Variance -- Noise -- Edmonds PW - proofed.pdf
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BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
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Phil Olbrechts, Hearing Examiner
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RE: Edmonds Public Works
FINDINGS OF FACT, CONCLUSIONS
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Noise Variance
OF LAW AND FINAL DECISION
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PLN2015-0035
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SUMMARY
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The applicant has requested a variance to City of Edmonds noise standards for four
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nonconsecutive nights of construction work for a pavement preservation project on
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220 Street SW between 76 Avenue West and the Interurban Trail. The applicant
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would schedule the four nights of work between August 15, 2015 and October 15,
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2015. The variance is approved subject to conditions.
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TESTIMONY
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Michael Clugston, senior planner for the City of Edmonds, summarized the proposal.
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Mr. Clugston clarified that the work would bedone between 6:00 pm and 7:00 am
instead of the 7:00 pm to 7:00 am identified in the staff report. He also clarified that
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the number of days of construction work would be ten instead of the four identified in
the staff report.
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Ryan Hage, City of Edmonds project manager, clarified in response to questions from
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the Examiner that the recommended condition for a complaint line would be handled
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by the contractor. The City has no supervisory authority over the contractor because
the contract is with Snohomish County. Mr. Hage also identified the type of noises
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that would occur most frequently.
Alvin Rutledge, Edmonds resident, inquired about the starting time for the variance
work.
Noise Variance
p. 1Findings, Conclusions and Decision
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EXHIBITS
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The staff report and its 12attachments were admitted as Exhibit 1 during the hearing.
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4 FINDINGS OF FACT
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Procedural
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1. Applicant. The applicant is the Public Works Department of the City of
Edmonds.
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2. Hearing. A hearing was held on August 13, 2015 in the Edmonds City
Council Chambers at 3:00 pm.
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Substantive
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:
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3. Site/Proposal Description. The applicant has requested a variance to City
of Edmonds noise standards for four nonconsecutive nights for construction work for
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a pavement preservation project on 220 Street SW between 76 Avenue West and
the Interurban Trail. The applicant would schedule the four nights between August
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15, 2015 and October 15, 2015. This work will include pavement grinding and
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overlay as well as crosswalk improvement at Highway 99. Noise levels would be as
proposed in Ex. 1, att. 7.
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4. Surrounding Area. Attachment 5 shows the extent of the project in relation to
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zoning and jurisdiction in the area. 220 Street SW is a minor arterial street running
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east west linking Edmonds to Mountlake Terrace and I-5. The western portion of the
road in the project area runs through single-family neighborhoods, some of which are
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in Snohomish CountyÈs jurisdiction.East of 76Avenue, parcels are zoned for
commercial uses and are chiefly developed that way with the exception of some
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multifamily development near the southeast corner of 76Avenue and 220Street.
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5. Adverse Impacts. The noise generated by the proposal will not be
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significantly detrimental to the public health, safety and welfare or injurious to the
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property or improvements in the vicinity and same zone. 220 St. is a heavily
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travelled road and ambient nighttime noises are not significantly lower than those that
will be generated by the proposed construction. Ex. 1, att. 6 shows that ambient night-
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time noises on 220 St. range from 68 to 85 dBA. The maximum construction noises
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identified in Ex. 1, att. 7 from 50 feet are 90 dBA, with most noises at or below 80
dBA. The applicants have also identified numerous mitigation measures in Ex. 1, att.
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7 to reduce noise impacts, such as noise shields and avoidance of work near
residences during nighttime hours. Given other noise variances approved in Edmonds,
it does not appear that any other mitigation is reasonably available to further reduce
noise impacts.
Noise Variance
p. 2Findings, Conclusions and Decision
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6. Necessity. The proposed variance is the minimum reasonably necessary to
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complete the paving project. While the planned work could occur during the day (and
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therefore not require a variance), lane closures on 220Street wouldbe required.
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Public Works would like to avoid impacts to traffic during the day in this highly
travelled commercial area. Performing the work during the day would also take longer
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(approximately six days) since travel lanes could only be closed during non-peak day
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periods (between 9am and 4pm).
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CONCLUSIONS OF LAW
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Procedural
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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 III-
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A.
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Substantive
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2. Review Criteria and Application. The project will generate night time
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noise levels up to 90 dBA 50 feet from the noise source, which roughly equates to the
location of the property lines of the residential zoned receiving properties to the west
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and the commercially zoned receiving properties to the north, south and east. ECDC
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5.30.040, in conjunction with ECDC 5.30.050(A), limits noise levels, depending on
the zoning of the noise source and receiving properties, to 45 dB to 60 dBA between
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the hours of 10:00 pm and 7:00 am and between 55 dBA to 70 dBA between 7:00 am
and 10:00 pm. Further, construction noise is exempt from the sound level limits of
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ECDC 5.30.050(A) between the hours of 7:00 am to 6:00 pm. See ECDC
5.30.110(B). Since the project noise exceeds both daytime and nighttime noise limits
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set by ECDC 5.30.050(A), the applicant must acquire a variance for the times it isnÈt
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exempt as construction noise, i.e. 6:00 pm through 7:00 am. ECDC 5.32.120(C) (3)
provides that variances to noise standards shall satisfy the criteria of ECDC 20.85.020
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\[sic\]. ECDC 5.30.120(A) and (B) also add additional criteria to noise variances.
Applicable criteria are quoted below and applied through corresponding conclusions
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of law.
