PLN20120033 Hearing Examiner Decision.pdfIBC. 1890
CITY OF EDMONDS
DAVE EARLING
MAYOR
121 5th AVENUE NORTH • EDMONDS, WA 98020 • (425) 771-0220 • fax (42$
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,771-0221u�
www.edmondswa.gov ,/J�,,,
HEARING EXAMINER
BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
RE: Tom and Lin Hillman
PLN20120033
Phil Olbrechts, Hearing Examiner
FIND NGS OF FACT, CONCLUSIONS
OF LAW AND FINAL IDECISIOI`\\1
INTRODUCTION
The applicants are requesting a street setback variance, a side yard variance and a critical
areas reasonable use variance request to construct a single-family home at 1139 Sierra Place.
The setback variances are necessary to provide separation from an on -site wetland and the
reasonable use variance is necessary because it is not possible to build a single-family home
on the subject lot without encroaching into the wetland buffer. In the street setback
variance request, the applicants seek to reduce the street setback from 25 feet to 12 feet for
placement of the residence. In the side yard variance request, the applicants seek to reduce a
side yard setback from 10 to 3 feet for placement of a retaining wall. The reasonable use
variance involves a request to building within the wetland buffer as well as the wetland itself.
The setback variances are approved. The reasonable use variance is approved for the
encroachment within the wetland buffer.
The conditions of approval require further staff investigation for authorization of the
encroachment into the wetland itself. There is insufficient evidence in the record to
determine if the proposal has been designed to minimize wetland encroachments as required
by the variance criteria. Direct encroachment into a wetland, as opposed to its buffers,
potentially involves a significant impairment of wetland functions. Further information is
needed to determine whether the direct encroachment of this proposal should or can be
avoided.
At the hearing and in the written comments there were numerous concerns raised by
neighbors about stormwater impacts. There is no question that the vicinity of the project has
some major stormwater problems. However, the City's regulations prohibit any increases in
stormwater discharge to neighboring properties and no evidence was presented that these
regulations would not adequately protect the neighbors. In order to ensure that the
stormwater regulations do in fact prevent any increase in stormwater discharge, the
conditions of approval require a three year
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monitoring plan. The neighbors also raised several technical stormwater design
issues that are pertinent to engineering review of the building permit application.
The conditions of review require City engineering staff to consider those comments in
their review of stormwater design.
Staff Presentation
Ms. Jennifer Machuga, associate planner, stated the site is at 1139 Sierra Place. The
site is currently a vacant lot in a single-family residential RS 12 zone, and the property
owners Tom and Lin Hillman are proposing to construct a new single-family residence
on the site. As seen in the attachments in the staff report, development of the site is
very limited by the existing critical areas on the property. There is a category three
wetland across the middle of the property, and the minimum required fifty -foot
wetland buffers cover the majority of the project site. There is also a non -fish bearing
type NE stream on the northern side of the site, and the minimum required fifty -foot
stream buffer overlaps the wetland buffers. There is also an erosion hazard area
located on the eastern portion of the site. Due to the location of these critical areas
throughout much of the site, development of the site is really impossible without some
impact to these critical areas and their buffers.
Ms. Machuga said the city code has a provision for when a site is so encumbered by
critical areas and their associated buffers that it is not possible to develop the site in
such a way that it complies with the city critical area codes. This provision, the
Critical Areas Reasonable Use Variance, allows for exceptions to the requirements to
the critical areas code in order to allow the development of the site in such a way that
has the least possible impact on the critical areas while still allowing the applicant
reasonable use of that property. The applicants, the Hillmans, are requesting Critical
Areas Reasonable Use Variance because they feel that the strict application of the
critical area codes would deny all reasonable economic use of the property. The
applicant is also requesting a Setback Variance to reduce the minimum required street
setback from twenty-five feet to twelve feet for the residents and to reduce that street
setback to three feet for retaining wall. They have also proposed to reduce the
minimum required western side setback from ten feet to three feet for retaining wall
while the house would comply with the side setback requirements. These proposals
have been consolidated onto one application and are being reviewed as a Type 3B
decision.
Ms. Machuga testified that the applicant has provided project plans, a wetland report,
and a geotechnical report, all of which are included as attachments to the staff report.
There was a previous critical areas variance that was approved on this site for the
previous owner, and that variance authorized the home to be constructed on the
eastern side of the site, allowing the road to cut through the wetland area. It was found,
however, that locating the house on the western side of the site had less impact on the
critical areas than going with what was previously approved. Therefore, the proposed
Variance p. 2 Findings, Conclusions and Decision
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residence would be in the south west side of the site. The proposed building on the site
would be 2,174 square feet and would include a 570 square feet garage, almost 1,600
square feet living space on the first floor, and a little over 1,000 square feet living
space on the second floor. In order for the Setback Variance to be approved, the
Hearing Examiner must find that all six required criteria in ECDC 20.85.010 are met.
These criteria include that the site must have special circumstances that would deprive
the owner of use lights and privileges permitted to other properties in the vicinity, that
the approval of the variance would not grant a special privilege, that the approval of
the variance would be consistent with the comprehensive plan and with the zoning
ordinance, that the variance would not be significantly detrimental to public health,
safety, and welfare, and that the variance is the minimum necessary to allow the
property owner rights enjoyed by other property owners in the vicinity. This is
discussed in detail in the staff report.
