2019-05-22 Planning Board MinutesCITY OF EDMONDS PLANNING BOARD
Minutes of Meeting
May 22, 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
Daniel Robles, Vice Chair
Todd Cloutier
Alicia Crank
Phil Lovell
Nathan Monroe
Mike Rosen
Conner Bryan, Student Representative
BOARD MEMBERS ABSENT
Carreen Nordling Rubenkonig
READING/APPROVAL OF MINUTES
STAFF PRESENT
Rob Chave, Development Services Director
Kernen Lien, Environmental Program Manager
Jerrie Bevington, Video Recorder
Karin Noyes, Recorder
BOARD MEMBER CRANK MOVED THAT THE MINUTES OF APRIL 24, 2019 BE APPROVED AS
PRESENTED. BOARD MEMBER LOVELL SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY.
ANNOUNCEMENT OF AGENDA
The agenda was accepted as presented.
AUDIENCE COMMENTS
There were no audience comments.
DEVELOPMENT SERVICES DIRECTOR REPORT TO PLANNING BOARD
Chair Cheung referred the Board to the Development Services Director's Report. Board Member Lovell requested an update
on the status of the Housing Commission. Mr. Chave reported that Director Hope discussed a variety of options with the
City Council and they gave her the go ahead to prepare some options. Hiring a consultant to assist the Commission is one
option on the table. Board Member Crank announced that the City Council is accepting applications through the end of May
and over 90 applications have been received so far. She asked about the framework for reviewing the applications and
appointing members, and Mr. Chave said he was unable to comment on that.
PUBLIC HEARING REGARDING NONCONFORMING BUILDING CODE AMENDMENTS
Mr. Lien recalled that this public hearing was originally scheduled for May 8', but was postponed until May 22nd because the
meeting room was overbooked. He explained that, as per ECDC 17.40.020.A, 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 into the City. " The code section in question prior to the interim ordinance is
ECDC 17.40.020.F. It says that "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 provisions of the Edmonds Community Development Code. "
Mr. Lien explained that the situation came forward when banks started to refuse financing for the purchase of condominiums
that were constructed prior to the City's major zoning change in the 1980's. Many of these developments exceed the current
bulk standards (density, height and setbacks). He provided a map of properties that might be impacted, but noted that the
map has not been updated since the last meeting. Staff identified 24 sites but did not evaluate all residential buildings within
the City.
Mr. Lien advised that the City Council passed an interim ordinance on April 23rd that added an additional sentence to ECDC
17.40.020.17, which reads, "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 reviewed that the Planning Board discussed this issue on April 241 and provided direction similar to the language
contained in the interim ordinance. The Board felt a property owner should be restored in full if something were to happen to
his/her property. Based on the Board's feedback, staff drafted the proposed amendments. He reviewed each of the changes as
follows:
• ECDC 17.40.010.F.1. This section refers to a code section that is no longer relevant. The proposed amendment
would update the language to provide the correct reference (ECDC 19.00.025(G).
ECDC 17.40.020.F and G. ECDC 17.40.020.17 deals with restoration of all nonresidential nonconforming
buildings, and ECDC 17.40.020.G deals with restoration of all nonconforming residential buildings in commercial
zones. The proposed amendment combines Section F and G and breaks it into three separate sections. The majority
of the proposed changes match the interim ordinance. However, the interim ordinance had a one-year timeline for
submitting a building permit application, and the Board requested that it be increased to 18 months, with an
opportunity to extend for an additional 180 days.
• ECDC 17.40.020.F.1 would apply to all nonresidential nonconforming buildings and would require that
nonresidential nonconforming building that are damaged more than 75 percent, must comply with all of the current
zoning codes. Buildings damaged less than 75 percent can be restored if a building permit application is submitted
within 18 months of the date such damage occurred.
ECDC 17.40.020.F.2 would apply to all nonconforming multifamily residential buildings or mixed -use buildings
containing multiple residential units. The Planning Board will need to make a recommendation on whether or not
this provision should be limited to multi -family residential or include mixed -use buildings that also contain
residential units, as well. Some of the old nonconforming code applied to buildings that were primarily residential.