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Variances may be granted to any person from any requirement
ECDC 5.30.120(A):
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of ECC 5.30.040 or 5.30.110 if findings are made that immediate compliance with
such requirement cannot be achieved because of special circumstances rendering
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immediate compliance unreasonable in light of economic or physical factors,
encroachment upon an existing noise source or because of nonavailability of feasible
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technology or control methods.
3. Special circumstances justify the noise variance due to public necessity of the
Noise Variance
p. 3Findings, Conclusions and Decision
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pavement project, the heavy traffic of 220Ave as outlined in Finding of Fact No. 6
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and the absence of any additional mitigation measures that could be used to further
reduce noise impacts as outlined in Finding of Fact No. 5.
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Any such variance or renewal thereof shall be granted only for
ECDC 5.30.120(B):
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the minimum time period found to be necessary under the facts and circumstances.
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4. The requested variance is for the minimum time period for the reasons identified
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in Finding of Fact No. 6.
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No variance may be approved unless all of the findings in this
ECDC 20.85.010:
section can be made.
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That, because of special
ECDC 20.85.010.A(1) Ã Special Circumstances:
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circumstances relating to the property, the strict enforcement of the zoning ordinance
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would deprive the owner of use rights and privileges permitted to other properties in
the vicinity with the same zoning.
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a.Special circumstances include the size, shape, topography, location or
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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
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vegetation, streams, ponds and wildlife habitats.
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b.Special circumstances should not be predicated upon any factor personal
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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
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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
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property;
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5. The special circumstances of the proposal are the location of 220 St. SW
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in proximity to surrounding uses as well as the circumstances identified in Conclusion
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of Law No. 3. The transportation needs of the area dictate the location of 220 Ave
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SW and improvements such as the proposed pavement work are in the public interest
and cannot be avoided. The special circumstances are not predicated upon any factor
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personal to the applicant and arise entirely from public necessity.
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That the approval of the variance would
ECDC 20.85.010(B) Ã Special Privilege:
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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;
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6. Variances would likely be granted for any other improvements to public
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roads that have similar impacts. No special privilege is involved.
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That the approval of the variance will
ECDC 20.85.101(C) Ã Comprehensive Plan:
be consistent with the comprehensive plan;
Noise Variance
p. 4Findings, Conclusions and Decision
7.Page 86-87 of the Edmonds Comprehensive Plan contains a section on
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noise pollution.This section of the Plan recognizes that noise can adversely affect
health and that measures should be taken to preserve a quiet environment. The limited
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duration and extent of the noise variance in conjunction with the numerous mitigation
measures imposed upon the project are consistent with these comprehensive plan
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objectives.
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That the approval of the variance will be
ECDC 20.85.010(D) Ã Zoning Ordinance:
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consistent with the purposes of the zoning ordinance and the zone district in which
the property is located;
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8. ECDC 16.10.000(B)(4) provides that one of the purposes of all residential
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zones is to keep residents free from noise. The conditions of this variance decision
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mitigate noise as much as reasonably possible and limit night time noise to moderate
levels.As conditioned, the proposal is consistent with the purpose of keeping
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residents free from noise.ECDC16.40.000 lists the purposes of the commercial
zones, which includes concentrating commercial uses for the convenience of the
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public. Approval of the variance supports this purpose by maintaining adequate
public access to commercial uses.
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That the variance as approved or
ECDC 20.85.010(E) Ã Not Detrimental:
conditionally approved will not be significantly detrimental to the public health,
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safety and welfare or injurious to the property or improvements in the vicinity and
same zone;
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9. As conditioned, the variance will not create significant adverse noise
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impacts as determined in Finding of Fact No. 5. Consequently, the criterion is met.
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That the approved variance is the
ECDC 20.85.010(F) Ã Minimum Variance:
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minimum necessary to allow the owner the rights enjoyed by other properties in the
vicinity with the same zoning.
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10. As determined in Finding of Fact 5 and 6, the applicants have provided as
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much noise mitigation as they reasonably can under the circumstances and the
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variance is limited to the time necessary to complete the project. The criterion is
satisfied.
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DECISION
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The variance application is approved and the applicant may exceed the CityÈs noise
standards for four nonconsecutive nights between the hours of 6:00 pm and 7:00 am
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for the noise levels proposed in Ex. 1, att. 7, subject to the following conditions:
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1.A copy of the noise variance must be kept on the project site at all times.
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2.The proposed noise mitigation measures described in Attachments 1 and 7
must be implemented, as applicable. In addition to the complaint phone
number identified in Attachment 1, property owners shall also be provided a
Noise Variance
p. 5Findings, Conclusions and Decision
daytime phone number for a City of Edmonds or Snohomish County
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employee to resolve situations in which complaints were not adequately
addressed by the contractor.
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3.Work near the intersection of 220 Street SW and 76 Avenue West must be
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scheduled first each night (before 10 pm, if possible) to further minimize
potential noise impacts to the residents toward the western end of the project
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site.
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4.The noise variance shall be valid for only four (4) nights between August 15
and October 15, 2015. The Department of Public Works must notify the
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Planning Department each time the variance is used.
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5.The granting of this variance does not relieve the City of Edmonds
Department of Public Works from the remainder of the requirements and
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standards of the noise ordinance.
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Dated this 26th day of August, 2015.
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Edmonds Hearing Examiner
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Appeal Right and Valuation Notices
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This land use decision is final and subject to closed record appeal to the City Council as
authorized by ECDC 20.01.003. Appeals must be filed within 14 days of the issuance
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of this decision as required by ECDC 20.07.004(B). Reconsideration may be requested
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within 10 calendar days of issuance of this decision as required by ECDC 20.06.010.
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Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
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Noise Variance
p. 6Findings, Conclusions and Decision