I don't think it is appropriate to conclude that if the wetlands involved here somehow falls below
the City's regulation, that that simply takes it out of the equation. That is not what SEPA says. It is part of the equation and
must be considered in the overall process. And it is clear up to this point that hasn't happened.
Mr. Hatch: In summary insofar as the SEPA issues are concerned, Mr. Examiner, it is our position that the City's review ha
been clearly erroneous on any number of specific issues as it relates to the environmental review. They have essentially
acknowledged that they did not review a project in light of the critical areas ordinance buffers. They essentially have told us
that that is something that will be taken up later. Well, I would take the position that they can't do that. That's not the way
this process works. It has got to be taken up now so that the interested parties have an opportunity to review it and to present
opposing views should they choose to do so. As a consequence, it is our position that because this review did not meet the
procedural or substantive of SEPA that it should be remanded back to the City to conduct an EIS. I do not agree with the
implication of the applicant that this means now that the City goes back and issues a modified DNS or that they would have
to issue now some kind of a determination of significance. The way I read the law in this State, if the initial threshold
determination is overruled, they have to order an EIS. That is the only alternative left at that point. In effect, their initial
determination has been vitiated, and the EIS is mandated at that point. We would suggest that that is what is required in this
case.
Mr. Hatch: Given the hour, I would like to address some issues regarding the specific application, but perhaps I will look to
you for your guidance regarding breaks or lunches or whatever.
Mr. McConnell: Let's take a lunch break. I think that is a good idea. I think everybody is probably tircd of sitting at this
point. What is appropriate? A short lunch of 45 minutes to an hour.
Mr. Hatch: That is adequate from my perspective.
Mr. McConnell: Let's come back in 45 minutes. We can grab a sandwich or something in that amount of time.
Mr. Hill: Mr. McConnell, could I just ask a procedural question?
Mr. McConnell: Yes.
Mr. Hill: Counsel is basically doing closing argument on the SEPA issue. I had planned to do my...
Mr. McConnell: Well, we are going to come back.
Mr. Hill: Basically, should I hold off until all of the public comments and...
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 24
Mr. McConnell: We will make sure everybody has everything they want to say before we leave. Well, hopefully before,
you know. We might be back again.
Mr. Hill: So, when should we return?
Mr. McConnell: One o'clock.
Mr. Hill: Thank you.
Mr. McConnell: Are we ready to go? Are we on?
Mr. Bullock: Yes.
Mr. McConnell: Okay. Mr. Hatch, back to you.
Mr. Hatch: Thank you Mr. Examiner. Right before the break, I indicated that we would be moving on to issues related to
the compliance with the PRD ordinance. However, before doing that, I would like to just briefly address a couple of matters
related to the SEPA review. You asked me at one point whether my analysis of the definition of bank would include the
situation of the Columbia River Gorge. I don't know whether that was a facetious question or a serious question.
Mr. McConnell: No, I mean I might have taken it to an extreme, but nevertheless, where in there does it stop?
Mr. Hatch: I guess I would like to address that because in the context of this particular case, I think that is a serious
question. First of all, when one asks the question where does it stop, I guess the question really is where does the
environmental concern start. The fact of the matter is when you are dealing with a stream or a river or any flowing body of
water that is located at the bottom of something, the simple fact of the matter is that when you are evaluating environmental
concerns, any untoward environmental event that occurs anywhere on the uplands, on the slope if you will, above that river is
ultimately going to end up in the river. It doesn't really matter whether it is 50 feet or 500 feet or 500 yards or a half a mile
or however far it is. If it is on the slope down to the river, it is going to end up in the river. I would submit that it is perfectly
logical to conclude that buffers need to be established form the point of the uplands where that is no longer a concern. You
are trying to avoid things happening on the downhill slope that will eventually end up in the river or the stream or whatever it
is. So I don't think it is an exaggeration to suggest that the intent of a stream buffer or a river buffer is to prevent activity on
the downward slope that could eventually end up causing problems in the body of water, itself.
Mr. Hatch: In the context of this case, I think it is important to recall that we are talking about or evaluating a City of
Edmonds ordinance, which was presumably adopted with the City of Edmonds in mind. In this particularly instance, as Mr.
Bullock has pointed out, we don't have any rivers in this City. We don't even have any Class I streams in this City. What
we have are a bunch of small Class II and smaller streams. Under the circumstances, I don't think it is at all a stretch of the
terminology or imagination to conclude that the actual intent here was to make sure that activity didn't occur on the slopes
that led down to these streams because given the relatively short distances that entails, inevitably, activity that occurs on
those slopes is going to impact the stream, presumably in an adverse way. I think it is particularly important (the tape stops
here for a moment)
Mr. Hatch: In Section 20.15.13.190 is found the following language, and that is that the ordinance shall "be literally
construed to give full effect to the objectives and purposes for which it is enacted." I would submit that in that regard...
Mr. McConnell: What is that citation again?
Mr. Hatch: It is 20.15.B.190. I would submit that the interpretation of the stream buffer should be given the broadest and
most liberal construction that is reasonable to give the affect to the statutes, to the critical areas ordinances statute, that can be
given. That is what the City Council has directed us to do. And I don't think it is stretch at all because in this particular
instance, the City Council could have defined the term bank. They could have brought in any number of people to give them
a specific definition as to what that meant. But given the circumstances that we have here, and even a visual recognizance of
this particular property makes it very clear that this interpretation is not a stretch, at all. This stream doesn't have a big
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 25
channel that is cut down through the property or anything else. It is a stream that flows at the bottom of the ravine. The
natural acclivity or slope that gradiates down to that stream is exactly the steep slope that is governed by the steep slope
ordinance. This is not a tortured interpretation of either the physical layout or the statute. It is the only reasonable conclusion
you can draw because if the stream buffer, in this instance, were to stop half way up that slope, I would submit it becomes a
meaningless statute and a meaningless buffer. It no longer has any viability. That is not what liberal construction of the
statute requires.
Mr. Hatch: So, having said that, I would like to move on to the issues related to the applications themselves. As was noted
at the beginning, we do have some concerns about some I guess jurisdictional questions. The counsel for the applicant has
indicated that the points we raised in our memorandum about the conflict in the City code regarding your function here today
is resolved by standard rule of statutory interpretation. I disagree because standard rule of statutory interpretation, in my
view, don't cover the problem that we have here. This particular situation is a jurisdictional question. This is not a
substantive issue. This is jurisdictional. The two ordinances in question, very clearly are designed to grant to you
jurisdiction to do certain things. In the first instance, you are granted the ability or the authority to hold the hearing, come to
conclusions and findings and make a recommendation to the City Council. In the provision found in the new PRD, you are
given authority to hold a hearing and make a final decision. That is jurisdictional, plain and simple. Without some resolution
to that jurisdictional problem, I think it is inappropriate for a decision to be made on this case until that problem is resolved.
Mr. Hatch: It is also problematic because in normal statutory interpretation situations, we are dealing with statutes which
are in conflict within context of the same statutory scheme. Here we have two completely different chapters of the City Code
at question. The authority granted to you to hold a hearing and make recommendations is found under Chapter 20.100,
whereas the other one is found under the PRD ordinance. Completely different titles, and I don't' think you can take the
position that the last one enacted somehow preempts the other one when it is an entirely different chapter of the code and
deals with entirely different issues. So my concern here is that ...
Mr. McConnell: The PRD code did require that I make a recommendation. Up until the change last year to the PRD code,
they were consistent.
Mr. Hatch: Right. I understand. And now they are not. And my position is that, legally, there is a jurisdictional conflict in
the code right now, and I don't think it is prudent to proceed with some kind of decision in this matter until that issue is
resolved.
Mr. McConnell: Before you go any further. I intend to seek legal review from the City Attorney before I issue a decision
on this. As a matter of fact, with all the information I am getting, I may or may not be able to get this all done in two weeks,
anyway. The City gives me two weeks in which to prepare a report, whether it be a decision or a recommendation. I think
what I will do is keep the hearing open administratively to ask Mr. Snyder for a ruling in this particular case. That firm has
to defend this, and from a procedural standpoint, I want to know how they feel about this.
Mr. Hatch: Sure.
Mr. McConnell: And that will give me enough time to make sure I get this report. I don't know how long it will take. I
don't even know if Mr. Snyder is on vacation or not.
Mr. Bullock: I don't either.
Mr. McConnell: I will have to hold the hearing open administratively to allow for a response and then I will get a report out
as soon as I can.
Mr. Hatch: I just want to clarify. It is your intention...
Mr. McConnell: I understand the issue.
Mr. Hatch: I know you do. I am making a record. But just to be clear on what you just said, it is your intention, then, to
seek a formal opinion from the City Attorney before making any decision to move forward or not as the case may be.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 26
Mr. McConnell: Yes.
Mr. Hatch: Okay. With regard to the application, itself... Because of the unique of these hearings where we are forced to
combine in some cases, I won't say unrelated, but different kinds of matters, in this case the SEPA appeal and the substantive
issues surrounding the applications themselves, there is, of necessity, a certain amount of overlap. So, I am not going to
reinvent the wheel or beat this to death, but obviously, all of the issues related to the critical areas ordinance that I discussed
before lunch are clearly applicable to whether it is appropriate to approve this application. In our view, the current
application, as proposed, violates numerous provisions of the critical areas ordinance a I believe it is properly interpreted. It
would be inappropriate to approve this proposal without significant modifications. The practical reality is that if the critical
areas ordinance is interpreted as I believe it should be, this project or this property is not going to left with enough property to
develop seven lots under any reasonable or logical approach. I submit that it would make better sense for the developer and
the City to look at trying to scale this project down to something more akin to three or four homes that can be put on these
properties and be in compliance with the buffers. I would submit to you that that would be a reasonable and appropriate
compromise of the concerns of not only my clients but many others against the rights of the developer, in this instance. This
particular property is a problematic property, and that is why it is identified as environmentally sensitive. Essentially, we feel
that this is a property which can actually support three or four homes reasonably —not the seven that the proponent is
attempting to get approved here today.
Mr. Hatch: As was pointed out in our materials, and this is really a reflection of the staff s input. Apparently, this is the
first application that has come up through the pipeline under this new PRD. We believe that there was good intent behind it
in the sense that the staff presumably had input into it. The City Council clearly was attempting to create a statutory
mechanism for allowing more intensive development of lands which might otherwise be somewhat problematic for that
purpose. There is no reason to think that there was anything inappropriate about any of that. However, in this particular
instance, the problem, as we see it, is that because this is the first time through the pipe, nobody knows exactly what they are
supposed to do in some respects.
Mr. Hatch: In reviewing the ADB report that was prepared in this particular case, it is clear that some of the members of the
Board had some concerns about the (for lack of a better) preliminary nature of the design plans for the buildings that are
proposed for this particular project. In going through them, I came to somewhat the same conclusion, just on an informal
basis because I am not an expert in such matters. But it would have been virtually impossible for me, as a lay person, to
attach any particular specificity to the design plans for these buildings except in a very global sense. It is clear from the
comments of the chair person of the ADB that he shared that same concern, and in our view, because this particular
application may in some respects be precidential insofar as future PRD's are concerned, we would urge you to take a really
hard look at that issue and attempt to balance the desires of the developer to get buildings built against the concerns and
rights of the adjoining property owners with what this thing is going to look like when it gets all done. The design criteria in
the PRD are reasonably specific. Unfortunately, the application that is currently pending isn't. It is difficult to compare the
application with the standards in any real specific way. Now one of the problems that we see is the fact that the new PRD
ordinance essentially is structure along the lines of a two stage or two phase process.
Mr. Hatch: While the ordinance, itself, purports to give you the ability to make a final decision on the PRD, in point of fact,
the way this ordinance is structure, once your decision is final, assuming it is to approve the project, then there is a second
phase wherein a lot of the details are worked out, so to speak. We can quibble about policy and procedure here, I suppose, all
day long. But our position is that part of your responsibility, under this new enactment is to see to it that there is enough
specificity to the proposal that those who have desires to have input into that process at the hearing level have enough to
work with and that what's really happening on the back side is compliance not tinkering. In this particular instance, we are
concerned that the proposed structures are so generic in their description that a lot of tinkering is likely to occur. In fact, I
think the applicant, or perhaps Mr. Bullock, made reference to the fact that if a particular buyer wants to have some
modifications made to the house they want built that that is something they will be doing. Now, that is the kind of tinkering
that shouldn't be going on after this hearing in our view. We recognize that this is sort of a plat approval, in one sense, and
that the final building permit process has its own inherent regulatory aspects to it. But because of the unique characteristics
of a PRD and the fact that it is a substantial deviation from the underlying zoning applicable to all the other properties in a
given neighborhood, we feel that a significant amount of specificity has to be demanded of the applicant and reviewed by you
as the Hearing Examiner at this level so that we don't have, in effect, sort of a generic approval that later gets monkied
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 27
around with in great detail after the fact, and there is no ability or procedure by which affected parties have an ability to
complain about that.
Mr. Hatch: So we are asking that in your analysis of this particular report, you take a very hard look at the degree to which
the applicant has given us enough specificity regarding things like building heights, regarding things like the exterior siding,
or the visible appearance of these buildings and all the other things that go into what a project looks like when it gets done to
make you comfortable and thereby make us comfortable that this isn't going to be susceptible to a lot of monkeying around
after the fact.
Mr. Hatch: Now, as pointed out by Mr. Bullock early on, the PRD is an unique ordinance in some respects because what it
basically does is it undoes all the law that otherwise applies and creates its own internal standard. I am not going to be
anything less than candid by telling you that the people I represent are people who have purchased, developed and lived with
the RS-12 zoning in their neighborhood for a lot of years. They are very unhappy about the fact that this ordinance is going to
essentially allow somebody to come and develop the property in a way, which as they view it, is entirely inconsistent with the
surrounding neighborhood. It is not an infill. It is an infiltration. That particular situation is one which I think is a valid
concern when evaluating this kind of project. The PRD is designed to allow development in otherwise problematic
circumstances. It should never be used as a substitute for regular zoning and regular development standards. It should be
applied in specialized situations where circumstances really don't permit any other reasonable development of the property
and where it is going to lead to a project which is consistent with the surrounding neighborhood, if you will.
Mr. Hatch: In this particular instance, the proposal that has been made calls for lot sizes which are essentially half or less of
the lot sizes in the entire surrounding neighborhood. And I am not talking for a block or two. I am talking about for a couple
of miles. These properties would be unique in the entire west slope of what is sometimes referred to as the Talbot Road area.
These houses, seven of them collectively, would be placed on lots which the subtotal which would equal about 21/2 or 3 of the
other lots in the neighborhood. This is inconsistent with the neighborhood and the property owners that I represent have
profound concerns about the negative impact that is going to have on their property values and on the entire environment in
which they live. Now, everybody knows and is familiar with the NIMBY problem. Not in my back yard. But in this
particular situation, this is a circumstance that we feel is one that is somewhat precedential. If this ordinance is essentially
going to become the vehicle by which any property owner or any developer wants to jam a bunch of buildings into an
otherwise difficult property anywhere in the City, which essentially under this ordinance it says they can do, I think we are
opening ourselves up to all kinds of potential problems. This won't be the last of these hearings with a packed room. They
will be coming one after the other. So it is important to take a hard look at what this ordinance was intended to do and
whether, in the context of this specific project, this is really what the City Council had in mind here when they enacted this
thing.
