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HomeMy WebLinkAbout3932 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. PL T04-0008, 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 Iq\\}.\ day Of'\:>PC.f'~I,Ju.ev ,2005. CITY OF AUBURN Resolution 3932 December 14, 2005 Page 4 of 5 ~ ~Z::::::=::> PE R B. LEWIS, MAYOR ATTEST: t2eAc! ~,~_/ an lie E. Daskam, City Clerk 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 ) ) ) ) ) ) ) NO. REZ04-0006 PL T04-0008 MONTE ADAMS For a Rezone and Preliminary Platt For "Adams Vista" 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 onlv the northern portion of the subiect prooerty. 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 subiect property. approximately 6.2 acres. SUMMARY OF RECORD Request 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, 2005.1 I 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. Exhihir -15. Findings, Conclusions, and Recommendation Hearings Examiner for Ihe City of Auburn Monte Adams - Rezone/Preliminary Plat Page I of 18 Testimonv At the open record hearing the following individuals presented testimony under oath: I. 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: I. Staff Report - REZ04-0006 and PL T04-0008 IA. Condition #6 for Preliminary Plat 2. Site Map 3. Preliminary Plat Application (PL T04-0008) 3A. Rezone Application (REZ04-OO06) 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 1,. 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, ofREZ04-0006 and PLT04-0008 9. 2001 Ariel Photograph of Site 10. State Environmental Policy Act (SEPA) Checklist, dated March 15,2005 II. Final Staff Evaluation for SEP A 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 I, 2005 14. Letter from City of Auburn to Winchester Heights Condominium Association in response to their July I, 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 1. 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 Recommendalion Hearings Examiner for Ihe 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. Hanis 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. Hanis ofHanis Greaney 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 II, 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' Associalion. 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 wilh 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 E. 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 4IB. Letter from Ms. Jane Ryan Koler, Attorney representing Ms. Frary Breckenridge. dated August 10, 2005 41 C. Letter from City of Auburn fo Ms. Jane Ryan Koler in response to her letter of August 10,2005, dated August 12,2005 42. Memorandmn 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/Preliminmy Pial 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 I. 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. Exhihif 1, Staff Report (Rezone) page 1 and 3; Exhihit 3A. Rezone Application Narralive. Tesfimony of Mr. Dixon. ~;., 2. As part of the application, Applicant has requested approval of a Preliminary Plat Itlr a single-family residential development - "Adams Vista". Applicant proposes to dcvelop Adams Vista in one phase. The development would be eight lots, ranging in size trom 16,575 square feet (Lot 4) to 61,830 square feet (Lot 8), located on the northern 6.94 acres of the site. Average density would be 1.64 dwelling units per acre. Although the R3 zone allows for multi-family dwellings, Applicant proposes only single-family residences. The plat is to contain two privately owned and maintained tracts for access and utilities (Tract A and Tract C). Applicant seeks to dedicate Tract B, approximately 6.2 acres of sensitive areas, to the City of Auburn. Exhibit 1. Staff Report (Plat). pOKe 1 and 3; Exhibit 3, Preliminary Plat Application; Exhibit 31, Sire Plan. 'l ;i 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 Applicafion; King ('ount)' Tax Assessor's Records. 4, Both applications - rezone and preliminary plat - are being processed by the City concurrently and were consolidated at the public hearing. Tesfimony of Mr. Dixon. 5. Notice of Application was issued on June 21, 2005 for both the rezone and the preliminary plat. Exhibit 4. 6. Notice of the public hearing was posted on the property on August 3, 2005. Notice of the public hearing was mailed to all property owners located within 300 feet of the affected site and published in the King County Journal on August 3, 2005. Exhibifs 5. 6. 7. and 8 7. All but 0.5 acres of the parcel is currently zoned Rural Residential (RR). In the extreme northeastern corner of the property, approximately 0.5 acres. is zoned Residential Mobile Home Park (RMHP). The northern portion of the property (approximately 6.9 acres) is Findings, Conclusions, and Recommendalion Hearings Examiner for the City of Auburn Monle 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 19872 Exhibit I. Shiff Reporl (Reone and Plat), pages 1 and 3; Exhibit 3, Preliminary Piaf Application; Exhihil 3A. Re~one Application; Chapfer 14. 8. The subject property is currently vacant and undeveloped. Surrounding land uses consist ofresidential and commercial development and open space.] 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 tothe north and to the west of the subject property. 4 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, Stq[{ Reporf (Rezone), page 2: Exhihit 9. Aerial Photograph: Exhibit 24, Geotechnical Report, page 2: Exhibif -10, Ordinance 503?!: King County Tax Assessor; Testimony of Ms. Breckenridge. 'j 9, Pursuant to ACC I 8.68.020(A)(I), a rezone is an amendment to the Zoning Map and may be initiated by a request from one or more property owners. The Applicant is the owner of the property involved in this rezone and filed an application with the City on September 24,2004. ACC 18.68.020: Exhibit 3A. Rezone Application. 10. The RR zone is intended primarily to provide for single-family residential uses with characteristics of a rural or agricultural environment. This zone is intended to represent a long term commitment to rural uses and to protect areas with significant environmental constraints or values from urban levels of development. The RMHP zone is intended is to provide a residential zone of single-family manufactured homes exclusively within a plarmed 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. ACe 1?i.08.010: Ace 2 Auburn adopted its current zoning code in 1987. 3 Zoning applicable 10 surrounding properties includes R3 - Duplex Residential, R4 _ Mulli_Family Residential. C I _ Light Commercial, RMHP - Residenlial Mobile Home Park, PI - Public. and RR _ Rural Residential. Exhihil I. Slqff Report (Rezone). page 2. 4 Offices oflhe Federal Aviation Administration are located 10 the west. Condominiums, single tamily residences, and lighl commercial are located to the north. Findings, Conclusions, and Recommendation Hearings Examiner for the City of Auburn Monte Adams -Rezone/Prelim inary PIal Page 5 of 18 18.20.010; ACC 18.16.010; Chapfer 1-1. Land Use Elemenr afAuburn'I' Comprehensive Plan. II. 