Loading...
HomeMy WebLinkAbout4635CITY CIT'~ Aub~, 2 3 5 6 7 8 9 ]] ]5 ]7 ]9 2O 2] 22 23 24 25 26 .ERK'S OFFICE OF AUBURN West Main WA 98001 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AFFIRMING THE HEARING EXAMINER'S DECISION TO DENY APPEAL NO. MIS0004-93 WHEREIN PRIMARK DEVELOPMENT APPEALED THE ADMINISTRATIVE DECISIONS OF THE PLANNING DIRECTOR THAT A SURFACE MINING PERMIT IS REQUIRED TO UNDERTAKE THE PROPOSED EXCAVATION FOR THE NAKISKA APARTMENT PROJECT AND THAT THE CONDITIONAL USE PERMIT ISSUED UNDER ORDINANCE NOS. 4308 AND 4309 IS EXPIRED AND NULL AND VOID ON SUCH PROJECT WHICH WAS PROPOSED TO BE DEVELOPED ON PROPERTY LOCATED EAST OF "W" STREET N.W. AND WEST OF THE TERMINUS OF 15TH STREET N.W., WITHIN THE CITY OF AUBURN, WASHINGTON. WHEREAS, Appeal No. MIS0004-93 dated January 28, 1993 has been submitted to the City of Auburn, Washington, by PRIMARK DEVELOPMENT appealing the administrative decisions of the Planning Director that a surface mining permit is required to undertake the proposed excavation for the Nakiska Apartment project and that the Conditional Use Permit issued under Ordinance Nos. 4308 and 4309 is expired and null and void on such project which was proposed to be developed on property located east of "W" Street N.W. and west of the terminus of 15th Street N.W., within the City of Auburn, Washington; and WHEREAS, said Appeal No. MIS0004-93 was referred to the City of Auburn Hearing Examiner for study and public hearing thereon; and WHEREAS, on March 16, 1993 the Hearing Examiner conducted a public hearing Hall to consider considering the in the Council Chambers of the Auburn City the appeal and, after hearing testimony and entire file, on April 23, 1993 issued a Ordinance No. 4635 July 2, 1993 Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 written Decision to deny the appeal based upon the following Findings of Fact and Conclusions of Law, to-wit: FINDINGS OF FACT The subject property is an 80-acre parcel of land situated on the west hill of Auburn. The property generally lies east of "W" Street N.W. and southwest of the western terminus of 15th Street N.W. The property has been the subject of an application for a building permit for a 302-unit multi-family development called Nakiska. The history of the development application on the site is that in March, 1986, the City of Auburn approved a permit pursuant to Ordinance No. 4113 which allows surface mining and approved the conceptual Conditional Use Permit (Ordinance No. 4114) and which allowed 338 multiple family units to be constructed on the subject property upon the completion of mining. These permits were issued to a prior applicant, Lloyd Enterprises. On September 19, 1988 and October 3, 1988 respectively, the City issued a more specific Conditional Use Permit (cuP) in Ordinances No. 4308 and No. 4309 to Primark to allow construction of a 302-unit multiple family development on the subject site. Section 9 of Ordinance No; 4308 required the commencement of construction of the project within 18-months of completion of the mining permit approved in 1986 or the CUP would be void. The mining permit issued, approved by Ordinance No. 4113, expired on December 31, 1990. Accordingly, it is the City's position that the CUP approved in Ordinance Nos. 4308 and 4309 expired on July 1, 1992. Building permits had not been issued and therefore construction had not commenced on the 302-unit project. As a result of the. review of the building permit application by the City, it was determined that the finished grades proposed for the 302-unit project were different than the grades approved by Ordinance No. 4113 in the 1986 mining permit and that as a result additional Ordinance No. 4635 July 2, 1993 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17, 18 19 2O 21 22 23 24 25 26 10. 11. 12. excavation would be required in order to construct the 302-units. Specifically, the grades were different due to a change in the number of terraces which would accommodate the multiple family design from three to two. As a result of this proposed change of grade, the City determined that additional excavation would be required in order to construct the 302-units and that a surface mining permit would be required pursuant to Chapter 18.62 of the Zoning Ordinance. The applicant was notified of the City's position that a surface mining permit was required by letter dated November 18, 1991. That letter, from Lynn Rued, Senior Planner of the Auburn Planning Department, concluded that the construction which had started on Terrace Drive was determined to be related to restoration of the mine and not a part of the Nakiska project. The letter invited Guy Spencer at Primark Development to provide other evidence which