Ms. Machuga stated that the request for this setback variance appears to be consistent
with the required criteria, because the purpose of the requested setback variances is to
pull the house further to the south-western corner of the site for minimal impact on the
critical areas. The size of the proposed house appears consistent with the size of the
neighbouring houses. The requested variances are consistent with the comprehensive
plan and with zoning ordinances. It does not appear that reducing the setbacks for
construction of the home would be detrimental, and it appears that these are the
minimum variances necessary to construct a home comparable to other homes in the
neighbourhood. For the Critical Areas variance to be approved, the Hearing Examiner
must find that the proposal is consistent with the criteria in ECDC 23.40.210 A2 and
B. These criteria include that the application of the critical areas regulations would
deny all reasonable economic use of the property, that no other reasonable economic
use of the property would have less impact on the critical areas, that the proposed
impact on the critical areas is the minimum necessary, that there are special conditions
on the property, that the inability to derive reasonable economic use from the property
is not the fault of the applicant, that the variance would not grant the applicant any
special privilege, that the proposal does not pose an unreasonable threat to public
health, safety, and welfare, that the proposal minimizes net loss of critical areas
function and volume, that the proposal is consistent with all other applicable
regulations and standards, and that the approval is based on best available science. The
staff report goes into detail analysing these required criteria and determined they are
met. The site has special circumstances due to the location of the critical areas, and
the presence of these critical areas is not due to any actions of the property owner. The
size of the proposed home is consistent with the size of the neighbouring homes, thus
the allowing the variance would not be granting a special privilege, and the mitigation
plan detailed in the wetland report is based on the best available science and includes
measures to enhance the wetland, the stream, and the buffer areas.
Ms. Machuga noted that on February 26, 2013 the city issued a determination of non -
significance concerning the storm water system, and the period for comments and
appeals ended on March 12, 2013. No appeals were received. The city provided public
notice consistent with the requirements for ECDC 20.03, and they received a few
Variance p. 3 Findings, Conclusions and Decision
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public comments. One major concern brought up in the comments dealt with drainage.
The engineering division found that the proposed project is compliant with the
wetland report, but they will conduct a full review of the storm water system during
the building permit application review.
The attachments from the staff report and the staff report itself were entered as
exhibits. A letter from the PUD was entered as an exhibit. The city received a few
comments, including (1) an e-mail from Mr. David Thorpe dated March 11, 2013, (2)
a letter from Mr. Todd Brown dated March 12, 2013, and (3) an e-mail from Kevin
Fagerstrom, dated March 11, 2013. These were entered as exhibits in addition to an e-
mail from Robert Chave dated March 12, 2013.
Ms. Machuga stated that the applicant could address whether they considered putting
more living space on the second floor and over the garage to avoid further
encouragement on the critical areas. There is a twelve foot distance from the street in
order to leave enough space for the detention room, but the applicant might better
address that question.
Applicants
Ms. Lin Hillman explained that they originally wanted to build a one-story house, but
they had several discussions with the city and with neighbours and decided to have a
second floor in order to shrink the footprint. The storm drainage pipe is two feet and
requires five feet on either side, which is why they needed twelve feet between the
house and the sheet; they tried to place the storm drainage pipe as far from the stream
as possible. There is evidence of the previous owner degrading the critical area, and
nobody seems concerned with caring for the critical space, but her family hopes to
improve the existing condition and to put a fence around the remaining wetland to
prevent pickup trucks from backing in to dump debris.
Ms. Hillman said that they have talked to several neighbours about the issues, and the
primary concern seems to be drainage. In the past, during high rainfall events, the
culvert pipes have become clogged, and the city public works people had to come to
dig out the sediment, rocks, etc. inside it. Their surveyor suggested that their proposal
for the property include a plan to add a metal grid from preventing large debris from
getting into the pipes, which would mitigate the clogging problem. The Department of
Fish and Wildlife liked the idea. She also sent applications for approval to the
Department of Ecology and the Army Corp of Engineers.
Public Comments
Mr. Todd Brown, who lives at 1135 Sierra Place up the access lane, said that the
variances are concerning to the neighbourhood because, one, he thinks factual
inaccuracies and strategic omissions in the planning documents; two, the applicants
have failed to get written permission from the adjacent property owners, which the
city requires; three, he thinks there are insufficient mitigation measures; and, four, he
Variance p. 4 Findings, Conclusions and Decision
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thinks that there are alternative interpretations of the city code regarding the best use
of the property. He said correct drainage was the most important issue. The stream is
prone to flooding, and the proposed plan increases the risk that flooding poses to
access to the lane, to the house at 1111 Sierra Place to the west, and to other properties
downstream. There could potentially be risk to the city from flood damage. Both
culverts are technically private, and the city has not yet obtained written permission
from the property owners at 1111 Sierra Place for this project.
Mr. Brown said the code requires the approach that least impacts wetlands and most
closely mimics natural water flow, but the aerial photos provided in the staff report to
indicate water flow direction are factually incorrect. Additionally, he said that
attachment ten is incorrect in stating that the wetland on the 1111 property is charged
solely from its own springs and stream. He also wanted to dispute the claims that the
southwest culvert was not viable. He himself has seen water flowing in and out, and he
thinks they must have been digging in to the wrong spot when looking for the output.
