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2019-04-10 Planning Board MinutesCITY OF EDMONDS PLANNING BOARD MINUTES OF REGULAR MEETING April 10, 2019 Chair Cheung called the meeting of the Edmonds Planning Board to order at 7:00 p.m. in the Council Chambers, Public Safety Complex, 250 — 5' Avenue North. BOARD MEMBERS PRESENT Matthew Cheung, Chair Daniel Robles, Vice Chair Todd Cloutier Phil Lovell Nathan Monroe Carreen Nordling Rubenkonig Mike Rosen Conner Bryan, Student Representative BOARD MEMBERS ABSENT Alicia Crank(excused) READING/APPROVAL OF MINUTES STAFF PRESENT Kernen Lien, Environmental Program Manager Jerrie Bevington, Video Recorder Karin Noyes BOARD MEMBER LOVELL MOVED THAT THE MINUTES OF MARCH 13, 2019 BE APPROVED AS AMENDED. BOARD MEMBER ROSEN SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. ANNOUNCEMENT OF AGENDA The agenda was amended to add, "Appointment of Student Representative" before Development Services Director's Report. AUDIENCE COMMENTS No one in the audience indicated a desire to address the Board during this portion of the meeting. APPOINTMENT OF STUDENT REPRESENTATIVE Chair Cheung introduced Conner Bryan as the recommended candidate for the student representative position on the Board. Conner Bryan said he is a sophomore at Edmonds Woodway High School and is interested in the position because he is hoping to enter the field of architecture or career planning someday. He felt participating on the Board would be a great opportunity, and he is excited to participate. VICE CHAIR ROBLES MOVED THAT THE BOARD APPOINT CONNER BRYAN AS THE PLANNING BOARD'S STUDENT REPRESENTATIVE FOR THE FORESEEABLE FUTURE. BOARD MEMBER CLOUTEIR SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. DEVELOPMENT SERVICES DIRECTOR REPORT TO PLANNING BOARD Chair Cheung referred the Board to the Development Services Director's Report that was provided in the packet. Board Member Rosen pointed out that the Planning Board meeting is on April 10' and not April 5'. PUBLIC HEARING: HAINES WHARF COMPREHENSIVE PLAN AMENDMENT PUBLIC HEARING (FILE NO. AMD20180011) Mr. Lien said the subject property is located west of the railroad right-of-way in the tidelands of Puget Sound. The parcels are currently owned by Snohomish County, the City of Edmonds, Jeri Ann Merritt and Meadowdale Marina LLC. The current Comprehensive Plan Land Use Map designates the four parcels as Mixed -Use Commercial (MUC), and the properties are zoned Commercial Waterfront (CW). The proposed amendment would change the land use designation to Open Space (OS) consistent with the property to the south. Landward of the subject parcels, the land use designation is Single -Family Resource (SFR) and the zoning is Single -Family Residential (RS-12 and RS-20). The property to the south is zoned OS. The current amendment before the Board would not change the zoning at this time. Mr. Lien explained that the properties were previously designated as Urban Mixed Use (UMU), but the 2017 Comprehensive Shoreline Master Program (SMP) Update changed the land use designation to Aquatic I. Aquatic I areas are mostly characterized by aquatic ecosystems that have been modified by the Burlington Northern Santa Fe (BNSF) railroad bed fill that covers the intertidal and transitional upland zones along the beach. The beach has been altered by seawalls or larger -rock riprap. These shoreline areas generally exhibit low -intensity development and few overwater structures. In freshwater areas, there may be a significant number of docks and piers serving residential areas. Mr. Lien noted that, historically, there were two structures on the property. A wooden barn -like structure was brought to the site via barge in 1939 and became the original Haines Wharf that was operated as a full -service sport fishing facility for 30 years. Around 1970, the property was sold and a second metal structure was constructed on the site in 1975. The site was also renamed Meadowdale Marina and shifted to primarily being used as boat storage. According to the City's records, there has been no active business license for the site since 2001. The current owner of the Meadowdale Marina site applied for a business license in 2008, but it was never issued. The owner also applied and received a Shoreline Substantial Development Permit in 2005 to reconstruct the existing timber portion of the pier. The permit was issued but it recognized that the structures and uses on the site were nonconforming. Conditions were added to note that, per the City's nonconformance code, moving the structures any distance would require them to be demolished and the new structures would have to comply with the current code. Other conditions noted the project would have to comply with conditions imposed by the Army Corps of Engineers, Washington State Department of Ecology (DOE), Washington State Department of Fish and Wildlife (WSDFW), the Department of Natural Resources (DNR), and the National Marine Fisheries Service (NMFS). From looking at the record, it appears the applicant was not successful in receiving all of the permits needed to go forward with the restoration, and the original wooden structure deteriorated over time and no longer exists. The metal 1975 structure still exists on the site and is connected via a narrow walkway to the shoreline. He provided aerial photographs taken in 2005 and 2017 to illustrate how the conditions on the site have changed, pointing out that the entire wooden structure is gone, the site has been secured, and it is no longer putting debris into the Sound. He noted that the site was also identified in the SMP Restoration Plan as a potential restoration site. Mr. Lien reviewed the criteria that must be considered when considering Comprehensive Plan amendments (ECDC 20.00.050) and shared how the proposal is consistent with each one: 1. The proposed amendment is consistent with the provisions of the Edmonds Comprehensive Plan and is in the public interest. Currently, the site is designated as MUC. While there are no provisions in the Comprehensive