BEFORE the HEARING EXAMINER of the  

CITY of LAKE FOREST PARK

DECISION

INTRODUCTION

George & Alyssa Petrie (the Petries) filed a Reasonable Use Exemption (RUE) application pursuant to Chapter 16.26 Lake Forest Park Municipal Code (LFPMC) on April 3, 2000. Exhibits 1 and 2-9) The Lake Forest Park Planning Department (Planning) deemed the application to be complete as of May 30, 2000. (Exhibit 1) The Lake Forest Park Hearing Examiner (Examiner) held an open record hearing on the original application on December 14, 2000. Planning gave notice of the hearing as required by the LFPMC. (Exhibits 42 - 44) On December 26, 2000, the Examiner Denied Without Prejudice the original application. (Exhibit 59)

The Petries filed an amended application on January 29, 2001. (Exhibits 64 - 68) Notices of Amended Application were issued on March 1 and 2, 2001. (Exhibits 61 - 63) The Examiner held an open record hearing on the amended application on March 20, 2001. Planning gave notice of the hearing as required by the LFPMC. (Exhibits 61 - 63)

The subject property is located at 165XX 30th Avenue NE in the southwest quarter of Lake Forest Park. The Examiner viewed the subject property on March 20, 2001, prior to the second hearing.

Testimony under oath was presented at the second hearing by:

The following exhibits were offered and admitted:

The action taken herein and the requirements, limitations and/or conditions imposed by this decision are, to the best of the Examiner's knowledge or belief, only such as are lawful and within the authority of the Examiner to take pursuant to applicable law and policy.

ISSUES

Does the application meet the criteria for RUE approval as established within the LFPMC?

This application was again opposed by all but one (Anderson) of the witnesses. The positions of all witnesses have been considered, although again most will not be addressed in detail in this Decision. The Decision is based upon the facts introduced into evidence and the requirements of the LFPMC. Only the amended application is evaluated in this Decision.

FINDINGS OF FACT

PRINCIPLES OF LAW

Authority

A RUE is a Type I application, subject to an open record hearing before the Examiner who makes a final decision on the application, subject to the right of appeal to Superior Court. [LFPMC 16.26.030(A), .100, and .110]

A Type I application that complies with the applicable decision criteria shall be approved; provided, that the examiner may modify or condition a proposal to ensure conformity with the relevant decision criteria.

[LFPMC 16.26.110(A)]

Review Criteria

The review criteria for a RUE are set out at LFPMC 16.18.080(A):

If the application of this chapter would prohibit a development in a sensitive area, an exemption may be granted in accordance with ... the criteria specified below; provided, that the [Examiner] may also consider documents submitted pursuant to the State Environmental Policy Act and mitigation measures recommended in conjunction therewith, as well as other factors demonstrating minimization of impact on sensitive areas, all as part of consideration of whether the reasonable use exemption should be granted. All of the following criteria must be met before a reasonable use exemption may be granted:

1.          Application of sensitive areas requirements would deny all reasonable use of the property.

2.          There is no other reasonable use with less impact on the sensitive area.

3.          The proposed development does not pose an unreasonable threat to the public health, safety, or welfare, on or off the proposed site and is consistent with the general purposes of this chapter and the comprehensive plan.

4.          Any alteration to the sensitive area or associated buffer shall be the minimum necessary to allow for reasonable use of the property.

5.          Any authorized alteration of a sensitive area under this subsection shall be subject to conditions established by the city and shall require mitigation in accordance with a mitigation plan approved by the city.

Vested Rights

RUEs are not subject to statutory vested rights. The vested rights doctrine would likely apply to RUE applications because of their similarity to both conditional use permits and shoreline management permits:

"Washington does adhere to the minority rule that a landowner obtains a vested right to develop land when he or she makes a timely and complete building permit application that complies with the applicable zoning and building ordinances in effect on the date of the application. Our vested rights rule also has been applied to building permits, conditional use permits, a grading permit, and a [shoreline management] substantial development permit." [Norco Construction V. King County, 97 Wn.2d 680, 684, 649 P.2d 103 (1982), citations omitted]

Therefore, this application is vested to the regulations as they existed on May 30, 2000. 

