Appendix A - MattsonAppendix A
September 27, 2024 Hearing Transcript
Mattson Reasonable Use — PLN2023-0013
Note: This is a compute -generated transcript provided for informational purposes only. The reader should
not take this document as 100% accurate or take offense at errors created by the limitations of the
programming in transcribing speech. A recording of the hearing is available from the City should anyone
need an accurate rendition of the hearing testimony.
Examiner Olbrechts
It looks like Mr. Seawall is the lead staff on here, so he's going to be giving us a presentation on this one.
This is going to be the same format as last time. Staff first applicant, second public then gets to go, then
staff answers, questions does rebuttal and the applicant gets final word. Let's see here, and I'm going to
look up the exhibit list here, just like the other hearing too. My review is limited to the exhibits put in
the record and the testimony provided today. I don't have any other information on the project. I'm
going to share screen at this point. Let's see. There we go.
(00:25:19):
Alright, so for this application we have the staff report plus 12 documents, which includes the
application itself, the notices, zoning, maps, the critical areas report, which evaluates the impacts on the
stream and the wetlands of the project site, the public comments. There were quite a few in this one
and of course I read all of'em. Critical areas of determination which outlined what the buffers are
supposed to be and what encroachments are authorized criteria compliance narrative, which goes over
to the criteria both of this project, the site plan survey, and then a couple past examiner decisions
addressing critical area variances. So with that I just want to ask if anyone needs to see any of these
documents or has any objections to their entry in the record. If you're participating virtually click your
virtual hand. If you're out in the audience, just wave your hand or something and not seeing any taker.
So I'll go ahead and admit the staff report in exhibits one through 12. So at this point, let me swear in,
oops, hold on a second. My shoot. Oh no, sorry, my PDF just kind of went random here. There we go.
Okay Mr Sewell, let me swear in. Just raise your right hand. Do you swear affirm to tell the truth nothing
but the truth MS proceeding?
Speaker 5 (00:26:32):
1 do.
Examiner Olbrechts (00:26:32):
Okay, great. Go ahead.
Speaker 5 (00:26:35):
Alright, thank you Mr Examiner. Let me get this up.
(00:26:48):
Transcript by Rey_com Page 1 of 32
All right, so this is the reasonable economic use variance application for provisionally addressed 9 6 3
Main Street in context of building a single family residence. So to go over my order of operations here,
first I'll discuss the summary of the proposal, the comprehensive plans impacts on set proposal, how it
fits in the applicable code chapters. That's namely chapter 1620. Of course the same family residential
zone and then Title 23, which is the Great Boy Areas ordinance. We'll discuss the review criteria which
are established in Title three and go over a summary of public comments and then land on staff's
recommendation.
(00:27:45):
So as proposed, this parcel is about 6,600 square feet, currently zoned RSS six. That's our smallest single
family residential zone and it's about 10% larger than the minimum. So it's pretty textbook. However, it
is entirely encumbered by both Shell Creek and the associated wetland and their associated buffers. As
far as critical areas go, you can barely make out in the bottom left my screenshot from the application
with that dotted line in the image there, the end of the buffer goes out into Main Street. So this entire
site is impacted and would typically be undevelopable as a single family residence. Hence the
application for reasonable economic use variance. The applicant proposed 2,190 square foot impact on
these buffers. The residential footprint is in the order of 785 square feet. They propose 4,400 square
feet of buffer enhancement and I want to acknowledge city owns properties on all six sides of this
address that includes the properties north of Main Street.
(00:28:59):
There was a purchase by the parks department some years ago including a grant funding from the parcel
immediately west of here, which has kind of a parklet under development right now. And then we also
own the way James Theater across Main Street to the south Comprehensive Planet designates this site
as single family urban. That coincides with our zones RSS six and RSS eight. So it is what it was supposed
to be in that regard. The intent of that designation is to balance economic, social, aesthetic and
environmental considerations. Among the goals notably is that private property must be protected from
the first environmental impacts of development. So generally speaking, the intent here is to protect
these environmentally sensitive areas by regulation backed by the best available science.
(00:29:54):
So as far as applicable codes go, let's start with single family residential zone chapter 1620. Of course
the primary intent of that zone is for single family residences. It says right there on the label compliance
with those site development standards, so setbacks, height lot coverage, parking would all be reviewed
with the building permit and are not presently under review with this application. There was no request
for variance from these regulations at this time. So no further analysis going on right now. Critical areas
in Title 23, the gist of that title is for the development must maintain or improve the environmental
conditions on site. Further critical areas compliance would of course also be reviewed in association
with subsequent building permits. The lot would otherwise under this regulation. As I mentioned prior,
the undevelopable due to the buffers encroaching and encumbering entire site, the reasonable
economic use variance process avoids an unconstitutional takings of property rights. The right to
develop a single family residence here.
(00:31:13):
So the review criteria are held within section two 10 of chapter 2340. Specifically this present or this
proposal fits in this manner. There are special conditions, circumstances of the land. It is inherently
impacted by the stream and associated wetland on these buffers. The applicant did not cause these
conditions nor the circumstances after the inaction and adoption of Title 23. There's no other
reasonable economic use available. While there are other compatible uses in the zone such things as
Transcript by Rey_com Page 2 of 32
parks for open space, they're definitely not the primary intent of the zone as captured in 1620 triple
zero, nor are they highly economic. Therefore it's clear to demonstrate that it will deny recall reasonable
economic use. However, the requested application is not the minimum variance necessary within the
context of those two prior hearing decisions. On 7 4 2 daily there is a proposed net loss of critical areas
function and therefore between those two considerations it poses an unreasonable threat to public
health, safety and welfare both on and offsite and would confer special privilege to the landowner
which is inconsistent with the purpose and intent of Title 23. I'm going to now go into more detail about
the decisions.
(00:32:52):
So the minimum variance as captured in a previous application from about a decade ago as 7 4 2 daily
was established as 650 square feet footprint of the residence itself. This proposal of course exceeds that
by about 135 square feet. Likewise, in a subsequent decision on that same property, 7 4 2 illustrated on
the right there is the proposed buffer impact there, which was exceeded by this application by an order
of 1400 square feet. Now I do want to recognize these are different sites, different realities on sites, but
the scale of an order of magnitude of those differences, particularly of a buffer impact is worth
emphasizing.
(00:33:50):
I'm going to need to move the floating heads here a little bit. Alright, so mitigation sequencing as
required by section one 20 of the critical areas code requires prioritizing disturbances in the least in
covered areas. So the way I chose to illustrate this on the left here is that basically the areas in being
highlighted are those where the reside, the rest of the footprint plans within the stream buffer set back
or the wetland buffer, those areas highlighted in red are within the stream buffer itself as well as also
the web buffer. So sequencing of mitigation requires reducing the impact by taking different actions,
different scales of actions, different locations of disturbance and prioritizing the lower or lowest possible
disturbance over others. So what I'm trying to illustrate here is that there are portions of this proposal
that are beyond the scope of that or do not follow inherently that mitigation sequencing.
(00:35:12):
However, I want to acknowledge that the area in green that does is pretty well capitalized upon. It is
leveraged rather well, but it doesn't quite total that 650 square feet. So an incursion of maybe 90 square
feet into the red would be more in scale with prior precedent. So that's kind of the math on that one.
We proposed residence uses that stream buffer to an extent of about 265 square feet right now I also
want to acknowledge that obviously the southeast corner of the property and pursuit of this maximized
use of the green area, there's the finishing value as you head to the south structure. So reasonably
speaking, there's less and less you can put in that specific otherwise compact areas. So those not within
the footprint of the residence are necessary matched driveway must also be minimized to an extent not
present. Proposed further illustration here, I guess very visual lines up that 650 square feet established
by the cases at 7 4 2 daily.
(00:36:43):
Now this is illustrated as a perfect square is far and away not appropriate in this scenario as previously
discussed, but I wanted to discuss this more in the context of the disturbance to the buffer unassociated
with residents. So more associated with the rest of the improvements proposed on the site. So based on
my best estimation, a single family residence with parking in tandem of one car in a garage, one car in a
driveway abiding by the current setbacks could impact the buffer with a footprint about 820 square feet
give or take, and that could potentially have a residence of less than 1,160 square feet. So there is
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potential here, but what's proposed doesn't play within the previously established precedents
associated with other reasonable economic use variances in that.
(00:37:50):
So that gets to net loss. So enhancements defined in critical areas ordinance as the improvement of
degraded existing wetland functions. The wetlands on site and the adjacent to the site are all category
three. These are defined as having a moderate function that can be replaced with an adequate plan. In
this scenario, code requires an eight to one mitigation ratio for the enhancement of category three
wetlands. So on the math on the right there, 2190 buffer impact that would require an enhancement of
17,520 proposed is only 4,400. So that's a shortfall of the next excess of 13,000 square feet at a net loss
in ecological function. Now this could be combined with wetland enhancement with restoration rehab,
reestablishment, board creation and code would permit that to drop that ratio from eight to one to
three to as high as six to one depending on the proposal.
(00:38:58):
So there are ways to reduce that total square footage necessary by increasing the level of mitigation
proposal basic ip. So with that in mind, that math kind of leads us to the unreasonable threat and
associated with special privilege. The combination of excessive impacts and insufficient mitigation
therefore poses us an unreasonable risk to the critical areas, public health and welfare and property
both on and offsite and granting the variance as proposed with thereby providing the applicant with
special privilege to develop in critical areas beyond the intent of the code and beyond what has been
granted. In similar cases previously public comments staff received 15 comments from folks both within
and not within 300 foot notice radius. Most of them emphasize the risk of stream and wetland
degradation from development that noted particularly habitat loss, especially from salmon, the
reduction of stormwater ecosystem services increasing erosion, setting a bad precedent, which would
then endanger other critical areas of evidence and some expression of frustration with the public notice
methods prescribed by code. All in all this highlights the potential outcomes from excessive impact and
insufficient mitigation if various were granted. In summary, staff recommends denial due to the impacts
previously established being above greater than 20% of previous examples. Mitigation is only about a
quarter of what would be required, therefore causing net loss of function and that is inconsistent with
the purpose and intent of Title 23. That's resultant of environmental degradation and risks to public and
would grant the applicant's special privilege. That's all I have.
