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2018-08-08 Planning Board Packeto Agenda Edmonds Planning Board snl. ynyo COUNCIL CHAMBERS 250 5TH AVE NORTH, EDMONDS, WA 98020 AUGUST 8, 2018, 7:00 PM 1. CALL TO ORDER 2. APPROVAL OF MINUTES A. Approval of Draft Minutes of July 25, 2018 3. ANNOUNCEMENT OF AGENDA 4. AUDIENCE COMMENTS 5. ADMINISTRATIVE REPORTS A. Development Services Director Report 6. PUBLIC HEARINGS 7. UNFINISHED BUSINESS 8. NEW BUSINESS A. Shoreline Mater Program Periodic Review 9. PLANNING BOARD EXTENDED AGENDA A. Review Planning Board Extended Agenda 10. PLANNING BOARD CHAIR COMMENTS 11. PLANNING BOARD MEMBER COMMENTS 12. ADJOURNMENT Edmonds Planning Board Agenda August 8, 2018 Page 1 2.A Planning Board Agenda Item Meeting Date: 08/8/2018 Approval of Draft Minutes of July 25, 2018 Staff Lead: N/A Department: Planning Division Prepared By: Diane Cunningham Background/History N/A Staff Recommendation Review and approve draft minutes. Narrative Draft minutes are attached. Attachments: PB180725d Packet Pg. 2 2.A.a CITY OF EDMONDS PLANNING BOARD MINUTES July 25, 2018 Chair Monroe called the meeting of the Edmonds Planning Board to order at 7:00 p.m. in the Council Chambers, Public Safety Complex, 250 — 5r' Avenue North. BOARD MEMBERS PRESENT Nathan Monroe, Chair Matthew Cheung, Vice Chair Phil Lovell Daniel Robles Mike Rosen BOARD MEMBERS ABSENT Todd Cloutier (excused) Alicia Crank (excused) Carreen Nordling Rubenkonig (excused) READING/APPROVAL OF MINUTES STAFF PRESENT Rob Chave, Planning Division Manager Kernen Lien, Environmental Programs Manager Brad Shipley, Planner Jeff Taraday, City Attorney Jerrie Bevington, Video Recorder Karin Noyes, Recorder BOARD MEMBER LOVELL MOVED THAT THE MINUTES OF JULY 11, 2018 BE APPROVED AS PRESENTED. VICE CHAIR CHEUNG SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. ANNOUNCEMENT OF AGENDA The agenda was modified to add a discussion about the Critical Areas Ordinance (CAO) as Item 5b and a discussion about the Board's retreat as Item 8a. The remainder of the agenda was accepted as presented. AUDIENCE COMMENTS No one in the audience indicated a desire to comment during this portion of the meeting. DEVELOPMENT SERVICES DIRECTOR REPORT TO PLANNING BOARD Chair Monroe referred the Board Members to the written Development Services Director's Report and invited Board Members to comment. Board Member Lovell announced that he attended the July 181 Economic Development Commission meeting where they agreed to cancel their August 151 meeting. AMENDMENTS TO THE CRITICAL AREAS ORDINANCE (CAO) Mr. Lien reviewed that the Planning Board held a public hearing on CAO updates to specific wetland regulations on July 1 I' and forwarded a recommendation of approval to the City Council. He recalled that the purpose of the proposed amendments was to bring the wetland regulations in the CAO up to date with the Department of Ecology's (DOES) 2016 Guidance. The intent was to adopt the updated CAO sections as part of the Shoreline Master Program (SMP) during the upcoming periodic Packet Pg. 3 2.A.a review resulting in one set of wetland regulations that apply citywide. However, he received an email from the DOE on July 121, announcing new wetland guidance. He has since verified the City Council's intent to update the wetland regulations with the most recent guidance, which requires the Board to consider additional updates. The additional updates will be presented to the Board on August 22nd, and the Board will need to hold another public hearing before forwarding a recommendation to the City Council. Mr. Lien reviewed the four sections of the CAO that were part of the update to be consistent with the 2016 guidance. He explained that the new 2018 guidance pertains primarily to the buffer sections and the wetland ratings would remain nearly the same. The 2016 guidance has four sets of wetland buffers based on habitat scores, and the 2018 guidance only has three sets of buffers and the habitat scores are calculated differently. In the 2016 guidance, the lower Category 5 habitat score was not much different than the Category 3 and 4 habitat scores, so it was combined with Category 4. PUBLIC HEARING ON PERMIT DECISION MAKING -QUASI-JUDICIAL PROCESSES Mr. Lien reviewed that the City Council adopted Resolution No. 1367 (Attachment 1) in 2016, expressing the intent to adopt revisions to the Edmonds Community Development Code (ECDC) that will remove quasi-judicial decision -making responsibility from the City Council and other volunteer citizen boards to the extent allowed by law. The resolution requests that the staff and Planning Board prepare and forward to the City Council code revisions that are consistent with the resolution. Mr. Lien explained that the City currently has 5 decision processes as spelled out in the table in ECDC 20.01.003: • Type I are staff decisions with no notice and include lot line adjustments, critical area determinations, shoreline exemptions minor amendments to planned residential development (PRD), minor preliminary plat amendments and staff administrative design review. • Type II are staff decisions with notice and include accessory dwelling units (ADUs), State Environmental Policy Act (SEPA) determinations, preliminary short plats, land clearing and grading, revisions to shoreline management permits, administrative variances, and shoreline substantial development permits where a public hearing is not required. Type III are quasi-judicial decisions. Type III -A decisions include critical area variances, contingent critical area review if a public hearing is required, shoreline substantial development permits where a public hearing is required, shoreline variances, and shoreline conditional uses. Type III -A decisions are not appealable to the City Council. Type III-B decisions include outdoor dining, contingent critical area review if a public hearing is requested, shoreline substantial development permits where a public hearing is required and shoreline conditional uses and variances. Type III-B decisions are appealable to the City Council and include essential public facilities, design review where a public hearing by the ADB is required, conditional use permits and home occupation permits where a public hearing by the Hearing Examiner is required, variances, preliminary formal plats and preliminary planned residential developments (PRDs). • Type IV are quasi-judicial decisions that are appealable to the City Council. They include final formal plats, final PRDs and site -specific rezones. • Type V are legislative decisions that include development agreements, zoning text amendments, area -wide zoning map amendments, Comprehensive Plan amendments, annexations and development regulations. Mr. Lien explained that legislative decisions establish policies for future application and quasi-judicial decisions are the application of those policies. Quasi-judicial decisions have stricter procedural requirements that include proper notice of hearing, providing everyone with an interest in the proceedings an opportunity to be heard and to hear what others have to say, full disclosure of all facts being considered by the decision -making body, impartial decision makers free from bias and conflicts of interest, and decisions that are based on the facts of the case rather than on political pressure or vocal opposition. Mr. Lien reviewed that during the City Council's discussions relative to Resolution No. 1367, Councilmembers voiced frustration with the ex-parte contact prohibitions and concern about potential liability issues. They asked the staff and Planning Board to prepare and forward revisions to the code that would remove the City Council from quasi-judicial decision -making Planning Board Minutes July 25, 2018 Page 2 Packet Pg. 4 2.A.a making responsibility. Some code changes have already been implemented since adoption of the resolution. For example, the City Council was removed from the appeal process for decisions related to the Critical Areas Ordinance (CAO) and Shoreline Master Program (SMP). He reviewed the current proposal as follows: • The Table in ECDC 20.01.003 would be modified by changing all Type III-B decisions that were appealable to the City Council to Type III -A decisions that are appealable to Superior Court and not the City Council. The Type III-B decision process would then be eliminated. • The Table in ECDC 20.01.003 would also be modified to make development agreements, which are currently listed as Type V legislative decisions, Type IV quasi-judicial decisions. As proposed the process for development agreements would be similar to the process for site -specific rezones. • A number of amendments are proposed to update existing code language to be consistent with the changes proposed in Table 20.01.003. These changes were identified via an electronic search of the entire code. • The proposal would move final plat approval for subdivisions and PRDs from being Type IV -A quasi-judicial decisions before the City Council to being Type I administrative decisions. Subdivisions and PRDs require a multi- step process that starts with preliminary plat approval by the Hearing Examiner who may identify a number of conditions. The next step is civil design and infrastructure work. By the time final plats and PRDs get to the City Council for final approval, all of the preliminary requirements have been met and often all of the improvements have been installed and there is very little the City Council can do to affect change. Consistent with recent Senate Bill 5674, which allows legislative authority to be delegated to administrative personnel, proposed amendments to ECDC 20.75 and ECDC 20.35 would remove the City Council from the final approval process. • An additional change would be made to ECDC 20.75 to update the approval time periods. During the recent economic downturn, changes were made to extend the approval period for final and preliminary plats. However, this provision has expired and will be removed. • All references in the code to Community Development Director will be changed to Community Services Director. • ECDC 17.00.030.0 would be amended by eliminating the sentence that requires the City Council to review public agency variance requests. Currently, the Hearing Examiner makes a recommendation to the City Council, and the City Council holds a closed -record hearing and makes the final decision. This amendment would take the City Council out of this quasi-judicial process. • ECDC 20.100.040 is currently a problematic code section that is likely noncompliant with State law. It allows a property owner within a certain distance of a subject property to request that the permit be opened up again once it has been approved. Essentially, the provision could result in endless public hearings and was drafted prior to the Regulatory Reform Act of 1995, which limits the number of open record hearings to just one. The provision also runs counter to the Land Use Petition Act (RCW 36.70A), which states that once a land use permit has been approved and no appeal has been timely filed, the land use permit can no longer be judicially appealed even if it did not comply with permitting criteria when approved. It also prohibits projects from being collaterally attacked through other administrative permit review processes. Given these legal ramifications, staff is recommending that the provisions be deleted. However, to ensure that the City retains the right to suspend or revoke permits that fail to comply with conditions of approval or misrepresentations made in the application, a new section (ECDC 20.110.045) would be added. • There is confusion between Open Record Public Hearings (ECDC 20.06) versus Closed Record Public Hearings (ECDC 20.07). Currently, appeals of Type II staff decisions reference ECDC 20.07 for the appeal process, but appeals of Type II decisions are heard before the Hearing Examiner in an open record public hearing. The proposal is to combine the two sections into a single chapter and provide additional details about the appeal format and procedures before the Hearing Examiner. Planning Board Minutes July 25, 2018 Page 3 Packet Pg. 5 ECDC 20.01.003 currently identifies the approval process for development agreements as a Type V legislative action. The City Attorney has recommended that the approval process for development agreements be modified to a Type IV process with an open record public hearing before the Planning Board who would make a recommendation to the City Council. The City Council would hear the proposal in a closed record hearing format. Development agreements are similar to contract rezones and provide a way for the City to place more restrictive requirements on a project than the underlying zoning would allow. The development agreement review process should be generally consistent with the review process for other project permit applications that would likely be processed in conjunction with the development agreement. For example, a site -specific rezone is one type of project permit application that would likely be sought in conjunction with a development agreement. Therefore, it makes sense to use a similar quasi-judicial process. Board Member Lovell clarified that, as currently proposed, Type III decisions would require an open record public hearing before the Hearing Examiner. Mr. Lien said that would be true in most cases, but the ADB would participate in the design review process for applications that require SEPA. He referred back to the Table in ECDC 20.01.003, which outlines the types of actions and their respective review processes. As proposed, all of the permits that are appealable to the City Council now would be changed to be appealable to Superior Court. The only exception would be site -specific rezones and development agreements, which would be appealable to the City Council via a closed record public hearing. Board Member Lovell asked if the City Council would have an opportunity to negotiate with the developer