2019-04-24 Planning Board MinutesCITY OF EDMONDS PLANNING BOARD
SUMMARY MINUTES
April 24, 2019
Chair Cheung called the meeting of the Edmonds Planning Board to order at 7:00 p.m. in the Council Chambers, Public
Safety Complex, 250 — 5' Avenue North.
BOARD MEMBERS PRESENT
Matthew Cheung, Chair
Alicia Crank
Phil Lovell
Nathan Monroe
Carreen Nordling Rubenkonig
Mike Rosen
Conner Bryan, Student Representative
BOARD MEMBERS ABSENT
Daniel Robles, Vice Chair
Todd Cloutier (excused)
READING/APPROVAL OF MINUTES
STAFF PRESENT
Shane Hope, Development Services Director
Kernen Lien, Environmental Program Manager
Jeanie McConnell, Engineering Program Manager
Jerrie Bevington, Video Recorder
Karin Noyes, Recorder
BOARD MEMBER ROSEN MOVED THAT THE MINUTES OF MARCH 27, 2019 AND APRIL 10, 2019 BE
APPROVED AS PRESENTED. BOARD MEMBER MONROE SECONDED THE MOTION, WHICH CARRIED
UNANIMOUSLY.
ANNOUNCEMENT OF AGENDA
The agenda was accepted as presented.
AUDIENCE COMMENTS
Ken Reidy, Edmonds, reported that, on April 17`t', he emailed City Officials a memorandum regarding nonconforming uses
dated June 8, 2006 from former City Attorney Scott Snyder to the City Council and Mr. Chave. Because the memorandum
was not attached to the Board's Staff Report, he delivered it to the Planning Board in person as he felt it would be helpful in
the Planning Board's discussion. The memorandum discusses the basic legal concepts behind nonconforming uses and their
status under Washington State Law. It notes that, in some cases, the City has lightened the burden for property owners
regarding nonconforming uses by creating exceptions, but at other times, past City Councils have been extremely restrictive.
The memorandum states that, as defined by the Washington Supreme Court, a nonconforming use is "a use which lawfully
existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance,
although it does not comply with the zoning restrictions applicable to the district in which it is situated. " Mr. Reidy said he
finds that the word "nonconforming" can cause confusion, and he prefers to use the word "grandfathered." Grandfathered
uses are typically uses that lawfully existed prior to a change in land use regulations. As discussed in the memorandum,
however, it is more complicated than that in Edmonds.
Mr. Reidy explained that, in Edmonds, the City Council has grandfathered other items by creating exceptions, and examples
include the Council's decision to establish a grace period for enforcement purposes for accessory buildings that existed on or
before January 1, 1981 (ECDC 17.40.020(A) and (H) and the Council's decision to grant amnesty to certain long -existing
wireless communication facilities (ECDC 17.40.023). He said history shows that the City has struggled with the application
of grandfathering laws. He can provide an example where the City allowed a new structure to be grandfathered under
Edmonds Community Development Code (ECDC) 17.40.020 even though no zoning laws had changed. In its decision, staff
stated that owners are usually required to bring such structures into compliance with the existing zoning code, and they didn't
say why this particular owner was not required to do so. He said history also shows that the City has required removal of an
accessory building that existed in 1968 and was grandfathered under the grace period provided by ECDC 17.40.020(A) and
(H), and he can provide the details to interested Planning Board Members.
Mr. Reidy said he points out these situations to show that the City's historical conduct in this area is messy and complicated.
The City has a history of different rules for different people even after grandfathering laws have been passed. An exception
is not needed for the multifamily buildings being discussed tonight, as those buildings are already grandfathered. The
solution to that problem is much more complicated. Thankfully, the City Council has broad legislative powers. As the
memorandum also states, the City has certain buildings or housing stock that do not qualify for historic status, and the City
Council could find that these buildings, whether commercial or residential, are worthy of preservation for cultural or other
reasons such as a desire to preserve affordable housing stock. Therefore, the City Council is not obligated to adopt a one -size -
fits -all category.
Mr. Reidy said he hopes the Planning Board can give this topic deep consideration and help the City Council adopt a
permanent solution that works for the multifamily buildings and is comprehensive and solid. He also hopes any new laws
adopted are fairly and faithfully enforced.
DEVELOPMENT SERVICES DIRECTOR REPORT TO PLANNING BOARD
Chair Cheung referred the Board to the updated Development Services Director's Report and invited Board Member
comments and questions.
At the request of the Board, Director Hope shared details relative to the Housing Commission. She recalled that housing has
been an issue in the City for quite some time, and there have been various efforts to provide some solutions, some of which
have involved the Planning Board. Because a variety of people have voiced concern that their perspectives were not heard
and the issues were not clearly understood, the City Council determined that a new process was needed. On April 16", the
City Council adopted a resolution to establish a Citizen's Housing Commission. The resolution lays out how the
Commission will function, how the participants will be seated, etc. In order to make sure that representation is citywide, the
City Council used a census -based map to divide the City into seven districts, all with approximately the same population. As
per the resolution, each Council Member would be assigned to a district and asked to select two candidates out of a pool of
applicants, as well as an alternative, to serve from that particular district. The Council President will assign the Council
Members to districts. Any resident of Edmonds can submit an application to serve on the Commission, but the adopted
resolution states that preference will be given to residents who are not already serving on a City Board or Commission.
However, on April 23', the Council discussed going one step further to state that those currently serving on City Boards and
Commission will be ineligible to participate on the Citizen's Housing Commission. They will consider an amending
resolution at their next Council meeting.
Director Hope reported that the City is nearly ready to launch the application process. The application form will ask for
standard information, as well as some specific questions related to which district the applicant lives in and whether they are
renters or owners. She clarified that it is not the City Council's intent to discriminate against either renters or owners, but
they recognized it will be good to have a mix. She explained that each assigned City Council member will select their
preferred applicants. The timeline for this process will depend on how many applications are received and whether or not all
districts are represented. She advised that, in addition to the 14 members (2 from each district) and 7 alternate members (1
from each district), the Mayor will also be invited to select one candidate from the pool of applicants after the City Council
has appointed their members. The Commission will consist of 15 members and 7 alternates. The alternatives will not be
voting members, but could step in if a representative from their district is absent.