Examiner Olbrechts (00:41:09):
Okay, so how big is the subject law? I couldn't find that in the staff report. Probably have it someplace.
Speaker 5 (00:41:15):
Sorry, it's 6,600 square.
Examiner Olbrechts (00:41:17):
Oh, 6,600. So if they were to go down to a size convincer with past hearing examiner decisions, would
there be sufficient space to achieve that six to one ratio? I can't remember what the square footage
would be under the prior decisions. I do recall, like I said, it's been a decade that the way that the city
attorney had argued minimum size at that time was you take a two car garage and you put the looting
space on top of it and that's whatever spur footage that was. So if that's about six 50 or something and
maybe is what you were saying, a 61 would be 3,600 square feet total. It seems like you'd almost have
enough space then, right, to have both the home and the required mitigation.
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Speaker 6 (00:42:01):
Can we speak to that? Is that okay?
Examiner Olbrechts (00:42:03):
You'll have your chance. Yeah, I want to hear from staff first and then we'll move over to applicants. But
Mr. Sewell, I mean have you considered that scenario? The alternative scenario too is this lot is
surrounded by, as you said, city owned properties. It seems like if the city gave permission that the
applicant could do some restoration and mitigation work on the adjoining lots, is that an option here
Speaker 5 (00:42:25):
Is on the books as an option? It's not something C has implemented or explored previously, so it is
captured in Title 23. Do not press have a mechanism to do that. We have no practice in concept is, that's
not an excuse for not transparent about that, but it would come with a bit more legwork.
Examiner Olbrechts (00:42:53):
Okay, okay. Okay. But like I said is a lot big enough to accommodate a home that could be built that the
650 square feet or whatever it is, plus all the mitigation required. Could you do that all on the same lot,
Speaker 5 (00:43:09):
Yeah, so if there's about 8,000 square feet of, or excuse me, 6,600 square foot lot an impact could be
including parking and not the home footprint itself about a thousand square feet that's 5,600 square
feet left and on a three to one ratio we can squeeze if it's as high as six to one, now we got to look
offsite for that extra 400 square feet. But yeah, it's possible.
Examiner Olbrechts (00:43:42):
Okay. What else is I got? Shoot, I've forgotten my other question there. Oh yeah, so I think also in the
other prior decisions from 10 years ago that the applicant came in with a much larger size and I just
approved it for the smaller one. I noticed in this recommendation you're just saying denial, you're not
recommending that it be approved for a smaller size. So is that pretty much the staff position you'd
rather just see it denied outright so you can work with the applicant to make a new proposal or what's
the intent there?
Speaker 5 (00:44:15):
I mean the intent is that it should be fairly cut and dried, right? It's either a yes or no question. It was my
understanding so
Examiner Olbrechts (00:44:25):
Well it's yes or no or you can do something different and that's another option is I can require the house
size to be like I did in the other one.
Speaker 5 (00:44:34):
It's a hundred percent possible to reduce and propose something that plays within those previous
established requirements and
Examiner Olbrechts (00:44:46):
Transcript by Rev_com Page 5 of 32
So there is
Speaker 5 (00:44:47):
A possible path, yes.
Examiner Olbrechts (00:44:48):
Oh okay. So staff would be okay if I said I can only prove it for x square feet and leave it at that and then
you guys work out where the mitigation goes and things. Okay. Okay, good to know. Alright. Okay, let's
move on applicants then and let me get your names first and then I'll swear in.
Speaker 6 (00:45:07):
I'm Arnie ANZ and Kelly Maxim. Okay.
Examiner Olbrechts (00:45:10):
Leton
Speaker 6 (00:45:11):
Property, your Honor.
Examiner Olbrechts (00:45:12):
Okay, lemme swear both of you in, just raise your right hands. Do you swear affirm to tell the truth
nothing but the truth in this proceeding? I do. Okay, great. Go ahead.
Speaker 6 (00:45:20):
Just first want to start off on just that last discussion at a three to one ratio, 1,650 square foot of a buffer
impact would allow for a three to one on the non buffer impact. So it would be 1,650 square feet of
buffer impact that. So this is going to be challenging a little bit. I don't have a really cool slide deck like
you do, so we'll get through it. I'm going to speak well. So anyway, so I'm here on behalf, my name's
Arnie. I'm care on behalf Madison to discuss the proposed dwelling Extreme 80 Street. I appreciate the
opportunity to present our request for reasonable economic variance and I'm hopeful that we can reach
a balanced decision today. Before we begin, I'd like to emphasize that our goal for today is to just arrive
at a fair decision on three key aspects. One, what is a reasonable building footprint, what's a reasonable
amount of driveway space, and then what is a reasonable amount of buffer impact for this particular
site.
(00:46:25):
1 do want to start off in the staff report on page six, the last paragraph there was a reference to the
shank decision and it says in quotes, establish the minimum necessary residential footprint for
reasonable economic uses to be 650 square feet. I just want to call out, but I thought that was a little bit
confusing in that is it defining a floor of 650 square feet that would go above, could go from six 50 and
above. Okay, so it is says the minimum would be six 50 and it could go from six 50 and then up from
there. Okay, thank you.
(00:47:06):
The word minimum was just odd for me and that I felt like maybe, I think you were implying that this the
maximum size, but the word minimum was interesting here. I just want to call that. So Mr. Ner, this is
Transcript by Rey_com Page 6 of 32
where it's going to be challenging. I have exhibit A, B, C, D and G that I want to start off with exhibit A
before we open it up. I will, if it's is essentially looking at the reasonably used variance code from 2004
through 2024 and I just want to call out that there's not been substantial changes from 2004 to 2024
and if we can all agree on that then we can just accept exhibit A as agreed upon and move on if that's
okay.
Examiner Olbrechts (00:47:49):
Sorry, are these just code provisions you're talking about or?
Speaker 6 (00:47:53):
Yeah, they're just code provisions. So it shows what the original reasonable economic use was defined
as,
Examiner Olbrechts (00:47:58):
Oh back then. And then
Speaker 6 (00:48:00):
In 2024 and there's the map here, the mouse, I'm a
Speaker 1 (00:48:12):
Okay and then I go,
Speaker 6 (00:48:19):
I'll have to show what the content of the attachment is. I'm super nervous to despair with me. So
effectively it goes through here saying the definition of reasonable economic use back in 2004 was what
stated on the left it changed in around mid 2013 and 2013 because there was concern about the term
reasonable economic use and then so it landed on what it is at 2024 and then if you look at all the rest
of the pages here, it's just insignificant changes, grammatical updates, it's, it's just not much. And so I
just want to establish, the reason I want to establish that the variance code hasn't changed is because I
felt like the city saw the dets and shape ruling and just narrowed in on it or at least one other ruling that
the hearing examiner made. There's actually two, I'll speak about one briefly, but there's two additional
hearing examiner rulings. They're substantially different than the shank ruling and so I want to call out
those and discuss that and so that's why I just wanted to call out, but the code itself from the variance
perspective hasn't changed. Therefore these other hearing examiner rulings are valid and should be
considered or at least discussed and put on record for this discussion.
Examiner Olbrechts (00:49:45):
Okay, so I'll just ask, this is applicant's, we'll just call applicant's exhibit A. Any objections over applicant's
exhibit A coming into the record? Like I said, click on the virtual hand if you got one. Don't see any or
objections in the room. So we'll go ahead and admit applicant's exhibit A. Perfect.
Speaker 6 (00:50:03):
I'm now going to jump to exhibit D and this is more just for me. It was procedurally, just so that I could
understand in the reasonable economic use code, it does call out nothing about actually the city of code.
It calls out that you have to honor state and local laws and so I just wanted to compare and look at what
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the state and local laws said just to have an understanding of what that means. And what I found is that
the state law points back to local governments and just empowers them to have the decision if they do
it in a reasonable way and avoid it taking so nothing too crazy here. It's just basically talking about how
the state does put the onus back on the city and that the city ultimately has the decision as long as they
do it in a responsible way.
Examiner Olbrechts (00:50:55):
Any objections over exhibit D coming in the record? Applicant's exhibit D, hearing, seeing none, that's
admitted. Alright,
Speaker 6 (00:51:05):
So next let's move to exhibit C and D. These are interesting in the sense that the, in 2013 the planning
board meeting happened and the planning board meeting was spurred on about this discussion about
reasonable economic use and the confusion that it caused. There's a July, I believe B is July and C is the
November discussion in the July discussion was more around just this emergency case that had
happened because they recognized that original reasonable economic use code would offer potentially
more value to property owners and so they actually ended up closed doors, wanted to change and
remove the reasonable economic use code for some time. They did that for six months. There was an
emergency ordinance that was passed and then in November this is when the new code, which it is
today was updated to and included and the discussion about reasonable economic use and the changes
from before that hearing and agreement and having it ratified in the ordinance applied is less
interesting.
(00:52:28):
But it's the conversations in those meetings that I find to be sailing and important here we can page
through especially the November meeting and I highlighted in yellow many referenced the city attorney
expressed that the determination is case by case and in this meeting notes alone 11 references to case
by case is being stated and called out and it seems like it's case by case and yet we're being provided
what may have been a case by case solution for Shank applying to that specific lot where that entire lot
was, the entire house was built within 70 feet of the creek of Shell Creek, a fish bearing stream. The
closest part of the house was under 50 feet. It was what was applied there and if the spirit of the ruling
and the hearing examiner decision was for that specific house and that specific lot, a 650 square foot
building footprint and the afforded setbacks and driveways and whatnot was correct, does that change
what it means for if it's case by case, does that change what it means for the other sites and for the
other various applications? There's one other noted here that I've highlighted in green read from the
notes here. I'm so sorry.
