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withdrawal letter.pdfRICHARD E. GIFFORD PLLC March 25, 2013 RECEIVED Rick Gifford E-mail: rick@rgiffordiaw.cont MAR 2 i_ 013 Mr. Kernen Lien DEVELOPMENT Senior Planner COUNTE173 City of Edmonds Hand Delivered 121 - 5`1' Avenue North Edmonds, WA 98020 RE: City of Edmonds PLN 20120040, 50 Pine Street building design review Applicant's notice of withdrawal Dear Mr. Lien: On behalf of Edmonds Pine Street LLC ("Owner") and its architect, Weber Thompson, you are advised that the above -referenced design review application filed with the City on November 2, 2012 is withdrawn. This action is in response to changed conditions affecting the application that were introduced by the City in mid-January. A new design review application for the project incorporating the City's modified requirements will be submitted in the near future. We initially hoped to tweak the pending application and move on with minimal adverse impact, but have concluded this is the safer and cleaner approach. It adds redundancy, delay, and cost, but better aligns with applicable statutory and code provisions and benefits public process. These issues are the latest and most disruptive challenges in the City's administration of this matter, including inconsistent communication, confusion over process, and shifting standards. A summary of the proposal's history leading to this point follows. The proposed structure will be the final residential building in the Point Edwards master planned development. It is presented as a stand-alone project. A five story, 69 unit proposal was approved by the City in 2006 but never built. Owner subsequently acquired the property and has been working with the City on a revised design over the past 11 months. The architect supplied floor plans and three-dimensional color renderings detailing the design concept for the initial pre -application meeting with you last May, and for the second formal pre -application meeting in September. You retained these materials in the City's project files. The design approach and architectural style of the building remained essentially the same throughout the pre -application process. At the outset you mistakenly thought the building was limited to 34 units under the 2003 Point Edwards approval. You corrected your findings to acknowledge that 89 units were allowed after learning the City approved an increase in total units from 295 to 350 in 2005. The building's layout and orientation were finalized on this basis. 600 MAIN STREET, SUITE E . EDMONDS, WASHINGTON . 98020 PHONE: (425) 673-9591 • FAX: (425) 673-0631 Mr. Kernen Lien March 25, 2013 Page 2 There was minimal comment on building design during the pre -application discussions. Your September 13, 2012 report referenced two changes in the landscape plan (increased surface parking and a new water feature/patio) that you felt triggered ADB review. No other building design or architectural features were mentioned. You confirmed in writing the City's acceptance of its prior SEPA reviews, including the 2003 mitigated determination of non -significance for Point Edwards ("MDNS"). Accordingly no SEPA checklist or other documentation was required, although a Critical Areas Checklist was submitted as a precaution when you were unsure whether or not it was needed. There also was uncertainty about the City's process under ECDC Ch. 20.11. You went back and forth on whether the ADB or staff would conduct design review, then settled on a public meeting before the ADB, with no public hearing required. The design review application was submitted shortly thereafter. No SEPA checklist was included, due to the City's express waiver. A traffic study was not required. Subsequently, you advised that a public hearing would be conducted after all. The architect and I met with you and City Attorney Jeff Taraday on November 13, 2012 to resolve procedural matters (the public hearing requirement was confirmed), go over the final design package, and address the scope of review. We asked for confirmation that the only issues before the ADB were the two identified changes to the landscape plan. You commented that in looking over the application package, you realized the building also was changed in some significant ways from earlier approved designs. This was not new information. Changes to the building were readily visible in the design materials provided to the City beginning last May. We were baffled that you were only now bringing them up, as matters of first impression in your consideration. You advised that these changes also would be reviewed by the ADB under a condition relating to consistency in building colors and materials. You did not otherwise comment on the changes. After the meeting, the architect followed up with you to provide certain supplementary materials relating to the landscape plan, and to acknowledge staff's determination that the two landscape items and the changes in architectural style of the building were "significant changes" and should be reviewed by the ADB. You determined the application to be complete. The December 13 staff report for the Planning Division, issued a week before the hearing, reiterated the City's reliance on prior SEPA review and the MDNS. It did not address traffic impacts, noting that technical review by affected City departments would occur later. We were blindsided by the substance and conclusions of the staff report. You found the proposal incompatible with the City's Urban Design Objectives in several respects and recommended that the ADB require