Planning Board Minutes
April 24, 2019 Page 2
Director Hope concluded that the application will be posted on the City's website soon, and a postcard will be sent out this
week to every residential address in the City to announce the process, direct citizens to where information is available, and
advise on how they can submit an application to serve on the Commission. The City's website will provide detailed
information, including the resolution that was adopted by the City Council and a frequently asked question (FAQ) sheet. A
press release will be released, as well as other types of announcements, to get the word out about this opportunity. The
website will be updated as the project evolves. The hope is to have the Commissioners seated sometime in June, and the first
meeting will be called by the Council President. At their first meeting, the Commission will choose the date for their regular
meetings. The idea is to have monthly meetings, plus quarterly public outreach. The goal is for the Commission to come up
with a set of housing policy options and/or recommendations by December 31, 2020.
Board Member Crank asked if the application will be available before or after the Council adopts its amendment to the
resolution. Director Hope said it will probably be available before, but an explanation about the potential change will be
provided, as well.
Board Member Crank said she has heard questions and concerns about whether or not the Commission membership will be
heavy on owners versus renters. She pointed out that there are some long-term (15 years +) renters in Edmonds who are
concerned that they won't be seen as valuable as a 10-year owner. Her response to these people was that she is confident in
the City Council's ability to be fair when choosing members. She suggested that the FAQs address the equal and fairness of
how the Commissioners will be chosen, especially when the application will include the "renter/owner" question. Director
Hope agreed that should be clarified. She explained that the renter/owner question is not meant to discourage applicants but
to make sure there is a reasonable equity balance. At least 30% of the City's population are renters, and about 70% have
ownership. The hope is that there will be at least some representation from renters, even though there will likely be more
representation from owners.
Board Member Rubenkonig asked if there will be an age requirement for applicants, and Director Hope answered no.
Theoretically a young person could apply to serve on the Commission. Board Member Rubenkonig asked if there will be a
designated position for a youth representative. Director Hope answered no, but emphasized that one of the representatives
from a district could be a youth. There are no restrictions, except none of the youth representatives currently serving on a
City commission or board will be eligible. She also emphasized that the Commission meetings will be open to the public,
and there will be other public outreach opportunities, as well.
Board Member Rubenkonig said she hopes the City Council will wisely see that the housing issue is also a matter of entry
into the housing market, which applies to all ages of residents and all types of housing. She recalled that, at one time, there
were more apartments in Edmonds, but many have been turned into condominiums. In addition, condominium projects were
not being constructed for a period of time because of certain state laws that were previously in place. Edmonds does not have
a variety of housing, and that may be why so many people are still living in apartments.
Board Member Rubenkonig asked if pertinent information collected by the Citizens Housing Commission could be
forwarded to staff for dispersal to the Planning Board when appropriate. Director Hope advised that staff will provide
assistance to the Commission, and the plan is to also have a separate meeting facilitator. There is also some general interest
in hiring a community engagement specialist. The meeting facilitator will make sure the meetings run smoothly and that
discussions stay on topic, and the community engagement specialist will do all of the cool stuff to get the word out to the
public via surveys, graphic information, etc. The intent is to reach out to a broad segment of the population.
PUBLIC HEARING: OFFICIAL STREET MAP AMENDMENT TO ELIMINATE A PLANNED RIGHT-OF-WAY
(ROW) NORTH OF 184TH AVENUE SW BETWEEN 80TH AVENUE W AND OLYMPIC VIEW DRIVE (FILE NO.
PLN20190011)
Ms. McConnell explained that the proposal before the Board is an amendment to the Official Street Map, which is a
Type V decision. The Planning Board will conduct a public hearing and provide a recommendation to the City Council. She
advised that, in order to recommend approval of the amendment, the Board must fmd that it meets the review criteria found
in Edmonds Community Development Code (ECDC) 20.65.010.
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April 24, 2019 Page 3
Ms. McConnell explained that the Official Street Map was adopted in 1980, but it is still referenced in the Development Code
and used by the City. She provided a map of the subject area, pointing out that the dashed line indicates the planned ROWS,
and the existing and desired ROW widths are labeled. She emphasized that the ROW does not currently exist, but it is shown
on the map to indicate that it would be dedicated as such at some point in time when a development comes forward. She
used a vicinity map to identify the location of the current planned ROW that is the subject of the hearing. She explained that
the ROW and the developed travel lanes would go north on 80" Avenue W and head east down to Olympic View Drive.
Ms. McConnell advised that the applicant is requesting that the planned ROW line to be eliminated. The City has completed
its review of the proposal and determined that the dedication of ROW is not desired in that location. She provided an
illustration of the applicant's potential lot configuration, but emphasized that no development proposal has been submitted to
the City. She provided a graphic to illustrate the existing utilities (sewer, stormwater, water) in proximity to the planned
ROW line. While the City recognizes that the development would be better served if the planned ROW was not dedicated as
public ROW and it is not needed from a public infrastructure standpoint as a connection between 80' Avenue W and
Olympic View Drive, easements must still be maintained for the existing City utilities.
Board Member Lovell asked if the current utility easements are in place in perpetuity. Ms. McConnell explained that
easements are intended to allow the City proper access to utility infrastructure, but they do not require a road, and access may
be difficult in some situations due to vegetation, etc. Not all of the City's utility infrastructure falls within travel lanes, and
many are on private property and accessed via easements. Board Member Lovell observed that the area is slated for single-
family residential development (RS-12), which means that some lots will have forever easements that are recorded on the
property titles. He asked if the City will ensure that any homes developed on the site are located to preserve the utility
infrastructure and maintain access. Ms. McConnell said the City would not allow a building structure to be constructed over
an easement, and the easement area would need to be preserved. Board Member Lovell asked if the City would allow a
developer to relocate a utility to accommodate a different lot configuration. Ms. McConnell agreed that is possible. She said
that, in some respects, relocating the utilities could be a benefit to the City by providing better access to the infrastructure or
by realigning an easement so it no longer meanders through private properties. She noted that a 24-inch water transmission
line runs through the property. In discussions at the staff level, as well as with the developer, it has been determined that it
would not be desirable to relocate this transmission line. The current thought is that it would stay in its existing location, but
stormwater and sewer utilities could be relocated. That would be something staff would review during the Development
Permit review process. Board Member Lovell summarized that the Board is being asked to remove the concept that the route
would be used for a road in the future. Otherwise, everything else, including the utility easements, would remain the same
unless the developer presents another proposal for utilities during the Development Permit process.
