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HomeMy WebLinkAbout5960 ~-' .) ( II .I' (\.; i/J J V . . ,?, .. 1 ,.., ~ Return Address: 11111111111 n 1111111 n Auburn City Clerk 20060210002267 City of Auburn PACIFIC NU TIT ORD 52.00 25 West Main St. PAGE001 OF 021 02/10/2006 15:46 Auburn, WA 98001 KING COUNTY, UA - - -- -- - - - - - - RECORDER'S-CnVe-RSHEET - -- -- Document Title(s) (or transactions contained therein): C;, y --"'.,' (;J \ ~ ~ Rezone (Ordinance No. 5960) -i,.\,N(- '..N >'~~J ~../..~ Reference Number(s) of Documents assigned or released: DAdditional reference #'s on page of document Grantor(s)/Borrower(s) (Last name first, then first name and initials) City of Auburn Grantee/Assignee/Beneficiary: (Last name first) 1. Adams, Monte Legal Description (abbreviated: i.e. lot, block, plat or section, township, range) Generally Government Lot 1, Section 28, Township 21 Range 5 East WM ~ Additional legal is on page 21 of document. Assessor's Property Tax Parcel/Account Number 282105-9021 o Assessor Tax # not yet assigned Said docurnent(s) W8I8filedfOr record by Pacific Northwest Title as accommodation only. It hac not been examined as to proper 8x8CUIIon ., as to its affect upon title. ORDINANCE NO.5 9 6 0 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, APPROVING THE REQUEST TO REZONE THE NORTHERLY APPROXIMATELY 6.8 ACRES OF A 13.14-ACRE SITE FROM RURAL RESIDENTIAL (RR) AND RESIDENTIAL MOBILE HOME PARK (RMHP) TO DUPLEX RESIDENTIAL (R3) WITHIN THE CITY OF AUBURN, WASHINGTON WHEREAS, Application No. REZ04-0006, dated September 24,2004, has been submitted to the City of Auburn, Washington by Monte Adams, requesting approval of rezone request for approximately 13.14 acres from Rural Residential (RR) and Residential Mobile Home Park (RMHP) to Duplex Residential (R3) in Auburn, Washington. WHEREAS, said request above referred the Hearing Examiner for study and public hearing thereon; and WHEREAS, pursuant to staff review, the Hearing Examiner conducted a public hearing to consider said petition in the Council Chambers of the Auburn City Hall on August 16, 2005, of which the Hearing Examiner recommended approval of the rezone for only the northern approximately 6.8 acres from Rural Residential (RR) and Residential Mobile Home Park (RMHP) to Duplex Residential (R3) on September 14, 2005; and WHEREAS, a Request for Reconsideration was timely filed on September 28, 2005 by Jane Ryan Kohler on behalf of Fray Breckenridge. Subsequently, on Ordinance No. 5960 December 14, 2005 Page 1 of 19 October 11, 2005 the Hearing Examiner in response to the Request for Reconsideration added a Condition Number 9 of his earlier decision; and WHEREAS, subsequently, on October 21, 2005 the Hearing Examiner in response to a request for clarification, modified Condition Number 9 of his earlier decision; and WHEREAS, at its regular meeting of November 7, 2005, the City Council voted to conduct a closed record hearing on the Hearing Examiner's recommendations; and; Whereas, a closed record hearing was held December 13, 2005 , at which time the City Council, considered the Hearing Examiner's recommendations and the material presented to the Hearing Examiner after which the Council voted to approve Application No. REZ04-0006 based upon the following Findings of Fact and Conclusions, to-wit: FINDINGS 1. Monte Adams (Applicant), by and through his representative Mr. Hans Korve of DMP Inc., requests approval of a rezone of one parcel of land, totaling approximately 13.14 acres. The rezone would reclassify the property from Rural Residential (RR) and Residential Mobile Home Park (RMHP) zoning designations to a Two-Family (Duplex) Residential (R3) designation. Applicant asserts that the rezone is necessary due to the environmental issues of the site and would permit reasonable use of the property by allowing for a more concentrated development pattern. The Applicant further asserts that the proposed R3 zone promotes the property's Comprehensive Plan designation. Exhibit (, Staff Report "Note: All exhibits referenced herein are exhibits attached to the Hearing Examiner's Findings of Fact and Conclusions, which exhibits are incorporated herein. Ordinance No. 5960 December 14, 2005 Page 2 of 19 (Rezone) page 1 and 3; Exhibit 3A, Rezone Application Narrative; Testimony of Mr. Dixon. 2. As part of the application, Applicant has requested approval of a Preliminary Plat for a single-family residential development - "Adams Vista". Applicant proposes to develop Adams Vista in one phase. The development would be eight lots, ranging in size from 16,575 square feet (Lot 4) to 61,830 square feet (Lot 8), located on the northern 6.94 acres of the site. Average density would be 1.64 dwelling units per acre. Although the R3 zone allows for multi-family dwellings, Applicant proposes only single-family residences. The plat is to contain two privately owned and maintained tracts for access and utilities (Tract A and Tract C). Applicant seeks to dedicate Tract B, approximately 6.2 acres of sensitive areas, to the City of Auburn. Exhibit 1, Staff Report (Plat), page 1 and 3; Exhibit 3, Preliminary Plat Application; Exhibit 31, Site Plan. 3. The subject property is identified as King County Parcel No. 282105-9021. The parcel is within the city limits of Auburn and contained within the City's Urban Growth Boundary. Exhibit 3, Preliminary Plat Application; Exhibit 3A, Rezone Application; King County Tax Assessor's Records. 