Mr. Hatch: The ordinance talks about the fact that because it allows substantial modification from the conventional
development standards, that some kind of clear public benefit needs to be realized. There are a number of provisions in the
ordinance about what those clear benefits ought to be. Because the term "clear public benefit" is a little vague, I would
submit that at least in the normal context of things, one would have to assume it would have to provide some kind of general
benefit to the public at large or presumably to those people in the immediate area. It isn't quite clear to what extent either of
those is the correct interpretation. May be it is both. I don't know. But in any case, in reviewing this project, it appears, as
near as we can tell, that the primary public benefit that was implicit in this project are these open areas that were supposed to
be available for people to use. Now the ordinance is not clear, nor does anything in the application make it clear, whether
these open areas are supposed to be usable by the public at large or whether they are available only to the property owners in
the development. Again, I would ask you to take a hard look at what the statute doesn't say about that. I can't find anything
in the ordinance, itself, or anywhere else that specifically addresses what that means. Usable open space that has a clear
public benefit, to me at least, implies that the open spaces are available to the public. That they are going to be able to go in
there and hold picnics or whatever they want to do. I don't know that is what the property owner —the applicant —thinks is
the case. But if that is not the case, then what is the clear public benefit. So again, if the creation of these open areas is
designed to provide the public benefit that the ordinance requires, and there is any question about whether those spaces are
available to the public, I think that needs to be clarified in your determination on this particular application. Because if that is
not the case, then I question whether there is any discernable public benefit to be found in this project.
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Mr. Hatch: We also have some concerns about the compliance with the open space aspect of the ordinance, anyway. Since
the original plat plan was submitted, and for that matter after I prepared my memorandum, I became aware of a new plan that
was filed, I think just last week, that makes some modifications to the original plan. If relocates the open space to the
northern side of the property. That doesn't significantly have any impact on our concerns, but according to the staff report,
the combined area of the reconfigured open space is a slightly larger than that which was originally proposed. In my
memorandum I mentioned the fact that if the trail cannot be constructed pursuant to the critical areas ordinance, that space or
square footage, if you would, would have to be eliminated from the usable open space that can be used for purposes of
complying with the PRD. I think that is probably still the case. No one has done a physical dimension measurement of the
proposed trail, but it is clearly being included. I don't know how that impacts compliance with the minimum open space
mandate of the PRD, but I think that needs to be looked at pretty closely.
Mr. Hatch: As a practical matter, if our interpretation of the stream buffer is correct, and of course I believe it is, then the
trail, as currently proposed, cannot be built. It would be a violation of the critical areas ordinance. That being the case, I
think the symmetry, the design of this particular project, at least as so far as it presents a proposed public benefit, is
substantially undercut.
Mr. Hatch: There is a small, I g uses it is described as a child's play area on the street, which I had some questions about
anyway. But in addition to that, there is this so called picnic or open area at the back of the property which presumably
would only be assessable by the public by walking down the cul-de-sac road and between the houses to get to it. I don't
think is what anybody has in mind here. And I question again, if this design, if that trail cannot be built, holds up under the
scrutiny of what was intended by the PRD ordinance in so far as it provides a clear public benefit. In essence, and I am
probably not going to be near as vocal on these points as some of the folks in the room because I am limiting myself to the
legal issues. But in essence, the folks that I represent are people who recognize that the owner of this property has a right to
develop it. They all recognize that eventually it will be developed. Their concern is what they perceive to be a rather
cavalier approach being taken by the City on this particular project and a pushing of the envelope on almost every front. The
fact that if this is basically the standard by which these projects are going to be evaluated, we are all in deep trouble in this
City. So we ask that you take a look at this one very, very carefully, and we respectfully request you to deny this application
as it is currently configured and to continue to do so until it complies not only with all aspects of the critical areas ordinance,
but all aspects of the new PRD ordinance. Thank you.
Mr. McConnell: Thank you. Okay. Who would like to speak first from the neighborhood? Anyone want to go first? Yes
sir. Over here. I just need you at a microphone. You can use the table or you can use the podium.
Mr. Metcalfe: Can I have the overhead?
Mr. McConnell: The overhead. Yes. Can you state your name and address for the record?
Mr. Metcalfe: My name is James Metcalfe, 17127 Sealawn Drive, 98026.
Mr. McConnell: And do you swear or affirm to tell the truth?
Mr. Metcalfe: I do.
Mr. McConnell: Okay.
Mr. Metcalfe: I am not going to be too passionate about my property values because I think Mr. Hatch did a pretty good job
of that. But I am still concerned because I haven't seen any further discussion on the access. I think Mr. Smith pointed out
that there seems to be 200 feet of visibility, but to me, that narrow access on 1711t presents a real big safety problem.
Currently, if you are going west on Talbot Road, or 171't to join Talbot Road passing Sealawn, there is a very blind area on
the right hand corner. There is a hump in the road. There has been numerous close calls with cars turning left into Sealawn
Drive with other cars going east on 171'. In my estimation, the capability of a driver who is coming out of this cul-de-sac
and joining 17Pt to go either east or west is in direct conflict with... I mean they are going to be popping into this already
short visibility if you have to come around that corner. The main area of concern, with the current configuration, is heading
west on 171't and meeting headlong traffic coming around that corner. If you add more traffic, Mrs. Stein didn't go in and
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 29
out of her property very often, and her access was not in the same place that is proposed here. I think when you go out and
take a look at that property, I would question that good visibility that is claimed for the driveway.
Mr. McConnell: Thank you. Who would like to speak next? Yes sir.
Mr. Thomas: My name is Jay Thomas. My address is 18429 — 43rd Place West. That's Lynnwood, 98037.
Mr. McConnell: And do you swear or affirm to tell the truth?
Mr. Thomas: I do. I have an idea that I am probably a minority of one here today. I see we have a lot of people on the
opposing side. I have an idea, I suspect, that a good bit of their argument is having to do with the environmental impact here
and what it is doing to their property values. I don't know. I am suspecting that. But I do want to say is my wife and I did a
quick tour through that area about to weeks ago. We had a map of the property as it existed. We knew the owners years ago,
and there was some mention that this new development, this PRD, the lot sizes were going to be significantly smaller than
their lots. In my calculation, I don't think that is true. I went through the square footage and counted the houses there. It is
very comparable and possible you might even have a smaller lot size on the average. One thing I do want to say, and I
appreciate people's concerns here and the way they are looking at this. You hear over and over again the old adage, you
can't stop progress. Unfortunately, that is true. The one thing that I would like to say is I have lived in this area —Edmonds,
Lynnwood, Alderwood area —for all my life, which is a long, long time. And I can remember the property over there where
many of you people live. It was the best frog hunting area I have ever been in. Now you people came in. Where were all
these protesters back then when you could have left it just as it is. That would have been wonderful.
Mr. Thomas: There are so many things that I would like to say here. I hadn't planned on speaking, but one thing I do want
to emphasize. If I could go back in time and if I could find Ken and Charlotte Stein back in that house, I would love it. But
you can't go back in time. And anybody that thinks they can... And there is a few people here who were friends of Ken and
Charlotte's and I certainly don't condemn them for their views now, but we have to be somewhat sensible. Mr. Hatch is
representing these people and he's being somewhat contrary in this way saying there is no compliance here. Well, we know
better. The City has recognized compliance. I certainly think that maybe we should start thinking this and not just in
considering what we can do as far as protesting. I have been through this before and it's not pretty. Thank you.
Mr. McConnell: Thank you. Who would like to speak next? Yes sir. And then you are next Maine.
Mr. Drew: My name is Bob Drew, and I live contiguous to this property, across the creek on the east side.
Mr. McConnell: Okay, can I get your address?
Mr. Drew: It's 17024 — 761 Avenue West.
Mr. McConnell: Okay, and do you swear and affirm to tell the truth, sir?
Mr. Drew: Yes, I do. My wife and I acquired this property ten years ago and it had a rather small house on it. We did some
additions and we were complying with our code. I don't know when the code changed. I wasn't aware that it had changed as
much as it has. But we had to comply with a 70-foot setback from the top of the bank or the slope, whatever it is, which we
did. Now, all of a sudden, it is half of that. The main concern that we have here is removing trees and putting all this
development in there with concrete and so forth is going to cause some erosion. I realize they have done some preliminary
soil tests, but I am not convinced that's practical. The whole development of trying to put seven houses in to a 200 foot
frontage with... They are projected, what, two cars per house and three people per house. That seems to me to be very, very
conservative. On occasion, holidays and so forth, I have had many more people than that in cars in my property which is
adjacent here. I don't know where all the cars are going to park on a holiday when you have two or three families trying to
have a holiday. They are going to have guests over. Where are the cars going to park? They are going to park all over the
neighborhood in the street. The traffic is already pretty intense there so our concern is the additional traffic that is going to be
added is going to cause an adverse impact to the whole neighborhood. It is almost like having a multi -residence development
put into a single-family residential area. So we concur with some of the recommendations that have been made here before.
Let's cut this project down to a practical aspect of three to four houses instead of seven. Thank you.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 30
Mr. McConnell: Thank you. Yes Maine.
Ms. Beeson: My name is Barbara Beeson. I live at 7624 — 171" Street Southwest —across the street from the land and the
proposed arboretum.
Mr. McConnell: And do you swear to tell the truth, Maine?
Ms. Beeson: I do. I have lived in the area 30 years and enjoy my home. I view this as being an attractive addition, the way
it has been presented for the neighborhood as opposed to the alternate problem of building very large houses would be
grotesque. There are some houses in the neighborhood that I think are overbuilt for the size of their lots. And some are
crowded also. So that consequently, my opinion with Mr. Thomas here is that yes, there are houses in this general area that
are built close together and weren't planned as aesthetic as this is. However, I also want to add to Mr. Metcalfe's comment
where he thought the traffic going west was a blind spot for Sealawn Drive. I live in the area where there is a definite blind
spot of traffic coming from the west to the east portion and my driveway is very vulnerable to traffic. I get almost barely hit
every time I drive out of my driveway. I am very good right now because I have good hearing and I can hear the cars. But I
can't see them. So that's my concern. I don't like the $1,200 that was allotted by the Viking Corporation for the traffic
problems fits the need for the neighborhood in that respect. Thank you.
Mr. McConnell: Thank you. Who would like to speak next? Yes. Can I get your name, sir.
Mr. Sullivan: Thomas J. Sullivan. I live at 17041 Talbot Road.
Mr. McConnell: And do you swear or affirm to tell the truth, sir?
Mr. Sullivan: I do. Mr. Examiner, before I get into my prepared statement, which I entered into the record this morning at
five minutes to nine.
Mr. McConnell: Okay. That's Exhibit J.
Mr. Sullivan: Thank you. I would like to emphasize a few points so that we don't necessarily come off as the bad guys or
the NIMBY's here. My family and I have lived in Edmonds on Talbot Road at the same address for more than 20 years. I
love this City, its waterfront, its parks and its ambiance. I think the mayor does an excellent job, and I also believe the City
Council does a good job in representing its citizens. However, I am afraid my feelings, and those of our group today towards
what the Planning Division and the Architectural Design Board has done leaves me, us, with the same feelings of contempt
that many of the citizens currently hold toward the Port Commission. We wholeheartedly agree with the City's position and
support the City's opposition to the siting of Brightwater Plant at the UNOCAL site. Given some of the testimony given here
this morning, and given the fact that some members of our group were unable to attend this hearing and others have had to
leave the hearing already today, please bear with me while I elaborate or digress from my prepared statement.
Mr. Sullivan: In a short reply to Mr. Thomas, where were we when our end of the neighborhood was developed, we were
honoring the RS-12,000 zoning I appreciate the opportunity to speak here today. I am representing myself, and the
representatives of the North Talbot Group, many of them here today in black attire. If it is all right with you, Mr. Examiner, I
would just like them to stand up for just a moment to be recognized so that you can see how many are here. Thank you.
Mr. Sullivan: Our group currently stands at 24 citizens that have contributed to the cause. Our black colors this day serve to
demonstrate our resentment of the fact that the City has caused all of us here today to take time away from our families, our
jobs and our retirement time to make ourselves heard. Some in our group, unfortunately, were not able to leave work and
suffer the loses in wages and time which would occur. Apparently, it makes little difference to the City of these trifling
affairs as the City staff gets paid the same whether they say yes or no to any developer's request. I'll digress. I don't mean
that as an insult. Let me give you an example of what I mean. Somebody here is going to presumably buy a house and they
are going to have to go and get a mortgage loan. They actually have two choices in today's market. They can go to a loan
broker, or they can go to a bank. Whoever they see at the bank gets paid whether they say yes or no. If you go to a mortgage
broker, he only gets paid for a yes.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 31
Mr. Sullivan: It is our position that we are the paying client here. We are the ones that are in front of the mortgage broker.
And being the paying client, we expect at the very minimum to be treated as such. The question should be in our mind
whether or not the City should consider the issues brought forward by the taxpayers and citizens first and foremost and then
entertain what the developer may have to offer. In the future, it is our hope that the City will schedule such important and
significant hearings at a time that is more convenient for the citizens and taxpayers rather than at the convenience of the City
and its employees. Unfortunately, it seems apparent that the City has little regard for the time considerations and concerns of
its taxpayers and holds such hearings at its convenience. The people here before you...
Mr. McConnell: Go ahead.
Mr. Sullivan: I am just making sure you are listening.
Mr. McConnell: I am.
Mr. Sullivan: Thank you. The people here before you, representatives of the North Talbot Group, represent more than 25
households who live on the north end of Talbot Road, Sealawn Drive, 171't Southwest and 76t1i Avenue West, who have
contributed their hard earned money due to the profound failure of the City of Edmonds Planning Division and the
Architectural Design Board to properly and professionally do their jobs. We do not oppose sensible, legal and
environmentally compliant development. We recognize the rights of the landowner. We oppose irresponsible development
that skirts and violates the laws and codes as this application has surely done with the consent of the City of Edmonds. All
we ask is that due process be served and that our rights be protected and considered to the same degree as the developer.
Mr. Sullivan: First, let me say that I have been treated with respect and courtesy each and every time I have visited the
second floor Planning Division staff over the past few months, and my visits have been many. They have been cooperative
and professional in their dealings with me. But I want to make it crystal clear that there are 24 taxpaying citizens of the City
of Edmonds, known as the North Talbot Group, that are outraged and incensed that they have had to pay in excess of $10,000
because the City has failed to act professionally, failed to act in a competent and professional manner, and has apparently
forgotten who they work for. Between the original staff report dated March 14, 2002 and the most recent report dated May
30, 2002, the City has recorded no less than 38 letters from concerned citizens regarding this proposed PRD. The City's
response was to ignore our concerns and recklessly recommend that our appeal be denied. In an act of extreme prejudice and
contempt the City once again determined that the neighbors and concerned citizens had no grounds and should be dismissed.
