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20110915094208587.pdfBEFORE THE EDMONDS CITY COUNCIL Regarding the Application of: Applications: R-2005-54 and ADB -2005-124 Don Drew, Property, Owner and Ed Lee of the Hotel Group 1. PROCEDURAL HISTORY 1.1 Applications to rezone certain real property located on Sunset Avenue North in the City of Edmonds, Washington were filed by Don Drew, property owner, and Ed Lee of the Hotel Group. Two applications were filed. Application R-2005-54 is an application to rezone the property from a single-family zone (RS -6) to Master Planned Office and Residential (MPOR). This application was consolidated with application ADB -2005-124 for design approval for development of the site. In addition, the application utilized a contract rezone as the method to request approval of a master plan in accordance with the provisions of ECDC 16.77.020(G)(5). Although consolidated for review, each application was considered on its own merits, as either a quasi-judicial or legislative decision respectively. 1.2 This matter came on for hearing before the Edmonds City Council on a closed record review on November 22, 2005. The consolidated applications came to the City Council with a recommendation of approval by the Architectural Design Board with regard to the design review criteria but expressing reservations regarding the rezone. The Planning Board recommended approval of the master plan by contract rezone and rezone of the property to the MPOR category. 1.3 At the outset of the meeting, the Mayor conducted an Appearance of Fairness Doctrine review with Councilmembers. Councilmember Jeffrey Wilson recused himself. Following other challenges noted in the record, no other member of the Council nor the Mayor stepped down. 1.4 Following deliberation, a motion to approve the rezone failed to receive a majority vote on a three/three tie. Because rezones are implemented by ordinance, the City Attorney advised that the Mayor could not vote on an ordinance pursuant to the provisions of RCW 35A.12.100. Therefore, the Mayor did not cast a tiebreaking vote. Ordinances require the affirmative vote of a majority of the Council for passage. RCW 35A.12.120. 1.4.1 The City Attorney advised that a tie vote did not constitute approval of the application, indicating that the status of the decision on the rezone was "over" but requested additional time to research how findings would be adopted pursuant to the requirements of state statute. { WSS622288.DOC;1 /00006.150239/} 1 1.4.2 Following research, the City Attorney recommended that the City Council continue its deliberation in order to clarify the record. He noted to the Council that other motions were available to it such as a motion to deny, a motion for conditioned approval or a motion for remand. Those motions were not considered by the Council and therefore, the record was unclear regarding the final status of the application. 1.5 Following additional notice to the public and parties of record, the City Council continued its deliberation on December 6, 2005. Additional challenges to the participation of the Mayor and Council were made but no councilmember nor the Mayor recused himself. 1.6 A motion to approve failed by a vote of three to three. 1.7 A motion to remand died for a lack of second. 1.8 A motion to deny failed three to three. 1.9 A motion to declare an impasse directing the City Attorney to prepare factual findings reflecting the positions of the various Council factions and the procedural history of this matter eventually passed. 04WOL1013 1121WIS► _ :_► Pursuant to the provisions of ECDC 20.100.030(C) and state law, the City Council is required to announce a decision and to adopt written findings of fact and conclusions of law. Because the City Council was unable to reach a majority decision, the application for rezone fails. As will be noted below, the application for Architectural Design Board approval requires a finding that the design complies with the provisions of the zoning ordinance. Because the application for rezone was not approved, this required finding could not be made and the Architectural Design Board approval failed on that basis, that is, failure to comply with the provisions of the zoning ordinance. These decisions were considered in the Council's quasi- judicial capacity. The decision to approve a contract rezone is a legislative decision and considered in that capacity. 3. CONSOLIDATED FINDINGS OF FACT 3.1 A consolidated application to rezone certain property located in the 100 block of Sunset Avenue North and legally described in the application was made for approval of a contract rezone, master plan approval and design review approval. The subject site consists of four lots located on the west side of Sunset .Avenue North, south of Bell Street. 