4. Both applications - rezone and preliminary plat - are being processed by the City concurrently and were consolidated at the public hearing. Testimony of Mr. Dixon. 5. Notice of Application was issued on June 21,2005 for both the rezone and the preliminary plat. Exhibit 4. 6. Notice of the public hearing was posted on the property on August 3, 2005. Notice of the public hearing was mailed to all property owners located within 300 feet of the affected site and published in the King County Journal on August 3, 2005. Exhibits 5, 6, 7, and 8. 7. All but 0.5 acres of the parcel is currently zoned Rural Residential (RR). In the extreme northeastern corner of the property, approximately 0.5 acres, is zoned Residential Mobile Home Park (RMHP). The northern portion of the property (approximately 6.9 acres) is designated as Moderate Density Residential on the City of Auburn's Comprehensive Plan's Land Use Map (LUM). The southern portion (approximately 6.24 acres), located along the buffer for the White River, is designated as Open Space in the LUM. The parcel has been zoned RR and RMHP since Ordinance No. 5960 December 14, 2005 Page 3 of 19 1987. Exhibit 1, Staff Report (Rezone and Plat), pages 1 and 3; Exhibit 3, Preliminary Plat Application; Exhibit 3A, Rezone Application; Chapter 14. 8. The subject property is currently vacant and undeveloped. Surrounding land uses consist of residential and commercial development and open space. Residential development is comprised of condominiums to the north, a mobile home park and tnbal lands to the east, and single family residences to the west. Light commercial development is located to the north and to the west of the subject property. Most of the neighboring commercial and residential activities were developed prior to 1980. South of the property is the White River and its associated buffer. The site is forested with sparse, mature second growth conifer and deciduous trees with a dense to open understory. The site has experienced previous unpermitted logging. Exhibit 1, Staff Report (Rezone), page 2; Exhibit 9, Aerial Photograph; Exhibit 24, Geotechnical Report, page 2; Exhibit 40, Ordinance 5038; King County Tax Assessor; Testimony of Ms. Breckenridge. 9. Pursuant to ACC 18.68.020(A)(1), a rezone is an amendment to the Zoning Map and may be initiated by a request from one or more property owners. The Applicant is the owner of the property involved in this rezone and filed an application with the City on September 24,2004. ACC 18.68.020; Exhibit 3A, Rezone Application. 10. The RR zone is intended primarily to provide for single-family residential uses with characteristics of a rural or agricultural environment. This zone is intended to represent a long term commitment to rural uses and to protect areas with significant environmental constraints or values from urban levels of development. The RMHP zone is intended is to provide a residential zone of single-family manufactured homes exclusively within a planned park. The R3 zone is intended to permit a limited increase in population density by permitting two dwelling units on a minimum size lot while at the same time maintaining a desirable family living environment. The R3 zone can be used to provide a transition between single-family areas and other intensive designations or activities that reduce the suitability for single-family uses. The purpose of the Moderate Density Residential designation is to provide an area of transition between single- family residences and other more intensive land use designation while offering housing types which balance residential amenities with the need to provide economical housing. The purpose of the Open Space designation is to ensure adequate open space for present and future Ordinance No. 5960 December 14, 2005 Page 4 of 19 residents by reserving and protecting the resource. ACC 18.08.010; ACC 18.20.010; ACC 18.16.010; Chapter 14, Land Use Element of Auburn's Comprehensive Plan. 11. The Applicant previously requested a rezone of the subject property's northern 6.8 acres in 1996 from RR to R3 (Exhibit 33 - Application No. REZ0003-96). A SEPA Determination of Non-Significance (DNS) was issued for the proposed rezone on May 13, 1997 (Exhibit 34). Winchester Heights Homeowners Association (HOA) appealed the issuance of the DNS stating, among other things, that the determination failed to consider "likely adverse environmental impacts" of the proposed rezone and the development such a rezone would permit (Exhibit 35). A public hearing on the rezone and the appeal of the DNS was held on August 19, 1997. The City's Hearing Examiner at the time issued her decision on August 28, 1997, recommending approval of the rezone to the City Council (Exhibit 36) and denial of the SEPA appeal (Exhibit 37). The Hearing Examiner concluded that the environmental impacts of the proposal would be adequately addressed when a site specific development plan was submitted to the City. Winchester Heights HOA submitted a Request for Reconsideration to the Hearing Examiner on September 4, 1997, asserting that the proposed rezone was inconsistent with the Comprehensive Plan; there has been no change in circumstances to justify the rezone; the rezone was not in the public interest; and the environmental analysis was not adequate (Exhibit 38). Finding no error in the August 28, 1997 decision, on September 17, 1997, the Hearing Examiner issued an Order denying the Request for Reconsideration (Exhibit 39). Exhibits 33, 34, 35, 36, 37, 38, and 39. 