The City arrogantly refused to cite or give any credence to any of the thoughtful letters.
Mr. Sullivan: The City and the developer's failure to propose and design a developer of the subject Stein property in an
environmentally sensitive and legal manner and ensure that our property values are protected as prescribed by law have
forced our course of action. The City had the opportunity and the duty, as provided by the new PRD ordinance, to hold an
informational meeting with the neighbors. And I quote from the PRD ordinance, "and discuss the fact that the project had
unusual or severe environmental problems or unusual compatibility problems with adjoining properties." The City elected to
not hold this meeting as I had earlier mandated, but I changed that to obligated. The City elected to not hold this meeting as
obligated by the current PRD code. The City's arrogant and blatant disregard for their own laws, procedures, codes, and this
group's property rights are outrageous. Because of this blatant disregard, this group has been forced to hire an attorney and
has spend in excess of 10 grand to ensure that the City would actually do the job it was paid to do. I'll digress again. Had the
City spent even half the time that Mr. Bullock spent with the developer in private meetings, the neighbors would have not
been intentionally left out of the process, and quite possibly, would not have had to spend $10,000.
Mr. Sullivan: Had the City taken the time to hold a neighborhood meeting, I am sorry. I have a hard time concentrating Mr.
Examiner. Are you...
Mr. McConnell: I am just taking notes.
Mr. Sullivan: I am sorry. I haven't done this before, so if you will excuse me.
Mr. McConnell: That's okay. That's all right.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 32
Mr. Sullivan: Had the City taken the time to hold a neighborhood meeting, the City would have discovered, contrary to the
staff report, that the steep slope bank has a recent history of sloughing off into the ravine. I have with me photographs that I
would like to present to you.
Mr. McConnell: Okay. Now these photographs are of the subject property? Or nearby?
Mr. Sullivan: If I can use this microphone, I will show you.
Mr. McConnell: Sure.
Mr. Sullivan: I took those pictures personally with the permission and with the accompaniment of Arthur Zoloth, As you
can see, his property is contiguous to the subject property and overlooks the creek. The pictures were taken right about here,
where the word north is. That slide occurred during this last winter. My property is right here on the northwest corner of the
ravine contiguous to the subject property. In the past summers, my bank has cabbed off just as you would see on a glacier.
Mr. McConnell: The three photographs of the bank from the Zoloth property will be Exhibit N. The slope, I am trying to
figure out my definitions here. Until we decide what that definition is.
Mr. Sullivan: Additionally, the property immediately to the north of myself, which is 16911 Talbot Road, owned by Mr.
And Mrs. Phil _, within the last twelve months suffered a sloughing off of their bank and lost at least one 30 to 40 foot
tall deciduous tree —the remnants which are still on the bank and quite visible. The next property north, 16905 Talbot Road,
occupied known by Mr. And Mrs. —, suffered a more severe sloughing off of the bank, wherein they lost not only part of
the bank, but a shed and vegetation. Had the City extended the courtesy and enforced its own written code to the neighbors
and employed the neighborhood meeting mechanism, the City would have discovered, in addition to the sloughing off and
cabbing off of the slope, the bank, that there is at least one wetland on the subject property, which we have already discussed,
and possibly two.
Mr. Sullivan: I'll digress again. I just want to ask Mr. Bullock one question. Mr. Bullock, did you read all of the letters that
were submitted as the attachments.
Mr. Bullock: Everyone, multiple times.
Mr. Sullivan: I have in my hand a letter addressed to Mr. Bullock dated May 15, 2002, written and signed by Joanne _
M. I won't belabor the process by reading the entire letter. She rented the property right here.
Mr. McConnell: That's just to the west of this...
Mr. Sullivan: Exactly. Correct. And she states "during the winter of 1990, I observed a pond in the back yard of the home
we rented." Right here. "In fact, my daughters ice skated on the pond. The pond began in the yard that we were renting, but
it continued past the fence marking the property line." Inferring that it infringes on this north property line and quite possibly
onto the proposed roadway. My point is this. There is already evidence of one wetland there. I think it is incumbent on the
City to do a thorough investigation of both of these wetlands.
Mr. Sullivan: Instead of having the City talk to us and gather the information that was readily available, we were forced to
spend $1,500 for a wetland study because the City demonstrated gross incompetence and negligence. Now I am really going
to digress onto the wetland issue. My wife and I, Mike and Linda Sullivan, who live on the corner of 1711t and Sealawn
Drive, all observed a family of ducklings, with their mom, leave the wetland area then march up the street to the stream in
question. Mrs. Larson, here today, took photos of these waterfowl, and she can testify to the fact that she actually took those
photos, if you wish. And I will enter those as another exhibit.
Mr. Bullock: They are actually in the record as an exhibit.
Mr. McConnell: Which... Okay, thank you. You say they are already in the record as ...
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 33
Mr. Bullock: What was the woman's name again. Larson?
Mr. Sullivan: Dawnie Larson. I have personally measured the off -site wetlands, which has been the subject of discussion
here, that borders the Burk property and the Thorlakson property and observed that the wetland extended eastward onto the
subject property. I contend, and I believe the Terra Associates Report supports that that wetland exceeds the 25,000 square
foot minimum and believe the report by Terra Associates where they came up with 36,000 square feet. In rebuttal to
statements made by the developer's representative today, I was present on Mother's Day and took these pictures. And I am
going to enter those, unless you have those, Mr. Bullock.
Mr. Bullock: The ones from Ms. Larson is Attachment 51 in the attachment packet. Did you submit those to me previously?
Mr. Sullivan: I don't believe so.
Mr. Bullock: Then they wouldn't be part of the record.
Mr. McConnell: So the ducks we have, the wetlands we don't. Well, let's see. I will mark the wetland photos as Exhibit O
as in Oscar. There is one showing the log kind of across the bottom of the picture. Is that the one you are talking about?
Mr. Sullivan: Yes sir.
Mr. McConnell: Okay, we will call that one 0-1.
Mr. Sullivan: I was present on Mother's Day and took the pictures with Dr. Burk. The picture that we just identified clearly
shows standing water in the wetlands. Furthermore, I personally hired and accompanied the Terra wetland expert when he
did his field investigation two weeks ago tomorrow. There was no hose or any other unnatural source of water present on
either of these two occasions. And I have sworn to tell the truth here today. I take exception to the testimony given here
today by the developer's representative wherein he implicates that a stream of water from a hose contributed to the wetland.
A wetland, as defined by both Terra and Associates and the developer's wetland expert is determined by existing flora and
fauna, which are clearly represented in the photos I have just entered.
Mr. Sullivan: The developer's representative says they are embarrassed about missing the wetland. The City should be
ashamed that they miserably failed in their fiduciary relationship and duty to the neighbors to conduct a thorough
investigation and talk to the neighbors, thereby saving us $1,500 dollars at a minimum. We demand that the City fulfill their
fiduciary duty to the neighbors to proceed with the tri-party contract and investigate and conduct a thorough study that
includes current and past neighbors in regards to both wetlands.
Mr. Sullivan: Given the recent history of PRD's in Talbot Park, who made the irresponsible decision to now hold the
neighborhood meeting —especially given the fact that Mr. Bullock disclosed here today that he had several private meetings
with the developer. Not one meeting with the neighbors. Why did the City fail to provide the necessary legally required
notice of the City's issuance of the MDNS not once, but twice? What is it that the City is either trying to hide from us or
sneak by us. This gross disregard for the law forced us to band together, hire and attorney and microscopically examine this
proposed PRD. Those of us in this group want you all to know that your initial and subsequent failures to professional and
competently execute your jobs have cost us a tremendous time, money and energy. We now share a deep resentment and
total loss of trust in the Planning Division and Architectural Design Board that did not previously exist. Is this
incompetence? Are you all understaffed? Who should we hold accountable for this abomination? Why has the City chosen
to allow the SEPA process to be so inadequate that it fails to meet SEPA standards and was clearly erroneous? The City has
made a mockery of the public's policy of SEPA by ignoring numerous environmental issues, including but not limited to, the
wetlands, the stream and steep slope buffers and the implication, meaning and affect of the City's own environmentally
sensitive area map, which as per ordinance, still exists within the subject property. Why has the City chosen to ignore the
obvious environmental concerns? The Planning Division conclusions are "statutorily defective and the interpretations by the
Planning Division are clearly erroneous." And I quote Mr. Hatch.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 34
Mr. Sullivan: As evidenced by our Attorney, Mr. Hatch's brief, not only did the City fail to properly measure the buffer
area from the top of the slope, the City can't even seem to properly differentiate or disseminate the erroneous measurement of
the sight distance from the proposed west entrance of the subject PRD to the curb on 171s1. I personally measured the sight
distance last night and came up with considerably less than the 200 feet that was stated here today.
Mr. Sullivan: The traffic issue.
Mr. McConnell: What did you come up with?
Mr. Sullivan: I came up with... It depends on where you measure it, sir. Do you measure it from the middle of the
driveway or do you measure it form the northern end of the proposed driveway or the southern end of the proposed
driveway?
Mr. Sullivan: The traffic issue. In regards to the neighborhood bus stop directly across the street from the proposed PRD
was not even addressed by the MDNS. Does the City really think that the creation of 57 daily new car trips, according to one
of the developer's traffic studies? From the proposed 57 daily new car trips downhill of a blind curve and a school bus does
not present a distinct liability that a child will be run over. It seems... (The tape switched sides here, so a little bit of
testimony was lost.) ... in preliminary much like the soils and other reports submitted.
Mr. Sullivan: In regards to the developer's reports, the City staff reports, the Architectural Design Board's findings and the
pertinent PRD, we would like to know why the following issues have not been addressed. Subsurface soil report. Specific to
the record review of threshold determination. The geotechnical soil report was inadequate from the outset. The report by Dr.
Lew, retained by the developer, states in part, and I quote "The conclusions and recommendations in this report are
preliminary in nature on the geological and soil conditions shown on the above map. The geological and soils conditions
should be verified by a subsurface exploration."
Mr. Sullivan: This group of 24 hired an attorney to approve to the City that the City had erred by not requiring a subsurface
soil report as required by law. Subsequent to our findings and our attorney's filing, apparently the developer, as of June 3,
2002 has now conducted or is apparently now conducting such substance soil investigation as required. I ask you, why did
this group have to spend money to hire an attorney to demonstrate to the City that its work was wholly in adequate,
incompetent and incomplete. The developer's representative this morning now says that they have conducted a subsurface
exploration. Where is the data? Where is the proof that this meets the code Section 19.05.
Mr. Sullivan: But for the fact that this group banded together and got involved in the process, the City would not be
allowing a developer to proceed with a development in an environmentally sensitive area without meeting the City's own
codes in regards to soil testing and numerous other environmental issues as set for in Mr. Hatch's brief. Who in the City is
responsible for this gross incompetence? I'll digress again. Imagine if you will sir, none of us are here today. Nobody took
this issue up. What would become of that development? They would get everything that they asked for and none of these
issues would have ever come up. They would be building over a wetland. They would be in violation of...
Mr. McConnell: That's a back up tape. We should have two tape recordings going just in case one fails. We have learned
over the years.
Mr. Sullivan: Okay. Thank you. I lost my train of thought on that, and I am going to continue on.
Mr. McConnell: Okay.
Mr. Sullivan: A point indicative of the gross negligence the City has demonstrated in its review and approval of the
developer's application lies in the environmental checklist, specific to the following: Page 3, Paragraph D, "Are there any
subsurface indications or history of unstable soils in the immediate vicinity?" The answer, which was typically evasive and
non-specific says, "No immediate evidence of sliding is present on the site." Now you tell me how does that address and
answer the question if there has been any history of unstable soils in the immediate vicinity? I just demonstrated that that is a
fact. Does the City actually expect us or any one else to accept this as an answer to this specific question?
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 35
Mr. Sullivan: I will skip that next sense since I have already belabored the point. This begs the question of who is
responsible to conduct a thorough review and make an intelligent and informed decision. Undeniably, the City failed to ask
any adjoining property owner to verify or deny the developer's findings. Once again, hire an attorney to represent us so we
can get the truth out. Why is the City not protecting our interest? Why does the City continue to be lackadaisical about its
jobs and duties to its citizens and neighbors adjacent to this proposed PRD?
Mr. Sullivan: Moving on to the environmental checklist. Page 4, Paragraph 2a. Question, what type of emissions would
result from the development? Why doesn't this paragraph or any other paragraph attend to the historic and continuous odors
produced by the City of Lynnwood' sewage treatment plant that comes into play. Do the developer and the City intent that
the potential buyers of the proposed homes make huge single-family house investments without being aware of or told of the
emissions and odors the neighbors have been subjected to for years? Is this an oversight, or is somebody hiding this fact?
Mr. Sullivan: According to the current PRD ordinance, 20.35.010.H, it states in part that the purpose of the PRD is to
"encourage the preservation of existing natural site amenities such as trees, water courses and wetlands". All three of these
are in play here. Your attention is drawn to two significant issues in this regard. Number 1, the Architectural Board meeting
minutes of March 20, 2002, Page 7, Condition 5 states "the requirement by the Board to retain the cedar tree on Lot 1, the
redwood on Lot 3 and the fir on Lot 4, unless it can be shown impractical due to the construction requirements shown on the
civil plans." It was shown that the redwood on Lot 3 was "within the utility easement, making it difficult to retain this tree."
How many redwood trees now exist in the City of Edmonds? Our bet is that they are quite definitely an endangered species,
yet the Board allows the developer, in this case, to wipe it because it is in the way of a utility easement. The PRD code
mandates the preservation of these trees. Simply make the developer move the easement and save one of the very few
redwoods still standing in Edmonds. Enforce the ordinance to the letter of the law.
Mr. Sullivan: Condition 5 goes on to try to justify removing additional mature trees in order to accommodate the
developer's plot plan. This demonstrates a blatant disregard for the ordinance and begs for relief. The intent of the PRD
ordinance, as stated is to "encourage the preservation of amenities such as trees." How does the City defend its position to
allow the developer to wipe out and destroy mature 30 to 6 foot maples, redwoods, Douglas fir and replace them with two-
inch caliper, six to eight -foot tall nursery stock? That is just absolutely beyond me. This decision by the Board is completely
at odds with the ordinance and sets up further litigation by this group. This does not even start to address the wetlands known
and proven by the neighbors that both the developer and the City conveniently missed in their walkabout on the property. I
have belabored that.
Mr. Sullivan: Who has the authority to make the final decision here? Does anybody really know? Here again, the City has
failed us miserably and forced us to spend our money to show the City (I'll digress) through the efforts of our attorney, where
they were clearly erroneous and in error. But for our actions and money and at our expense the City would not be aware of
what must be done to correct the conflicting portions of the code as set forth in Mr. Hatch's brief. Why is it the City can't do
their job right in the first place?