Plan specific to that designation, some general goals and policies apply to all commercial areas. For example: • Commercial Development Goal A. Commercial development in Edmonds shall be located to take advantage of its unique locational opportunities while being consistent and compatible with the character of its surrounding Planning Board Minutes April 10, 2019 Page 2 neighborhood. All commercial development should be designed and located so that it is economically feasible to operate a business and provide goods and services to Edmonds. Staff does not believe the current land use designation is compatible with the surrounding neighborhood and there is no safe access to the site. The subject parcels are located in a residential neighborhood with no other commercial activity in the area. There are no arterial or collector streets to the site, which can only be accessed via local streets. Access to the site is further limited due to the presence of the unsignalized railroad crossing and a locked gate preventing access to the marina. Commercial Development Goal A.2. Parcels of land previously planned or zoned for commercial use but which are now or will be identified as unnecessary, or inappropriate for such use by additional analysis, should be reclassified for other uses. The SMP identifies the subject parcels as Aquatic -I, which prohibits commercial and light industrial uses and development, except water -dependent uses and appurtenant structures may be permitted subject to the use and development regulations of the abutting upland shoreline area designation. The two abutting shoreline environments are Urban Railroad and Shoreline Residential, and neither allow commercial uses and development. Therefore, commercial uses would not be permitted on the subject parcels, either. Staff believes the site should be reclassified consistent with this goal. • Open Space Goal A. Open space must be seen as an essential element determining the character and quality of the Edmonds environment, in accordance with the following policies: o A.2. All feasible means should be used to preserve the following open spaces. o A.2.b. Areas which have an abundance of wildlife, particularly where there are linked wildlife corridors or habitats or rare or endangered species. • Open Space Goal B. Edmonds possesses a most unique and valuable quality in its location on Puget Sound. The natural supply of prime recreational open space, particularly beaches and waterfront areas, must be accessible to the public, in accordance with the following policies: o B.1. Edmonds saltwater shorelines and other waterfront areas should receive special consideration in all future acquisition and preservation programs. A number of fish and wildlife species depend on the Edmonds shoreline and adjacent shoreland habitat for either part or all of their life stages. There are 8 species of salmonids that frequent the Edmonds Shoreline, and there are also endangered and threatened species (Puget Sound Chinook, bull trout, Steller sea lion, and Puget Sound Orcas. Open Space Goal B specifically recognizes that the Puget Sound and the City's saltwater shorelines should receive special consideration for preservation. Staff believes the proposed OS designation would be consistent with the goals and policies of the Comprehensive Plan. 2. The proposed amendment would not be detrimental to the public interest, health, safety and welfare of the City. The main purpose of the proposed Comprehensive Plan amendment is to implement the updated SMP that went through an extensive public process before final adoption in 2017. The proposed new land use designation will help preserve and enhance habitat for federally -listed species. At this time, access to the site via an unsignalized railroad crossing is a safety concern, and staff believes the low -intensity OS designation is more appropriate for the site. 3. The proposed amendment would maintain the appropriate balance of land uses within the City. The only other area in the City that has the MUC designation is in the Medical Highway Activity Center near Highway 99. The urban upland areas are more appropriate for commercial uses than Puget Sound tidelands, and there are a lot of other areas in the City with commercial designations. Staff believes that removing a nonconforming site would not impact the appropriate balance of land uses when it comes to commercial development in the City. Planning Board Minutes April 10, 2019 Page 3 4. In case of an amendment to the Comprehensive Policy Plan Map, the subject parcels area physically suitable for the requested land use designations(s) and the anticipated land use development(s), including, but not limited to, access, provisions of utilities, compatibility with adjoining land uses and absence of physical constraints. The site is not physically suitable for the current MUC designation. The landward neighborhood is single-family residential, and the site can only be accessed via local roads. The railroad tracks impose a physical obstacle to the site, and the SMP prohibits commercial uses and development on the subject parcels. Staff feels the proposed OS land use designation is more appropriate and compatible with the adjoining land uses. Mr. Lien concluded his presentation by recommending the Planning Board make a recommendation to the City Council to change the Comprehensive Plan land use designation from Mixed Use Commercial (MUC) to Open Space (OS). Board Member Lovell asked if the remaining metal building on the site is nonconforming, and Mr. Lien answered yes. He explained that the SMP no longer allows overwater structures. Board Member Monroe asked what changing the designation would do since the existing structure and use are already nonconforming. Mr. Lien explained that all of the City's plans, policies and zoning should be consistent with each other, and this is the first step in the process to make the City's Comprehensive Plan consistent with the currently adopted SMP. Next year, the City will review zoning along the waterfront, including