The Lake Forest Park Stewardship Foundation would like to take this opportunity to comment on the Reasonable Use Exemption for the proposed Petrie Residence, per the Notice of Amended Application published by the City of LFP on March 1, 2001.

1. Procedural Errors

There were numerous procedural errors, in the area of Public Notification, committed by the City of LFP in connection with this hearing.

First, LFPMC 16.26.040.D.1 states that

The code administrator shall provide notice of application within 14 calendar days of issuance of the notice of complete application.

This notice is to be by publication in a newspaper as well as by mail to agencies with jurisdiction, owners of real property within 300 feet of the project site, and to other parties.

The record shows that the final addendum of material by the applicant in the process was made on 1/29/2001. The Public Notice was published in the LFP Enterprise on 3/1/2001, 31 days after the application was (apparently) complete. This is contrary to LFPMC 16.26.040.D.1.

LFPMC 16.26.040.E.1 then mandates a public comment period of 14 days after the publication of the Public Notice; the Code Administrator’s recommendation can not be issued prior to this 14 day comment period. The Public Notice published by the City on 3/1/2001 said that the public comment period (for input to the Code Administrator) ended on 3/13/2001, 12 days after the Public Notice was published. This is in violation of LFPMC 16.26.040.E.1.

LFPMC 16.26.040.D.1.b.iii states that the Public Notice must contain a description of “City permits or approvals sought”. The Public Notice states:

The amended application requests relief from the City of Lake Forest Park environmentally sensitive are requirements….The application requests relief from steep slope requirements only.

This is contrary to the applicant’s own materials. The Sensitive Area Study and Mitigation Plan (Exhibit 66) claims, on page 3 in the section entitled “Proposed Mitigation”:

An area of the wetland buffer will be impacted as a result of the grading activity in the area of access to the proposed single family residence

  Also, the Geotechnical Site Evaluation dated Jan. 29, 2001 (Exhibit 65) states, on page 13:

…a storm drain infiltration area will be located in the buffer of the wetlands to dispose of stormwater runoff from the inpervious areas.

The Code Administrator testified in the hearing on 12/14/2000 that, in fact, the application required exemption not only from steep slope requirements, but also from Landslide Hazard requirements. Exemptions from neither landslide hazards nor from wetland buffer requirements were mentioned in the Public Notice, as was required by LFPMC.

The Stewardship Foundation believes that the public has not been given adequate notice for this project, per LFPMC 16.26.040. Notice of completion of the application was not made by the City in a timely manner; an insufficient comment period was provided; and the Public Notice did not accurately state the extent of the Exemptions being sought by the applicant. Therefore this application should be denied due to procedural errors on the part of the City of LFP.

2.      The proposed project does not implement the minimum alteration necessary for reasonable use of the property.

For reference, recall the following provision of LFPMC 16.18.080.A.

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

The applicant proposes to build a house with a footprint of 4607 square feet, 3743 square feet of which is the house itself. (The remainder is the garage). Exhibit 50, a letter submitted by the Stewardship Foundation for the hearing of 12/14/2000, shows the footprints occupied by all of the houses whose lots directly abut the Petrie property. This data shows that the largest adjoining house has a footprint of 1750 square feet.  The next largest adjoining house has a footprint of 1610 square feet. The average foot print of all of the adjoining houses is 1321 square feet.

The applicant proposes to build a house with a footprint larger than the footprints of two largest adjoining houses, combined. The proposed footprint is 2.83 times as large as the average footprint of all of the adjoining houses. The Stewardship Foundation asserts that such a proposal can not possibly meet the requirements of LFPMC 16.18.080.A.4.  A house larger than the next two adjacent houses combined can not, by any stretch of the imagination, be construed as the use with the least alteration to the sensitive area.

Note that if the applicant’s proposal contained proof that a house with a footprint of 4607 square feet required the same alteration to the sensitive area as, say, a house with a 1700 square foot footprint, this argument would be moot. However the application does not provide any such proof; instead, the applicant’s materials proceed from the assumption that a  4607 square foot footprint is required, and site plans proceeded from that assumption. The burden of proof is on the applicant to show that less alteration to the sensitive areas is not possible while still obtaining reasonable use of the property. This proof has not been provided. The application should be denied for this reason.