12. The City Council held a closed record hearing on October 20, 1997, to consider the Hearing Examiner's recommendation for the proposed rezone. On November 3, 1997, the City Council passed Ordinance 5038 (Exhibit 40) denying the rezone. The City Council's denial was based primarily on the fact that the property was a geologically critical area, removal of vegetation had exacerbated instability of the slopes, and adequate environmental analysis had not been conducted. However, the City Council stated that if the Applicant were to develop the property, submittal of a development proposal and corresponding geological reports would be required. Exhibit 40, City Council Ordinance 5038. 13. Neighboring property owner, Ms. Frary Breckenridge, through counsel, asserted that the present rezone is barred under the legal doctrine of Res Ordinance No. 5960 December 14, 2005 Page 5 of 19 Judicata. Ms. Breckenridge asserts that there has been no substantial change in the rezone applications. Ms. Breckenridge argues that the same Applicant, the same property, and the same rezone proposal - RR to R3 - was denied by the City in 1997, thereby barring the present rezone request. She stated that the 1997 denial raised serious concerns in regards to slope stability; whether the Comprehensive Plan designation was appropriate; and tree/vegetation removal; all of which have not yet been properly addressed by the City. Assistant City Attorney, Mr. King, reviewed Ms. Breckenridge's Res Judicata claim and concluded that Ordinance 5038 did not permanently bar the proposed rezone but it was denied until such time as environmental concerns, such as slope stability and vegetation removal, were properly addressed. Mr. King determined that Applicant's 1996 rezone application did not properly address environmental issues, but that Applicant's current rezone application does address them, thereby satisfying the "substantial change" required by the Hilltop test. Mr. Korve also testified that, in 1997, though no development proposal was submitted the Applicant had desired to construct a high density multi-family project (approximately 66 dwelling units) and conducted no analysis as to impacts on the sensitive areas. Mr. Korve stated that the current application includes a geotechnical report that adequately addresses environmental concerns, and seeks to develop only eight lots, all with single-family residences. Mr. Dixon testified that the current rezone application differs because no specific information on a development proposal or critical area impacts was included in the 1997 application and the current application includes such considerations. Exhibit 41, Letter from Ms. Breckenridge's counsel, Jane Ryan Koler; Testimony of Ms. Koler; Testimony of Mr. King; Testimony of Mr. Dixon; Testimony of Mr. Korve. 14. Pursuant to the State Environmental Policy Act (SEPA), RCW 43.21C, the City of Auburn acted as lead agency for the review of environmental impacts caused by the proposed rezone and preliminary plat. A SEPA Environmental Checklist (SEP04-0033) was completed by the Applicant. City Staff evaluated the Checklist and issued a Final Mitigated Determination of Non-Significance (MDNS) on July 20, 2005. The MDNS states 20 conditions which are incorporated as conditions of this recommendation. Exhibit 10, SEPA Checklist; Exhibit 11, Staff Evaluation of Checklist, Exhibit 12, Final MDNS. 15. Critical areas are present on the site. The southern two-thirds of the property slopes steeply down to the shores of the White River, containing Ordinance No. 5960 December 14, 2005 Page 6 of 19 three ravines that drain to the White River. Pursuant to ACC 16.10.080(G), a slope of greater than 40 percent is classified as a critical area due to the possibility of landslide, erosion, and seismic hazards. The City mapped the site as being within a Class I "Known" Landslide Hazard Area and a Class III "Unknown" Landslide Hazard Area. Golder Associates Inc. prepared a Geotechnical Investigation and Steep Slope Hazard Study for the proposal (Exhibit 24). The report noted five localized, small, shallow debris landslides on the steep slopes, ranging from 60 to 150 feet in width. Golder Associations predicts that resulting slope retreat would range from 10 to 25 feet over a 50 year period. Golder Associates recommended mitigation measures to address the long-term effects of continued landslide activity. Such measures included a minimum 30-foot or 50-foot building/structure setback from the crest of the steep slope and control of surface water drainage. Golder Associates concluded that the portion of the project site being proposed for development was suitable for construction of single-family homes, townhomes, multi-family apartments, or condominiums. Exhibit 24, Geotechnical/Steep Slope Study, Section 5, pages 5-13. 