2023-07-27 Hearing Examiner Minutes� II
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CITY OF EDMONDS
121 5t" Avenue North, Edmonds WA 98020
Phone: 425.771.0220 • Fax: 425.771.0221 • Web: www.edmondswa.gov
DEVELOPMENT SERVICES DEPARTMENT • PLANNING DIVISION
BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
Phil Olbrechts, Hearing Examiner
RE: Pine Park
FINDINGS OF FACT, CONCLUSIONS
Preliminary Plat OF LAW AND FINAL DECISION
PLN20210072
INTRODUCTION
BK Investment Group LLC proposes to subdivide a 22,387 square foot site located at
614 and 615 51h Ave S into fourteen single family lots for three buildings composed
of townhomes. The townhomes fronting 5th Ave S. are composed of live/work units.
The Architectural Design Board (ADB) approved the design and use of the buildings
in 2021. The application is approved subject to conditions.
The proposal drew considerable public opposition. Neighbors appeared to
be convinced that the proposal doesn't conform to the City's development standards.
As shall be discussed in this Introduction, there is no basis for such a conclusion.
The Edmonds Community Development Code unequivocally permits live/work
units in the BD zone. The project also meets all other applicable development
standards. The project must be approved. If the City denied the project under such
circumstances, a reviewing court would compel approval and likely award
damages (at taxpayer expense) to the Applicant for delays and other costs incurred
due to the illegal denial of the application.
One significant point that the neighbors correctly asserted was that the preliminary
plat application is not a "done deal" because the project was approved by
the ADB. The project is a done deal so far as it's operated as an apartment complex
for live/work units. However, to sell the residences on individual lots the
Applicant must meet the City's subdivision criteria. The subdivision code
focuses upon ensuring that proposed subdivisions are served by appropriate
infrastructure, such as roads, water, sewer and open space. That is the required
focus of this review process.
Preliminary Plat P. 1 Findings, Conclusions and Decision
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Subdivision review is complicated by the fact that development issues addressed
within the authority of the ADB likely cannot be revisited. The ADB was tasked with
assessing whether the project meets City design standards in addition to "the bulk and
use requirements of the zoning ordinance." See ECDC 20.12.020B3. Since the ADB
had the authority to approve "use," its approval of the proposed live/work use is
likely a "done deal" and cannot be addressed by the Examiner. This Introduction
section addresses issues such as use to address the concerns raised by the neighbors
but should not otherwise be construed as findings and/or conclusions necessary for
subdivision approval. Only the designated findings and conclusions referenced in the
Findings of Fact and Conclusions of Law below should be construed as the final and
binding portions of this Decision (in addition to the "Decision" section
with associated conditions).
A primary cause for concern for the neighbors was the belief that the City Council
was opposed to townhome development in the BD district because it had rejected unit
lot subdivisions for that district. Townhome development is possible in the BD
district because the BD district doesn't impose setbacks in most areas. Unit lot
subdivisions are not necessary to enable that type of development in the BD
district. Most other City zoning districts do impose setbacks. For those
districts, unit lot subdivisions are necessary for townhomes since they eliminate
setback requirements for the interior lots.
Use restrictions in the BD district significantly limit the type of townhomes
authorized in the BD zone, but do not preclude the live/work units proposed by
the Applicant. ECDC 16.43.030B7 provides that within BD2 and BD3
zones, development on the ground floor is limited to commercial uses within
designated street frontage, but any other permitted use may be located on the
ground floor outside of the designated street front. ECDC 16.43.020 authorizes
residential uses in the BD3 zone as limited by ECDC 16.43.030. Consequently, so
long as the "work" portions of the live/work units are located along street frontage,
they are authorized by ECDC 16.43.030B7. If any occupant of a live/work
unit fails to maintain commercial use on the street frontage, they will likely be
violating the Zoning Code and be subject to the civil penalties of the City's code
enforcement process. The City's regulations arguably do not prevent owners of the
live/work units from keeping blinds closed all day as identified by Mr. Lorah. That is
an issue that may need to be addressed in the City's live/work standards if it
becomes an on -going concern. Currently existing regulations arguably do not
prevent that practice and it would be difficult to set parameters as to when
businesses such as law and therapy offices would be allowed to shut their blinds.
