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HomeMy WebLinkAbout12-19-2005 ITEM VI-BR# A CITY OF B 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 Police 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