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) appcaled the issuance of the DNS stating, among other things, that the determination failed to consider "likely adverse environmental impacts" of the proposed rezone and the development such a rezone would permit (Exhibit 35). A public hearing on the rezone and the appeal of the DNS was held on August 19, 1997. The City's Hearing Examiner at the time issued her decision on August 28, 1997, recommending approval of the rezone to the City Council (Exhibit 36) and denial of the SEPA appeal (Exhibit 37). The Hearing Examiner concluded that the environmental impacts of the proposal would be adequately addressed when a site specific development plan was submitted to the City. Winchester Heights HOA submitted a Request for Reconsideration to the Hearing Examiner on September 4, 1997, asserting that the proposed rezone was inconsistent with the Comprehensive Plan; there has been no change in circumstances to justify the rczone; 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). Exhibifs 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 -10, City Co unci/ 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.6 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 s Pursuanllo ACC 18.66, the City's Hearing Examiner has not been gran led the authority to make final decisions on land use actions but only the authority 10 make recommendations 10 the City Council. 6 The doctrine of Res Judicata ("the thing has already been decided) seeks 10 prevent repetitious litigation and to provide binding answers. The doctrine bars reasserting the same claim in a subsequent land use applicalion. Ififlwp Terrace Homeowners Ass'n.. tsland County, 126 Wn.2d 22,3 t, 891 P.2d 29 (1995). In Hilltop. the Washington Supreme Court formulaled a four-part test 10 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 (I) subjecI matter; (2) cause of action; (3) persons and parties; 1lI1d (4) Ihe quality ofthe persons for or against whom the claim is made." Hi/fIOp, 126 Wn.2d al32 (quoting Rain.' l' Slale, 100 Wn.2d 660, 663, 674 P.2d 165 (1983)). Findings, Conclusions, and Recommendalion Hearings Examiner for the City of Auburn Monte Adams -Rezone/Preliminary Pial Page 6 of 18 proposal - RR to R3 - was denied by the City in 1997, thereby barring the present rczone 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 Judicafa claim and concluded that Ordinance 5038 did not permanently bar the proposed rezone but it was denied until such time as environmental concerns, such as slope stability and vegetation removal, were properly addressed. Mr. King determined that Applicant's 1996 rezone application did not properly address environmental issues, but that Applicant's current rezone application does address them, thereby satisfying the "substantial change" required by the Hilltop test. Mr. Korve also testified that, in 1997. though no development proposal was submitted the Applicant had desired to construct a high density multi-family project (approximately 66 dwelling units) and conducted no analysis as to impacts on the sensitive areas. Mr. Korve stated that the current application includes a geotechnical report that adequately addresses environmental concerns. and seeks to develop only eight lots, all with single-family residences. Mr. Dixon testitied 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. Leffer fi'om i'v/I'. Breckenridge's counsel, Jane Ryan Kaler: Testimony of Ms. Kaler: 7'esfimony 0/ Mr. King; Testimony of Mr. Dixon; Testimony of Mr. Korve. 14. Pursuant to the State Environmental Policy Act (SEPA), RCW 43.21C, the City of Aubuin acted as lead agency for the review of environmental impacts caused by the proposed rezone and preliminary plat. A SEPA Environmental Checklist (SEP04-0033) was completed by the Applicant.? City Staff evaluated the Checklist and issued a final Mitigated Determination of Non-Significance '(MDNS) on July 20, 2005. The M DNS states 20 conditions which are incorporated as conditions of this recommendation. Exhibit 10, SEP A Checldist; Exhibit n, Staff Evaluation of Checklisf, &hibif 12. Fina/ 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 16.1O.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" l.andslide Ha71lrd Area and a Class III "Unknown" Landslide Hazard Area. Golder Associales Inc. prepared a Geotechnical Investigation and Steep Slope Hazard Study for the rroposal (Exhibit 24). The report noted five localized, small, shallow debris landslides on the steep slopes, ranging from 60 to 150 feet in width. Golder Associations predicts that resulting slope retreat would range from 10 to 25 feet over a 50 year period. Golder Associates recommended mitigation measures to address the long-term effects of 7 The Checklisl was originally prepared in September 2004 and revised in December 2004. A second revision was compleled March t5, 2005. Exhibit 10 is the 2" Revised Environmental Checklist of March 15.2005. · Golder Associates stale thatlhese landslides appear to have been triggered by erosion of the toe of the steep slope and are nol deep-seated landslides. Exhibit 24, pages 7 and /2. Findings, Conclusions, and Recommendation Hearings Examiner for the City of Auburn Monle Adams -RezonefPreliminary Pial 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/Sfl!cp Slope Sfl/dy. Section 5. pages 5-13. 16. Public comment was received on landslide activity and unpermitted tree rcmoval occurring on the subject property. Ms. Breckenridge retained ALM Geotechnical Services Inc. to provide comments and opinions regarding certain geolechnical aspects of the rezone (Exhibit 4IA). 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, Leifer from Donna Fleming: Exhibif -I1A. AIM Geotechnical Review; Testimony 0/ Mr. Dixon: Testimony of" Mr. BeafTy: Testimony of" Ms. Breckenridge; Exhibit 44, Breckenridge Testimonial Exhibifs, 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 teet c' from the ordinary high water mark of the White River and from the spring and a Shoreline Substantial Development Permit is not required.lo 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 FEMA's t' floodplain elevation of 160 feet. No developthent is proposed within the buffer of the White River. Exhibit 1, Stqff Report (Plat), page 5: Exhibit /0. Environmenfal Checkli.l'f. page 3; Exhibit 7, Staff Evaluation o/Checklist, page 7: Testimony 0/ Mr. Dixon. 18. RCW 36.70A, Washington's Growth Management Act, requires the City of Auburn to develop a Comprehensive Plan,u Pursuant to several sections of the ACe,12 a rezonc. 