would indicate otherwise for further review if desired. The record reflects that no further evidence was provided. The appellant was notified by letter dated August 6, 1992, that a mining permit would be required for the proposed excavation and that the CUP had expired. The appellant filed an appeal contesting two administrative decisions. The first issue in the appeal is the argument that a surface mining permit is not required for the additional excavation. The second argument in the appeal challenges the conclusion by the City that the CUP approved in Ordinance Nos. 4308 and 4309 has expired and that the 302-unit multiple family development is no longer permitted. As far back as 1980, the City of Auburn approved a special property use permit which allowed mining to continue on the subject site. Portions of the subject site had been previously mined. In 1981, the City issued a Final Environmental Impact Statement for a project consisting of seven detached single family homes and 433 multiple family units to be developed on the site subsequent to the completion of mining. In 1981, the City approved a Conditional Use Permit in Ordinance No. 3649 to allow construction of cluster-type Ordinance No. 4635 July 2, 1993 Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 13. 14. 15. 16. 17. housings in accordance with the Environmental Impact Statement. The 1980 mining permit expired in 1985. The City, on March 3, 1986, in Ordinance No. 4113, approved another mining permit which allowed mining to continue. At the same time, the City approved a new Conditional Use Permit in Ordinance No. 4114 which allowed the construction of 308 multiple family units. The final grades approved by the mining permit authorized under Ordinance No. 4113 and the final grades illustrated on the Conditional Use Permit authorized by Ordinance No. 4114 site plan are identical. The evidence establishes that in 1986 the City approved a preliminary plat for the subject property. The area set aside for the Conditional Use Permit was not part of the plat. The preliminary plat drawing did indicate that the proposed grades for the entire area, including the CUP area, were the same as the mining permit and CUP approved by Ordinance Nos. 4113 and 4114. However, the development which was authorized by Ordinance No. 4114 and the resulting Conditional Use Permit was conceptual. A more specific Conditional Use Permit was required to be approved in order to allow the actual construction of the multi-family development. The Ordinance which approved the Conditional Use Permit, Ordinance No. 4114, required that the site plan establish a subsequent land use once the mining is complete. More detail was required for building locations, parking areas, landscaping, and setbacks. The new Comprehensive Plan for the City was approved in August, 1986, and the Zoning Code was approved in June, 1987. These documents now preclude the multi-family development on the site. The City received an application from Primark for a Conditional Use Permit on the subject property on May 31, 1988. The Conditional Use Permit application was submitted as required by previously approved Ordinance No. 4114 which required a more detailed Conditional Use Permit. The City Council adopted Ordinance No. 4308 which approved the CUP and allowed for the construction of 302- units on September 19, 1988. A subsequent Ordinance, No. 4309, was adopted on October 3, 1988, which included three conditions of approval which were inadvertently omitted from Ordinance No. 4308. Ordinance No. 4635 July 2, 1993 Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 18. 19. 20. 21. 22. 23. In March, 1989, Primark requested minor revisions to the site plan previously approved. The revised site plan was approved by way of a letter from the Planning Director dated May 17, 1989. The revised site plan did not illustrated any proposed topography. The Zoning Ordinance does not require the illustration of topographical information on the site plan. On October 5, 1989, Primark submitted a building permit application for a 302-unit multi-family complex, according to the City of Auburn. In fact, according to Exhibit #3, it appears as though the City's treasurer issued a receipt for the building permit application on September 20, 1989, so that the application was submitted slightly earlier than the City indicated. Mining ceased after December 31, 1990, when the mining permit approved by Ordinance No. 4113 expired. Not all of the gravel had been removed as envisioned by Ordinance No. 4113. The ordinance approving the Conditional Use Permit, Ordinance No. 4308, at Section 9, required construction of the multiple family project to commence within 18-months of the completion of