HomeMy WebLinkAbout4635CITY
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.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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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