(00:54:09):
So this is where the city attorney calls out kind of the complexity of what the challenge has been in the
city of Edmonds when it comes to reasonable economic units. It's been been purposely decided by the
city attorney or I guess you can say decided, but influenced that they do want it to be case by case and
they even talk about, well, if you're case by case it adds a whole lot of confusion. There's not a table that
you can just say, oh, if I'm building within a buffer I get to do X and if I'm this close to a stream, I get to
do why there's no table that says per site how it could change and grow. And the city attorneys states in
this conversation here, but that's really by design your 96% built out at the time of this hearing. And so
because of that they didn't feel like there'd be a whole lot of additional reasonable use applications and
so it was okay that they left it that way and because it's case by case, maybe that's better, but it's no
Transcript by Rey_com Page 8 of 32
more that in that meeting that they did talk about a couple Lake Forest Park was one that's the most
interesting.
(00:55:16):
But first let me step back. Is it okay to submit these?
Examiner Olbrechts (00:55:22):
Indeed. Any objections over, I believe it was B and C, right?
Speaker 6 (00:55:25):
This is B and C, correct.
Examiner Olbrechts (00:55:26):
Thank you. Right. Yeah. Any objections over exhibits applicant's exhibits B and C? Okay, hearing none,
those are admitted. Okay, go ahead.
Speaker 6 (00:55:34):
Perfect. Anyway, so just the call out is just that Lake Forest Park was one that they talked about how
they're more environmentally conscious as described by the city attorney here than Edmonds are, and
then I've got the code that that Lake Forest parks have, lake Forest Park has that we been talk about in a
second here. As far as this exhibit is concerned, I again have highlighted all of the areas where they talk
about everything being case by case and that's really the point that I just want to make and note that it
is case by case.
Speaker 7 (00:56:25):
Yeah, discussion. Please do. Okay. I've made some notes here a couple of minutes worth the
conversation regarding and I to emphasize case by case quote, page nine, paragraph one,
(00:56:49):
Special conditions and circumstances exist that are peculiar to the land and the lot and are not
applicable to other lands and then the city's response is that due to the size of the buffer impact and
residence compared to prior resident, the criteria is not met. I would think that as item one states
conditions and circumstances exist that are peculiar to the land. Therefore each request for a variance
would be considered based upon these unique attributes of the individual lot and peculiar
circumstances that exist on any one property. The encroachment of a critical area upon any given parcel
land and or proximity of a creek obviously vary site to site to indicate that a prior decision from nine
years ago on an unrelated parcel constitutes a precedent to be enforced as a codified ordinance goes
contrary to the opening sentence of section one. Some members of the planning staff were present in a
public hearing before the city planning board where the REU process was being introduced. They can
claim, I don't recall, but to refresh their memories, we've attached the minutes from that meeting,
which I will present as part of the record.
(00:58:26):
This was during November of 2013. It was an edmunds planning award hearing including a definition of
the term reasonable economic use to the city's critical area regulations file number A MD 20 13 0 0 9.
During the public hearing, the city attorney was quoted six times, six times saying an REU should be
decided on a case by case basis. The planners in attendance indicated that an REU will be decided on a
Transcript by Rev_com Page 9 of 32
case by case basis three times senior planners reiterated that decisions are to be decided on a case by
case basis. That's nine references to case by case basis when making a finding during the decision
making process. Now the planning department has ignored the recommendations of the specialty
appointed legal authority to the city and the decisions of the senior planners to consider the requests on
the case by case basis. By instead, they decided to use one isolated variance request decision to
establish the minimum necessary residential footprint for an REU to be 650 square feet. Page six of the
staff report. This negates the need for a hearing examiner process and the specific directive to review an
RDU request on a case by case basis and I will include a copy of the minutes from board meeting into the
record.
(01:00:23):
Thank you, sir.
Examiner Olbrechts (01:00:24):
Okay, thank you Mr. Matson.
Speaker 6 (01:00:26):
So I do want to go back to the shank ruling and that's one that was already included and as part of the
It's already, yeah, it's already in the record, so I'm just going to speak to it and I don't need to be have it
added as a, I opened up there but I don't need add. I just want to speak to it. So the city has presented
the shank building as this guiding light for what they consider the minimum viable product. It was a term
that that Tristan had used when I was chatting with them earlier last week, a reasonable light economic
abuse as explained by Tristan. Even in some of the public responses, he sent notification to the public
saying that you can expect this to be the baseline, the 625 to 650 square feet, which I think I find
interesting only because I don't think it's code, I think it's hearing examiner's recommendation based on
the hearing.
(01:01:19):
So even making statements about that I think is premature and so I just want it to be reinforced case by
case basis anyway. So a few things about the shank ruling. First, if this ruling is truly the MVP, why hasn't
it been codified? Why haven't the city council planning department and city attorneys work together to
fully enact these guidelines into the city code? The very fact that it isn't codified suggests that this
decision was meant to be just one specific ruling, not a blanket guideline for all future cases. Second, is
this really a case by case basis as intended by senior planner, Mr. Lean, the city attorney and various city
council members? I think that was a very confusing sentence, but what I meant to say is was the shank
ruling case by case or was it an actual blanket ruling across all future projects?
(01:02:17):
If each property is unique and each decision should be made with the properties individual
characteristics in mind, then it doesn't make sense to use the SHA ruling as the sole benchmark for what
qualifies as the reasonable economic use code. In the SHA case. Again, I said this earlier, but the farthest
point of that building was 70 feet away from Shell Creek in the current proposal building is 95 feet away.
There's going to be mitigation everywhere between the building and all the way to that stream. I just
challenged that it'll Italy better off once the mitigation work is done and yeah, that's it. That's all I have
condition. It does bring up a ruling that I want to talk about. I know you've mentioned the property
immediately to the west of this one, which is actually, here we go. Submitting to the record a hearing
examiner ruling 4 9 5 1 Main Street, which again, it's the adjacent property right next door to the west.
Yeah, to the west. This is exhibit that I speak. Yeah. Okay.
Transcript by Rev_com Page 10 of 32
Examiner Olbrechts (01:03:32):
Any objections over entry of applicant's exhibit F? Okay, hearing none admitted. Alright, go ahead.
Speaker 6 (01:03:40):
So exhibit F, I'd like to bring attention to the 9 5 1 Main Street ruling detailed on exhibit ff, which is
directly adjacent to our property to the west. This ruling was made in 2005. It still applies today because
as we discussed earlier, the variance code has not substantially changed or changed materially from
2004 to 2024. The home there was a 2,180 square foot footprint and the buffer impact reached nearly
7,000 square feet, 6,931 square feet of buffer impact. Prior to the significant buffering treatment, the
hearing examiner approved the project with the wetland enhancements of less than 3000 historical
square feet. What is that? It's half, it's under half showing clear flexibility of the city's approach. The
builder ultimately appealed the ruling of the hearing examiner because there was one condition in it
that he found unacceptable and the hearing examiner suggested that you need a two car garage instead
of a three car garage.
(01:04:45):
Again, this is the building immediate the property immediately to the west. So before the appeal that he
filed was completed, the city of ended up negotiating and purchased the property from him for about
$200,000, which feels to me like the builder was awarded a benefit only because he argued that the
third car garage would be available and yet he was afforded a whole bunch of different mitigation
requirements and whatnot that don't seem to be honored. In the shank ruling, the case demonstrates
that much more was afforded to the 9 5 1 property, even as the project had a far greater buffer impact
in our case with a smaller footprint and buffer impact, we have shown a far greater environmental
sensitivity buffer chain. This ruling may allow us to arrive at a more reasonable outcome for this project,
particularly given the flexibility shown previous decision. Furthermore, the intent of the city attorney,
city planning and the city council, again, case by case basis, this is another case heard by the hearing
examiner. Decision made substantially different than what the SHA ruling was and yes, I agree it is a case
by case basis and is a completely different property, a different impact and a different result.
(01:06:08):
Now I want to jump to, and I don't have a exhibit for this, this is essentially just going through the city's.
There's the seven responses around variance in the seven areas of which Tristan pointed out earlier,
earlier. Four of them are already met and we're on three and stuck with three specific criteria. So I'd like
to run through just those three if that's okay. I don't see the need to belabor going through the other
four. Starting with two 3.4 0.21, 0.2 C and this is the proposed impact to the critical area. The city argues
that our proposed house carport and driveway exceed the minimum necessary impact to the critical
areas. They referenced previous decisions as we've discussed about such as DE's reasonable economic
use variance and which allowed 800 square feet of disturbance in the shade decision, which establish a
650 square foot minimum. Our response is that we must emphasize that this project should be
considered under case by basis, as has been reiterated in city council meetings, senior planning, city
attorney, city attorney, and council members all present the specific impacts of this property and its
unique circumstances necessitate a different footprint. Additionally, our design carefully balances the
development with middle buffer impact, especially when compared to the previous projects such as
Shank N 9 51 Main Street.
Speaker 7 (01:07:54):
Yeah, I've got some thoughts. So I made quick notes of in the city's technical review item B, which is
page six of the review, they mentioned no other reasonable economic use of the property consistent
Transcript by Rey_com Page 11 of 32
with the underlying zoning has less impact on the critical area than a single family residence. Some other
city analysis, the primary purpose of the IRS zone is single family residential development and retaining
the lot as a natural open space is not the primary intent of the single family residential zones. ECDC, 16
point 10 triple zero A so far so good. Then comes the provision E staff decision as currently proposed.