zoning for the subject parcels. The City's code has a Marina Resource (MR) zone, but the zoning map does not have any MR zones associated with it. He noted that, currently, most of the City's tidelands are zoned RSW-12, which is the zoning that applies to Lake Ballinger but doesn't make any sense for the tidelands. However, he emphasized that the current proposal is a Comprehensive Plan amendment and not a zoning amendment. Board Member Monroe summarized that the amendment is more of a process change, and development potential on the subject parcels would not change. Board Member Monroe asked what would happen after both the Comprehensive Plan and the Zoning Map have been updated to be consistent with the SMP. Mr. Lien said the wooden structure has been removed and no longer dumps debris into Puget Sound. The City would not force the property owner to do anything with the property, and the existing structure will remain a nonconforming structure, as it has for years. The proposed amendment would not change what the property owner is allowed to do on the site. Board Member Rosen asked if the proposed amendment would have any impact on the current property owners, and Mr. Lien answered that the Comprehensive Plan amendment would not change what the property owners are allowed to do on the site. He explained that any development would have to comply with both the zoning and the SMP. While the zone would remain CW until the shoreline is rezoned, the existing use is still nonconforming based on the SMP, and the SMP rules what can be done on the site. Guy Mansfield, Edmonds, disclosed that he lives close by the subject parcels and has some personal preferences and opinions. However, he will restrict his comments to objective matters. He reviewed the April 5`E' document from the Planning Commission Advisory Report and found it does a good job of laying out the facts. Specifically, the current structure is nonconforming. It has been nonconforming in the past and will be nonconforming in the future. It seems like it would be unfeasible, both in terms of permitting and expenses, to do anything with the property. It is very clear that the SMP specifically prohibits commercial use of the properties because they abut both residential and the railroad property. He also believes that changing the Comprehensive Plan designation to OS is the right thing to do to be consistent with the SMP. He observed that there is a real issue with commercial traffic to the structures. Specifically, all traffic going to the structure would have to go down an extremely quiet street that is immediately adjacent to the park. Everyday, he sees children walking on that street as they wander out of the park. He said it seems evident that opening up access to the subject parcels would be an additional disruption to rail traffic. He concluded that the proposed change seems to clearly provide a greater value to the community, more safety for children visiting the park, and better protection for Puget Sound and the environment. Vice Chair Robles asked what incentive there is for the property owner to remove the structure rather than letting it continue to deteriorate and become an eyesore. If the neighbors were to petition for its removal, he asked if they would be more likely Planning Board Minutes April 10, 2019 Page 4 to prevail under the proposed Comprehensive Plan designation and zoning. Mr. Lien said the property is already identified in the SMP as a potential restoration site, but the City cannot force restoration. If someone wants to use the site as restoration for another project along Puget Sound, they would have to purchase the property from the property owner. Over the years, the DNR and DOE have worked with the property owner to shore up the structures. Since the wood structure has basically deteriorated away, it no longer dumps debris into the Sound during major storms. But there is still an opportunity for restoration, as removing piers and underwater structures is better for the environment. Again, he said it is not something the City can force on the property owner. Board Member Monroe asked if the proposed change would make it more likely that the remaining elements of the wood structure would be removed. Again, Mr. Lien answered that he does not know if the current or proposed land use designation would make it more or less likely. The property has already been identified as a potential restoration site, regardless of the land use designation. Board Member Lovell asked if the BNSF trains blast their horns as they travel through the area. Mr. Lien said no, the crossing is gated and locked now, and BNSF no longer recognizes it as a crossing. Access over the tracks to the shoreline would require a person to go over the fence. Chair Cheung asked if there have been any issues with kids and homeless people hanging out on the existing structure. Mr. Lien answered that he is not aware of any calls related to vandalism. Vladan Milosavljevic, General Manager of Meadowdale Marina, advised that the original wooden structure was brought to the site from Sequim via barge in 1939 and was previously used as a cannery. In 1939, the marina rented out plywood boats for people to use in Puget Sound to fish, etc. During World War Il, Mr. Haines offered the marina for war use. He also offered the War Department his boats and manpower to transport the soldiers from Haines Wharf to Whidbey Island. Later on, the facility was used as a Coast Guard station, and then it was used for renting and storing boats. The property has been transferred from Laebugten Boat House, Haines Wharf and then Meadowdale Marina, but the same people owned the property until he purchased it. The metal building was built in 1975 to expand the business and also provide a fuel station for boats. The facility was successful through the mid-80s and generated revenue for the City. When he purchased the property, he decided to remove the fuel tanks and obtained a permit from the Fire Marshal to do so. Mr. Milosavljevic continued that in 2002-2003 he started