The culvert has never really been backed up. On top of that, he thinks a trash rack
would be ineffective in preventing a blockage due to the soil types in the area. The
review of neighbourhood homes strategically omitted the nearest home at 1130 Sierra
Place directly across from the property. His house is 2,050 square feet, including the
basement, but is on a 1,400 square foot plot, which means a smaller house is possible.
There are other reasonable uses for the property, too, such as putting a small wood
shop. Mr. Brown also cites esoteric reasons, considering this is the last undeveloped
wetland on Olympic Avenue. Habit construction would permanently change the
wildlife, and cutting down the trees in the area is inconsistent with the Edmonds
personality. Mr. Brown said he and his wife have seven at least sixty different bud
species on the site as well as a beaver.
Mr. Brown added that he thought it would be a shame for the variances to be approved
simply because a lot of time has been put into the project, and how the cheap price at
which the land was purchased is evidence that this property is not meant for a project
like the proposed.
Mr. Steve Schroder, 1142 Vista Place, showed an aerial photograph in which you
could see the proposed property in relation to his house as well as to where Mr. Brown
lives. He said he is opposed to the development, because he believes there are simply
pieces of land in Edmonds that are not suitable for development. The area for the
proposed project is a wonderful oasis that should not be disturbed. He said that the
adjacent lots were sold for around half a million dollars, but this property was
purchased for only $75,000. Additionally, the development would actually encroach
on the wetlands, never mind the buffer. He said that the $5,200 proposed for plans to
mitigate the encroachment is hardly sufficient. He questioned why the codes make
exceptions for areas that supposedly deny all reasonable economic use, because those
areas ought to be preserved as they are. The reduction of the street setback from
twenty-five to twelve is an example of how the variances ought to be applied, but that
is the only proper application of the variances.
Variance p. 5 Findings, Conclusions and Decision
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Ms. Ina Fernandez said that she has lived in the area for thirty-five years, and she is
concerned about the water flooding across the street to the mailboxes, which has
happened in the past. She opposes the proposed plan as too dangerous with concern to
flooding.
Ms. Sherry Zinner, who lives at 1027 Carol Way, showed a video that she took of the
area during a rainfall in December. She said that this reveals the large volume of water
that comes down from the property at 1139 Sierra Place. This water was not being
caught by the storm water system. She said that she consulted Mike Johnson at Storm
Water Management about an ankle-deep stream that has started to form in her
backyard during the heavy rain season for the last few years. He made the
determination that this was not a problem for which the city is responsible; it is a
private civil matter dealing with private properties. She said she is concerned,
therefore, with how the proposed development project will actually handle the
drainage risks. The last few development projects on wetland areas are what caused
the current flooding in her backyard. Trying to redirect the storm water flow, which
the proposed development will do, poses an unpredictable risk, and she does not want
an experiment that might adversely affect her private property to be under the control
of private property owners rather than of the city. The storm water flow is already
overwhelming, and she does not want to risk an increase in flow.
Mr. David Thorpe, who lives at 2117 Shell Valley Road, said he was concerned
particularly with the reduction of the critical areas buffer from fifty to zero.
Additionally, he pointed out that there are slope issues; they are less than forty percent
but should be considered nonetheless. He said that in Shell Valley the citizens
encouraged the city to build an emergency access road that cut through the wetland,
and this development destroyed the wetland. The wildlife has disappeared. He said he
does not want to deny people to build, or to use their property, but wetlands are rare in
the city, and every remaining wetland ought to be preserved.
Ms. Katherine Erikson, who lives at 615 Twelfth Avenue North, which is upside the
Sierra Place property, said that she cannot speak to issues surrounding drainage, but
she wanted to address one concern the Hillmans raised. She personally has witnessed
the dumping on the property that Ms. Hillman mentioned, and she agrees that
someone, either the government or a private property owner, ought to address that
issue. The property needs someone to look after it.
Staff Rebuttal
Ms. Jennifer Lambert, engineering technician for the city, stated that the city is very
much aware of the storm water concerns. In regards to the drainage plans, at this
phase, they are looking simply at whether it is feasible to put in a drainage system that
meets the current city storm water requirements. According to the wetland resources
person, the natural drainage flow eventually goes into the stream, thus using the south-
west culvert for overflow makes the proposed drainage plan feasible. The trash rack
Variance p. 6 Findings, Conclusions and Decision
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was supposed to be an added protective matter; the city does, in fact, maintain that
culvert.
Ms. Lambert said the written approval from 1111 Sierra Place to use the south-west
culvert is required only if wetland resources showed that the water was naturally
draining there and the applicant wanted to install some sort of storm water system that
used the culvert. But at this time, that usage of the south-west culvert is to mimic
existing conditions, thus at this time nothing is changing, therefore written permission
is not required. Answering a question from the Hearing Examiner, she said that a
development with over 2,000 square feet is required to install some sort of storm water
management system. The Heating Examiner also asked whether encroaching on the
wetlands would impair the storm water functions of the wetland, and Ms. Lamburgh
referred to the Wetland Resources consultant.
Ms. Andrea Bachman, the senior ecologist at Wetland Resources, said the wetland was
classified as a slope wetland, a kind that is generally less functional in retaining water
than a flatter wetland. In fact, the proposed development will encroach on the area in
the wetland that is least useful in retaining storm water.
The Hearing Examiner asked her why she thought they could not move more living
space to the second floor to minimize encroachment, but she could not speak to that.