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 I I). Policies included EN-66 (no development of land that increases potential for landslides); EN-II (water quality); EN-2, EN-4, and EN-14 (stormwater drainage); EN-6, EN-23. and EN-24 , Golder Associales recommends a minimum 30 foot set back from Ihe cresl of Ihe slope in the western 3f4'" of the site and a 50 foot selback.from the crest of the slope along the easlern 1/4"'. Exhibit 24, page f3. I. RCW 90.58, Washinglon's Shoreline Managemenl Acl, requires a Shoreline Substanlial Development Permit for any non-exempl developmenl occurring within the shorelines of the stale. Shorelines are defined in RCW 90.58.030 as lands extending landward for two hundred feel in all direclions as measured on a horizontal plant' from the ordinary high waler mark. 11 The City of Auburn's Comprehensive Plan was originally adopted in August 1986. It has been amended in [Q9S. 2003, and 2004. 12 Rezone - ACC t8.68; Plat - ACC 17.06 Findings, Conclusions, and Recommendation Hearings Examiner for the City of Aubnrn 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-I 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). Exhibif 12, Staff Evaluation ofSEPA. 19. ACC I 8.68.030(B)(I) requires the Director of Planning and Community Development to review a rezone application for consistency with the City's Comprehensive Plan. If the Director determines that the application is consistent, the application shall be scheduled for a public hearing. The Director determined that the application was consistent and the required public hearing was held on August 16, 2005. ACC 18.68.030: Exhibif I. ""faff 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 Iraffic 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. 13 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(l2) 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 schoo! district. Adams Vista proposes an internal private roadway and sidewalks to Hemlock IJ The Board's "Brighl Line Rule" (4 dwellingunils per acre) was firsl articulated in 1995 (See Bremer/on v. Mlsap County, CPSGMHB No. 95-3-0039C, FDO, October 6, 1995) to provide cilies and cQunties with a definition oflhe lerm 'urban density' which the GMA mandated they provide for. The Board recently uphetd their rule in two cases stating Ihal the rule promotes certainty and prediclability for cities and counties planning under the GMA. (See 1000 Friends Vlf v. City of fssaquah, CPSGMHB No_ 05-3-0006, FDO, July 20, 2005; .1000 Friend, Vfff (Kafeas! v. Normandy Park, CPSGMHB No. 05-3-0007C, FDO, July 29, 2005). l4 Washington Slate Conslilulion, Art. 9, * I Findings, Conclusions, and Recommendation Hearings Examiner for Ihe City of Auburn Monte Adams -Rezone/Preliminary PIal Page 9 of 18 Street for safe passage of children must be provided. Exhibit 1, Staff Reporf (Plaf). page 6; Tesfimony of Mr. Dixon; Testimony of Mr. Korve. 22. The City of Auburn would provide police and fire protection. Exhihit 1, Sfaff Reporf (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. Exhihif I. Sta.ffReporf (Plat), pages 6 and 7; Exhibit 10, Environmental Checklisf. page 19: Exhihif 11. Statf Evaluation of Checklist, pages 6-8; Exhibit 12, FDNS: Exhibit 25; Exhibif 27: E,hibit 28; Exhibif 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 t, ' SEP A 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.l3b of the MONS requires installation of a permanent ftmce 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. Exhihit 13. Winchester Heights Letter; Exhibit 14. City's Response: Testimony of Mr, BeaUy. 25. Comments were received from the Muckleshoot Indian Tribe (Exhibit 17) who asserted that priority was not given to archaeological resources that may be on-site. The Tribe asserted that MDNS Condition No. 20 does not adequately protect archaeological sites because it is retrospective. The City responded to these comments (Exhibit 18) stating that the Applicant has volunteered to prepare a Resource Assessment Report to investigate the potential for archaeological and cultural resources on the subject property. Ms. Laura Murphy, Archaeologist for the Tribe, met with the Applicant regarding the proposed project. After review of the geotechnical report, Ms. Murphy concluded that a professional archaeologist be retained to survey the property for the presence of Findings, Conclusions, and Recommendalion Hearings Examiner for the Cily 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 IA). Exhibit /A. Additional Condifion: Exhibil 17. Le(fer from Muckleshoof Indian Tribe; Exhibit 18, City's Response fo Tribe: Exhibil -12: Memofmm 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-ot~way extension from Hemlock Street SE. The proposed streets would be designated as a "'Local Residential Street" under the City's Design and Construction Standards. Exhibit 1. Staff Report (Plat), page 6; Exhibit 28, Letter from DMP Inc.: Testimony of" Mr. Dixon: Testimony of Mr. Welsh; Testimony of Ms. Breckenridge. 27. City Standards require that the roadway be 28-feet wide with parking allowed only on one side.15 The Applicant stated that the property's topography allows for only a roadway of 24-feet in width. Ms. Breckenridge testified that a 28-foot roadway would require removal of mature conifer trees along Ms. Breckenridge's northern property line. Exhibit 1. Stqff Report (Plat), page 6: Exhibit 28, Le(fer .from DMP Inc.: Tesfimonyof" Mr. Dixon: Testimony of Mr. Welsh: Testimony of Ms. Breckenridge. '. 28. Pursuant to Comprehensive Plan Policy TRI3 and the City's Design and Construction Standards, Section 10.02.5.2, a dead end street may not exceed 600 feet in length. Applicant proposes a private street of approximately 1000 feet, denoted as 26th Street SE. A deviation request is required for streets in excess of City standards. Applicant has submitted the deviation request and it has been reviewed by the City Public Works stafI Public Works determined that the deviation request is supportable but is deterring 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 pIns emergency access. A turn-around will be provided at the entrance to the development, at the western edge of Tract C, and will be dedicated to the City.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 streel, providing access through the adjacent mobile home park. Exhibit I, Staff" Reporf (Nor). page 6: Exhibit 28, Letter from DMP Inc.: Tes/imony of Mr. Dixon: Tesfimony of" Mr. Welsh: TestimonYlJfMs. Breckenridge. 15 City slandards require two Iraffic lanes 14 feet in widlh with one side available for parking and marked as a lire lane. Section 10.01.3. I and Seclion 10.01.3.4. 161t is noted that the process ofde~iation used in this matler may not be consistent with RCW 36.708. 17 The area to be dedicated to the City is denoted on the Site Plans as a halched area on the weslern edge of Trac! C. Exhibit 29, page I. Findings, Conclusions, and Recommendalion Hearings Examiner for the City of Auburn Monle Adams -Rezone/Preliminary Pial Page II 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. Exhihif I. 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 tor a development of fewer than 50 dwelling units. Applicant proposes construction of only 8 dwelling units. ACC 17.12.260; Exhibit 1, Staff Report (Plar). 