3.2 ECDC 16.77.020(G)(5) requires adoption of a master plan in conjunction with approval of the rezone. A master plan may be proposed either by a master plan adopted as a comprehensive plan element or through a contract rezone. The applicant proposed a contract rezone. During the closed record review, the applicant's representative indicated that the proposed contract presented by the applicant represented the full extent of the changes and { WSS622288.DOC;1 /00006.150239/} 2 compromise that the applicant was willing to make with its design in order to comply with the recommendations of the Architectural Design Board. 3.3 The Council's consideration of the contract is a legislative decision. 3.4 The consolidated application included a design review proposal for a two-story office and residential building with a basement parking garage. 3.5 The design of the building is generally a pleasing one with creative provisions for landscaping and public spaces. As noted previously, this portion of the consolidated application was considered as a quasi-judicial decision and denied solely because the property was not rezoned to the MPGR zone. Therefore, the application was not in compliance with the current single-family zoning and not in compliance with the current zoning ordinance. 4. A. ALTERNATIVE FINDINGS FOR APPROVAL OF THE CONTRACT REZONE AND REZONE APPLICATION The following findings reflect the rationale stated by those Councilmembers. In order to approve a rezone, the application must comply with the provisions of ECDC 20.40. In addition, because of the unique nature of this master plan ordinance, the application must also comply with the criterion of ECDC 16.77.020 incorporated pursuant to ECDC 20.40.010(B). 4.A.1 Three members of the City Council voted to approve the application to rezone the property. 4.A.2 The criterion of ECDC 20.40.010(A) are met: the proposal complies with the comprehensive plan. The applicant applied for and received a comprehensive plan amendment and the comprehensive plan was amended to specifically incorporate provisions for master plan office and residential properties at the specified location. 4.A.3 The criterion of ECDC 20.40.010(B) is met; the application complies with the zoning ordinance. Analysis of this criterion requires review of both the rezone criterion of ECDC 20.40.020 and of ECDC 16.77.020 relating to the MPOR zone and incorporated master plan. The following findings relate to ECDC 16.77.020: 4.A.3.1 Design. The design of the proposed development is pleasing and its architectural features promote appropriate transition between zones. While the ADB had certain reservations regarding the design as it related to the zoning ordinance, it approved the design. 4.A.3.2 Density. The proposed density of eleven units per acre complies with the maximum set density of 29.2 dwelling units per acre established by ECDC 16.77.020(B) for multi -family development. { WSS622288.DOC;1 /00006.150239/} 3 4.A.3.3 Height. The maximum proposed of 25 feet (as calculated with roof top equipment) is at the maximum and therefore complies with the requirements of ECDC 16.77.020(C). No height reduction as a technique for transition is proposed. 4.A.3.4 Transition. At least three of the techniques set forth in ECDC 16.77.020 must be met. All four of the techniques have been employed. 4.A.3.4.1 Setbacks. The proposed setbacks of ten feet from the street and six feet from adjacent properties with additional setbacks at the upper stories are greater than those provided for the adjacent zones and provide an adequate transition from the more intensively zoned commercial zone to the south to the single-family zoning to the north. 4.A.3.4.2 Building Height and/or Massing. No additional building height limitation is proposed. As the Architectural Design Board notes in its recommendation, the "building undulation and architectural vocabulary" are desirable. Given the lack of specificity regarding building mass, the City Council finds that the architectural modulation and other features (see below) provide for an adequate transition between neighboring zones. 4.A.3.4.3 Lot Coverage. The proposed lot coverage of 66 % provides an adequate transition from the 100 % lot coverage to the south to the 35 % lot coverage to the north. 4.A.3.4.4 Landscaping Features Visible to the Public. The proposed project provides for courtyards and landscaping which helps transition from the commercial area to the south to the single-family area to the north creating an impression of a number of buildings rather than one single building. 4.A.3.4.5 Therefore, the Council concludes that the techniques provide a "logical" transition from the commercial property to the south to the residential property to the north. 