about what the appropriate conditions of a development agreement might be. City Attorney Taraday described how he envisions the development agreement process moving forward, starting with him working with the staff and applicant to craft a draft development agreement to present to the Planning Board in an open record public hearing. The Planning Board would accept testimony from the applicant and public and then forward a recommendation to the City Council as to what the terms of the development agreement should be. Following a closed -record public hearing, the City Council can adopt the development agreement exactly as recommended by the Board or they can modify it based on their discussion. Because the City Council's hearing would be closed record, they would not be able to solicit any new information or ask questions about things that are not already on the record. If the Board doesn't ask the questions and get all of the pertinent information into the record during its hearing, it cannot be added to the record at a later time as part of the Council's review. The Planning Board would be the finders of fact for the City Council. The development agreement process is similar to the process the City currently uses to review site -specific rezones. However, instead of voting on an ordinance to adopt a development agreement, the City Council would vote to accept or modify the terms of the development agreement that is put forward by the Planning Board. Board Member Rosen asked if there is a financial impact associated with sending appeals to Superior Court as opposed to the City Council. City Attorney Taraday answered that judicial appeals typically cost more than administrative appeals. However, it is important to keep in mind that not everything would remain the same. For example, taking the City Council out of the appeal process would liberate them to participate in the hearing process and to appeal decisions made by the Hearing Examiner and ADB to Superior Court. Currently, the City Council does not have the ability to appeal Type III-B decisions because they are the body who hears the appeals. If a judicial appeal is initiated for a Type III-B decision, the appellant would have to move the appeal forward with no help from the City. Under the proposed amendment, if the appellant and the City are aligned and have the same consensus, the City Council can appeal a Hearing Examiner decision on its own, saving the taxpayers and citizens a lot of money and time. Essentially, the City Attorney would be responsible to appeal the decision to Superior Court. He summarized that significant changes take place when you free up the City Council to appeal its own Hearing Examiner decisions. Mr. Lien advised that the fee for appealing decisions to the City Council is currently $500, and City Attorney Taraday added that the fee to appeal a Land Use Petition Act (LUPA) decision to Superior Court is $250. The big cost difference is related to attorney fees, as many people do not have the ability to file appeals to Superior Court on their own. He also agreed that appellants are probably less likely to appeal actions to Superior Court than to the City Council. Mr. Lien pointed out that appellants often hire attorneys to present their cases to the City Council, as well. Chair Monroe recognized that Resolution No. 1367 mandates that the City Council be removed from the quasi-judicial decision - making process. He asked if staff believes the proposed amendments are the only way to implement the resolution. Mr. Lien said he does not know of any other way to accomplish the task other than altering the processes. City Attorney Taraday agreed Planning Board Minutes July 25, 2018 Page 4 Packet Pg. 6 2.A.a that, from a high-level overview, there is no other way to accomplish the task, but the details of the process could certainly be modified, as well. He expressed his belief that the proposed changes represent what the City Council asked the staff and Planning Board to do. Board Member Lovell asked if the proposed changes would take the City Council completely out of quasi-judicial decisions that are made by the Hearing Examiner. Mr. Lien responded that would be true unless the City Council opposes a decision made by the Hearing Examiner and decides to appeal to Superior Court. City Attorney Taraday explained that potential liability to the City and individual Councilmembers was a significant factor in the City Council's decision to adopt Resolution No. 1367. City Councilmembers are elected to be legislators and represent their constituents, not to be judges. It is difficult for Councilmembers, who are accustomed to being responsive to their constituents, to play the role of judge and judicially apply the code based on the record in front of them. Some are unable to fill this role, and they end up making arbitrary and capricious decisions that are not consistent with law or the record. When this occurs, the City could be subjected to millions of dollars in damages. These same risks would not be present if the City Council were to appeal a Hearing Examiner decision to Superior Court. While the City may not win the appeal, the risks would be minimized. City Attorney Taraday explained that, under the current process, City Council Members are unable to participate in public hearings for quasi-judicial actions because it would disqualify them from hearing an appeal under the Appearance of Fairness rules. If they no longer have to serve in this capacity, they could feel free to be a party of record and participate in hearings to represent their constituents' viewpoints. Vice Chair Cheung asked about the process the City Council would use to appeal Hearing Examiner decisions to Superior Court. City Attorney Taraday answered that the City Council would probably meet in an executive session with their attorney to discuss the Hearing Examiner decision, as well as the pros and cons of moving forward with an appeal and the likelihood the City would prevail. Ultimately, the City Council would make a legislative decision about whether to appeal or not. No public hearing would be required, but the vote would need to take place in a public meeting. Vice Chair Cheung asked if the City would be responsible to pay additional attorney fees associated with the appeal. City Attorney Taraday answered that the City Attorney's Office is retained on a flat -fee basis. They get paid the same amount every month regardless of whether there is litigation or not. Mr. Lien pointed out that the City has incurred additional attorney fees for closed record appeals to the City Council when an independent attorney must be hired to represent the City's case while the City Attorney represents the City Council. Board Member Lovell asked how other cities have addressed this issue. City Attorney Taraday advised that the Washington Cities Insurance Authority (WCIA) pleads with cities to do this because it significantly reduces risk. Before the City Council adopted Resolution No. 1367 in 2016, the Executive Director of the WCIA asked them to please consider getting out of the quasi-judicial decision -making process because of the risk it creates to the City and the public. Chair Monroe reminded the Board that the purpose of the hearing is not to debate the merits of Resolution No. 1367, which has already been adopted by the City Council. The purpose of the hearing is to decide if the proposed amendments are the right way to implement the resolution. Gary Nelson, Edmonds, observed that this issue has been debated by many jurisdictions for a number of years. Three months following the City Council's adoption of Resolution No. 1367, Proposition 4 appeared on the ballot to change the charter for Snohomish County. The issue had come before the County Council twice before and was defeated both times. The results of the ballot measure in Edmonds was interesting, as 57.7% of the precincts voted no. It appears that the majority of City residents have strong feelings about what their City Council and appointed officials are responsible to do. He said he is concerned that the proposed amendments would significantly increase the cost of appealing quasi-judicial decisions. In addition to a filing fee, appellants may have to hire an attorney to assist in the appeal to Superior Court. Mr. Nelson commented that staff put a lot of thought into many of the proposed changes, and most appear to be very reasonable. However, it is not likely that the proposed changes to the quasi-judicial appeal process will be acceptable to the residents of Edmonds. While City Attorney Taraday suggests the changes will liberate the City Council and eliminate potential conflicts, most citizens of Edmonds expect their elected officials to carry on their current role and make responsible decisions regardless Planning Board Minutes July 25, 2018 Page 5 Packet Pg. 7 2.A.a of their personal opinions. They have been elected to study the facts and make decisions based on law. He is disappointed with Councilmembers who say this responsibility is too difficult, and perhaps they should consider resigning their positions. The appointed officials are very responsible and capable of providing recommendations to the City Council, but the City Council should retain the right to make the final decision. Mr. Nelson expressed his belief that the current approach for appeals is accurate and responsible and the City should simply maintain this process and table the proposed amendments. However, he would like the other proposed amendments to go forward as presented. He referred to written comments (Attachment 8) he submitted prior to the meeting, including a list of LUPA issues. He summarized that although neighbors sometimes quarrel over issues, none of the issues are so difficult that appeals to Superior Court are warranted. He said he supports the current process of a Hearing Examiner decision that is appealable to the City Council. He pointed out that appealing decisions to the Superior Court can be costly and take significantly more time. In most cases, appellants have to hire an attorney to represent their case. He encouraged the Board to consider what is in the best interest of the citizens of Edmonds. They should strive to avoid increasing the financial impacts to citizens and prolonging the process of appeals. Sending appeals to the City Council is a timely approach that works. Board Member Lovell referred to Mr. Nelson's written comments (Attachment 8), which state that RCW 36.70C defines land use decisions as "a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals. " He expressed his belief that the Hearing Examiner meets this criterion. The Hearing Examiner has the background, experience and know how to make decisions based on all the facts and City regulations, and their decisions should stand. If someone wants to appeal, they should have to go to the higher authority, which he believes is the Superior Court. He said he supports the changes as proposed. Vice Chair Cheung asked how often quasi-judicial decisions are appealed. Mr. Chave reviewed that the permit review process was originally set up in 2009 to take the City Council out of closed record appeals, but it was put back into the process in 2010. Since that time, the City Council has only heard a few appeals. Vice Chair Cheung asked if there are any other appeal options the Board could consider other than City Council or Superior Court. Mr. Lien pointed out that appeals to shoreline permits go to the Shoreline Hearings Board rather than to Superior Court, but if the Council is removed from quasi-judicial decision making, Superior Court would be the next step for all other appeals. Chair Monroe expressed his belief that the City Council is in the best position to make decisions for Edmonds. He questioned why the City Council does not want to retain this decision -making ability. He said he is a little leery of giving up the values of Edmonds into the hands of the Snohomish County court. Vice Chair Cheung said he understands that the City Council would prefer not to have to make these decisions, but the same could be said for citizens who are asked to serve on juries. He recognized that there are a lot more opportunities for ex-parte communications to occur with the current process, but these same concerns could be attributed to someone who is asked to serve on a jury. Mr. Lien explained that the amendments would not remove the City Council from the process. The City Council would still be responsible for establishing the policies and regulations that are applied to specific permits. Chair Monroe agreed but pointed out that the proposed amendments would remove the City Council from the role of interpreting the rules and policies. He understands why the City Council supports the change, but he is not sure it will benefit the citizens and the City. Board Member Robles cautioned that a certain balance must be made between risk and inherent risk and decisions should not be made based on monetary aspects alone. He recalled a recent rezone that came before the Planning Board. A lot of work was done by the applicant and staff, but the public was not properly notified of the proposal and were ill prepared to participate in the hearing. The developers seemed to have an advantage over the citizens and the Board was constrained by the facts and couldn't help represent the citizen's concerns based on the constraints of the quasi-judicial process. He asked if that is analogous to what the City Council would be faced with because they would be constrained to talk only about the facts of the proposal. City Attorney Taraday commented that the Board has more latitude in an open record public hearing than the City Council has in a closed record public hearing. The Board should never feel constrained in collecting the facts and information needed to make a recommendation. Planning Board Minutes July 25, 2018 Page 6 Packet Pg. 8 2.A.a City Attorney Taraday referred to Vice Chair Cheung's earlier comment