Ms. McConnell pointed out that the City owns the property to the south of the subject parcels, and there are some utilities
located on the City -owned property.
Board Member Rubenkonig said she would like the maps to line up more easily. The City's Official Street Map shows the
addresses and lot numbers, but this information was not included on the maps provided in the Staff's presentation. She likes
to be able to line the maps up with each other. She asked that the addresses and lot numbers be listed on all of the maps that
are used going forward. She also suggested it would be helpful for the images to line up with each other so that the planned
ROW line is clearly identifiable on each one. Board Member Monroe pointed out that the map provided on Page 29 of the
Staff Report provides addresses.
Board Member Monroe asked if the City would compensate the property owner for the purchase of the easements. Ms.
McConnell answered no. Board Member Monroe asked if the easements would be sized to allow for future replacement of
utilities. Ms. McConnell said City staff has concluded that easements are needed, but they have not yet determined the exact
width. Staff is proposing a condition that would require that the easements be retained. Information showing the exact
easement widths will be available when the proposal moves forward to the City Council.
Again, Ms. McConnell referred the Board to the criteria found in Edmonds Community Development Code (ECDC)
20.65.010 and reviewed how the current proposal would meet each one:
• Complies with the purposes of the Comprehensive Plan. As stated on Page 1 of the Comprehensive Plan, its purposes
include: anticipating and influencing the orderly and coordinated development of land and building use of the city and
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April 24, 2019 Page 4
its environs and facilitating adequate provisions for public services such as transportation, police and fire protection,
water supply, sewage treatment and parks. The area is designated as Single -Family Resource, and that would not change
with the Official Street Map amendment and is consistent with future development that may come through. Based on
staff review, it has been determined that there is adequate ROW in connection to Olympic View Drive going east on 80'
Avenue W. The recommended condition for utilities, as stated in the Staff Report, would also be consistent with the
Comprehensive Plan.
Complies with the purposes of the Comprehensive Street Plan. This plan is referenced in ECDC 15.40
(Transportation Element). This section calls out specific policies such as locating and designing transportation facilities
with respect to the community's residential character, natural features and quality of life, as well as designing local
residential streets to prevent or discourage use as shortcuts for vehicle through traffic. Staff believes the elimination of
the planned ROW line would be consistent with the Comprehensive Street Plan (Transportation Element). If it is not
eliminated, the dedication of ROW would be required with future development. The amendment will eliminate this
undesirable ROW and potential for cut -through traffic.
• Complies with the purposes of the Official Street Map. The purposes of the Official Street Map, as stated in ECDC
18.50 are to implement the Comprehensive Street Plan and regulate the construction of improvements in accordance with
the Comprehensive Street Plan. Staff does not believe a public street is needed in this location. This decision was vetted
through the Public Works Operation and Maintenance Group and the South County Fire District, and all are in
concurrence that it is not a needed street connection.
Ms. McConnell said the Comprehensive Plan does take pedestrian connections into consideration, and this has been
discussed and will be reviewed with potential future development. The City will require dedication of easements as needed
to ensure there are proper pedestrian connections.
Ms. McConnell concluded that staff finds the proposal to be consistent with the Comprehensive Plan, the Comprehensive
Street Plan and the Official Street Map. She recommended approval with the following conditions:
1. Public water, sewer and storm utility easements shall be granted to the City of Edmonds.
2. Approval of the Street Map Amendment does not guarantee or infer approval of the subdivision being planned for the
subject property as shown in Attachment 5 of the Staff Report.
Brian Lindsay, BRL Services, was present to represent the applicant. The applicant, Manjinder Josan, was also present.
Mr. Lindsay advised that the applicant has no intention of changing the water main or sewer infrastructure, but they may
change the stormwater easement to make it more uniform but still maintain all of the same drainage features. None of the
utility infrastructure on the City's property will be changed. The applicant will dedicate 5 feet along 80' Avenue W, which
puts the stormwater line within the ROW. The stormwater line above Address 18314 may be relocated to make it more
perpendicular so the property can be better utilized.
Board Member Crank asked if the applicant's plan to change the stormwater line would still be in line with staff s
recommendation. Ms. McConnell answered yes. She explained that these items would be reviewed and considered with a
future development proposal. At this time, the Board is considering just the Official Street Map amendment, with the utilities
in their existing locations.
Board Member Lovell referred to the steep grade change east of Lot 7 down to Olympic View Drive, which will make it
difficult for a street to be constructed. Ms. McConnell said a potential pedestrian connection, and not a street, is shown in
this location. The street access would be from 80' Avenue W to the west side of the development. She explained that the
proposal for future development shows no vehicular connection to Olympic View Drive. Any connection to Olympic View
Drive would be for pedestrians only. There is currently a home at the north end of the property that has a driveway
connecting to Olympic View Drive, but there are other portions of the property where it is too steep for a road to go through.
Mr. Lindsay advised that an actual American's with Disabilities Act (ADA) pathway will be included as part of the proposed
project.
Planning Board Minutes
April 24, 2019 Page 5
Board Member Monroe asked if the Fire Marshall and Traffic Engineer considered the traffic use and the need for the
connection in light of the upcoming development, and Ms. McConnell answered affirmatively. Board Member Monroe
recalled that the Board previously discussed the subject property. Mr. Lien said the property used to be subject to a contract
rezone (RS-8), which required it to be developed via a Planned Residential Development (PRD). It has since been rezoned to
RS-12 consistent with the Comprehensive Plan designation, and the PRD requirement was removed.