That's a quote as currently proposed. The project poses an unreasonable threat to public health, safety
and welfare. Talk about a stretch to find a reason, any reason to deny a request. What dangers and what
threats does this proposal contain? They provide the answer. The answer is it's too big as established by
previous REU applications is too big by 135 square feet. You may note that that is a size of about
approximately 11 foot by 11 foot rule.
(01:09:47):
I'll refer the reader the back to the provision C discussion earlier in our reasonable response. As a side
note, interesting comparison. Currently a single family A DU would be approved with a 1000 square foot
footprint and that's an accessory dwelling added to a residential zone lot well over the 650 square foot
footprint stated as the previously established minimum necessary criteria, no case by case consideration
allowed not mentioned nor Dures as a way to satisfy the ECDC was to use section 23 41, 20 B one. That
suggests mitigation of sequencing. The top of page seven of 13 recommends the distribution and
location of the footprint should also be considered. It should be obvious that we did, we noted the
survey wetland boundary, the IRS six side yard setbacks and the front yard setback to stay 100% out of
the designated type three wetland to stay 100% out of the wetland. Plaintiff staff missed the fact that
we avoided any part of a footprint in a wetland portion of the property. No intrusion into the wetland
was suggested or planned from the beginning. I would think that this would be a prime example of
mitigation sequencing.
Speaker 1 (01:11:50):
Speaker 6 (01:11:51):
Will get back later. Go ahead. I did want to pull up, I have the exhibit here just for the record exhibit G,
and because it was mentioned in one of the meetings at the city council as part of the Exhibit C. They
talked about Lakes Lake Forest Park being a more strict and ecologically harsher or just pro lakes and
streams, or sorry, the top, I did want to include the code for Lake Forest Park just as a record. And there
they have actually similar to the MVP, the MVP in Lake Forest Park, it's a 750 square foot living space
footprint, plus a 250 square foot attached garage for a thousand square foot impact. And that's what
they allow as their guideline for a minimum viable product in Lake Forest Park.
Speaker 1 (01:12:55):
Let's see.
Examiner Olbrechts (01:13:01):
Trying to, let's see here. Oh, there it is. Okay, so any objections over exhibit G, which I'll just call section
16 point 15.2 50 of the Lake Forest Park code? Any objections? Hearing none. That's admitted. Okay.
Speaker 6 (01:13:20):
That actually concludes the exhibits I have and I just have a couple things.
Transcript by Rev_com Page 12 of 32
Examiner Olbrechts (01:13:25):
1 don't think you haven't presented an exhibit E. Was that intentional or I don't think, yeah,
Speaker 6 (01:13:31):
When you start out and you have all these exhibits because you've never done this before and then as
you go through the exhibits disappear because they no longer make sense?
Examiner Olbrechts (01:13:38):
Yeah. Okay. I just wanted to make sure that you didn't accidentally forget that one. So good. Good.
Okay.
Speaker 6 (01:13:43):
Yeah, no, I appreciate it. I appreciate it. So I do want to talk about one of the key points here and that's
the planting ratio. And so I'm just going to read specifically it's 23.40, about 200, about two F, and what
the city had said about that, as Tristan called out earlier, the city's pushback is that we did not propose
an eight to one foot replanting ratio and suggest that the enhancement must be done at H one square
foot ratio, although they do mention the possibility of reducing it to a three to one ratio in their
discussion. So our response on just generally around the ratio and of the wetlands mitigation, we
respectfully disagree. The city suggestion, first of all, offsite mitigation, hearing about the parks is
actually fascinating.
(01:14:38):
1 can't imagine providing a property owner in Edmonds, the ability to mitigate on a neighboring property
is not somehow providing value to the person. So I don't know how that would actually work from a
code perspective, definitely interesting, but I don't understand how that would work out. But so I think
that the proposal for H one or even the three to one ratio is not practical given the properties area 6,600
square feet, as we said earlier, at a ratio of three to one, we would be limited to a 1,650 square foot
buffer impact and then have to have a driveway. And on top of that, when we talk about our biologist
Lewis from Acre Environmental, he's actually a very well respected biologist at the city of Edmond. So
respected in the fact that they hired him to do the mitigation for the property that's adjacent the old
Rob Michelle property that is now the park.
(01:15:42):
So he is provided, and it's already been included in the record, Tristan has it and it's his proposal. He
goes through all of the reasonable economic use clarifying points just like this. He defines how the
sequencing works, he defines how he has addressed that and that we are in the space of after applying
everything that we can, are we doing something that's responsible? Are we using the best science? And
so you have that as part of the exhibit that's already there. And so I just challenge you to review those
and I have a conclusion unless you have something else that you want to. Okay.
(01:16:20):
So in conclusion lastly, what we really want as an outcome here as we stated at the beginning, is just
what constitutes reasonable economic use of 9 6 3 Main Street. I appreciate that Tristan suggests that
having a reduced the ruling on your part will be favorable, and I think that that's great to hear. I know
the city has worked hard on this and Ken and I, we put a bunch of hours on this. I know there's been a
lot of people in the public that have definitely thought about this and are here today, which I completely
respect and understand, but I just want to just say to the city that they recognize that city council
Transcript by Rev_com Page 13 of 32
meeting notes and just how challenging the process is from property owners. There is no formula. It's all
case by case. It's us presenting what we think is right.
(01:17:12):
1 could suggest that two years ago in September when we were given the guidelines that it is 650 square
feet and not discussing other rulings that have been decided, like the Rob Michel ruling did that put us in
a position where we actually ask for something different today. Maybe my point here is that having clear
guidelines from the city would be more helpful and would make it a whole lot easier for everybody
public and everybody involved. But we're seeking really three key questions in having those answered.
What is a reasonable building footprint? Should it be the blanket approach of 650 square feet that felt
like it was more site specific to Shank and Dee's? Is it a more acceptable approach in our eyes like Lake
Forest Park where it's a 750 square foot home and a 250 square foot garage for a thousand square feet
or knowledge county, they allow 4,000 square foot buffer impact on theirs.
(01:18:10):
Is it something like that? So understanding what our building footprint can be and having a decision on
that is really important to us to land on that from the screwing. The next thing is the driveway
allowances, and I don't think there's a lot there. I do have a proposal at three actually. I do have
traditional exhibits. I apologize, and one of'em does talk about the driveway. You mentioned it. We
didn't ask for it. We talked about it last week and we would've reset everything. And that's discussion
around a five foot setback reduction, getting the home five feet away from the wetlands and what that
will do, I do have an Exhibit J, which suggests what it could look like if it has that five foot setback
reduction, but procedurally, I don't know what's allowed. I don't know if you, from an examiner position
could say, oh, we never talked about a five foot reduction setback. We didn't make that part of the
public record. I don't think that you can act on that, but it's something that we did think about wanted
to offer. Well,
Examiner Olbrechts (01:19:10):
Mr. Sewell, real quick, is that an administrative determination reducing the driveway setback or would
that have to go through a whole variance process again?
Speaker 5 (01:19:20):
The latter?
Examiner Olbrechts (01:19:20):
Yeah,
Speaker 5 (01:19:21):
That's the chapter 28 5 variance.
Examiner Olbrechts (01:19:24):
Okay, okay. Yeah. I know sometimes cities have administrative variance processes for minor variances. I
didn't think Edmonds did, but just wanted, okay. Alright, great. Okay. Alright, go ahead sir. Sorry,
interrupt there. Yeah,
Speaker 6 (01:19:35):
Transcript by Rev_com Page 14 of 32
No worries. And I think really actually after listening to everything, seeing the presentation, looking at all
the other rulings and hearings, really what we needed to land on in this is what is a reasonable buffer
impact. We talked about earlier, 1,650 square feet of buffer impact regardless of what the house,
regardless of what the driveway would look like, we would have this framework to work inside of is that
the right thing? That would give us the lower end of the three times, but three times the square foot of
impact replanting a mitigation. I feel like what we presented is reasonable as it stands. But anyway, so
for your review, I did want to include also, these are just three suggestions. This is, sorry I'm not sharing.
(01:20:39):
These are suggested outcomes based on what I think are probably only two outcomes, but potentially
the third, recognizing that the setback reduction is not possible. This is effectively agreeing to what the
city has proposed. It's a 650 square foot. This drawing is Ken didn't do it, so it's not great. And then also
the driveway here and then it calls out what the buffer impact is. This does recognize that in the 650
square feet, having a parking garage or carport part of that and making a tandem parking spot is a big
challenge. And so my recommendation is pull that parking spot out of the home, allow the home to have
more living space and have the two offsite parking spaces in front of the home. So this is the 650 square
foot building footprint. Do I have to ask that? It's okay to submit exhibit HIMJ, but they're all in one file.
Examiner Olbrechts (01:21:50):
Okay, well why don't you show us all three and then I'll ask if there are any objections. Okay.
Speaker 6 (01:21:57):
Exhibit I, this is what we consider a case by case review. This is where we proposed a 750 square foot.
The original application that we had was 785 square feet and it had the carport at the side. I actually
pulling the carport out in, this is just a discussion topic of what if it's 750 square feet and then it has the
parking in front. This is a 750 square foot house footprint. Two parking stalls is another 340 square feet.
This reduces the total buffer impact down to 1,950. And then lastly, exhibit J. This is reasonable case by
case basis again, so I'm keeping the same 750 square foot house impact, but note that park as minimum
code shows you 17 feet I think is the total depth. So we pulled the house to 15 foot back and then put a
little bit of the parking underneath to give it that 17 foot space.
Speaker 5 (01:23:03):
That one is with
Speaker 6 (01:23:04):
A street setback there with a staff. This is with a reduction in the street setback by att.