16. Public comment was received on landslide activity and unpermitted tree removal occurring on the subject property. Ms. Breckenridge retained ALM Geotechnical Services Inc. to provide comments and opinions regarding certain geotechnical aspects of the rezone (Exhibit 41A). ALM reviewed the geotechnical report prepared by Golder Associates and conducted a site visit. ALM concurred with Golder's proposed setback of 30-feet but opined that a 50-foot setback is preferred. Based on ALM's calculations, construction of the proposed turn-around at the northwest corner to the site would result in a "permanent and irreversible encroachment of 33-feet into the minimum allowable setback of 30 feet." Exhibit 19, Letter from Donna Fleming; Exhibit 41A, ALM Geotechnical Review; Testimony of Mr. Dixon; Testimony of Mr. Beatty; Testimony of Ms. Breckenridge; Exhibit 44, Breckenridge Testimonial Exhibits, photograph. 17. The subject property is bordered to the south by the shoreline of the White River. During their review of the site, Golder Associates discovered a groundwater spring near the toe of the steep slope. However, the proposed location of the lots is greater than 200 feet from the ordinary high water mark of the White River and from the spring and a Shoreline Substantial Development Permit is not required. A portion of the site is within the FEMA 1 OO-year flood elevation associated with the White River. The lowest elevation of the proposed residential development is 240 feet, Ordinance No. 5960 December 14, 2005 Page 7 of 19 80 feet over FEMA's floodplain elevation of 160 feet. No development is proposed within the buffer of the White River. Exhibit 1, Staff Report (Plat), page 5; Exhibit 10, Environmental Checklist, page 3; Exhibit 7, Staff Evaluation of Checklist, page 7; Testimony of Mr. Dixon. 18. RCW 36.70A, Washington's Growth Management Act, requires the City of Auburn to develop a Comprehensive Plan. Pursuant to several sections of the ACC, a rezone, and plat must be consistent and/or in accordance with the City's Comprehensive Plan. Analysis of the proposal's consistency with the Comprehensive Plan is provided for in the Final Staff Evaluation for the Environmental Checklist (Exhibit 11). Policies included EN-66 (no development of land that increases potential for landslides); EN-11 (water quality); EN-2, EN-4, and EN-14 (stormwater drainage); EN- 6, EN-23, and EN-24 (vegetation and wildlife); LU-20 (flexible development standards); LU-22 (shoreline development); UD-1 (maintaining existing neighborhood character); UD-12 (underground utilities); HP-1 and HP-3, and HP-7 (historical preservation); LU-45, TR- 21, and TR-23 (transportation); TR-44 (sidewalks); CF-38 and CF-39 (drainage). Exhibit 12, Staff Evaluation of SEPA. 19. ACC 18.68.030(B)(1) requires the Director of Planning and Community Development to review a rezone application for consistency with the City's Comprehensive Plan. If the Director determines that the application is consistent, the application shall be scheduled for a public hearing. The Director determined that the application was consistent and the required public hearing was held on August 16, 2005. ACC 18.68.030; Exhibit 1, Staff Report (rezone), page 5. 20. The Applicant has the burden of proof for rezones. In its application, the Applicant stated that the proposed zoning is supported by the current Comprehensive Plan designation, Moderate Density Residential, and is consistent with the type and density of development on neighboring properties. The City submitted that the surrounding area has been subject to change since the site was originally zoned in 1987. It noted that an adjacent parcel west of the subject property was rezoned in 1997 to R3 and that traffic volumes had substantially increased along nearby Auburn Way South. The City further asserted that the Central Puget Sound Growth Management Hearing Board's "Bright Line Rule" of a minimum of four residential dwelling units per acre within urban areas supports the rezone. ACC 18.68; Exhibit 1, Staff Report (Rezone), page 6. Ordinance No. 5960 December 14, 2005 Page 8 of 19 21. The proposal is within the Auburn School District. In Washington, making ample provision for the education of children is a paramount duty of the state. This requirement is further stated in the laws of the State and the City of Auburn. RCW 58.17.110 states that subdivisions must make appropriate provisions for the general welfare of the community including provisions for schools and for safe walking conditions for students. RCW 36.70A.020(12) states that when a City is planning for growth, they are to ensure that public services, such as schools, necessary to support development are adequately available to serve the development. ACC 17.060.070(A) states that a subdivision must make adequate provisions for the general welfare of the community, including schools. The record is devoid of any comments from the Auburn School District. The Applicant conceded that he has had no communication with the Auburn School District but that ACC 19.02 allows the City to collect school impacVmitigation fees, approximately $4,500 per building permit, on behalf of the school district. Adams Vista proposes an internal private roadway and sidewalks to Hemlock Street for safe passage of children must be provided. Exhibit 1, Staff Report (Plat), page 6; Testimony of Mr. Dixon; Testimony of Mr. Korve. 22. The City of Auburn would provide police and fire protection. Exhibit 1, Staff Report (Plat), page 6; Testimony of Mr. Dixon. 