Board Member Rubenkonig asked when the individual lots were created. Mr. Lien clarified that the lots have not been
created yet. Board Member Rubenkonig suggested that providing the lot numbers is somewhat confusing. The Board is only
to be looking at whether or not a ROW can be vacated. Mr. Lien said the reason behind some of the confusion is the
processes that are involved in the project. Normally, multiple applications are consolidated into a single review. The
proposed Official Street Map amendment has an associated application to vacate a portion of the ROW for pedestrian access
from 184" Street W down to Olympic View Drive. Both of these actions are Type V Legislative processes, but the
subdivision is a Type III quasi-judicial process. The City cannot consolidate legislative and quasi-judicial processes, and the
intent is to deal with the legislative processes first to address the street map amendment and the street vacation request. The
Planning Board is only responsible for reviewing and making a recommendation relative to the Official Street Map
amendment, but the two proposals will be linked together when presented to the City Council for a public hearing at the same
time. Following the Council's decision, the applicant will likely make an application for the subdivision. Staff s
recommended Condition 2 is intended to make it clear that approval of the Official Street Map amendment does not
guarantee or infer approval of the subdivision. The only thing under consideration at this time is the Official Street Map
amendment. Board Member Rubenkonig observed that it is not the Board's purpose to make the project developable, and
Mr. Lien concurred.
Ken Reidy, Edmonds, said that at the City Council's April 23' meeting, he presented 11 questions relative to the proposed
amendment. In general, he said he is very confused about what is taking place. He asked what a planned ROW is, given that
a search of the City's code yields no results. He asked how a planned ROW ended up on the City's Official Street Map. If it
was added as part of a previous subdivision or PRD approval, he questioned why it was not removed when the subdivision or
PRD approval expired. He asked how something that is not yet dedicated ends up on the City's Official Street Map. In his
research, he found several discussions about a concept called "paper street," but in every situation, the "paper streets" were
actually dedicated ROWS. Because the planned ROW has not been dedicated, it should be removed from the City's Official
Street Map. He said he is curious to know the difference between an Official Street Map amendment and a street vacation.
He found an example from 1997 where a platted street (4t' Avenue south of Walnut Street down to Howell Street) was not
dedicated. Instead it was handled through an Official Street Map amendment process, which at the time was a closed record
review and not a Type V decision. He said he knows when the ordinance was passed to change it into a Type V decision, but
he questioned what changed at the State level to warrant the change. He said he was involved with a street vacation that
involved dotted lines, but he was advised to pursue a street vacation rather than an Official Street Map amendment. A street
vacation is subject to compensation and other issues. If an Official Street Map amendment is available as an option, many
property owners with unopened ROWS would be better off using this approach as opposed to a street vacation. He said he
hopes that some clarity will come forth with this issue because it is very confusing to him.
The public portion of the hearing was closed.
Board Member Monroe commented that Mr. Reidy's point is well taken that perhaps the Official Street Map amendment
process is not well known and/or available, but the current proposal is straightforward. If the City is not planning to use the
ROW, there is no need to hold onto it. He is satisfied that staff did a good job discussing the proposal and soliciting feedback
from the Fire Marshal and Traffic Engineer.
BOARD MEMBER MONROE MOVED THAT THE BOARD FIND THE PROPOSAL IS CONSISTENT WITH
THE COMPREHENSIVE PLAN, COMPREHENSIVE STREET PLAN AND OFFICIAL STREET MAP POLICIES
AND RECOMMEND APPROVAL WITH THE FOLLOWING CONDITIONS:
1. PUBLIC WATER, SEWER AND STORM UTILITY EASEMENTS SHALL BE GRANTED TO THE CITY
OF EDMONDS.
Planning Board Minutes
April 24, 2019 Page 6
2. APPROVAL OF THE STREET MAP AMENDMENT DOES NOT GUARANTEE OR INFER APPROVAL
OF THE SUBDIVISION BEING PLANNED FOR THE SUBJECT PROPERTY AS SHOWN IN
ATTACHMENT 5.
BOARD MEMBER CRANK SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY.
INTRODUCTION TO NONCONFORMING BUILDING CODE AMENDMENTS (ECDC 17.40.020
Director Hope said these potential amendments are related to nonconforming multifamily buildings and not a sweeping
review of the nonconformance code at this time. She explained that the issue was brought to the City's attention when a
long-term resident of Edmonds experienced problems selling her unit when banks refused to lend to a prospective buyer
because the property is nonconforming and cannot be rebuilt to its current density if a major disaster were to occur.
Mr. Lien said the Edmonds Community Development Code (ECDC) 17.40.020.A defines a nonconforming building as "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. " He also reviewed ECDC 17.40.020.17, which is
the section that caused the funding problem referenced earlier by Director Hope. Based on this provision, "if a
nonconforming building or structure is destroyed or is damaged in an amount equal to 75 percent or more of its replacement
cost at the time of destruction, said building shall not be reconstructed except in full conformance with the provisions of the
Edmonds Community Development Code. " This means that the reconstructed building must meet all of the current code
standards for height, setbacks, density, etc.
Mr. Lien said the issue arose when a bank appraiser called the City to ask if the building could be reconstructed. Staff
referred to ECDC 17.40.020.17, which caused the condo sale to be put temporarily on hold. Since the problem was first
brought forward, staff has identified 23 additional sites where the provision could be a problem, but it is not an exhaustive
list. The sites identified so far have all been condominium buildings, but the provision would also apply to apartment
buildings, and the owners may not be aware of the situation. The 24 sites represent 633 units that may be impacted due to
financing issues.
Mr. Lien reviewed how the Zoning Code has changed over the years:
• 1956 — 1964. The City's first zoning ordinance was enacted in 1956, and it was in place until 1964. There was no
specific multifamily zone, and some of the existing buildings along 5`h Avenue were built during that time period when
the property was zoned C-1, which was a mixed -use zone that had no density requirement or limitation. For example,
one of the buildings has 20 units where the current zoning would only allow 10.
• 1964 — 1970. The City adopted its first multifamily zones, which were Multiple Residential, Low Density (RML) and
Multiple Residential, High Density (RMH). The density in both of these zones was calculated differently than the City's
current method.
• 1970 —1978. The method for calculating density was changed a bit, with an additional option for a density bonus.
• 1978 —1980. The option for a density bonus was eliminated for the RML and RMH zones.
• 1980 — Today. In 1980, the Edmonds Community Development Code (ECDC) was established along with most of the
zones that are currently in place. There are three multifamily zones today: RM-1.5 (one dwelling unit per 1,500 square
feet of lot area), RM-2.4 (one dwelling unit per 2,400 square feet of lot area), and RM-3.0 (one dwelling unit per 3,000
square feet of lot area).