mining or the Conditional Use Permit would be void. Accordingly, the City takes a position that the 18-month clock started to run on December 31, 1990. The appellant argues that the continuing excavation and mining work which was being done on the site was not related to the development of Terrace Drive. The City's assertion that there was a substantial amount of material which was left to be removed as of December 31, 1990, to accommodate the construction of Terrace Drive, appears to be established by the evidence. The removal of this material in accordance with Section 9 of Ordinance No. 4113 was required for Terrace Drive to be paved for two lanes of travel in order to meet the restoration requirements of the mining permit. Removal of the material was subsequently permitted without a mining permit pursuant to Section 18.62.020(a) of the Zoning Ordinance and Section 9 of Ordinance No. 4113. While the City reviewed the building permit application, a question arose concerning the final grades and whether they were similar to the final grades which were approved as part of Ordinance No. 4113 in 1986. Ordinance No. 4635 July 2, 1993 Page5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 24. 25. 26. 27. Accordingly, by letter dated August 30, 1990, the City asked Primark for topographical information which illustrated the grades approved by the 1986 mining permit, grades which existed at the mining at the end of 1990, and proposed grades which were submitted as part of the 1989 building permit application. 28. Approximately 2-1/2 months later, on November 11, 1991, the City received the grading information requested. The information illustrated that the grades proposed for the building permit were substantially different than those proposed for the 1986 mining permit. Specifically, the proposal now called for the multiple family units to be constructed on two as opposed to three terraces. The applicant's architect described the reasons for the change of grade and the change of a three to a two- terrace design as being required by the building and fire code. In addition, the three-terrace design had the multiple family units placed on a fairly steep hillside with long rows of buildings with terraces located on the brink of a very steep slope. Mr. Spencer indicated that he understood the nature of the approval granted by the Conditional Use Permit to be a conceptual approval subject to change. Mr. Spencer indicated that he had the impression from talking to the City prior to the purchase of the property that so long as the overall concept of multiple family housing and the general layout were maintained, their revisions to the site plan were acceptable. However, Mr. Spencer did not testify, nor did any witness allege on behalf of the appellant, any understanding that there could be a substantial change in grade approved administratively. The information provided by the appellant in November, 1991, established that an additional 143,679 cubic yards of material would need to be excavated in order to accomplish the grades submitted as part of the 1989 building permit application. Accordingly, as previously indicated, the City notified the appellant on November 18, 1991, that a surface mining permit was likely to be required. Some 11 months previously, on January 30, 1991, the City had earlier advised Primark that the surface mining chapter of the Zoning Ordinance might apply to the application. The City received a series of arguments from Primark against the issuance of a surface mining permit. However, the City was not persuaded and informed Primark Ordinance No. 4635 July 2, 1993 Page6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29. 30. 31. 32. 33. 34. 35. by letter dated August 6, 1992, that a mining permit would be required. Primark indicated that they proposed to excavate approximately 143,679 cubic yards of material. The majority of the material, 114,663 cubic yards, was to be used for compacted fill. The remaining 29,017 cubic yards were proposed to be spread over the site. The cross-sections provided by Primark illustrate that the excavation will result in "cuts" ranging in depth of up to 20 feet. Several finished grades have a two to one 50% slope. The same cross-sections indicate a significant amount of over-excavation. The drawings provided indicate that the depth of excavation is up to 30 feet below what was approved as part of the 1986 mining permit in Ordinance No. 4113. As a result of the violation of the previous permit, the amount of material to be excavated and the depth of excavation together with the steep nature of the finished slopes, the City determined that the surface mining chapter of the Zoning Ordinance should apply. The application for