23. The City of Auburn would provide water, sanitary sewer, and storm drainage services. Water would be provided via an 8-inch connection to the water main currently existing at the end of Hemlock Street SE and running eastward to the water line in the adjacent mobile home park. A new sewer line would be installed, extending westerly from the existing line contained within the mobile home park. Due to reduced elevation, Lot 2 to Lot 8 would be required to have individual grinder pumps. Applicant proposes both public and private stormwater drainage systems. Runoff from the public road would be discharged to an infiltration sump located at the eastern end of the public road. Runoff from the private road would be managed via a catch basin and underground piping discharging to a linear on-site infiltration trench on the north side of the private road. Infiltration would be utilized to control runoff from each residence. Exhibit 1, Staff Report (Plat), pages 6 and 7; Exhibit 10, Environmental Checklist, page 19; Exhibit 11, Staff Evaluation of Checklist, pages 6-8; Exhibit 12, FDNS; Exhibit 25; Exhibit 27; Exhibit 28; Exhibit 31, Composite Utility Plan; Testimony of Mr. Dixon. Ordinance No. 5960 December 14, 2005 Page 9 of 19 24. Winchester Heights Condominium Homeowners Association (Winchester Heights HOA) submitted both written and oral comments. Written comments pertained primarily to the SEPA review and requested conditions, which would limit the amount of vegetation removed and access to sensitive areas. In addition, Winchester Heights HOA stated that the proposed R3 zone would allow for a significantly different building scheme than the one proposed and evaluated in the SEPA checklist. Mr. Robert Beatty, President of Winchester Heights HOA, stated that although the proposal currently under consideration is far better than the 1996 proposal, The HOA is concerned about vegetation removal, erosion of the steep slopes, and impairment to urban wildlife passage. The City responded that Condition NO.13b of the MDNS requires installation of a permanent fence to control intrusion into the property's steep slopes and buffers; that vegetation removal is not proposed in critical areas; and that under the R3 zone a total of 16 residences (8 duplexes) could be constructed, and that the construction of duplexes instead of single-family residences would not substantially change the impacts of the project. Exhibit 13, Winchester Heights Letter; Exhibit 14, City's Response; Testimony of Mr. Beatty. 25. Comments were received from the Muckleshoot Indian Tribe (Exhibit 17) who asserted that priority was not given to archaeological resources that may be on-site. The Tribe asserted that MDNS Condition No. 20 does not adequately protect archaeological sites because it is retrospective. The City responded to these comments (Exhibit 18) stating that the Applicant has volunteered to prepare a Resource Assessment Report to investigate the potential for archaeological and cultural resources on the subject property. Ms. Laura Murphy, Archaeologist for the Tribe, met with the Applicant regarding the proposed project. After review of the geotechnical report, Ms. Murphy concluded that a professional archaeologist be retained to survey the property for the presence of significant archaeological resources. City Staff testified that the Staff Report erroneously states that the MDNS has been modified to reflect the Tribe's request; the MDNS has not been modified. At the public hearing, City Staff submitted an additional condition requiring the preparation of a Cultural Resource Assessment prior to issuance of permits (Exhibit 1A). Exhibit 1A, Additional Condition; Exhibit 17, Letter from Muckleshoot Indian Tribe; Exhibit 18, City's Response to Tribe; Exhibit 42; Memo from Ms. Murphy; Testimony of Mr. Dixon. Ordinance No. 5960 December 14, 2005 Page10of19 26. Access to the site would be via Hemlock Street SE. Applicant proposes construction of a public street on an undeveloped right-of-way that extends approximately 290 feet east of Hemlock Street SE, terminating in a cul-de-sac. Applicant intends to develop Tract A and Tract C as private streets for access to the development from the right-of-way extension from Hemlock Street SE. The proposed streets would be designated as a "Local Residential Street" under the City's Design and Construction Standards. Exhibit 1, Staff Report (Plat), page 6; Exhibit 28, Letter from DMP Inc.; Testimony of Mr. Dixon; Testimony of Mr. Welsh; Testimony of Ms. Breckenridge. 27. City Standards require that the roadway be 28-feet wide with parking allowed only on one side. The Applicant stated that the property's topography allows for only a roadway of 24-feet in width. Ms. Breckenridge testified that a 28-foot roadway would require removal of trees that are within the City's right-of-way but along Ms. Breckenridge's northern property line. Ms. Breckenridge further testified that she is concerned that the removal of the City's trees could adversely affect mature conifer trees on her property. Exhibit 1, Staff Report (Plat), page 6; Exhibit 28, Letter from DMP Inc.; Testimony of Mr. Dixon; Testimony of Mr. Welsh; Testimony of Ms. Breckenridge. 