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2006-07-06 Hearing Examiner MinutesahC.1Scly CITY OF EDMONDS 121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221 HEARING EXAMINER FINDINGS, CONCLUSIONS, AND RECONSIDERATION DECISION OF THE HEARING EXAMINER APPELLANTS: Eric Thuesen: AP-06-48 & Scott & Maria Mallory et al: AP-06-45 CASE NO.: AP-06-45 & AP-06-48 LOCATION: 509 9 b Ave. N FINDINGS OF FACT AND CONCLUSIONS: GARY HAAKENSON MAYOR 1. On July 17, 2006, two parties of record (Rick Gifford on behalf of Eric Thuesen and Charles LaNasa), submitted timely requests for reconsideration of the Examiner's Decision on the subject appeals (See Reconsideration Exhibits A - B). 2. The requests for reconsideration were forwarded to the Hearing Examiner on July17, 2006 (Reconsideration Exhibit A) and on July 20, 2006 (Reconsideration Exhibit B). 3. The City of Edmonds Planning Staff requested clarification of the Examiner's decision on July 20, 2006 (Reconsideration Exhibit Q. 4. ECDC 20.100.020.G gives the Hearing Examiner five working days in which to issue a written response to a request for reconsideration. This report will address all three of the requests and will be issued within five working days of receipt of the last two requests. 5. The reconsideration requests identified several areas where Mr. Thuesen and Mr. LaNasa disagreed with findings, conclusions and conditions found in the July 6, 2006 Hearing Examiner report on the subject case. Following are the issues identified: Thuesen Issues: (See Reconsideration Exhibit A). a. Adequacy of CAS and Wetland Survey: 1) Issue Not Properly Raised on Appeal: 2) Lack of Factual Foundation: 3) Additional Study is Unauthorized and Cannot Lawfully Be Ordered: • Incorporated August 11, 1890 Sister City - Hekinan, Japan Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 06-48 Page 2 b. Plat Revision for Three Lots; Vested Status: c. Finding Re Completeness of Subdivision Application: Hearin¢ Examiner Response: a. Adequacy of CAS and Wetland Survey: As a matter of background for this discussion, the Examiner would like to briefly review the wetland issue. Mr. Thuesen challenged the staffs decision to require buffers around the wetland on the basis that the wetland survey determined the wetland was not large enough to be classified as a regulated wetland under the old Critical Areas Ordinance (CAO). He would like to be able to fill in the wetland to allow for construction. The Examiner has concurred with Mr. Thuesen that if the wetland is indeed an unregulated wetland then it should be treated as such and the staff conditions relative to the wetland should not be required. However, if the wetland is determined to be a regulated wetland, then all of the CAO requirements must be complied with. This is an extremely important point, and one that must then be based on a careful analysis of the actual size of the wetland. The Examiner believes neighbors did properly raise the issue of the size of the wetland when they questioned the wetland delineation accuracy in their letter of appeal. They went on to submit photos and other information at the hearing that did not establish the size of the wetland; but did raise significant questions relative to its size. The burden of proof is on the Applicant (Mr. Thuesen) to show that he has met the requirements of the Edmonds code. In this case, it is acknowledged staff accepted the wetland study submitted by the Applicant. However, after review of the entire file, the Examiner was not and is not convinced the existing wetland study meets that burden of proof. The Examiner carefully reviewed all of the information presented at the hearing before arriving at his decision to require another review of the wetland in question. Also, while not listed in the Findings section of the Examiner's report, it should be noted that on page 2 under the Public Hearing section of the report, the Examiner visited the site prior to the public hearing. Mr. Thuesen would like the Examiner to accept the wetland study on face value as an exact scientific study that is error free. This Examiner has conducted several hearings in multiple jurisdictions where wetland consultants have disagreed over the delineation of boundaries of wetlands and has conducted hearings where land surveyors have disagreed over survey information. Frankly, this Examiner has found the delineation of wetlands to be as much art as science. Given the small amount of difference between the currently determined area of the wetland (2,291 square feet) versus the area of a regulated wetland under the old CAO (2,500 square feet), and given the legitimate questions raised during the hearing process, the accuracy of the final wetland delineation and survey boundaries (effectively how the property can be developed) is of paramount importance. The Examiner stands by his reasoning for the need for a new wetland study that was discussed in his original decision. The Examiner has concluded that the best way Mr. Thuesen can meet his burden of proof to show that the wetland is truly an unregulated wetland is to restudy the wetland as described in that report and as conditioned below. Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 06-48 Page 3 b. Plat Revision for Three Lots: Vested Status: Mr. Thuesen's Attorney (Mr. Gifford) makes essentially the same arguments (albeit with more emphasis) as he did at the hearing. He essentially makes the argument that since the Edmonds code doesn't specifically address the issue of changes or modifications of a vested application, then the property owner should be able to use his property as he wishes. In this case he claims he is vested for a three lot short subdivision and, again, as discussed in the Examiner's original report the Examiner disagrees. This is a relatively small project, but the applicant is still asking for a 50% increase over what was vested. Whether the project is a small projector a large project a 50% increase is still a 50% increase, and this Examiner does not believe any definition or code provision would consider that to be a minor modification. Therefore, the Examiner continues to concur with City staff that the project is and should be vested for two lots. c. Completeness of Subdivision Application: Information was submitted by the Applicant that complied with the provisions of ECDC 20.75.060 F., H, and S on September 14, 2005, but as noted in the Examiner's decision, said information was not submitted for a three lot short subdivision with the original application on January 18, 2005. That information should have been submitted with the original submittal on January 18, 2005 if the Applicant wanted to be vested for three lots. Again, the Examiner concurs with staff that vesting only applies to the original application and not to the substantial modifications submitted by the applicant many months later. LaNasa Issues: (See reconsideration Exhibit B). a. The Applicant lacks a current contractor license. b. Clarification of minor changes. c. Requirements to prevent flooding. Hearing Examiner Response: a. Contractor License: As noted in the Examiner's report, the report only addressed the issues raised in the letters of appeal. The issue regarding the Applicant's contractor status was raised during the hearing, but was not an issue raised in the letter of appeal. Therefore, the Examiner did not and will not address it as part of this review process. However, it should be noted that if the project proceeds (whether the current Applicant or someone else completes the project), actual construction of the project will need to comply with all applicable rules and regulations relative to that issue. b. Minor Changes: Only minor changes to reflect topographic or other natural constraints were intended. Complete relocation of driveways, etc. was not approved. Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 06-48 Page 4 c. Requirements to prevent flooding: The issues relative to drainage are intertwined with the wetland and following the new wetland study, engineering staff may gain better information upon which to base final engineering requirements relative to drainage. However, at this stage in the subdivision approval process, condition B.1.(4) is believed to be adequate. 6. Staff Request for Clarification: (See Reconsideration Exhibit Q. a. Did the Examiner approve the short subdivision with conditions, and if so what exactly are the conditions? Hearing Examiner Res op nse; a. Yes, the Examiner did approve the short subdivision for two lots, subject to the following: 1) The case should be returned to City staff for the specific purpose of confirming the size. of the wetland on the site. An additional wetland study should be conducted at the applicant's expense to confirm whether or not the wetland is a regulated or unregulated wetland as defined by the old CAO ordinance. When the wetland is surveyed, the wetland biologist who delineated the wetland should be present to verify that all of the wetland flags are accurately located in the survey. 2) If the wetland is less than 2,500 square feet in area then conditions B.l.a)(1), (2) & (5), B. Lc) and B.l.d)(3) found in the administrative decision on this case, dated April 12, 2006 should be deleted. However, if the wetland is greater than 2,500 square feet in area, then the conditions noted above should be revised as necessary to comply with all of the requirements of the old CAO ordinance. 3) City staff should administratively process the new wetland review. The staff decision on this issue will be final unless appealed to the Examiner. b. b. All of the other conditions of approval required in the staff decision on this file, dated April 12, 2006 should remain in effect. 