the CUP did not establish that is was the intention of the application to change the previously approved grades which were authorized by the mining permit (Ordinance No. 4113) and the conceptual CUP (Ordinance No. 4114). The city Council, in passing Ordinance No. 4308, concluded at Conclusion #1 that the scope of review by the City Council would be limited to the type of improvements required for the arterial, the siding of the provision of adequate utilities as required and specified in Ordinance No. 4114, and consideration of the compliance of the development with current building, fire, and zoning codes. There was not any indication that the grades were to be significantly changed. The only mining permit which allowed for excavation materials other than for Terrace Drive was the 1986 permit. A very specific grading plan was incorporated into that permit. No revisions of the grading plan have been authorized which would allow the over-excavation which has occurred. Ordinance No. 4635 July 2, 1993 Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 36. 37. 38. 39. 40. 41. The restoration of the site is not yet complete because although Terrace Drive has been substantially graded, it has not been paved. One of the conditions of the 1986 permit approved in Ordinance No. 4113 at Section 9 is that restoration of the mine is not deemed to be complete until the proposed arterial of Terrace Drive is paved for two lanes of traffic. The City has not released the $80,000 bond required as a part of Section 5 of Ordinance No. 4113. Primark did not apply for or receive permits for the grading of Terrace Drive. All permits were issued to Lloyd Enterprises who applied for and received a Facility Extension Permit on May 15, 1991. Grading has substantially been completed. The only obligation which Lloyd had to the City was to restore the site pursuant to Section 9 of Ordinance No. 4113. As indicated, the site has been restored, but the arterial has not been paved. The appellant, Primark, was given the opportunity in September, 1992, to execute a Facility Extension Agreement to complete the construction of Terrace Drive. The expired CUP approved in Ordinance No. 4308 r~quired a 44-foot pavement width, curb, gutter, sidewalks, and street lights. The appellant did not execute the Facility Extension Agreement. The appellant has been aware since November, 1991, that it is the City's position that the construction activity occurring on the site was related to restoration of the mine and not related to the Nakiska project. The appellant could have, but did not, apply for an extension of the CUP. The building permit application received by the City on November 20, 1989, was not a complete application for Engineering Division review since the application did not provide information regarding required off-site improvements (Terrace Drive) which were required in accordance with Section 5 of Ordinance No. 4114. The off-site information was finally provided on February 1, 1990. Additional information was requested on February 27, 1990. After preliminary review of the application which included cross-section information, soils report, pavement section, and drainage information resulted in the City determination that more drainage information was required. A substantial amount of history on the site shows that there is significant Ordinance No. 4635 July 2, 1993 Page 8 1 2 3 4 5 6 7 8 9 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 42. 43. 44. 45. drainage problems with the gravel pit area. These drainage problems were illustrated significantly in Exhibits #4, #5 and a video taDe illustrating significant drainage problems at the base of the site. The information requested in the February 27, 1990, letter relating to drainage had been requested on a number of occasions after the date of the letter including in both June and October, 1990. The plans for Terrace Drive were eventually returned to Lloyd in May, 1991, after limited review since complete drainage information had not been provided to the City satisfaction. On both October 17, 1990, and August 30, 1990, Primark was notified that prior to any further review of the on-site plans that the drainage information would be required. The Engineering Division has not received adequate drainage information to demonstrate that the design of Terrace Drive and the on-site Nakiska drainage system will be compatible with drainage concerns of the mining pit area. The submittal of the building permit application does not toll the 18-month period for expiration of the CUP. The appellant was made aware 7-months prior to the expiration of the CUP that construction on-site was not fulfilling Section 9 of Ordinance No. 4308. The appellant was aware that