plans to restore the wood structure back to its original use. In 2004-2005 he obtained a hydraulics permit, as well as permits from the WSDFW, the Army Corps, and DOE. Later on, he also received a Shoreline Substantial Development Permit from the City of Edmonds. In 2007-2008 he lined up people with funds to contribute for the project, and everything was ready to go. He applied for a building permit from the City to replace the 45,000 square foot wood pier with steel piling and a concrete deck. He paid the City $25,000 for the plans to be reviewed and a permit to be issued. The building permit was ready for pick up when the economic recession hit and his investors got scared, and lost the house he built next door that he was planning to live in while he operated the marina. Mr. Milosavljevic said he once again applied for a building permit five years ago. He obtained a permit from the WSDFW and was ready to submit for permits from the Army Corps of Engineers, the DOE and other government agencies, but times were still tough financially. Now he has identified a potential developer, but he has been unable to secure a loan for the project. The current SMP designation limits what can be done on the property, and this has created a heavy financial burden for him. The property is no longer worth as much. The SMP was changed so the City can provide a greenbelt along the waterfront. He questioned how the City could restore the beautiful shoreline unless they get the train tracks off the coastline. He encouraged the Board Members to deny the nonsensical Comprehensive Plan amendment. He said the railroad pollutes the coastline more than Meadowdale Marina or nearly everything else. Mr. Milosavljevic said that, according to the City Planner, he hasn't done much with the property. However, he has a file full of correspondence, permits, applications and approvals. He has been through the process before, when the Hearing Examiner determined that he could not rebuild the wooden structure if it was torn down, but that is not the case. It cost him money each time he has to defend his proposal to the City of Edmonds. If the proposed amendment is adopted, he will once again have to go before the Hearing Examiner to fight it out. He strongly urged the Board to recommend denial of the proposed amendment. His intention is to work with his investors to rebuild the wooden structure and clean up the metal structure to become beautiful and a benefit for everyone. Planning Board Minutes April 10, 2019 Page 5 Mr. Milosavljevic explained that the BNSF crossing near his property was established in 1910, and it will cost him between $25,000 and $30,000 to restore the crossing with arms, signals, etc. Safety is very important to him, and when the time comes, he will pay the fee and make the appropriate upgrades. Vice Chair Robles voiced concern that staff is telling the Board that the proposed amendment would have no impact on the property owner, but the property owner is indicating that his property would be significantly impacted. He felt that a lot of issues need to be ironed out before the Board can forward a recommendation to the City Council. Chair Cheung agreed that there needs to be more discussion about how the proposed change might impact the property owners. He asked if there are steps in place for Mr. Milosavljevic to implement his plan. Mr. Lien said it is hard to answer without seeing an actual application. However, he explained that, in addition to the structure being nonconforming, the use is nonconforming, as well. He read from ECDC 20.470.010.D: "If a nonconforming use is discontinued for six consecutive months or twelve months during any two-year period, any subsequent use shall be conforming." During his presentation, he noted that there has not been a business license on the site since 2001. While the property owner applied for a business license in 2008, it was never issued, in part, because of the nonconforming aspect of the site. In his opinion, the way the SMP is spelled out, developing the site would be a very heavy lift, if not impossible. Board Member Monroe asked if the City has sought feedback from a real estate appraiser to determine what the impact of the proposed amendment would be. Mr. Lien answered no. Board Member Monroe said it would be interesting to know the potential damage, but it would probably be difficult to figure out. Board Member Monroe summarized that, currently, the City's position is that nothing can happen on the property based on the current MUC designation. The proposed amendment would definitely make it so the property owner could not do anything else on the property and remove all of the ambiguity out of it. Other than a more streamlined SMP process, there is no real tangible benefit to the amendment. Mr. Lien responded that the amendment is intended to address a consistency issue. Board Member Monroe commented that consistency makes sense from the City's point of view, but the property owner wants to keep fighting for his right to develop the site and there is a process for that to occur. He questioned why the City wants to change the land use designation when the existing designation works just as well. Mr. Lien again said it is to make sure that all the plans, policies and zoning are consistent. Chair Cheung observed that the property owner is clearly still fighting to redevelop the property, and he questioned if Mr. Milosavljevic spoke up when the SMP was changed in 2017. He said he is also concerned about the benefits of the proposed amendment other than for consistency. If there was absolutely no objection to the amendment, he would support it in order to provide consistency. But he has some reservations based on the property owner's concerns. Board Member Lovell cautioned the Board to look at all of the reasons outlined in the Staff Report with respect to consistency for the use of this particular property. It is evident from the Zoning and Comprehensive Plan maps that the area in question is essentially a dead-end, single-family residential