Hearing testimony indicates that in City Council discussions on unit lot subdivisions
there may have been some Council comments made suggesting a belief that a
rejection of unit lot subdivisions in the BD zone was a rejection of townhomes in that
district. Legally, even if the current Council doesn't want townhomes in the BD
Preliminary Plat p. 2 Findings, Conclusions and Decision
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
district, the City is bound to authorize that which is authorized by the zoning code.
As discussed above, the City's zoning code authorizes live/work units as townhome
units in the BD zone. Until the Council removes that allowance from the zoning
code, that use must be permitted. In any event, it's questionable whether the Council
would be opposed to work/life townhomes in the BD district. The small scale of
commercial use involved in live/work units appears to be precisely the "small scale"
retail use encouraged for the BD district by ECDC 16.43.020D. Ultimately, the
City's ability to enforce its live/work use standards will likely be determinative as to
whether those units fulfill the Council's vision of a vibrant, small-scale commercial
core in the BD district.
One neighbor read from the purpose clause of the subdivision code, asserting the
project failed to conform to those requirements. Those purposes, as referenced at the
hearing, include preventing overcrowding, lessening congestion and minimizing
impervious surfaces. In construing broadly worded requirements such as the purpose
clause', the City is limited in its ability to revisit some of the basic policy choices
made in its zoning code. RCW 36.70B.030(2) prohibits a City from revisiting its
adopted use, density and infrastructure requirements.
Regarding the purpose for preventing overcrowding, the City Council addressed
overcrowding by adopting density standards throughout the City. Under RCW
36.70B.030(2), that basic policy choice cannot be revisited. For the BD zone, the
Council determined that no maximum density limit is necessary. See ECDC
16.43.030. For congestion, the City Council has adopted level of service standards
for its streets, as identified at Page 248 of the City's comprehensive plan. Level of
service standards set acceptable levels of congestion as explained at Page 246 of the
Comprehensive Plan. The Comprehensive Plan, adopted in 2020, identified that at
the time all City streets were operating within adopted level of service standards. The
' A purpose clause usually does not by itself set development standards, but rather provides guidance
on how to interpret ambiguous code standards subject to the clause. As noted by one court in
characterizing the function of a purpose clause in a zoning code:
"[s]ection 133 7. 01 of [the zoning] chapter declares the chapter's purpose, and as such is
no more than a preamble, setting forth the legislative intent and purpose for the enactments
that thereafter follow[]" and, hence, "[w]hile the purpose clause, so-called, of a statute or
ordinance may be, and frequently is, used in determining legislative intent for the purposes
of judicial interpretation and construction, it is not the law, and accordingly, such clause,
as in the instant case, may not be read or construed as a limitation or restriction on the
land use within a district or area created by zoning classification"
Ederer v. Board of Zoning Appeals, 248 N.E.2d 234, 237 (Ohio Ct. Comm. Pl. 1969); Accord Indian
Trail Prop. Assn v. Spokane, 76 Wn. App. 430 (Wash. Ct. App. 1994)(upholding hearing examiner
zoning decision that purpose clause requiring "small" retail and retail that didn't detract from
residential use was too vague to be enforceable had to be construed as implemented through specific
use requirements). However, Edmonds has elevated its purpose clause to the status of a permit review
criterion by adoption of ECDC 20.75.080(A), which requires conformance to the purpose clause.
Preliminary Plat p. 3 Findings, Conclusions and Decision
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Plan identifies what road improvements are necessary to maintain level of service
through 2035 based upon estimated future development. In addition to addressing
adopted level of service standards, congestion is also addressed at a more project
specific level by review from the City's Public Works department for any reasonably
necessary street improvements. Public Works did not identify the need for any
project specific off -site mitigation for this project.
As to impervious surface, the purpose clause specifically requires "ft]o provide for
proper ingress and egress, while minimizing impervious surfaces." The duty to
minimize impervious surface applies when designating access points. The proposal
provides for its sole vehicular access in an existing alley, which serves to minimize
impervious surfaces.
Finally, one neighbor asserted that the proposal would violate City policies by
creating additional curb cuts. The proposal actually reduces curb cuts by eliminating
the curb cut that provides access to the currently existing parking lot. The proposal
will be accessed by an existing alley with an existing curb cut.
ORAL TESTIMONY
A computer -generated transcript of the hearing has been prepared to provide an
overview of the hearing testimony. The transcript is provided for informational
purposes only as Appendix A.