comparing the City Council's role to that of a jury. He explained that for site -specific rezone applications and development agreements, the Planning Board would serve as the jury in the sense that the Board would conduct the hearing and collect testimony and evidence from witnesses. The Board gets to make factual findings based on everything they hear and see and then forward a recommendation to the City Council. The Hearing Examiner would play this same role in Hearing Examiner permits. Even with the current process, the City Council does not get to play that role because they are limited to the evidence collected by the Board or Hearing Examiner. He summarized that, in court, juries are not asked to make legal decisions or answer questions of law. The judge hears the legal stuff and the jury hears the factual stuff and they come together to make a decision. Currently, the City Council is frequently asked to make legal decisions when they are sitting in a quasi-judicial capacity. BOARD MEMBER LOVELL MOVED THAT THE BOARD FORWARD THE PROPOSED AMENDMENTS RELATED TO PUBLIC HEARING PERMIT DECISION MAKING AND QUASI-JUDICIAL PROCESSES TO THE CITY COUNCIL WITH A RECOMMENDATION OF APPROVAL AS OUTLINED IN THE STAFF REPORT DATED JULY 25, 2018. Chair Monroe recognized that the City Council has already made the decision to remove themselves from quasi-judicial decisions via Resolution No. 1367, and the proposed amendments are intended to implement this earlier action. However, he suggested that the motion should include a recommendation that the City Council carefully consider the concerns that have been discussed by the Board before taking final action. Mr. Lien commented that the Board can recommend approval or denial of the proposed amendments or recommend changes, regardless of the Council's direction in Resolution No. 1367. Mr. Chave referred to Mr. Lien's earlier comment about how the monetary impact of the proposed amendments would be less if you consider the overall process and risks. The real question is if you want the City Council to be more involved in the legislative role where they are able to represent the interest of their constituents. As pointed out by Mr. Lien and City Attorney Taraday, there are struggles that any City Council will encounter when they try to work both roles because it requires them to step out of one to be in the other. Councilmembers are elected to represent their constituents, and that is difficult to do when they are required to act as judge on quasi-judicial decisions. This conflict of roles is at the heart of the proposed changes. Mr. Chave commented that very few appeals end up before the City Council. If there are few appeals, maybe the risk isn't so high. On the other hand, if there are few appeals, the proposed amendments would not create a significant impact to citizens. As a staff person, he supports wanting the City Council to represent its citizens. They are most effective when they are able to develop and oversee regulations. Citizens are much better off having their voices heard during the legislative processes that establish codes and regulations. It is better for the City Council to make decisions at the rule level rather than at the end of the process trying to figure out how to not follow the rules in order to represent their constituents. Board Member Robles observed that one law of risk management is you want the entity that is best qualified to handle the risk to carry the risk. He asked what type of citizens would end up having to litigate their way back to wholeness if the amendments are adopted as proposed. In other words, he asked who would be impacted the most? Mr. Lien said it could be anyone, from major land owners to single property land owners. Everyone would be treated the same. He advised that in most of the appeals he has heard before the City Council, attorneys have been involved. Sometimes property owners pool their resources to get representation, but it is not a requirement. City Attorney Taraday said he can think of several LUPA actions (not more than 10) that have been appealed to the City Council during his tenure as City Attorney. In at least three cases the appellants were pro say. He explained that a LUPA action is on the record and appeals to Superior Court do not require witnesses or cross examination. The court simply reads the facts from a sheet of paper. The appeal decision is based on the same record that would be sent to the City Council for consideration. Board Member Robles asked how undue influence could play into a Councilmember's decision. City Attorney Taraday explained that anyone sitting in a quasi-judicial capacity is required to disclose relationships that could cause bias. A Councilmember who is strongly anti -development would not necessary be required to disclose this information but basing a decision solely on this strong bias could create liability for the City, and that is where the biggest risk lies. Planning Board Minutes July 25, 2018 Page 7 Packet Pg. 9 Board Member Rosen said the severity of the situation appears to come from City Councilmembers who cross the line. It would help him to better understand the problems they are trying to solve. Is the problem based on exposure to risk they have encountered over the many years they have been doing quasi-judicial appeals, or were the amendments initiated based on feedback from the WCIA? Mr. Chave answered that in his tenure with the City he has seen things that concerned him in terms of how things play out at the Council level. This is not simply an academic discussion but based on real -life experiences. Board Member Rosen asked, in the scheme of risk, how does the Council's involvement in quasi-judicial appeals compare. City Attorney Taraday said the amendments are intended to manage but not eliminate risk. In his opinion, the amendments represent a very sensible way to manage risk. Divorcing politics from the land use issues, you get a better land use application process and better policies. It is important to understand that, while the City Councilmembers may have a better sense of the values of the City than a Hearing Examiner or judge, those values are not supposed to be expressed when processing land use applications. They are supposed to be expressed when adopting code regulations. Mr. Lien referred to City Attorney Taraday's 2016 memorandum stating that not only is it a risk to the City but individual Councilmembers could also be liable for decisions made in the quasi-judicial process. CHAIR MONROE SECONDED THE MOTION. Chair Monroe voiced reservations about the proposed amendment to take the Council out of the quasi-judicial decision -making process, recognizing that it is nearly impossible to write codes that developers cannot eventually find loopholes around. He said he is shocked that the City Council wants to give away this power. He believes the proposed changes will eventually be adopted by the City Council but the Board should emphasize the need for the Council to take a hard and careful look at the pros and cons before making a final decision. CHAIR MONROE MOVED TO AMEND THE MOTION TO ADD THAT THE BOARD ADVISES THE CITY COUNCIL TO TAKE A HARD LOOK BEFORE GIVING AWAY THIS PUBLIC TRUST. VICE CHAIR CHEUNG SECONDED THE MOTION TO AMEND. Vice Chair Cheung voiced concern about turning over quasi-judicial decisions to a judge who may not be as familiar with the City's codes as the City Council. The City Councilmembers are accountable to their constituents. He understands the potential conflicts of interest but agrees the Council should carefully weigh the pros and cons before making a decision. It is different for petitioners to stand in front of a judge who would expect them to present their appeal in a more legal manner versus speaking before the City Council. On the other hand, it sounds like appeals are not common and most people who appeal are probably more experienced and have their own counsel. THE MAIN MOTION, AS AMENDED, WAS UNANIMOUSLY APPROVED. Chair Monroe closed the public hearing. The Board took a 5-minute break at 8:32 p.m. They reconvened the meeting at 8:37 p.m. PUBLIC HEARING ON REZONE AT 9107 AND 9111— 236TH STREET SW FROM RS-8 TO RM-1.5 Chair Monroe reviewed the rules and procedures for the public hearing and then opened the hearing. He reminded the Board of the appearance of Fairness Doctrine and asked if any member of the Board had engaged in communication with opponents or proponents regarding the issues in the rezone application outside of the public hearing process. All Board Members answered no. He also invited Board Members to disclose any ex-parte communications, and none indicated any. He asked if any member of the Board had a conflict of interest or believed he/she could not hear and consider the application in a fair and objective manner. None indicated a concern. Lastly, he asked if anyone in the audience objected to any Board Member's participation as a decision maker in the hearing. No one in the audience indicated a concern. All those who planned to participate in the hearing were asked to stand, raise their right hand, and affirm that the testimony they give would be the truth, the whole truth and nothing but the truth. Mr. Shipley presented the Staff Report and Martin Reimers was present to represent the applicant. Planning Board Minutes July 25, 2018 Page 8 Packet Pg. 10 Mr. Shipley advised that the applicant is proposing to rezone the subject sites (9107 and 9111 — 2361 Street SW) from Single - Family Residential (RS-8) to Multi -Family Residential (RM-1.5). The two sites are currently developed with a single-family residential use and a legal, non -conforming multi -family use. If adopted, the proposal would bring the non -conforming multi- family use into compliance with the zoning ordinance. The parcels were developed under Snohomish County zoning between 1958 and 1970, and the subject site was annexed into the City in 1997. Mr. Shipley reminded the Board of the criteria it must consider when reviewing site -specific rezone applications: Comprehensive Plan. Whether the proposal is consistent with the Comprehensive Plan. The Comprehensive Plan Map designation change from Single Family Urban I to Edmond Way Corridor was heard by the City Council on October 17, 2017. The Council made the motion to approve the map change, but the amendment was inadvertently omitted from the ordinance adopting the 2017 Comprehensive Plan amendments. The Council is scheduled to take action on the 2018 Comprehensive Plan amendments on August 21 ". Once adopted, the zoning proposal will be consistent with the Comprehensive Plan. The proposal is also consistent with the Comprehensive Plan Policy that multi -family uses must be located near arterial or collector streets. The parcels are located on 236r' Street SW but are within 300 feet of Edmonds Way where there is public transportation. Therefore, the proposal meets the criteria for being adjacent to a major arterial. • Zoning Ordinance. Whether the proposal is consistent with the purposes of the zoning ordinance and whether the proposal is consistent with the purposes of the proposed zone district. The current zoning designation allows one single-family home per lot, and the proposed new zoning designation would allow a density of six units on the 9107 property and 14 units on the 9111 property. If the lots are combined, a total of 21 units would be allowed. Rezoning the property would bring the current multi -family use into conformance with the code. • Surrounding Area. The relationship of the proposed zoning change to the existing land uses and zoning of surrounding or nearby property. Surrounding uses in the subject area are primarily multi -family and single-family residential. There is some light commercial at the corner of 236' Street SW and SR-104. The subject site is bordered on three sides by multi -family (RM-1.5) zoning, and single-family (RS-8) zoning abuts the subject site to the west. Staff believes the proposed rezone is compatible with the surrounding area. • Changes. Whether there has been sufficient change in the character of the immediate or surrounding area or in city policy to justify the rezone. The proposed zoning is justified as the area is already developed with multi -family residential that has existed since the late 1970's. Rezoning the property would bring the current non -conforming multi -family use into compliance. • Suitability. Whether the property is economically and physically suitable for the uses allowed under the existing zoning and under the proposed zoning. One factor could be the length of time the property has remained undeveloped compared to the surrounding area and parcels elsewhere in the same zoning. The neighborhood surrounding the subject parcels has long been developed with either single-family homes or apartments. The site is located about 300 feet from a major arterial so the traffic impact to the neighborhood would be minimal. If rezoned for multi -family use, a future development application would be required to submit a traffic impact analysis. A SEPA and Architectural Design Board review would also be required for any proposal with more than four units. • Value. The relative gain to the public health, safety and welfare compared to the potential increase or decrease in value to the property owner. There would be an increase in value to the property owners if the proposal is approved, and the greatest impact of future development would be to the single-family zone adjacent to the subject site. During the Comprehensive Plan amendment public hearing, one neighbor voiced concern about the allowable building heights under RM-1.5 but appeared satisfied after the discussion. There have been no comments or questions related to the rezone proposal to date. Mr. Shipley recommended the Planning Board make a recommendation to the City Council to approve the requested rezone as outlined in the Staff Report. The applicant, Martin Reimers, did not have any