The provision would allow nonconforming multifamily residential buildings or mixed -use buildings containing
multiple residential units to be restored if damaged in excess of 75 percent if a building permit application is
submitted with 18 months of the date the damage occurred.
• ECDC 17.40.020.F.3 pertains to the right of restoration and would apply to both nonresidential nonconforming
buildings and residential nonconforming buildings. As written, the right of restoration would not apply if -
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May 22, 2019 Page 2
a. The building or structure was damaged or destroyed due to the unlawful act of the owner or the owner's
agent;
b. The building is damaged or destroyed due to the ongoing neglect or gross negligence of the owner or
owner's agent;
c. The building was demolished for the purpose of redevelopment.
Item c is a new item that is intended to address the situation of an existing apartment building that is nonconforming
(exceeds density and height) and a developer wants to tear it down and construct another building. Staff's thought is
that the building should be required to comply with the current zoning standards.
• ECDC 19.00.045 is a new section that was added to the Building Code. The City has a policy for determining when
a project is considered new construction versus a remodel. Different standards and fees apply whether a project is
new or a remodel. Many developers try to retain 25 percent of a structure's value and do a remodel instead of a
rebuild. This amendment would codify the policy and add a specific reference to the nonconforming section to
make it clear that the nonconforming code would still apply.
Mr. Lien reminded the Board that the City Council wants to address this issue fairly quickly, and they are seeking a
recommendation for the Board prior to their public hearing, which is scheduled for June 4'
James Forrer, Edmonds, said he lives in the condominiums that abut 4' and 51 Avenues South, and his primary concern is
that many of the owners are between 80 and 90 years old and have lived there since the project was built in 1979. If the issue
is not resolved in the right way at a time when they might need medical care, assisted living or a nursing home, a lot of their
net worth is tied up in their condominiums and a lot of that would be obliterated if people cannot get bank loans or cash
purchasers do not come in to replace the bank loans.
Cami Morrill, Director of Government and Public Affairs with the Snohomish County and Camano Association of
Realtors, offered support for the draft code language, which will allow the nonconforming buildings to be restored to the
same density, height, setbacks and coverage as existing before the destruction or damage occurred.
Wendy Kondo, Windermere Real Estate, said she brought this situation to the City's attention when her transaction
wouldn't close. The bank would not lend money for the condo when it was discovered it could not be rebuilt. That means
they are unwarrantable and underwriters won't purchase the loans. This is a very dangerous situation, especially with the
banks and government getting tighter and tighter with lending. Most cities she checked into have grandfathered these types
of buildings because they already exist and people already own them. She asked that the City change its code language to
allow these structures to be grandfathered in so the owners can sell their condominiums and people can still get loans to
purchase them. There is no reason not to allow them to be rebuilt. The buildings are already there and they won't be built
any differently than they currently are.
Board Member Rosen referred to ECDC 17.40.020.F.2 and asked if it would be possible to apply the proposed provisions to
just the residential portion of a nonconforming building and require that the nonresidential portion must meet the current code
standards. Mr. Lien answered that it would be very difficult to have different provisions for the commercial versus
residential space because there are number of ways a building can become nonconforming.
Board Member Monroe asked if it would be possible to include a provision that would lock a development into the current
ratio of commercial versus residential. He wouldn't want to allow a property owner to significantly change the ratio. Mr.
Lien clarified that the proposed amendments would not open the box to allow a property owner to maximize the density that
existed in 1980 or when the building was constructed. It allows the building to be restored to the same density, height,
setbacks, etc. that existed before the destruction or damage occurred and the nonconformity could not expand.
Board Member Lovell said he supports the proposed amendments. However, it is important to understand that if a building is
lost, the insurance company will be responsible for making the owner whole and not the City. Regardless of how long that
process takes, he doesn't understand how that is the business of the City. While the banks can raise concern about the
nonconforming issue, he doesn't believe they would deny the loan if the purchaser wants to go forward anyway. The unit
would still be livable even if it was built to an earlier code standard.