EXHIBITS
The July 20, 2023 staff report and 17 attachments identified at page 1 of the staff
report were admitted during the July 27, 2023 hearing. Attachments will be referred
to as exhibits in this Decision.
FINDINGS OF FACT
Procedural:
1. Applicant/Owner. BK Investment Group LLC, c/o Sue Winters,
Chadwick & Winters Land Surveying, 1422 NW 85th St., Seattle, WA 98117
2. Hearing. A hybrid hearing was held at the City of Edmonds Brackett's
Room in Edmonds City Hall on the application on July 27, 2023 at 3:00 pm via
Zoom, Meeting ID No. 253 215 8782.
Substantive:
3. Site/Proposal Description. BK Investment Group LLC is proposing to
subdivide a 22,387 square foot site located at 614 and 615 5th Ave S into fourteen
Preliminary Plat p. 4 Findings, Conclusions and Decision
2
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
single family lots for townhomes including work/live units approved by the
Architectural Design Board in 2021. The proposal is comprised of three buildings.
Two buildings divided by a pedestrian access way will front 5th Ave and be composed
of live/work units. The ground floor of the live/work units will be 12 feet in height
floor -to -floor and entries are at or near sidewalk grade. A third building located on
the west end of the project site will be composed of muti-family housing. Two
existing commercial buildings and related improvements on the project site would be
removed.
4. Characteristics of the Area. The project site is near the southern end of
the downtown business area on 5th Avenue in the Edmonds Bowl. Apart from
several other commercially zoned parcels immediately along 5th Avenue South, the
site is primarily surrounded by a mix of single- and multiple -residential zoned and
developed properties, as shown in Exhibit 5. City Park is about one -tenth of a mile to
the west, the fountain at the intersection of 5th Avenue and Main Street is about one-
third of a mile to the north, and the ferry and train station are about one-half mile to
the northwest.
5. Adverse Impacts. There are no significant adverse impacts created by the
proposal. The City issued a Determination of Nonsignificance (DNS) for the
proposed project on February 9, 2021. Impacts are more specifically addressed as
follows:
A. Critical Areas. The staff report notes that the proposal has no critical areas.
However, the environmental checklist identifies that the entire project site is
located within a seismic hazard area and a steeply sloped area near the middle
of the project is a landslide hazard area and an erosion hazard area.
Ultimately, the project site was granted a waiver from further critical area
study by CRA2-017-0073. To address the critical area hazards identified in
the geotechnical report, the Applicant appears to have addressed at least some
of the recommendations of the report, most notably placing the eastern units
on pin piles and placing a retaining wall along the western side of the project.
See Ex. 2, Subdivision Narrative, p.l. Since critical areas review cannot be
revisited due to the CRA2-017-0073 waiver, the public safety and property
damage impacts of building within the geologically unstable areas of the site
area addressed separately as a hazardous condition below.
B. Hazardous Conditions. The staff report concludes that no hazards are
associated with the proposal. However, the geologically unstable portions of
the project site identified in Finding of Fact 5A qualify as hazardous
conditions. To mitigate against the public safety impacts of the proposal and
to protect adjoining properties from damage, the proposal is conditioned upon
Preliminary Plat
p. 5 Findings, Conclusions and Decision
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
compliance with the recommendations of the geotechnical report prepared for
the project, as implemented by building and engineering staff2.
C. Tree Retention. The proposal provides for adequate protection of trees
because it complies with the City's tree retention standards.
ECDC 23.10.060.C.1 requires that new subdivisions retain at least 30% of all
significant trees on the developable site. Per ECDC 20.10.060.F.4, if 30%
cannot be retained, the applicant is required to plant enough trees to make up
the number that would have been retained at 30%, plus any additional
replacements required per ECDC 23.10.080. There are four significant trees
on site so two would have to be retained to meet the 30% requirement, as
detailed in the arborist report Exhibit 12. No trees can be retained based on
the site and building layout approved in PLN2020-0053, so those two trees
must be replaced, plus an additional 11 replacements per ECDC 23.10.080.
Thirteen replacement trees as required are shown on the landscaping plan
(Attachment 13).
D. Grading. The project site was previously graded into two levels separated by a
small slope. The proposed improvements will be located on the more level
areas so grading will be limited.
E. Views. Views will not be significantly affected. The grade slopes down to
the west, thus allowing the new buildings to be constructed without
significantly affecting the views of westerly neighboring properties. Properties
to the east are located upslope from the subject, mitigating its effect on their
views. Finally, the maximum height for new buildings in the BD3 zone is 30
feet from average original grade, which serves to minimize any negative
impact to existing views in the vicinity.