the CUP would expire 18-months after cessation of the mining activity. Yet, for reasons which are unclear to the undersigned, the appellant never requested an extension of the CUP. The appellant now takes the position that the construction activity on the site was related to the restoration of the mine, however, the preponderance of the evidence fails to support that position. The appellant's argument with regard to the surface mining permit is not persuasive. Pursuant to Chapter 18.62 of the Zoning Ordinance, a surface mining permit is clearly required for an excavation as major as an additional 143,679 cubic yards of material. The appellant proposes to significantly change the grades originally proposed and approved. To suggest that the City staff could somehow administratively approve such a significant grade change without the issuance of a surface mining permit and the review process associated with same is illogical. The fact that the plan does not Ordinance No. 4635 July 2, 1993 Page 9 1 2 3 4 5 6 ? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 require the excavated material to be removed off-site is immaterial. CONCLUSIONS OF LAW The construction of the project and associated excavation is not exempt from Chapter 18.62 of the Zoning Ordinance. The previously approved grades pursuant to Ordinance No. 4113 may only be changed by an amendment to the ordinance, an exemption from the surface mining section of the Zoning Ordinance, or the issuance of a new surface mining permit. None of these processes have been followed by the appellant. Restoration of the site is still not complete. The only activity which has occurred since the cessation of mining was related to restoration and not to construction nor the commencement of pre-construction activities for the Nakiska project, nor any of the associated required off- site improvements. Well in advance of the expiration of the Conditional Use Permit (CUP), the appellant was notified that they were not fulfilling the commencement of construction requirement. The appellant had the opportunity to take over construction on the site and commence construction associated with the Nakiska project, ask that the CUP be amended to extend the 18-month requirement, and/or apply for a surface mining permit. The appellant chose to allow the CUP to expire for reasons which are very unclear to the undersigned given the changes to the Comprehensive Plan and Zoning Ordinance which would now preclude the development of multiple family units on the site. To the extent that the appellant wished to preserve the legal right to build a multiple family development on the site, it seems logical that the appellant would have done anything and everything possible to preserve that legal right including obtaining a building permit and the commencement of construction relating to the project within the 18-month period after expiration of the mining permit. Alternatively, if construction had not been commenced, the appellant could have requested that the CUP be extended. The CUP has expired. Ordinance No. 4635 July 2, 1993 Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6. A surface mining permit is required for the substantial additional excavation proposed by the appellant. WHEREAS, on May 3, 1993, PRIMARK DEVELOPMENT filed an appeal of the Hearing Examiner's decision which was designated as Appeal No. MIS0009-93 and set for hearing before the City Council of the city of Auburn; and WHEREAS, on June 21, 1993, the City Council of the City of Auburn conducted a hearing on the appeal filed by PRIMARK DEVELOPMENT at the conclusion of which the Council adopted the above-referenced Findings of Fact and Conclusions of Law and affirmed the Decision of the Hearing Examiner to deny the appeal. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN AS FOLLOWS: Beotion ~. The City Council hereby adopts the above- stated City of Auburn Hearing Examiner's Findings of Fact and Conclusions of Law and thereby incorporates such Findings and Conclusions in this Ordinance. Section 2. The City Council hereby affirms the Hearing Examiner's Decision to deny the appeal of PRIMARK DEVELOPMENT regarding property located east of "W" Street N.W. and west of the terminus of 15th Street N.W., Auburn, Washingt°n. Section 3. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation. Ordinance No. 4635 July 2, 1993 Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Bectlon 4. This Ordinance shall force five days from and after its publication as provided by law. INTRODUCED: PASSED: APPROVED: take effect and be in passage, approval and MAYOR ATTEST: Robin Wohlhueter, City Clerk APPROVED AS TO FORM: S hen R. Shelton, City Attorney Ordinance No. 4635 July 2, 1993 Page 12