Standard of Review

The standard of review is preponderance of the evidence. The Applicant has the burden of proof

DISCUSSION

The current proposal is vastly improved over the proposal which was before the Examiner in December, 2000: A specific plan has been prepared; steep slope impacts have been quantified; impact areas have been more precisely delineated; conflicting information has been removed from the plan.

One reality remains, however: This is a speculative plan. While the Examiner wondered about the speculative nature of the proposal in the December Decision, George Petrie's testimony in the current hearing removes all doubt. In all likelihood it will not be the Petries who develop the property. The Petries' stated intent is to sell the property.[6] No one can say for certain what a future buyer will want to build. No one can say that a prospective buyer will want to build a house with as much size, floor level difference, or the configuration as is shown on the proposed plan.

Does such a reality bar approval of the Petries' proposal? The short answer is No. The Petries' proposal must be considered on its own merits. A RUE is issued for a specific proposal. If a subsequent owner wants to undertake a substantially different development, that owner will have to seek modification of the approved RUE. Evaluation of a modification request would also be made on its own merits: Approval of the current proposal offers no certainty that a revised proposal with different or greater impacts would ever be approved.

The RUE concept is misunderstood by some of the commenters. (Exhibits 27, 52, and 80 for example.) Some residents believe that no exceptions to Lake Forest Park's EnvSAs should ever be allowed: The regulations are for the good of the community and should be uniformly applied. While that belief is presumably grounded in well-meant civic interest, it does not account for the legal framework within which Lake Forest Park may regulate the use of land and which Lake Forest Park has created.

If the City (or any municipality, for that matter) adopts regulations which make it impossible for a person to make a reasonable use of their land, the municipality may be liable for a "taking" of private property without compensation. While the "takings" issue is very complex, the bottom line is that City regulations generally cannot be implemented so as to deprive a property owner of all use of his or her property.

The EnvSAs recognize this legal requirement by providing for the RUE. The express purpose of the RUE is to avoid a taking by minimally relaxing the strict application of the regulations to allow a reasonable use of the property. Even if a RUE is denied, the LFPMC requires that the landowner seek to obtain a variance from the restrictions before initiating "takings" claims in court. [LFPMC 16.18.080(D)] Approval of a variance would have the same effect as approval of the RUE: The regulations would not be strictly implemented.

Exhibit 80 cites a Rhode Island Supreme Court case [Palazzolo V. Rhode Island, 746 A.2d 707 (2000)] for the proposition that a person acquiring property after regulations are adopted which restrict its development potential has no grounds to allege a taking. (The Palazzolo case is now before the U.S. Supreme Court on appeal. (Cause No.99-2047) The Supreme Court heard oral arguments in February, 2001. No decision has yet been issued.) Rhode Island's Palazzolo decision is not dispositive case law in Washington. Further, even if it were, the Lake Forest Park statute expressly provides an opportunity for a person to seek relief from EnvSA restrictions. The right to seek a RUE was a part of the LFPMC when the Petries bought the property. They have, under Lake Forest Park's code, as much right to seek a RUE as does any other property owner. Nothing in the LFPMC restricts applicability of the RUE process to persons holding title to land on the date that the EnvSA provisions became effective.

At least one opponent suggested that approval of a RUE would be contrary to the City Council's intent in the enactment of Chapters 16.16 and .18 LFPMC. The intent of a legislative body is relevant only where its enactment is ambiguous. Where an enactment is unambiguous, the content of the enactment controls. The provisions of the LFPMC at issue in this application are not ambiguous. The provisions control the decision process.