F. Densi . The proposal does not qualify as overcrowding at the project
location. The City Council has determined that for the applicable BD3 zone,
no maximum density limit is necessary.
6. Adequacy of Infrastructure and Public Services. As conditioned by this decision,
adequate infrastructure will serve development as follows:
A. Drainage: The City's drainage standards impose detailed requirements that
mandate that the proposal maintain pre -development off -site stormwater flow
z Building permit review likely already authorizes building permit staff to require implementation of
the recommendation of the Applicant's geoengineering report. However, it's not entirely clear from
the text of the building codes whether all of the recommendations can be required. Since compliance
with geotechnical recommendations is a fairly standard preliminary plat condition of approval, that
type of condition has been added to this Decision to ensure that all potential geotechnical public safety
and property damage impacts are fully mitigated.
Preliminary Plat
p. 6 Findings, Conclusions and Decision
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
volumes and velocities. Consequently, no significant stormwater impacts to
adjoining properties are anticipated. Stormwater runoff from all new hard surfaces
must be mitigated as required by Chapter 18.30 ECDC and the Engineering
Requirements in Ex. 17. The Applicant has prepared a preliminary stormwater
design, Exhibit 15, and staff has found the design as integrated into the preliminary
plat design to adequately meet stormwater standards for purposes of preliminary plat
review.
B. Transportation: The proposal provides for adequate and appropriate
transportation facilities.
Public works has reviewed the traffic impacts of the project site and has determined
that no project specific off -site mitigation is necessary other than frontage
improvements as required by Exhibit 17 (adopted as a condition of approval). Traffic
impact fees, designed to mitigate against proportionate project impacts to the City's
vehicular transportation network, will be due for each unit during building permit
review. Transportation impact fee rates are currently set by ECDC 3.36.125. The
applicable amount is that in place at the time when payment becomes due.
Neighbors expressed concern over congestion impacts to the relatively quiet Fourth
Avenue and left turn movements from 5th avenue to the project site. As outlined in
the Introduction section above, the City has adopted congestion standards and a plan
to address that. The City's Public Works and Engineering Departments have
reviewed the project and found no need for off -site impacts to address off -site
congestion and safety impacts as measured against the City's street design and public
works standards. There is nothing in the record to suggest that any additional off -site
improvements could be required under City standards to address congestion impacts
on Fourth and Fifth Avenue.
For pedestrian facilities, the City of Edmonds applies a Walkway Prioritization
Process provided in the Transportation Element of the Comprehensive Plan in
assessing where sidewalks should be required or upgraded. Criteria have been
developed to evaluate and prioritize walkway improvement projects. These criteria
(which include distance from schools) are used to prioritize improvements to
walkway sections that are identified based on input from public meetings, Walkway
Committee meetings, and deficiencies determined from a review of the existing city
walkway inventory. The criteria are weighted according to their importance. A
system of points evaluates each proposed project against each criterion. The result is a
weighted average score that helps to compare and prioritize proposed projects. The
City's policy is to consider these criteria in conjunction with City code and the
Sidewalk Comprehensive Plan Map in determining sidewalk requirements for
subdivisions.
The project site is served by Community Transit via 5th Avenue S. The nearest stop is
located at the intersection of 5th Avenue S and Howell Way.
Preliminary Plat p. 7 Findings, Conclusions and Decision
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Probably the most difficult issue of the proposal is the adequacy of the proposed
refuse collection area. Neighbors expressed concern that the proposed location for
garbage and recyclable containers would interfere with alley circulation. Unlike
some other jurisdictions, Edmonds doesn't have any standards that address refuse and
recycle areas for residential development. See, e.g. Renton Municipal Code Section
4-4-090. As outlined in Conclusion of Law No. 3, it is highly questionable whether
the issue of the refuse/recycle area can be addressed during subdivision review
because it was addressed by the ADB. Ultimately, it does appear that the ADB
resolution of the issue is sufficient to provide for "appropriate" roads and sanitary
waste as contemplated in the City's subdivision standards as discussed below.
