HomeMy WebLinkAbout12-19-2005 ITEM VI-BR#
A CITY OF
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AGENDA BILL APPROVAL FORM
f
WASHINGTON
Agenda Subject
Date: December 14, 2005
Application No. PLT04-0008
Department: Planning
Attachments: Resolution No. 3932
Budget Impact:
Administrative Recommendation:
City Council to adopt Resolution No. 3932
Background Summary:
Resolution No. 3932 approves Application No. PLT04-0008 consisting of a preliminary plat known as
"Adams Vista". The preliminary plat request consists of the subdivision of 13.14 acres into eight (8) lots
and three (3) tracts to be developed in a single phase. The request is proposed to be a gated subdivision
pursuant to ACC 18.48.140. The site is located east of the south terminus of Hemlock Street SE. The
and adjacent to the White River. The approval was directed by the City Council following the December
13, 2005 closed record hearing with the nine (9) conditions recommended by the Hearing Examiner and
the following three (3) conditions added by the City Council:
10. Prior to Final Plat approval, the applicant shall provide the City with a performance bond for a period
of five (5) years to provide for the integrity of the cul-de-sac in the amount of 150% of the engineer's
estimate for construction of the cul-de-sac as approved by the City Engineer.
11. Tract A shall have at least 28 feet width of paved road surface.
12. Condition No. 17 of the Final Mitigated Determination of Non -Significance (MDNS) (Application No.
SEP04-0033) shall be listed on the face of the plat, and shall include language granting to the City the
rights to enforce this condition which shall run with the land as to each lot and parcel of the plat.
L1219-4
03.5; PLT04-0008
eviewe
y ouncil & Committees:
Reviewed
1, Departments
& Divisions:
Arts Commission COUNCIL COMMITTEES:
ZBuildingM&O
Airport Finance
Cemetery
Mayor
Hearing Examiner Municipal Serv.
Finance
Parks
Human Services Planning & CD
Fire
Planning
Park Board Public Works
Legal
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Resources
Planning Comm. Other
Public Works
Human
Action:
Committee Approval: BYeseNo
Call for Public Hearing
Council Approval: Yes No _1
Referred to Until !
Tabled Until _Ti
Councilmember: Norman Staff: Krauss
Meeting Date: December 19, 2005 1 Item Number: VI.B
AUBURN* MORE THAN YOU IMAGINER
RESOLUTION NO. 3 9 3 2
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, APPROVING A
PRELIMINARY PLAT APPLICATION TO SUBDIVIDE
13.14 ACRES INTO EIGHT LOTS AND THREE
TRACTS FOR FUTURE RESIDENTIAL
DEVELOPMENT, WITHIN THE CITY OF AUBURN,
WASHINGTON
WHEREAS, Application No. PLT04-0008, dated September 24, 2004,
has been submitted to the City of Auburn, Washington, by Monte Adams,
requesting approval of a preliminary plat application to subdivide 13.14 acres into
eight (8) lots for future residential development, open space, and street and utility
tracts within the City of Auburn, Washington; and
WHEREAS, said request above referred to was referred to 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 preliminary plat on September 14, 2005; and
WHEREAS, a Request for Reconsideration was timely filed on September
28, 2005, by Jane Ryan Kohler on behalf of Frary Breckenridge. Subsequently,
on October 11, 2005 the Hearing Examiner in response to the Request for
Reconsideration added Condition Number 9 to 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
Resolution 3932
December 14, 2005
Page 1 of 5
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, the City Council, on December 13, 2005, conducted a closed
record hearing, considered said request and affirmed the Hearing Examiner's
recommendation for preliminary plat based upon the Findings of Fact,
Conclusions and Recommendation which is attached hereto as Exhibit "A", the
Response to Request for Reconsideration which is attached hereto as Exhibit
"B", and the Response to City of Auburn's Comments to the Request for
Reconsideration which is attached hereto as Exhibit "C" and incorporated
herewith.
Section 1. The Hearing Examiner's Findings, Conclusions and
Recommendation attached hereto as Exhibit "A" and the Hearing Examiner's
Response to Request for Reconsideration as Exhibit "B" and Exhibit "C" are
herewith approved and incorporated in this Resolution.
Section 2. The request for preliminary plat approval to subdivide 13.14
acres into eight (8) lots for future residential development, open space and street
and utility tracts within the City of Auburn, legally described in Exhibit "D"
attached hereto and incorporated herein by this reference, is hereby approved
subject to the following conditions:
1. Approval of the proposed Preliminary Plat is conditioned upon the
approval of the requested rezone (Rezone Application No REZ04-0006),
changing the zoning designation for Rural Residential (RR) and
Residential Mobile Home Park (RMHP) to Two -Family (Duplex)
Residential (R3).
Resolution 3932
December 14, 2005
Page 2 of 5
2. In order to ensure the accurate placement of homes/structures in
relationship to the setbacks required from property lines, easements, or
other similar features associated with a lot, the City's Building Official may
require that all applicable corners of the structure be surveyed and staked
prior to the pouring of footings or foundations.
3. The structures located on Lots 2 through 8 must be served by a grinder
pump unit to provide sanitary sewer service as approved by the City's
Sanitary Sewer Engineer. This requirement shall be noted on the Final
Plat.
4. The City should accept dedication of Tract B, the sloped hillside, as a
sensitive open space. The tract should be publicly dedicated and
protected by a Native Growth Conservation Easement (NGCE) to ensure
its protection. If accepted, Applicant must provide the City with an access
easement across Lot 8 or the boundary between Tract B and Lot 8 must
be adjusted to provide Tract B frontage onto the new public street,
proposed as 26th Street SE, to provide public access. If the City does not
accept dedication of Tract B, the property will still be encumbered by a
Native Growth Conservation Easement.
5. The Preliminary Plat shall be revised to meet the City's Design and
Construction Standards - Section 10.01.3.1 and Section 10.01.3.4. These
two sections require that the project's public and private street segments
shall be designed to the local street standard that most closely reflects
their intended use. As determined by the City Engineer, the applicable
standard would be the "Local Residential Street" standard which requires
a 28 -foot wide roadway. The "Local Residential Street" standard would
ensure that one side of the street does not permit parking and is
designated as a fire lane. The internal road system, both public and
private, shall have a sidewalk on at least one side of the street to provide
safe walking passage for school children.
6. Prior to the issuance of grading, land clearing, or any permits for ground
disturbing activities, the Applicant shall retain a professional archaeologist
to prepare a Cultural Resource Assessment Report and provide a copy to
the City and to the Muckleshoot Indian Tribe. The project shall implement
the recommendations of the Cultural Resource Assessment Report as
determined by the Planning Director.