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 docurnents 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. l3(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 lor 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 ofthe slope thereby reducing sediment discharge into the adjacent White River, a salmonid bearing river.18 Exhibit 10, Environmental Checklist, pages 8-9: Exhibit 11, Staff Evaluation of Checklist, pages9-JO: Exhibit 12, Final MDNS. pay,es 15- 16; Exhibit 23: Testimony of Mr. Beatty: Testimony of Ms. Breckenridy,e. 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 si ngle- family residence building permit. ACC 19,04: Exhibit 1, Staff Reporf (Plat). pay,e 6: . Exhibit 11, Staff Evaluation of Checklist, page 13. CONCLUSIONS Jurisdiction; Pursuant to Auburn City Code (ACe) 18.66, the Hearing Examiner is granted jurisdiction to hear and make recommendations to the City CounciL Jurisdiction for the Hearings Examiner to make 18 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 cutthroal trout. The native spring run Chinook salmon is listed under the Endangered Species Act as threalened. 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 Faclors - WRIA 10" (July 1999). Findings, Conclusions, and Recommendation Hearings Examiner for Ihe City of Auburn Monte Adams -RezonefPreliminary Plat Pagel2oft8 recommendations for an applicafion 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: I. The rezone shalJ 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: I. 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 tor 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 tothe City of Auburn's zoning ordinance and any other applicable planning or engineering standard and specifications. 4. Potential envjronmental 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 Judil;ata does not bar the rezone application. Whether Res JudiCl/fa bars approval of the current rezone application depends essentially on whether there is an identity of subject matter between the fusf 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 Aubnm Monte Adams -Rezone/Pretiminary Plat Page 13 of 18 may be considered, without violating the Res Judicafa 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 adequale environmental review, primarily geotechnical review, had nol been conducted and a development proposal had not been presented. In Ordinance 5038. the City Council specifically slated 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 till! 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 subsfantially and the necessary environmental documents have been submitted and are available for review. The current application is substantially different from the 1996 application and is thus not barred by the doctrine of Res Judicata. Findingl' ofFacf Nos. f, 2, 1J, f2, and 13. 2. The rezone was initiated by the Applicant-Property Owner and not the City. Pursuant to ACC 18.68.030(B)(I), in order for the Hearing Examiner to hold a public hearing and consider a rezone request, the rezone must not be initiated by the City. The Applicant is the owner of the property subject to the rezone. Finding ofFacf No.9. 3. Conditions in the area have substantially changed and the rezone beal"S a substantial relationship to the public health, safety, morn Is, or general welfare. A. In considering a rezone, the Applicant has the burden of proof in demonstrating thaI conditions have substantially changed since the original zoning and that the rezone bears a substantial relationship to the public health, safety, morals, or general wcltare. Parkridge v. Seattle, 89 Wn.2d 454 (1978). A variety of factors may be utilized 10 satisfY a change in circumstances including changes in public opinion, local land use , patterns, and on the property itself. Bjarnson v. Kitsap County, 78 Wn. App. 840, . 846 (Div. I, 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. ReW 36. 70A.320f. 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, including zoning regulations, which direct the individual landowners. Viking Properfies v. Holm, WA Supreme Court Docket 75240-1, decided Aug. 18, 2005; Rew 36.70A.030(7); Cougar Mountain Assocs. v. King County, )1 I 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 decisian in Viking Properties, supra. In the Viking Properties case}", the Caurt stated that the GMHB has n.o autharity ta make such a rule because it amaunted ta 'public palicy' and that the GMA creates .only a general framewark nat 'bright line' rules. In finding that the GMA creates na bright line rules, the Caurt nated that the existence .of a cavenant that predated the enactment .of the GMA allaws tor the lacal jurisdictian ta exercise the braad discretian granted under the GMA. ld. In 1997, the City's Hearing Examiner recammended approval .of the rezane due ta the fact that the R3 zane implemented the Camprehensive Plan's Maderate Density Residential designatian, Despite intervening amendments ta the City's Camprehensive Plan, this dl::signatian has nat changed. The fact that the existing zaning pre-dates the adaptian .of the City's Camprehensive Plan, a plan that has since been amended three times, and the fact that the propasal is cansistent with the gaals and palicies .of the existing Camprehensive Plan, gives credence ta the 'change in circumstances' within the community warranting a rezane .of the property. Except for its sauthern barder, the subject property is campletely surraunded by dense residential and light cammercial develapment. Bath the Camprehensive Plan designation and the surraunding land uses justify the rezane .of the narthern partian .of the praperty. Findings o[Fact No.7, 8,10,18,19, and 20. C, The sauthern portian .of the praperty, Tract B, daes nat carry the Maderate Density Residential designatian but rather an Open Space designatian under the Camprehensive Plan and is bordered by the White River and its assaciated butTer, Rezane .of this portian .of the property ta R3 wauld be incansistent with the Camprehensive Plan, The cammunity's general welfare wauld nat be served by the rezane .of Tract B and public policy wauld nat justifY this rezane, as .open space is currently being preserved and protected far future residents and the environment. Findings of Fact No. 7, 17, and 29. 4. The Hearing Examiner is not recommending any change or modificatian to the rezone. request that wiD result in a more intense zone than the one requested b)' the Applicant. 5. The rezone and Preliminary Plat are consistent with the Comprehensive Plan and other applicable goals and policies ofthe City Council. The Director .of Planning determined that the proposal was cansistent with the Camprehensive Plan. The gaals and policies .of the City Cauncil are embraced in the City's Camprehensive Plan and ACe. A portian .of the subject praperty is designated as Maderate Density Residential .on the City's LUM. The balance .of the property is designated as Open Space on the City's LUM, The recammended rezone .of the property will a1law far 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 I 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 Maderate Density Residential designatian .