Mr. Lien said that only one of the 24 properties that have been identified so far is nonconforming with regards to being
annexed into the City. The remaining 23 were constructed under the older RM zones.
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April 24, 2019 Page 7
Mr. Lien explained that 1964 was the City's first opportunity for a nonconforming building, and that is when the first
nonconforming code was adopted. Over the years, nonconforming situations has been addressed in a variety of ways:
• 1964 — 1979. The nonconforming code said that if a nonconforming building was destroyed in an amount of 50% or
greater, it must be rebuilt consistent with the current zoning standards.
1979 — 1980. In 1979, a primarily nonresidential building had to be reconstructed to the current zoning standards if it
was destroyed more than 50% of its value, and a primarily residential building could be rebuilt to the same density, bulk
and dimensional standards regardless of the extent of damage. That same nonconforming code also included an
abatement requirement that said the nonconforming buildings were required to come into conformance by reducing the
number of units or purchasing an adjacent property so the density requirement could be met. Interestingly, that same
code also allowed one of the units that exceeded density to apply for "innocent purchaser" status, but the rest of the units
had to be eliminated.
• 1980. The abatement requirement was eliminated, but the reconstruction provisions still applied. That meant that
primarily residential buildings could only be rebuilt to the same density, bulk and dimensional standards regardless of
the extent of damage and primarily nonresidential buildings had to meet the current zoning standards if destroyed more
than 50% of their value.
• 1981. The code was changed to allow any nonconforming building to be rebuilt to the same density, bulk and
dimensional standards regardless of the extent of damage.
• 1982 — 2008. The provision was amended to say that any building that is destroyed in an amount of 50% or more of its
replacement cost must conform with zoning standards if reconstructed.
• 2008 — Present. The nonconforming code was last updated in 2008 and required that any building that is destroyed in an
amount of 75% or more of its replacement cost must conform with the current zoning standards if reconstructed. The
memorandum provided by Mr. Reidy has some discussion about the 75% requirement. An additional provision was
added in 2008 that allows all residential buildings in commercial zones to be reconstructed regardless of the 75% rule,
but they must be reconstructed in the same footprint. The buildings would not have to comply with the current height
requirements, and the footprint could be expanded by 10%.
Mr. Lien advised that the Comprehensive Plan contains some policies and goals related to the topic of nonconformance:
• Housing Goal D — Maintain a valuable housing resource by encouraging preservation and rehabilitation of the older
housing stock in the community.
Housing Policy D — Evaluate City ordinances and programs to determine if they prevent rehabilitation of older
buildings.
Mr. Lien reported that the City Council passed an interim ordinance on April 23' that provided an exception for
nonconforming multifamily buildings. As approved, ECDC 17.40.020.17 would read:
"F. Restoration. If a nonconforming building or structure is destroyed or is damaged in an amount equal to 75
percent or more of its replacement cost at the time of destruction, said building shall not be constructed except in
full conformance with the provision of the Edmonds Community Development Code, PROVIDED THAT a
multifamily residential building may be restored in the same location, and to the same density, height, setbacks,
and coverage as existed before the destruction or damage occurred if an application for a building permit is
submitted within one year of the date the damage occurred "
Mr. Lien said the City Council has remanded the issue to the Planning Board to review the impacts of the interim ordinance
and provide a recommendation for a permanent ordinance. Issue and options to consider for the long-term ordinance include:
Planning Board Minutes
April 24, 2019 Page 8
• Should the provision "grandfather" only the number of residential units? From 1956 to 1980, multifamily zones had a
maximum height limit of 35 feet. The height limit was reduced to 30 feet in 1984. Therefore, in addition to density,
many of the existing older multifamily developments are also nonconforming in regard to height. If the long-term
ordinance only grandfathers the number of residential units, some of the flat condominiums that were built to 35 feet
could be reconstructed with the same number of units, but the units might have to be smaller.
• Should the provision "grandfather" both density and building dimensions and setbacks? The interim ordinance addresses
both density and bulk and dimension requirements.
• Is one year sufficient time for a property owner to apply for a building permit to rebuild a structure? If a building burns
down, it will take time to work with insurance companies, draw up new plans, etc. Currently, both the nonconforming
code and the interim ordinance have a 1-year time limit to submit a building application.
• Should specific reference to the Building Code be included? If the buildings are going to be reconstructed, the
assumption is that they will be rebuilt to the current Building Code standards.
• Should the rebuild be required to comply with current design standards? The current design standards require a 4:12
pitched roof in order to obtain the additional 5 feet in height above 25 feet. If both the density and height are
grandfathered, buildings that are currently 35 feet could be rebuilt and the impact could be significant.
• Should the provision apply to mixed -use buildings that have residential components? The interim ordinance includes an
exception specifically for all residential buildings, and the Board should consider whether it would be appropriate to also
include mixed -use buildings with residential components.
• How will the long-term ordinance impact other related code sections? For example, the nonconforming code that is part
of the interim ordinance provides an exception for residential buildings (ECDC 17.40.020.17). If the ordinance is
expanded to include mixed -use buildings with mixed -use components, it would override ECDC 17.40.020.G, which
covers residential buildings in commercial zones.
Mr. Lien concluded his presentation by stating that staff is looking for the Board to begin its discussion on the issues and
options related to a long-term ordinance. Staff will use feedback from the Board to draft amendments for a public hearing on
May 81h. If the Board follows the public hearing with a recommendation to the City Council, a tentative public hearing
before the City Council is scheduled for May 141h
Given that the interim ordinance is in place for 180 days, Chair Cheung asked if the permanent ordinance really needs to be
on a fast track. Director Hope responded that the City Council has asked the Planning Board to look at the issue
expeditiously. It may be necessary for the Board to extend its process beyond May 81h, but the idea is to focus on multifamily
development and provide ideas and options for staff to write up in code format. Other issues outside of multifamily
development can be discussed as a separate matter.
Board Member Crank asked if the owners of multifamily developments were notified when the various zoning changes were
being considered. Director Hope said staff does not have all of the information needed to answer that question. As much as
she wants to fix the current situation expeditiously, Board Member Crank said it is also important to think about how to avoid
having the problem coming up again. Director Hope commented that, whatever happened in the past, does not mean it has to
happen that way now. The City's intent is to notify the owners of the known addresses, publish press releases and be very
proactive about letting people know of the proposed amendment. As a former investment banker, Board Member Crank said
she learned that every mistake costs money and it is up to whoever created the mistake to bring that person whole.