Applicant Rebuttal
Ms. Lin Hillman testified that the issue of the wetland mitigation plan only calling for
$5,000 worth of plants was only the initial mitigation. She said the report also calls for
annual monitoring and continued mitigation as necessary. She said the property was
originally listed for $150,000, and the price they paid for it had a lot to do with their
negotiations with her bank. Her family thought they could do a good job maintaining
the property, which has been severely neglected. They see themselves as custodians of
the wetland rather than as developers of the property.
Ms. Hillman said the standard to which their development being held is reasonable.
The standard does not say you have to avoid building in a critical area or together, or
you have to build the smallest house possible in a box shape; the neighbouring houses
are not held to that standard, and neither are they. The storm drainage maps from the
city indicate that there are two options for sending storm water. One is the stream,
which is what they have chosen to do. The other is a storm line that is across the street.
If they ran a pipe from their property over to the line, the pipe would be running
uphill, and tapping into the line further down the street would be extremely disruptive.
The neighbours have suggested they use the southern culvert pipe, but that is not in the
city's storm map, which is why she does not think using that pipe for anything other
than overflow is appropriate. Their storm drainage mitigation plans would turn a flood
into a trickle and would meet the requirement for storm water retention. The city
mandates concerning growth management would support three houses on this
property, thus the one small house they plan to build meets the balance between
Variance p. 7 Findings, Conclusions and Decision
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growth and preservation that is required. Additionally, Edmonds does not have in
place a way to address the upkeep of a wetland on a larger scale. The state says that
larger wetland preservation is best, but their recommendations are for a one hundred
feet buffer that, if drawn around this stream, would touch neighbouring houses that
have been built.
Mr. Tom Hillman added that they are allowed reasonable use of their property, thus
they should have the ability to make their house the size they want within reason.
They are looking to make a reasonably sized house with as minor a footprint as
possible.
EXHIBITS
All 27 attachments listed on page 19 of the staff report were admitted into evidence as
Exhibits 1-27. At hearing on March 15, 2013 the following exhibits were also
admitted:
Exhibit 28 the staff report
Exhibit 29 letter from the PUD
Exhibit 30 e-mail from Mr. David Thorpe dated March 11, 2013
Exhibit 31 letter from Mr. Todd Brown dated March 12, 2013
Exhibit 32 e-mail from Kevin Fagerstrom, dated March 11, 2013
Exhibit 33 e-mail from Robert Shave dated March 12, 2013
Exhibit 34 an aerial photograph from Mr. Steve Schroder
Exhibit 35 an aerial map from Ms. Sherry Zinner
Exhibit 36 the letter from Ms. Sherry Zinner
FINDINGS OF FACT
Procedural:
l . Applicant. The applicants are Tom and Lin Hillman.
2. Hearing. A hearing was held at 3 :00 pm on March 15, 2013 at the
Edmonds City Council meeting chambers.
Substantive:
3. Site/Proposal Description. The applicants are requesting a street setback
variance, a side yard variance and a critical areas reasonable use variance request to
construct a single-family home at 1139 Sierra Place. The proposed residence
contains a total living area of 2,623 square feet, with a footprint of 2,174 square feet.
The subject lot is 0.93 acres in size.
The purpose of the setback variances is to locate the residence and associated
improvements further out of the critical areas and buffers than what otherwise might
Variance p. 8 Findings, Conclusions and Decision
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be possible. In the street setback variance request, the applicants seek to reduce the
street setback from 25 feet required by ECDC 16.20.030 for the RS zone to 12 feet
for placement of the residence. In the side yard variance request, the applicants seek
to reduce a side yard setback from 10 feet required by ECDC 16.20.030 for the RS 12
zone to 3 feet for placement of a retaining wall.
The applicants cannot build a single-family home on their properly without approval
of a reasonable use variance. A Category 3 wetland and its associated buffer cover
approximately the western two-thirds of the site and extend off -site to the north and
the south. The only part of the property not encumbered by the wetland or its buffer
is the eastern third of the property, which could only be accessed by a driveway built
through the wetland and buffers. A Type Np non -fish bearing stream is located on
the northern side of the western approximate half of the site. Additionally, an erosion
hazard area is located on the eastern side of the site with enough of a slope to make
development of the eastern portion of the site challenging.
In the reasonable use variance request, the applicants seek to construct their proposed
home within the 50 foot buffer of a Category III wetland imposed by ECDC
23.50.040(F)(1)(c) in addition to construction within the wetland itself, which is
prohibited by ECDC 23.50.040(B). The Category III wetland is about a half -acre in
size. The total area of permanent wetland impact will be 1,790 square feet while the
total area of permanent buffer impact will be 3,920 square feet.
A consolidated application for a critical areas reasonable use variance and rear
setback variance was submitted by prior owners of the property, Darryl and Shari
Lewis, under File No. PLN20040008 (the site was referred to at that time as 1142
Sierra Place). For the Lewis application, the residence was proposed to be located on
the eastern portion of the property with an access driveway running generally along
the southern side of the site, going through a portion of the wetland. The project site
plan from the Lewis variance application is included for reference as Attachment 14.
Additionally, a table comparing the critical areas impacts of the subject application to
the Lewis variance prepared by the applicant is included within Table 2 of the
"Critical Areas Study and Wetland Mitigation Plan" (Attachment 8).