Condition No. 6 of the ADB decision approving the project requires that "[t]he
applicant must work with sound disposal to determine a process and configuration
for recycling and trash." At hearing staff testified that trash would be picked up in
the alley off of the west building. Neighbors asserted that this didn't leave sufficient
room for vehicular and pedestrian circulation. The site plan for the proposal, Exhibit
14, shows the alley to be paved 20 feet wide. City street standards only require paved
access to be 16 feet wide with no required sidewalks.3 Consequently, the proposed
alley provides for four feet beyond required paved width. This additional four feet is
sufficient to accommodate garbage cans, even up to three cans per residence. The
aesthetics of such a situation are not ideal, but the subdivision standards are not
specific enough to serve as a basis for additional enforceable conditions based upon
aesthetics alone.4
Another neighbor asserted that the proposal would violate City policies by creating
additional curb cuts. Comprehensive Plan Downtown/Waterfront Policy D1;
Downtown Convenience Commercial Policy Al; and Urban Design Goal B:
Downtown/Waterfront Activity Center Policy B 1 discourages curb cuts that interfere
with pedestrian and bicycle activity and break up the streetscape. The proposal
actually reduces curb cuts by eliminating the curb cut that provides access to the
3 ECDC 18.90.030 provides that it is City policy to require sidewalks for streets over 300 feet in
length. The proposed alley length is less than 300 feet. ECC 18.80.010 requires a minimum of 16-foot
paving for rights of way and easements.
4 Under principles of constitutional due process, broad standards such as providing for "proper"
ingress and egress pursuant to ECDC 20.75.020D can essentially only be enforced in circumstances
where there is no reasonable disagreement as to their applicability. The seminal case on this issue is
Anderson v. Issaquah, 70 Wn. App. 64, 75 (1993). The Anderson decision involved a city design
standards ordinance that required project design to be "harmonious" and "compatible" with
surrounding development and that the design be "interesting." The Anderson court ruled that, as
applied to the permit applicant of that case, those terms "do not give effective or meaningful guidance"
to local decision makers and as such the standards were unconstitutionally vague. As referenced by the
Anderson court, "a statute which either forbids or requires the doing of an act in terms so vague that
men [and women] of common intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law." 70 Wn. App. at 76.
Preliminary Plat P. 8 Findings, Conclusions and Decision
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
currently existing parking lot. The proposal will be accessed by an existing alley,
which has an existing curb cut.
C. Parks and Open Space: According to ECDC 20.75.090, before or concurrent with
the approval of the final plat of any subdivision, the subdivider shall dedicate land,
pay a fee in -lieu of dedication, or do a combination of both, for park and recreational
purposes. With the adoption of Ordinance 3934 in 2013, park impacts are now
addressed through the assessment of park impact fees in accordance with Edmonds
City Code (ECC) Chapter 3.36. No park dedication is required with the subdivision.
Park impact fees will be assessed with issuance of the future building permits on the
new lots consistent with ECC 3.36.
At hearing it was asserted that ECDC 16.43.030.E requires 5% open space. That
provision only requires open space for lots over 12,000 square feet in area. All
proposed lots are less than 12,000 square feet. In the absence of any specifics City
standards requiring open space or documented justification for such a need, no open
space can be required of the Applicant. See Isla Verde Intl Holdings, Inc. v. City of
Camas, 146 Wash.2d 740, 755-56 (2002).
D. Water and Sewer: The City of Edmonds is the water and sewer supplier
for the project site and water and sewer availability certificates have been issued in
permits ENP2021-0038 & -0039.
E. Schools and Walking Conditions to Schools: The proposal will be served by
adequate and appropriate school facilities and safe walking conditions to and from
school. The 2020-2025 Capital Facilities Plan adopted by the Edmonds School
District shows adequate funding for capital school facilities without the need for
school impact fees or any additional mitigation from the proposal. As identified in
Finding of Fact 513, safe walking conditions, including walking conditions to schools,
are addressed by the City's Walkway Prioritization Process.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. ECDC 20.01.003 provides the Hearing
Examiner with the authority to hold a hearing and issue a final decision on
preliminary plat applications, classifying them as Type III -A applications.
Substantive:
2. Zoning Designation. The subject property is zoned BD3.
5 RCW 58.17.110 requires that "appropriate" provision be made for open space. As demonstrated in
the Camas case, this standard is not specific enough by itself to justify an open space requirement
absent evidence showing that such space is necessary to mitigate project impacts.
Preliminary Plat P. 9 Findings, Conclusions and Decision
2
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3. ADB Authorized Conclusions Binding. The findings of the ADB Board in
their Decision approving the proposal are likely binding on this subdivision review
process and cannot be revisited.