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 develapment proposal that adequately addresses water, sanitary sewer, and starmwater drainage. Creatian of Tract B and dedicatian to the City provides for .open space and serves the cammunity's general welfare by increasing the City's acreage .of .open space and protecting the steep slape area from erosian which cauld result in increased sedimentatian .of the White River. Althaugh the Applicant has had na cammunicatian with the Auburn Schaal District, due ta the limited size .of the develapment and the requirement ta pay impact fees ta the District, established tees should adequately address the minimal impact the District will incur. Raadways have been canditianed ta provide safe travel lanes; sidewalks must be included ta ensure sate passage far children walking ta and tram schaols and/ar schaal bus staps. Findingl' of 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, ~.'f As canditianed, the Applicants' propasal is in campliance with all related City cadcs and 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 canditians set farth in the MDNS have been incorparated in this recammendatian. Mitigatian mellSures shauld adequately mitigate environmental -impacts, Findingl' of FactNos. 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 ta thraughaut the ACC and are spoken ta directly in Ace 8.12, A public nuisance is something that affects public health and property valucs by creating visual blight, harbors rodents and/ar pests, .or creates unsafe pedestrian and traffic situatians. Campliance with City design standards, such as standards for road safety (width, sidewalks, visibility) will ensure safe pedestrian and tramc access within the develapment. As recammended, the develapment .of a Homeowners' Assaciatian and the assaciated Cavenants, Canditians, and Restrictians will ensure that visual blights and dangers ta public health are reduced/eliminated, thereby promating both general public welfare and protecting praperty values. Findings (J[ Fact Nos. 19, 26, 27. and 28. Findings, Conclusions, and Recommendation Hearings Examiner for the City of Auburn Monte Adams -Rezone/Preliminary Plat Page 16 of 18 RECOMMENDA nON The Hearing Examiner recammends ta the Auburn City Cauncil DENIAL of a rezone tram Rural Residential ta Duplex Residential .of the sauthern partian .of the subiect property, appraximatelv 6.2 acres. The Hearing Examiner recommends ta the Auburn City Council APPROVAL of a rezone fram Rural Residential and Residential Mabile Home Park to Twa- Family (Duplex) Residential .of anlv the narthern partian .of the subiect propertv, approxirnatelv 6.8 acres, and APPROVAL of the Preliminary Plat far "Adams Vista:' a single-finnily residential subdivisian, subject ta the fallawing canditians: I. Appraval .of the prapased Preliminary Plat is canditianed upan the approval orthe requested rezane (Rezone Applicatian Na, REl04-0006), changing the zoning designation from Rural Residential (RR) and Residential Mabile Harne Park (RMHP) ta Two-Family (Duplex) Residential (R3), "~. 2, In .order ta ensure the accurate placement .of hames/structures in relatianship ta the setbacks required fram praperty lines, easements, .or ather similar features assaciated with a lat, the City's Building Offieial may require that all applicable earners .of the structure be surveyed and staked priar ta the pauring .of faatings .or faundations. 3, The structures lacated an Lats 2 thraugh 8 must be served by a grinder pump unit ta provide sanitary sewer service as approved by the City's Sanitary Sewer Engineer. This requirement shall be nated an the Final Plat. 4. The City shauld accept dedicatian .of Tract B, the slaped hillside, as a sensitive .open space, The tract shauId be publicly dedicated and protected by a Native Grawth Canservatian Easement (NGCE) ta ensure its pratectian. If accepted, Applicant must provide the City with an access easement across Lat 8 or the boundary between Tract B and Lot 8 must be adjusted ta provide Tract B frontage anta the new public street, proposed as 26th Street SE, ta pravide public access. If the City daes nat accept dedicatian. .of Tract B, the prope11y will still be encumbered by a Native Growth Conservatian Easement. 5. The Preliminary Plat shall be revised ta meet the City's Design and Canstructian Standards - Sectian 10.01.3.1 and Section 10.01.3.4. These twa sectians require that the project's public and private street segments shall be designed ta the lacal street standard that mast closely reflects their intended use. As determined by the City Engineer, the applicable standard wauld be the "Lacal Residential Street" standard which requires a 28-faat wide roadway, The "Local Residential Street" standard wauld ensure that .one side .of the street daes nat permit parking and is designated as a fire lane, The internal road system, both public and private, shall have a sidewalk an at least .one side .of the street to provide sate walking passage far schaal children, Findings, Conclusions, and Recommendation Hearings Examiner for the City .of Auburn Monte Adams -Rezone/Preliminary Plat Pagcl7ofl8 6, Priar ta the issuance .of grading, land clearing, .or any permits tor ground disturbing activities, the Applicant shall retain a professianal archaeolagist to prepare a Cultural Resaurce Assessment Repart and provide a capy ta thc City and ta the Muckleshaat Indian Tribe. The project shall implement the recammendatians .of the Cultural Resaurce Assessment Repart as determined by the Planning Directar. 7. All mitigating canditions set farth in the Final Mitigated Determinatian of Nan- Significance, issued an July 20, 2005. for the rezane .of the property and the propased plat are incarporated inta this recommendatian and shall be adhered ta. 8. A Hameawners Assaciatian shauld be created, Propased Canditians, Cavenants. and Restrictians (CC&Rs) far the Hameawners' Assaciatian shall be submitted far review and approval by City Staff prior ta final plat approval. Decided this n day .of September, 2005, ~; es Drisca II arings Examiner far the City .of Auburn Findings, Conclusions, and Recommendation Hearings Examiner for the City of Auburn Monte Adams -Rezone/Preliminary Plat Page 18 of 18 EXHIBIT 'B' BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN In the Matter .of the Applicatian of ) ) Monte Adams ) ) ) Far Preliminary Plat ) ) ) NO. REZ04-0006 PL T04-0008 Adams Vista Plat RESPONSE TO REQUEST FOR RECONSIDER/\ TlON BACKGROUND Mante Adams, represented by Hans Korve .of DMP Inc. (Applicant), requested approval .of a rezane .of .one parcel afland, approximately 13,14 acres, from Rural Residential and Residential