neighborhood. If they are thinking they want to potentially allow the continuation of the existing use or some alternative use other than single-family residential, he does not think it will ever be approved. If they were talking about the feasibility of a real project occurring on the subject parcels, he is not so sure they would be hearing the same discussion. It's also evident from the history that nothing has happened on the site for years other than removal of the wood that continues to pollute Puget Sound. There is an acknowledgement and understanding that, for years and years, the current structures and use have been nonconforming. He said he does not think they would be doing the City justice by putting off the land use change in anticipation of something happening in the future. Chair Cheung said his understanding is that nothing can happen on the site based on the existing land use designation. The amendment is simply an administrative change to make the Comprehensive Plan consistent with the SMP. The property owner would not be permitted to restore or redevelop the site in either case. Board Member Rubenkonig suggested that there are several issues being discussed, and some might be outside of the Board's purview. At their last meeting, Mr. Lien carefully explained the status of the owner in terms of having forfeited the ability to continue the nonconforming use of the business by failing to meet certain criteria throughout the years. If the property owner had kept his business license and permits up to date, he could have continued to enjoy his nonconforming use. However, it is outside of the Board's purview to speak to that issue. Mr. Lien once again referred to the nonconforming use provision and Planning Board Minutes April 10, 2019 Page 6 explained that if a nonconforming use is discontinued for six consecutive months or twelve months during any two-year period, any subsequent use must be conforming. He explained that, from the property owner's business records, there has not been a use at the site since 2001. Board Member Rubenkonig acknowledged that this is an uncomfortable situation because the property owner would like to be able to implement his vision for the property. However, there are other factors that must be considered. The Board needs to be very clear about the impact of this nonconforming use. He could have enjoyed it through the years and been using it right now, except the licenses and permits to do so were not kept current. Mr. Lien clarified that the property has not been used as a commercial site for years. Nonconforming uses can continue, but they cannot be expanded in any way. There is no record of a commercial use, nonconforming or otherwise, at this site since at least 2001. Board Member Rubenkonig asked how the property owner would challenge the City's interpretation of the nonconforming code. Mr. Lien said the SMP has its own nonconforming code, and ECDC 20.70.010 defines what a nonconforming use is. Nonconforming uses are "shoreline uses which were lawfully established prior to the effective date of the Shoreline Management Act or this master program, or amendments thereto, but which do not conform to the presence regulations or standards of this master program or the policies of the act. " He explained that the Shoreline Management Act (SMA) was passed by the legislature and approved by the voters in 1971, and the Haines Wharf wooden structure was in place long before that time. The metal structure was constructed in 1974-1975, shortly after the SMA was adopted. He doesn't know when the City had its first SMP, but when the permitting went through in 2005, the City had last updated its SMP in 2000. The site has been nonconforming at least since 2000, and from what he can tell, there hasn't been a continued use at the site at least since 2001. Board Member Rubenkonig suggested that is the point that much is hanging off of, that the use wasn't continued. She asked where the property owner would go to get legal redress. Mr. Lien said staff would work with the City Attorney, but the property owner would have to demonstrate that there has been a commercial use at the site continued since 2001. This same question came up when he was reviewing the file in 2008 when the property owner applied for a business license. Board Member Monroe asked if the property owner would have the ability to sue under the Hearing Examiner. Mr. Lien said the Comprehensive Plan amendment would have to be appealed to the Growth Management Hearings Board and not to the Hearing Examiner. Barring the proposed amendment, Board Member Monroe asked what recourse the property owner would have if the City denied his permit application. Mr. Lien said it would depend on what the permit was for. Generally, permit decision would be issued by the Hearing Examiner, and that decision would be appealable to the Shoreline Hearings Board. Board Member Monroe summarized that, as long as the property is designated as MUC, the property owner would have some legal recourse to sue for his rights. He asked if the property owner would retain those same rights if the designation is changed to OS. Mr. Lien emphasized that the proposed Comprehensive Plan amendment would not change the zoning. The current Commercial Waterfront (CW) zoning would remain in place until the City looks at and adjusts the zones along the tidelands. Board Member Monroe pointed out that the City's intent is to change the zoning following the Comprehensive Plan amendment. Mr. Lien answered that the property owner would have the right to sue, regardless of the zoning and Comprehensive Plan designation, if the argument is that the nonconforming use should be allowed to continue. Board Member Monroe asked if the property owner would have less opportunity or a different avenue to sue if the land use and zoning are changed. Mr. Lien said it would depend on what the application is for. Again, he said the structures and uses are considered nonconforming under the existing SMP, Comprehensive Plan and zoning. Even if the Comprehensive