7. All mitigating conditions set forth in the Final Mitigated Determination of
Non -Significance, issued on July 20, 2005. for the rezone of the property
and the proposed plat are incorporated into this recommendation and shall
be adhered to.
Resolution 3932
December 14, 2005
Page 3 of 5
8. A Homeowners Association should be created. Proposed Conditions,
Covenants, and Restrictions (CC&Rs) for the Homeowners' Association
shall be submitted for review and approval by City Staff prior to final plat
approval.
9. Trees to be retained on the subject property and/or public right-of-way
must be protected during construction by fencing located at the edge of
the critical root zone. Trees on neighboring properties, whose critical root
zones extend into the subject property and/or public right-of-way, and may
be adversely impacted during construction, must be protected by fencing
located at the edge of the critical root zone impacted. Construction
activities within the critical area zone of any tree, either on-site or off-site,
must be limited in order to preclude or reduce root damage. Protective
fencing must be placed as directed by a certified arborist.
The City Council added the following three Conditions
10. Prior to Final Plat approval, the applicant shall provide the City with a
performance bond for a period of five (5) years to provide for the integrity
of the cul-de-sac in the amount of 150% of the engineer's estimate for
construction of the cul-de-sac as approved by the City Engineer.
11. Tract A shall have at least 28 feet width of paved road surface.
12. Condition No. 17 of the Final Mitigated Determination of Non -Significance
(MDNS) (Application No. SEP04-0033) shall be listed on the face of the
plat, and shall include language granting to the City the rights to enforce
this condition which shall run with the land as to each lot and parcel of the
plat.
Section 3. The Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Section 4. This Resolution shall take effect and be in full force upon
passage and signatures hereon.
Dated and Signed this day of 2005.
CITY OF AUBURN
Resolution 3932
December 14, 2005
Page 4 of 5
PETER B. LEWIS,
MAYOR
ATTEST:
Danielle E. Daskam,
City Clerk
City Attorney
Resolution 3932
December 14, 2005
Page 5 of 5
EXHIBIT 'A'
BEFORE THE HEARING EXAMINER
FOR THE CITY OF AUBURN
In the Matter of the Application of )
MONTE ADAMS )
)
Fqr a Rezone and Preliminary Platt )
For "Adams Vista" )
NO. REZ04-0006
PLT04-0008
FINDINGS, CONCLUSIONS,
AND RECOMMENDATION
SUMMARY OF RECOMMENDATION
The Hearing Examiner recommends to the Auburn City Council APPROVAL OF A REZONE
from Rural Residential and Residential Mobile Home Park to Duplex Residential of only the
northern portion of the subject prroNm approximately 6 8 acres, and APPROVAL OF THE
PRELIMINARY PLAT for "Adams Vista," a single-family residential subdivision, subject to
conditions. The Hearing Examiner recommends DENIAL OF A REZONE from Rural
Residential to Duplex Residential of the southern portion of the subjectrp operty, approximately
6.2 acres.
SUMMARY OF RECORD
Re nest
Monte Adams (Applicant), through his representative Hans Korve of DMP Inc., requests
approval of a rezone and preliminary plat for "Adams Vista," a single-family residential
subdivision. The Applicant requests a rezone of one tax parcel from Rural Residential and
Residential Mobile Home Park to Two -Family (Duplex) Residential. Applicant requests
approval of a preliminary plat which would allow for eight lots. The subject property totals
approximately 13.14 acres. The property is located within the city limits of Auburn, south of
Auburn Way. South and west of Hemlock Street. The property borders on the White River and
its associated buffers.
Hearing Date
An open record hearing on the request was held before the Hearings Examiner for the City of
Auburn on August 16, 2005.'
' At the public hearing, September 6, 2005, was set as the date the Hearing Examiner's
Recommendation was to be submitted to all interested parties. On September 5, 2005, the
Hearing Examiner, consistent with ACC 18.16.140, requested an extension for submission of his
Recommendation until September 14, 2005. The request was granted. Exhibit 45,
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams - Rezone/Preliminary Plat
Page I of Is
Testimony
At the open record hearing the following individuals presented testimony under oath:
1. Mr. Jeff Dixon, Planner, City of Auburn
2. Mr. Joseph Welsh, Transportation Engineer, City of Auburn
3. Mr. Steve King, Assistant City Attorney, City of Auburn
4. Mr. Hans Korve, DMP Inc., Applicants' representative
5. Mr. Walt Wojeck, Development Review, City of Auburn
6. Mr. Robert Beatty, President, Winchester Heights Condominium Association
7. Ms. Jane Ryan Koler, Attorney, representing Ms. Frary Breckenridge
8. Ms. Frary Breckenridge, neighboring property owner
Exhibits
At the open record hearing the following exhibits were admitted as part of the official record:
1. Staff Report - REZ04-0006 and PLT04-0008
IA. Condition #6 for Preliminary Plat
2. Site Map
3. Preliminary Plat Application (PLT04-0008)
3A. Rezone Application PP (REZ04-0006) including site map and narrative
4. Notice of Application for. both rezone and preliminary plat, dated June 21, 2005
5. Notice of Public Hearing for both rezone and preliminary plat
6. Certificate of Posting of Legal Notice for both rezone and preliminary plat, dated August
3, 2005
7. Certificate of Publication and Mailing for both rezone and preliminary plat, dated August
3,2005
8. E-mail dated July 29, 2005, from King County Journal confirming publication on August
3, 2005, of REZ04-0006 and PLT04-0008
9: 2001 Ariel Photograph of Site
10. State Environmental Policy Act (SEPA) Checklist, dated March 15, 2005
11. Final Staff Evaluation for SEPA Checklist (SEP04-0033), dated May 6, 2005
12. Final Mitigated Determination of Non -Significance (SEP04-0033), issued July 20, 2005
13. Letter from Robert Beatty, President of Winchester Heights Condominium Associated,
dated July 1, 2005
14. Letter from City of Auburn to Winchester Heights Condominium Association in response
to their July 1, 2005 letter, dated July 20, 2005
15. Public Comment Letter from Patricia J. Smith, dated July 6, 2005, and City of Auburn's
response, undated
16. Letter from City of Auburn to Patricia J. Smith in response to her July 6, 2005 letter,
dated July 20, 2005
17. Letter from Steve Taylor, Planning Director for the Muckleshoot Indian Tribe, dated July
6, 2005
18. Letter from City of Auburn to Muckleshoot Tribe in response to their July 6, 2005 letter.
dated July 20, 2005
19. Public Comment Letter from Donna Fleming, dated July 7, 2005
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams-Rezone'Preliminary Plat Page 2 of 18
20. Letter from City of Auburn to Donna Fleming in response to her July 7. 2005 letter, dated
July 20, 2005
21. Letter from Brian J. Harris and Patrick M. Hanis of Hanis Greaney PLLC, Attorneys at
Law, representing Ms. Frary Breckenridge, dated July 8, 2005
22. Letter from City of Auburn to Brian J. Hanis and Patrick M. Hams of Hanis Greanev
PLLC in response to their July 8, 2005 letter, dated July 20, 2005
23. Letter from Hans Korve, DMP Inc., dated July 14, 2005
24. Preliminary Geotechnical Report and Critical Area Study, dated June 8, 2004
25. Letter from Golder Associates Inc. to DMP Inc., dated August 6, 2005
26. Letter from Golder Associates Inc. to DMP Inc., dated December 10, 2004
27. Letter from Golder Associates Inc. to DMP Inc., dated March 21, 2005
28. Letter from Hans Korve, DMP Inc., dated April 11, 2005
29. Preliminary Plat Drawings - Site Information
30. Topographical Map (existing conditions)
31. Preliminary Plat Drawings - Site Plan
32. Preliminary Plat Drawings - Composite Utility Plan
33. 1996 Rezone Application, REZ0003-96, dated May 3, 1996
34. Final Determination of Non -Significance (SEP -0017-96R) for 1996 Rezone Application
(REZ0003-96)
35. Letter from Robert Beatty, President of Winchester Heights Homeowners' Association.
dated May 27, 1997
36. Findings and Decision of the Hearing Examiner for the City of Auburn on REZ0003-96,
dated August 28, 1997
37. Letter from the City of Auburn to Winchester Heights Homeowners' Association with
attached August 28, 1997 Hearing Examiner's decision, dated August 28. 1997
38. Request for Reconsideration, with attachments, of Hearing Examiner's August 28, 1997
decision, from Winchester Heights Homeowners Association, submitted Mr. Henry F.
Lippek, Attorney from The Public Advocate, dated September 4, 1997
39. Order Denying Request for Reconsideration, dated September 17, 1997
40. City of Auburn Ordinance 5038, City Council's denial of rezone
41. Letter from Ms. Jane Ryan Koler, Attorney representing Ms. Frary Breckenridge, dated
August 16, 2005
41A. Letter from AML Geotechnical Services Inc., dated August 14, 2005
41B. Letter from Ms. Jane Ryan Koler, Attorney representing Ms. Frary Breckenridge; dated
August 10, 2005
41C. Letter from City of Auburn to Ms. Jane Ryan Koler in response to her letter of August
10, 2005, dated August 12, 2005
42. Memorandum from Ms. Laura Murphy, Archaeologist, Muckleshoot Indian Tribe, dated
August 15, 2005
43. Public Comment Letter from Ms. Darlene G. Kern, dated August 16, 2005
44. Oral Testimony Exhibits I - 6 for Ms. Frary Breckenridge
45. Letter from DMP Inc., dated September 5, 2005, stating no objection to extension for
Hearing Examiner's recommendation.
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page 3 of 18
Upon consideration of the testimony and exhibits submitted at the open record hearing, the
Hearings Examiner enters the following Findings and Conclusions:
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
1, Staff Report (Rezone) page 1 and 3; Exhibit 3A, Rezone Application Narralive,
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 Q. Applicant seeks to dedicate Tract B. approximately
z 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 ('aunty
Tar 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 oj'Afr. 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 atfected
site and published in the King County Journal on August 3, 2005. Exhibits 5, 6. 7, and &
7. All but 0.5 acres of the parcel is currently zoned Rural Residential (RR). In the extreme
northeastern comer 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
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page 4 of 18
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 1987.2 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.3 Residential development is
comprised of condominiums to the north, a mobile home park and tribal 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 Tar 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
,k 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 residents by reserving and protecting the resource. ACC 1808.010: ACC
2 Auburn adopted its current zoning code in 1987.
' Zoning applicable to surrounding properties includes R3 - Duplex Residential, R4 - Multi,Family Residential. C I
Light Commercial, RMHP - Residential Mobile Home Park, PI - Public, and RR - Rural Residential. Exhibit 1.
Staff Report (Rezone), page 2.
Offices of the Federal Aviation Administration are located to the west. Condominiums, single family residences,
and light commercial are located to the north.
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Prelimmary Plat
Page 5 of 18
18.20.010; ACC 18.16.010; Chapter 14, Land Use Element ofAuburn'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 tailed 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). "fhe
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.5 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 Judicata.b 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
'e Pursuant to ACC 18.66, the City's Hearing Examiner has not been granted the authority to make final decisions on
band use actions but only the authority to make recommendations to the City Council.
The doctrine of Res Judicata ("the thing has already been decided) seeks to prevent repetitious litigation and to
provide binding answers. The doctrine bars reasserting the same claim in a subsequent land use application. Hilltop
Terrace Homeowner's Assn v. Island County, 126 Wn2d 22, 31, 891 P.2d 29 (1995). In Hilhop, the Washington
Supreme Court formulated a four-part test to determine when a claim has been previously decided for purposes of
Res Judicata: "Res Judicata occurs when a prior judgment has a concurrence of identity in four respects with a
subsequent action. There must be identity of (1) subject matter; (2) cause of action, (3) persons and parties; mid (4)
the quality of the persons for or against whom the claim is made" Hilltop, 126 Wn 2d at 32 (quoting Rains r .Stat-,
100 Wn.2d 660, 663, 674 P.2d 165 (1983)).
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page 6 of 18
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 ApplicanCs 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 Mr.
Breckenridge's counsel, Jane Ryan Koler: Testimony of Ms. Koler; 7estimony of Mr.
King; Testimony of Mr. Dixon; Testimony of Mr. Korve.
14. Pursuant to the State Environmental Policy Act (SEPA), RCW 43.21 C. the City of
Auburn acted as lead agency for the review of environmental impacts caused by the
proposed rezone and preliminary.tIllat. 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 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 roposal
(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. (folder
Associates recommended mitigation measures to address the long-term effects of
'The Checklist was originally prepared in September 2004 and revised in December 2004. A second revision was
completed March 15, 2005. Exhibit 10 is the 2nd Revised Environmental Checklist of March 15. 2005-
8 Golder Associates state that these landslides appear to have been triggered by erosion of the toe of the steep slope
and are not deep-seated landslides. Exhibit 24, pages 7 and 12.