Final local land use decisions that have not been timely appealed cannot be
collaterally attacked in the appeal of subsequent land use decisions. See, e.g., Habitat
Watch v. Skagit County, 155 Wn.2d 397, 410-11 (2005). In Habitat Watch, Skagit
County approved a special use permit for a golf course. A group of project
opponents, Habitat Watch, challenged the issuance of a clearing and grading permit
for the golf course, arguing that the special use permit should never have been
approved. The court ruled that Habitat Watch could not "collaterally attack" the
special use permit via its appeal of the clearing and grading permit. Id. at 411. Noting
that the appeals period for the special use permit had long expired, the court reasoned
that "even illegal decisions mut be challenged in a timely, appropriate manner." Id.
at 4076.
Many of the concerns raised by project opponents dealt with issues already addressed
and resolved by the ADB. Revisiting issues resolved within the authority of the
ADB Board would likely qualify as a "collateral attach' on the ADB approval. The
ADB was tasked with assessing whether the project meets design standards in
addition to "the bulk and use requirements of the zoning ordinance." See ECDC
20.12.020B3. Since the ADB had the authority to approve "use," its approval of the
proposed live/work use is likely a "done deal" and cannot be addressed by the
Examiner. Similarly, Any other issue regarding use, design or bulk requirements
(e.g., setbacks and building height) likely cannot be revisited in this subdivision
review.
The one questionable issue regarding jurisdictional overlap is the pick-up location for
trash and recyclables. Condition No. 6 of the ADB decision requires the Applicant to
work with Sound Disposal to determine a "process and configuration for recycling
and trash." From p. 9 of the ADB decision, this condition appears to be premised
upon the design criterion of improving the pedestrian environment of 5th Avenue. As
testified by staff, the condition has resulted in plans to place trash and recyclable
receptacles along the alley. The ambiguity in this situation is that the ADB did not
explicitly evaluate the suitability of the alley for garbage/recyclable receptacles.
From the standpoint of infrastructure adequacy and public safety, the ADB might not
have the authority to address that issue since it arguably falls more squarely into
6 The Habitat Watch case is part of a long line of cases starting with Chelan County v. Nykreim, 105
Wn. App. 339 (Wash. Ct. App. 2001) that holds that once an appeals period has expired, a permit
decision cannot be challenged or revisited. However, on a similar issue the courts have ruled that even
though an impact has been determined non -significant for purposes of the State Environmental Policy
Act ("SEPA"), that same impact can still be used to deny or condition a project under conditional use
permit review. See Quality Products, Inc. v. Thurston County, 139 Wn. App. 125 (2007). Habitat
Watch would probably be found more applicable than Quality Products to the circumstances of this
case since SEPA review is not by itself considered a development permit approval.
Preliminary Plat P. 10 Findings, Conclusions and Decision
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
either public works building permit review and/or the "appropriate provisions for ....
roads" standard (RCW 58.17.110) of subdivision review. In any event, the planned
encroachment of garbage/recyclable containers into the alley access of the project is
found to meet the RCW 58.17.110 standard for appropriate roads as well as the
ECDC 20.75.085(D) improvement standards quoted below for the reasons identified
in Finding of Fact No. 5B.
4. Review Criteria and Application. Chapter 20.75 ECDC governs the
review criteria for subdivisions. Relevant criteria are quoted below and applied
through corresponding conclusions of law.
ECDC 20.75.080(A): General findings. A proposed subdivision may be approved
only if all of the following general findings can be made for the proposal, as approved
or as conditionally approved.•
A. Subdivision Ordinance. The proposal is consistent with the purposes of this
chapter (as listed in ECDC 20.75.020) and meets all requirements of this chapter.
5. The proposed subdivision is consistent with ECDC 20.75.020 and all the
requirements of ECDC 20.75. The proposed subdivision will not create any
significant adverse impacts and will provide for appropriate infrastructure as
determined in Findings of Fact No. 5 and 6. For these reasons, as intended by ECDC
20.75.020, the proposal will not negatively impact public health, safety or general
welfare, will not negatively impact congestion on streets and highways, and will have
adequate access to water, utilities, sewerage, storm drainage and will provide proper
ingress and egress.
ECDC 20.75.080(B): Comprehensive Plan. The proposal is consistent with the
provisions of the Edmonds Comprehensive Plan, or other adopted City policy, and is
in the public interest.