Examiner Olbrechts (01:23:13):
Okay. Any objections over admission of exhibits? Was it HI and J?
Speaker 1 (01:23:18):
Correct.
Examiner Olbrechts (01:23:19):
Okay. Hearing saying none, those are admitted.
Transcript by Rev_com Page 15 of 32
Speaker 6 (01:23:26):
1 actually all
Speaker 5 (01:23:27):
I have for today, do you have anything else you'd like to
Speaker 7 (01:23:30):
Add? Just a couple quick comments. This whole process from beginning until today is just about two
years. Two years. And of course the code says that the application must be answered in 120 days, but
every time the city asks that question, the clock stops as they ask for more information. So we've been
answering their questions for two years and here we are today, we've made compromises from the
beginning Compromise one, we've stayed 100% out of the wetland. We will not touch the wetland.
There are no trees that are coming down. The creek is off the property out of our control.
(01:24:28):
The city says, okay, we have to provide two cars of parking including a driveway. We've decided that
okay, we can do this with a single carport, a single car driveway. So there's another compromise done to
minimize the impact on the property. So time after time time we compromise down, down, down to
where we are today with our request and as the city admits the entire property is encumbered by
buffers and wetlands, where do we move the house to get out of the buffer? Well, we can go across the
street, I guess. So compromise after compromise for two years, I think we are down to what I would
have to say would be a reasonable request. Thank you for the consideration.
Examiner Olbrechts (01:25:33):
Okay. Thank you Mr. Mattson. Thanks. Yeah, thanks both of you for really good information. I really look
forward to reading over those planning board minutes because I think the intent of the city and its
regulations is paramount and that kind of information really helps actually. So with that, let's finally
move on to public comment. Thanks all back there for your patients and sitting through this. It's been
long, but it's been, like I said, actually really useful information for me. Mr. Clarkson, do you have a sign -
in sheet that we can use to, and if you didn't sign in, that's fine. Once we're done, going through all the
names in the sign -in sheet, if there's someone else that wants to say something, just raise their hand
and we'll make sure you get up there. And of course we'll also cover anybody who's attending virtually
as well. So Mr. Clarkson, why don't you just call 'em up one by one on the sign -in sheet in order and
that's how we'll get started.
Speaker 4 (01:26:24):
Sure. First is Ray White.
Examiner Olbrechts (01:26:33):
All right, Mr. White, let me swear you in. Just raise your right hand. Do you swear affirm to tell the truth,
nothing but the truth in this proceeding?
Speaker 8 (01:26:38):
Yes.
Examiner Olbrechts (01:26:39):
Transcript by Rev_com Page 16 of 32
Great. Thank you. Go ahead.
Speaker 8 (01:26:42):
First, let me say that it would be nice if in future hearings, everybody speaking up in front would have a
microphone because the audience cannot hear a lot of what is being said up there.
(01:26:56):
Also, the things that are printed, the lettering on the screen can't be seen, can't be read. It's too small.
It's way too small. Yep. So we're not getting a lot of what's going on here. My name is Ray White. My
address is 3 20 12 Avenue North in Edmonds. I'm a stream ecologist, particularly with respect to habitat
for salmon and trout. I've taught that subject at Michigan State University at Montana State University
now at Semi -retired in the Pacific Northwest, but I'm still active. My special field within that general field
is stream restoration for Salama fishes and I've been professionally engaged in that since 1957 in this
long experience working for public agencies. But as government agencies, universities and in private
consulting, one thing comes out very clearly. A lot of what people call restoration of streams really
doesn't restore anything true and a lot of what is called mitigation does not truly mitigate. That's a basic
matter in what we're talking about today.
(01:28:51):
Also, another very fundamental matter, and especially with regard to this word buffer that keeps
coming up. Buffers are important and in that respect, it's much more important to protect the natural
function of a wetland than it is to try to create an artificial wetland, which a lot of people are calling
restoration. It just doesn't work as well as nature does it. The lot in question. I was looking at the big
thick, a document on the table that had a map in it looks like it. The lot itself comes within 25 feet or so
of the street channel and a stream ecosystem includes more than the channel, but it includes an
extensive riparian area or riparian corridor. In this case, it's portrayed upon the maps as a wetland and
that's important and it be the function of the stream.
(01:30:19):
What goes on in the channel depends to large extent on the function of that wetland. A healthy
ecosystem depends on protection from the kinds of disturbances that human activities often impose,
and not just the footprint of the building itself and the driveway, but what the owner and the future
owners are going to do with respect to clearing and maintaining the rest of the surface on the lot in
question could have a big deleterious effect on the stream ecosystem. For instance, removal of essential
native vegetation and at worst mowing and that sort of thing. Thank you very much.
Examiner Olbrechts (01:31:23):
Thank you Mr. White. And let me clarify again that all the exhibits that were presented today up on the
screen, if anybody needs to see those and wants to comment on them, you have that opportunity. Just
let Mr. Clarkston know before the hearing is over that you want to look at something that was put up on
the screen if you couldn't see it and we'll give you some opportunity to look it over. Was
Speaker 8 (01:31:43):
Mr know?
Examiner Olbrechts (01:31:45):
Pardon?
Transcript by Rev_com Page 17 of 32
Speaker 8 (01:31:46):
Yeah, yeah. We really didn't have, the audience didn't get introductions including yours. What's your
name please?
Examiner Olbrechts (01:31:53):
Phil Alb. Bricks. Yeah.
Speaker 8 (01:31:54):
Thank you.
Examiner Olbrechts (01:31:55):
Yeah, thank you Mr. White. Yeah, like I said, yeah, if you need to see any of those documents that were
put up there, let Mr. K Clarkston know and we'll get that to you and that applies to anybody out there,
so, okay, Mr. K Clarkston. Next on the list.
Speaker 7 (01:32:08):
Next is Clinton Wright.
Examiner Olbrechts (01:32:10):
Okay, Mr. Wright, let me swear you in. Just raise your right hand. Do you swear affirm to tell the truth,
nothing but the truth this proceeding? I
Speaker 9 (01:32:17):
Do.
Examiner Olbrechts (01:32:18):
Okay, great. Go ahead.
Speaker 9 (01:32:20):
Okay. My name's Clinton J Ride. I live at 2 0 6 eighth Avenue North in Evans. I'm speaking today on
behalf of the Evans Environmental Council, of which I'm a founding board member. This comment is in
reference to City of Edmonds staff findings and recommendations dated September 18th, 2024. Specific
variance criteria number six, and it's on page 11. The applicant has failed to address the issue of possible
impact on salmon and resident sea run trout species that are native to the Shell Creek watershed that
constitutes this adjacent critical area. Any building in a critical wetland that connects underground to
salmon bearing creek will cause I irreparable damage to essential salmon habitat. Salmon are declining
in Shell Creek because excess storm water ment and sediment for erosion due to the development in
the critical areas of the Shell Creek watershed, may eliminate salmon and we don't want to have that
happen.
(01:33:31):
Allowing the building of an multi bedroom dwelling on this parcel implies the possibility of children and
or domestic animals playing on land adjacent to the creek and trampling vegetation near the creek,
forming unwanted trails and soil erosion or damning or disturbing the creek and creek bed. Proper
native vegetation aids in the cooling of the water needed by the fish to survive damning the creek can
Transcript by Rev_com Page 18 of 32
prevent or complicate natural reproductive migration of the fish. Disturbing the stream bed can damage
vital spotting bed conditions for the fish. There is a reason we call this critical habitat and human
habitation allowed in the buffer areas should not be allowed because the stream and wetland cannot be
protected from the possible adverse consequences of encroachment. Thank you for the opportunity to
comment here.
Examiner Olbrechts (01:34:28):
Alright, thank you Mr. Wright. Alright, Mr. Clarkston, next.
Speaker 9 (01:34:31):
Margie
Speaker 10 (01:34:32):
Fields, I can't swear in as Margie Fields. Margie had to leave and she left me a written or type version of
her comments.
Examiner Olbrechts (01:34:46):
Okay. Well I'm not sure how to swear you in if you're just reading someone else's comments. That's kind
of an interesting situation. I'll just let you say it without being sworn in. Go ahead
Speaker 5 (01:34:55):
Mr. Rex. She did also email 'em to me or,
Examiner Olbrechts (01:34:58):
Okay, alright, that's fine. Yeah.
Speaker 5 (01:35:00):
So
Speaker 10 (01:35:01):
You want me to read 'em in or
Examiner Olbrechts (01:35:02):
Just Yeah, you can go ahead and read them in. Sure.
Speaker 10 (01:35:04):
Okay. So my name is Joe Storino and I'm reading Margie Fields's comments and just verbatim, she says, I
was shocked when I first saw sign on Main Street indicating potential development in an area that
appeared inaccessible due to the steep slope. Upon realizing that Shell Creek was at the bottom of the
slope, I was outraged that the development would even be considered there. It seemed clear to me that
critical area regulations must make that impossible. There's another reason I was amazed that
development of this property was being considered. The properties on either side was purchased by the
city grant funds aimed at preserving those areas along shelf creek for wildlife habitat. The grant project
description states that the land contains a number of important habitat features such as wetlands,
Transcript by Rev_com Page 19 of 32
woodlands, and stream habitat for a variety of species in coal. It seems to me that allowing
development in the middle of those properties obtained with grant funding would be violating the grant
agreement. So I am very relieved that the city has recommended against the request for development. I
think any reasonable person would look at the property and conclude that it should not be developed
due to the predictable damage it would do to Shell Creek. Any disturbance of the hillside would clearly
impact the creek and its ecosystem. I'm strongly supporting the city's position and urgent know on this
request. As that's the end of her written comments, judge let those, and I can swear that I read the
comments
Examiner Olbrechts (01:36:55):
Verbatim. That's okay on
Speaker 10 (01:36:56):
The sheet and staff can validate that.