additional comments to add but indicated he was available to answer questions. Planning Board Minutes July 25, 2018 Page 9 Packet Pg. 11 John Lange, Edmonds, said that until three years ago, he was the property manager for the apartment units located on the subject site. He was impressed with the quality of the owners. The owners repaired things and managed the properties well, doing upgrades when needed. They did not let them fall into disrepair with the hope of getting a rezone at some point in the future. They maintained high -quality tenants, as well. The property was a benefit to the community. Board Member Lovell asked about access to the property, and Mr. Shipley answered that each property has a separate access from 236' Street SW. Board Member Lovell asked if surrounding property owners have commented regarding the proposed rezone, and Mr. Shipley answered that no comments were received relative to the rezone application, but one adjacent property owner voiced concern during the Comprehensive Plan amendment hearing about height. After he let her know that the height limit would not be significantly different, she appeared to be satisfied with the proposed change. Board Member Lovell asked if the property owner intends to demolish the existing buildings and redevelop the site. Mr. Reimers indicated the intent is to redevelop the site under the RM-1.5 zoning. Chair Monroe asked how many people live on the subject site now, and Mr. Reimers answered that there are seven apartment units and one single-family home. Chair Monroe pointed out that the rezone would allow up to 21 units, depending on whether or not the lots are combined. He asked about traffic impacts, and Mr. Shipley reminded the Board that a traffic study would be required as part of any development application. Board Member Robles pointed out that 236r' Street is posted as 25 miles per hour and is a major driveway to Madrona School. It also connects with SR-104, which has a D rating for traffic with a recent motorcycle accident. It is important to note that a traffic study will be required. Board Member Robles asked if adjacent property owners were actively notified of the proposed change, and Mr. Shipley answered that notices were posted on the site and mailed to property owners. Notice was also published in the local newspapers and on the City's website. Board Member Robles recalled that there were some recent problems with stormwater runoff during a significant storm. He asked if stormwater issues would be addressed as part of a development proposal. Mr. Shipley responded that improvements have been made in the area recently and stormwater would be reviewed by the Engineering Department prior to issuance of a development permit. BOARD MEMBER LOVELL MOVED THAT, BASED ON THE FINDINGS OF FACT, ANALYSIS, CONCLUSIONS AND ATTACHMENTS IN THE STAFF REPORT, THE BOARD FORWARD A RECOMMENDATION TO THE CITY COUNCIL TO APPROVE THE REQUESTED REZONE FOR PROPERTY LOCATED AT 9107 AND 9111- 236TH STREET SW FROM SINGLE-FAMILY RESIDENTIAL (RS-8) TO MULTI -FAMILY RESIDENTIAL (RM- 1.5). CHAIR MONROE SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. DISCUSSION ON POTENTIAL PLANNING BOARD RETREAT In light of the Board's recent work on the Housing Strategy, Board Member Lovell suggested it would be helpful to talk about one or more aspects of the strategies implementation at their retreat. Options include: • Invite a developer to talk about what they need to develop affordable housing on a given piece of land in Edmonds. • An independent discussion and presentation by staff as to the available lands. The Available Lands Inventory could be used to identify where different types of housing might be developed. • Pick a hypothetical property that may involve a rezone to accommodate affordable housing. What would the steps and process be to get that done? Chair Monroe noted that Board Member Crank previously suggested that a representative from Blockable be invited to share information with the Board. The Board decided to postpone further discussion about the retreat until more Board Members were present to participate. They were invited to email potential agenda topics to staff. Planning Board Minutes July 25, 2018 Page 10 Packet Pg. 12 2.A.a REVIEW OF EXTENDED AGENDA Chair Monroe reviewed that the August 8' agenda will include a discussion about the SMP periodic review and potential dates and agenda topics for the retreat. The August 22nd agenda will include continued discussion about the SMP periodic review and a presentation on additional amendments to the Critical Areas Ordinance. PLANNING BOARD CHAIR COMMENTS Chair Monroe did not provide any additional comments. PLANNING BOARD MEMBER COMMENTS There were no Board Member comments. ADJOURNMENT The Board meeting was adjourned at 9:10 p.m. Planning Board Minutes July 25, 2018 Page 11 Packet Pg. 13 5.A Planning Board Agenda Item Meeting Date: 08/8/2018 Development Services Director Report Staff Lead: Shane Hope, Director Department: Planning Division Prepared By: Diane Cunningham Background/History N/A Staff Recommendation N/A Narrative Report is attached Attachments: Director. Report.08.06.18 Packet Pg. 14 5.A.a of EbAf r Date: To: From: Subject MEMORANDUM August 3, 2018 Planning Board Shane Hope, Development Services Director Director Report "Every great dream begins with a dreamer. Always remember, you have within you the strength, the patience, and the passion to reach for the stars to change the world." -Harriett Tubman Next Planning Board Meeting The Planning Board meets next on August 8. The agenda includes a review of the Shoreline Master Plan. REGIONAL NEWS VISION 2040 Award The Edmonds Highway 99 Subarea Plan will receive a VISION 2040 Award from the Puget Sound Regional Council (PSRC) at the Edmonds City Council meeting on August 7. PSRC is an overarching metropolitan organization representing four counties (Snohomish, King, Pierce, and Kitsap) and all the cities within them. This is the first time Edmonds has been given a VISION 2040 award, which is based on a competitive process and criteria. The award recognizes the project's value as an outstanding planning example for the region. Snohomish County Tomorrow (SCT) The SCT Steering Committee met July 25, with an agenda with an agenda that included: ❑ Update on PSRC activities ❑ Update on Economic Alliance Snohomish Count ❑ Public Health and Planning Intersect (i.e., how land use/transportation planning and good levels of public health work together) 1IPage Packet Pg. 15 5.A.a Alliance for Housing Affordability (AHA) AHA—a countywide organization of which Edmonds is a member —has announced that over $500,000 is available for qualified housing projects. You can find the official Notice, as well as Combined Funders Application (CFA) forms, and the AHA Housing Trust Fund (HTF) Policy Manual on the AHA website, here. These funds are for use on projects within Snohomish County by nonprofit agencies, public housing authorities and cities or towns within Snohomish County. Funds come from Snohomish County Real Estate Excise Tax (REET) 2 funds, per RCW 82.46.037 Section (1) (b) and (c), as well as the Town of Woodway's general fund. Projects must apply these funds to projects or units that will provide homeless housing, and also demonstrate the ability to expend all awarded funds by June, 2019. More details can be found in the online announcement. Applications are due by COB October 30th, 2018. Puget Sound Regional Council (PSRC) ❑ Our central Puget Sound region continues to draw newcomers. PSRC figures for 2018 show that 67,860 people were added to our region in just the last year. ❑ PSRC's Executive Board has approved the annual adjustment of Federal Transit Administration funding, which boosted transit funding to our region by $38.8 million for 2018. ❑ A Regional Aviation Baseline Study will launch soon to better understand the region's airports and their long-term aviation needs. LOCAL NEWS Architectural Design Board (ADB) The Architectural Design Board met on August 1, 2018. The meeting included: ❑ The first was Paradise Heights, a 12 unit multifamily project at 546 Paradise Lane (PLN20180025). Following a public hearing, the Board approved the project with conditions. ❑ The second project was the Edmonds-Woodway High School synthetic turf conversion project at 7600 212t" Street SW (PLN20180014). After presentations and discussion, the Board recommended approval of the project's design with conditions. This review is consolidated with three other land use permits so all four will next go to the Hearing Examiner. He will hold a public hearing and make a recommendation on all four permits to the City Council, who will make the final decision on the project. Arts Commission The Arts Commission meets next on August 6. An agenda will be posted on-line when available. Cemetery Board The Cemetery Board meets next on August 16. Its agenda will be posted on-line when available. Climate Protection Committee The Climate Protection Committee met on August 2. The agenda included: ❑ Discussed upcoming meeting ❑ Discussed summary report of Taming Big Foot 2 1 P a g e Packet Pg. 16 5.A.a Diversity Commission The Diversity Commission met on August 1. Its agenda included: ❑ Update from City ❑ Closed captioning in public venues ❑ Presentation of recommendations to Mayor and Council ❑ Film series, World Cafe ❑ Incident Response Language ❑ Incidents in Community and Commission Role Economic Development Commission (EDC) The Economic Development Commission meets next on August 15. An agenda will be posted on- line when available. Hearing Examiner The Hearing Examiner has no meeting scheduled for August 9. Historic Preservation Commission (HPC) The Historic Preservation Commission meets next on August 9. An agenda will be posted on-line when available. Tree Board The Tree Board's August 2 meeting included: ❑ Update on upcoming events activity ❑ Discussion of City web page content ❑ 2018 Budget & planning for 2019 Budget City Council The Council's July 24 meeting included: ❑ Presentation from Bicycle Advisory Group ❑ Adoption of: (a) Ordinance for Safe Storage of Firearms; and (b) Ordinance for Reporting Lost or Stolen Firearms ❑ Public Hearing and approval of HPC's recommendation for eligibility of Yost House (658 Maple St) for Register of Historic Places ❑ Introduction to Draft Housing Strategy ❑ Critical Areas Update to use most recent Ecology guidance. The Council's August 7 meeting will include: ❑ PSCRC VISION 2040 Award ❑ Verdant Health Commission Update ❑ Review of 2018 Comprehensive Plan Amendments ❑ Review of Revised Draft Urban Forest Management Plan ❑ Annual Transportation Benefit District Report ❑ Council Discussion of 2019 Budget. 31 Packet Pg. 17 5.A.a COMMUNITY CALENDAR • August 3: Outdoor movie nights (Wonder), Frances Anderson Center field, 8:45 pm • August 4: Port of Edmonds 70th Anniversary, at Marina at 11 am • August 5: Sea Jazz, Port of Edmonds Public Plaza, 1— 3 pm • August 5: Concerts at City Park, 3pm • August 10 —August 12: Taste of Edmonds • August 13: Low Tide Beach Walk, Olympic Beach Visitor Station, 12 pm • August 16: Art Walk, downtown at 5 pm 41 Packet Pg. 18 8.A Planning Board Agenda Item Meeting Date: 08/8/2018 Shoreline Mater Program Periodic Review Staff Lead: Kernen Lien Department: Planning Division Prepared By: Kernen Lien Background/History Under the Shoreline Management Act (SMA), each city and county with "shorelines of the state" must prepare and adopt a Shoreline Master Program (SMP) that is based on state laws and rules but tailored to the specific geographic, economic and environmental needs of the community. The SMP is essentially a combined comprehensive plan, zoning ordinance, and development permit system for shoreline specific uses. The SMA requires each city and county to review, and if necessary, revise their SMP at least once every eight years. The legislature set a staggered schedule that alternates with similar reviews under the Growth Management Act. The City of Edmonds is required to complete its SMP periodic review by June 30, 2019. The Edmonds City Council adopted Resolution No. 1411 initiating the periodic review and adopting the Work Program and Public Participation Plan on May 22, 2018. Staff Recommendation Continue review of SMP revisions at future Planning Board meetings. Narrative The periodic review ensures the SMP stays current with changes in laws and rules, remains consistent with other City of Edmonds plans and regulations, and is responsive to changed circumstances, new information and improved data. The City of Edmonds just completed a comprehensive update of its SMP in June 2017. This comprehensive update took many years to complete and some recent amendments to the SMA and shoreline guidelines did not get incorporated in the City's SMP. Attachment 1 contains the periodic review checklist which identifies recent statutory and regulatory amendments that relate to shorelines. Most of the updates identified in the SMP Periodic Review Checklist are minor in nature and will not substantially modify the SMP adopted in 2017. Staff added the Other Review Elements section to the end of Ecology's checklist to identify a couple of other items that maybe amended with this periodic update. Updates to the SMP may result from the site specific study of the Edmonds Marsh being undertaken by the City including updating the Shoreline Inventory and Characterization and potential modifications to the development regulations associated Packet Pg. 19 8.A with the Urban Mixed Use IV shoreline jurisdiction. Additionally, staff identified section ECDC 24.80.100 for process clarifications how a shoreline permit review moves from a staff decision process (Type II) to a public hearing process (Type III). Staff has also recommended that the City of Edmonds revise its critical area ordinance (CAO) wetland regulations for consistency with Department of Ecology's most recent Wetland Guidance for CAO Updates. The recent CAO update was completed prior