Hopefully, the City can make that happen without having to come back down that road at some point in the future. Director
Hope agreed that is something the Board should consider, and they should feel confident that staff has been researching the
issue a lot by reviewing historical information and looking at what other cities have done. They have identified the things
that are most obvious that need to be considered. At this time, staff is seeking feedback about whether the permanent
ordinance should only deal with the density, or the bulk and dimension standards, too. They are also seeking feedback about
whether or not the provision should be expanded to include mixed -use buildings with residential components and if the
rebuild should be exempt from certain design standards?
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Board Member Lovell suggested that the first step should be to notify property owners and make them aware that their
properties are nonconforming. Director Hope cautioned that a comprehensive analysis would require a lot of work to
examine every building. They may not be able to give exact information to every property owner, but they can notify the
ones they know about.
Board Member Lovell asked what the banks are complaining about. Director Hope said the risk is too great for them to loan
money to finance the purchase of a nonconforming property based on the current code. That means the current owners have
no value in their property. For example, the person who brought the issue to the City's attention is unable to sell her
condominium unit because the bank won't authorize the loan. Board Member Lovell asked what criteria the bank used to
determine they would not authorize the loan. Director Hope said banks typically have appraisers who research zoning, etc.
In the past, they didn't look as closely at the density, bulk and dimension standards. If questions come up, financial
institutions contact the City to determine the status of the property and whether or not it can be rebuilt if a major disaster
were to occur. The City cannot control what happens in the banking world, but it can at least allow the possibility for people
to be made whole and to preserve the existing housing stock.
Board Member Lovell presumed that the drawings and plans for all development within the City are on file. Mr. Lien
commented that the buildings in question were constructed in the 1960s and 1970s and the City's records are not extensive,
and he cannot easily determine the height of a structure.
Board Member Lovell expressed his belief that if a property owner decides to demolish and rebuild or add onto an existing
nonconforming structure, they should be subject to the current Development Code standards. If a structure burns down, the
insurance company, under the terms of the policy, would only guarantee replacement exactly the way it was. They won't pay
to upgrade it to code or increase the height and/or density. Their goal will be to keep the costs as low as possible. He
questioned why it wouldn't be possible to assure the banks that, should a catastrophe occur and the structure is considered a
total loss and needs to be rebuilt, it can only be replaced in fact. Director Hope said it is not the City's intent to allow a
property owner to tear down and rebuild a nonconforming building to the same density and bulk. The provision in the
permanent ordinance would only apply to structures that are destroyed by a natural disaster.
Mr. Lien explained that, currently, nonconforming buildings that are destroyed less than 75% of their replacement value can
be reconstructed to their original height, density, etc. If the destruction goes beyond 75% of the value, the 2008 policy
decision was that the building could only be reconstructed consistent with the current Development Code standards.
Nonconforming buildings can be maintained based on the current code, and the ordinance is intended to address situations
where structures are significantly destroyed and need to be completely rebuilt. Board Member Lovell asked how many
situations of this type have occurred in the City over the last 10 years, and Director Hope cautioned that the issue is not
whether it actually occurs, but whether there is a risk of it occurring.
Board Member Rubenkonig said she likes the concept of "making property owners whole again." The thought came to her
mind that, even though the provision would allow them to rebuild, the new structure would have to meet the current Building
Code requirements and it might not be possible to obtain the same density as existed in the previous building. Director Hope
explained that the interim ordinance will expire in 180 days, and a full public process is required before a permanent
ordinance can be adopted. She believes the City Council was interested in providing relief to not only density, but the bulk
and dimensional standards and setbacks, too. Board Member Rubenkonig pointed out that so many variables would come
into play, such as the width of hallways and the space designated for utility rooms, community rooms, etc. Director Hope
cautioned that the ordinance may not need to respond to every potential variable. The big issue is whether or not the City
wants to provide a statement that becomes part of the code that allows for rebuilding nonconforming residential structures to
basically the same number and size so they can get financing. All of the variable issues could get decided if and when a
nonconforming building is destroyed, and that is why it may require longer than 1 year to submit the building permit
application. She suggested that 1.5 years would be a more reasonable time frame. Some may take longer, and the City could
provide for a potential extension if requested under special circumstances.
Board Member Rosen applauded the City Council and staff for working to address the issue quickly. After the discovery of
the unintended consequence and the idea of making people whole, the City is trying to do right by the residents. It is the
Board's intention to do exactly the same thing.
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Board Member Rosen commented that the rush is needed to address a real situation where a person is trying to get funding
but is hung up by the City's code. The interim ordinance shows great intent by the City Council, but banks will still likely be
concerned about funding a purchase based on an ordinance that is only good for 6 months. They will want to have a more
secure resolution. It has been discovered that at least five other property owners are facing a similar problem. At this time,
they only know of some of the buildings that are impacted. As they work to raise awareness, they could also caution people
to be more aware of and understand the agreements they are asked to sign when purchasing a condominium. This situation is
not unique to Edmonds and is an issue in many other areas of the country.
Board Member Rosen asked if the ordinance would apply to all residential structures with more than one unit. Director Hope
said staff would check to see if it would apply to structures with just two units. She explained that, under the Building Code,
two units do not count as multifamily, but the zoning code actually does consider a two -unit structure to be multifamily. Her
interpretation is that the ordinance would apply to all residential structures with more than one unit, with the exception of
accessory dwelling units (ADUs).
Board Member Rosen commented that many things can impact the size of a unit (setback, height, density, open space, etc.).
If the motivation is to protect the individual's investment, where do they stop. There could always be something that isn't
included, and perhaps the ordinance should be more specific. Director Hope agreed that is a concern, and that is why staff is
proposing specific language in the ordinance. They aren't trying to decide what the total square footage of the building needs
to be, simply that they can rebuild to the same bulk and density. It will be up to the property owner to decide if they want to
rebuild with a different layout or unit count. However, the ordinance would not allow them to exceed the existing density.