Plan designation is changed, the structures and uses will still be nonconforming, and the proposed Comprehensive Plan amendment and potential rezone will not change the situation if the structures and uses are found to be nonconforming uses that are allowed to continue. Board Member Cloutier cautioned that the current proposal is a Comprehensive Plan amendment, and there is no proposal to rezone the property at this time. Board Member Monroe felt this approach was a little disingenuous since they know that a rezone proposal will be forthcoming. Board Member Monroe asked if redevelopment of the site in the neighborhood of $5 to $10 million would trigger an Environmental Impact Statement (EIS). Mr. Lien said he would have to see a proposal before making that determination. Planning Board Minutes April 10, 2019 Page 7 Board Member Monroe asked if a traffic analysis would be required as part of the EIS. Mr. Lien responded that, regardless of whether an EIS is required or not, the property owner would likely be required to complete a traffic analysis. However, without a proposal, he cannot say whether or not traffic improvements would be required. At the request of Mr. Milosavljevic, Mr. Lien read a letter dated March 26, 2009 from Mike Clugston, Senior Planner, into the record: "After extensive review of your existing permit approval for Meadowdale Marina Project (SM0594) and the applicable city and state codes, the City has determined that the timeline for your Shoreline Substantial Development Permit is not in danger of expiring. In fact, the timeline for Shoreline Substantial Development Permits has yet to begin according to RCW 90.58.153.4, which states `the permit time periods do not include the time during which a use or activity was not actually pursued due to the pendency of administrative appeals or legal actions or due to the need to obtain any other government permit and approvals for the development that authorize the development to proceed, including all reasonable related administrative or legal actions on any such permit or approvals. Your Shoreline Permit timeline has not started because you are still seeking any other government permits that authorize marina development to proceed. In this case, two building permits, 20080693 and 20080694, as well as a City business license. That said, we are still awaiting a response to your request for additional information with which to complete our review of the above reference permits. If we do not receive the requested information, the building permits will expire on February 12, 2010, which is 18 months from the date the original application for the permits (August 8, 2008). The fee you submitted for your extension letter will be refunded." Mr. Milosavljevic said he never received a refund for the permit fees, so the City is still obligated to the permit application. Mr. Lien responded that the building permits that were referenced in the letter have expired, and he will research whether or not the fee was refunded. Mr. Lien said that, with the SMP update, there was also a change with regard to timelines and the specific provision referenced in the letter. A section was added (ECDC 24.80.140) to outline time requirements for shoreline permits. It reads that, `Authorization to conduct development activities pursuant to a Shoreline Permit issued by the City of Edmonds shall expire five years after the date of issuance provided the activity was not pursued due to impendency of administrative appeals or legal action. " He summarized that, if it takes more than five years to get all the required permits, the Shoreline approval goes away. With regards to the 2009 letter, there are questions as to whether or not the applicant continued to pursue the other permits, and that would be a legal matter that would come up again should the property owner reapply. Board Member Rubenkonig commented that the status of the nonconforming structure and use has nothing to do with the proposed amendment to change the land use designation to OS. The property owner could still seek recourse for his standing as having an active, nonconforming use and/or structure. Mr. Lien agreed that the nonconforming status is separate from the proposed amendment. Mr. Milosavljevic submitted an additional document for the record. Mr. Lien said the document is the hydraulic project approval from the WSDFW. The issue date was October 29, 2012, and the project expiration date was October 28, 2017. The project name was Meadowdale Marine Upgrades, and the project description was to replace the timber pier, approach trestle and timber piles with concrete/steel construction. The document also notes a 5-year Hydraulic Project Approval (11PA) at the request of Rachel Villa on August 18, 2011, which supersedes all other previous HPA's. However, this most recent HPA expired on August 28, 2017, so the permit is no longer valid. Mr. Milosavljevic commented that according to the documentation he submitted, the Shoreline Substantial Development Permit is still valid. These other documents extended the expiration date. Chair Cheung said it does not appear that the property owner's rights would be impacted by the proposed amendment. The only way he can actually move forward with his proposal is by bringing a lawsuit. Mr. Lien said the property owner is making arguments under the nonconforming code. The property is nonconforming now, and it will remain nonconforming regardless of the land use designation. Chair Cheung said the property owner will not be able to apply for any permits through the City, and the only way for him to move his project forward is through legal action. Regardless of whether or not Planning Board Minutes April 10, 2019 Page 8 the Comprehensive Plan is amended to be consistent with the SMP, the property owners remedy or course of action will remain the same. Board Member Monroe said his understanding is that, as long as the property is designated as MUC, the property owner can apply for a permit. It will get denied, and then he can go through the appeal