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Board Member Lovell observed that, although the amendment would allow a property owner to restore a structure to the
same bulk and setback standards, the restoration would have to meet the current Building Code requirements. All the
amendment offers is a one -for -one replacement of the space in whatever configuration it existed in before the building was
lost.
Mr. Lien agreed that most owners will have insurance and if a condominium burns down, they will receive X amount of
money from the insurance company and the owner could technically purchase a condominium in another location. However,
that may not make an owner who has a condominium on 5th Avenue with a view whole. It would not give the property owner
back what he/she had at the same location. He summarized that the proposed amendments are not intended to solve the
insurance and banking issues. The intent is to allow a property owner to be made whole, and it is more than just providing a
new place to live. It is providing a new place to live in the same location that they were.
Chair Cheung asked if the proposed amendments have been run by any insurance companies or banks to solicit feedback on
whether or not they will resolve the issues. Ms. Kondo reported that the interim ordinance addressed the bank's problem and
the purchaser was able to obtain a loan to purchase the unit. Mr. Lien summarized that the interim ordinance addressed the
situation that raised the issue initially, but the proposed amendments have not been presented to financial institutions for
feedback.
While some may be looking at this as an opportunity to address a number of things at one time, Board Member Crank
recommended they fix the immediate issue of grandfathering nonconforming condominiums first. She supports applying the
proposed provisions to nonconforming mixed -use buildings with residential units, and she is opposed to having a different
standard for the commercial portion of a mixed -use building. They need to address this issue expeditiously. Edmonds is a
bedroom community, which means the majority of condominium owners are older. Time is of the essence in making sure
they rectify the situation. She said she supports grandfathering in those buildings that have been identified as
nonconforming, including those that are mixed -use. She encouraged them to right the ship first before making other potential
changes to zoning.
Vice Chair Robles asked who would adjudicate the "rights to restoration" matter. While it is obvious when there is a fire,
earthquake, etc., there are more ways by which buildings can lose substantial value. For example, they may need a new roof,
new siding, and new piping. Together these costs might exceed the value of the building, in which case the owners may
decide to demolish it and build a new one. He asked if this would fall within the definition of gross negligence. Mr. Lien
explained that a property owner would provide a list of all the materials needed to reconstruct the building, and the Building
Official would make the final determination of whether or not it equates to 75 percent. The property owner can appeal the
Building Official's decision to the Hearing Examiner. A building that needs a new roof, siding, wiring, etc. would fall into
this category if the work exceeds 75 percent. He commented that some property owners try to save at least 25 percent of a
building so it can be considered a remodel rather than replacement so that different permits, codes and fees can apply.
Vice Chair Robles asked if staff feels the proposed amendments adequately cover every eventuality. He asked how "gross
negligence" would be defined. Every building has a service life, at which point it needs to be brought down. Mr. Lien said
"gross negligence" includes situations of ongoing neglect. A building that hasn't had any maintenance done to it for the past
40 years would not necessarily fall into this category, but it could fall into the "ongoing neglect" category. Mr. Chave added
that if the Building Official finds that a building is uninhabitable or dangerous, it likely got there by gross negligence.
Chair Cheung asked if Section F.3.a would cover situations where someone intentionally damages a building in order to
collect insurance money. He asked if it has to be an unlawful act in order for F.3.1 to apply. Mr. Lien responded that
accidents happen, and that is what the amendments are intended to address. Section F.3.a is intended to address situations
where property owners intentionally damage their buildings.
Vice Chair Robles asked if the adjudication process could include a third -party review to access negligence. Mr. Lien said
the Building Official is the City's qualified expert to make that call. If the property owner disagrees, the Hearing Examiner
would be the third -party review. The Hearing Examiner's decision can be appealed to Superior Court. Vice Chair Robles
voiced concern about forcing a condominium owner into an appeal process that will require money to pay for attorneys and
experts. That money could be better spent repairing the building. Mr. Lien said that, as a professional, he follows a code of
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ethics, and the same is true for the Building Official. The Building Official tries to make ethical decisions, and requiring a
third -party will add an upfront cost that may not be necessary. Even if a third -party review is required, there must still be an
avenue of appeal. He cautioned against adding this unnecessary step.