Board Member Rosen commented that, as the City develops and amends its regulations moving forward, they should work
hard to identify the potential unintended consequences of each one. The ordinance could have significant impacts that the
Board is unaware of at this time. Director Hope commented that, even in the best of circumstances, the City will not be able
to identify everything that might happen in the future. However, they can try harder and learn a lesson from this experience.
Board Member Rosen voiced concern about the perception of fairness if a nonconforming building that is destroyed can be
rebuilt to the same density and dimensional and bulk standards, but an adjacent nonconforming property that is still intact
would not have this same opportunity. The latter would be held to the current code requirements, and the former would not.
Director Hope agreed that is a fair point, and the purpose of the nonconforming code is to deal with existing buildings and
uses. Some jurisdictions do not allow any nonconforming buildings to be rebuilt unless they meet the current standards, but
many times jurisdictions allow for some exceptions.
Board Member Rosen commented that if the City does not adopt a permanent ordinance to solve this problem, it will be
setting itself up for legal consequences down the road. The City also has a moral obligation to address the issue
appropriately. If the ordinance is motivated by the reaction of banks, he asked if there is a way for the City to test whether
the ordinance would resolve the problem. It would be a shame to go through all of this work without some assurance that the
problem will be addressed. Director Hope said the City can never guarantee that banks will not come up with new concerns
to deny loans, but it is common for banks to approach cities if there is any doubt as to whether or not a structure can be
rebuilt. They typically ask for zoning confirmation and/or verification letters as routine business. She expressed her belief
that the ordinance, as discussed, would satisfy the requirement of banks. Board Member Crank pointed out that the interim
ordinance allows the Planning Division to write rebuild letters to banks, and this could be considered a test as to whether it
will resolve the issue or not.
Board Member Rubenkonig asked how the Architectural Design Board would be involved when a nonconforming residential
structure is rebuilt. Director Hope answered that Architectural Design Board review will be required. Board Member
Rubenkonig suggested that the Architectural Design Board could propose some upgrades to update the structure. Board
Member Monroe agreed that design review is important to ensure that more modern buildings are constructed.
Board Member Monroe said he is fine with allowing the ordinance to apply to both density and bulk and dimensional
standards, but he wants to be fair to the adjacent property owners by not allowing the building dimensions to expand. He
supports allowing a structure to be rebuilt to the existing height and setbacks, but they need to also allow the outside features
of the buildings to be updated.
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Mr. Lien advised that staff would be back before the Board in two weeks with some draft code language for a public hearing
The Board took a 5-minute break at 8:53 p.m. They reconvened the meeting at 8:57 pm.
ROLE OF PLANNING BOARD
Director Hope recalled that, at their retreat, the Board requested she provide a presentation on the Planning Board's roles,
responsibilities and limitations, as well as how the Board can better assist local officials and staff. She said that, broadly
speaking, there are a lot of variations on how planning boards/commissions are comprised and what they do. In Washington
State, planning boards/commissions play a very active role in long-range planning and code development and reviewing
some types of development.
Director Hope referred to Edmonds Municipal Code (EMC) 10.40, which defines the roles, responsibilities and operating
practices of the Planning Board. As per EMC 10.40, the Planning Board:
• Advises on Comprehensive Plan and Zoning Map changes and development regulations.
• Advises the Mayor and City Council on parking matters related to development regulations. Sometimes parking and
transportation issues have loomed up, and it was recognized that the Planning Board, which looks at all of those issues
together, could play a useful role in addressing parking matters.
• Serves as an ongoing Parks Board and advises on all matters related to acquisition or development of City parks and
recreation facilities.
• Conducts research on specific projects assigned by the Mayor and City Council with the option to present findings and
recommendations.
• Carries out other duties per Revised Code of Washington (RCW) 35.63, except those duties that are delegated to the
Hearing Examiner, other agencies or staff.
Director Hope also referred to Edmonds Community Development Code (ECDC) 20.01, which specifically assigns the
Planning Board the authority to make recommendations to the City Council on site -specific rezones and development
agreements, as well as legislative matters such as zoning text amendments, area -wide Zoning Map amendments,
Comprehensive Plan amendments, annexations, and development regulations.
The Planning Board's responsibilities include holding regular meetings (2aa and 4' Wednesdays, 7 p.m.) that are open to the
public and public hearings as needed. The Board also meets with the City Council periodically to review and update
Planning Board agendas and stimulate "continuing communication" amongst the Mayor, City Council, and Planning Board in
an effort to identify and solve the problems facing the City. However, this conversation would not limit the items placed on
the Board's agenda nor the topics the Board may consider. The Board has specific responsibility for adopting internal rules
and procedures and rules governing the election and duties of Planning Board officers. Prior to 2010, the Board was also
responsible for reviewing and considering strategies for economic development in coordination with the Economic
Development Commission. This last responsibility sunset in 2010 and was replaced with, "May work with the Economic
Development Commission."
Director Hope advised that the City's Planning Division provides regular staff services to the Planning Board, and other City
departments provide staff services as requested. The City Council establishes an annual budget for Planning Board
operations, and this funding is typically provided via the Planning Division to provide services the Board needs. The
Planning Board can request funding for special needs as appropriate.
Director Hope said there are certain limitations that apply to the Planning Board. For example, their work should focus on
planning issues, and their recommendations must be consistent with the Comprehensive Plan. The Planning Board must also
recognize the authority of state laws and City codes and follow the Appearance of Fairness Doctrine and Open Public
Meetings Act. If Board Members are involved in situations that might appear to be unfair, they should recuse themselves
from the discussions. They must also avoid conducting secret meetings that are not open to the public and avoid conducting
business outside of meetings via email, etc. She reminded them that the Board is a creature of the City and not an
independent body. The Board operates under the broader authority of the municipal government.
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April 24, 2019 Page 12
Director Hope shared ideas for how the Board could continue opportunities for greater effectiveness and assist elected
officials and staff. The ideas included:
• Having good discussions at meetings. The Board is creating a record of their discussions, and the City Council relies on
the minutes as valuable information.
• Asking questions and listening.
• Continuing learning and training. The Board may be interested in more opportunities for learning and training. Some of
these opportunities can be arranged at no cost to the City. The City Attorney can also provide training to the Board.
• Receiving and respecting public input. This is important because the public views the Board Members as representatives
of the City. They know that what the Board says matter, and they have knowledge and opinions that should matter to the
Board. Public input can be valuable in helping the Board make decisions.
