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 subject property is located at 165XX 30th Avenue NE in the southwest quarter of Lake Forest Park. 

The Examiner held an open record hearing on December 14, 2000. Planning gave notice of the hearing as required by the LFPMC. (Exhibits 42 -44) 

Testimony under oath was presented 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 opposed by all but one (Hill) of the witnesses. The positions of all witnesses have been considered, although 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. 

FINDINGS OF FACT 

1.         The subject property (Lot 5, Block 1, Miller's Addition to Lake Forest Park (Lot 5)) is located on the west side of 30"' Avenue NE at approximately NE 166"' Street. The roughly rectangular lot varies in east-west dimension from 536 to 613 feet and in north-south dimension from 300 to 349 feet. The lot contains approximately 4.5 acres. (Exhibits 1 and 9) 

2.         Lot 5 is zoned RS-20. (Exhibit 1, p.6) The RS-20 zone allows seven permitted uses: Single family residences, home occupations, accessory buildings, manufactured housing, accessory dwelling units, signs, and Type I day care facilities. [IFPMC 18.16.010] Allowed conditional uses include Type II day care facilities, off-site parking facilities, public and private community facilities, and kennels. [LFPMC 18.16.020 and 18.54.043 - .049] 

3.         Lot 5 exhibits two very different physiographic regimes: An eastern wetland area and a western steep slope. 

A. The eastern 40% (roughly) of Lot S consists of a Category II Palustrine, forested wetland associated with Brookside Creek, a tributary to McAleer Creek. The wetland extends off-site to the north, east, and south. The wetland covers approximately 1.6 acres (36%) of Lot 5. The western edge of the wetland more or less coincides with the toe of the steep slope area to the west. Dominant overstory wetland vegetation is deciduous. Brookside Creek flows southerly across the northeast corner of Lot 5. (Exhibits 1, 3, and 32)

B. The western 60% (roughly) of Lot 5 is a steep, wooed slope which rises from the edge of the wetland for some 110 to 120 feet. Slopes in this area generally range from 40 to over 70%. Dominant overstory vegetation on the slope is coniferous. The slope is formed of dense, compacted sands of glacial and pre-glacial origin. Bedrock is not present at or near the surface. With but one notable exception, the entire western portion of Lot S exhibits slopes above 40%. (Exhibits 3, 5, and 34)

C. The one exception to the general slope range is associated with a logging/haul road and former "borrow" area. An earthen road was constructed part way up the slope approximately 20 or more years ago. The road enters the site along the north edge, crosses Brookside Creek and the wetland on a fill, and traverses the lower half of the slope to a small (approximately 120 x 120 feet square) plateau. The plateau lies approximately 80 feet above the wetland and 30 feet below the western property line. The evidence suggests that some or all of the plateau was created as the result of a borrow pit operation. The road crossing of the wetland was not permitted; no enforcement actions were taken against the prior owner who was responsible for its construction. (Exhibits 5, 8, 15, 49, 50, and 57)

4.         Brookside Creek is salmonid habitat as is McAleer Creek. Unauthorized downstream blockages prevent salmonid usage of the reach crossing Lot 5. The culvert on Lot 5 may also be an impediment to salmonid passage. Local and state organizations are working to remove the downstream blockages. (Exhibits 10, 50, 55, and 57) 

5.        "Steep slope hazard areas" are those areas with slopes of 40% or more and a rise of at least 10 feet, not composed of consolidated rock. [LFPMC 16.16.030(N)] Such areas are also defined as “Landslide hazard areas.” [LFPMC 16.16.03O(G)(2)(d)] Steep slope hazard areas and a 50 foot wide buffer at the toe, sides, and top of the slope are protected by Lake Forest Park's Environmentally Sensitive Areas (EnSAs) regulations. [LFPMC 16.18.210] The only permitted activities within such areas are surface water conveyances, trails, utility corridors, and vegetation trimming. [LFPMC 16.18.210] Category II wetlands and a 50 foot wide buffer are also protected under the EnSAs. [LFPMC 16.18.220] Limited alterations to wetlands and their buffers, not including construction of residences, is allowed. [LFPMC 16.18.230] A 25 foot wide buffer is required adjacent to streams. [LFPMC 16.18.250] 

6.         The entirety of Lot 5 is subject to one or more of the EnSAs restrictions described in the preceding Finding. Brookside Creek is protected. The wetland, together with a 50 foot wide buffer, which extends partly up the steep slope, is protected. The steep slopes, together with a 50 foot buffer, which extends partly into the wetland and which completely covers the small plateau, are protected. 