7. The Applicant's Attorney also submitted a memo, in response to the City staff memo (see Reconsideration Exhibit D). The Examiner believes the Attorney's response memo is adequately addressed by the Hearing Examiner's response to the City staff memo. 8. After reviewing the request for reconsideration, the Hearing Examiner decision on the subject case, and after re -reviewing the original file on this application, the Examiner reconfirms his July 6, 2006 decision on the subject application, with modifications noted below. The discussions in the paragraphs above, however, hopefully will provide additional clarity to the Examiner's intent on this case. Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 06-48 Page 5 RECONSIDERATION DECISION: Based upon the foregoing findings and conclusions, the July 6, 2006 Hearing Examiner decision on the subject case is modified as follows: The two lot short subdivision is approved subject to the following conditions: The case shall be returned to City staff for the specific purpose of confirming the size of the wetland on the site. An additional wetland study shall be conducted at the applicant's expense to confirm whether or not the wetland is a regulated or unregulated wetland as defined by the old CAO ordinance. When the wetland is,surveyed, the wetland biologist who delineated the wetland shall be present to verify that all of the wetland flags are accurately located in the survey. a. If the wetland is less than 2,500 square feet in area then conditions B.l.a)(1), (2) & (5), B.l.c) and B.l.d)(3) found in the administrative decision on this case, dated April 12, 2006 shall be deleted. However, if the wetland is greater than 2,500 square feet in area, then the conditions noted above shall be revised as necessary to comply with all of the requirements of the old CAO ordinance. b. City staff shall administratively process the new wetland review. The staff decision on this issue will be final unless appealed to the Examiner. 2. All of the other conditions of approval required in the staff decision on this file, dated April 12, 2006 remain in effect. Entered this 26th day of July 2006, pursuant to the authority granted the Hearings Examiner under Chapter 20.100 of the Community Development Code of the City of Edmonds. Ron McConnell, FA CP Hearing Examiner APPEALS: The following is a summary of the deadlines and procedures for filing appeals. Any person wishing to file an appeal should contact the Planning Department for further procedural information. Section 20.105.020.A & B describe how appeals of a Hearing Examiner decision or recommendation shall be made. The appeal shall be made in writing, and shall include the decision being appealed along with the name of the project and the date of the decision, the name of the individual or group appealing the decision, their interest in the matter, and reasons why the Hearing Examiner Reconsideration Decision Case Nos.: AP 06-45 & AP 06-48 Page 6 appellant believes the decision to be wrong. The appeal must be filed with the Community Development Director within ten (10) working days after the date of the decision being appealed. LAPSE OF APPROVAL: Section 20.05.020.0 states 'Unless the owner obtains a building permit, or if no building is required, substantially commences the use allowed within one year from the date of approval, the variance shall expire and be null and void, unless the owner files an application for an extension of the time before the expiration date.' NOTICE TO COUNTY ASSESSOR: The property owner may as a result of the decision rendered by the Hearing Examiner request a change in the valuation of the property by the Snohomish County Assessors Office. RECONSIDERATION EXHIBITS: The following reconsideration exhibits were offered and entered into the record. A. Reconsideration Request from Richard E. Gifford on behalf of Eric Thuesen, dated 7/14/06 (received 7/17/06) B. Reconsideration Request from Charles A. LaNasa, dated7/12/06 (received 7/17/06) C. Request for Clarification from Steve Bullock, Senior Planner, dated 7/20/06 D. Memorandum from Rick Gifford, dated 8/24/06 PARTIES OF RECORD: Eric Thuesen 18333 85a Pl. W. Edmonds, WA 98026 Gary & Joan Bloom PO Box 219 Edmonds, WA 98020 Vivian Olsen 509 9a` Ave. N. Edmonds, WA 98020 Richard E. Gifford 600 Main Street, Suite E Edmonds, WA 98020 Scott & Maria Mallory 520 8 h Ave. N. Edmonds, WA 98020 Ken & Vera Reidy 771 Daley St Edmonds, WA 98020 Bill & Kathy Baird 850 Daley St Edmonds, WA 98020 Planning Division City Attorney Engineering Division Charles & Carolyn LaNasa 524 8a` Ave. N. Edmonds, WA 98020 Jim and Barbra McQueen 528 8"' Ave. N. Edmonds, WA 98020 Laurie Niven 847 Daley St. Edmonds, WA "98020