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Prelim inary Plat
Page 7 of 18
continued landslide activity. Such measures included a minimum 30 -foot or 50 -foot
building/structure setback from the crest of the steep slope9 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 Studt-,
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. KM
Geotechnical Review; Testimony of Mr. Dixon; Testimony gf'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.10 A portion of the site is
within the FEMA 100 -year flood elevation associated with the White River. The lowest
elevation of the proposed residential development is 240 feet, 80 feet over FFMA's
i 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 Checklis7.
page 3; Exhibit 7, Staff Evaluation of Checklist, page 7; Testimony ofMr. 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, 12 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 Il). 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
9 Golder Associates recommends a minimum 30 foot set back from the crest of the slope in the western 3/4"' of the
site and a 50 foot setback, from the crest of the slope along the eastern 114"'. Exhibit 24, page 13.
" RCW 90.58, Washington's Shoreline Management Act, requires a Shoreline Substantial Development Penn it for
any non-exempt development occurring within the shorelines of the state. Shorelines are defined in RCW
90.58.030 as lands extending landward for two hundred feet in all directions as measured on a horizontal plane from
the ordinary high water mark.
" The City ofAuburn's Comprehensive Plan was originally adopted in August 1986. It has been amended in 1995.
2003, and 2004.
'Z Rezone - ACC 18.68; Plat - ACC 17.06
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page 8 of 18
(vegetation and wildlife); LU -20 (flexible development standards); LU -22 (shoreline
development); UD -I (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 ofSEPA.
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. AC'C 18.68.030, Exhibit L SJafJ
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 zone 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.
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. 14 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
impact/mitigation fees, approximately $4,500 per building permit, on behalf of the school
district. Adams Vista proposes an internal private roadway and sidewalks to Hemlock
n The Board's `Bright Line Rule" (4 dwelling units per acre) was first articulated in 1995 (See Bremerton v. Kitsap
County, CPS(;MHB No. 95-3-0039C, FDO, October 6, 1995) to provide cities and counties with a definition of the
term `urban density' which the GMA mandated they provide for. The Board recently upheld their rule in two cases
stating that the rule promotes certainty and predictability for cities and counties planning under the GMA. (See
1000 Friends V11 v. City oflssaquah, CPSGMHB No. 05-3-0006, FDO, July 20,2005; 1000 Friends V111(Kaleas)
v. Normandy Park, CPSGMHB No. 05-3-0007C, FDO, July 29, 2005).
" Washington State Constitution, Art. 9, §I
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams-Rezone/Preliminary Plat
Page 9 of 18
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 I. 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 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 64, Exhibit 12, FDNS; Exhibit 25; Exhibit 27: Exhibit
28; Exhibit 31, Composite Utility Plan; Testimony of Mr. Dixon.
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 -sitz. 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
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page 10 of 18
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 LA). Exhibit ]A, 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.
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 A1r. Dixon,-
Testimony
ixon;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. 15 The Applicant stated that the property's topography allows for onlv a
roadway of 24 -feet in width. Ms. Breckenridge testified that a 28 -foot roadway would
require removal of mature conifer trees along Ms. Breckenridge's northern property line.
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 26`" 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. 16 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 tum -around will be provided at the
entrance to the development, at the western edge of Tract C, and will be dedicated to the
City. 17 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 1, Staff Report (Plat),
page 6; Exhibit 28, Letter from DMP Inc.; Testimony of Mr. Dixon,, Testimony of Mr.
Welsh; Teslimony.ofMs. Breckenridge.
15 City standards require two traffic lanes 14 feet in width with one side available for parking and marked as a fire
lane. Section 10.01.3.1 and Section 10.01.3.4.
16 It is noted that the process of deviation used in this matter may not be consistent with RC W J6.7013-
17 The area to be dedicated to the City is denoted on the Site Plans as a hatched area on the western edge of Tian C.
Exhibit 29, page I.
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page I I of 18
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.18 Exhibit 10, Environmental Checklist, pages 8 -9. -
Exhibit 11, StafjEvaluation of Checklist, pages 9-10: Exhibit 12, Final MDN,S, 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.
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
"The White River and its tributaries serve as spawning, rearing and transportation areas for Chinook, pink, chum,
and coho salmon, as well as winter steelhead and cutthroat trout. The native spring run Chinook salmon is listed
under the Endangered Species Act as threatened. Sediment discharge into the river and its tributaries is seen as an
impairment to water quality and salmon habitat. Washington Conservation Commission, "Salmon Habitat Limiting
Factors - WRIA 10" (July 1999).
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page 12 of 18
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.
In order TO APPROVE A PRELIMINARY PLAT, pursuant to ACC 17.06.070, the Applicants
must have provided support for the following:
I. Adequate provisions are made for the public health, safety and general welfare and for
open spaces, drainage ways, streets, alleys, other public ways, water supplies, sanitary
wastes, parks, and sites for schools and school grounds.
2. Conformance to the general purposes of the City of Auburn's Comprehensive Plan, to the
general purpose of Title 17.02, and to the general purposes of any other applicable
policies or plan that have been adopted by the City Council.
3. Conformance to.the City of Auburn's zoning ordinance and any other applicable planning
or engineering standard and specifications.
4. 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.
5. Adequate provisions have been made so that the preliminary plat will prevent or abate
public nuisances.
Conclusions Based on Findings:
1. Res Judicata does not bar the rezone application. Whether Res Judicala 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
19 Parkridge V. Seattle, 89 Wn.2d 454; 573 P.2d 359 (1978)
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page 13 of 18
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 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 bared by the doctrine of Res Judicata. Findings nJ 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
heating 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 olfact 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
pattens, 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 guides 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, includine
zoning regulations, which direct the individual landowners. Viking Properties v.
Holm, WA Supreme Court Docket 75240-1, decided Aug. 18, 2005; RC'W
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 weaken by the Washington Supreme Court's
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page 14 of 18
recent decision in Viking Properties, supra. In the Viking Properties case20, 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 Pian, 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.
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 butter.
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 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
rezonerequest 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
20 The Viking Properties case dealt with a covenant that dated back to the late 1930s and limited density to
dwelling unit per half -acre lot.
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams-Rezone/Preliminary Plat
Page 15 of 18
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 Qf
Fact Nos. 14, 15, 17, 21, 22, 23, 25, 26, 27, and 29.
7. The Preliminary Plat is in conformance with the City of Auburn's zoning ordinance
and any other applicable planning or engineering standard and specifications.
As conditioned, the Applicants' proposal is in compliance with all related City codes and
r standards. Findings of Fact Nos. 18 and 19.
8. 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.
9. 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 Nor. 19, 26, 2'. and 28.