Mr. Sullivan: The North Talbot Group herein implores you to deny this application. Force the City and the developer to
design a development that completely meets the laws, codes and ordinances of this City. Design and propose a development
that will quote from the ordinance "protect the environment" and quote from the ordinance again "protect and preserve the
value of the surrounding neighborhoods." Thank you very much.
Mr. McConnell: Thank you. Who would like to speak next? In the back
Ms. Danielson: My name is Shirlee Danielson.
Mr. McConnell: Shirlee?
Ms. Danielson: I live on 17140 Sealawn Drive.
Mr. McConnell: Okay. Can you pull that down a little bit closer so we... Yeah, that's better.
Ms. Danielson: I really don't have a lot to add to ...
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Mr. McConnell: Do you swear or affirm to tell the truth?
Ms. Danielson: Yes. I don't have a lot, if anything, more to add other than to say that I agree with my neighbors who have
already stated their opposition to this development. I have a concern about the traffic. There is a blind area turning left if
you are going west on 171't that has already been described to you. On three occasions I had close calls. You cannot see cars
coming from the west. You can only stick your nose out and hope that you are going to get across without getting hit. I have
a concern about the density and the impact on the rest of the neighborhood. I fail to understand how the PRD was developed
and how it can be stated that it is within the guidelines and conforms the neighborhood and fits the 12,000 square foot
minimum requirement when the total size of the property is being considered and not just the developable property. The
slope is not being considered. The stream, I don't understand why all of the property is being considered. That is the only
way that they are coming up with the minimum lot size and saying that it meets the standard. It certainly doesn't when you
take into account only the part that is able to be developed. Thank you.
Mr. McConnell: Thank you. Who would like to speak next? Yes.
Ms. Dunne: My name is Elizabeth Dunne. I reside at 17120 Sealawn Drive, 98020.
Mr. McConnell: And do you swear or affirm to tell the truth?
Ms. Dunne: Yes, I affirm that I will tell the truth. I would like to address one or two points that I had addressed in my letter,
which you have. And this pertains to Section 20.35.010.K, where it states that the PRD is to promote a more efficient street
and utility system by clustering units in an effort to promote affordable housing, land development and maintenance costs
and reducing the amount of impervious surfaces. My question is, So by clustering seven homes in a high density manner that
is not consistent with the surrounding neighborhood is going to make this more affordable housing? I would like to ask the
representatives of the developers, what is the price tag going to be on these houses or the average price?
Mr. Smith: Over $400,000.
Ms. Dunne: So, with $400,000 price tags per house? This developer is planning to build seven lower quality homes
crammed in this proposed small development as compared to the well-built, long-established single-family homes on large
lots surrounded with mature, high -valued neighborhood is banking on the ability to apply high dollar asking prices of
$400,000, at least, with probably an associated homeowners fee. They are going to take advantage of the value of this very
desirable neighborhood to increase their fortune at the expense of our property value and the quality of life without regard to t
he effects of this high -density project on the surrounding neighborhood or the community at large. I would like to ask with
respect to the term "affordable" in this Section K. Where does affordable apply to this development? How is the average
homeowner going to be able to buy in this? It is not affordable. $400,000 is not an affordable price tag —especially for the
quality that you are proposing to build. We have seen some of the properties that are being built by Viking Properties. Mrs.
Metcalfe, what is the area? 83`d? What is the area that you had seen?
Ms. Metcalfe: 841 and 2331
Ms. Dunne: 841 and 2331. She went to that site and she picked up a piece of siding and broke it in half. A piece of scrap
siding, and it was a corrugated material. This is siding. That is not quality, and it is not conforming to the quality of our
neighborhood. We strongly object, Mr. Examiner, that they are going to propose to build these houses. I would concur with
my neighbors about the problem with the traffic. It is dangerous as it stands. I would like to ask if there is any proposal for. .
I have driven over on many occasions those little tubes that ago across. Are those traffic counters? There has never been any
traffic counters on our street. Mrs. Larson has called the Edmonds Police Department in the past to report speeding
violations. I have only seen, in my 13 years living in this neighborhood, one traffic cop, a policeman, sitting and waiting and
looking for violators. I have never seen a traffic watch posting where it shows the digital speed. I have seen it over in the
Alderwood Mall area on a through area where people could travel from Alderwood Mall to 44t''. Never has there been
anything on our through area, our through street, from 171st through Talbot Road down to Olympic View Drive. Sol think
that there has been a definite lack of concern for our neighborhood, and I would ask that that be addressed. Thank you.
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June 6, 2002 Page 37
Mr. McConnell: Thank you. Who would like to speak next? Yes.
Ms. Larson: My name is Dawnie Larson. I live at 7804 — 171't Street Southwest.
Mr. McConnell: How do you spell your first name?
Ms.Larson: D—A—W—N—I—E.
Mr. McConnell: Okay, and do you swear or affirm to tell the truth?
Ms. Larson: I do.
Mr. McConnell: Is that an sen or an son?
Ms. Larson: on. My two concerns have been brought up, but I just want to say how I feel about that. I am the one that calls
the police. The cars speed by there constantly, and I have probably called them six or seven times. There reply to me always
is, gee can you tell us what time they speed by so we can have an officer out there. Now, that it totally ridiculous. I have
asked to have a speed bump thing there. They can't do that because that is an arterial road.
Mr. McConnell: Unfortunately, the police don't work for me. Maybe fortunately.
Ms. Larson: No, but my point is there is getting more and more and more traffic there. People cutting through to get to
downtown. I am very concerned about having all these cars with the way the traffic is now. And I have to concur about the
houses. I also went by to look at the homes that this builder has built, and frankly, they are cheap. I wouldn't give you
$200,000 for them, and I don't see them fitting into our neighborhood. Thank you.
Mr. McConnell: Thank you. Who else would like to speak? Anyone else? Yes sir.
Mr. Andree: My name is David Andree. I live at 7931 Talbot Road. I am not supposed to ...
Mr. McConnell: Do you swear or affirm to tell the truth, sir?
Mr. Andree: Yes. My attorney recommends that I not speak today, but I have a couple of questions for you. The trail that
is being proposed for the development, is that a requirement for the project or is it simply like a benefit for the people that
live in the neighborhood?
Mr. Smith: The trial is not explicitly required, but it is part of our overall open space program in order to accomplish the
overall goals of the PRD.
Mr. Andree: Okay. Because there is a PRD up on Meadowdale Beach Road where they have similar trails, but they feel
into disrepair a year after they were created, and if anything, are probably a hazard. I personally would not like to see that. I
think it would be a negative in the neighborhood rather than a positive. That was just a question I had. I had a couple of
other questions. Are there going to be any other opportunities besides this hearing to introduce photos, evidence, etc.?
Mr. McConnell: No, prior to about 1995, I guess it was, when the regulatory reform act was passed by the State Legislature,
there would be opportunities —certainly in the City of Edmonds there were. What I do is challenged or appealed to the City
Council. In the past you could have come up with new information. As it stands now, and this is State law now, there is one
open record hearing. This is it. After this, everything is referred to as a closed record hearing. That means if there is
anything, anytime there is a challenge or any appeal that goes from here goes on the record. The pile of materials that are
before me will go into that record, and that is all that gets to be considered by the next body, whether it be the Council, the
court, whatever. That is all that is... I guess maybe I can look at one of the attorneys here, and if something comes up that
was just not available and was so unusual and comes to light, I suppose the Council could remand it back to me, but that is
very, very, very unusual. Basically, this is the opportunity.
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File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 38
Mr. Andree: Okay, then contrary to the recommendation of my attorney, then I guess I have to speak on a few issues. I
own the property adjacent to this development on the west side.
Mr. McConnell: Okay, the one that the lady rented?
Mr. Andree: Correct.
Mr. McConnell: With the pond?
Mr. Andree: Yes. I have owned that for approximately 12 years, and I have lived in Talbot Park for the same number of
years. My property is probably affected by this development more than anybody else, since I have the most frontage directly
on it. I knew Ken when he was around, and he used to keep his property beautiful. He had it all mowed, and it was like a
park. Beautiful, beautiful thing. It was very sad when he became ill and passed away, and I too, wish he was still around to
maintain the beautiful property that he had there. Subsequently, it is now quite a bit overgrown. I also am not totally thrilled
about having a road next to my property verses open space. I am really glad that so many of my friend and neighbors here
who have commented are concerned about this project. Like I say, I wish we all had the money and could gather together
before we got into this fight, to purchase the property and make it a park. Donate it to the City or put a fence around it for
our own use. Apparently, that hasn't happened, and probably won't happen. I know most people have sort of come to the
conclusion that it would be developed. Just like I talked to Ken many times. He said that it would be developed after he was
gone, and that was just sort of the way it was.
Mr. Andree: I was contacted by Mr. Sullivan about two months ago. It was sort of interesting. He knocked on my front
door and requested $5,000 from me to fight this. At that point, I said I would like to think about it a little bit. But he said, we
have two days to come up with the money to get this thing stopped. We want to stop it, and I asked him what were the
reasons that we would be spending money to have this thing stopped, and he just said I would just like stopped. I want it
stopped. I don't want a development in the neighborhood. So I told him that I wouldn't be willing to give him $5,000 at the
time. However, I would be investigating and looking at all of the records at the City, which I have done. If this development
was violating any laws or seeking any unusual variances or doing thing that were technically illegal (not going by the book) I
would certainly be interested. I asked him to let me know if they had discovered anything. I have never heard from Mr.
Sullivan since that time. As he said today, he trespassed on my property. He ordered a survey done of my property without
my permission to survey a wetlands which is now been in discussion. These wetlands, and I will introduce a police report.
When I was informed that there were flags on my property, I went to investigate why somebody had surveyed my property
without my permission. They were from Terra Associates. I have spoken to them, and they admitted that they did do a
survey, and that it was ordered by Mr. Sullivan and he told them to conduct the survey where they conducted it. When I went
over to the property on Tuesday to see where these flags were, I heard water running, and I found a hose —a garden hose —
turned full blast 50 feet into my property filling my backyard up with water. I videotaped and photographed the hose going
up my property, through the fence, connected directly to Mr. Burk's house and the faucet was turned on. I have videotape
and photos, which I didn't bring today. I would like to introduce those, just to show you that some of the things that Mr.
Sullivan, in leading this group, has been involved with. I like honest, and I like things that are done in a legitimate way. I
don't want this development next to my property. But I don't want to have people doing underhanded things like have been
done with my property to stop things. In my opinion, an illegitimate way to stop it.
Mr. Andree: I have looked at this proposal, and I have just looked at the additional proposal today of how they can
subdivide this property into seven lots without being a PRD. And personally, this proposal looks a lot better to me, on initial
analysis than the seven lot proposal that they can legally do. Mainly because the road would be a little farther from my
house, and there would be more foliage, and the design considerations are much stronger under the PRD. I would prefer they
didn't do this. The law is the law, and I don't like the PRD law. I did tell Mr. Sullivan when I met with him two months ago,
that I didn't like the law at all. I just didn't think it was right. But the law is the way it is. Maybe we should get together and
fight the law rather than trying to fight a specific development. Let's go to the City Council. Apparently, that hasn't gone
anywhere and may be it won't go anywhere. The law needs to be changed if we don't like it. However, the law is the way it
is, and I think it is good that we are all here forcing the developer to adhere to the law. Do what the law requires and not, you
know, go over the line. But on the other hand, gee I don't think we should be causing big problems and having. I mean,
there are people here that are quite upset. I don't like people to be upset. I would like everybody to be able to work together,
and I suggest that maybe we get together and suggest things to the developer to make the development more to our liking
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 39
rather than just try to stop them on technicalities and legal maneuvering, which appears to be what most of what we are tyring
to do here today.
Mr. Andree: In conclusion, more than likely, if we are going to have some more houses in our neighborhood, I would prefer
one big huge estate there, myself, or parklands, but that probably won't happen just because of the economics. I have
personally looked at the plans that were presented and that the home prices are in the $400,000 price range, which actually,
for the neighborhood are affordable homes in our neighborhood. I don't know what your home is worth, but the average
price is over that now, which I guess is good for all of us that live there. Whether or not it will increase or decrease the value,
I personally think that if the homes are built that are proposed isn't going to hurt the value of my house, that is right next
door. It may help it a little bit in that it introduces some more new homes in the neighborhood. Nevertheless, I would hope
that if some of us maybe will write letters (I am going to write them a letter) making some suggestions that I have to make
the development maybe a little bit better. I, too, would like to see less homes. Three or four homes, you know, maybe they
will be good guys and change it a little bit. Hopefully, they will at least adhere to the law. I think with the lawyer, etc. there
is not going to be any choice, but they do adhere to the law. I certainly hope they don't get mad at our group and do Plan B
which is to just do a normal subdivision with those goofy shaped lots and still have seven lots there. I don't want them to do
that, and I hope that they don't do that. Unfortunately, if they follow the law, we can't stop them. So anyway, that's about
all I have to say, and hopefully, this thing will all work out and we will all end up with a pleasant neighborhood. I could live
anywhere, it makes no difference where I live. I live where I live on Talbot Road because I love it there and I choose to live
here. I don't want anybody to wreck it. Hopefully, their development won't. Hopefully, we will all get what we desire.
Thank you.
Mr. McConnell: Sir, you said you have some things you wanted to put in the record.
Mr. Andree: I don't have them with me. The police report, yeah the police report.
Mr. Hill: Mr. McConnell, the applicant would have no objection to leaving the record open to give Mr. Andree an
opportunity to submit it. I understood the Examiner was going to be inquiring of the City Attorney.
Mr. McConnell: That's right. Mr. Andree, if you want to submit a copy of the video, also, if you get it in by tomorrow
afternoon. Can you do that?
Mr. Andree: Yeah.
Mr. McConnell: Just get it to Mr. Bullock by tomorrow afternoon, I'll still accept it. As I mentioned, 1 don't know how
long it is going to take me to get a response by from the City Attorney. I want that in writing, in any event, so ...
Mr. Andree: I actually have one more thing. I hate to do this. I didn't even want to speak.
Mr. McConnell: Okay, the police report, I guess, will become Exhibit P as in Paul. Okay, go ahead.
Mr. Andree: When the police officer was talking to Mr. Burk regarding this hose running onto my property with the water,
Mr. Burk stated that the hose had been there since 1998 and that he used it to drain his spa onto my property. Also, and this
is in .... You will have to subpoena that portion of the police report because for some reason they blanked it out on mine.
Also, he stated, or he didn't state.
Mr. McConnell: Is Mr. Burke here to...
Unidentified Member of the Audience: His wife is.
Mr. McConnell: Were you present mame. I don't want to... I mean if you have got... I can't take hearsay, basically. If
he is present, then that is fine. He can respond for himself. Otherwise...
Mr. Andree: Well, I heard this with my own ears.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 40
Mr. McConnell: I understand, but...