process. If the designation is changed to OS, the property owner would not have the ability to even apply for a permit. Mr. Lien said that is incorrect. He does not know what the property owner's proposal will be, but given that the site is nonconforming and has been nonconforming since 2001, his approach would remain the same regardless of the zoning or Comprehensive Plan change. The structures and uses are nonconforming under the current zoning and SMP, and have been at least since 2000. That will not change with any action the Board takes tonight or if the City Council ultimately adopts the amendment. Board Member Monroe asked if there is any chance the property owner would be able to tear down the existing facility and rebuild. Mr. Lien answered no. As per the nonconforming code, the building would be destroyed more than 75% of the replacement value. If the building is removed, it could not be reconstructed. BOARD MEMBER LOVELL MOVED THAT THE BOARD RECOMMEND TO THE CITY COUNCIL TO APPROVE THE COMPREHENSIVE PLAN AMENDMENT (FILE NUMBER AMD20180011) FROM MIXED USE COMMERCIAL TO OPEN SPACE FOR THE WATERFRONT AREA CURRENTLY DESIGNATED AS HAINES WHARF IN ACCORDANCE WITH THE PLANNING DIVISION'S BRIEFING MEMORANDUM DATED APRIL 10, 2019, WITH ITS INCLUDED FINDINGS AND CONCLUSIONS. BOARD MEMBER CLOUTIER SECONDED THE MOTION. Board Member Monroe said he does not necessarily like the marina in its current location, and he can see why it makes sense for it to not be there. However, he does not think this is the right avenue by which to cut off that use of the property. They need to allow the property owner to go through the entire application process in order to say for certain that he would not lose any of his use. He has sympathy for the property owner when the government changed the rules and the property is worth less, and the property owner needs to maintain his full set of resources. Board Member Rubenkonig said the property's nonconformance has no bearing on the current issue before the Board. The property owner would still be able to pursue the nonconforming use of the property on his own, regardless of what the Comprehensive Plan designation is. The property will always be nonconforming, and the owner will have to meet the criteria for nonconformance in order to obtain the necessary permits. However, it is outside of the Board's purview to address that issue and staff cannot respond to what might happen in the future when there is no application to refer to. The property owner can pursue whatever he wants to do with his property, and the amendment would not make any difference. She said she expects it will be difficult to support that he has had an ongoing nonconforming use of the property and the structure, but that is the legal route that he must take and a separate issue than what is before the Board at this time. Once again, Board Member Robles voiced concern that there are too many unknowns for the Board to make a recommendation on the proposed amendment at this time. They do not know for sure whether the proposed amendment will impact the property owner or not. There is too much unsettled on both sides, and he cannot support the amendment. Board Member Cloutier pointed out that the Comprehensive Plan does not have any standing in the property owner's argument related to use. Zoning is what determines his use. When a zoning change is proposed, it must refer to and align with the Comprehensive Plan. The SMP update has already changed the property and its allowed uses. The current proposal is to change the Comprehensive Plan, which does not change the zoning or anything that has to do with his use. While zoning will be the likely next step, it is not something the Board should be focusing on at this time. He reminded the Board to focus on the four criteria that must considered when reviewing Comprehensive Plan amendments. In his mind, the proposal meets all of the criteria. For clarity, he reviewed the criteria again: 1. The proposed amendment is consistent with the provisions of the Edmonds Comprehensive Plan and is in the public interest. 2. The proposed amendment would not be detrimental to the public interest, health, safety and welfare of the City. 3. The proposed amendment would maintain the appropriate balance of land uses within the City. Planning Board Minutes April 10, 2019 Page 9 4. In case of an amendment to the Comprehensive Policy Plan Map, the subject parcels area physically suitable for the requested land use designations(s) and the anticipated land use development(s), including, but not limited to, access, provisions of utilities, compatibility with adjoining land uses and absence of physical constraints. Board Member Rubenkonig said there appears to still be confusion around the nonconforming use. She asked Mr. Lien to explained again how the nonconforming use would still be present with any future new zone, and the property owner's standing will not change. Mr. Lien said he is hesitant to say that the nonconforming use would still be present, given that if a nonconforming use is discontinued for six months or twelve months over a two-year period, it would not longer be considered a nonconforming use. From what he has seen in the record, a nonconforming structure is still present, but he questions whether a nonconforming use is still present. However, the Comprehensive Plan designation and zoning would have no bearing on the nonconforming aspect of the property. It is nonconforming now, has been nonconforming, and will continue to be nonconforming. Chair Cheung summarized that the Board's responsibility is to make sure the Comprehensive Plan is consistent with the SMP, which is the intent of the proposed amendment. The property owner's rights would not be impacted, and his ability to sue would remain the same. Board Member Monroe asked what criteria will be considered when a rezone proposal comes forward for the property next year. Will they be required to address potential impacts to the property owner? Mr. Lien reviewed the rezone criteria outlined in ECDC 