4.A.3.4.6 Contract Rezone, paragraph 2B. The contract rezone contains elements sufficient to satisfy the criteria of ECDC 16.77.020. 4.A.4 The following criteria relate to the approval of a rezone under ECDC 20.40.010(B): 4.A.4.1 Surrounding Area. The City Council finds that the primary purpose of the zone is to provide a transition from intensely developed commercial area to the south with 100 % lot coverage and no setbacks to a single family residential property to the north. The proposal satisfies the purpose of transition and therefore protects and buffers the surrounding areas. 4.A.4.2 Changes. Because this proposal implements a change in the City's Comprehensive Plan, no changes in circumstances is required. Save Our Rural Environment v. Snohomish County, 99 Wn.2d 363 (1983). { WSS622288.DOC;1 /00006.150239/} 4 4.A.4.3 Suitability. The property has been undeveloped since 1956 due in large part to its unique location and circumstances. It is located atop a steep bluff immediately adjacent to railroad right-of-way. The impacts from train traffic, its proximity to the adjacent commercial areas and other factors, particularly the long period in which the property has laid undeveloped clearly indicate it is not economically or physically suited for its current designation as single-family residential property. The Council finds that the proposal provides a suitable transition from the commercial area to the residential area, providing adequate protections to both adjacent zones. 4.13. ALTERNATIVE FINDINGS TO DENY Three Councilmembers voted to deny the application. The following alternative findings reflect the rationale stated by these Councilmembers at the hearings. 4.13.1 Comprehensive Plan The criterion of ECDC 20.40.010(A) are met: the proposal complies with the comprehensive plan. The applicant applied for and received a comprehensive plan amendment and the comprehensive plan was amended to specifically incorporate provisions for master plan office and residential properties at the specified location. 4.13.2 Compliance With Zoning Ordinance. 4.13.2.1 Compliance with ECDC 16.77.020. 4.13.2.1.1 Design: The recommendation of the Architectural Design Board regarding design approval was conditioned by the Board's concerns regarding setback and massing. Those comments are reflected in the findings below. 4.13.2.1.2 Density. The proposed maximum density of 11 units per acre meets the limit of 29.3 dwelling units per acre established by ECDC 16.77.020(B) for multi- family projects. 4.B.2.1.3 Height: The proposed maximum height of the project complies with the maximum set for structures in the MPOR zone. It does not, however, offer any limitation in height in order to provide for transition. See Findings 4.B.2.1.4.2 below. 4.13.2.1.4 Transition. The project must provide a transition from the commercial zone to the south to the residential property to the north. Three out of four of the techniques required to be included in the project. The Council concludes that adequate transition techniques are not employed. Therefore, the application fails to meet the requirements of the ordinance. 4.13.2.1.4.1 Setback The setback proposed of six feet at ground level with additional setbacks at the upper floors, while greater than that of the adjacent properties, does not provide a logical transition. The Council finds that the Architectural Design Board's concerns regarding an adequate transition are valid. While the setbacks are greater than (WS S62228 8. DOC; 1 /00006.150239/} 5 those of adjacent zones, the ordinance requires that the transition be judged in terms of the transition which is appropriate to the site location and its relationship to the adjoining street frontage or streetscape. Given the massive commercial building to the south, the long unbroken design of the proposed building, while modulated, is clearly one building and not in scale with the residential streetscape to the north. Therefore, the Council finds that the first technique of utilizing setbacks has not been adequately utilized to promote transition. 4.B.2.1.4.2 Height and/or Massing: Building. No building height limitation has been proposed. While design techniques have been imposed to lessen the impact of the massive structure, the building itself remains massive and unbroken. Therefore, the Council finds that no adequate technique to mitigate massing has been proposed. This conclusion is based upon both the Architectural Design Board's additional recommendation and the plain meaning of the word "massing." As the applicant notes in its report of September 26, 2005 (Attachment 3) the design elements are intended to provide for an "apparent decrease" in the mass of the building. (Emphasis added.) The building remains relatively massive when compared with the neighborhood to the north and unbroken regardless of its modulation. The Council therefore finds that neither height reduction nor adequate massing techniques have been utilized. 