Mabile Hame Park designatian ta Residential Duplex (R3), As a part .of the request, the Applicant saught approval .of a preliminary plat subject ta the new zaning standards. The plat wauld divide the parcel inta 8 lats for future single-family residential develapment, an .open space tract!, and twa privately awned and maintained tracts tll!' access and utilities, The subject property is lacated within the city limits .of Auburn, sauth .of Auburn Way Sauth and east .of Hemlack Street. An .open record hearing was held befare the Hearing Examiner .of the City of Auburn on August 16, 2005, Eight individuals testified at that hearing and 50 exhibits were admitted, FalIawing a review .of the testimany and exhibits, and based an the criteria established by the City Cauncil, an September 14,2005 the Hearing Examiner issued a recammendatian far approval .of a rezane far .only the narthern 6.8 acres .of the property and approval .of the preliminary plat. Denial was recammended far the rezane far the sautheID 6.2 acres. The Hearing Examiner's recammendatian had eight canditians. The City .of Auburn issued the Hearing Examiner's recammendatian to the public on September 21, 2005. On September 28, 2005, Ms. Frary Breckenridge, through her attarney Ms, Jane R. Kaler, filed a Request far Recansideratian .of the Hearing Examiner's recammendatian. The Applicant submitted a response ta Ms, Breckenridge's request an Octaber ] 1, 2005. REQUEST Ms, Breckenridge testified at the open record hearing and submitted several dacuments that were admitted inta the record. (Exhibits 21. 41, 41A. 418. 41C, and 44), Her Request far Recansideratian references the geatechnical repart cammissianed by her (Attachment 5, previously entered into the record as Exhibit 41 A) and issues raised at the priar hearing. The request further seeks ta admit new evidence - Repart of Rabin W. Williams, cansulting arbarist, dated August 30, 2005, including Attachments I. 2, and 3; and Statements .of Mark J. Jacabs, PE, PTOE .of Jakes Traffic Engineering lnc.. including I Applicant has proposed that the open space tract be dedicated to the City of Auburn. Request far Recansideratian Mante Adams - REZ04-0006, PL T04-0008 Attachment 6, (Request for Reconsideration. page 2). The request alleges that the Hearing Examiner's decisian needs ta be "slightly altered" because the decisian: (1) daes nat adequately protect trees lacated on Ms. Breckenridge's property. (2) daes not recagnize that alternatives exists which wauld provide a safer right-af-way access ta the propased plat; and (3) daes nat protect the stability .of the sauthern facing banks .of the White River. The request clases with a plea that the Hearing Examiners decisian be "changed" in .order to mitigate the stated adverse effects and ""pramate Ihe safety and canvenience .of the public," RESPONSE TO REQUEST Pursuant ta Auburn City Cade (ACC) 18.66.150, a Request far Reconsideratian must be received "within seven days after the written decisian .of the examiner has been rendered," 2 Althaugh the Hearing Examiner rendered his recammendatian an bath of the applicatians an September 14, 2005, carrectians were required due ta a scribner's errar and the corrected recommendatian was submitted ta the City a few days later. The City issued the Hearing Examiner's recammendatian ta the public an September 21, 2005, Ms. Breckenridge's request was received by the City .of Auburn Planning Department an September 28, 2005, Therefare, the Hearing Examiner finds that Ms, Breckenridge's request was timely filed. The request filed by Ms, Breckenridge seeks ta submit new evidence f()r the Hearing Examiner's cansideratian, namely the arbarist's repart (Auachment 1) and the apinian .of a traffic engineer3 (Request for Reconsideration. Page 2). Pursuant ta ACT 18.66.150, new evidence may .only be cansidered if the evidence "cauld nat [have been] reasanably available at the priar [public] hearing." The evidence that Ms. Breckenridge seeks ta rely an is .of a type that cauld have been reasanablyavailable at the time .of August 16'11 hearing .or is evidence that the Hearing Examiner has already cansidered 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 pro.vided within 10 calendar days of the exa'miner'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 infonnation requested, \vh ichever 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 far Recansideratian Mante Adams - REZ04-0006, PLT04-0008 J his recammendatian, Submissian .of all new evidence is theretore nat proper and is denied, The Hearing Examiner daes, hawever, recagnize that Ms. Breckenridge's concerns are primarily based an patential impacts ta trees an her praperty, due either ta constructian of the right-af-way .or remaval .of trees an Mr. Adams property, and slape slability. These cancerns were raised at the priar hearing (see findings .of fact Nas. 8, II, 12, 13, 15, 16, and 24) and were evaluated in the State Environmental Palicy Act (SEPA) Mitigatcd Determinatian .of Nan-Significance (MDNS) (Exhibi/ 12). The Hearing Examiner has re-evaluated only the evidence submitted at the prior hearing and cancludes that Ms. Breckenridge's cancerns are substantiated by the recard and mitigatian .of the impacts assaciated with these cancerns were nat properly addressed in the Hearing Examiner's recammendatian. The Hearing Examiner cancludes that, due ta priar unpermitted lagging which has campromised the stability .of the steep slape, withaut adequate protectian trees an Ms. Breckenridge's praperty, as well as the adjacent critical area, cauld be adversely affected. This canclusian is supported by several canditians provided far in the MDNS: Canclusian 1 (City ta ensure land is nat develaped in a manner that will significantly increase the patential for slape slippage, landslide, .or erosian); Canclusion 5. (City ta prevent injury to property); Canclusian 6 (City ta retain vegetation); Canclusian 27 (City ta discaurage unnecessary disturbance .of natural vegetatian); and Conditian 19 (requirement far Applicant ta retain certified arbarist and ta protect a tree's critical roat zane), An additional canditian will be recammended to address this issue: The Hearing Examiner concludes that na errar .occurred in regards ta the City's right-at~ way, After reviewing all evidence submitted at the priar hearing, the Hearing Examiner finds that the praposed right-af-way canfarms ta City .of Auburn road standards and that any deviatians .or site specific design will be addressed during the final plat approval. DECISION Based on the abave, the Hearing Examiner decides 'that the canditians of his September 14th Recammendatian shall be madified as fallaws: 1. A new canditian is added ta the approval .of the preliminary plat, Canditian 9, and is ta read as fallaws: Trees ta be retained an the subject property and/ar public right-at~way must be protected during canstructian by fencing lacated at the edge .of the critical root