to Ecology's issuance of their updated wetland guidance. This updated guidance was incorporated into the SMP, but the CAO has yet to be revised to include the most recent guidance on wetlands. As a result, the City currently has two sets of wetland regulations, one that applies in shoreline jurisdiction and a second that applies outside of shoreline jurisdiction. Updating the CAO and incorporating the CAO by reference will provide consistency for wetland regulation within the City. Attachment 2 contains the proposed code amendments in Title 24 ECDC for the issues that are noted in the SMP Periodic Review Checklist. Staff will review these amendments at the Planning Board meeting. Attachments: Attachment 1: SMP Periodic Review Checklist Attachment 2: Proposed SMP Periodic Review Code Revisions to Title 24 ECDC Packet Pg. 20 8.A.a DEPARTMENT OF �IIIIECOLOGY qVIIIIiiiiim State of Washington SHORELINE MASTER PROGRAM PERIODIC REVIEW Periodic Review Checklist Introduction This document is intended for use by counties, cities and towns conducting the "periodic review' of their Shoreline Master Programs (SMPs). This review is intended to keep SMPs current with amendments to state laws or rules, changes to local plans and regulations, and changes to address local circumstances, new information or improved data. The review is required under the Shoreline Management Act (SMA) at RCW 90.58.080(4). Ecology's rule outlining procedures for conducting these reviews is at WAC 173-26-090. This checklist summarizes amendments to state law, rules and applicable updated guidance adopted between 2007 and 2017 that may trigger the need for local SMP amendments during periodic reviews. How to use this checklist See Section 2 of Ecology's Periodic Review Checklist Guidance document for a description of each item, relevant links, review considerations, and example language. At the beginning: Use the review column to document review considerations and determine if local amendments are needed to maintain compliance. See WAC 173-26-090(3)(b)(i). At the end: Use the checklist as a final summary identifying your final action, indicating where the SMP addresses applicable amended laws, or indicate where no action is needed. See WAC 173-26- 090(3)(d)(ii)(D), and WAC 173-26-110(9)(b). Local governments should coordinate with their assigned Ecology regional planner for more information on how to use this checklist and conduct the periodic review. Row Summary of change 2017 a. OFM adjusted the cost threshold for substantial development to $7,047. b. Ecology amended rules to clarify that the definition of "development" does not include dismantling or removing structures. C. Ecology adopted rules that clarify exceptions to local review under the SMA. Review ECDC 24.80.010.13.1 lists a threshold value of $5,718. ECDC 24.90.020.1 does not include the clarifying sentence at the end of the definition noting that "development" does not include dismantling or removing structures. ECDC 24.80 does not include the clarifications for exceptions to local review. Shoreline Master Program Periodic Review Checklist Shorelands and Environmental Assistance Program, September 20, 2017 Action Section should be updated to reflect the updated dollar threshold. Definition of development should be updated. Should add new section to ECDC 24.80 consistent with WAC 173-27-044 and 173-27- 045. 1 Packet Pg. 21 Row i Summary of change d. Ecology amended rules that clarify permit filing procedures consistent with a 2011 statute. e. Ecology amended forestry use regulations to clarify that forest practices that only involves timber cutting are not SMA "developments" and do not require SDPs. f. Ecology clarified the SMA does not apply to lands under exclusive federal jurisdiction g. Ecology clarified "default" provisions for nonconforming uses and development. III Ecology adopted rule amendments to clarify the scope and process for conducting periodic reviews. Ecology adopted a new rule creating an optional SMP amendment process that allows for a shared local/state public comment period. Submittal to Ecology of proposed SMP amendments. Review Administrative procedures in 24.80 are consistent with the permit filing procedures adopted un SSB 5192. The City of Edmonds' SMP relies on the Forest Practices Act (RCW 76.09) for forestry activities within shoreline jurisdiction as recommended by WAC 173-26-241(3)(e). No shoreline areas within Edmonds jurisdiction are under exclusive federal jurisdiction. The City of Edmonds' SMP contains a nonconforming development chapter (Chapter 24.70 ECDC). The only mention of periodic reviews (updates) in the SMP is under the Administrative Authority and Responsibility section in ECDC 24.80.150. ECDC 24.80.150.A notes a cumulative effecters review every seven years with the SMP update. Joint public hearings with other local, state, regional, federal or other public agency allowed by ECDC 20.06.001. City of Edmonds may consider the optional SMP amendment process during the periodic update. The City of Edmonds' SMP does not contain a description Shoreline Master Program Periodic Review Checklist Shorelands and Environmental Assistance Program, September 20, 2017 8.A.a DEPARTMENT OF ECOLOGY _I�� State of Washington Action No amendment necessary. No amendment necessary. No amendment necessary. Should considered amending provision requiring a nonconforming structure which is moved any distance to be brought into full conformance. Current language may act a disincentive to making something less nonconforming (e.g. move further away from shoreline). Consider adding line regarding periodic reviews under City Council's Administrative Authority and Responsibility (ECDC 24.80.150.C) and correct the update frequency in ECDC 24.80.150.A. No amendment necessary. No amendment necessary. 2 Packet Pg. 22 Row 2016 a. b. 2015 a. 2014 a. b. 2012 i Summary of change The Legislature created a new shoreline permit exemption for retrofitting existing structures to comply with the Americans with Disabilities Act. Ecology updated wetlands critical areas guidance including implementation guidance for the 2014 wetlands rating system. The Legislature adopted a 90-day target for local review of Washington State Department of Transportation (WSDOT) projects. The Legislature raised the cost threshold for requiring a Substantial Development Permit (SDP) for replacement docks on lakes and rivers to $20,000 (from $10,000). The Legislature created a new definition and policy for floating on -water residences legally established before 7/1/2014. a. The Legislature amended the SMA to clarify SMP appeal procedures. Review of the SMP submittal process for Ecology's review. The list of exemptions in ECDC 24.80.010.13 does not contain and exemption regarding ADA retrofitting. The City of Edmonds included the most recent wetland guidance (June 2016) within its SMP. The City of Edmonds SMP currently does not contain the special procedure for WSDOT projects. ECDC 24.80.010.B.7.b lists a threshold value of $10,000. The City of Edmonds does not have any floating on -water residences and new on -water residences are prohibited. These provisions are not about appeals of individual permits. They describe the appeal pathway after Ecology's approval of an SMP. The City of Edmonds SMP does not describe the appeal process of an SMP. 2011 a. Ecology adopted a rule requiring ECDC 23.50.010.A (which is that wetlands be delineated in 1 adopted by the SMP) Shoreline Master Program Periodic Review Checklist Shorelands and Environmental Assistance Program, September 20, 2017 8.A.a DEPARTMENT OF �IIIIECOLOGY _I� State of Washington Action The list of exemptions should be updated to add the new exemption for ADA retrofitting. The City of Edmonds should considered updating the CAO with the June 2016 guidance prior to updating the SMP so the same wetland regulations will apply both within and outside shoreline iurisdiction. A new section could be added to ECDC 24.80 to address the 90-day review target for WSDOT projects. Section should be updated to reflect the updated dollar threshold. . No amendment necessary No amendment necessary No amendment necessary. 3 Packet Pg. 23 Row i Summary of change accordance with the approved federal wetland delineation manual. b. Ecology adopted rules for new commercial geoduck aquaculture. c. The Legislature created a new definition and policy for floating homes permitted or legally established prior to January 1, _2011. d. The Legislature authorized a new option to classify existing structures as conforming. 2010 The Legislature adopted Growth Management Act — Shoreline Management Act clarifications. 2009 a. The Legislature created new "relief" procedures for instances in which a shoreline restoration project within a UGA creates a shift in Ordinary High Water Mark. b. Ecology adopted a rule for certifying wetland mitigation banks. Review references the approved federal wetland delineation manual for designating wetlands. Geoducks are not specifically addressed in the aquaculture section (ECDC 24.60.010); however, given the urbanized shoreline, geoduck aquaculture in Edmonds is highly unlikely. No existing floating homes within Edmonds and new on - water residences are prohibited. Nonconforming structures addressed in ECDC 24.70.020. SMP was developed with GMA/SMA integration taken under consideration. This "relief" procedure is not explicitly referenced in the SMP; however, the process may be used even if the provision is not in the SMP. Critical area regulations incorporated in the SMP authorizes the use of wetland mitigation banks. c. The Legislature added moratoria Moratoria not explicitly authority and procedures to the addressed in the SMP. SMA. 2007 a. The Legislature clarified options Floodway not defined in SMP for defining "floodway" as either or CAO. the area that has been established in FEMA maps, or the floodway criteria set in the SMA. Shoreline Master Program Periodic Review Checklist Shorelands and Environmental Assistance Program, September 20, 2017 8.A.a DEPARTMENT OF �IIIECOLOGY MOWS� State of Washington Action No amendment necessary. No amendment necessary No amendment necessary No amendment necessary Consider adopting "relief" rule by reference, or granting relief incorporate the rule into the SMP to make it clear that this process is available. No amendment necessary. No amendment necessary A definition of floodway should be added to the CAO noting that floodways are the area established in the FEMA maps. 0 Packet Pg. 24 Row Summary of change b. Ecology amended rules to clarify that comprehensively updated SMPs shall include a list and map of streams and lakes that are in shoreline jurisdiction. C. Ecology's rule listing statutory exemptions from the requirement for an SDP was amended to include fish habitat enhancement projects that conform to the provisions of RCW 77.55.181. Other Review Elements Review Shoreline jurisdiction in the City of Edmonds is defined within the text of the SMP and on maps. The City of Edmonds' SMP provides an exemption for fish habitat enhancement projects, but does not contain all of the language included in WAC 173-27-040(2)(p). 8.A.a DEPARTMENT OF momod ECOLOGY State of Washington Action Review and revise shoreline jurisdiction as necessary. Consider amending the exemption provision to match WAC 173-27-040(2)(p) or simplify the language to reference the exemption. In addition to ensuring consistency with changes to the state laws and rules identified above, the City of Edmonds is considering reviewing and modifying (as necessary) the following elements of the City's Shoreline Master Program. SMP Section Edmonds Marsh, UMU IV shoreline designation, Shoreline Inventory and Characterization 24.80.100 Summary Review Action The Edmonds Marsh was The City of Edmonds has Results from the identified as a shoreline of the contracted with a Edmonds Marsh study state relatively late in the consultant to assess the will be used to update previous SMP update and ecological functions of the the Shoreline Inventory appropriate shoreline marsh and evaluate buffer and Characterization and regulations surrounding the widths that will ensure could result in marsh was the subject of effective site -specific buffer modifications to UMU IV significant public comment and functions. shoreline regulations. discussion before the City Council. This section identifies when a Clarification should be Consider establishing a public hearing is required for a added to how a review process similar to the shoreline substantial moves from a staff decision contingent review development permit. In some process (Type II) to a public process in critical areas instances, a shoreline permit hearing process (Type III). section ECDC 23.40.195. may begin the process as a staff decision but require a public hearing if one or more interested persons request a public hearing. Shoreline Master Program Periodic Review Checklist Shorelands and Environmental Assistance Program, September 20, 2017 5 Packet Pg. 25 8.A.b Edmonds Page 1115 Chapter 24.60 SPECIFIC USE POLICIES AND REGULATIONS 24.40.020 Critical areas. A. Applicability. Critical areas include the following areas and ecosystems: wetlands, areas with a critical recharging effect on aquifers used for potable water, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. B. The city of Edmonds critical area ordinance, as codified in Chapters 23.40 through 23.90 ECDC (dated May 3, 2016, Ord. 4026 and as amended by Ord. 4106 and Ord. XXXX), is herein adopted as a part of this program, except for the specific subsections list below in subsection (C) of this section. All references to the city of Edmonds critical area ordinance in this program are for this specific version. As a result of this incorporation of the Edmonds critical area ordinance, the provisions of Chapters 23.40 through 23.90 ECDC, less the exceptions listed in subsection (C) of this section, shall apply to any use, alteration or development within shoreline jurisdiction whether or not a shoreline permit or written statement of exemption is required. In addition to the critical area regulations in Chapters 23.40 through 23.90 ECDC (Appendix B of this master program), the regulations identified in this section also apply to critical areas within shoreline jurisdiction. Where there are conflicts between the city of Edmonds critical area ordinance and this shoreline master program, provisions of the shoreline master program shall prevail. C. Exceptions. The specific provisions of the critical area ordinance listed below shall not apply to development within shoreline jurisdiction. 