Examiner Olbrechts (01:36:59):
Okay. And I think that as Mr. Sewell said, that's already in the record, right? Yeah, yeah, I've already read
those
Speaker 10 (01:37:05):
Copy in my inbox, yes.
Examiner Olbrechts (01:37:06):
Okay, perfect. Yeah, we're set. Okay.
Speaker 10 (01:37:09):
Can I mention, I'm going to be embarrassed here, but I have another written comment when you get to
the name to read it also. I hope that's, and I have,
Examiner Olbrechts (01:37:17):
Well if it's in the sign -in sheet, I'll just go ahead and read it then right now. Yeah.
Speaker 4 (01:37:21):
Yeah. So the sign in sheet next I Ron Ebert.
Examiner Olbrechts (01:37:24):
Yeah, I'll let this gentleman read the next, since he's up there. Yeah. To save some time. Go ahead sir.
Speaker 10 (01:37:30):
Okay. It's not going to preclude me from making my own comments, I hope.
Examiner Olbrechts (01:37:34):
No. Okay.
Transcript by Rev_com Page 20 of 32
Speaker 10 (01:37:35):
Okay, so this comment is dated September 25th, 2024 for Ronald Eber and his written comments go as
follows. Please enter the following into the record and consider these comments when deciding the
application and file number PON 2023 dash 0 01 3 for critical area variance. First, I fully support the
planning the development department recommendation for the denial of this application. It is well
reasoned and explain as far as it goes. However, it overlooks some substantive and applicable
regulations that predate the purchase of the property by the applicant and call into question the
applicability and use of the provision for the critical area variance. The staff report page seven states
staff identified no evidence that the applicant and owners undertook development activities on site that
resulted in the loss of reasonable economic use of the property. The inability to derive reasonable
economic use is wholly attributable to the critical area's ordinance which encumbers the entirety of the
subject parcel with wetland and stream buffers in coal. Boy, it is a lot to read that's not for this
statement is incomplete and incorrect. The inability to derive reasonable economic use is not wholly
attributable to the critical areas Ordinance rather the wetland and screen buffers that cover the entirety
of the property were there long before the applicants purchased the property and were subject to prior
regulations that clearly limited any expectation of a reasonable economic use. As stated, the owner has
not undertaken any development activities that resulted in the loss of reasonable economic use or
anything that would affect the value of the property.
(01:39:58):
The prior laws and regulations that applied to the property at the time of purchase and continue to
apply include the Water, Washington Water Pollution Control Act of 1945 RCW 98.48, the Washington
Shoreline Management Act of 1971 RCW 90.58, the Federal Clean Water Act of 1972 Public law 92 dash
500, especially section 4 0 4 and the Washington Growth Management Act of 1990 RCW 36.7 A. The
current critical area ordinance is just a continuation of these prior laws but does not take their place. An
analysis of these prior laws and whether they permit any or variances must be conducted before acting
on this current application further is not clear or discuss whether application of the critical area
ordinance or other laws cited above would constitute a constitutional taking. The Edmonds code 2305
defines reasonable economic use to me in quotes, the minimum use to which a property owner is
entitled under applicable state and federal constitutional provisions.
(01:41:31):
In order to avoid taking and or violation of substantive due process, staff have not in the first instance
determine or explain why they believe application of the critical areas ordinance would constitute a
constitutional taking. They have only determined that the proposed dwelling is not the minimum use
needed to avoid the taking. A property owner can not buy a property subject to longstanding and
applicable limitations to protect the onsite public resources and then claim that they take their property
and deny reasonable economic use. Due diligence by the applicants would've identified these conditions
and illegal limitations on the use of the property. They purchased a property covered in its entirety by
wetlands and stream buffers and should not have had any expectation of a reasonable economic use
from developing a house given the applicable regulations in effect at that time. Further, the city of
Edmonds offered to purchase the property brace Streamside Greenway Buffer, consistent with the
natural conditions and resources on it.
(01:42:58):
This is a reasonable economic use of the property and the owner is not entitled to another use or
increased value, especially if that use value is based on changing the character of the land at the
expense of harm to the public resources that values present on site. The reason why economic use or
value for the property must be based on its natural character and not on its development potential. A
Transcript by Rev_com Page 21 of 32
glowing site is not a reasonable economic use given the site's resources IE wetlands and screen BLS and
its prohibition on development for the protection of public resources is not a taking, if not a taking then
no variance can be granted. For further explanation of this view, see generally just be Marinette County
of 2 0 1 NW, second 7 6 119 72 Wisconsin Supreme Court decision.
Examiner Olbrechts (01:44:07):
So sir, do is there a lot more there that's still you have to go through in that document.
Speaker 10 (01:44:12):
One more, one more.
Examiner Olbrechts (01:44:13):
Oh, okay. Okay. Alright. Gotcha.
Speaker 10 (01:44:15):
So it is the closing sentence.
Examiner Olbrechts (01:44:18):
Oh great. Perfect.
Speaker 10 (01:44:19):
I urge you to support the staff analysis and recommendations and further analyze applicability and
effects of any regulations applicable to the property prior to when the owners purchased it and whether
a taking will occur if they are applied. Only then can a variance be considered. Thank you for considering
these comments.
Examiner Olbrechts (01:44:43):
And Mr. Sewell, I don't remember this one. Is this one in the record or I don't recall seeing it in the,
Speaker 5 (01:44:48):
I also received this email this morning.
Examiner Olbrechts (01:44:50):
Oh you did? You got that one. Okay. Alright,
Speaker 10 (01:44:53):
I'll provide it and again certified that I
Examiner Olbrechts (01:44:56):
Verbatim what was said there. Okay. And sir, you were going to make your own comments, is that right?
Yeah, since I got you, why don't you just go ahead and do yours now. Lemme swear you in on that part.
Pardon?
Speaker 4 (01:45:07):
Transcript by Rev_com Page 22 of 32
Next anyway, on the Joe Scor is up next.
Examiner Olbrechts (01:45:10):
Oh well I was going to let him finish since he was up there, so Alright sir, lemme just swear in, just raise
your right hand. You swear affirm to tell the truth, nothing but the truth in this proceeding.
Speaker 10 (01:45:19):
1 do.
Examiner Olbrechts (01:45:20):
Okay, great. Go ahead.
Speaker 10 (01:45:22):
Okay. My name is Joe Scardino, I'm a retired fishery biologist. I worked for the federal government for
32 years in the arena of fishery and habitat regulations, so I'm very familiar with this arena. I do want to
say, I want to agree with the applicants that we should be looking at situations like this on a case by case
basis. I'm one of those that always says one size doesn't fit all. We have to look case by case, but in this
case I think we're talking about the worst case scenario, just the map itself that you could see it from
there. That was in your packet shows the wetland throughout this area along the creek. One of the
things we know about wetlands, you put, you make a change in one area, it has immediate patients and
effects on the other areas and it's not just surface And that's one I think missing the whole analysis of
this application is the subsurface water impacts, especially in a wetland, it's kind of like your skin.
(01:46:35):
If you push on your skin, you see the white area around where you push showing the change. That's
what happens if you build a house on a wetland, you're putting that pressure down, you're affecting the
subsurface and there's no amount of planting or removing invasive species around that that's going to
change that impact you just put in the wetland. And the critical area or issue here is that we're so close
to the creek and we're in the middle of the wetland. So those subsurface impacts, it will affect this creek
to be considered and especially considered in light of the Edmonds community development code at
23.40 0.050, which says no activity or use shall be allowed that results in the net loss of the functions or
values of critical areas. This will result in a change of the functions. How bad? We don't know it is a big
area, but we do know that this creek is suffering so any further perturbation to the creek will adversely
affect the creek, will adversely affect salmon.
(01:47:57):
The other aspect of this is that those adjacent properties are city property and according to the grant
conditions for the purchase of one of those properties, it's supposed to allow public access. Can cities
now responsible for public access? If you start changing the wetland, the adjacent parcel, you would
change the wetland on the city parcel and if it changes it in a way that's detrimental to the trails, to the
erosion, et cetera, you now also affect the public safety. So my recommendation is to deny this
application, this isn't the right place to do it, but as an alternative, I think the applicant should put this
parcel up for sale for the city county, or a trust to purchase it at a reasonable price so it can be
preserved in its natural conditions and continue to help the creek and the adjacent habitat. Thank you.
Examiner Olbrechts (01:49:06):
Thank you sir. Okay Mr. Clark. So now next on the list. It hasn't spoken already. Of course.
Transcript by Rev_com Page 23 of 32
Speaker 6 (01:49:12):
That's the last thing on the list.
Examiner Olbrechts (01:49:13):
Oh, okay. Is there anyone else in the audience who wanted to say anything at this point? Okay sir.
Ma'am, come on up. If you could just tell us your name. Can
Speaker 11 (01:49:23):
I sign in?
Examiner Olbrechts (01:49:23):
Yeah. Need your name? Pardon?
Speaker 11 (01:49:26):
My name is Aud White. Okay. I have been married for 57 years to my husband Ray White.
Examiner Olbrechts (01:49:34):
Okay, lemme swear in Ms. White. Do you swear affirm to tell the truth, nothing but the truth in this
proceeding?
Speaker 1 (01:49:39):
Yes.
Examiner Olbrechts (01:49:39):
Okay. And Mr. Clarkston, did Mr. White put his email address down so that you can send the decision to
him and Ms. White will get it too? Yes. Okay. So Ms. White, I take it. Sending the email decision to your
husband will get to you. Okay, great. Alright, go ahead.