Mr. Andree: I also want to add to the record, there is a black PVC drain pipe that is coming out of the fence at my property
line that appears... The only way I know that... There is a gravel spill on top of it that leads directly to their downspouts of
their house. Now there is no grass growing on it, so I don't know when that was put in, but it appears to me it as been
relatively recent. It also drains onto my property.
Mr. McConnell: Now that is an issue beyond ...
Mr. Andree: Bu as far as these wetlands issues are concerned, why there is water there, etc. That is why. Also, in response
to the letter from Mrs. Spiro, who are friends of mine who rented the house from me that they were ice-skating in the
backyard. I was actually there with them that day. There was a small amount of water there. It was not ice-skating. My
little daughter and their kids are the same age, and they were sliding around on their shoes on this little patch of ice. I feel
that letter is sort of misleading, that there was a pond that people were ice skating on. But anyways, that is about it.
Mr. Bullock: Are we going to be entering a videotape into the record?
Mr. McConnell: Yeah. Once we get... I will just leave the record open. And we might be getting something else yet
today.
Mr. Bullock: So we won't assign an Exhibit number until it does come.
Mr. McConnell: Yes
Mr. Andree: With the videotape there is also photographs.
Mr. McConnell: Okay. You can enter both, that is fine. Yes mame.
Ms. Metcalfe: I am Karen Metcalfe at 17127 Sealawn Drive.
Mr. McConnell: And do you swear or affirm to tell the truth?
Ms. Metcalfe: I swear. I think the idea of $400,000 houses here might fit into the neighborhood if they weren't three
bedroom, but most of the houses in the neighborhood are not three bedroom. Also, the alternative plan of subdividing into
seven separate lots, and just letting people build what they want, I think you are going to find that half of those lots nobody
would be able to build on because of the way they are angled out. So that doesn't make a whole lot of sense to me. I don't
think that you could actually subdivide it into seven lots and really be able to build on half of them. Another thing I wanted
to bring up was my ten -year -old who couldn't be here today because she is at school wrote a letter to the Planning Office.
Mr. McConnell: Yeah, I read it, I believe.
Ms. Metcalfe: Yeah, one of the things that she had brought up, which maybe some of us had overlooked, was the fact that
you have seven houses here, and somebody had mentioned this earlier, when these people have company they are going to
have two or three cars of their own, and this narrow road, you can't park on it. You can just see how narrow it is. Nobody
can park on the cul-de-sac because it is all driveways. There is no parking on the road or the cul-de-sac, so the cars will be in
the driveway or they will be on our cul-de-sac. One of my concerns is parking all up and down our cul-de-sac when these
people have events —especially like holidays, etc. That's all I wanted to bring up.
Mr. McConnell: Okay. Thank you. Anyone else? Yes sir.
Mr. Metcalfe: Am I allowed to come back?
Mr. McConnell: Sure.
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 41
Mr. Metcalfe: Do I need to swear?
Mr. McConnell: No, just give me your name.
Mr. Metcalfe: James Metcalfe, again. I just want to reemphasize some of the comments I have heard, and now that I have
thought about them, restate them perhaps little bit better. One of them is the PRD process and how it is that we, as Mr.
Sullivan has pointed out, are here. There is a lot of manpower, womanpower, retired power, spent a lot of energy and a lot of
time, and we shouldn't have to be doing this. It is really up to the City to make sure the laws are complied with. We just
shouldn't be here. So I want to reemphasize that. Nobody, that I know of, doesn't believe that a development will take
place, but it needs to be sensible. It needs to be consistent with the properties around it, and the neighborhood shouldn't have
to micromanage the project. Thank you.
Mr. McConnell: Thank you. Okay, anyone else before I turn it back over the applicant to respond. Okay.
Mr. Hill: Could we take a brief break. I think we will be able to organize our response a little bit...
Mr. McConnell: That's a good idea. I need to shake my hand a little bit anyway.
Mr. McConnell: Okay. Mr. Hill.
Mr. Hill: Mr. McConnell, there are really two types of responses we wish to make to the presentation that has been made by
the appellants. First, Mr. Hatch made some legal argument, and I would at the appropriate time, like to make closing
argument in response to those issues.
Mr. McConnell: Sure.
Unidentified Member of the Audience: Can you get closer to the microphone please?
Mr. McConnell: They can't hear you.
Mr. Hill: Usually, I am almost too loud. Lawyers are usually accused of being too loud, so it is unusual to be asked to speak
louder, but I will do my best. With respect to the legal issues, I will respond to Mr. Hatch at the appropriate time on closing
argument. Mr. Smith will respond to some of the issues raised during the testimony as to the facts. So if I may, I will ask Mr.
Smith some questions on that score. First, Mr. Smith, Mr. Metcalfe raised the issue of the width of the access driveway.
Could you comment on that question?
Mr. Smith: Absolutely.
Mr. McConnell: This is the road that goes in?
Mr. Smith: This is the access driveway. We have requested no special reductions to the standards, nor modifications of any
kind for the access driveway. The access driveway width is determined by the City of Edmonds Engineering Department,
and we are planning to build the road and have shown the road on the drawings in the file to the current standard as defined
by the City of Edmonds.
Mr. Hill: The second issue, Mr. Smith, there was some photographs introduced with respect to slopes. They were
introduced for the proposition that the photographs were evidence that slopes in the vicinity have failed. Have you had an
opportunity to take a look at those photographs?
Mr. Smith: I have reviewed the photographs, and I do realize what they are intended to represent. I can't make any
statements as far as whether they do actually represent sliding associated with earth movement or that there is any in -sizing
that is shown in those photographs from undercutting by the stream. It is impossible to tell also where the photographs were
taken from. I recognize that they were purported to be taken from several different locations looking in different directions,
and it is impossible for me to tell where the photographs were taken or what they do actually represent.
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File Numbers P-02-11, PRD-02-12 and AP-02-94
June 6, 2002 Page 42
Mr. Hill: Did the September 12, 2001 geotechnical report by Mr. Lew address the issue of slope stability?
Mr. Smith: Absolutely.
Mr. Hill: And what did Mr. Lew's report say about that?
Mr. Smith: Mr. Lew's report recommended that foundation footings be setback no closer than 15 feet from the side of the
slope and that when individual building permits are applied for, that individual analysis of each building site be conducted to
ensure there are no anomalies in the subsurface strata.
Mr. Hill: Is this approach taken by Mr. Lew, to do what is called a preliminary soils report followed by a soils report at the
point of building permit stage, is that an unusual process.
Mr. Smith: Absolutely not. This type of two -stage process is performed frequently on properties that have sloping issues
such as the ones we are facing with this project.
Mr. Hill: One of the witnesses appeared to conclude, that in addition to the September 12, 2001 report, that there was an
additional report prepared by Mr. Lew that did a subsurface evaluation. Could you comment on that.
Mr. Smith: Well, the subsurface evaluation or exploration both were performed by Mr. Lew using a T-handle soil auger,
and the results of his evaluation or exploration, whichever you are calling it, are listed in that report.
Mr. Hill: In which report?
Mr. Smith: In the September 12 report. There is no additional survey being negotiated with Mr. Lew at this time. It will be,
but that will be following the recording of the subdivision if it is to be approved.
Mr. Hill: Mr. Hatch, in his legal arguments, suggested that Mr. Lew's report admitted that there was no subsurface
evaluation done in the September 12, 2001 report. Could you comment on that?
Mr. Smith: I wouldn't agree with that assessment. In fact, Mr. Lew discusses the methodology by which he conducted a
subsurface exploration of the property using a T-handle soil auger, and the results that he found hitting, what he calls hard
pay, which is a very hard consolidated soil layer at no deeper than 12 inches according to his report.
Mr. Hill: I would like to move for a minute, again to the road, some folks testified about concerns about an existing sight
distance problem. Did Mr. Watkins, in his June 6, 2002 report address that question?
Mr. Smith: Absolutely. There is a sight distance issue near the property, and I think that what you will find is that if the
driveway was to be located maybe another 100 feet or so to the southeast, very probably, the sight distance would not be
quite as good as it is at our access location. The dangerous part of the road is the combination of the horizontal curve, that
you can see very obviously on the site plan, coupled with the vertical curve, that basically forms the high point and it drops
away slightly to the west and a little bit more steeply to the east. Mr. Watkins, who is a licensed civil engineer with
specialization in traffic, found that at the access location, there is (and he looked at it and told me three different ways) no
less than 200 feet of sight distance at that location, to which we will be improving the situation by actually removing some of
the existing high point that lies on our property and also in the public right-of-way as you would be looking to the left or east
from that access point. So the situation is expected to improve —the sight distance should improve —following completion of
the development.
Mr. Hill: An issue was raised about the purpose section of the PRD ordinance. In that purpose section, one of the purposes
of PRD's is to improve the opportunity for affordable housing. Could you just comment briefly about the purpose section as
a whole and then address the affordable housing question, in particular?
Verbatim Hearing Examiner Transcripts
File Numbers P-02-11, PRD-02-12 and AP-02-94
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Mr. Smith: Certainly. The purpose section of the code generally is a statement of goals by the Council of what they hope to
achieve through installing the specific provisions of the subsequent sections. As you look through the purposes section, as
you have noted, it was Subsection K that was referred to, there were many purposes. Even within Subsection K there are
about five separate purposes, only one of which is the affordable housing issue. Our expectation, actually, is that the price of
these homes is going to be considered fairly affordable for the surroundings in which they will be constructed —especially for
new construction in that area. Our contention is that these homes will be affordable for the neighborhood in which they
reside to the maximum extent possible. And that proposing some other sort of subdivision alternative would not produce
cheaper housing, certainly, and very probably would produce more expensive housing than what we will be, hopefully,
building with this project.
Mr. Hill: Finally, Mr. Smith, Mr. Andree asked a question about the trail and whether it would pose maintenance problems.
Could you respond to that?
Mr. Smith: Well, the trail is going to be in the community open space area, which will be maintained by a homeowners
association to be controlled by all of the future owners of the lots. Certainly, the concern about overgrown trail conditions is
a reasonable concern. I think on this particular property, I wouldn't expect that to become much of an issue. The reason is
that there is such a mature existing forest canopy in that ravine area that the probability for dense undergrowth is very slim.
In fact, if you were to walk along the top of that bank, as I have a few times, and looked down the side of it, what you will
see if that there is very little underbrush. Not to say there are no shrubs, but there is not the kid of choking, dense underbrush
that you would expect to see in a site that, say, logged ten years ago. I would be very surprised if maintenance becomes an
issue, especially since every one of the houses is going to abut up against that. I think that it will be used by the owners. If
there is some kind of a maintenance issue that comes up, I would be surprised if the future owners didn't do something to
take care of it.
Mr. Hill: Thank you, Mr. McConnell, that concludes the factual portion of our rebuttal. When all the evidence is in, I would
like an opportunity to make a closing statement.
Mr. McConnell: I think all the evidence is in.
Mr. Hill: Okay. Great. Then I would ...
Mr. McConnell: I don't see any other evidence that is going to be presented. Just a second. Do you have any other
evidence that will be presented?
Mr. Hatch: Give me just ten seconds.
Mr. McConnell: Sure. Mr. Andree? Why don't you come up to the microphone so we don't miss anything?
Mr. Andree: It was brought up but it was never really answered if that open area or trial would become public use or
private.
Mr. McConnell: I think the answer, by saying it is a homeowners association, I understand, but maybe you just might want
to state over the record, Mr. Smith.
Mr. Smith: It will be a privately held homeowners association that will control all of the open space within the division.
Mr. Andree: Okay, so the public would not necessarily have legal access to it?
Mr. Smith: They would not have legal access to it.
Mr. McConnell: Okay, do you have any more evidence you want to have submitted. Okay, why don't you respond, and
then we will let Mr. Hatch respond and let Mr. Bullock respond and then call it a day.
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Mr. Hill: It sounds great. Mr. McConnell, thank you for you patience in listening to all of us today. You have before you
two decisions to make.
Mr. McConnell: Why don't you get real close to that microphone?
Mr. Hill: Okay. Mr. McConnell, again, thank you for your patience in listening to all of the evidence today. As you
mentioned at the beginning of the hearing, there are two separate decisions that you have to make. One is to make final
decision on the SEPA appeal that was filed by the appellant in this case. And the second is to make a final decision that is
appealable to the City Council or that is a recommendation to the City Council, and you are going to get some direction from
the City Attorney on that issue with respect to the PRD application and the subdivision application. What I would like to do
is address first the SEPA appeal and then, secondly, the PRD application and he subdivision application.
Mr. Hill: With respect to the SEPA appeal, I want to initially correct three misstatements of the law that Mr. Hatch
presented to the Examiner. The first misstatement is the standard of review that the Examiner is to apply to the decision of
the staff, in this case SEPA, of the environmental officer on SEPA. Mr. Hatch stated to the Examiner that he had no burden
on this appeal. Under State law, as well as under the City of Edmonds ordinance, and I know Mr. McConnell is familiar with
those provisions, the appellant does have the burden of proof to demonstrate that the decision is clearly erroneous. In that
context, the City of Edmonds ordinance specifically states that substantial weight is to be accorded the environmental
determination of the responsible official —the responsible SEPA official in this case. So it is not even a case, Mr. Examiner,
of the preponderance of the evidence. Rather, the appellant, in this case, must overcome by substantial weight the decision of
the responsible official in this case. As the evidence was presented to the Examiner, there really hasn't been any meaningful
substantive evidence presented by the appellants that would lead to a conclusion that there was a clearly erroneous decision in
this case —particularly after applying the standard of review that the City of Edmonds ordinance directs the Examiner to do.
So that is the first misstatement of the law.
Mr. Hill: The second misstatement of the law is Mr. Hatch's suggestion to you that if there is any aspect of the threshold
determination that the Examiner felt was clearly erroneous, after applying the substantial weight evidence, that the only
option available to the Examiner is to require preparation of an environmental impact statement. That, of course, is clearly
incorrect. The Examiner has full authority to remand this matter to the responsible official for additional evidence and to
make a new threshold determination based on that additional evidence. As you know, the applicant, in this case believes that
the decision made by the responsible official was amply supported by the evidence that was before the responsible official.
But even if it wasn't, the Examiner clearly has authority to do something other than requiring the preparation of an
environmental impact statement. In fact, I listened carefully to all of the evidence presented by the appellants in this case. I
did not hear a single even allegation that there was significant adverse impacts associated with this development. There were
some questions raised, certainly. I believe all those questions were answered by the applicant and the City, in this case. But
no evidence of any significant adverse impacts. And I will address that in a moment.