28. Pursuant to Comprehensive Plan Policy TR13 and the City's Design and Construction Standards, Section 10.02.5.2, a dead end street may not exceed 600 feet in length. Applicant proposes a private street of approximately 1000 feet, denoted as 26th Street SE. A deviation request is required for streets in excess of City standards. Applicant has submitted the deviation request and it has been reviewed by the City Public Works staff. Public Works determined that the deviation request is supportable but is deferring approval until after the preliminary plat has been approved in order to ensure consistency with the City Council's decision. No Public Works documents were submitted into the record. Mr. Welsh, City Transportation Engineer, testified that the City is recommending approval of the 1000 foot roadway so long as Applicant provides two opportunities for vehicle turn-around plus emergency access. A turn-around will be provided at the entrance to the development, at the western edge of Tract C, and will be dedicated to the City. Tract A will provide for the additional turn-around. A 'crash gate' for emergency access purposes will be located at the eastern end of the proposed private street, providing access through the adjacent mobile home park. Exhibit Ordinance No. 5960 December 14, 2005 Page 11 of 19 1, Staff Report (Plat), page 6; Exhibit 28, Letter from DMP Inc.; Testimony of Mr. Dixon; Testimony of Mr. Welsh; Testimony of Ms. Breckenridge. 29. The southern portion of the subject property, Tract B, is approximately 6.2 acres. This portion of the property is designated as Open Space under the City's Comprehensive Plan and Applicant proposes to dedicate it to the City of Auburn and have it encumbered by a Native Growth Conservation Easement (NGPE) to ensure its preservation. Exhibit 1, Staff Report (Rezone), page 5; Testimony of Mr. Dixon.. 30. Pursuant to ACC 17.12.260, the dedication of park land is generally not required for a development of fewer than 50 dwelling units. Applicant proposes construction of only 8 dwelling units. ACC 17.12.260; Exhibit 1, Staff Report (Plat), page 5; Testimony of Mr. Dixon. 31. Public comments were received on impacts to wildlife. Applicant's SEPA documents state only songbirds and rodents were observed and that there are no known threatened or endangered animal or plant species on or near the site. The City's evaluation of SEPA documents concurred, finding that urban wildlife will be impacted by the proposed development but that preservation of existing vegetation and re-vegetation could reduce the adverse impacts to local wildlife. The City would seek to protect any threatened or endangered species identified on the property as required by law. Condition No. 13(b) of the Final MDNS requires construction of a permanent fencing at the boundary of the steep slope setbacks to control human intrusion into the sensitive area, allowing for its preservation as wildlife habitat. The condition requires the fence to be a minimum of 3.5 feet that would probably not impair urban wildlife passage. Re-vegetation of the steep slope setbacks and limitation on human intrusion into the sensitive area will also serve to lesson erosion of the slope thereby reducing sediment discharge into the adjacent White River, a salmonid bearing river. Exhibit 10, Environmental Checklist, pages 8-9; Exhibit 11, Staff Evaluation of Checklist, pages 9-10; Exhibit 12, Final MDNS, pages 15-16; Exhibit 23; Testimony of Mr. Beatty; Testimony of Ms. Breckenridge. 32. Due to the size of the proposed development, the City did not require a Traffic Impact Analysis (TIA). Traffic impact fees will be required at the time of issuance each single-family residence building permit. ACC 19.04; Exhibit 1, Staff Report (Plat), page 6; Exhibit 11, Staff Evaluation of Checklist, page 13. Ordinance No. 5960 December 14, 2005 Page 12 of 19 CONCLUSIONS . Jurisdiction: Pursuant to Auburn City Code (ACC) 18.66, the Hearing Examiner is granted jurisdiction to hear and make recommendations to the City Council. Jurisdiction for the Hearings Examiner to make recommendations for an application for rezone is pursuant to ACC 14.03.040(D) and 18.68.030 and for an application for preliminary plat is pursuant to ACC 14.03.040(A) and 17.06.050. Criteria for Review: In order TO APPROVE A REZONE, the Hearings Examiner must find that the following criteria, as set forth in ACC 18.68, are satisfied: 1. The rezone shall be consistent with the Comprehensive Plan. 2. The rezone was initiated by a party, other than the City, in order for the Hearing Examiner to hold a public hearing and consider the request. 3. Any change or modification to the rezone request made by the Hearing Examiner or the City Council will not result in a more intense zone than the one requested. In addition to the requirements set forth in ACC 18.68, the Washington Supreme Court has stated that prior to approval of a rezone, the Applicant must demonstrate that: 1. The rezone is based on a change in neighborhood conditions. 