A building permit application was submitted under File No. BLD20080237 for the
single-family residence approved under the Lewis variance application (File No.
PLN20040008). That building permit application expired, and a second building
permit application was submitted under File No. BLD20100196. That building
permit application also expired and was never issued.
The Hillmans purchased the property in April of 2011 (according to Snohomish
County Assessor's records), and came up with a new design and location for the
proposed residence on the southwestern portion of the subject site in an attempt to
take the existing critical areas and topographical constraints better into account. The
Hillmans submitted a consolidated application for the requested street and side
setback variance and critical areas reasonable use variance on August, 1, 2012.
Variance P. 9 Findings, Conclusions and Decision
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4. Characteristics of the Area. The subject site is located within a single-
family residential neighborhood in Edmonds. The site is one of the few undeveloped
parcels in the area and is completely surrounded by parcels that are currently
developed with single-family residences.
5. Adverse Impacts. With the extensive mitigation required by the
conditions of approval, there are no adverse impacts associated with the requested
variances. Impacts are more specifically addressed below.
A. Stormwater Impacts. One of the two impacts of greatest concern is stormwater
impacts. Neighboring property owners provided compelling information on
significant flooding problems in the vicinity of the project. However, the proposed
home has been placed in an area designed to minimize disruption of on -site drainage
patterns and the City's stormwater regulations will ensure that there are no off -site
impacts. The conditions of approval will also require a three year monitoring program
to ensure that implementation of these regulations successfully prevents any off -site
impacts.
The location of the home is optimized to minimize stormwater impacts. The existing
drainage on the site consists of a southeasterly to northeasterly flow pattern, following
a downslope gradient from the high point of the property to the lowest elevation of the
stream bed in its northwestern corner. The proposed single-family home for the
property is located in the southwest corner of the site, where it will not interfere with
the natural flow pattern of the upslope portions of the lot; the bulk of the site will
remain undisturbed and continue to drain towards the stream in the present manner.
Part of the home will encroach into a wetland and it is recognized that an important
wetland function is to retain stormwater, which helps prevent flooding. However, the
wetland report notes that the on -site wetland has a severely limited potential to provide
flood control functions because of its lack of depressional features and lack of ability
to become ponded. The minor encroachment into the wetland should not have any
significant impact on the limited flood storage capacity of the wetland.
As confirmed by City engineering staff during the hearing, the City's stormwater
regulations require a stormwater system that will retain pre -development stormwater
volumes, velocities and discharge locations. Consequently, if the regulations satisfy
their objectives there should be no stormwater impacts to adjoining properties.
However, it is unclear if the City's stormwater regulations require any monitoring to
ensure that these objectives have in fact been met over the long term. If monitoring is
not required by the City's regulations, the significant stormwater problems in the area
compel such monitoring for this project. Monitoring will be required as a condition
of approval. Engineering staff will also be directed to consider the stormwater issues
raised by Todd Brown in Ex. 31 and the stormwater comments summarized in the
testimony of this decision when reviewing stormwater design at the building permit
stage of review for the project.
Variance P. 10 Findings, Conclusions and Decision
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B. Wetland Impacts. The second major impact of concern is the impacts to
wetlands. The proposal will not adversely affect wetlands. The wetland report
concludes at p. 8 that "the proposed development is expected to reduce the level of
existing functions on the site somewhat". In order to mitigate for the wetland
encroachment, the applicant proposes to enhance 15,560 square feet of the wetland,
for an 8:1 ratio. The applicant also proposes to enhance 2,410 square feet of buffer in
the northwestern corner of the property for a 0.5:1 ratio. With this mitigation, the
wetland report concludes that there will be no net loss of wetland function. The report
was prepared by Andrea Bachman, a senior wetland ecologist working for Wetland
Resources, Inc. The City's regulations require that wetland reports be either prepared
by a qualified professional who is either a City selected wetlands consultant operating
under a three party agreement between the applicant, city and consultant, or that the
consultant's work be subject to peer review. See ECDC 23.40.090. Given the
qualifications of the wetlands consultant, the safe -guards for objective review and the
absence of any evidence supporting contrary determinations, it is determined that there
will be no net loss of wetland function.
C. Setback Variance Im acts. There are no adverse impacts discernible from the
record that would result from the requested street and side yard variances. The staff
report notes that "due to the topography of the surrounding area, it does not appear
that the proposed residence would significantly impact existing views of Puget
Sound." Despite heavy opposition from neighboring property owners, no one has
raised any concern about potential view impacts and there is nothing in the record to
suggest that would be a problem. Given these facts, it is determined that the proposal
will not create any adverse view impacts. The side yard setback will not noticeably
diminish the passage of light and air, as the eastern half of the property adjoining to
the west is undeveloped and encumbered by a wetland. City staff have also not raised
any concerns over site distance impacts or other traffic issues with the street setback
variance request.
6. Minimum Variance. The most challenging issue for this proposal is whether the
request constitutes the minimum necessary to grant relief from the City's critical area
regulations. It appears that encroachments into the wetland could be entirely avoided
by moving living space to the second floor of the home and reducing the yard area
supported by retaining walls. The conditions of approval will require that staff
investigate further reducing the encroachment by moving the proposed living space to
the second floor and/or extending the home fiu ther north within the buffer.