7.         Lot 5 is undevelopable due to EnSAs' critical area and buffer restrictions. 

8.         The Petries have considered a number of development proposals for Lot 5 over the past couple of years. 

A. Their first proposal was to short subdivide the lot into essentially a north and a south half, constructing a single family residence and an accessory residence on the south half and a single family residence on the north half. (Exhibit 56L)

B. The second proposal was to construct a six-bedroom residence and a two-bedroom accessory residence on the plateau and lower slope area. The Seattle-King County Department of Public Health (Health Department) issued a permit for construction of two on-site sewage disposal systems to serve this proposal. As presented to and approved by the Health Department, the residence was to have a 3,900 square foot footprint[1], including a 900 square foot garage. All but the southerly 15-20 feet of the building would be located on slopes of 40% or more.[2] The garage would require a 4-18 foot cut into the greater than 40% slope; the residence would require a 4-24 foot cut into the greater than 40% slope.[3] The garage elevation would be 10 feet lower than the residence's first floor. The accessory residence would have a 25' x 20' or 500 square foot building footprint and a 1,000 square foot floor area. Up to an eight foot cut into the toe of the steep slope would be necessary for the accessory residence. Two primary and two reserve drainfields were approved. The primary and reserve drainfields for the main residence were to be located along the southern edge of the plateau, separated by approximately 45 feet from the nearest wall of the residence. (Minimum required separation is 30 feet.) The primary drainfield for the accessory residence was to be located immediately down slope of the structure; its reserve area was to be in the far southwest corner of Lot 5. (Exhibit 6) 

C. The current proposal seeks authorization to construct one single family residence having a maximum building footprint of 6,000 square feet on Lot 5. (Testimony) The record contains no plan for this proposal.

9.         The Petries seek RUE from the steep slope regulations of Chapter 16.18 LFPMC. They are not seeking relief from any other provisions of the LFPMC. (Testimony) 

10.       The Petries have submitted a plan for the requested RUE. (Exhibit 9) The submitted plan depicts a banana shaped "Development Area" covering approximately 19,670 square feet of the plateau and adjacent steep slopes. No specific location, size, or configuration is depicted for the residence to be built somewhere within that area. The Development Area is surrounded by a 41,868 square foot "Impact Area" which includes the road out to 30~ Avenue NE. The submitted plan also depicts four septic drainfield areas: "A", located generally where the primary and reserve areas for the main residence are shown on Exhibit 6; "B", located where the primary area for the accessory residence is depicted on Exhibit 6; "C", located where the reserve area for the accessory residence is depicted on Exhibit 6; and "D", a drainfield not depicted at all on the plans approved by the Health Department within Exhibit 6. 

11.       The Petries submitted a geotechnical study addressing slope stability. (Exhibit 5) The analysis and recommendations contained within that study are not development specific. That is to say, they are not based on any particular building plan. Rather, they address general requirements which would be necessary or advisable if development were to impact certain portions of the site. For example, the study discusses the need for extensive slope regrading and establishment of less-steep "buttress fills." However, whether or where such buttress fills would be needed would depend upon where and what was actually constructed, neither of which are known in this application. (Testimony) 

12.       The Petries submitted a building elevation rendering depicting a two-story residential structure with no apparent garage. (Exhibit 7) That elevation is not consistent with the building footprint contained within Exhibit 6 (the only exhibit with a building footprint). Furthermore, Exhibit 6 could be read to suggest a building stepped into the hillside (although such an interpretation of the Exhibit is far from the only logical one), a concept which would be completely inconsistent with the elevation drawing. 

13.       The Petries and City Staff have calculated that a 6,000 square foot building footprint would amount to approximately 3% lot coverage, an amount generally consistent with lot coverage in the surrounding area. (Exhibits 1 and 35). Neighbors have calculated that the average building footprint in the surrounding area is 1,321 square feet and the average floor area of the area residences is 1,605 square feet. (Exhibit 50) 

14.       The Petries have proposed no specific mitigation for impacts to the steep slope portions of the site. Some mitigation for the wetland crossing has been offered. (Exhibit 56F) 

15.       The City Planner issued a Mitigated Determination of Nonsignificance (MDNS) under the State Environmental Policy Act (SEPA) on August 9,2000. That MDNS was based upon and adopted the MDNS issued by the City on July 21, 1999, for the initial development proposal (the short subdivision). Mitigation measures of the earlier MDNS are incorporated into the current MDNS. (Exhibit 45) Neither MDNS was appealed.