zane, Trees an neighboring properties, whase critical roat zanes extend inta the subject property and/ar public right-af-way, and may be adversely impactcd during canstructian, must be protected by fencing lacated at the edge .of the critical roat zone impacted, Canstructian activities within the critical area zane of any tree, either an-site .or .off-site, must be limited in .order ta preclude or reduce Request far Recansideratian Mante Adams - REZ04-0006, PL T04-0008 , ,1 roat damage. Pratective fencing must be placed as directed by a qualified, professianal farester. In all ather regards, the Hearing Examiner cancIudes that the recard devel oped at the .open record hearing supparts his recammendatian and there was na errar .of procedure, law, fact, .or judgement. Sa ordered this I i r/ day afOctaber 2005. DRISCOLL & HUNTER Hearing Examiner for City .of Auburn By: Request far Recansideratian Mante Adams - REZ04-0006, PL T04-0008 4 EXHIBIT 'C' BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN In the Matter .of the Applicatian .of ) ) Monte Adams ) ) ) For Preliminary Plat ) ) ) ) NO, REZ04-0006 PL T04-0008 Adams Vista Plat RESPONSE TO CITY OF AUBURN'S COMMENTS TO THE REQUEST FOR RECONSIDERA nON BACKGROUND Mante Adams, represented by Hans Karve .of DMP rnc, (Applicant), requested appraval .of a rezane .of .one parcel .of land, approximately 13.14 acres, from Rural Residential and Residential Mabile Hame Park designatian ta Residential Duplex (R3), As a part .of the request, the Applicant saught appraval .of a preliminary plat subject ta the new zaning standards, The plat wauld divide the parcel inta 8 lats for future single-family residential develapment, an open space tract I , and twa privately awned and maintained tracts for access and utilities, The subject praperty is lacated within the city limits .of Auburn, sauth .of Auburn Way Sauth and east afHemlack Street. An .open record hearing was held befare the Hearing Examiner .of the City .of Auburn an August 16, 2005, On September 14, 2005 the Hearing Examiner issued a recommendation far the propasal which was made available ta the public an September 21, 2005. On September 28, 2005, Ms, Frary Breckenridge, thraugh her attarney Ms, Jane R, Kaler, filed a Request far Recansideratian of the Hearing Examiner's recammendatian, The Applicant submitted a respanse ta Ms. Breckenridge's request an Octaber 11,2005, On Octaber 12, 2005, the Hearing Examiner submitted his decisian an the Request. The Hearing Examiner denied Ms. Breckenridge's request ta submit additianal evidence inta the record but amended the September 14 recommendatian ta include an additianal canditian, Canditian 9, The purpase .of Canditian 9 was ta recagnize the propasal's patential impacts ta trees in the area and ta slape stability in the adjacent critical area, REQUEST On Octaber 12, 2005, the City .of Auburn requested clarificatian .of the Hearing Examiner's additianal canditian, The City stated that in .order ta canstruct the city standard roadway far access ta the Adams Vista plat, trees must be remaved and that the canditian refers ta the retentian .of trees within the public right-af-way, The City questianed whether the canditjan mandates that trees within the public right-af-way be retained, The City alsa argued that the additianal canditian refers ta securing the services .of a prafessianal farester and questianed whether this wauld be in additian ta the certified I Applicant has proposed that the open space tract be dedicated to the City of Auburn. Request far Recansideratian Mante Adams - REZ04-0006, PL T04-0008 I arbarist that is required by the Final Mitigated Determinatian .of Nan-Significance (MDNS). RESPONSE TO REQUEST In the review .of the Request far Recansideratian and in determining whether ta amend the priar recammendatian, the Hearing Examiner reviewed the recard and nated the potential impacts ta 'trees an private property and ta slape stability, due either ta canstructian .of the right-of-way .or remaval .of trees an Mr. Adams praperty, The additianal conditian, Canditian 9, was recammended ta address this issue. The City misreads the Hearing Examiner's canditian, Canditian Number 9 states that "Trees to be retained ", must be protected during construction." The canditian daes nat prohibit the remaval .of trees necessary far canstructian .of the city standard roadway. The conditiananly requires that, if the City selects ta retain any trees within the right-af- way, it must ensure the health and integrity .of such trees by protecting their critical raat zanes during canstructian, The Hearing Examiner daes recagnize the canfusian between the verb age "qualified professianal farester" and "certified arbarist", Given that the recammended canditian is intended ta preserve the health and integrity .of retained trees, a certified arbarist is the correct individual ta supervise the placement .of fencing meant ta pratect the critical roat zane areas .of retained trees, DECISION Based an the abave, the Hearing Examiner madifies Canditian 9 by replacing "qualified, prafessianal farester" with "certified arbarist". In all ather regards, the recammendatian afthe Hearing Examiner remains the same, Sa .ordered this day afOctaber 2005. DRISCOLL & HUNTER Hearing Examiner far City .of Auburn James Driscall Request far Recansideratian Monte Adams - REZ04-0006, PLT04-0008 2 BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN In the Matter .of the Applicatian .of ) ) Monte Adams ) ) ) Far Preliminary Plat ) ) ) NO. REZO'4-O'O'O'6 PLTO'4-O'O'O'8 Adams Vista Plat RESPONSE TO REQUEST FOR RECONSIDERATION BACKGROUND . Mante Adams, represented by Hans Karve .of DMP Inc, (Applicant), requested appraval .of a rezane .of .one parcel afland, appraximately 13,14 acres, tram Rural Residential and Residential Mabile Hame Park designatian ta Residential Duplex (R3). As a part .of the request, the Applicant saught appmval .of a preliminary plat subject .ta the new zaning standards, The plat wauld divide the parcel inta 8 lots far future single-family residential develapment, ail .open space tract I , and twa privately awned and maintained tracts far access and utilities. The subject praperty is lacated within the city limits .of Auburn, sauth .of Auburn Way Sauth and east afHemlack Street. An .open recard hearing was held befare the Hearing Examiner .of the City .of Auburn an August 16, 20'0'5, Eight individuals testified at that hearing and 50' exhibits were admitted. Fallawing a review .of the testimany and exhibits, and based an the criteria established by the City Cauncil, an September 14, 20'0'5 the Hearing Examiner issued a recammendatian far approval .of a rezane far .only the narthern 6,8 acres .of the property and approval .of the preliminary plat. Denial was recammended far the rezane for the sauthern 6,2 acres. The Hearing Examiner's recammendatian had eight conditians. The City .of Auburn issued the Hearing Examiner's