As noted in the staff report, the proposed living area of 2,623 square feet appears to be
average, if not smaller than those of existing residences within the vicinity, as
demonstrated by the sizes of other homes in the area tabulated by the applicant in
Table 3 of Ex. 8. As identified by comments from Todd and Candy Brown, Ex. 23,
one outlier not identified in Table 3 is the Mallot home, located across the street with
living space of 2,063 square feet.
Variance P. 11 Findings, Conclusions and Decision
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If only a buffer encroachment were proposed, as opposed to encroachment into the
wetland itself, the size of the proposed home would clearly be considered a minimum
variance request given the larger sizes of surrounding homes. However, a significant
complicating factor in this application is that it appears that the encroachment into the
wetland itself could be avoided entirely if the home is redesigned to replace the
vaulted ceiling space with additional living space. The only reasons for not fully using
second floor living space presented by the applicant were that they have a preference
for first floor living space as they grow older and they want to avoid a boxy
appearance for their home. The author of the wetland report, Andrea Bachman, was
not able to provide any reason why the home couldn't be redesigned to avoid
encroachment into the wetland. These are not sufficient reasons to justify an
encroachment into wetlands.
The concern over encroachment into wetlands is premised upon the understanding that
encroaching into a wetland can cause significantly greater harm than limiting
encroachments to buffer areas. The primary function of a wetland buffer would
appear to be protection of a wetland from adjoining development, although it is
recognized that a buffer has its own significance in the provision of habitat that is
unique to wetland boundaries. Although a priority for building within buffers over
within wetlands themselves is a reasonable inference to make, this priority is not
expressly imposed in the City's wetland regulations and there is no scientific evidence
in the record to support this priority. Consequently, the conditions of approval will
require the wetland consultant to address whether developing in the buffer would
create significantly more damage to wetland functions than limiting development to
the wetland buffer by displacing living space to the second story of the home or
extending the home further north within the buffer.
The examiner recognizes that it is likely that staff has thoroughly considered the need
to encroach into the wetland and has determined that the proposed encroachment
results in the least overall impacts to the wetland while accommodating the right of the
applicant to reasonable use. Unfortunately, this aspect of the staff s analysis did not
make it into the record and the direct encroachment into a wetland is too serious an
issue to authorize on the presumption that other options have been fully assessed. If
staff has already in fact compared the impacts of building more in the second story of
the home or further northward into the buffer in lieu of encroaching into the wetland,
no further work on the condition imposed by the preceding paragraph is necessary.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. ECDC 20.85.020 provides the Hearing
Examiner with the authority to review and act upon variance applications as Type ILI-
A.
Variance p. 12 Findings, Conclusions and Decision
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Substantive:
2. Zoning Designations. The area is zoned Single -Family Residential (RS-
12).
3. Review Criteria and Application. Variances to street and side yard
setback requirements are set by ECDC 20.85.010, quoted below and applied through
corresponding conclusions of law. Variances to critical area wetland buffers are
governed by ECDC 23.40.210(A)(2) and 23.40.210(B). Applicable criteria are quoted
in italics below and applied through corresponding conclusions of law.
ECDC 20.85.010: No variance may be approved unless all of the findings in this
section can be made.
ECDC 20.85.010.A(l) — Special Circumstances: That, because of special
circumstances relating to the property, the strict enforcement of the zoning ordinance
would deprive the owner of use rights and privileges permitted to other properties in
the vicinity with the same zoning.
a. Special circumstances include the size, shape, topography, location or
surroundings of the property, public necessity as of public structures and
uses as set forth in ECDC 17.00.030 and environmental factors such as
vegetation, streams, ponds and wildlife habitats.
b. Special circumstances should not be predicated upon any factor personal
to the owner such as age or disability, extra expense which may be
necessary to comply with the zoning ordinance, the ability to secure a
scenic view, the ability to make more profitable use of the property, nor any
factor resulting from the action of the owner or any past owner of the same
property;
4. The criterion is met for the street and side yard variances because the
objective of the variances is to displace the footprint of the single-family home as far
as possible from the Category III wetland and its buffers, which is solely attributable
to the critical areas on the property.
ECDC 20.85.010(B) — Special Privilege: That the approval of the variance would
not be a grant of special privilege to the property in comparison with the limitations
upon other properties in the vicinity with the same zoning;
5. As noted in the staff report, similar setback variances have been approved
for a couple other homes in the vicinity of the project in order to enable the
construction of a single-family home within a critical area. In a broader sense,
setback variances would likely be granted to anyone seeking to build a single-family
Variance p. 13 Findings, Conclusions and Decision
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home in the RS district vicinity if it would reduce otherwise unavoidable wetland
impacts.
ECDC 20.85.101(C) — Comprehensive Plan: That the approval of the variance will
be consistent with the comprehensive plan;
6. The requested setback variances are consistent with the comprehensive
plan for the reasons outlined at p. 8 and Section VII of the staff report, adopted and
incorporated by this reference as if set forth in full.
ECDC 20.85.010(D) — Zoning Ordinance: That the approval of the variance will be
consistent with the purposes of the zoning ordinance and the zone district in which ;
the property is located;
7. A single-family home is a permitted primary use in the RS-12 district.
Approval of the variance would be consistent with the purposes of the zoning
ordinance and the RS-12 district.