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Page 16 of 18
RECOMMENDATION
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 subject property.
approximately 62 acres The Hearing Examiner recommends to the Auburn City Council
APPROVAL of a rezone from Rural Residential and Residential Mobile Home Park to T'wo-
Family (Duplex) Residential of only the northern portion of the subject property, approximately
6.8 acres, and APPROVAL of the Preliminary Plat for "Adams Vista." a sing le- IauniIy
residential subdivision, subject to the following conditions:
1. Approval of the proposed Preliminary Plat is conditioned upon the approval of the
requested rezone (Rezone Application No. REZ04-0006), changing the zoning
designation from Rural Residential (RR) and Residential Mobile Home Park
(RMHP) to Two -Family (Duplex) Residential (R3).
2. In order to ensure the accurate placement of homes/structures in relationship to
the setbacks required from property lines, easements, or other similar features
associated with a lot, the City's Building Official may require that all applicable
comers of the structure be surveyed and staked priorlo the pouring of footings or
foundations.
3. The structures located on Lots 2 through 8 must be served by a grinder pump unit
to provide sanitary sewer service as approved by the City's Sanitary Sewer
Engineer. This requirement shall be noted on the Final Plat.
4. The City should accept dedication of Tract B, the sloped hillside, as a sensitive
open space. The tract should be publicly dedicated and protected by a Native
Growth Conservation Easement (NGCE) to ensure its protection. If accepted.
Applicant must provide the City with an access easement across Lot 8 or the
boundary between Tract B and Lot 8 must be adjusted to provide Tract B frontage
onto the new public street, proposed as 26`h Street SE, to provide public access. If
the City does not accept dedication of Tract B, the property will still be
encumbered by a Native Growth Conservation Easement.
5. The Preliminary Plat shall be revised to meet the City's Design and Construction
Standards - Section 10.01,3.1 and Section 10.01.3.4. These two sections require
that the project's public and private street segments shall be designed to the local
street standard that most closely reflects their intended use. As determined by the
City Engineer, the applicable standard would be the "Local Residential Street"
standard .which requiresa 28 -foot wide roadway. The "Local Residential Street"
standard would ensure that one side of the street does not permit parking and is
designated as a fire lane. The internal road system, both public and private, shal I
have a sidewalk on at least one side of the street to provide safe walking passage
for school children.
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Pal -c 17 of 18
6. Prior to the issuance of grading, land clearing, or any permits for ground
disturbing activities, the Applicant shall retain a professional archaeologist to
prepare a Cultural Resource Assessment Report and provide a copy to the City
and to the Muckleshoot Indian Tribe. The project shall implement the
recommendations of the Cultural Resource Assessment Report as determined by
the Planning Director.
7. All mitigating conditions set forth in the Final Mitigated Determination of Non -
Significance, issued on July 20, 2005. for the rezone of the property and the
proposed plat are incorporated into this recommendation and shall be adhered to.
8. A Homeowners Association should be created. Proposed Conditions, Covenants,
and Restrictions (CC&Rs) for the Homeowners' Association shall be submitted
for review and approval by City Staff prior to final plat approval.
Decided this _ day of September, 2005.
Findings, Conclusions, and Recommendation
Hearings Examiner for the City of Auburn
Monte Adams -Rezone/Preliminary Plat
Driscoll '
gs Examiner for the City of Auburn
Page 18 of 18
EXHIBIT 'B'
BEFORE THE HEARING EXAMINER
OF THE CITY OF AUBURN
In the Matter of the Application of ) NO. REZ04-0006
PLT04-0008
Monte Adams )
Adams Vista Plat
For Preliminary Plat ) RESPONSE TO
REQUEST FOR RECONSIDERATION
BACKGROUND
Monte Adams, represented by Hans Korve of DMP Inc. (Applicant), requested approval
of a rezone of one parcel of land, approximately 13.14 acres, from Rural Residential and
Residential Mobile Home Park designation to Residential Duplex (R3). As a part of the
request, the Applicant sought approval of a preliminary plat subject to the new zoning
standards. The plat would divide the parcel into 8 lots for future single-family residential
development, an open space tract[, and two privately owned and maintained tracts for
access and utilities. The subject property is located within the city limits of Auburn,
south of Auburn Way South and east of Hemlock Street.
An open record hearing was held before the Hearing Examiner of the City of Auburn on
August 16, 2005. Eight individuals testified at that hearing and 50 exhibits were
admitted. Following a review of the testimony and exhibits, and based on the criteria
established by the City Council, on September 14, 2005 the Hearing Examiner issued a
recommendation for approval of a rezone for only the northern 6.8 acres of the property
and approval of the preliminary plat. Denial was recommended for the rezone for the
southern 6.2 acres. The Hearing Examiner's recommendation had eight conditions.
The City of Auburn issued the Hearing Examiner's recommendation to the public on
September 21, 2005. On September 28, 2005, Ms. Frary Breckenridge, through her
attorney Ms. Jane R. Koler, filed a Request for Reconsideration of the Hearing
Examiner's recommendation. The Applicant submitted a response to Ms. Breckenridge's
request on October 11, 2005.
REQUEST
Ms. Breckenridge testified at the open record hearing and submitted several documents
that were admitted into the record. (Exhibits 21, 41. 41A. 4113. 41C, and 44). Her
Request for Reconsideration references the geotechnical report commissioned by her
(Attachment S, previously entered into the record as Exhibit 41A) and issues raised at the
prior hearing. The request further seeks to admit new evidence — Report of Robin W.
Williams, consulting arborist, dated August 30, 2005, including Attachments L. 2, and 3,
and Statements of Mark J. Jacobs, PE, PTOE of Jakes Traffic Engineering Inc.. including
Applicant has proposed that the open space tract be dedicated to the City of Auburn.
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008
Attachment 6. (Request for Reconsideration, page 2). The request alleges that the
Hearing Examiner's decision needs to be "slightly altered" because the decision: (1)
does not adequately protect trees located on Ms. Breckenridge's property. (2) does not
recognize that alternatives exists which would provide a safer right-of-way access to the
proposed plat; and (3) does not protect the stability of the southern facing banks of the
White River. The request closes with a plea that the Hearing Examiners decision be
"changed" in order to mitigate the stated adverse effects and "promote the safety and
convenience of the public."
RESPONSE TO REQUEST
Pursuant to Auburn City Code (ACC) 18.66.150, a Request for Reconsideration must be
received "within seven days after the written decision of the examiner has been
rendered." 2 Although the Hearing Examiner rendered his recommendation on both of
the applications on September 14, 2005, corrections were required due to a scribner's
error and the corrected recommendation was submitted to the City a few days later. The
City issued the Hearing Examiner's recommendation to the public on September 21,
2005. Ms. Breckenridge's request was received by the City of Auburn Planning
Department on September 28, 2005. Therefore, the Hearing Examiner finds that Ms.