Some opponents have also argued that a smaller building would serve to reduce environmental impacts, notably storm water. While it is likely true that the amount of storm water runoff from the lot, and thus the impact from that runoff, is roughly proportional to the amount of impervious area within the lot, it is not true that storm water runoff minimization can be a driving force in the analysis of this RUE. Lake Forest Park regulates storm water runoff through Chapter 16.24 LFPMC. The Petries do not seek any relief from the provisions of that chapter. Therefore, the Petries, like every other property owner in Lake Forest Park' must comply with that chapter. The "minimization of impact on sensitive areas" mentioned in the preamble to the RUE criteria means minimization of impact to the sensitive areas for which a RUE is sought. It does not mean minimization beyond that required by the LFPMC for matters for which no RUE is sought. The Petries have no more nor any less right than any other property owner in Lake Forest Park to "impact" the environment to the extent allowed by the provisions of the LFPMC.

Staff committed no fatal procedural errors in preparing this amended application for hearing. Exhibit 79 alleges that staff violated several portions of LFPMC 16.26.040. The first allegation is that staff was tardy in issuing the Notice of Application (which was combined with the Notice of Hearing). The code requires issuance of the Notice of Application "within 14 calendar days of issuance of the notice of complete application". [LFPMC 16.26.040(D)(1)] The City issued no notice of complete application for the amended application. Under LFPMC 16.26.040(B)(1), an application for which no notice of complete application is issued is "deemed complete as of the end of the twenty-eighth day." The amended application was filed January 29, 2001. The 28th day thereafter was February 26, 2001. The combined Notice of Application/Notice of Public Hearing was issued March 1 and 2, 2001, three and four days later. No procedural violation occurred.

Exhibit 79 next alleges that staff violated LFPMC 16.26.040(E)(1) because less than 14 days elapsed between the date the Notice of Application/Notice of Rearing was published and the date that the staff issued its report. The alleged harm is that the public was deprived of an adequate time in which to submit comments. Section 16.26.040(E)(1) reads in full as follows:

The notice of application shall be subject to a minimum comment period of 14 calendar days from the date of publication. The code administrator's recommendation or decision will not be issued prior to the expiration of the comment period.

The very next code subsection allows staff to "accept and respond to public comments at any time prior to the closing of the public hearing record." [LFPMC 16.26.040(E)(2)] Ten days notice of the open record hearing for a Type I application is required. [LFPMC 16.26.080(B)] The combined Notice, which stated that

Staff will consider all written comments submitted by March 13, 2001 when developing a recommendation to the Hearing Examiner. Additional written comments may be submitted for review by the Hearing Examiner and must be received by 5:00 p.m., March 19, 2001 or during the public hearing.

was published on March 1, 2001. (Exhibit 61) A harmless technical violation of LFPMC 16.26.040(E)(1) occurred: The stated comment period was less than 14 days. However, the Notice clearly stated that citizen comments could be submitted up to and through the close of the open record hearing which was held 19 days after issuance of the Notice. The public had more than the code-required period to submit comments prior to the open record hearing. No one's right to participate in a meaningful way was harmed.

Exhibit 79 then alleges that the Notice was inadequate because it did not disclose that the RUE covered more than just steep slopes. The author alleges that the RUE also covers wetlands and landslide hazard areas. George Petrie has testified under oath in both hearings that the application seeks no relief from the wetland requirements of the LFPMC. Relief from wetland requirements of Chapter 16.18 LFPMC is not and never has been part of this application. Mention within record documents of wetland impacts and wetland impact mitigation is not indicative of a request for relief from wetland regulations. As far as landslide hazard areas are concerned, the definitions are overlapping (See LFPMC 16. 16.030(G)(2)(d) and .030(N).) and the development restrictions are essentially identical. The type of relief sought by the Petries in this RUE application has been clearly stated in all hearing notices.

CONCLUSIONS

  1.          A RUE application must meet all five criteria of LFPMC 16.18.080(A) to be approved. Failure to meet any one or more of the criteria requires denial of the application.