Speaker 11 (01:49:55):
So I was born in Germany and had much of my education in Germany. I have two American degrees, I
have a master's degree in geography for Michigan State University. Then I went to medical school and
have an MD degree from Michigan State University and I worked as a family physician until I was 69
years old. I'm now 81 and I still have in active retired medical license from the state of Washington. I do
take an active interest in maintaining a healthy environment and in my practice as a physician, my aim
was to allow a patient to heal themselves as far as possible with the minimum of medication and give
medication absolutely necessary. As far as streams are concerned, streams heal themselves. Why
mitigate or restore or something or manage a stream if it can heal itself And I worked on flooding in
Michigan. We need a flood plain and the flood plain is part of the river or the stream and needs to be
protected.
(01:51:22):
The laws or regulations in some adjacent municipality was mentioned. I want to mention one thing this
summer my husband and I made it possible for two of my nieces to ER and did emotional for me and I
asked them for a list of what they wanted to see and that was the Space needle in Mount Baker and Ice
State Market, but also the Edmonds Marsh. Why is it in the small town in Germany? They heard about
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the Edmunds marsh because it is a very unique area that is being protected and that is made, that's
announced in Germany. And for these two young ladies, it was important to see the marsh. We are in
the United States, extremely fortunate to have some areas that are being maintained, although small
islands in natural state and that should be protected for future generation without manipulation, can't
be improved with improvements. Let the stream have space and let it heal itself without our
interference. And I am in favor of not giving a permit to change the landscape to which will no matter
what you do, the paved drive affects runoff, the roof affects runoff, it'll change the environment in a
detrimental way.
(01:53:17):
Thank you.
Examiner Olbrechts (01:53:18):
Okay, thank you Ms. White. Alright, anyone else out in the audience? Okay. And then Mr. Clarkson, let's
look online. Is there anyone online who wanted to say something? Click on the virtual hand that we
have a Barbara Stellar it looks like. So Mr. Clarkson, if you can get her on,
Speaker 4 (01:53:42):
Actually I think you have posting abilities now.
Examiner Olbrechts (01:53:45):
Okay. Allowed to talk. There we go. Ms. Stellar, can you hear us?
Speaker 12 (01:53:51):
She's muted. Can you hear me now?
Examiner Olbrechts (01:53:55):
Yes. Okay, Ms. Stellar, let me swear you in real quick. Just raise your right hand. Do you swear affirm tell
the truth, nothing but the truth in this proceeding?
Speaker 12 (01:54:01):
Yes I do.
Examiner Olbrechts (01:54:02):
Okay, great. Go ahead.
Speaker 12 (01:54:04):
Okay. I am not a scientist. I am not knowledgeable about city codes, but I think that if I could sum this up
in three words, it would be let it be. If we ask our indigenous neighbors about the wisdom of
constructing a home on this property, I think that's what they would say. It is ironic that there is a speed
limit sign just yards away from this property that also includes a drawing of a salmon with the words
Shell Creek please protect. I passed by the land use notice in 2023 when I was on my way to assist at the
Edmonds Environmental use Summit at the Edmonds Waterfront Center on May 12th. I thought, how
can this project be explained and justified to our children? I suppose we need to educate them about
reasonable economic use. I think mistakes were made about land disturbances in the past, but we need
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to look to future ecological impacts not so much public and do the right thing. We need to put teeth into
recitations of indigenous land acknowledgements. And here's a statement credited to Northwestern
University. It is important to understand the longstanding history that has brought you to reside on the
land and to seek to understand your place within that history. Land acknowledgements do not exist in a
past tense for historical context, colonialism is a current ongoing process and we need to build our
mindfulness of our present participation. There are no square feet limitations on mindfulness habits and
built. Thank you.
Examiner Olbrechts (01:56:22):
Thank you Ms. Star. Alright, anyone else out there want to speak? I don't see anyone attending virtually
no one back in the audience. So I think we're done with the public portion. Oh, sorry.
Speaker 4 (01:56:34):
There was an answer. Just a second.
Examiner Olbrechts (01:56:38):
Okay. Anybody else out there? No. Looks like Ms. Shoemaker. Okay, Ms. Shoemaker, go ahead. Let me
swear you in.
Speaker 1 (01:56:47):
Yes,
Examiner Olbrechts (01:56:48):
Hi. You swear Affirm. Okay, lemme swear you in real quick. Do you swear Affirm tell the truth, nothing
about the truth this proceeding?
Speaker 13 (01:56:54):
1 do.
Examiner Olbrechts (01:56:54):
Okay, great. Go ahead.
Speaker 13 (01:56:56):
Yes. My name is Gay Chume. I'm a member of Interfaith Climate Action Advocates for Justice and the
Climate Advisory Board. I understand the compromises that the applicants have made, but why in the
world did you elect to buy this property, which is a buffer zone, a wetlands and green area? You said you
would keep all the natural elements, however it is my understanding that you have already started
cutting down trees on the property. Why would we believe that you would keep the natural elements in
this area? Therefore I request that this variance be continuously denied forever. Thank you.
Examiner Olbrechts (01:57:45):
Thank you Ms. Schick. Alright, anybody else out there last call? No, the applicants you'll get final word,
don't worry, you'll be able to respond. Okay, great. Alright now and Ms. Schu. And Ms. Stellar, if you
want to get a copy of the decision, just let Mr. Clarkston know. You can call him tomorrow or something
Transcript by Rev_com Page 26 of 32
and give him your email address and staff will get that out to you if they don't have a letter from you
already. So Ms. Schumaker, did you want to say something?
Speaker 13 (01:58:13):
No, I'm finished. I was just going to give you my address. I'll do it later.
Examiner Olbrechts (01:58:16):
Yeah, I think you can type it into the chat maybe and then Mr. Clarkston can get it that way. Yeah, yeah.
So one way
Speaker 5 (01:58:23):
Ga, you know how to reach me. I think you can get it to me, right?
Speaker 13 (01:58:26):
Yeah, Tristan knows how to get to me. Okay, thank you.
Examiner Olbrechts (01:58:28):
Okay, perfect. Alright, well let's move back to staff and then like I said, applicant gets a final response
there. So staffing. Anything else Mr. Swell?
Speaker 5 (01:58:40):
I appreciate time. The applicants have done a good job making their needs shared effort. I appreciate
their patience with us for restoration. This project has been fits and starts and was not as straight the
road as I think our department would hope. I think generally speaking by points stand, I'm working
within the context of prior decisions. Can't hear you. Sorry, you rather I
Examiner Olbrechts (01:59:12):
Sure. Yeah, yeah, I can hear you when you do that louder. Speak
Speaker 5 (01:59:14):
Louder. Yeah,
(01:59:16):
So I appreciated their time and efforts. I appreciate their patience with the city. It has taken quite a long
road to get here. The city has gone through a number of transitions in my department that were speed
bumps. I think generally my arguments and the points made in both the staff report and my
presentation remain sound and based on the facts of my job, try to administer the code and within the
context of prior hearing exam decisions, I do acknowledge that there is a path forward. I don't believe
the path forward is what was proposed. I think that pretty much will sum it up for me.
Examiner Olbrechts (02:00:03):
Okay. Thank you Mr. Sewer. Okay, now applicants, you can chime in there.
Speaker 6 (02:00:08):
Transcript by Rev_com Page 27 of 32
Go. Yeah. Thank you to Tristan. It. It's definitely been a journey. It's been interesting. Learned a lot,
learned an awful lot. I just want to go back to case by case and I want to make sure that the ruling is
based on case by case. I do think that's the intent of what the city and previous leadership at Mr. Lee. I
guess he left in 22, but he was very passionate. I do want to call out that Mr. Patson bought the property
back in 1991. I'm not quite sure how that impacts the laws that were being stated earlier, but this isn't
something that just happened. It's been a long 20, 33 years, 35 years. I can't even math. It's been a while
and so it's not a new long, but I said everything else from my closing, so I feel, well,
Examiner Olbrechts (02:01:05):
I am kind of curious if you said it was purchased in 1991, Mr. Clarkson, do you know, did the city have its
critical areas ordinance in place at that time? The Growth Management Act was adopted as you know, in
1990 and I think cities got their critical areas that the deadline was like 1995. So I'm kind of curious when
Edmonds adopted theirs.
Speaker 4 (02:01:25):
1 don't exactly recall, but I think it was 94, 95, right?
Examiner Olbrechts (02:01:28):
Yeah. Yeah. Okay. Yeah, and I can look that up in the code. But anyway, go ahead, sir. On that.
Speaker 7 (02:01:35):
Thank you. It's interesting, the public responses, the ones that we've heard here today and the ones that
were mailed in, emailed in. We got one from a gentleman who says a single family house. He'd rather
see a multiple family building being built. I'm thinking, oh, he wants to see a Detroit black or an
apartment house rather than a single bear. That's interesting. Of course, we got a letter from a lady who
lives in Shoreline who was very concerned. All the concerns here that we've heard tonight, I am aware
of, and I want to reiterate, we have taken precautions, compromises, and apparently we still have to
work with the city to resolve a couple of issues. Why the issues weren't mentioned earlier during this
two year process where we could have a conversation and come to some kind of agreement. I'm not
sure the city was working on this for two years and put together their submission. We were given one
week after we read their letter to answer their rejection notice, and I could use another two to three
weeks. Every time I look at it, I found something else that I could talk about. Sorry, we are not in the
wetland. We are out of the wetlands. The stream does not enter our property. The stream is off the
property, but you're impacting it.
Examiner Olbrechts (02:03:22):
Okay. This is just the opportunity for applicant to speak at this point. Go ahead, sir. Yeah, Ms. Ranson.