ECDC 20.85.010(E) — Not Detrimental: That the variance as approved or
conditionally approved will not be significantly detrimental to the public health,
safety and welfare or injurious to the property or improvements in the vicinity and
same zone;
8. As determined in Finding of Fact No. 5, there are no significant adverse
impacts associated with the proposal. Consequently the criterion is met.
ECDC 20.85.010(F) — Minimum Variance: That the approved variance is the
minimum necessary to allow the owner the rights enjoyed by other properties in the
vicinity with the same zoning.
9. As discussed in FOF No. 3, the purpose of the variance is to maximize the
distance of the proposal from the Category III wetland and so should be considered
the minimum necessary to enjoy the same development rights as others in the vicinity
with the same zoning. The size of the home, which is referenced in the staff report
under the analysis of the criterion quoted above, is irrelevant since any reduction in
building size would not result in any reduction of the setback encroachment. Any
reduction in home size should be used to increase the separation from the wetland.
ECDC 23.40.210(A)(2)(a): The application of this title would deny all reasonable
economic use of a property or subject parcel;
"Reasonable economic use(s)" is defined pursuant to ECDC 23.40.320 as follows: "The
minimum use to which a property owner is entitled under applicable state and federal
constitutional provisions in order to avoid a taking and/or violation of substantive due
process. "Reasonable economic use " shall be liberally construed to protect the
constitutional property rights of the applicant. For example, the minimum reasonable use
of a residential lot which meets or exceeds minimum bulk requirements is use for one
Variance p. 14 Findings, Conclusions and Decision
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single-family residential structure. Determination of "reasonable economic use" shall
not include consideration of factors personal to the owner such as a desire to make a
more profitable use of the site. "
10. Application of the critical areas ordinance would deny the applicants minimum
reasonable use of their property if not variance is granted. A minimum reasonable use of
the subject property is a single family home. The definition of reasonable use quoted
above makes it clear that minimum reasonable use is a single-family home for a lot that
meets all bulk requirements, such as minimum lot size, setbacks, and lot width. The
purchase price is irrelevant under this definition. Were it not for the critical areas at the
project site, the subject lot is easily large enough to accommodate a single-family home
that satisfies all minimum bulk requirements. No single family home could be built upon
the subject property without encroaching into a critical area or a critical area buffer. The
only options for the applicants are to either build the home into the wetland buffer and
potentially the wetland itself as currently proposed, or to build a driveway through the
wetland and its buffer as proposed in the previously approved variance.
ECDC 23.40.210(A)(2)(b): No other reasonable economic use of the property
consistent with the underlying zoning and the city comprehensive plan has less impact on
the critical area;
11. As concluded in Conclusion of Law No. 11, a single-family home is defined
as a minimum reasonable use for the subject property. As a minimum reasonable use, no
other type of reasonable use could be required for the property unless it allowed for a
greater economic return on the property. As outlined in ECDC 16.20.010, more intense
uses allowed for the subject property include uses such as churches and schools. None of
these types of uses could be construed as creating less impact to critical areas. If the
"other" reasonable use referenced in the criterion above encompasses different project
design as opposed to different types of uses, then as discussed in Finding of Fact No. 6
there is an open question as to whether impacts could be further reduced by building
upwards into the second floor as opposed to outward into the wetland. Project design
appears to be more directly addressed in the next criterion and at any rate project design
is addressed in the conditions of approval to ensure that the design minimizes impacts to
the wetland.
ECDC 23.40.210(A)(2)(c): The proposed impact to the critical area is the minimum
necessary to allow for reasonable economic use of the property;
12. As discussed in Finding of Fact No. 6 and Conclusion of Law No. 11, there is
an open question as to whether the home has been designed to minimize impacts to the
on -site wetland. The conditions of approval require further staff investigation and
redesign of the project to the extent necessary to mitigate project impacts.
ECDC 23.40.210(A)(2)(d): The inability of the applicant to derive reasonable economic
use of the property is not the result of actions by the applicant after the effective date of
the ordinance codified in this title or its predecessor;
13. The use limitations of the property are all directly attributable to the on -site
critical areas and not to any actions by the applicant. However, the applicant's need for
first floor living space due to advancing age is personally attributable to the applicants
and cannot serve as justification for the currently proposed house design.
Variance p. 15 Findings, Conclusions and Decision
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ECDC 23.40.210(A)(2)(e): The proposal does not pose an unreasonable threat to the
public health, safety, or welfare on or off the development proposal site;
14. As determined in Finding of Fact No. 5, as conditioned there are no
significant adverse impacts associated with the proposal and, therefore, the proposal does
not pose an unreasonable threat to the public health, safety, or welfare on or off the
development proposal site.
ECDC 23.40.210(A)(2)(f): The proposal minimizes net loss of critical area functions and
values consistent with the best available science; and
15. As determined in Finding of Fact No. 5(B), the proposal will not create any
net loss of critical area functions and values. This determination was based upon the
study of a qualified wetland biologist, who in turn based her mitigation and assessment
upon several scientific studies identified at P. 19 of her report. The scientific studies and
the opinions and analysis of the wetland biologist qualify as best available science as
defined in ECDC 23.40.310 because the biologist is professionally trained and works for a
reputable company selected by the City and the studies she relied upon have been
prepared by state and federal agencies such as the Washington State Department of
Ecology, the U.S. Department of Interior Fish and Wildlife, and the U.S. Department of
Agriculture.