6. The proposal is consistent with the comprehensive plan for the reasons identified
at Section IVD2 of the staff report. Most pertinent to the policies listed therein, the
proposal provides street -front commercial services along with additional residential
units and its commercial units are proposed as 12 feet floor -to -floor with live/work
unit entries close to street level grade.
ECDC 20.75.080(C): Zoning Ordinance. The proposal meets all requirements of the
zoning ordinance, or a modification has been approved as provided for in this
chapter.
7. The proposal is consistent with the City's zoning ordinance for the reasons
identified at pages Section IVD3 of the staff report. As determined in Conclusion of
Law No. 3 herein, the design, use and bulk standards of the zoning code have already
been approved by the ADB and likely cannot be revisited by this decision. Along
those lines, since the ADB has approved the use, the covenants and homeowner
Preliminary Plat P. 11 Findings, Conclusions and Decision
2
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
association requirements advocated by the public at the hearing to ensure that the use
is properly maintained as commercial on 5ch Avenue can't be imposed as part of this
review process.
ECDC 20.75.080(D): Floodplain Management. The proposal meets all requirements
of the Edmonds Community Development Code relating toFoodplain management.
8. The proposed project is not located within a designated flood plain management
area.
ECDC 20.75.085(A): Environmental.
1. Where environmental resources exist, such as trees, streams, ravines or wildlife
habitats, the proposal shall be designed to minimize significant adverse impacts to
the resources. Permanent restrictions may be imposed on the proposal to avoid
impact.
2. The proposal shall be designed to minimize grading by using shared driveways
and by relating street, house site and lot placement to the existing topography.
3. Where conditions exist which could be hazardous to the future residents of the
land to be divided, or to nearby residents or property, such as flood plains, steep
slopes or unstable soil or geologic conditions, a subdivision of the hazardous land
shall be denied unless the condition can be permanently corrected, consistent with
paragraphs A(1) and (2) of this section.
4. The proposal shall be designed to minimize off -site impacts on drainage, views
and so forth.
9. The criterion is satisfied. As determined in Finding of Fact No 5A, critical areas
review is barred by issuance of a prior critical areas waiver. However, the only
critical areas at the project site are geologically hazardous areas and those impacts are
mitigated by a condition requiring conformance to the recommendation of a
geotechnical report as outlined in Finding of Fact No. 5B. Impacts to trees are
adequately addressed via conformance to the City's tree retention standards as
outlined in Finding of Fact No. 5C. As determined in Finding of Fact No. 5D, the
proposal minimizes grading for construction of the civil improvements by focusing
development on the flat portions of the project site. As determined in Finding of Fact
No. E, the proposal will not adversely affect views and the site has no hazardous
conditions. As determined in Finding of Fact No. 6 the proposed drainage facilities
have been determined to be adequate.
ECDC 20.75.085(B): Lot and Street Layout.
1. Lots shall be designed to contain a usable building area. If the building area
would be difficult to develop, the lot shall be redesigned or eliminated, unless
special conditions can be imposed on the approval which will ensure that the
lot is developed properly.
2. Lots shall not front on highways, arterials or collector streets unless there is
no other feasible access. Special access provisions, such as shared driveways,
turnarounds or frontage streets may be required to minimize traffic hazards.
Preliminary Plat
p. 12 Findings, Conclusions and Decision
2
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3. Each lot shall meet the applicable dimensional requirements of the zoning
ordinance.
4. Pedestrian walks or bicycle paths shall be provided to serve schools, parks,
public facilities, shorelines and streams where street access is not adequate.
10. The criterion is met. As shown in Section IVD3 of the staff report, all proposed
lots meet the dimensional requirements of the BD3 zoning district. Each lot contains a
buildable area as is readily evident from the building elevations approved by the ADB.
The project site fronts 5th Avenue South but access to each of the proposed units is
from the existing alley running south of the site between 4th and 51h Avenues. There is
no feasible way to both not front on 5t1 Avenue while at the same time comply with
live/work design standards that require the units front 51h Avenue. The proposal is
required to install new frontage improvements in an area already fully developed with a
connecting sidewalk system, thus meeting the Applicant's proportionate responsibility
to assure appropriate and adequate pedestrian facilities.
ECDC 20.75.085(C): Dedications.
1. The City council may require dedication of land in the proposed subdivision
for public use.