recommendatian ta the public an September 21, 20'0'5, On September 28, 20'0'5, Ms. Frary Breckenridge, thraugh her attarney Ms, Jane R. Kaler, filed a Request far Recansideratian .of the Hearing Examiner's recammendatian. The Applicant submitted a respanse ta Ms, Breckenridge's request an Octaber II, 20'0'5. REQUEST Ms, Breckenridge testified at the .open recard hearing and submitted several dacuments that were admitted inta the record. (Exhibits 21, 41, 41A, 41B, 41C, and 44). Her Request far Recansideratian references the geatechnical repart cammissianed by her (Attachment 5, previously entered into the record as Exhibit 41A) and issues raised at the .prior hearing, The request further seeks t\>. admit new evidence -.Repart .of R.obin W..' Williams, cansulting arbarist, dated August 30,'20'0'5, including Attachments 1,2, arid 3; and Statements .of Mark J, Jacobs, PE, PTOE .of Jakes Traffic Engineering Inc., including I Applicant has proposed that the open space tract be dedicated to the City of Auburn. Request far Recansideratian Monte Adams - REZO'4-O'O'O'6, PL TO'4-O'O'O'8 I Attachment 6, (Request for Reconsideration, page 2). The request alleges that the Hearing Examiner's decisian needs ta be "slightly altered" because the decisian: (1) daes nat adequately protect trees lacated on Ms. Breckenridge's praperty, (2) daes nat recagnize that alternatives exists which wauld provide a safer right-af-way access ta the propased plat; and (3) daes nat protect the stability .of the sauthern facing banks of the White River. The request c1ases with a plea that the Hearing Examiner's decisian be "changed" in .order ta mitigate the stated adverse effects and "promate the safety and canvenienc.e .of the public." RESPONSE TO REQUEST . Pursuant ta Auburn City Cade (ACC) 18.66,150, a Request far Reconsideratian must be . received "within seven days .after the written decisian .of the examiner has been rendered." 2 Althailgh the Hearing Examiner rendered ..his :recommendatian on bath .of the applicatians an September 14, 2005, carrections were required due ta a scribner's errar and the carrected recammendatian was submitted ta the City a few days later. The .City issued the Hearing Examiner?s recammendation ta the public an September 21, 2005. Ms. Breckenridge's request was received 'by the City .of Auburn. Planning Department an September 28, 2005,' Therefare, the Hearing Examiner finds that Ms. Breckenridge's request was timely filed, The request filed by Ms, Breckenridge seeks ta submit new evidence far the Hearing Examiner's cansideratian, namely the arbarist's repart (Attachment 1) and the apinian .of a traffic engineer3 (Request for Reconsideration, Page 2), Pursuant ta ACC 18,66,150, new evidence may .only be considered if the evidence "cauld nat [have been] reasanably available at the priar [public] hearing." The evidence that Ms. Breckenridge seeks ta rely an is .of a type that cauld have been reasanably available at the time .of August 16th hearing .or is evidence that the Hearing Examiner has already cansidered 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 A1v1L Geotechnical Services Inc.' s report, a document that was submitted into the record at the prior hearing as Exhibit 4lA Request for Reconsideratian Mante Adams - REZ04-0006, PLT04-0008 2 his recammendatian. Submissian .of all new evidence is therefare nat proper and is denied. The Hearing Examiner daes, hawever, recagnize that Ms. Breckenridge's cancerns are primarily based an patential impacts ta trees an her praperty, due either ta constructian .of the right-af-way or remaval .of trees an Mr. Adams property, and slape stability, These cancems were raised at the priar hearing (see Findings .of Fact Nas, 8, II, 12, 13, 15,16, and 24) and were evaluated.in the State Enviranri1entalPalicy Act (SEP A) Mitigated Determinatian .of Nan-Significance (MDNS) (Exhibit i2). The Hearing Examiner has re-evaluated .only the evidence submitted at the priar hearing and cancludes that Ms, Breckenridge's cancerns are substantiated by the record and mitigatian .of the impacts assaciated with these cancerns were nat praperly addressed in the Hearing Examiner's recammendatian, The Hearing Examiner cancludes that, due ta prior unpennitted lagging which has comptamised the stability .of the steep slape, withaut adequate pratectian trees on Ms, . Breckenridge's properly, as well as the adjacent critical area, could be adversely affected, This canclusian is supparted by several canditians provided far in the MDNS: Canclusian I (City ta ensure land is nat develaped in a manner that will significantly increase the patential for slape slippage, landslide, .or erosian); Canclusian 5 (City ta prevent injury ta property); Canclusian 6 (City ta retain vegetatian); Canclusian 27 (City ta discaurage unnecessary disturbance .of natural vegetatian); and Canditian 19 (requirement far Applicant ta retain certified arbarist and ta protect a tree's critical root zane), An additianal canditian will be recommended ta address this issue. The Hearing Examiner cancludes that na errar .occurred in regards ta the City's right-af- way, After reviewing all evidence submitted at the priar hearing, the Hearing Examiner finds that the propased right-af-way canfarms ta City .of Auburn road standards and that any deviatians .or site specific design will be addressed during the final plat approval. DECISION Based an the abave, the Hearing Examiner decides that the conditians .of his September 14th Recammendatian shall be madified as fallaws: 1. A new canditian is added ta the approval .of the preliminary plat, Canditian 9, and is ta read as fallaws: Trees ta be retained an the subject properly and/ar public right-af-way must be protected during canstructian by fencing lacated at the edge .of the critical roat zane, Trees an neighbaring properties, whase critical raat zanes extend inta the subject property and/ar public right-af-way, and may be adversely impacted during constructian,. must be pratected by fencing lacated at. the edge .of the. critical roat zane impacted, 'Canstructian activities Within the critical area zane .of any tree, either an-site .or .off-site, must be limited in .order ta preclude .or reduce Request far Recansideratian Monte Adams - REZ04-0006, PL T04-0008 3 roat damage, Protective fencing must be placed as directed by a qualified, professianal farester, In all ather regards, the Hearing Examiner cancIudes that the recard develaped at the .open recard hearing supparts his recammendatian and there was na errar .of pracedure, law, fact, .or judgement. So .ordered this day .of October 2005. PRISCOLL & HUNTER Hearing Examiner far City of Auburn By: James Driscall Request far Reconsideratian Mante Adams - REZ04-0006, PLT04-0008 4 EXHIBIT D LEGAL DESCRIPTION REZ04-0006 All of Government Lot 1, Section 28, Township 21 North, Range 5 East, WM in King County, Washington; EXCEPT the north 199.9 feet of the west 192.75 feet thereof.