2. The rezone bears a substantial relationship to the public health, safety, and general welfare. Conclusions Based on Findinqs: 1. Res Judicata does not bar the rezone application. Whether Res Judicata bars approval of the current rezone application depends essentially on whether there is an identity of subject matter between the first and second rezone applications. The Washington State Supreme Court has previously stated that a second application on a land use proposal may be considered, without violating the Res Judicata doctrine, if there is a substantial change in circumstances or conditions relevant to the application or a substantial change in the application itself. Hilltop, 126 Wn. 2d at 33. In 1997, the Auburn City Council denied the Applicant's request for rezone due to the fact that adequate environmental review, primarily geotechnical review, had not been conducted and a development proposal had not been presented. In Ordinance 5038, the City Council specifically stated that if the Applicant presented a development proposal Ordinance No. 5960 December 14, 2005 Page13of19 and corresponding geological reports, a rezone could be considered. In the current application, the Applicant requests rezone of not only the northern portion of the property but of the full parcel. The Applicant has submitted a development proposal, SEPA documents, and a geotechnical report. Although the request has similarities to the 1996 request, the application has been changed substantially and the necessary environmental documents have been submitted and are available for review. The current application is substantially different from the 1996 application and is thus not barred by the doctrine of Res Judicata. Findings of Fact Nos. 1, 2, 11, 12, and 13. 2. The rezone was initiated by the Applicant-Property Owner and not the City. Pursuant to ACC 18.68.030(B)(1), in order for the Hearing Examiner to hold a public hearing and consider a rezone request, the rezone must not be initiated by the City. The Applicant is the owner of the property subject to the rezone. Finding of Fact NO.9. 3. Conditions in the area have substantially changed and the rezone bears a substantial relationship to the public health, safety, morals, or general welfare. A. In considering a rezone, the Applicant has the burden of proof in demonstrating that conditions have substantially changed since the original zoning and that the rezone bears a substantial relationship to the public health, safety, morals, or general welfare. Parkridge v. Seattle, 89 Wn.2d 454 (1978). A variety of factors may be utilized to satisfy a change in circumstances including changes in public opinion, local land use patterns, and on the property itself. Bjarnson v. Kitsap County, 78 Wn. App. 840, 846 (Div. 1, 1995). Finding of Fact No. 20. B. The goals and regulatory provIsions of the GMA create a 'framework' that guide and give a broad range of discretion to local jurisdictions in the development of comprehensive plans and development regulations. RCW 36.70A.3201. Neither the GMA nor the comprehensive plans adopted pursuant to the GMA directly regulate site-specific land use activities, but it is the local development regulations, includinq zoning regulations, which direct the individual landowners. Viking Properties v. Holm, WA Supreme Court Docket 75240-1, decided Aug. 18, 2005; RCW Ordinance No. 5960 December 14, 2005 Page 14 of 19 36.70A.030(7); Cougar Mountain Assocs. v. King County, 111 Wn.2d 742, 757 (1988) (finding that a conflict between a zoning ordinance and a comprehensive plan will be resolved by applying the zoning ordinance). The City's argument that the Growth Management Hearing Board's (GMHB) four dwelling unit 'bright line' rule justifies the rezone has possibly been weakened by the Washington Supreme Court's recent decision in Viking Properties, supra. In the Viking Properties case, the Court stated that the GMHB has no authority to make such a rule because it amounted to 'public policy' and that the GMA creates only a general framework not 'bright line' rules. In finding that the GMA creates no bright line rules, the Court noted that the existence of a covenant that predated the enactment of the GMA allows for the local jurisdiction to exercise the broad discretion granted under the GMA. Id. In 1997, the City's Hearing Examiner recommended approval of the rezone due to the fact that the R3 zone implemented the Comprehensive Plan's Moderate Density Residential designation. Despite intervening amendments to the City's Comprehensive Plan, this designation has not changed. The fact that the existing zoning pre-dates the adoption of the City's Comprehensive Plan, a plan that has since been amended three times, and the fact that the proposal is consistent with the goals and policies of the existing Comprehensive Plan, gives credence to the 'change in circumstances' within the community warranting a rezone of the property. Except for its southern border, the subject property is completely surrounded by dense residential and light commercial development. Both. the Comprehensive Plan designation and the surrounding land uses justify the rezone of the northern portion of the property only. Findings of Fact No.7, 8, 10, 18, 19, and 20. C. The southern portion of the property, Tract B, does not carry the Moderate Density Residential designation but rather an Open Space designation under the Comprehensive Plan and is bordered by the White River and its associated buffer. Rezone of this portion of the property to R3 would be inconsistent with the Comprehensive Plan. The community's general welfare would not be served by the rezone of Tract B and public policy would not justify this rezone, as open space is currently being preserved and Ordinance No. 5960 December 14, 2005 Page 15 of 19 protected for future residents and the environment. Findings of Fact No.7, 17, and 29. 