Breckenridge's request was timely filed.
The request filed by Ms. Breckenridge seeks to submit new evidence for the Hearing
Examiner's consideration, namely the arborist's report (Attachment 1) and the opinion of
a traffic engineer (Request for Reconsideration. Page 2). Pursuant to ACC 18.66.150.
new evidence may only be considered if the evidence "could not [have been] reasonably
available at the prior [public] hearing." The evidence that Ms. Breckenridge seeks to rely
on is of a type that could have been reasonably available at the time of August 16'x'
hearing or is evidence that the Hearing Examiner has already considered when making
2 The Hearing Examiner is guided by ACC 18.66.150 when reviewing a request for reconsideration. That
section states that:
The planning director or any interested party affected by the recommendation of the
examiner who asserts that the hearing examiner based that recommendation on an
erroneous procedure, errors of law or fact, error in judgment, or the discovery of new
evidence which could not be reasonably available at the prior hearing, may make a
written request for review by the examiner within seven calendar days after the written
decision of the examiner has been rendered. The request for reconsideration shall set
forth the specific errors relied upon by such appellant, and the examiner may, after
review of the record, take further action as the examiner deems proper. The examiner
may request further information which shall be provided within 10 calendar days of the
examiner's request. The examiner's written decision on the request for consideration
shall be transmitted to all parties of record within 10 calendar days of receipt of the
request for reconsideration or receipt of the additional information requested, whichever
is later.
3 The traffic engineer, Mr. Jacobs, seeks to justify his conclusions on an analysis of AML Geotechnical
Services Inc.'s report, a document that was submitted into the record at the prior hearing as Exhibit 41 A.
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008
his recommendation. Submission of all new evidence is therefore not proper and is
denied.
The Hearing Examiner does, however, recognize that Ms. Breckenridge's concerns are
primarily based on potential impacts to trees on her property, due either to construction of
the right-of-way or removal of trees on Mr. Adams property, and slope stability. These
concerns were raised at the prior hearing (see Findings of Fact Nos. 8, 11. 12. 13. 15, 16.
and 24) and were evaluated in the State Environmental Policy Act (SEPA) Mitigated
Determination of Non -Significance (MDNS) (Exhibit 12). The Hearing Examiner has
re-evaluated only the evidence submitted at the prior hearing and concludes that Ms.
Breckenridge's concerns are substantiated by the record and mitigation of the impacts
associated with these concerns were not properly addressed in the Hearing Examiner's
recommendation.
The Hearing Examiner concludes that, due to prior unpermitted logging which has
compromised the stability of the steep slope, without adequate protection trees on Ms.
Breckenridge's property, as well as the adjacent critical area, could be adversely affected.
This conclusion is supported by several conditions provided for in the MDNS:
Conclusion 1 (City to ensure land is not developed in a manner that will significantly
increase the potential for slope slippage, landslide, or erosion); Conclusion 5 (City to
prevent injury to property); Conclusion 6 (City to retain vegetation); Conclusion 27 (City
to discourage unnecessary disturbance of natural vegetation); and Condition 19
(requirement for Applicant to retain certified arborist and to protect a tree's critical root
zone). An additional condition will be recommended to address this issue:
The Hearing Examiner concludes that no error occurred in regards to the City's right-of-
way. After reviewing all evidence submitted at the prior hearing, the Hearing Examiner
finds that the proposed right-of-way conforms to City of Auburn road standards and that
any deviations or site specific design will be addressed during the final plat approval.
DECISION
Based on the above, the Hearing Examiner decides that the conditions of his September
14th Recommendation shall be modified as follows:
1. A new condition is added to the approval of the preliminary plat, Condition 9, and is
to read as follows:
Trees to be retained on the subject property and/or public right-of-way must be
protected during construction by fencing located at the edge of the critical root
zone. Trees on neighboring properties, whose critical root zones extend into the
subject property and/or public right-of-way, and may be adversely impacted
during construction, must be protected by fencing located at the edge of the
critical root zone impacted. Construction activities within the critical area zone of
any tree, either on-site or off-site, must be limited in order to preclude or reduce
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008
3
root damage. Protective fencing must be placed as directed by a qualified,
professional forester.
In all other regards, the Hearing Examiner concludes that the record developed at the
open record hearing supports his recommendation and there was no error of procedure,
law, fact, or judgement.
So ordered this % day of October 2005.
DRISCOLL & HUNTER
Hearing Examiner for City of Auburn
By:
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008 4
EXHIBIT `C'
BEFORE THE HEARING EXAMINER
OF THE CITY OF AUBURN
In the Matter of the Application of
NO. REZ04-0006
PLT04-0008
Monte Adams )
Adams Vista Plat
For Preliminary Plat
RESPONSE TO CITY OF AUBURN'S
COMMENTS TO THE REQUEST FOR
RECONSIDERATION
BACKGROUND
Monte Adams, represented by Hans Korve of DMP Inc. (Applicant), requested approval
of a rezone of one parcel of land, approximately 13.14 acres, from Rural Residential and
Residential Mobile Home Park designation to Residential Duplex (R3). As a part of the
request, the Applicant sought approval of a preliminary plat subject to the new zoning
standards. The plat would divide the parcel into 8 lots for future single-family residential
development, an open space tract], and two privately owned and maintained tracts for
access and utilities. The subject property is located within the city limits of Auburn,
south of Auburn Way South and east of Hemlock Street.
An open record hearing was held before the Hearing Examiner of the City of Auburn on
August 16, 2005. On September 14, 2005 the Hearing Examiner issued a
recommendation for the proposal which was made available to the public on September
21, 2005. On September 28, 2005, Ms. Frary Breckenridge, through her attorney Ms.
Jane R. Koler, filed a Request for Reconsideration of the Hearing Examiner's
recommendation. The Applicant submitted a response to Ms. Breckenridge's request on
October 11, 2005.
On October 12, 2005, the Hearing Examiner submitted his decision on the Request. The
Hearing Examiner denied Ms. Breckenridge's request to submit additional evidence into
the record but amended the September 14 recommendation to include an additional
condition, Condition 9. The purpose of Condition 9 was to recognize the proposal's
potential impacts to trees in the area and to slope stability in the adjacent critical area.
REQUEST
On October 12, 2005, the City of Auburn requested clarification of the Hearing
Examiner's additional condition. The City stated that in order to construct the city
standard roadway for access to the Adams Vista plat, trees must be removed and that the
condition refers to the retention of trees within the public right-of-way. The City
questioned whether the condition mandates that trees within the public right-of-way be
retained. The City also argued that the additional condition refers to securing the services
of a professional forester and questioned whether this would be in addition to the certified
'Applicant has proposed that the open space tract be dedicated to the City of Auburn.