20.40.010 as follows: A. Comprehensive Plan. Whether the proposal is consistent with the comprehensive plan; B. Zoning Ordinance. Whether the proposal is consistent with the purposes of the zoning ordinance, and whether the proposal is consistent with the purposes of the proposed zone district; C. Surrounding Area. The relationship of the proposed zoning change to the existing land uses and zoning of surrounding or nearby property; D. Changes. Whether there has been sufficient change in the character of the immediate or surrounding area or in city policy to justify the rezone; E. Suitability. Whether the property is economically and physically suitable for the uses allowed under the existing zoning, and under the proposed zoning. One factor could be the length of time the property has remained undeveloped compared to the surrounding area, and parcels elsewhere with the same zoning; F. Value. The relative gain to the public health, safety and welfare compared to the potential increase or decrease in value to the property owners. Board Member Monroe said he can support the proposed amendment based on the clarification provided by staff and Board Members and given that the Board will have another discussion about value when a rezone is brought forward. THE MOTION CARRIED 6-1, WITH BOARD MEMBER ROBLES VOTING IN OPPOSITION. REVIEW OF EXTENDED AGENDA Chair Cheung reviewed that the April 241h agenda will include a Vision 2050 Update, a presentation on options to address the number of units for multifamily in existing multifamily, and a public hearing on an application for a street vacation map amendment. The May 81h agenda will include a legislative update, as well as a public hearing on potential code amendments to ECDC 17.40.020 to address nonconformance of existing multifamily development. Mr. Lien explained that the City has an official street map that designates future rights -of -way, and the street vacation application involves removing the connection from 80`h Avenue down to Olympic View Drive. He also explained that options for addressing the number of units for multifamily in existing multifamily were presented to the City Council's Parks, Planning and Public Works Committee on April 9`h. The nonconforming code says that if a nonconforming structure is destroyed to more than 75% of the replacement value, it shall be reconstructed in full conformance with the Development Code, and that includes density. At least 20 multifamily developments have been identified that exceed the density allowed by the zone in which they are located. If they were to burn down, they could only be reconstructed to the current density. Condominium owners are having trouble selling their units because banks won't fund a mortgage if there is a possibility that Planning Board Minutes April 10, 2019 Page 10 the unit would not be allowed to be reconstructed. The City Council forwarded the issue to the full City Council. Pending direction from the City Council, the issue could be a topic of discussion at the Board's next meeting. PLANNING BOARD CHAIR COMMENTS Chair Cheung reported that he and Vice Chair Robles will present the Planning Board Update to the City Council on May 7'. He also reported that Board Member Lovell has submitted his resignation from the Board, but has agreed to stay on until a replacement has been identified. He announced that a joint Planning Board/City Council meeting is scheduled for June 18' and the intent is to discuss the major topics from the Planning Board retreat, including Housing and interactions/communications with the City Council. He asked the Board Members to share thoughts on a potential third topic. Chair Cheung said that, at the Board's next meeting, the Development Services Director will review the Board's roles, responsibilities and limitations and provide ideas for how the Board can better assist the staff. PLANNING BOARD MEMBER COMMENTS Board Member Rubenkonig commented that every time a difficult subject comes before the Board, she feels it is important for them to clearly define the planning terms that are used and make the discussion user friendly so that when it is presented to the City Council the Board's language is readily understood. Board Member Lovell reported on his attendance at the March 20' Economic Development Commission meeting where they elected new officers: Mary Monroe as Chair and Kevin Harris as Vice Chair. They received updates from two of the three work groups, and a formal memorandum was discussed and approved to advise the City Council of the three work group activities: • The Development Feasibility Work Group will be working to further develop the City's designation as the first Creative District in the State. • The Arts and Tourism Work Group is working to create an app for smart phones to provide information about what is available in the City to people who are waiting in line for the ferry. • The Business Attraction Work Group is working to set up a health care district to emphasize calling new businesses to join the health care district area by Highway 99. Board Member Lovell further reported that the Commission had a roundtable discussion covering a variety of input from other Boards and Commissions. It was reported that the Rotary Club is hard at work planning a wine and beer festival, as well as the annual July 4" Celebration. The Port of Edmonds reported that the business that runs the whale watching tours is looking at the last available piece of Port property with the potential of building their headquarters there. He said he plans to attend their next meeting on April 17" Board Member Rubenkonig said she had a discussion with Diane Cunningham about what happens when Board Members attend the same campaign gatherings during the upcoming elections. She was advised that there should not be any issues with the Open Public Meetings Act requirements, as long as Board Members refrain from discussing Planning Board issues. F IXII"1 IU I Do�I 1 The Board meeting was adjourned at 8:45 p.m. Planning Board Minutes April 10, 2019 Page 11