3.            The proposed project does not cause the least possible impact on the sensitive area for reasonable use of the property.

LFPMC 16.18.080.A states:

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.

Please refer to the Geotechnical Evaluation Report, attached to this letter, perpared by Creative Engineering Options, Inc. Page 6 has a section entitled “In-situ Infiltration Risks”. This section notes:

We understand from our review that this residence, which is significantly larger than a “typical” residence, is to employ an in-place septic “infiltration” system….The infiltration (septic) system will also need to be significantly larger than is ordinarily required for a “typical” residence since it must handle a larger volume of gray water (because of the house size).

The report goes on to describe the result of the fact that, since the applicant’s own materials have identified the in-situ soils as “dense”, then it is likely that the gray water produced by the septic system will flow in a downgrade direction, over steep slopes identified by the applicant’s materials as “marginally stable”. This increases the chance of slope failure on these slopes. Since these slopes are situated directly above a sensitive wetland area, the chance of both erosion resulting from slope failure and also of gray water from the septic system (which flows downgrade due to the dense soils) entering into the wetland is significantly increased – compared to a project with a smaller house and hence a septic system which produces less gray water.

Gray water entering the wetland on this property presents a clear threat to public health and safety downsteam; this wetland is a source of Brookside Creek, which flows though the City and joins McAleer Creek, a documented habitat for the threatened Chinook Salmon.

The applicant claims in his letter of 1/28/2001, page 3, that “The Biologists who have reviewed this site plan and the past site plans have said there is no impact to the environment from this development”. This claim is totally unsubstantiated. The burden of proof is on the applicant to show that the proposed development “does not pose an unreasonable threat to the public health, safety, or welfare, on or off the proposed site”. No offsite analysis has been performed. No study has been made of the effect of gray water entering the wetlands below the development.

The Stewardship Foundation believes that clauses 2 and 3 of LFPMC 16.18.080.A fail to be met by this proposal. A smaller house will result in less gray water produced by the septic field; less gray water will result in less impact on the adjoining sensitive steep slopes, and less chance of contamination of the sensitive wetlands at the toe of those slopes.

  3. Adequate Mitigation has not been proposed.

  LFPMC 16.18.080.A.5 states:

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.

The only mitigation proposed by the applicant (see “Sensitive Area Study”, exhibit 66, page 3) entails replanting of native trees and shrubs. This is intended to mitigate for the impact on wetland buffers and also resulting from the regrading of steep slopes. (No mention is made of mitigation for encroachment on landslide hazard areas.) For one thing, LFPMC 16.18.240.B describes in detail the mitigation required for alteration of a wetland or its buffer: 

1.      The original wetland shape and form shall be replicated, including its depth, width, length and gradients at the original location;

2.      The original soil types and configuration should be restored;

3.      The wetland edge and buffer configuration shall be restored to original condition;

4.      The wetland edge and buffer shall be replanted with native vegetation which recreates the original in species, sizes and densities; and

5.      The original wetland functions shall be restored, including but not limited to hydrologic and biologic functions.  

These requirement clearly are not met by the proposed mitigation plan. How will the proposed mitigation ensure that the original wetland functions are restored? How will the original soil types be restored? The mitigation proposed does not meet LFPMC  16.18.240.B.

Also note that the only mitigation proposed for the regrading of steep slopes is the replacement of the trees which must be removed by the regrading (albeit at a generous 3:1 ratio). Note that even if this were not a sensitive area, LFP’s tree ordinance would require replacement of the trees. The trees are not the sensitive item being impacted – the steep slopes are. Where is the mitigation for impacting the steep slopes?

The Stewardship Foundation asserts that the proposal should be denied on the basis of failing to meet the requirements of 16.18.080.A.5.

4. Summary

In summary, the Lake Forest Park Stewardship Foundation believes that this Reasonable Use Exemption should be denied on the grounds described above.

Respectfully submitted,

Douglas P. Mitchell