4. The Hearing Examiner is not recommending any change or modification to the rezone request that will result in a more intense zone than the one requested by the Applicant. 5. The rezone and Preliminary Plat are consistent with the Comprehensive Plan and other applicable goals and policies of the City Council. The Director of Planning determined that the proposal was consistent with the Comprehensive Plan. The goals and policies of the City Council are embraced in the City's Comprehensive Plan and ACC. A portion of the subject property is designated as Moderate Density Residential on the City's LUM. The balance of the property is designated as Open Space on the City's LUM. The recommended rezone of the property will allow for development that is consistent with the established land use pattern in the vicinity and with the Moderate Density Residential designation of the site. Findings of Fact Nos. 7, 8, 10, 18, 19, and 29. 6. The proposal contains adequate provisions for the public health, safety, and general welfare and for open spaces, drainage ways, streets, water supplies, sanitary wastes, parks, playgrounds, or schools. Applicant has submitted a development proposal that adequately addresses water, sanitary sewer, and stormwater drainage. Creation of Tract B and dedication to the City provides for open space and serves the community's general welfare by increasing the City's acreage of open space and protecting the steep slope area from erosion which could result in increased sedimentation of the White River. Although the Applicant has had no communication with the Auburn School District, due to the limited size of the development and the requirement to pay impact fees to the District, established fees should adequately address the minimal impact the District will incur. Roadways have been conditioned to provide safe travel lanes; sidewalks must be included to ensure safe passage for children walking to and from schools and/or school bus stops. Findings of Fact Nos. 14, 15, 17, 21, 22, 23, 25, 26, 27, and 29. Ordinance No. 5960 December 14, 2005 Page 16of19 7. Potential environmental impacts of the proposal have been mitigated such that the proposal will not have an unacceptable adverse effect upon the quality of the environment. All conditions set forth in the MDNS have been incorporated in this recommendation. Mitigation measures should adequately mitigate environmental impacts. Findings of Fact Nos. 14, 15, 16, 17, 23, 24, 25, 29,30,31, and 32. 8. Adequate provisions have been made so that the preliminary plat will prevent or abate public nuisances. Public nuisances are referred to throughout the ACC and are spoken to directly in ACC 8.12. A public nuisance is something that affects public health and property values by creating visual blight, harbors rodents and/or pests, or creates unsafe pedestrian and traffic situations. Compliance with City design standards, such as standards for road safety (width, sidewalks, visibility) will ensure safe pedestrian and traffic access within the development. As recommended, the development of a Homeowners' Association and the associated Covenants, Conditions, and Restrictions will ensure that visual blights and dangers to public health are reduced/eliminated, thereby promoting both general public welfare and protecting property values. Findings of Fact Nos. 19, 26, 27, and 28. RECOMMENDA liON The Hearing Examiner recommends to the Auburn City Council DENIAL of a rezone from Rural Residential to Duplex Residential of the southern portion of the subiect property. approximately 6.2 acres. The Hearing Examiner recommends to the Auburn City Council APPROVAL of a rezone from Rural Residential and Residential Mobile Home Park to Two-Family (Duplex) Residential of only the northern portion of the subiect property. approximately 6.8 acres. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Ordinance No. 5960 December 14, 2005 Page 17 of 19 Section 1. Approval. The Findings of Fact, Conclusions of Law and Recommendation, the Response to Request for Reconsideration and the Response of City of Auburn's Comments to the Request for Reconsideration of the Hearing Examiner are adopted herein by this reference, and the rezone request is hereby approved to rezone approximately 6.8 acres from Rural Residential and Residential Mobile Home Park to Duplex Residential of only the northern portion of the subject property, as legally described in Exhibit A attached hereto. Section 2. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Section 3. Recordina. Upon the passage, approval and publication of this Ordinance as provided by law,. the City Clerk of the City of Auburn shall cause this Ordinance to be recorded in the office of the King County Auditor. Section 4. Implementation. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation. Ordinance No. 5960 December 14, 2005 Page18of19 ,. Section 5. Effective date. This Ordinance shall take effect and be in force five days from and after its passage, approval and publication as provided by law. Published I d... - ~~3 CF:;.~ Ordinance No. 5960 December 14, 2005 Page 19 of 19 INTRODUCED: DEC 1 9 Z005 DEC 1 9 Z005 PASSED: ~::; PETER B. LEWIS MAYOR <I LEGAL DESCRIPTION REZ04-0006 All of Government Lot 1, Section 28, Township 21 North, Range 5 East, WM in King County Washington; EXCEPT the north 199.9 feet of the west 192.75 feet thereof.