Speaker 7 (02:03:30):
Excuse me ma'am. Anyway, on and on and on we went and apparently most of the people are not
familiar with the building permit process. Just a plain old building permit process. The hoops fair and the
protections that the city requires when you start to build a house. All sorts of things are required that
Wharton required 30, 40 years ago. And I am in agreement with those. So this makes sense to me. And
there's another thing that apparently people aren't aware of, or at least they don't mention. It was the
US Supreme Court decision on Jenkins. There's just no doubt about that finding. You cannot take a
property owner's property without it being somehow educated, compromised like this. So a building
Transcript by Rey_com Page 28 of 32
permit cannot be rejected, A building permit request. Now, a couple of people said, gee, the city should
buy it. The last time we paid taxes on that property, the county appraised that lot white land and all
$250,000, $250,000 for what has been called an unbuildable lot.
(02:05:09):
I can go on for days about the fact that there's no such thing as an unbuildable lot. A house can be built
on any lot $250,000 is what we've been paying taxes on. The city offered to buy this lot from us three,
four years ago. I had to go back and look. They made an outstanding offer of $50,000. Well, how many
people that are listening right now, how many people that have spoken on this issue would take an 80%
discount on their property because the city wanted to buy it? We said, no, that's not acceptable and it
still is not acceptable. Now, if the community wants to get together and put together $250,000 and
write me a check, well, we can talk. It might be possible. I'd have to think about it. But that would make
it easier to come to a good decision. 50,000 does not buy a $250,000 property on and on and on. I could
go, but I think that's enough for tonight. The takings issue by the Supreme Court of the United States,
the fact that we've avoided just about all the impacts that we can possibly avoid and yet still build a
small house on a small corner of that property is what we're down to. And with that, I think I'll rest my
case.
Examiner Olbrechts (02:06:58):
Okay, now I see that some people want to speak, but the public participation portion of the hearing is
done. Now I don't want to spend another hour going back and forth arguing between applicant and
public. We've had a lot of comment here and that's done. So Mr. Matson, you said you didn't have much
time to respond to the staff report. I could leave the record open for you to do that, but then the public
and staff would've an opportunity to respond and then you'd get final word on it. But that would extend
this out at least a couple of weeks, but that's an option. If you didn't get the staff report much in
advance of the hearing,
Speaker 6 (02:07:33):
He said that he could leave it open if you want because you didn't have enough time to respond. I feel
like our response is
Speaker 7 (02:07:45):
No, let's let the procedure continue. And again, I want to emphasize the whole thing is based on a case
by case basis, not sub arbitrary and a decision made.
Examiner Olbrechts (02:08:03):
Okay. Okay. Yeah, and like I said before, I mean I have two people virtually who want to say something. I
have somebody out in the audience wants to say something. If I do that, then like I said, we're going to
be going back and forth again and in order to ensure an orderly hearing and everyone's had an adequate
opportunity to speak at this point, I'm going to close the hearing and I'll make some quick comments.
Since you've all been sitting here quite a while. I think everyone needs to realize that the standard here
is that they're only allowed to build the extent required by the constitution. If the city limits that any
further than the code requires, then the city has to pay Mr. Matson for taking his property. So that's the
objective here and there. Actually, there hasn't been a whole lot of case law on what a takings
constitutes.
(02:08:51):
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I think the rule of thumb across probably every city and county in the state is that if you have a
reasonably sized lot people get to build a house on it. The only thing that people disagree on is the size.
And I work as a hearing examiner for 35 cities and counties and there's a pretty wide range of how that
size is addressed. A lot of communities will look at the sizes of all the homes surrounding a particular lot
and say, okay, this is the average. So we consider minimum reasonable use to be the average for this
particular lot. The city of Edmonds when it comes to variances, and I represent other, I'll call 'em high
income communities like Medina, that kind of thing. Edmonds is on the most restrictive side of
variances. I mean, and that makes sense when you have an area with high property values, that kind of
thing.
(02:09:41):
Any deviation from development standards affects the surrounding. An environment can affect property
values, that kind of thing. So it's not surprising that Edmonds is so picky about that and that's where the
check decision comes from and the Dets decision comes from ultimately is recommendations from staff
implemented by myself 10, 15 years ago. The other extreme is kind of interesting is that Mason County,
one of the counties that I represent, rural counties are more property rights oriented than wanting to
preserve property values. They have big lots and people generally don't care what people are adjoining
lots do because they're 10 acre lots and it has no impact on them over there. They defi minimum
reasonable use. And I implemented since the 1990s as a minimum of a building footprint of 2,500
square feet. And then the county recently amended that to a minimum building footprint of 3000
square feet, which means it's 6,000 square foot, by the way is what they consider to be the minimum
entitlement to any lot that's fully encumbered by wetlands.
(02:10:38):
It was kind of interesting there though, is they also applied that minimum reasonable use to their
shoreline variances and the Department of Ecology has to approve shoreline variances in addition to the
county and ecology is now fighting them and saying that's too big and you have to do it on case by case
and make it as small as possible. I mean, the whole argument about case by case is yes, you have to look
at individual circumstances, but also you have to treat people similarly under similar circumstances.
Otherwise you're being arbitrary and capricious and discriminated against one person over another. I
mean, the shanks would not be happy to learn that they were required to put in a 6,650 square foot
home if you were under similar circumstances and were allowed to build double that. The reasoning
behind Shank was, okay, the only objective way we can look at what minimum reasonable use is, and
this is what the city of attorney came up with is well, everyone generally accepts that everyone should
be able to at least have two car garage.
(02:11:33):
So we'll say that's the minimum footprint and we put the house on top and they didn't even allow an
overhang in that case because that was considered to be more than that. So the way I have to review
this is well, so it wasn't really based on how close it was to the street or anything. It was like you just
can't get any smaller than a two car garage. So I have to look at your case, Mr. Matson, and see is there
something that really justifies going beyond that? And maybe there is and you raise the point you you're
not really impacting the environmental resources as egregiously as the other. Having said that, on
consistency, I don't think in the Shenk case, I'm pretty sure, again, this is a long time ago. I can't
remember everything way back then, but I don't think anyone brought up that other case that was more
flexible and that very well could have made a decision in that case.
(02:12:21):
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So Shank may have to be considered as an evolution of the case law for the city of Edmonds where they
got stricter over time and we're going to adhere to the last precedent, which is Shank. But I'm going to
look at that. Like I said, the planning commission discussion, that kind of stuff is that gives me insight
into what people are trying to accomplish under Edmonds and their regulations. I've always looked at
variance applications as in Edmonds, as they're going to be stricter there than most because they have a
built out environment, they're trying to preserve their property values. It makes a difference, that
context makes a difference. And that's what all you looking at here in terms of somebody who was
saying, you have to look at Growth Management Act, shoreline Management Act. Well, no, actually
because the regulations have been adopted pursuant to the Growth Management Act and Shoreline
Management Act and found to comply already, we're not going to revisit that.
(02:13:12):
If there's some ambiguity in the code and there's a little ambiguity about what constitutes minimum
reasonable use, you can look to those statutes, but they're not going to provide any guidance as to how
big your house is supposed to be under these particular circumstances. The Growth Management Act
has a goal of protecting private property rights in addition to a goal of protecting the environment. So
that's what reasonable use is all about, is balancing those two considerations. So that's not going to be
any help looking at that. Like I said, the case law too, most of the case law on takings for wetlands, they
were pretty severe reductions in property value from like 88 90%. In that case, the court's always ruled
that's a taking. So unfortunately we don't have something that's more middle of the road where it's just
a 50% devaluation or something. But I can see Mr.
(02:13:57):
Matson, he bought the lot before those regulations came into effect. And if it can't do anything with the
property, that's going to be a substantial reduction in value no matter how you look at it. Like I said, the
rule of thumb, the practice in every Washington city and county I believe, and at least certainly in the 50
jurisdictions I've worked with, is you allow a house to be built. If there's a reasonably sized lot there, and
this is a reasonably sized lot, anything over 4,000 square feet is going to be considered at the very least
something that's a reasonable size. If you can meet the side yards and the front yard setbacks and
everything else with a home, then normally you're going to be allowed to build there. And I will say,
people are saying support the staff recommendation for denial, but the staff recommendation for denial
was only for the size that was proposed.
(02:14:48):
The staff report itself said it would be acceptable to be down at 650 square feet or something. And
that's why my questions to Mr. Sewell was, well, do I need, does staff want me to deny it or approve it
for a smaller size? Because as Mr. Mattson said, you've been through this process for two years, and a
major policy objective of the Growth Management Act and everything else is to avoid these long delays.
And certainly by denying it and making go through a whole new variance application that doesn't help
anybody. It just adds to the cost and makes you go through this for another year or two. So if this can be
approved reasonably with smaller house size, that's probably what I'll do. And that's probably, I don't
know, that's what'll happen. Probably what'll happen here. Like I said, I'm going to look at that case that
the applicant's brought up and look at the special circumstances of this case, see as something bigger is
merited.
(02:15:43):
But I think one way or another, something's going to be allowed to be built here. I just don't know what
that is at this point. So I mean, like I say, the city has no choice. I mean the people opposed to this, it
sounds like a really unique area, then they need to talk to city council in the buying that property. And
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Mr. Metson may very well be within his rights to require $250,000. I'm not an appraiser. I don't know
ultimately what that's worth, but this is, like I said, this is not unusual to cities. Edmonds, like I said, is on
the most restrictive side of any jurisdiction I've seen. But even in Edmonds, I think that because of the
state and federal constitutions, they don't have any choice but to allow development or buy the
property. So that's the choices we're faced with. So anyway, this has been a really good hearing and I
really appreciate that. I mean, it's great information from everybody. Very helpful. I have a lot to
consider. You'll get a very detailed decision on this. I've been working with these issues for 30 years, so I
can pretty much lay out the parameters, how it's done in most jurisdictions. So I think with that, we're
adjourn. Thanks again for all your patience and especially those of you who sat through this whole
hearing, and we'll see you next time. Have a good day.
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