1. General Provisions. a. ECDC 23.40.130(D), Monitoring Program. b. ECDC 23.40.210, Variances. 2.. ail a. ECDC z3.50.n1 n��edand Ratings. b. ECDC 23.50.n^n Standard Buffer- Widths. e. ECDC 23.50•040(F)(2), Required Measures to Minimize ists-to Wetlands. d. ECDC 23.5A-040(Kr Small, u..arolegieally iseluted Wetlands. -32. Geologically Hazardous Areas. a. ECDC 23.80.040(B)(1) and (2), allowed activities in geologically hazardous areas. D. Development Limitations. 1. All uses, modifications and activities on sites containing marine shorelines, environmentally sensitive areas and/or critical areas must comply with all applicable local, state, and federal laws pertaining to development in these areas unless in conflict with the provisions of this master program. 2. The site must be specifically designed so that hazards from or impact on the environmentally sensitive area and/or critical areas will be mitigated. 3. Mitigation Sequencing. In order to comply with subsection (D)(2) of this section, a shoreline permit applicant or project proponent shall demonstrate all reasonable efforts have been taken to provide sufficient mitigation such that the activity does not have significant adverse impacts. Mitigation shall occur in the following prioritized order: a. Avoiding the impact altogether by not taking a certain action or parts of an action. b. Minimizing impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking affirmative steps, such as project redesign, relocation, or timing to avoid or reduce impacts. The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 26 8.A.b Edmonds Page 2/15 Chapter 24.60 SPECIFIC USE POLICIES AND REGULATIONS c. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment to the historical 3 conditions or the conditions existing at the time of the initiation of the project. 2 d. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations m during the life of the action. 0 e. Compensating for the impact by replacing, enhancing, or providing substitute resources or environments. a E 4. Monitoring Program. Mitigation plans shall include a program for monitoring construction and for assessing �a a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, a monitoring shall occur in years one, two, three, five, seven, and 10 after site construction), and how the L monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than 10 years. L 5. Long -Term Protection of Mitigation Sites. The city shall require documentation that a mitigation site has 0 W been permanently preserved from future development or alteration that would be inconsistent with the functions of the mitigation. The documentation may include, but is not limited to, a conservation easement, V deed restriction or other agreement between the applicant and the owner of a mitigation site. Such V documentation shall be recorded with the Snohomish County auditor. w N E. Wetlands. Wetlands these designa4ed in WAG 173 22 035, 4ia4 ipmadated d afe afeas, aeeardanee with are or- H O to 0 > . landscape these Jdly 1, 1990, that the amenities, or wetlands oreated after were unin4en4ionally ereated as a result of highway. Wetlands include those intentionally fre .0y d construction of a road, street, or may artifieial wetlands oreated nonwetland areas to mitigate the eonversion of wetlands. Wetlands be to the Washington Department shall rated aeeerdiag efEeelogywedand rating as setU system,1. ferth in the Washington Sta4e Wetland Rating System fer Westem Washing4ea: 2014 Upda4e 3 (Eeelagy m methods for- deter -mining whether- the a fite -i below ., o et > Category 1. Category 1 larger than a. wetlands are: (i) relatively undisturbed estuarine wetlands one acre-,- (ii) high 3value that identified by the Washington Natural 0 wetlands of eonservation are seientists of Heritage Progran:DDNR; (iii) bogs; (iv) forested larger than L ni-Aure and old growth wetlands one aer-e4,v)- a a than thm fune6eas 23 These ene aere; and (vii) wetlands perform many well (sear-ing pain4s or- mere). cn ... m N within a human lifetime; or- (iv) pr-avide a high level of fidnetions. a 0 b. Category H. Category 11 (i) than disturbed wetlands are: estuarine wetlands smaller one acre, or larger than estuarine wetlands one ; high level funetions between 20 C mesaie of wetlands; er (iii) wedands with a meder-ately of (sear-ing an E t) Category HL Category H! (i) level funetions (seoring t4 e. wetlands are: wetlands with a moderate of between 16 19 be r a and points); (ii) can often adequately replaeed with a well planned mitigation proj ; (iii) interdanal between tenth Wetlands between 16 19 and wetlands one and one aere. seoring and poi have been disturbed in less diverse isolated from generally some ways and are often or more other natffal ,anlsea.othan resourees nthe Category 11 wetlands a The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 27 8.A.b Edmonds Chapter 24.60 SPECIFIC USE POLICIES AND REGULATIONS ffi �. .. M-1 W. , WN --- I Page 3/15 Buffer Width (in Feet) Based c........ on Lu.../bitat Based PM tota-1 seoree 7-5 4AD5 4-6-5 2-M FB"EgE�— ds high 440 2-M of eensel=vatiefl VaIii 3 A) m =a 0 �L w a. E L 0 L a. C� G S 0 W \r U G U W N d H O N C 0 An 0 N O U 3 m a� �a O �L a a 2 Cn m 0 0. 0 L N C d t C� a a The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 28 8.A.b Edmonds Chapter 24.60 SPECIFIC USE POLICIES AND REGULATIONS Page 4/15 c,.ore Pr Buffer Width /:« Feet) Based on [R et and Category�..4 } 5 LLu�'.fbitat OT cn Categefy w• 1�5 MENEENEL— Forested "5 �_ Esttwine 4-50 /bu ff ..ykdth not based on habitat s Fe\ �22e 7-5 195 4§55 Category r te T«..,7tmal. etl,.«,1.. 0 ii5 Category IT -,.«:«e 4-W / 1... FF «.. :.7t1. not 1.....e.7 on l...l.it..t - «e\ on Category 60 ) 95 5 5 Categery A' 1"I 40 The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 29 8.A.b Edmonds Page 5115 Chapter 24.60 SPECIFIC USE POLICIES AND REGULATIONS Dtist I Use be��ge en4 praefieesto� �l lost qW BUffleF Width (in Feet) Based on Habitat SC;OF am7efland Catego -7 ' EE. Geologically Hazardous Areas. Development in designated geologically hazardous areas shall be regulated in accordance with the following: 1. New development or the creation of lots should not be allowed that would cause foreseeable risk from geological conditions to people or improvements during the life of the development. 2. New development should not be allowed that would require structural shoreline stabilization over the normal, useful life of the development. Exception may be made for instances where stabilization is necessary to protect allowed uses where no alternative locations are available and no net loss of ecological functions will result. The stabilization measures shall conform to ECDC 24.50.020, Shoreline stabilization. 3. Where no alternatives, including relocation or reconstruction of existing structures, are found to be feasible, and less expensive than the proposed stabilization measure, stabilization structures or measures to protect existing primary residential structures may be all in conformance with ECDC 24.50.020 requirements and then only if no net loss of ecological functions will result. The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 30 Edmonds Chapter 24.60 SPECIFIC USE POLICIES AND REGULATIONS GF. Critical Saltwater Habitats. Page 6/15 1. Development shall not intrude into or over critical saltwater habitats except when all of the conditions below are met: a. The public's need for such an action or structure is clearly demonstrated and the proposal is consistent with protection of the public trust, as embodied in RCW 90.58.020. b. Avoidance of impacts to critical saltwater habitats by an alternative alignment or location is not feasible or would result in unreasonable and disproportionate cost to accomplish the same general purpose. c. The project, including any required mitigation, will result in no net loss of ecological functions associated with critical saltwater habitat. d. The project is consistent with the state's interest in resource protection and species recovery. 2. Private, noncommercial docks for individual residential or community use may be allowed; provided, that: a. Avoidance of impacts to critical saltwater habitats by an alternative alignment or location is not feasible; b. The project, including any required mitigation, will result in no net loss of ecological functions associated with critical saltwater habitat. 3. Where inventory of critical saltwater habitat has not been completed, all overwater and nearshore developments in marine and estuarine waters shall be required to conduct a habitat assessment of the site and adjacent beach sections to assess the presence of critical saltwater habitats and functions. 14G. Critical Freshwater Habitats. Existing hydrological connections into and between water bodies, such as streams and wetlands, shall be maintained. Obstructed channels shall be reestablished as a condition of non -water -dependent uses, where feasible. 1=H. Additional Authority. In addition to any other authority the city may have, the city is hereby authorized to condition or deny a proposed use, modification or activity or to require site redesign because of hazards associated with the use, modification or activity on or near an environmentally sensitive and/or critical area, and/or the effect of the proposal on the environmentally sensitive area and/or critical area. [Ord. 4072 § 1 (Att. A), 2017]. The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 31 8.A.b Edmonds Chapter 24.70 NONCONFORMING DEVELOPMENT Chapter 24.70 NONCONFORMING DEVELOPMENT Sections: 24.70.000 Purpose. 24.70.010 Nonconforming uses. 24.70.020 Nonconforming development, building and/or structure. 24.70.030 Nonconforming lots. 24.70.040 Nonconforming signs. 24.70.050 Nonconforming local public facilities. Page 7/15 24.70.010 Nonconforming uses. A. Nonconforming uses are shoreline uses which were lawfully established prior to the effective date of the Shoreline Management Act or this master program, or amendments thereto, but which do not conform to present regulations or standards of this master program or policies of the Act. B. A use which is listed as a conditional use but which existed prior to adoption of this master program or any relevant amendment and for which a conditional use permit has not been obtained shall be considered a nonconforming use. A use which is listed as a conditional use but which existed prior to the applicability of this master program to the site and for which a conditional use permit has not been obtained shall be considered a nonconforming use. C. A nonconforming use may continue, unless required to be abated by subsection (D) of this section, but it may not be expanded in any way, including additional lot areas, floor area, height, number of employees, equipment, or hours of operation, except as otherwise provided in ECDC 24.70.050. D. Lapse of Time. 1. If a nonconforming use is discontinued for six consecutive months or for 12 months during any two-year period, any subsequent use shall be conforming. It shall not be necessary to show that the owner of the property intends to abandon such nonconforming use in order for the nonconforming rights to expire. Uses such as agricultural or aquiculture, which vary seasonally, shall be deemed abandoned if the seasonal use is not utilized during one full season consistent with the traditional use. 2. If a nonconforming use ceases because its building is damaged in excess of 75 percent of its replacement cost, the use may be reestablished if, but only if, an application for a building permit which vests as provided in ECDC 19.00.015, et seq., is filed within six -eighteen months of the date such damage occurred. After the application has been filed, only one 180-day extension may be granted. 