 2.          The basic facts in the record, summarized in the Findings of Fact, above, lead to a number of ultimate facts: The small "plateau" area in the south-central portion of the site is the only area on site where a single family residence could be constructed without severe impact to the site's steep slopes or wetlands; the proposed access road alignment is the only way to get to that area; regrading/raising the existing access road is required to achieve an acceptable driveway grade; raising the existing driveway grade will allow the SF of the adjacent slopes to be improved; the SFs are within the acceptable range; the current conceptual plan requires deep excavation into protected steep slope areas and will result in very unusual floor level differences; the current conceptual plan requires disturbance over the crest of the lower, eastern slope; the approved drainfield is adequate for up to a six bedroom house; a house with fewer bedrooms would require a smaller drainfield; discharge of storm water onto the face of the slope would be destabilizing; and a 3,743 square foot building footprint is much larger than that of most, if not all, neighboring residences. We do not know from the record evidence whether the effect of sewage disposal from a six bedroom house on slope stability has been studied by any scientific method. These ultimate facts guide the Conclusions which follow.

  3.          The Petries' current application meets Criterion 1. The site is fully encumbered by wetland, wetland buffer, steep slope/landslide hazard area, and steep slope/landslide hazard area buffer. The restrictions applicable to such areas are such as to deny any use allowed by the RS-20 zoning.

  4.          The Petries' current application still does not but can meet Criterion 2. The proposal put forth here is still not a reasonable one with the least possible impact to the steep slopes. (And slopes are the concern here, not wetlands: The Petries have stated that they will comply with all wetland regulations.) The current proposal has a building footprint three to four times the size of buildings in the surrounding area. Given that the proposal contemplates at least a two story structure, its floor area would be at least two times larger than its footprint. It requires cuts into the protected slopes of up to 18 feet, requires grading over the ridge of the lower east facing slope, and creates a dwelling with a 25 foot elevation difference between the garage and the first floor of the larger part of the house. A more modest building footprint for one single family residence located in a less sensitive area of the site should be able to meet this criterion.

  5.          The Petries' application does not fully meet Criterion 3.

  A.         No evidence exists that the proposal would harm public safety. However, the current proposal will result in substantial excavation into the 40%+ slopes on the site. The purposes of Chapters 16.16 and 16.18 LFPMC include preservation of the quality of the environment and minimization of impact to the environment. [LFPMC 16.16.020 and 16.18.020] Such excavation, where alternative areas with less impact exist, is clearly contrary to the purposes of the LFPMC. The stated desire to minimize the amount of structural fill that would have to be imported to create an acceptable road grade is an unacceptable justification for extensive excavation into the steep slopes. The Petries' evidence is that the site's slopes are inherently, if only marginally, stable. By their own consultant's testimony, that means that the slopes, if not disturbed, are safe. According to their consultant, the slopes do not have to be dug out to make them safe.

B.         The impact of sewage disposal on slope stability and integrity is frankly unknown. The evidence indicates that the Health Department does not analyze that factor: Its concern is existence of an acceptable percolation rate. The evidence indicates that the Petries' geotechnical consultant never investigated that issue, either. Technical certainty prior to initiation of construction is necessary to ensure protection of public health.

6.          The Petries' current application still does not but can meet Criterion 4. It is clear that a smaller building footprint would require less excavation into the steep slopes. In fact, a very reasonably sized residence could be constructed without intruding into the actual steep slope areas at all (except for the access driveway). No reason exists in the record to explain why a smaller residence could not be built on the plateau without the extensive foundation excavation necessary where the building is now located. The RUE standard does not require that the property owner end up with a use that is proportional to that of property owners whose properties are not encumbered by EnvSAs. The Petries are entitled to a reasonable use, not to a proportional use. If the residence were relocated and sized to the buildable area of the lot, its impact would be lessened and the criterion would be met.

7.          The Petries' current application can meet Criterion 5. This criterion relates to mitigation for disturbance of the sensitive area for which the RUE is granted. In this case, that means mitigation for disturbance of steep slopes and steep slope buffers. The Petries have proposed specific mitigation for the impacts to the steep slopes which their project will cause. That mitigation and other appropriate conditions can be imposed on approval of the RUE. (Mitigation for wetland impact is irrelevant to this RUE: The Petries seek no relief from wetland requirements of the LFPMC. Mitigation for wetland impact will be determined in accordance with the LFPMC when a building permit/grading/development application is submitted.)