Mr. Hill: The third misstatement to the law, made by Mr. Hatch in this case, relates to this issue that the Examiner will be
addressing as to what "top of bank" means in the context of the stream buffer, in this case. Mr. Hatch is suggesting that the
Examiner should throw out, basically, over ten years of administrative interpretation of that phrase by the agency officials for
interpreting and implementing the City of Edmonds ordinances. He is also suggesting that the Examiner should throw out
and not even consider the testimony of the wetlands biologist expert that deals with top of bank on a day-to-day basis. He is
also asking the Examiner to adopt an interpretation of the City of Edmonds ordinance that leads to absurd results. The
Examiner's question about the Columbia Gorge is a prime example of that. It is true, Mr. Examiner, and Mr. Hatch is
correct, that the Supreme Court has identified and it is one of the basic rules of statutory interpretation, that courts may (and
again the language sited by Mr. Hatch is discretionary) courts may look to dictionaries to determine definitions of words in
ordinances that are not defined by the ordinance. But there are three other cannons of statutory interpretation in this case that
are much more applicable. One of those cannons of statutory interpretation (I am sure Mr. McConnell is familiar with it) is
that the courts will accord substantial deference to administrative agencies interpretations of statutory or ordinance language
when those administrative agencies are charged with the responsibility of interpreting, implementing, carrying out those
ordinances. And that is exactly what the Planning Department at the City of Edmonds has been doing ever since 1992.
Mr. Hill: One of the things that courts look at is if there is a long-standing administrative agency interpretation ordinance,
has the legislative body, knowing about that administrative agency interpretation, taken any steps to alter that by amending
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the ordinance. In this case, this is an administrative agency interpretation that has been consistent since 1992 when the
ordinance was adopted, and the Edmonds City Council has taken no steps to alter that administrative interpretation. The
local legislative body is then seen by the courts to, basically, agree with that statutory interpretation. So that is one cannon
that is applicable here.
Mr. Hill: The other cannon of statutory interpretation that is applicable here is that when there is a term of art in an
ordinance, the courts will look to how that term of art is interpreted and applied by experts in the area. In this case, the term
"top of bank" is a term of art and the wetlands biologist testified to you today, as well as submitted an exhibit from a
textbook that showed what the appropriate interpretation of the phrase was.
Mr. Hill: The third cannon of interpretation, that again I know the Examiner is familiar with, is that courts will not interpret
ordinances or statutes in a way that leads to absurd results. And in the case of ... In the interpretation that Mr. Hatch offers
to the examiner, that interpretation would lead to absurd results, in this case. So applying all those three cannons of
interpretations to the top of bank issue, the staff interpretation of top of bank should be affirmed by the Examiner —especially
in light of the fact that it has been interpreted and applied in this way in the City of Edmonds for ten years.
Mr. Hill: Even if we want to look at the dictionary, again Mr. Hatch cited a number of dictionary interpretations, I had the
opportunity to take a look at Black's Law Dictionary, which the Examiner knows, courts sometimes look at. Black's Law
Dictionary defines bank as the elevation of land, and I will give the Examiner a copy of this, the elevation of land which
confines the waters of a stream in their natural channel when they rise the highest and do not overflow the banks. That is
exactly the interpretation that staff has made of the top of the bank language of the ordinance. There are a number of other
interpretations. If I may I will hand it up to the Examiner.
Mr. McConnell: Sure, and why don't you give it to Mr. Bullock so he can stamp it. That will become... Black's
interpretation of bank will become Q. Thank you.
Mr. Hill: Those are the three statements of the law that I wanted to correct. Now, I want to address the SEPA issues raised
on the appeal in this case. And I am going to address, basically, the three key SEPA appeal issues. One geotechnical report.
Second is the wetlands issue and the third is the traffic issue. The geotechnical report, in this case, does comply with the
requirements of the City's critical areas ordinance. There is ample evidence in the record that there will be no probable
significant adverse impacts related to steep slopes as a result of development of this project with the ten -foot plus 15-foot
buffer proposed by the appellant. Now, Mr. Hatch would have you believe that Planning Staff is basically paying no
attention to SEPA in this case. To the contrary, the City of Edmonds is doing exactly what, under regulatory reform, the
legislature has directed cities to do. And that is to harmonize the implementation of the City's regulatory system with the
City's State Environmental Policy Act review system. In this case, the City of Edmonds has adopted a very rigorous critical
areas ordinance to address issues of steep slopes and wetlands. The Planning Staff was not saying to the Examiner that we
don't care about SEPA because we have a critical areas ordinance. But Planning Staff was saying that our critical areas
ordinance, with all of its restrictive and considerate mitigations of environmental impacts mitigates the potential
environmental impacts of this project. The Planning Staff had a rational basis for making the conclusion, in this case, that the
project, as proposed, would not pose probably significant adverse environmental impacts. What was that reasonable basis?
The soils report presented by the expert soils engineer in this case.
Mr. Hill: There is no evidence presented to the Examiner by any expert that the appellants have presented to the Examiner.
No evidence at all, not a shred, that the conclusions reached by Mr. Lew are wrong. So not only have the appellants not met
the substantial weight to be accorded the decision of Planning Staff, they haven't even begun to approach the burden that
they are required to meet.
Mr. Hill: The second issue relates to wetlands. With respect to the wetlands issues, Planning Staff has made the (I am
probably talking too fast).
Mr. McConnell: That's okay. No, I have just been writing all day.
Mr. Hill: With respect to the issue of the wetlands, Planning Staff has made the suggestion to the Examiner that a condition
of approval be that a third -party contract be entered into to confirm the delineations that have been made to date. Certainly,
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the applicant will comply with that condition, if that is what the Examiner believes is appropriate. However, the applicant
would urge the Examiner to conclude that, based on the record presented to you at this hearing, there is ample evidence to
conclude that the wetland at issue in this case is well below the 2,500 square foot threshold that the City's critical areas
ordinance defines as the threshold that needs to be met in order for regulation of that wetland to be appropriate. In this case,
a qualified wetlands biologist has delineated the wetland on the applicant's property. That same wetlands biologist and a
surveyor have measured the size of that wetland. They have also measured the size of the wetland flagged by Terra
Associates, which is the expert hired by the appellants. Now our wetlands biologists believes that wetland is probably over
delineated, but even if you take the measurement that that biologist took of 1,600 square feet, adding the two together is well
under the 2,500 square foot threshold. So the applicant would urge the Examiner on this appeal to conclude, again under the
threshold of SEPA, is there a probable significant adverse environmental impact that the appellants have demonstrated to the
Examiner. Have they demonstrated by the substantial weight of the evidence that there is a significant adverse environmental
impact that requires additional SEPA review. We don't believe that they have.
Mr. Hill: Finally, the issue related to traffic and traffic safety. The traffic and traffic safety issues raised by the appellants in
this case focus on a sight distance issue. As Mr. Smith testified, Mr. McConnell, there has been a licensed civil engineer who
has evaluated the sight distance issue. What is going to happen if this project is approved, is that the existing sight distance
situation will be improved as a result of this application. The existing sight distance problem that has been testified to by the
neighbors in this case will be improved so that the sight distance meets engineering standards for a safe sight distance. That,
in and of itself, is a public benefit of this proposal and supports its being approved. And certainly, there is nothing in the
record that would suggest that there are significant environmental impacts associated with this project. By this same token,
the driveway access to the cul-de-sac meets all City standards.
Mr. Hill: With respect to the PRD and the subdivision. As Mr. Hatch stated in his arguments in this case, the PRD and
subdivision issues in this case really build upon and are dependent upon the SEPA issues that the appellants raised. If the
issue of the top of bank is resolved in favor of the City, and as I pointed out, not only does Black's Law Dictionary support
that interpretation, but ten years of staff interpretation supports it, the wetlands biologist supports it, it is the reasonable result
and not the absurd result, in this case. If that issue is resolved in favor of the City, then most of the other complaints raised
by the appellants melt away. And the appellants concerns, with respect to the PRD should be resolved in favor of the staff
recommendation to the Examiner.
Mr. Hill: With respect to the issues of the architectural design of the projects, there were architectural designs presented to
the appropriate administrative board of the City, in this case. That board reviewed them and approved them with conditions
and have presented them to you. There is a concern raised that those plans and designs are not sufficiently detailed. But
although those plans and designs are not completely detailed, as the Examiner will see when he reviews the record, there are
elevations, there are floor plans, there are descriptions of the project. And those plans to comply with the requirements of the
City's PRD ordinance
Mr. Hill: In conclusion, Mr. Examiner, this appeal really raises one of the basic policy challenges under the Growth
Management Act. We have a community that would prefer that this lot either not be developed or be developed at a reduced
density. Our State Legislature and the Growth Management Act has mandated that City's like Edmonds develop property at
urban densities. I won't belabor the point in terms of why the Legislature has done that, but the basic concept is to reduce
sprawl, reduce the cost of infrastructure, have more dense urban development in areas where the infrastructure exists and can
support the development. The result of that project is that sites like this, which are infill sites in urban areas like Edmonds,
can be developed. Neighbors that are used to the open space are understandably dismayed when these sites are developed. In
this case, Mr. Examiner, it is not a case where the property has been rezoned. It is not a case of a multi -family project in a
single-family development. We are seeing a lot of those, and there is a lot of controversy associated with those. This is a
case of PRD—of a clustered housing unit. And clustered housing, as the Examiner knows, is specifically encouraged in the
Growth Management Act. That is one of the specific techniques that the Growth Management Act directs cities to consider
using to encourage this type of infill development. We have got a clustered housing development that actually meets the
density requirements of the existing traditional zoning in the area. So it is a clustered PRD that does meet Growth
Management Act goals and objectives, but also is consistent with the RS-12 density that the area has traditionally identified
as being appropriate for it. So it is not an issue of a rezone or more density than usual.
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Mr. Hill: The project, as the testimony has shown, is actually more environmentally compatible and sensitive than a
traditional subdivision which could be done without a PRD. It will have landscaping that a traditional subdivision would not
have. It ensures open space provisions for the owners of the subdivision that a traditional subdivision would not have. It has
got a trail. It protects the sensitive and critical areas. Given all of that, the policies of the PRD and the subdivision clearly
support the project.
Mr. Hill: In conclusion, Mr. Examiner, the applicant urges you to affirm the staff recommendation on the PRD and
subdivision and to also affirm the threshold determination of the City's responsible SEPA official. Thank you.
Mr. McConnell: Thank you. Mr. Hatch. What happened to your microphone?
Mr. Bullock: I stole it.
Mr. Hatch: Before I directly address counsel's comments, I would like to briefly respond to a couple of Mr. Smith's
comments during his last testimony. The appellants have attempted to convince you and justify the use of the Lew
geotechnical report on a couple of basis, one of which is that it is, by design, a preliminary a report, which of course will be
somehow completed at some later date. The term I hear here today frequently, and frankly have heard many times in
hearings like this, is that's kind of the way we do it. I would suggest that that is not now, nor will it ever be, a legal
justification for any procedure. The City has ordinances and procedures which are quite clear and specific in most instances,
and I would submit that the citizens of this City are entitled to have those ordinances an procedures followed to the letter.
Whether or not that is what is usually done is not relevant to this particular hearing. In this particular instance, the problem
with the Lew report is the fact that, by its own internal terms, it acknowledges that it fails to contain information which the
City's codes require, in our view at least, to conduct a proper environmental review of the project as proposed. That's
because the project, as proposed, presumes a ten -foot buffer. Such a buffer cannot legally exist in this City unless a
geotechnical report, which conforms to the provisions of Chapter 19.05 is on file with the City. It does not exist, and Dr.
Lew acknowledges that his report does not contain that information.
Mr. Hatch: Now, in this particular instance, there has been some parsing of language as to whether we are talking about
evaluation or exploration or whatever. I submit that that is ridiculous. The statute says, in Chapter 19.05, that the owner is
responsible to submit a geotechnical report. "The owner shall retain a geotechnical engineer to prepare a report and
evaluation of the subsurface soil conditions on the site." Now, Dr. Lew's report, citing from his report, in his conclusory
statement says "The conclusions and recommendations in this report are preliminary in nature based on the geologic and soil
conditions shown on the above referenced geologic map and on ground probing results." He then goes on to say "the
geologic and soil conditions should be verified by a subsurface exploration prior to development of a short plat." He is
obviously drawing a distinction, in his own report, between whatever ground probings they did with some kind of auger and a
subsurface soil examination and ... (The tape was switched here so the rest of this sentence was left out)
Mr. Hatch: For this SEPA review process to be properly undertaken, it is premature to issue a determination of non -
significance where the technical data that the City's own statutes require does not exist. If the proponent, in this case, if the
applicant was suggesting that they would live with a 50-foot slope buffer, then the report would be irrelevant, no matter what
it said, as long as they were proposing to develop 50 feet from the slope. But they are proposing to develop within 25 feet of
the slope, taking into account the building setback, and that is only permissible, under any set of circumstances, if the
property geological report is on file with the City, and it is not. To presume that there would be no adverse environmental
impacts based on a report that doesn't contain the necessary information is simply insufficient.
Mr. Hatch: Now, Mr. Hill has indicated that I have misstated the law, in a number of respects, and I guess I will
respectfully agree to disagree with him. In regard to the burden of proof or the standard of review or whatever you want to
call it, maybe it is a question of definition or terminology. What I said earlier, or at least what I intended to say, was that in
this instance the City has the burden of going forward to establish that they met the SEPA requirements. Our Supreme Court
has been quite clear on that point. In fact, in my memorandum... I had it here a minute ago and then I flipped to a new
section and I have lost it. Here we go. In the recent case of Wenatchee Sportsman Association verses Chelan County, which
was a 2000 case, a fairly recent decision, our Supreme Court said "for the MDNS to survive judicial scrutiny, the record must
demonstrate that environmental factors were considered in a manner sufficient to amount to a prima -facie compliance with
the procedural requirements of SEPA and that the decision to issue the MDNS was based on information sufficient to
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evaluate the proposals environmental impacts." Now I would submit that is a clear statement that the City, in this case, bears
the burden of going forward to establish that compliance. We don't, in this particular instance, have the burden of proving
they didn't. The Supreme Court says they have the burden of establishing that they did. And that is the rule of law in this
state.
Mr. Hatch: With regard to this issue of top of the bank. I will be the first to concede that that is not an insignificant issue in
this case because much of our environmental concerns revolve around that. There seems to be a suggestion that the
interpretation I have suggested as the appropriate one is somehow a stretch. I would submit that any reasonable visual view
of this property makes it fairly apparent that it is the only reasonable interpretation of the statute. I fmd it also particularly
interesting, if not somewhat amusing, that Mr. Bullock in his staff report specifically talks about the top of the slope as being
the top of the bank. That is the language he uses. Not twenty minutes ago, Mr. Smith, in his recitation about the property
used the phrase, I have walked along the top of the bank. Or he says if you have along the top of the bank like I have, you
would see thus and so. The simple fact of the matter is that in the context of this particular property, the top of the bank and
the top of the slope are the same darn thing, and anybody who concludes otherwise simply isn't looking at it. This is not a
situation where you have got a wide channel stream that has some clear stream cut and then there is some high land to the left
or right of the stream that rises up from there. This is a situation where you have got basically a V-shaped ravine, and there is
a stream at the bottom of it. To somehow suggest that the cut of this stream flow, defined by its widest point, it the top of the
bank is the only absurdity that I have heard in this hearing today. It is simply ridiculous to suggest that in the context of this
case. Moreover, The City Council passed an ordinance which says top of the bank. Counsel has suggested that statutory
interpretation would dictate that somehow that is a term of art. That is nonsense. Since when is the term bank a term of art?