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008 1
arborist that is required by the Final Mitigated Determination of Non -Significance
(MDNS).
RESPONSE TO REQUEST
In the review of the Request for Reconsideration and in determining whether to amend
the prior recommendation, the Hearing Examiner reviewed the record and noted the
potential impacts to trees on private property and to slope stability, due either to
construction of the right-of-way or removal of trees on Mr. Adams property. The
additional condition; Condition 9, was recommended to address this issue.
The City misreads the Hearing Examiner's condition. Condition Number 9 states that
"Trees to be retained ... must be protected during construction." The condition does not
prohibit the removal of trees necessary for construction of the city standard roadway.
The condtion.only requires that, if the City selects to retain any trees within the right-of-
way, it must ensure the health and integrity of such trees by protecting their critical root
zones during construction.
The Hearing Examiner does recognize the confusion between the verbage "qualified
professional forester" and "certified arborist". Given that the recommended condition is
intended to preserve the health and integrity of retained trees, a certified arborist is the
correct individual to supervise the placement of fencing meant to protect the critical root
zone areas of retained trees.
DECISION
Based on the above, the Hearing Examiner modifies Condition 9 by replacing "qualified,
professional forester" with "certified arborist".
In all other regards, the recommendation of the Hearing Examiner remains the same.
So ordered this day of October 2005.
DRISCOLL & HUNTER
Hearing Examiner for City of Auburn
James Driscoll
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008
BEFORE THE HEARING EXAMINER
OF THE CITY OF AUBURN
In the Matter of the Application of
)
NO. REZ04-0006
PLT04-0008
Monte Adams
)
Adams Vista Plat
For Preliminary Plat
}
RESPONSE TO
REQUEST FOR RECONSIDERATION
BACKGROUND
Monte Adams, represented by Hans Korve of DMP Inc. (Applicant), requested approval .
of a rezone of one parcel of land, approximately 13.14 acres, from Rural Residential and
Residential Mobile Home Park designation to Residential Duplex (R3). As a part of the
request, the Applicant sought approval of a preliminary plat subject to the new zoning
standards. The plat would divide the parcel into 8 lots for future single-family residential
development, an open space tract[, and two privately owned and maintained tracts for
access and utilities. The subject property is located within the city limits of Auburn,
south of Auburn Way South and east of Hemlock Street.
An open record hearing was held before the Hearing Examiner of the City of Auburn on
August 16, 2005. Eight individuals testified at that hearing and 50 exhibits were
admitted. Following a review of the testimony and exhibits, and based on the criteria
established by the City Council, on September 14, 2005 the Hearing Examiner issued a
recommendation for approval of a rezone for only the northern 6.8 acres of the property
and approval of the preliminary plat. Denial was recommended for the rezone for the
southern 6.2 acres. The Hearing Examiner's recommendation had eight conditions.
The City of Auburn issued the Hearing Examiner's recommendation to the public on
September 21, 2005. On September 28, 2005, Ms. Frary Breckenridge, through her
attorney Ms. Jane R. Koler, filed a Request for Reconsideration of the Hearing
Examiner's recommendation. The Applicant submitted a response to Ms. Breckenridge's
request on October 11, 2005.
REQUEST
Ms. Breckenridge testified at the open record hearing and submitted several documents
that were admitted into the record. (Exhibits 21, 41, 41A, 41B, 41C, and 44). Her
Request for Reconsideration references the geotechnical report commissioned by her
(Attachment 5, previously entered into the record as Exhibit 41A) and issues raised at the
.prior hearing. The request further seeks to admit new evidence Report of Robin W.
Williams, consulting arborist, dated August 30, 2005, including Attachments 1, 2, and 3;
and Statements of Mark J. Jacobs, PE, PTOE of Jakes Traffic Engineering Inc., including
' Applicant has proposed that the open space tract be dedicated to the City of Auburn.
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008 1
Attachment 6. (Request for Reconsideration, page 2). The request alleges that the
Hearing Examiner's decision needs to be "slightly altered" because the decision: (1)
does not adequately protect trees located on Ms. Breckenridge's property, (2) does not
recognize that alternatives exists which would provide a safer right-of-way access to the
proposed plat; and (3) does not protect the stability of the southern facing banks of the
White River. The request closes with a plea that the Hearing Examiner's decision be
"changed" in order to mitigate the stated adverse effects and "promote the safety and
convenience of the public.,,
RESPONSE TO REQUEST
Pursuant to Auburn City Code (ACC) 18.66.150, a Request for Reconsideration must be
received "within seven days after the written decision of the examiner has been
rendered." z Although the Hearing Examiner rendered his .recommendation on both of
the applications on September 14, 2005, corrections were required due to a scribner's
error and the corrected recommendation was submitted to the City a'few days later. The
.City issued the Hearing Examiner's recommendation to the public on September 21,
2005. Ms. Breckenridge's request was received -by the City of Auburn Planning
Department on September 28, 2005.Therefore, the Hearing Examiner finds that Ms.
Breckenridge's request was timely filed.
The request filed by Ms. Breckenridge seeks to submit new evidence for the Hearing
Examiner's consideration, namely the arborist's report (Attachment 1) and the opinion of
a traffic engineer (Request for Reconsideration, Page 2). Pursuant to ACC 18.66.150,
new evidence may only be considered if the evidence "could not [have been] reasonably
available at the prior [public] hearing." The evidence that Ms. Breckenridge seeks to rely
on is of a type that could have been reasonably available at the time of August 16th
hearing or is evidence that the Hearing Examiner has already considered when making
z The Hearing Examiner is guided by ACC 18.66.150 when reviewing a request for reconsideration. That
section states that:
The planning director or any interested party affected by the recommendation of the
examiner who asserts that the hearing examiner based that recommendation on an
erroneous procedure, errors of law or fact, error in judgment, or the discovery of new
evidence which could not be reasonably available at the prior hearing, may make a
written request for review by the examiner within seven calendar days after the written
decision of the examiner has been rendered. The request for reconsideration shall set
forth the specific errors relied upon by such appellant, and the examiner may, after
review of the record, take further action as the examiner deems proper. The examiner
may request further information which shall be provided within 10 calendar days of the
examiner's request. The examiner's written decision on the request for consideration
shall be transmitted to all parties of record within 10 calendar days of receipt of the
request for reconsideration or receipt of the additional information requested,. whichever
is later. '
s The traffic engineer, Mr. Jacobs, seeks to justify his conclusions on an analysis of AML Geotechnical
Services Inc.'s report, a document that was submitted into the record at the prior hearing as Exhibit 41A.