8.          At this point in the prior Decision the Examiner concluded that "The Petries' application is not ripe for approval. The site requires issuance of a RUE. The problem here is that the plan submitted is too vague to allow performance of the required analysis." (Exhibit 59, p.10, Conclusion 8) The situation is different this time because the Petries have submitted more detailed plans which allow correction of the identified deficiencies. For example, the footprint of the basic "cross bar" is 67' x 34' which covers 2,278 square feet. Sufficient room, at least 25 feet, exists to the west of the current proposed location of the cross bar to shift the cross bar 25 feet to the west and place the garage under it (the grade change easily would accommodate such an arrangement). Such a shift would require minimal excavation, would not undercut the slope to the west, and would eliminate the need to work over the edge of the lower, east facing slope, the one with the lowest SF. (See Exhibit 82, "Preliminary Alignments "B" and "C".) A 2,500 square foot building footprint, with a garage under and the possibility of a second story, would provide a most reasonable dwelling size for such an extremely slope-impacted parcel.

9           The Examiner recognizes that a distinction needs to be made between level of detail in land use plans as opposed to construction plans. For example, a land use permit need not concern itself with engineering details and specifications. Those engineering details will be necessary before any development permit can be issued for this lot.

10.        The recommended conditions of approval as set forth in Exhibits 1 and 76 are reasonable, supported by the evidence, and capable of accomplishment with the following exceptions:

  A.         The RUE should be limited to a smaller building footprint than proposed. The location of that footprint should be slightly west and south of the proposed location. No grading over the crest of the lower east facing slope should be allowed (except as minimally necessary where the access road passes into and up that slope). Such a condition will be added.

  B.         Recommended Condition 2 (incorporating the Exhibit 66 mitigation plan) needs to be refined. Exhibit 66 includes mitigation for wetland and wetland buffer impact as well as mitigation for steep slope impact. Only the latter needs to be made a part of this RUE approval.

  C.         Recommended Condition 3 (requiring preservation of undisturbed sensitive areas, including wetlands, through designation of separate tracts encumbered by native growth protection easements) also addresses matters not within the scope of this RUE. Protection of wetlands is subject to Chapter 16.lg LFPMC, not subject to this approval. No wetland conditions need be imposed since no RUE is sought related to wetland requirements.

  D.         Recommended Condition 4 (stating that all development is subject to all Lake Forest Park codes) is unnecessary. Development within Lake Forest Park is, essentially by definition, subject to municipal codes. No special condition is necessary. While a statement in the record to remind an applicant of that fact is often appropriate, a condition to that effect is not.

  E.         Recommended Condition 5 (requiring a southerly shift if public sewer service becomes available prior to site development) is highly appropriate. The only justification for placing the building footprint as far north as presently contemplated is the need to preserve the on-site sewage disposal drainfield. If that need no longer exists, then the residence should be located further south where it will have even less impact on the steep slopes. The condition should indicate that if relocation would not intrude further into the steep slope areas, only administrative approval would be required.

  F.         Recommended Condition 6 (barring excavation solely to obtain fill for the driveway regrading) should be strengthened. As written, it refers only to the 600 cubic yard shortfall in the Petries' present proposal. The condition should bar any excavation on site solely for the purpose of obtaining fill.

  G.         Storm water control is not an issue of concern so long as runoff is not discharged over the face of the slope. Development of the site will have to comply with all Lake Forest Park storm water control requirements. This project is no different from any other project in that regard. Approval will be conditioned, however, to prevent discharge of drainage water on the face of the steep slope, an action which would likely destabilize the slopes.

  H.         A detailed geotechnical report must be prepared prior to any site development. The geotechnical reports in the hearing record are preliminary only. (One, Exhibit 5, addresses a hypothetical, undefined proposal; the other, Exhibit 65, addresses a conceptual plan which is not being approved.) The site is too sensitive to allow development without proper geotechnical assurances.

 I.          A few minor, non-substantive grammatical and punctuation revisions will improve parallel construction, clarity, and flow within the conditions. Such changes will be made.