4.B.2.1.4.3 Lot Coverage. At 66 %, the lot coverage does not provide a reasonable transition from the 100 % to the south to the 35 % lot coverage to the north. 4.B.2.1.4.4 Landscaping Features Visible to the Public. The project complies with the landscaping feature requirement. Its courtyards, open spaces and decorative landscaping provide a pleasing transition. This, however, is the only one of four techniques which have been adequately employed. 4.13.2.2 Compliance with ECDC 20.40.020. The master plan is proposed to be adopted pursuant to contract rezone. Key elements needed to restrict construction, notably setback and lot coverage, are not specifically set forth in the contract rezone agreement. Rather the contract rezone agreement incorporates the design by reference. The proposed contract rezone's provisions 2A and 2B require only that the final design "substantially conforms" to the design approved in the contract rezone and specifically permits amendments to the design by either the staff or the Architectural Design Board or other code processes. The Councilmembers in favor of denial found that the contract rezone, therefore, does not provide adequate protections to ensure that the contractual commitment of the applicant to the proposed setbacks, design elements and lot coverage in a way which assures that code criteria will be complied with in final development. Further, as written, the contract would permit approval of amendments to a contract rezone without the hearings, procedures and notifications required of a contract rezone by law and ordinance. Therefore, as a legislative decision, the Councilmembers in favor of denial find that the contract rezone does not contain adequate protections and may be amended by a process other than by amendment of the contract rezone process, thereby undercutting compliance with the MPOR zone requirements. The applicant specifically declined to make further changes in its contract proposal. { WSS622288.DOC;1/00006.150239/} 6 4.13.3 Surrounding Area. The primary purpose of the zone is to provide a transition from an intensely developed commercial area to the south with 100 % lot coverage and no setbacks to a single family residential property to the north. The proposal fails to satisfy the purpose of transition and therefore protects and buffers the surrounding areas. 4.13.4 Changes. Because this proposal implements a change in the City's Comprehensive Plan, no changes in circumstances is required. Save Our Rural Environment v. Snohomish County, 99 Wn.2d 363 (1983). 4.13.5 Suitability. The property has been undeveloped since 1956 due in large part to its unique location and circumstances. It is located atop a steep bluff immediately adjacent to railroad right-of-way. The impacts from train traffic, its proximity to the adjacent commercial areas and other factors, particularly the long period in which the property has lain undeveloped clearly indicate it is not economically or physically suited for its current designation as single- family residential property. Councilmembers in favor of denial believe that additional adjustments to the comprehensive plan and/or the current MPOR zone may be in order to provide development opportunities beyond single-family residential use. 5.1 The City Council is required to announce a decision in this matter. With regard to the rezone application, a quasi-judicial decision of the Council, the Council deadlocked three/three and the application therefore failed to receive a majority vote in favor of the application. The application must therefore be deemed to be denied. 5.2 The decision to approve the contract is a legislative decision of the Council. In its legislative capacity, the City Council again deadlocked three to three. The contract rezone is not approved as a legislative decision of the Council. 5.3 The consolidated application for architectural design review is denied as a quasi- judicial decision on the basis that the property was not rezoned to the MPOR zone. The design application, which is required to comply with the zoning district in which it was located, does not therefore comply with that requirement. 5.4 The consolidated applications are accordingly denied. DONE this M01 day of UCAY11kA, r\1 v 1 , 2006. CITY OF EDMONDS By: May r Gar as enson { WSS622288.DOC;1 /00006.150239/} 7 ATTEST/AUTHENTICATED : By: Sandra S. Chase, City Clerk APPROVED AS TO F By: W. Scott Snyder, City Attor { WSS622288.DOC;1 /00006.150239/}