ECDC 23.40.210(A)(2)(g): Pie proposal is consistent with other applicable regulations
and standards.
16. The applicant has sought and is being granted variance requests to street
and side yard setback requirements that the proposal will not meet. Compliance with
all other applicable regulations and standards will be assessed and enforced during
building permit review.
ECDC 23.40.210(B)(1): Special conditions and circumstances exist that are peculiar to
the land, the lot, or something inherent in the land, and that are not applicable to other
lands in the same district;
17. As testified by several neighbors, the subject property is unique in its
abundance of critical areas.
ECDC 23.40.210(B)(2): The special conditions and circumstances do not result from
the actions of the applicant;
18. See COL No. 13.
ECDC 23.40.210(B)(3): A literal interpretation of the provisions of this title would
deprive the applicant of all reasonable economic uses and privileges permitted to other
properties in the vicinity and zone of the subject property under the terms of this title, and
the variance requested is the minimum necessary to provide the applicant with such
rights;
Variance p. 16 Findings, Conclusions and Decision
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19. See COL No. 10.
ECDC 23.40.210(B)(4): Granting the variance requested will not confer on the
applicant any special privilege that is denied by this title to other lands, structures, or
buildings under similar circumstances;
20. The applicants simply seek to build a reasonably sized single-family home on
a lot large enough for that purpose. That is a right enjoyed by all other property owners
in the vicinity and is not a request for a special privilege.
ECDC 23.40.210(B)(5): The granting of the variance is consistent with the general
purpose and intent of this title, and will not further degrade the functions or values of the
associated critical areas or otherwise be materially detrimental to the public welfare or
injurious to the property or improvements in the vicinity of the subject property; and
21. As determined in Finding of Fact No. 5, there are no adverse impacts
associated with the proposal and it will not create any net loss in wetland function while
also providing for reasonable use of the property. Given these factors the property the
granting of the variance is consistent with the purpose and intent of the critical areas
ordinance and is not detrimental to the public welfare or injurious to property or
improvements in the vicinity.
ECDC 23.40.210(B)(6): The decision to grant the variance is based upon the best
available science and gives special consideration to conservation or protection measures
necessary to preserve or enhance anadromous fish habitat.
22. As noted in COL No. 15, the granting of the variance is based upon best
available science and as noted in Finding of Fact No. 3, there is no fish habitat
associated with the proposal.
DECISION
The street, side yard and critical area reasonable use variance requests are approved,
subject to the following conditions and modifications:
1. As discussed in FOF No. 6, staff shall consult with a qualified wetland biologist,
who can be Andrea Bachman, to determine whether encroaching into the
Category III wetland of the subject property causes significantly more damage to
wetland functions than building within its buffer. If that is the case, staff shall
displace as much of the wetland encroachment into the second story of the
proposed home and further northward into the buffer as much as reasonably
possible to reduce the encroachment into the wetland. The side yard variance and
associated wetland buffer variance granted by this decision may be extended
further northward in order to accommodate any redesign of the proposal. Staff
may waive the requirement for a redesign of the proposal if the environmental
Variance p. 17 Findings, Conclusions and Decision
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benefits of the redesign are nominal and the burden upon the applicant is
substantial.
2. If no stormwater monitoring plan is required by the City's stormwater
regulations, the applicant shall prepare a three stormwater monitoring plan that
verifies that the stormwater system fully prevents any increase in stormwater
discharges to neighboring properties. City staff shall require improvements to the
stormwater system to the extent that the system fails to prevent increases in
stormwater run-off to neighboring properties. The monitoring plan shall be
subject to the approval of City engineering staff prior to the issuance of any
building permits for the proposal.
3. City engineering staff shall consider the stormwater comments of Todd Brown in
Ex. 31 and the stormwater concerns summarized in the testimony section of this
decision when reviewing and applying the City's stormwater regulations.
4. The applicant must obtain a building permit and all other required local, state, and
federal permits prior to commencing work on the subject site.
5. Individual elements of this project are required to meet all applicable city codes.
The applicant must show full compliance with all applicable regulations and
standards that are not part of the approved variance at the time of building permit
application review.
6. The applicant shall complete mitigation as detailed in the "Critical Area Study
and Wetland Mitigation Plan" dated November 27, 2012 by Wetland Resources,
Inc. (Attachment 8).
7. The existing man-made trench located along the west property line shall remain
in place as a potential overflow channel for any stream high water event. In
addition, the subject proposal shall not inhibit the usage of the existing
southwestern storm drainage culvert.
8. During the building permit process, the applicant will be required to show the
installation of a trash rack at the northwestern stream inlet and secure all
applicable permits for all work within the stream and associated buffer. The
applicant will also be required to revise the storm easement such that the
easement encompasses the creek.
9. The approved variance must be acted on by the owner within one year from the
date of approval or the variance shall expire and be null and void, unless the
owner files an application for an extension of time before the expiration and the
city approves the application.
Dated this 28th day of March, 2013.
rJ �
Phil A. Olbrechts
Edmonds Hearing Examiner
Variance p. 18 Findings, Conclusions and Decision
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Appeal Right and Valuation Notices
This decision is final and only subject to appeal to superior court as governed by
Chapter 36.70C RCW. Appeal deadlines are short (21 days from issuance of the
decision) and the courts strictly apply the procedural requirements for filing an appeal.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Variance P. 19 Findings, Conclusions and Decision