2. Only the City council may approve a dedication of park land to satisfy the
requirements of ECDC 20.75.090. The council may request a review and written
recommendation from the planning advisory board.
3. Any approval of a subdivision shall be conditioned on appropriate dedication
of land for streets, including those on the official street map and the preliminary
plat.
11. No dedications have been recommended by staff and none are found necessary
as found at this stage of review. City staff may find some form of dedication
necessary to meet public works/engineering standards for final plat or other permit
review.
ECDC 20.75.085(D): Improvements.
1. Improvements which may be required, but are not limited to, streets, curbs,
pedestrian walks and bicycle paths, sidewalks, street landscaping, water lines,
sewage systems, drainage systems and underground utilities.
2. The person or body approving a subdivision shall determine the improvements
necessary to meet the purposes and requirements of this chapter, and the
requirements of:
a. ECDC Title 18 Public Works Requirements;
b. Chapter 19.25, Fire Code, as to fire hydrants, water supply and access.
This determination shall be based on the recommendations of the community
development director, the public works director, and the fire chief.
12. The project has undergone extensive review by the community
development director, the public works director (specifically engineering) and South
County Fire. A number of improvements have been recommended as a result of this
Preliminary Plat p. 13 Findings, Conclusions and Decision
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
review and they have been incorporated into the conditions of approval and have been
found to provide for adequate public infrastructure as determined in Finding of Fact
No. 6. Further, since RCW 58.17.110 mandates that preliminary plats may not be
approved absent a finding of appropriate infrastructure, the criterion above is broadly
construed to require the findings required by RCW 58.17.110 and those findings are
made as detailed in FOF No. 6.
ECDC 20.75.085(E): Flood Plain Management. All subdivision proposals shall
comply with the criteria set forth in the Edmonds Community Development Code for
flood plain management.
13. This project is not in a Flood Plain Management area.
Preliminary Plat
DECISION
p. 14 Findings, Conclusions and Decision
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
As conditioned below, the proposed preliminary plat conforms to all required criteria
for approval for the reasons detailed in the Conclusions of Law above. The
conditions necessary to assure compliance and required by this Decision are as
follows:
1. Prior to recording, the applicant must complete the following requirements:
a. Complete the Engineering Division conditions listed "Required as a
Condition of Subdivision" on Attachment 17 and obtain approval for
fill/grade permit BLD2022-0694.
b. Make the following revisions to the subdivision:
i. Ensure that all existing easements are indicated.
ii. Indicate the locations of all new easements and provide easement
descriptions and maintenance provisions for all new easements.
iii. Include the addresses for each of the lots on the final subdivision
(new addresses will be assigned following preliminary approval
and provided prior to submitting for final review).
iv. Add to the face of the subdivision: "Conditions of approval must
be met and can be found in the approval for the formal subdivision
located in File No. PLN2021-0072 in the City of Edmonds
Planning Division."
V. Include on the subdivision all required information, including
owner's certification, hold harmless agreement, and Planning and
Development and Public Works director's approval blocks.
vi. Make sure all documents to be recorded meet the Snohomish
County Auditor's requirements for recording.
C. Submit an updated copy of the title report (subdivision certificate) with the
documents proposed to be recorded. The title report must be prepared
within 30 days of submittal for final review.
d. Submit two copies of the documents to be recorded for the Planning
Division and Engineering Division's approval. Once approved, the
documents will be recorded by the City Clerk at the Snohomish County
Auditor's office.
2. After recording the subdivision and in conjunction with future building permit
applications, the applicant must complete the following:
a. Complete the Engineering Division conditions listed "Required as a Condition of
Building Permit" in Attachment 17.
3. Conform to the recommendations of the September 2021 Pangeo geotechnical
report to the extent required by City building permit and engineering staff.
Dated this 1 Oth day of August 2023.
P61;�, 0 62,0-�
City of Edmonds Hearing Examiner
Preliminary Plat
p. 15 Findings, Conclusions and Decision
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Appeal Right and Valuation Notices
This is a final land use decision issued by the City of Edmonds, which may be appealed ti
Snohomish County Superior Court within 21 days of issuance as governed by thl
Washington State Land Use Petition Act, Chapter 36.70C RCW.
Affected property owners may request a change in valuation for property tax purpose
notwithstanding any program of revaluation.
Preliminary Plat
p. 16 Findings, Conclusions and Decision