Board Member Monroe asked what happens if one condominium owner intentionally burns down his/her unit and it catches
the entire building on fire. Would this trigger ECDC 17.40.020.F.3.a. Mr. Lien said he doesn't believe that situation would
fall under this provision since the action would be out of the hands of the other owners in the building. Board Member
Monroe asked who would make that determination. Mr. Lien said a number of people would be involved in the decision.
Board Member Monroe suggested that ECDC 17.40.020.F.3.c be changed to read, "the building was intentionally
demolished." Chair Cheung suggested that ECDC 17.40.020.F.3.a also be changed to replace "unlawful" with "intentional."
Mr. Lien agreed to consider these two changes to make the language clearer.
Board Member Monroe referred to ECDC 17.40.020.F.2 and asked if the restored building would be required to meet all four
of the standards (density, height, setbacks and coverage). Mr. Lien said these are all different aspects for why the building is
nonconforming. They represent the bulk and dimensional standards for what a structure can be rebuilt to. Board Member
Monroe suggested this could be clarified by replacing the word "and" with "or." Mr. Lien agreed.
Board Member Monroe commented that in addition to making property owners whole, the proposed amendments will also
make the community whole. If a building burns down, the community will lose residents and businesses, etc.
Board Member Lovell said he supports correcting the alleged short fall within the provisions to make it possible to rebuild,
but it should be clear that the amendments have nothing to do with insurance, banking or the value of a unit before, after or
during loss. The amendment simply enables a property owner who has a nonconforming building to rebuild in accordance
with the new Building Code, but to the preexisting density, setback and height.
BOARD MEMBER ROSEN MOVED THAT THE BOARD FORWARD THE PROPOSED AMENDMENTS
RELATED TO NONCONFORMING BUILDINGS TO THE CITY COUNCIL WITH A RECOMMENDATION OF
APPROVAL AS PRESENTED IN THE STAFF REPORT AND WITH ONE CHANGE TO AMEND ECDC
17.40.020.F.2 BY REPLACING "AND" WITH "OR." BOARD MEMBER CLOUTIER SECONDED THE
MOTION, WHICH CARRIED UNANIMOUSLY.
Mr. Chave advised that the amendments, along with the Board's recommendation, will be presented to the City Council for a
public hearing on June 4'
REVIEW OF EXTENDED AGENDA
Chair Cheung advised that the June 12' agenda will include a legislative update and a Vision 2050 update. Mr. Chave
advised that staff would also present an update on development activities around the City.
Chair Cheung reminded the Board Members of the joint meeting with the City Council on June 18t''. Topics of discussion
will include housing and improving the lines of communication between the Planning Board and the City Council. Mr.
Chave said the Board will also be meeting jointly with the Architectural Design Board soon to discuss the design review
process.
Since there are few items on the extended agenda for June and July, Board Member Monroe suggested that they consider
adding some of the items included on the "Pending" list. For example, staff could provide an update on Highway 99
Implementation.
PLANNING BOARD CHAIR COMMENTS
Chair Cheung reported that he and Vice Chair Robles presented the Planning Board Report to the City Council. He told them
the Board was excited to have more topics coming their way. He explained how the Board Members try to get their
comments in the minutes from their meetings and hope that the City Council Members take the time to read them. A few
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Council Members indicated that they read all of the Board's minutes. He suggested that, moving forward, the report should
be schedule for twice a year rather than every quarter. Mr. Chave suggested that perhaps they could alternate with joint
meetings with the City Council.
PLANNING BOARD MEMBER COMMENTS
Vice Chair Robles pointed out that the Planning Board minutes are being searched, particularly when people are interested in
learning more about "hot button" topics. The Board Members need to be aware that they are establishing a data base with
their comments. The City Council appears to be respectful of the Board's work.
Board Member Monroe recalled that Board Member Rubenkonig indicated she would serve as the interim liaison to the
Economic Development Commission. He agreed to contact her to confirm that she would attend the next meeting.
ADJOURNMENT
The Board meeting was adjourned at 8:00 p.m.
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