Disc operating system may be a term of art, but bank certainly is not. It is a common word used every day by millions of
people in a number of ways. To somehow suggest that it is susceptible to a technical definition is ridiculous. We look to
ordinary uses by ordinary people just like Mr. Bullock, just like Mr. Smith have used it today on occasions or in their
reports. That is the way most people look at it.
Mr. Hatch: Counsel also suggested that the interpretation that I am suggestion is the appropriate one leads to absurd results.
How? In what way does that lead to an absurd result? In this particular instance, what it means is this stream is going to be
protected. If the counsel and the City's interpretation were correct, this stream would essentially be afforded no protection
except to the extent that they are willing to give the top of the buffer a ten -foot setback. It is ridiculous to suggest that an
ordinance, which was specifically designed to protect a stream, seeks having any meaning because the stream happens to be
at the bottom of a deep ravine. That is a ridiculous result, and that is the only absurdity in this hearing today.
Mr. Hatch: Essentially, your honor, our perspective on this case if fairly simple. We know that the City processes lots of
applications. We know that staff with the City, like staffs everywhere, is dealing with conflicting concerns and views,
conflicting interests, and frankly, in many cases, probably shortness of time to deal with a lot of things. But the fact remains
that under the current state of the law in this State, there is a fiduciary obligation and a legal duty on the part of the staff with
the Planning Office, as the lead agency under SEPA, to conduct a review which takes into account all of the significant
environmental impacts. Now counsel has suggested that we haven't demonstrated any significant environmental impact here.
I submit that the critical areas ordinance presumes significant environmental impact if it is violated. That's why it is there. It
is designed specifically to preclude those significant environmental impacts. In fact, counsel for the applicant, by inference,
has essentially agreed with that because he said that the critical areas ordinance is designed to take over the concerns that
arise under SEPA. I agree with him on that, and that is principally why I believe that in the review under SEPA the City
must evaluate each and every provision of the critical areas ordinance in the instance of the SEPA review. Not at some later
part of the process during permitting or some other later stage. That is the critical and pivotal point at which each and every
one of those issues must be addressed. If there are aspects of this project which violate the City's critical areas ordinance, in
my view, that establishes a record which presumes that there will be a significant adverse environmental impact if it is not
corrected.
Mr. Hatch: In summary, your honor. I am sorry, Mr. Examiner. We believe that in this instance, this matter cannot be
sustained in terms of the determination of non -significance. Again, I disagree with counsel. I am unaware of any authority
under the current City Code or anywhere else that suggests that the Hearing Examiner can remand this back to redo this.
Punt the ball and start over. What SEPA says is if the original threshold determination isn't sustained, you do an EIS. The
threshold determination is, basically, the opt out. If the opt out isn't sustained, then you go back to what the law requires in
every case, and that is an EIS. I would submit that if this particular threshold determination is not sustained, that is reversed
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That essentially concludes your job. I don't think the Hearing Examiner has the authority to tell the City what to do next.
You simply sustain or you reverse. If you reverse, at that point, SEPA kicks in and it tells us exactly what is supposed to
happen next.
Mr. Hill: In regards to the project, itself, I am not going to beat it to death because we have talked about this an awful lot
today. But many, many people have spoken on the issue, and I think basically, what we are asking you to do is to take a very
careful look at this project in the context of the neighborhood in which it is being proposed, the unique circumstances under
which it is being proposed in terms of the location and the geography and the physics of the place, to take a look at and
personally evaluate the concerns that many people have expressed about the traffic problems in this particular location if this
density is allowed, and to take a look at whether or not there is some clear discernable public benefit to be derived from this
process that would otherwise not occur. In the absence of that, under the PRD ordinance, there is no basis to approve this
application. So we would respectfully request you to reverse the mitigated determination of non -significance in this case and
to deny this application unless and until it conforms with the PRD ordinance and the critical areas ordinance. Thank you.
Mr. McConnell: Thank you. Mr. Bullock.
Mr. Bullock: Thank you Mr. Examiner. What time is it?
Mr. McConnell: It is 3: 35.
Mr. Bullock: Thank you. I want to start first of all by talking a little bit about the role of the Planning Department as it
pertains to applications like this. First of all, any one of you has the right as a property owner to apply for a permit on your
property. There is nothing that I can do as a City staff person to deny you the right of applying for a permit —be that a
variance, a conditional use permit, a subdivision, a PRD. Whatever it is, you as a property owner, have the right to apply. In
this case, the applicant has the right to apply for a PRD and a plat. There is nothing that I can do as a staff person to say I
don't like your application so I am not going to let you turn it in. They have the right to turn it in. At that point, it becomes
my responsibility, as a staff person or another planner in our department, to review that project based on the criteria that have
been adopted by our City Council in our codes. That is the law that I am hired to enforce. And that law is there to be
impartial and to be applied in a manner that will consistent through the entire City. Not just for one neighborhood, not just
for one area or for one project. This would be applied impartially across the entire City. When I review projects, I review
them the same no matter what neighborhood they are in.
Mr. Bullock: There was some comments made earlier today that I am afraid might have been misinterpreted by some
members of the audience. Mr. Smith was saying that he had met with staff to go over some concerns and they ended up
making some changes to their proposal. I am a little bit concerned that there is some people here that might have got the
impression that there is some kind of collaboration going on between staff and the applicant. I wanted to assure that is not
my job. That is not how I view my job and that is not how I review projects. It is the applicant's responsibility to propose
projects and to design the projects and to make whatever changes they want to make to a project. And then I review those
projects based on the criteria that have been given to me by the City Council. In this case, because we did kind of go through
a little snafu with the notice of the environmental determination and a couple of staff reports going out, I, as a staff person,
got a whole lot of feedback from the entire neighborhood in the forms of letters and conversations at the counter and on the
phone. A number of items of feedback. In hearing and reading all those issues, I ended up going back to the applicant and
saying, you know, I have reviewed your first application and have now taken in a whole lot of feedback and testimony from
neighbors that are concerned about your project. These are the things that I see as potential issues that they are raising that
could lead to your project not completely complying with the PRD criteria. At that point, the applicant modified their plans
to try to address those issues and those criteria better.
Mr. Bullock: That's the way the process works between the applicant and the City staff. I am not responsible for designing
anything. I am not responsible for trying to get something approved. I work with them to identify concerns raised by the
neighborhood and tell them things that I then see as potential items that may not fully comply with the criteria of the code.
Then it is up to them to decide if they want to continue to move ahead on the current course or make some modifications to
their project. Again, I just want to try to do everything I can to assure that when I review a project I try to do it with your
best interest in mind. We may not agree, but I try to do that. And I try to do it impartially no matter where in the City this
project is being proposed. I do not view anything that I do with an applicant as a measure of collusion or collaboration at all.
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It is up to them to choose to do what they want to do —to choose to make modifications to their design if they choose to do
that. In this case, they did choose to make some designs, and in my final review of their proposal, as reflected by the staff
report that I sent out, I felt they met the criteria for approval of a planned residential development and a formal plat. Again,
that is not to say that we agree. I appreciate Mr. Hatch's comments on that. The fact that we do have a public process and
the Examiner is the individual that makes the decision on that, we can disagree and he will be the final decision maker on
what is the correct answer.
Mr. Bullock: The other thing I want to address briefly is the environmentally sensitive areas map. There was a notice that
staff might have said it was a relic or whatever it was. I just wanted to say that I don't ever recall saying that to start with. It
is something that was eliminated from our code approximately 8 to 10 months ago. Yeah, in the re -adoption of the City's
Comprehensive Plan it got re -adopted, but it has no authority because it got eliminated from the section of code that gave it
authority. Yes, it is still a document that is in the City's Comprehensive Plan. It is an environmentally sensitive areas map.
But its old authority was in the SEPA chapter which said if a property is identified on this map, no matter how big or small
the project is, you have to go through SEPA. If you recall in my very opening remarks, I stated that many small projects are
exempt from SEPA, and once you hit a certain threshold the project, then, is required to go through the SEPA process to
submit and environmental checklist. The City is required to issue an environmental determination. The effect of the map
under the previous ordinance was that no matter how small the project was, if you were mapped on that map, you had to go
through SEPA. You had to go through the environmental process, submit an environmental checklist and the City issue an
environmental determination. Well, this project was big enough that we had to go through that process anyway. Whether or
not that map was in effect for this project wouldn't have made any difference because we went through the environmental
review process with this project due to the size of the project. The fact that it was identified on the map had no bearing
whether or not we were going to require it to go through the environmental process.
Mr. Bullock: I want to kind of go through my notes and respond to some of the comments that were made as they were said.
Specifically by Mr. Hatch. First of all, he made some statements to the issue that staff did not consider all of the codes and
critical areas buffers in issuing its environmental determination. Well, that isn't exactly the case. We definitely do look at
our codes and look at what those things are. While we don't necessary apply the critical areas ordinance specifically at the
time that we are issuing an environmental determination, the fact that we have that critical areas ordinance is what gives me
some safety to not address it as specifically as part of this SEPA review process. If I think that our critical areas ordinance
does not address something enough, then I could use the SEPA process, the environmental determination process to add some
additional conditions on it. That would be a difficult thing to do, though, because the City's critical areas ordinance... Let
me back up a moment. The SEPA process is set up to allow cities to condition projects based on policies they have in their
comprehensive plan even when they don't have a code that specifically tells them how to deal with it. If we didn't have any
Comprehensive Plan policies that established as a goal or a policy for the City that we want to protect streams or that we
want to protect steep slopes, it would be difficult for the City to then apply a condition through the SEPA process that we
didn't have policies in place to back up. We have to have some written policies in place to justify any conditions we would
make with the SEPA process.
Mr. Bullock: When the City went through the process of adopting its critical areas ordinance, it had to make sure that those
same policies were in place in the Comprehensive Plan to justify them creating this ordinance. And we do have those
policies in place, and the City used those policies to craft and create this critical areas ordinance that protects streams, that
protects steep slopes, that protects wetlands and habitat areas. And it addressed all those policies from the Comprehensive
Plan in the ultimate creation of that critical areas ordinance. And it establishes the thresholds and the manner in which
development is going to be permitted around those critical areas. With that in mind, for me to require some condition as part
of the SEPA review that is over and above what is required by our critical areas ordinance, I would have to have a fairly
specific policy in place in my Comprehensive Plan that would justify me making an additional condition. If I don't have that
written policy in place, me putting that condition in is not justified and is open to challenge by an applicant or anybody else
who wanted to challenge that. All those policies were reviewed when creating the critical areas ordinance and that is my
reason for relying on the critical areas ordinance when I am dealing with those type of features and project development and
in issuing an SEPA determination. The critical areas ordinance has considered all those policies and has established
specifically the thresholds and the development standards that I need to and the applicant needs to recognize when they are
doing development.
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Mr. Bullock: That being the case, our critical areas ordinance is very specific about how close you can build to a steep slope
area. And because the desire with the steep slope area is to protect from failure of the steep slopes and damage to adjacent
properties because of failure, if it can be demonstrated that this is a stable slope, then those buffers can be reduced. That is
something that, again, is established by the critical areas ordinance. The Planning Staff, myself and all the other planners on
board, are not geotechnical consultants, so we are obligated to rely on the expertise and the reports submitted to us by
licensed, qualified geotechnical engineers. In this case, the geotechnical review that was submitted, the appellant is claiming
is inadequate. One of the things that we have to deal with and that you have to understand about our code is that when the
critical areas ordinance was adopted, they tried to defer, as much as possible, to existing codes that we had in reviewing some
of these geotechnical processes. They are very complex and scientific in nature, and the City had one in place related to
construction in the steep slope and landslide hazard areas. It is more commonly known as the Meadowdale Ordinance and
referred to consistently today as Chapter 19.05 of the City's building code. As its location in our code identifies, it being in
the building code, it is related specifically to construction on steep slopes. It is related to somebody actually building a house
in a steep slope environment. So the specifics about the report that is required under Chapter 19.05 is related to a specific
development proposal that as a specific building footprint, that has construction drawings and documents created, that has a
specific foundation plan, that a geotechnical engineer has reviewed and considered to be appropriate for the ground and the
soils that are going to be on that site. It is related to the physical characteristics of the land as well as the proposed
construction methods for that house.
Mr. Bullock: Well, that being the case, what we are reviewing today is a plat and a subdivision. It is the subdivision of land
that will ultimately result in houses being built out there, but right now, it is not approval for specific homes. It is not
construction level detail. It is not the level of detail that is being created and developed for this type of approval. What the
geotechnical consultant has created at this point —his report up until this point in time —does deal with all of the physical
characteristics of the land (the soil and slope types based on his understanding and knowledge of the site), but when it comes
to approving a building permit for the individual lots, the actual specific design of a foundation plan and marrying that with
some subsurface exploration of the soils for that lot can actually confirm that this is what is appropriate for being built on
each of these individual lots.
Mr. McConnell: Do you want to check that?
Mr. Bullock: That's the back up. We are okay. That being the case, the City and the Planning Staff is comfortable that this
is an appropriate level of geotechnical report to be submitted with a subdivision and a plat and a planned residential
development. The more detailed report associated with the construction of the individual homes will happen with the
building permit applications for each of those individual homes. It can't be done now.
Mr. Bullock: I think enough has been said about the stream bank and the slope bank, except for the fact that Mr. Hatch did
say that I had referred to it as the top of the bank in my report. I was kind of curious as to where I did that. I read through the
entire critical areas section of my report, and there is one place where I do identify the top of the slope as the top of the bank.
But through the entire rest of the report, I refer to it as the top of the slope or the tow of the slope when I am referring to the
steep slope portion, which is probably at least another ten times. I know that this issue has come up before. It is a semantic
issue and I try to be very careful when I am dealing with steep slope areas to not use the word bank because it does cause
confusion. But the City is extremely consistent in how we deal with the streams and steep slopes. Steep slopes have a top of
slope and bottom of slope. Streams have banks on the sides of the channels —defined by the channels. What I think is also
interesting is that Mr. Drew, who testified earlier today, talked about the fact that the City had had some pretty significant
buffer and setback requirements for him when he developed his property. Those buffer and setback requirements were taken
from the edge of this exact same stream —from the edge of the stream —the bank of the stream as I have described how we
deal with it. This would be asking the City to change how we do it for the exact same stream, just a different property and a
different project. In the City Staff s perspective, asking the City to now change what we consider a bank would be the model
of arbitrary and capricious in how we do things. We have been completely consistent in how we deal with those things since
the critical areas ordinance has been adopted and in place.
Mr. Bullock: I do think that is the crux of a majority of the arguments that were made today in that if it is determined that
the top of the steep slope is in the bank of the stream, that completely changes what potentially could be developed on this
property and what the limitations of it are.