• Modeling civil behavior. The Board Members are always polite and respectful to each other.
• Running orderly and efficient meetings. The Planning Board generally does this, and their discussions usually stay on
track.
• Providing useful reports to the Mayor and City Council. The Planning Board Chair is scheduled to present a report to
the City Council soon. This is an opportunity to provide information that can generate discussion or information.
Chair Cheung asked what would be most helpful for the Mayor and Council to hear as part of the Board's report. Director
Hope said that, depending on the topic, most of the Council Members read the Board's minutes in detail. The report could
identify issues the Board wants to explore and/or has concerns about, as well as a report on all the Board has accomplished.
Board Member Rubenkonig commented that, during a public hearing, the staff person representing the application is very
busy. It is helpful for the Planning Manager to also be present to assist in running an orderly and efficient meeting. In the
past, the Planning Manager has done a good job of keeping the Board focused, which is different than the planner's
responsibility when presenting an application. The Board is not as effective when the Planning Manager is not present for
public hearings. Director Hope agreed to share this comment with the Planning Manager. At the same time, she commented
that there will be times when the Planning Manager is unavailable for a variety of reasons.
Board Member Lovell thanked Director Hope for her presentation and said he wishes she had presented it eleven years ago
when he was a new Board Member. He suggested that, as a policy, a print out of the presentation should be given to each
new Board Member. Mr. Bryan said he found the presentation informative and helpful.
Board Member Rubenkonig said she loves the concept of continuing communication between the Mayor, City Council and
Planning Board in an effort to identify and solve the problems facing the City. She asked what measures the Board could
take to further this goal. She noted that the Planning Board Chair could meet with the President of the City Council and he
already meets on a monthly basis with the Mayor. Director Hope said there are a lot of ways to intensify this effort. For
example, some of the Board Members interact with City Council Members and the Mayor on an ongoing basis, and the
Development Services Director Reports to the Planning Board also go to the City Council. The Board's quarterly reports to
the City Council offer another way to stimulate conversation and understanding.
Board Member Rubenkonig recalled that Vice Chair Robles has previously suggested that Board Members go out into the
neighborhoods and listen to the public. Director Hope cautioned that this could be tricky unless they have a defined agenda
and proper meeting notification because they are there on public business. They are also somewhat limited in how they can
respond to people. The Board could have an occasional extra meeting or a time before regular meetings where people are
invited to speak about a particular issue. Board Member Rubenkonig asked if the Board could also meet before a regular
meeting to have a speaker on a particular topic such as a Short Course on Public Planning. Director Hope said she would like
to have speakers in from time to time about subjects that other community members might also be interested in. Topics
might include climate change, sustainability, transportation, land use, etc. Invitations could also be sent to the other City
Boards and Commissions that might be interested in a particular topic, as well as press releases when big topics come up.
At the request of Board Member Rosen, Director Hope explained that the Economic Development Commission's authorizing
statute called for coordination between the Planning Board and the Commission, and a report was actually due at the end of
Planning Board Minutes
April 24, 2019 Page 13
2020. After the report was presented, the coordination between the two groups was sunset as a requirement. However, there
is nothing to prevent the Board and Commission from working together from time to time.
Board Member Rosen commented that the Board spends very little time talking about parks. They love listening to all of the
amazing activities that are going on related to parks, but they really do not engage much in the process. Director Hope
pointed out that the Board's authorizing statute says that the Board serves as the ongoing Parks Board to advise on all matters
related to acquisition and development of City parks and recreational facilities. They are not really involved in ongoing park
operations. Board Member Lovell recalled that, several years ago, the Board spent an inordinate amount of time working out
a Park Naming Policy that was subsequently adopted. Director Hope added that, at least once a year, the also Board reviews
and makes a recommendation on capital facilities and park improvements.
Board Member Rubenkonig pointed out that the Board could create informal committees of three or fewer Board Members to
look into particular issues.
REVIEW OF EXTENDED AGENDA
Chair Cheung reviewed that the agenda for May 8t' will include a legislative update, as well as a public hearing on potential
code amendments to ECDC 17.40.020 to address nonconformance of existing multifamily structures. The Board will be
asked to make a recommendation following the public hearing, if possible.
PLANNING BOARD CHAIR COMMENTS
Chair Cheung announced that Board Member Lovell would no longer serve as liaison to the Economic Development
Commission (EDC). Board Member Monroe said he may be interested. Board Member Lovell said the Commission
appreciates the liaison's participation at their meetings. He recalled that in its first phase, the EDC indicated they wanted to
work as a team with the Planning Board, but the City Council indicated that was not part of their duties or responsibilities.
However, the two groups can still coordinate their efforts. He reported that the EDC recently presented a briefing
memorandum to the City Council that voiced the EDC's desire to deal with code changes, and the Council again informed
them that was not their responsibility. He said it is important that the Planning Board remain apprised of what the EDC is
doing, and they value the liaison's input.
Chair Cheung advised that he and Vice Chair Robles will present a Planning Board update to the City Council on May 7tt'.
At that time, he will provide Planning Board Member profiles and raise a few issues the Board wants to discuss at the joint
meeting in June. He invited the Board Members to notify him of other items they want included in the update.
Chair Cheung also invited the Board Members to share their thoughts on potential topics for the joint meeting with the City
Council in June. He noted that the topics identified so far include housing and communicating better and more effectively
with the City Council.
PLANNING BOARD MEMBER COMMENTS
Board Member Lovell reported that the Economic Development Commission (EDC) recently submitted a memorandum to
the City Council outlining areas of focus for the upcoming year. The report was well received, with the exception of the
Commission working with the Planning Board to amend the Development Code. They were reminded that was outside of
their authority. The Commission received a good response back on the idea of putting signage or creating an app for people
to use while waiting for the ferry. It was reported that the Holiday Market has grown and is highly successful. Last year, it
was done completely without the Edmonds South Snohomish County Historical Society's help, and there is still a desire for a
year-round market.
Board Member Monroe suggested that the Board consider having a joint meeting with the EDC, and Chair Cheung agreed to
contact their chair to arrange a meeting.
ADJOURNMENT
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The Board meeting was adjourned at 9:35 p.m.
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