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 RUE concept is misunderstood by some of the commenters. (Exhibits 27 and 52, for example.) Some residents believe that no exceptions to Lake Forest Park's EnSAs 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. 

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 is liable for a "taking" of private property without compensation. While the "takings" issue is very complex, the bottom line is that City regulations cannot be implemented so as to deprive a property owner of all use of his or her property. 

The EnSAs recognize this legal requirement by providing for the RUE. The express purpose of the RUE is to avoid a taking by minimally waiving 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 l6.18.080(D)] Approval of a variance would have the same effect as approval of the RUE: The regulations would not be strictly implemented.

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

3.         The Petries' application does not meet Criterion 2. While a single family residence in theory could comply with this criterion, the vague proposal put forth here cannot. Not all single family residences are equal - either in terms of cost, luxury, size, or any other attribute. Bill Gates (of Microsoft) was in the news within the last year or two because of the 45,000 square foot single family residence he built in Medina. The impact that such a residence would have on a sensitive area would likely be far more than that of a much more modest home. Here, there is no way from the available evidence to determine that the proposed single family residence would have the least impact on the steep slopes. (And slopes are the concern here, not wetlands: The Petries have stated that they will comply with all wetland regulations.) In fact, one cannot even determine from Exhibit 9 how much impact this proposal will have on the steep slopes since we have no idea what will be built where within the "Development Area." A residence such as that depicted by Exhibit 6 which requires 20+ foot cuts into the steep slopes would have a far greater impact on the steep slopes than a residence placed on the plateau with no or less intrusive cuts. A six-bedroom residence with a 6,000 square foot building footprint is not a reasonable use for this site. 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. 

4.         As noted somewhat in the Findings, the current proposal is poorly defined and full of conflicts. The Development Area includes land north of the access road for which no development need has been shown. The Development Area still includes the area formerly intended for the accessory residence. if the Petries actually are seeking only one single family residence, then no evident need exists for development in that area. The Development Area does not include either the primary or reserve septic drainfields for the residence, although grading and excavation is proposed for their installation. The submitted plan depicts two drainfield areas which are unnecessary: the reserve area for the no-longer-proposed accessory residence and the unknown drainfield along the west property line. Basically, the Petries seek a carte blanche approval to do just about anything they or some successor in interest might want to do within the Development Area. Such approval is inconsistent with the RUE concept. 

5.         The Petries' application does not meet Criterion 3. 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] As far as one can tell, the current proposal will result in massive excavation into the 40%+ slopes on the site. Such excavation, where alternative areas with less impact exist, is clearly contrary to the purposes of the LFPMC. 

6.         The Petries' application does not meet Criterion 4. Analysis of this criterion is difficult because of the lack of specificity in the proposal. if one assumes that the building footprint depicted on Exhibit 6, the approved sewage disposal permit, is representative of the Petries' plans, then this criterion could never be answered in the affirmative. No reason exists in the record to explain why the residence could not be built on the plateau without the extensive foundation excavation necessary where the building is now located. No evidence exists in the record to explain why the septic system force line must be laid under the toe of the upper slope, rather than out away from the toe in the existing roadway. if the residence were relocated and sized to the buildable area of the lot, its impact would undoubtedly be lessened. 

7.         The Petries' application does not 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. Mitigation for wetland impact is not acceptable for impacts to steep slopes. The Petries must propose specific mitigation for the impacts to the steep slopes which their project will cause. Before they can do that, the proposal must have sufficient specificity to allow determination of impact. 

8.         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. The Examiner recognizes that a distinction needs 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. But, for issuance of a RUE, the submitted plans must be specific enough that one can determine what will be built where. The Petries’ plans are woefully short in that area. (In fact, one wonders if the Petries actually intend to themselves build anything on Lot 5 or whether this is a hypothetical exercise to provide a future buyer with the greatest possible flexibility. Determination of whether the proposed impact will be the least possible cannot be based on vague hypotheticals.) 

9.            Because the application meets Criterion 1 and its failure to meet the other four criteria is largely if not totally a function of inadequate, vague plans, outright denial is inappropriate. A Denial Without Prejudice will serve to indicate that the present proposal does not meet required criteria, but that a future proposal may well be able to meet the criteria.

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 DENIES WITHOUT PREJUDICE  the George & Alyssa Petrie application under file number RUOO-02 

Decision issued December 26, 2O0O. 

                                                            John E. Galt,

                                                            Hearing Examiner

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.04O 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."