changes. These findings were at odds with all earlier design disclosures and discussions. During the months that the design concept was in front of the City, staff gave no indication that it did not support the proposed design or recommended adjustments. Mr. Kernen Lien March 25, 2013 Page 3 The pre -application vetting process is designed to flag problems and concerns at an early stage to assist applicants, the City, and the public. This saves resources and time by avoiding costly and disruptive surprises. Inexplicably, staff gave no help with the design before striking out at it in the staff report. In retrospect, the pre -application process was a waste of effort. Worse, the applicant was misled by staff's silence on building design, the central issue. No explanation has been given for the City's failure to address design changes in a forthright and timely manner. The ADB hearing was heavily attended and polarized. We knew you were receiving extensive input and inquiries from interested parties, principally in opposition to the proposal. Upwards of 35 comment letters were submitted to the City. You summarized the proposal and staff recommendations, after which the applicant outlined the design concept and the Board received testimony from the audience. SEPA issues did not arise, but there were questions about traffic impacts associated with the proposal. You referred to the City's traffic ordinance and its applicability to the project and also confirmed that a separate traffic study was not required. You referred to traffic impact analysis and mitigation in conjunction with the City's 2003 and 2005 project decisions, but admitted you did not know if the traffic study was updated in 2005 when the number of allowed units was increased to 350. Someone asked that the results of any 2005 traffic analysis be made part of the record of these proceedings. You reiterated your earlier comments and disclaimer concerning traffic impact assessment. At the conclusion of the hearing, the Board gave feedback and made suggestions for refinement of the design. This was the first constructive input from the City on building architecture and style. We affirmed our willingness to re -assess the design in light of the Board's commentary. The hearing was continued for that purpose. A month later when redesign was well underway came the next surprise. You notified the architect of an incomplete MDNS condition. Funds deposited with the City in 2003 for SEPA traffic mitigation were not applied by the City as specified, nor returned to the developer under state law. No notice of these conditions was not given by the City to the original developer. Owner was not involved with the MDNS and knew nothing about the referenced condition. The funds in question were supplied by the original developer and thereafter held by the City. After the hearing, you also had researched the City's records and found that no new traffic analysis was performed for the Point Edwards unit count increase in 2005. We met again with you, Mr. Taraday, and other staff, to assess the implications of these belated discoveries. Mr. Taraday advised the City not to further rely on the MDNS, and to require new SEPA review. An updated traffic study also was ordered. In the interest of avoiding prolonged delay, we did not contest these determinations. Imposing SEPA review mid -stream altered the procedural landscape. As you know, SEPA review customarily is at the front end, and triggers particular statutory and code procedures for coordinated review and consolidation. Under the City's SEPA ordinance (ECDC20.15A.240) Mr. Kernen Lien March 25, 2013 Page 4 appeals of threshold determinations are to the Hearing Examiner, not the ADB. We were already engaged in the ADB hearing process, on a disparate review/appeal track. It was unclear whether or how the inchoate process could be effectively integrated with SEPA review. Peculiarities in the City's code further clouded the question. The City's expanded requirements put the proposal squarely on the procedural fence, in a precarious position. The applicant was left with a choice between lesser evils. After further analysis and consultation with you and Mr. Taraday, we opted for the safer, though arguably costlier, alternative of a re -start. This approach accommodates the City's altered requirements while tying up procedural loose ends. It serves the best interests of the City and the public, and, in consideration of all variables, likely is the path of least resistance. All of this comes at the applicant's expense. Owner cannot afford further interference. Following re -submittal, we expect the City's administration of this matter to proceed uneventfully. The updated design will reflect the ADB's comments at its December hearing. While that process has been abandoned, it provided pertinent and useful direction for the building re- design. Contemporaneous SEPA review will facilitate the consideration of aesthetics. Staff and the ADB are familiar with the proposal. Expedited processing should follow. We have been informed that standard application fees apply to the new application. Under the circumstances, we request that duplicative fees and charges from the earlier submittal be refunded, to the extent not already utilized by the City for necessary out-of-pocket costs such as public notice. Please advise immediately if anything more is required for these purposes. Ve ruly our and E. Gi rd Attorney for Edmonds Pine Street LLC cc: John Goodman Joe Kolmer, Weber Thompson Myer Harrell, Weber Thompson Jeff Taraday, City Attorney