  DECISION

Based upon the preceding Findings of Fact, Discussion, and Conclusions, and the testimony and evidence submitted at the open record hearing, the Examiner hereby APPROVES SUBJECT TO THE ATTACHED CONDITIONS the George & Alyssa Petrie Reasonable Use Exception application under file number RUOO­02

Decision issued April 3, 2001.

NOTICE OF RIGHT OF APPEAL

This Decision is final and conclusive. It may be reviewed in Superior Court pursuant to the procedures established by Chapter 36.70C RCW, the Land Use Petition Act. Section 36.70C.040 RCW requires that any appeal be properly filed with the Court within 21 days of the issuance of this Decision. Please refer to Chapter 36.70C RCW for further guidance regarding judicial appeal procedures.

The following statement is provided pursuant to RCW 36.70B.130: "Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation."

CONDITIONS OF APPROVAL

REASONABLE USE EXCEPTION

RUOO-02

1.          This Reasonable Use Exception allows construction of one single family residence on the subject property, together with necessary utility services and access driveway.

A.         The building footprint shall be not larger than 2,500 square feet, including garage.

B.         The building footprint shall be located within that portion of the substantially steep-slope-free area in the southwest-central portion of the site (the "white" area as depicted on Exhibit 67) such that it is as close to the northern edge of the on-site sewage disposal area and reserve area as legally permissible, does not extend over the crest of the lower, eastern slope, and does not extend into the western shaded steep slope area.

C.         No surface water runoff from any source shall be discharged or allowed to run over the face of the lower, eastern slope.

D.         Site disturbance associated with regrading of the access driveway shall be minimized to the fullest extent possible consistent with City code requirements and sound engineering practices. In no event shall driveway regrading disturb more of the site than depicted for that purpose on Exhibit 67 (excluding any disturbance associated with the non-approved location of the garage and dwelling depicted thereon).

E.         The building envelope shall be shifted as far to the south as legally permissible considering zoning setback requirements and other applicable City codes if public sewer service is available to the subject property prior to the date that a complete building permit and/or grading permit application is filed with the City. Such a shift shall not require further open record hearing consideration so long as the footprint remains downslope of the western steep slope area and upslope of the crest of the lower, eastern slope.

F.         No clearing, grading, disposal of spoils, or other disturbance shall occur downslope of the crest of the lower, eastern slope except: as may be allowed by the provisions of City code; and as minimally necessary where the access driveway passes into and up that slope.

G.         No clearing, grading, disposal of spoils, or other disturbance shall occur on any steep slope as defined by Chapter 16.16 LFPMC except as minimally necessary where the access driveway passes into and up such slope.

H.         All development shall comply with the recommendations contained within the detailed geotechnical report required by Condition 2.A, below.

2.          Prior to issuance of any building, grading, or other construction permits:

A.         A detailed geotechnical report for the specific construction proposed shall be submitted to and approved by the City. That report shall provide assurances that the proposed development will result in a safe project in accordance with generally accepted engineering practices. That report shall also evaluate the impact of the proposed on-site sewage disposal drainfield on slope stability. The City may require peer review by a professional geotechnical engineer selected and supervised by the City. The permit applicant shall be responsible for all costs associated with such peer review. The final authority to impose technical requirements to ensure public health, safety, and welfare rests with the City.

B.         A vegetation management plan shall be prepared, submitted to, and approved by the City. The vegetation management plan shall implement all tree replacement, revegetation, and monitoring provisions of the "Sensitive Area Study and Mitigation Plan", Exhibit 66, related to steep slope disturbance.

C.         Steep slope protection tracts as required by Chapters 16.16 and .18 LFPMC shall be established and protected by recorded easements or equivalent encumbrances.

3.          Initial clearing, grading, excavation, and slope stabilization shall be performed during the drier months of the year, normally between April 1 and October 1. The City Engineer may adjust this construction window to account for unusual weather conditions.

4.          No on-site excavation solely for the purpose of acquiring fill is permitted under this Reasonable Use Exception. Materials from excavation within permitted development areas may be used as fill on-site.

5.          This approval shall expire five years after its date of issuance unless actual construction pursuant to a building, grading, or other development permit has begun by that date.