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008 2
his recommendation. Submission of all new evidence is therefore not proper and is
denied.
The Hearing Examiner does, however, recognize that Ms. Breckenridge's concerns are
primarily based on potential impacts to trees on her property, due either to construction of
the right-of-way or removal of trees on Mr. Adams property, and slope stability. These
concerns were raised at the prior hearing (see Findings of Fact Nos. 8, 11, 12, 13, 15, 16,
and 24) and were evaluated in the State Environmental Policy Act (SEPA) Mitigated
Determination of Non -Significance (MDNS) (Exhibit 12).' The Hearing Examiner has
re-evaluated only the evidence submitted at the prior hearing and concludes that Ms.
Breckenridge's concerns are substantiated by the record and mitigation of the impacts
associated with these concerns were not properly addressed in the Hearing Examiner's
recommendation.
The Hearing Examiner concludes that, due to prior unpermitted logging which has
compromised the stability of the steep slope, without adequate protection trees on Ms.
Breckenridge's property, as well as the adjacent critical area, could be adversely affected.
This conclusion is supported by several conditions provided for in the MDNS:
Conclusion 1 (City to ensure land is not developed in a manner that will significantly
increase the potential for slope slippage, landslide, or erosion); Conclusion 5 (City to
prevent injury to property); Conclusion 6 (City to retain vegetation); Conclusion 27 (City
to discourage unnecessary disturbance of natural vegetation); and Condition 19
(requirement for Applicant to retain certified arborist and to protect a tree's critical root
zone). An additional condition will be recommended to address this issue.
The Hearing Examiner concludes that no error occurred in regards to the City's right-of-
way. After reviewing all evidence submitted at the prior hearing, the Hearing Examiner
finds that the proposed right-of-way conforms to City of Auburn road standards and that
any deviations or site specific design will be addressed during the final plat approval.
DECISION
Based on the above, the Hearing Examiner decides that the conditions of his September
14th Recommendation shall be modified as follows:
1. A new condition is added to the approval of the preliminary plat, Condition 9, and is
to read as follows:
Trees to be retained on the subject property and/or public right-of-way must be
protected during construction by fencing located at the edge of the critical root
zone. Trees on neighboring properties, whose critical root zones extend into the
subject property and/or public right-of-way, and may be adversely impacted
during construction,. must be protected by fencing located at the edge of the,
critical root zone impacted. Construction activities within the critical area zone of
any tree, either on-site or off-site, must be limited in order to preclude or reduce
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008 3
root damage. Protective fencing must be placed as directed by a qualified,
professional forester.
In all other regards, the Hearing Examiner concludes that the record developed at the
open record hearing supports his recommendation and there was no error of procedure,
law, fact, or judgement. .
So ordered this day of October 2005.
DRISCOLL & HUNTER
Hearing Examiner for City of Auburn
By: .
James Driscoll
Request for Reconsideration
Monte Adams — REZ04-0006, PLT04-0008 4
EXHIBIT `D'
LEGAL DESCRIPTION FOR PLT04-0006 AND PUD04-0001
THAT PORTION OF THE GEORGE E. KING DONATION LAND CLAIM (D.L.C.) NO. 40 IN
SECTION 31, TOWNSHIP 22 NORTH, RANGE 5 EAST W.M. DESCRIBED AS FOLLOWS:
COMMENCING AT A 6" X 6" SANDSTONE MONUMENT MARKING THE SOUTHWEST
CORNER OF THE R.H. BEATTY D.L.C. NUMBERS 37 AND 44; THENCE SOUTH 89-00'01"
EAST, ALONG THE SOUTH LINE OF SAID R.H. BEATTY D.L.C. AND THE NORTH LINE OF
THE W.A. COX D.L.C. NO 38, A DISTANCE OF 2,643.18 FEET TO A 2" DIAMETER
CONCRETE -FILLED IRON PIPE MARKING THE SOUTHEAST CORNER OF SAID R.H.
BEATTY D.L.C. AND THE NORTHEAST CORNER OF SAID W.A. COX D.L.C.;
THENCE, CONTINUING SOUTH 89-00'01" EAST, 638.43 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE, CONTINUING SOUTH 89-00'01", 1,617.39 FEET TO A POINT ON A LINE
ESTABLISHED BY BOUNDARY LINE AGREEMENT RECORDED UNDER KING COUNTY
RECORDING NO. 8110150749;
THENCE, ALONG SAID LINE, SOUTH 46-26'33" EAST 103.45 FEET;
THENCE, ALONG SAID LINE, SOUTH 39-19'49" EAST 211.01 FEET;
THENCE, ALONG SAID LINE, SOUTH 09-48'39" WEST 412.45 FEET;
THENCE, ALONG SAID LINE, SOUTH 01-43'38" EAST 263.60 FEET;
THENCE, ALONG SAID LINE, SOUTH 08-38'47" WEST 208.18 FEET;
THENCE, NORTH 88-49'05' WEST 503.22 FEET
THENCE, NORTH 19-30'00" EAST 110.98 FEET;
THENCE, NORTH 88-49'05" WEST 1,283.52 FEET;
THENCE, NORTH 01-48'33" EAST ALONG A LINE PARALLEL WITH THE EAST LINE OF
SAID COX D.L.C., 1,008.50 FEET TO THE TRUE POINT OF BEGINNING;
EXCEPT THAT PORTION THEREOF CONVEYED TO THE CITY OF KENT FOR SOUTH
277TH STREET, DESCRIBED AS FOLLOWS:
BEGINNING AT SAID TRUE POINT OF BEGINNING;
THENCE, CONTINUING SOUTH 89-00'01" EAST, 1,617.39 FEET TO A POINT ON A LINE
ESTABLISHED BY BOUNDARY LINE AGREEMENT RECORDED UNDER KING COUNTY
RECORDING NO. 8110150749;
THENCE, ALONG SAID LINE, SOUTH 46-26'33" EAST 103.45 FEET;
THENCE, ALONG SAID LINE, SOUTH 34-19'49" EAST 60.80 FEET;
THENCE NORTH 79-05'59" WEST 581.27 FEET;
THENCE NORTH 88-59'57" WEST 1,156.72 FEET TO A POINT 20.00 FEET EAST OF THE
EAST RIGHT-OF-WAY MARGIN OF "I" STREET NORTHEAST;
THENCE NORTH 01-48'33" EAST 20.00 FEET TO THE POINT OF BEGINNING OF THIS
EXCEPTION;
SITUATE IN THE CITY OF AUBURN, COUNTY OF KING, STATE OF WASHINGTON