3. The right of reestablishment of use described in subsection (D)(2) of this section shall not apply if: a. The building or structure was damaged or destroyed due to the unlawful act of the owner or the owner's agent; or b. The building is damaged or destroyed due to the ongoing neglect or gross negligence of the owner or the owner's agent. c. In the event that subsection (D)(3)(a) or (b) of this section applies, the nonconforming use shall be abated if damage exceeds 25 percent of replacement cost. "Replacement cost" shall be determined as proved in ECDC 24.70.020. E. A nonconforming use shall not be changed to another nonconforming use, regardless of the conforming or nonconforming status of the building or structure in which it is housed. [Ord. 4072 § 1 (Att. A), 2017]. The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 32 Edmonds Page 8/15 Chapter 24.70 NONCONFORMING DEVELOPMENT 24.70.020 Nonconforming development, building and/or structure. A. Nonconforming development means a shoreline development which was lawfully constructed or established prior to the effective date of the Shoreline Management Act or this master program, or amendments thereto, but which does not conform to present regulations or standards of the program. B. A nonconforming building is one which once met bulk zoning standards and the site development standards applicable to its construction, but which no longer conforms to such standards due to the enactment or amendment of the zoning ordinance of the city of Edmonds or the application of such ordinance in the case of a structure annexed to the city. Subject to the other provisions of this section, an accessory building that is not an accessory dwelling unit shall be presumptively nonconforming if photographic or other substantial evidence conclusively demonstrates that the accessory building existed on or before January 1, 1981. In the case of a property that was annexed after January 1, 1981, then the date shall be that of the effective date of the annexation of the city of Edmonds. Such presumption may be overcome only by clear and convincing evidence. C. A structure for which a variance has been issued shall be considered a legal nonconforming structure and the requirements of this section shall apply as they apply to preexisting nonconformities. D. A nonconforming development, building and/or structure which is moved any distance must be brought as closely as practicable into conformance with this master program. E. Nonconforming development, building and/or structure may be maintained and continued, unless required to be abated elsewhere in this chapter or section; provided, that it is not enlarged, intensified, increased, or altered in any way which increases its nonconformity except as expressly provided in subsections (F) though (L) of this section. F. Historic Buildings and Structures. Nothing in this section shall prevent the full restoration by reconstruction of a building or structure which is either listed on the National Register of Historic Places, the Washington State Register of Historic Places, the Washington State Cultural Resource Inventory, or the Edmonds register of historic places, or is listed in a council approved historical survey meeting the standards of the State Department of Archaeology and Historic Preservation. "Restoration" means reconstruction of the historic building or structure with as nearly the same visual design appearance and materials as is consistent with full compliance with the State Building Code and consistent with the requirements of Chapter 20.45 ECDC, Edmonds Register of Historic Places. The reconstruction of all such historic buildings and structures shall comply with the life safety provisions of the State Building Code. G. If a nonconforming development, building and/or structure is destroyed or damaged to an extent not exceeding 75 percent replacement cost at the time of destruction, it may be restored to its former size, shape and lot location as existing immediately prior to the time the structure was damaged, so long as restoration is either: 1. Completed within one year of the date of damage; or 2. Completed within one year of the date of issuance of all required permits, so long as applications for such permits are vested within si*-eiehteen months of the date of damage and are pursued in a timely manner. H. Determination of replacement costs and the level of destruction shall be made by the building official and shall be appealable as Type II staff decision under the provisions of Chapter 20.06 ECDC. I. The right of restoration described in subsection (E) of this section shall not apply if: 1. The development, building and/or structure was damaged or destroyed due to the unlawful act of the owner or the owner's agent; or 2. The development, building and/or structure is damaged or destroyed due to the ongoing neglect or gross negligence of the owner or the owner's agents. J. Residential Buildings in Commercial Zones. Existing nonconforming buildings in commercial zones in use solely for residential purposes, or structures attendant to such residential use, may be remodeled or reconstructed without regard to the limitations of subsections (D), (E) and (G) of this section, if, but only if, the following conditions are met: The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 33 8.A.b Edmonds Page 9/15 Chapter 24.70 NONCONFORMING DEVELOPMENT 1. The remodel or reconstruction takes place within the footprint of the original building or structure. "Footprint" shall mean an area equal to the smallest rectangular area in a plane parallel to the ground in which the existing building could be placed, exclusive of uncovered decks, steps, porches, and similar features; and provided, that the new footprint of the building or structure shall not be expanded by more than 10 percent and is found by the city staff to be substantially similar to the original style and construction after complying with current codes. 2. All provisions of the State Building and Electrical Codes can be complied with entirely on the site. No nonconforming residential building may be remodeled or reconstructed if, by so doing, the full use under state law or city ordinance of a conforming neighboring lot or building would be limited by such remodel or reconstruction. 3. These provisions shall apply only to the primary residential use on site and shall not apply to nonconforming accessory buildings or structures. 4. A nonconforming residential single-family building may be rebuilt within the defined building envelope if it is rebuilt with materials and design which are substantially similar to the original style and structure after complying with current codes. "Substantial compliance" shall be determined by the city as a Type II staff decision, except that any appeal of the staff decision shall be to the ADB rather than the hearing examiner. The decision of the ADB shall be final and appealable only as provided in ECDC 20.07.006. K. Subject to the other provisions of this section, an accessory building that is not an accessory dwelling unit shall be presumptively nonconforming if photographic or other substantial evidence conclusively demonstrates that the accessory building existed on or before January 1, 1981. In the case of a property that was annexed after January 1, 1981, then the date shall be that of the effective date of the annexation to the city of Edmonds. Such presumption may be overcome only by clear and convincing evidence. L. B135 Zone. The B135 zone was created in part to encourage the adoption and reuse of existing residential structures for live/work and commercial use as set forth in ECDC 16.43.030(B)(5). In the BD5 zone, conforming and nonconforming buildings may be converted to commercial or other uses permitted by ECDC 16.43.020 and this master program without being required to come into compliance with the ground floor elevation requirements of ECDC 16.43.030(B). [Ord. 4072 § 1 (Att. A), 2017]. The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 34 Edmonds Chapter 24.100 APPENDICES* Chapter 24.80 ADMINISTRATION — SHORELINE PERMITS Page 10115 Sections: 24.80.000 Purpose. 24.80.010 Exemptions from shoreline substantial development permit process. 24.80.020 Letter of exemption. 24.80.025 Developments not required to obtain shoreline permits or local reviews. 24.80.030 Review criteria for all development. 24.80.040 Substantial development permit criteria. 24.80.050 Conditional use permit criteria. 24.80.060 Variance permit criteria. 24.80.070 Minimum application requirements. 24.80.080 Notice of application. 24.80.090 Special procedures for limited utility extensions and bulkheads. 24.80.095 Shoreline restoration projects — Relief from shoreline master program development standards and use reeulations 24.80.100 Public hearings. 24.80.105 Special procedures for WSDOT projects. 24.80.110 Notice of decision, reconsideration, and appeals. 24.80.120 Initiation of development. 24.80.130 Revisions. 24.80.140 Time requirements of shoreline permits. 24.80.150 Administrative authority and responsibility. 24.80.160 Compliance. 24.80.170 Enforcement. 24.80.010 Exemptions from shoreline substantial development permit process. A. Application and Interpretation. 1. Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemption from the substantial development permit process. 2. An exemption from the substantial development permit process is not an exemption from compliance with the Shoreline Management Act or the city of Edmonds shoreline master program, or from any other regulatory requirements. To be authorized, all uses and developments must be consistent with the policies and provisions of this master program and the Shoreline Management Act. 3. When a development or use is proposed that does not comply with the bulk, dimensional and performance standards of the master program, such development or use can only be authorized by approval of a variance. 4. A development or use that is listed as a conditional use pursuant to this master program, or is an unlisted use, must obtain a conditional use permit even though the development or use does not require a substantial development permit. 5. The burden of proof that a development or use is exempt from the permit process is on the applicant. 6. If any part of a proposed development is not eligible for exemption, then a substantial development permit is required for the entire proposed development project. 7. The city of Edmonds may attach conditions to the approval of exempted developments and/or uses as necessary to assure consistency of the project with the Shoreline Management Act and this master program. B. Exemptions Listed. The following developments shall not require substantial development permits: The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 35 8.A.b Edmonds Chapter 24.100 APPENDICES* Page 11115 1. Any development of which the total cost or fair market value, whichever is higher, does not exceed $5-,7U7,047, if such development does not materially interfere with the normal public use of the water or shorelines of the state. The dollar threshold established in this subsection must be adjusted for inflation every five years consistent with WAC 173-27-040(2)(a). For purposes of determining whether or not a permit is required, the total cost or fair market value shall be based on the value of development that is occurring on shorelines of the state as defined in RCW 90.58.030(2)(c). The total cost or fair market value of the development shall include the fair market value of any donated, contributed or found labor, equipment or materials. 2. Normal maintenance or repair of existing structures or developments, including damage by accident, fire or elements. "Normal maintenance" includes those usual acts to prevent a decline, lapse, or cessation from a lawfully established condition. "Normal repair" means to restore a development to a state comparable to its original condition, including but not limited to its size, shape, configuration, location and external appearance, within a reasonable period after decay or partial destruction, except where repair causes substantial adverse effects to shoreline resource or environment. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including but not limited to its size, shape, configuration, location and external appearance and the replacement does not cause substantial adverse effects to shoreline resources or environment. 3. Construction of the normal protective bulkhead common to single-family residences. A "normal protective" bulkhead includes those structural and nonstructural developments installed at or near, and parallel to, the ordinary high water mark for the sole purpose of protecting an existing single-family residence and appurtenant structures from loss or damage by erosion. A normal protective bulkhead is not exempt if constructed for the purpose of creating dry land. When a vertical or near vertical wall is being constructed or reconstructed, not more than one cubic yard of fill per one foot of wall may be used as backfill. When an existing bulkhead is being repaired by construction of a vertical wall fronting the existing wall, it shall be constructed no further waterward of the existing bulkhead than is necessary for construction of new footings. When a bulkhead has deteriorated such that an ordinary high water mark has been established by the presence and action of water landward of the bulkhead then the replacement bulkhead must be located at or near the actual ordinary high water mark. Beach nourishment and bioengineered erosion control projects may be considered a normal protective bulkhead when any structural elements are consistent with the above requirements and when the project has been approved by the Department of Fish and Wildlife. 4. Emergency construction necessary to protect property from damage by the elements. An "emergency" is an unanticipated and imminent threat to public health, safety, or the environment which requires immediate action within a time too short to allow full compliance with this chapter. Emergency construction does not include development of new permanent protective structures where none previously existed. Where new protective structures are deemed by the administrator to be the appropriate means to address the emergency situation, upon abatement of the emergency situation the new structure shall be removed or any permit which would have been required, absent an emergency, pursuant to Chapter 90.58 RCW, these regulations, or the local master program, obtained. All emergency construction shall be consistent with the policies of Chapter 90.58 RCW and the local master program. As a general matter, flooding or other seasonal events that can be anticipated and may occur but that are not imminent are not an emergency. 5. Construction or modification of navigational aids such as channel markers and anchor buoys. 6. Construction on shorelands by an owner, lessee or contract purchaser of a single-family residence for their own use or for the use of their family, which residence does not exceed a height of 25 feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to Chapter 90.58 RCW. "Single-family residence" means a detached dwelling designed for and occupied by one family including those structures and developments within a contiguous ownership which are a normal appurtenance as defined in ECDC 24.90.010(F). Construction authorized under this exemption shall be located landward of the ordinary high water mark. 7. Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single-family and multiple -family residences. The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 36 Edmonds Chapter 24.100 APPENDICES* Page 12/15 A dock is a landing and moorage facility for watercraft and does not include recreational decks, storage facilities or other appurtenances. This exception applies if either: a. In salt waters (Puget Sound), the fair market value of the dock does not exceed $2,500; or b. In fresh waters (Lake Ballinger) the fair market value of the dock does not exceed: (A) twenty thousand dollars for docks that are constructed to replace existing docks, are of equal or lesser square footage than the existing dock being replaced; or (B) $10,000ten thousand dollars for all other docks constructed in fresh waters.; b>A-However, if subsequent construction having a fair- ma-r et valt e exeeedia . $2,500 occurs within five years of completion of the prior construction, and the combined fair market value of the subsequent and prior construction exceeds the amount specified above, the subsequent construction shall be considered a substantial development for the purpose of this chapter. 8. Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water from the irrigation of lands. 9. The marking of property lines or corners on state-owned lands, when such marking does not significantly interfere with normal public use of the surface of the water. 10. Operation and maintenance of any system of dikes, ditches, drains, or other similar drainage or utility facilities existing on September 8, 1975, which were created, developed or utilized primarily as a part of an agricultural drainage or diking system. 11. Any project with a certification from the governor pursuant to Chapter 80.50 RCW. 12. Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this chapter, if: a. The activity does not interfere with the normal public use of the surface waters; b. The activity will have no significant adverse impact on the environment including but not limited to fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values; c. The activity does not involve the installation of any structure, and upon completion of the activity the vegetation and land configuration of the site are restored to conditions existing before the activity; d. A private entity seeking development authorization under this section first posts a performance bond or provides other evidence of financial responsibility to the local jurisdiction to ensure that the site is restored to preexisting conditions; and e. The activity is not subject to the permit requirements of RCW 90.58.550. 13. The process of removing or controlling aquatic noxious weeds, as defined in RCW 17.26.020, through the use of an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the Department of Agriculture or the Department of Ecology jointly with other state agencies under Chapter 43.21C RCW. 14. Watershed restoration projects as defined in WAC 173-27-040(2)(o). The administrator shall review the projects for consistency with the shoreline master program in an expeditious manner and shall issue its decision along with any conditions within 45 days of receiving all materials necessary to review the request for exemption from the applicant. No fee may be charged for accepting and processing requests for exemption for watershed restoration projects as used in this section. 15. Consistent with WAC 173-27-040, a public or private project designed to improve fish or wildlife habitat or fish passage, that conforms to the provisions of RCW 77.55.181. ^ �..W; . to „ eet that is deSigfoa *� fish of wildlife habitat of f4sh passage, when The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 37 Edmonds Page 13/15 Chapter 24.100 APPENDICES* a. The project has been approved in vffiting by the Department of Fish and Wildlife; 3 2 chapter 77.55 n GIAI; and V The has determined that the is the loeal a O program.e. eity project substantially eonsistent with shoreline master The determination in timely it by letter to the L eity shall make sueh a manner and provide projeet propon [Ord. 4072 § 1 (Att. A), 2017]. a) a E �a 16. The external or internal retrofitting of an existing structure with the exclusive purpose of compliance with Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) or to otherwise provide physical access a to the structure by individuals with disabilities. m d 24.80.025 Developments not required to obtain shoreline permits or local reviews Requirements to obtain a substantial development permit, conditional use permit, variance, letter of exemption, or c other review to implement the Shoreline Management Act do not apply to the following; W A. Remedial actions. Pursuant to RCW 90.58.355, any person conducting a remedial action at a facility pursuant G to a consent decree, order, or agreed order issued pursuant to Chapter 70.1051) RCW, or to the Department of U Ecology when it conducts a remedial action under Chapter 70.105D RCW. w N B. Boatyard improvements to meet NPDES permit requirements. Pursuant to RCW 90.58.355, any person installingsite 'te improvements for storm water treatment in an existing boatyard facility to meet requirements of a national pollutant discharge elimination system storm water general permit. o N C. WSDOT facility maintenance and safety improvements. Pursuant to RCW 90.58.356, Washington State C g Department of Transportation projects and activities meeting the conditions of RCW 90.58.356 are not required to y obtain a substantial development permit, conditional use permit, variance, letter of exemption, or other local review. a� D. Projects consistent with an environmental excellence program agreement pursuant to RCW 90.58.045. o U E. Projects authorized through the Energy Facility Site Evaluation Council process, pursuant to Chapter 80.50 RCW. > d .a 02 24.80.095 Shoreline restoration projects —Relief from shoreline master program development standards and use regulations. a The city may grant relief from shoreline master program development standards and use regulations resulting from a shoreline restoration projects within urban growth areas consistent with criteria and procedures in WAC 173-27-215. Cn m 24.80.100 Public hearings. N O A. The administrator shall determine whether an application requires a public hearing pursuant to the criteria below a no later than 15 days after the minimum public comment period provided by ECDC 24.80.080(B). An open record O a public hearing shall be required for all of the following: N interested has 15 the final One to the days C or more submitted within of ' administrator,er-sons publicationnotice the for hearing together the for the of applioation, a vffitten request sueh a with a statement of reasons request; e 21. The proposal is determined to have a significant adverse impact on the environment and an environmental r Q impact statement is required in accordance with the State Environmental Policy Act; or m 32. The proposal requires a variance and/or conditional use approval pursuant to this master program; or t .r Q The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 38 Edmonds Chapter 24.100 APPENDICES* Page 14/15 34. The use or development requires an open record public hearing for other city of Edmonds approvals or permits, or . [Ord. 4072 § 1 (Att. A), 2017]. 4. The city receives a request from any interested person within 14 days of the date of the native of application and the public hearing request is accompanied by a hearing fee in the amount of 50 percent the difference between the Type 11 and Type III application fee. B. When a public hearingis s triggered pursuant to subsection A.4 of this section, the project applicant shall pay the other 50 percent of the difference between the Type II and Type III application fee, on top of the previously paid Type II application fee. The applicant shall pay this fee within 30 days of notice from the city that the fee is due. If the applicant fails to pay the additional fee within the required 30-dayperiod, the application for the project shall be deemed withdrawn. The city shall not schedule the public hearing until the additional fee has been paid. For these public hearings, the cost of the hearing examiner shall be borne by the city, 24.80.105 Special procedures for WSDOT proiects. A. Permit review time for projects on a state highway. Pursuant to RCW 47.01.485, the Legislature established a target of 90 days review time for local governments. B. Optional process allowing construction to commence twenty-one days after date of filing. Pursuant to RCW 90.58.140, Washington State Department of Transportation projects that address significant public safety risks may begin twenty-one days after the date of filing if all components of the project will achieve no net loss of shoreline ecological functions. 24.80.150 Administrative authority and responsibility. A. Shoreline Administrator. The shoreline administrator shall be the planning manager or his/her designee and is vested with the following authority and responsibility to: 1. Have overall administrative responsibility for this master program; 2. Determine if a public hearing should be held on a shoreline permit application by the hearing examiner pursuant to ECDC 24.80.100; 3. Grant or deny written permit exemptions from shoreline substantial development permit requirements of this master program; 4. Authorize, approve or deny shoreline substantial development permits, except for those for which a public hearing is required pursuant to ECDC 24.80.100; 5. Make written recommendation to the hearing examiner or city council as appropriate and insofar as possible, in order to assure that all relevant information, testimony, and questions regarding a specific matter are made available during their respective reviews of such matter; 6. Review and evaluate the records of project review actions (permits and exemptions) in shoreline areas and report on the cumulative effects of authorized development of shoreline conditions at a minimum every s� eight years when this master program is updated. The administrator shall coordinate such review with the Washington State Department of Ecology, Washington State Department of Fish and Wildlife, and other interested parties; 7. Advise interested citizens and project proponents of the goals, policies, regulations and procedures of this master program; and 8. Make administrative decisions and interpretations of the policies and regulations of this master program and the Shoreline Management Act. B. Hearing Examiner. The hearing examiner is vested with the following authority: 1. To grant or deny shoreline substantial development permits requiring public hearings pursuant to ECDC 24.80.100; The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 39 8.A.b Edmonds Page 15115 Chapter 24.100 APPENDICES* 2. To grant or deny shoreline conditional use permits under this master program; 3. To grant or deny variances from this master program; and 4. To decide on appeals of administrative decisions issued by the administrator of this master program in accord with procedures set forth in ECDC Title 20. C. City Council. 1. The Edmonds city council is vested with the authority to approve any revisions or amendments to this master program in accordance with the applicable requirements of the Shoreline Management Act and the Washington Administrative Code. 2. To become effective any amendment to this master program must be reviewed and adopted by the Department of Ecology pursuant to RCW 90.58.190 and Chapter 173-26 WAC. [Ord. 4072 § 1 (Att. A), 2017] 3. The City Council will conduction the periodic review process consistent with the requirements of RCW 90.58.080 and WAC 173-26-090. 24.90.020 Definitions — C to F. I. "Development" means a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; grading; filling; removal of any sand, gravel, or minerals; bulk heading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to the act at any stage of water level. "Development" does not include dismantling or removing structures if there is no other associated development or re -development. GG. "Floodway" means the area that has been established in effective Federal Emergency Management Agency flood insurance rate maps or floodway maps. The floodway does not include lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political division of the state. The Edmonds City Code and Community Development Code are current through Ordinance 4112, passed May 15, 2018. Packet Pg. 40 9.A Planning Board Agenda Item Meeting Date: 08/8/2018 Review Planning Board Extended Agenda Staff Lead: N/A Department: Planning Division Prepared By: Diane Cunningham Background/History N/A Staff Recommendation N/A Narrative The Board's current extended agenda is attached. Attachments: 08-08-2018 PB Extended Agenda Packet Pg. 41 of EbAf U� O�6 PLANKNO WARD ,�18go Extended Agenda August 8, 2018 Meeting Item AUGUST 2018 August 8 1. SMP Periodic Review 9.A.a Items and Dates are subject to change August 22 1. SMP periodic Review 2. Public Hearing on Critical Area Wetland Regs. SEPTEMBER 2018 September 1. 12 September 1. 26 OCTOBER 2018 October 10 1. October 24 1. NOVEMBER 2018 November 14 1. November 28 1. DECEMBER 2018 December 12 1. December 26 CANCELLED DUE TO HOLIDAY Q Packet Pg. 42 9.A.a Items and Dates are subject to change Pending 1. Community Development Code Re -Organization 2018 2. Neighborhood Center Plans and zoning implementation, including: ✓ Five Corners 3. Further Highway 99 Implementation, including: ✓ Potential for "urban center" or transit -oriented design/development strategies ✓ Parking standards 4. Exploration of incentive zoning and incentives for sustainable development Current Priorities 1. Neighborhood Center Plans & implementation. 2. Highway 99 Implementation. Recurring 1. Annual Adult Entertainment Report (January -February as necessary) Topics 2. Election of Officers (Vt meeting in December) 3. Parks & Recreation Department Quarterly Report (January, April, July, October) 4. Quarterly report on wireless facilities code updates (as necessary) Packet Pg. 43