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Mr. Bullock: Mr. Hatch said that the steep slope buffer reduction can't be appealed other than through SEPA, but we don't
agree. He had made some statements that it couldn't be done if it wasn't done through SEPA, but this is where we do it. In
the review of the plat and the PRD and the fact that we are reviewing the compliance with the critical areas ordinance as part
of its approval process for the plat and the planned residential development, this is the appropriate time and the appropriate
permit to review the reduction of that steep slope buffer. The request by the applicant for a buffer reduction from 50 feet
down to 10 feet is acceptable by our code and provides more safety than what their geotechnical report had said was safe.
Mr. Bullock: He also made some statements that the Class III wetlands should be regulated through SEPA. Again, we do
not agree with that. Staff does not agree with that in that the City Council, in adopting the critical areas ordinance, has
established the thresholds under which City staff is going to regulate these critical area features. They said, in adopting that
ordinance, if you have a wetland that is under this size that has only one wetland class of plants, we are not going to regulate
it. It is too small to be something that we want to control. If it has more than one wetland class, it could be five square feet
and still be regulated, but when it is a Class III wetland, it only has one wetland class an is under 2,500 square feet. The City
Council said, when they adopted that ordinance, we do not want to regulate that. Unless there is some new Comprehensive
Plan policy that directed me to make that kind of condition, I would be remiss in doing my job in making a condition through
SEPA that would state that.
Mr. Bullock: Scott Snyder, the City Attorney, is actually out of the office. He should be back next week. I talked with one
of his assistants yesterday in regards to the 20.35 and 20.100 jurisdictional question. His response tome was exactly....
Mr. McConnell: I will get it in writing from the City Attorney. I would like to have it in writing for the record.
Mr. Bullock: You bet. Mr. Hatch also made some statements in regards to the preliminary nature of the designs and that
that is a problem for them. Claiming that there is not enough specifics in what has been proposed. The elevations submitted
show materials proposed to be used. It shows main facades of the homes. The design board review added some extra
conditions to make sure that a consistent treatment of that building would be maintained around all four sides of the house
instead of just having kind of window dressing on the front and have the remaining three sides be very plain. The City staff
does not feel like there is a lack of specificity regarding the plans that have been submitted to this point. The City also has
the bulk requirements or limitations that control how big the bulk of the building can be-35 percent, and how high the
building can be-25 feet. Those things have not been requesting to be changed. In the matter of height, it couldn't be
requested to be changed through this process. And so we have a very limited envelope of what can happen. We have got a
good idea of what the building is going to look like. We know what the size and bulk of it can be. We know how high it can
be. All those things are already established by our codes or by the plans that have been submitted and reviewed by the
Architectural Design Board up until this point.
Mr. Bullock: Mr. Hatch also likened PRD's and the fact that they are not a very desirable kind of development and that it is
not good infill, it is more infiltration and that PRD's should only be used when a regular subdivision can't be done. Well,
quite honestly, the previous version of the PRD ordinance had some language that made that more the case. It had some
language in it that said PRD's are to be used when lots can't be subdivided under typical subdivision rules. Well, the Council
specifically eliminated that from the new version of the PRD ordinance because they didn't want to limit them to only those
sites that couldn't be developed under a standard subdivision. They wanted to open up the possibility of people proposing
PRD's on sites that maybe could be divided through the traditional subdivision process, but in proposing a PRD a
neighborhood and a community would get a better product than they would otherwise get through a standard subdivision. I
think a great example of that is what the applicant has submitted as Attachment 16 of the attachment packet, which is what a
standard subdivision might look like. We are talking about lots that don't have near the street presence that the established
neighborhood does or what the proposed PRD would have a far as a consistent pattern of home that front the streets that
provide a nice fagade of the building towards the street. In the proposed plat, under a conventional subdivision, the lots are
all strange shapes and so the houses would have to be twisted this way and that. And talk about something that isn't
consistent with the design pattern of the neighborhood, especially the design of the development along Sealawn Place, is just
not near as good as what is proposed under the planned residential development.
Mr. Bullock: There is some question about public benefit and what is it. Is it the open space? Is that going to be available
to the public? Well, the PRD ordinance, as it is drafted right now under the approval criteria 20.35.050 starts off by saying
(and Mr. Hatch actually quoted some of this). .. He said because PRD's are providing some incentives to applicants by
Verbatim Hearing Examiner Transcripts
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providing for flexibility from the bulk zoning requirements, a clear benefit should be realized by the public. To ensure that
there would be a benefit to the public, the City shall approve, or approve with changes, a PRD that the proposal meets the
following five criteria. Then there is five criteria. It is assumed that if the application meets those five criteria, those five
criteria are ensuring that there is a benefit to the community. That benefit might be a direct benefit by actually having a
public open space that the neighborhood could use, but it could be a host of other things. Being a more consistent design of
street frontage of the homes —more consistent with what is going on in the neighborhood. It could be a number of things
from reduction of impervious surface to more efficient circulation patterns, all those things that are called out in that decision
criteria. As long as an application meets those five criteria, it is presumed that that project is providing a clear public benefit.
In this case, both the applicant and staff in our review of the project, have come to the conclusion that this project does meet
all five of those criteria and, therefore, the project is presumed to have a clear public benefit.
Mr. Bullock: In regards to the remainder of the public comments that were received, there was a number of them that
addressed traffic and sight distance and the hump. The applicant has shown on the proposed grading plan, which is
Attachment 3 of the attachment packet. I think it is the third or fourth drawing in that attachment is the grading plan. It
shows how a substantial amount of soil is going to be removed from the hump along the south part of the Stein property that
is going to open up and broaden some of the sight lines as you are going around that corner. Before you get into the corner,
you will actually be able to see across the corner in either direction. That should help a lot of the concerns that the
neighborhood has for sight distance and traffic in that area. The Engineering Department is watching that item very closely,
as well. They are the department in the City that actually confirms that adequate sight distance is available for cars exiting
the proposed subdivision as well as the cars driving along 171st. At this point in time, they think that there is adequate sight
distance based on some of the improvements that are happening on the property. The reduction of the soil there along the
north side of the public right of way. They do have some conditions in their engineering requirements which limit the kinds
of vegetation that can happen in that area to make sure that sight distance is maintained.
Mr. Bullock: There was some questions about the quality of homes. Unfortunately, the City doesn't have any criteria in its
subdivision ordinance or in the PRD ordinance that addresses the quality of construction. I am not sure if this is any
consolation or anything but the uniform building code will require that the home are built safely and that they are not going to
fall down. Beyond that, I think the neighborhood can draw some comfort from the fact that the land values are so high out
there, it is not very affordable for somebody to not put homes on those properties that are commiserate with the value of the
land. That being said, again, there is no criteria in the code, other than the building code, that is going to regulate quality of
homes and materials used other than what has been approved through the design review board and the single-family design
criteria. But again, the value of the land is going to drive commiserate value for homes in that area.
Mr. Bullock: That concludes my presentation, Mr. Examiner.
Mr. McConnell: Okay. Thank you very much. What I am going to do at this time is I will close the hearing for oral
comments and testimony. I will keep it open to allow Mr. Andree to submit his materials and also to get a response from the
City Attorney regarding the issue raised by Mr. Hatch, which is certainly a valid issue. I want to make sure we get that one
addressed, and I know the Council is going to be addressing that with an ordinance in the future. At least, for the time being,
I will figure out what I am supposed to do, how long it is before I can issue a report and all those good things, and what
process we go through from here on. With that, Mr. Hatch do you have something more.
Mr. Hatch: I do. It will only be about two minutes. I just wanted to respond to a couple of comments that were just made
by Mr. Bullock. I think I have attempted to make this point before, but unless there is any ... The question regarding the
application of the critical areas ordinance to the SEPA review. I still think that there is clearly a perceptual problem here.
Mr. McConnell: I understand his interpretation and I understand yours.
Mr. Hatch: I know you do. What I want to do is cite what courts have said about that point.
Mr. McConnell: I have got your memorandum.
Mr. Hatch: I know that you do. This is for the benefit of the assembled multitudes. In the case of Gardner verses Pierce
County Board of Commissioners, which is cited in the memorandum, addressed a situation where the county board issued a
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negative declaration of environmental significance and then dealt with a property that had proposed lots on it that feel below
the allowable lot size under various provisions of the Washington Administrative Code. In that case, the court said "we hold
the county had an affirmative duty to demonstrate its justification for a negative declaration under SEPA," which by the way
goes back to the question of what their burden is. "In this case the record contains no showing of whether or not the
proposed plat violates Washington Administrative Code 24896090, which was the one regulating size. It is clear that the
proposed lot size is well under 2 acres per lot. It is not clear, however, whether any engineering justification can be made for
the approval of the smaller lots. Without a clear record on this point, the county has failed to demonstrate a justification for
its negative declarations under SEPA. A lack of a record renders the county's determination clearly erroneous." Our view is
that the failure to specifically address the compliance of this particularly project with each and every provision of the critical
areas ordinance as part of the SEPA review renders the record insufficient and makes it clearly erroneous.
Mr. Hatch: One final point. The question of this ten -foot buffer for the slope, Mr. Bullock has indicated that there is no
separate appeal process for that. It is all handled as part of the SEPA review and all that. That is simply incorrect, and that is
why we believe that this particular issue of some concern because there is already a short-circuiting of the process going and
failure to consider the slope ordinance in the context of the SEPA review is simply a double whammy short circuit. In the
ordinance that deals with the buffer, the geologically hazardous areas section of the critical areas ordinance —specifically
Section 20.15.13.110—it addresses the question of reducing the buffer for geologically hazardous areas below 50 feet.
Therein it recites this requirement that there be a geological engineering report that clearly demonstrates that there is going to
be no adverse affects, etc. Then it goes on to say that "staff approval or disapproval of a proposed buffer reduction shall be
subject to appeal pursuant to the provisions of ECDC.20.105.010.A.4." That particular section of the Edmonds code
addresses the types of decisions that are appealable and to whom and whatnot. And in that particular instance, that section
delineates all of the types of staff decisions which are appealable to the Hearing Examiner. It lists them one through ten.
Item 4 of that list, the one that is referenced in the ordinance I just read is an interpretation of the text of ECDC. That is a
completely separate, appealable issue (i.e. did they correctly interpret this statute with regard to reducing the buffer and did
they meet the necessary statutory requirements). Item 5 is SEPA review—SEPA appeals. It is clear from the ordinances of
the City that there is a completely separate appeal process that is supposed to be followed anytime the City approves a buffer
reduction for slope buffer. Again, as we point out in our memorandum, there was never any formal staff action taken on that.
There was nothing to appeal, and essentially there is a void in the record on that issue. That's all I have.
Mr. Bullock: If I might, Mr. Examiner.
Mr. McConnell: Okay, Mr. Bullock.
Mr. Bullock: Sorry about this. But Chapter 20.90.010 is the chapter the City adopted in response to the regulatory reform
act. There is a section in there talking about application procedures. It talks about project consolidation. What it briefly says
is that when multiple permits are required on a project, they get consolidated to the highest level of decision maker. So in a
case like this where if there was a single lot that wasn't being divided and there was a building permit on that lot, staff would
... (The tape changes here) In the case of a project where there is multiple things that need to be approved, in this case a
PRD, a plat, a reduction of the steep slope buffer from 50 feet down to 10 feet. That all gets consolidated together and the
Examiner makes a decision on the whole thing. That is why it is here.
Mr. McConnell: Mr. Hatch.
Mr. Hatch: I just want some clarification, then, Mr. Bullock. Are you telling us today, on the record, that the staff has made
a decision to reduce the appropriate the slope buffer to ten feet?
Mr. Bullock: We don't make that decision.
Mr. Hatch: Yes you do. That's what the statute says.
Mr. Hill: Objection. This isn't an opportunity for...
Mr. McConnell: I think I understand the issue. Basically, what you are saying ... What I understand him saying is that
that has been combined at this point and I am making the decision.
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Mr. Bullock: You are the decision maker.
Mr. Hatch: Okay.
Mr. McConnell: He is basically saying they have made a recommendation, but they haven't made the decision.
Mr. Hatch: Then why do we have an appeal process to you of their decision?
Mr. Hill: Mr. Examiner, could I ...
Mr. McConnell: Mr. Hill.
Mr. Hill: Just when we think the hearing is over. If I understand the argument being made by counsel, there is an
opportunity to do an administrative appeal of the decision to do the buffer. There is two situations that are possible here One
is that Mr. Hatch has made such an appeal by virtue of filing the SEPA appeal and being heard on the PRD and the
subdivision. The second is that Mr. Hatch has waved his opportunity to appeal by not appealing that particular administrative
interpretation. In which case, he would be foreclosed from having the opportunity to address this issue of the ten -foot buffer.
We are not contending that he should be foreclosed, but certainly the issue is here before you and you are making the
decision on it.
Mr. McConnell: If I am the decision, and depending upon whether upon my decision is a recommendation or decision, I am
sure no matter what happens, this will not be ending with me.
Mr. Hill: And certainly the issue has had a full hearing today.
Mr. Hatch: Let me just conclude by saying I thank you for your patience, Mr. Hearing Examiner. And Mr. Bullock, I
appreciate your time and effort on this. I think everybody in the room appreciates the fact that you are all trying to do your
job.
Mr. McConnell: Thank you. As I started to say earlier, I will close the hearing for oral comments and keep it open so that I
can get the information from Mr. Andree and from the City Attorney.
Mr. Bullock: Are you doing that for a specific period of time? Are you giving them a week?
Mr. McConnell: Well, I don't know how long it is going to take Mr. Snyder to respond. I asked Mr. Andree to get his stuff
to you by tomorrow. I don't know when I am going to get it from Scott.
Mr. Bullock: He should be back in the office first thing next week, and I will just do it as quick as I can.
Mr. McConnell: Okay. I will contact him. I will write a letter to him and just ask him myself. So we make sure we
understand what we are looking for here.
Unidentified Member of the Audience: Mr. Examiner. Can I ask one procedural question? You made reference earlier to
the possibility that, given the amount of stuff here, you will go beyond the 14 days.
Mr. McConnell: I may and technically I guess I need to get something in writing from the applicant saying that is all right.
Mr. Hill: Mr. Examiner. I think we can say it on the record. The time that you need to make the decision is acceptable.
Mr. McConnell: Okay. Thank you. I don't know. Certainly, I don't want to delay anything. I am not going to try and
delay anything, believe me. But I will get it out as soon as I can.
Mr. Hill: There is a lot of evidence for you to digest, so we want you to have the opportunity.
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Mr. McConnell: Unfortunately, this is not the only case I am working on. Thank you very much.
I TESTIFY THAT THESE VERBATIM TRANSCRIPTS ARE COMPLETE AND ACCURATE TO THE BEST OF MY
ABILITY TO TRANSCRIBE THE PROCEEDINGS.
Karin Noyes, Transcriber
Date
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