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2010-07-23 HEX# 10-006 Final DecisionBEFORE THE HEARING EXAMINER FOR THE CITY OF FEDERAL WAY Phil Olbrechts, Hearing Examiner RE: Mitchell, Veeder, Deynaka Rezone Request FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION 09-103287-00-UP INTRODUCTION The applicants request a rezone of four lots currently zoned single-family residential RS9.6 to single-family residential RS7.2. This request would reduce the required minimum lot size of any subsequently platted lat from 9,600 square feet to 7,200 square feet. The Examiner recommends denial of the rezone because it would be out of character with the neighborhood in which these lots are located. This is a very difficult case to assess and there is ample justification for both approving and denying the application. Opponents have made a very good case that the proposed rezone will allow densities that are inconsistent with their quiet neighborhood. One -hundred twenty-nine people signed a petition to this effect. A large number of project opponents does not by itself justify denial. See Tugwell v. Kittitas County, 90 Wn. App. 1, 9, 951 P.2d 272 (1997). However, the large number of opponents in this case does lend credence to the shared belief that neighborhood character will be adversely affected by approval. Further, the concerns of the neighborhood can be quantified. The lots to the west of the subject parcel, which comprise the neighborhood in which the project is located, have lots that on average are more than five times larger than the minimum lot size allowed by the proposed RS 7.2 zone. Incompatibility is only one of the problems with the proposal. The determinative factor for the Hearing Examiner is that the courts require a change in circumstances to support a rezone. This is in recognition of the fact that property owners are entitled to rely upon some stability in the regulations that govern development of surrounding land uses. The Examiner does not find a sufficient change in circumstances to justify disrupting the regulatory stability to which property owners are entitled. ORAL TESTIMONY Deb Barker began the staff report by explaining that three property owners have submitted a request to rezone their collective properties from one zoning district to another. They would be going from one single-family zoning designation to another single-family zoning designation. There are four separate tax parcels involved, totaling a little over than five acres. The current zoning for the four parcels requires that any development contain a minimum lot size of 9,600 square feet. They are proposing to change to another single-family zoning designation where the minimum lot size would be 7,200 square feet. The change would allow future subdivision at a slightly higher density. KNE809082.DOCX; 1\1 3041.900000\ Rezone Request P. 1 Findings, Conclusions and Recommendation Ms Barker described the surrounding zoning designations. There are already some areas that have an RS7.2 zoning designation in this neighborhood. The multi -family zoning district is located immediately East of the rezone request site. Dash Point State Park, Palisades Park, and the Puget Sound are also located nearby. Ms. Barker then showed an aerial picture, taken in 2007, using King County's Imap system. The four triangles or four parcels associated with the rezone request were represented on the aerial map. This map showed that the site is long and skinny, with 316th Street bordering on the North and 51 st street bordering on the East. Ms. Barker then addressed the rezone criteria. The first criteria is that the proposed rezone is in the best interest of the residents of the city. Ms. Barker stated that the rezone is in the best interest of the public because the requested RS7.2 zoning designation is compatible with adjacent land uses. The RS7.2 makes a logical transition from the multi -family zoning that is on the East of this rezone site to the single family zoning that is on the West. The requested rezone is an efficient use of land and it supports the city's responsibilities under the Growth Management Act. Increasing the housing supply would reduce sprawl, facilitate more efficient delivery of public services, and support the city's ability to meet the state -mandated housing targets. Ms. Barker also stated that this proposed rezone is appropriate because conditions within the vicinity have changed since the time that the present zoning was established. Specifically, the public sewer has been extended to the subject property. The lack of public sewer in the past has been a logical reason why this area has not been zoned at a higher density. The RS9.6 zoning correlates to approximately a quarter acre lot size that would be needed to support on -site septic systems. Now that appropriate public services are in place, Ms. Barker believed the zoning should be adjusted to reflect the circumstance, given that the requested zoning designation, RS7.2, is compatible with adjacent zoning and adjacent uses. The third criteria requires that the rezone be consistent with the comprehensive plan. The city's comprehensive plan designation for this area is single-family high density. The subject site is located in the comprehensive plan area for single-family high density. This particular single- family high density designation allows three separate zoning designations within it. There is RS5, which would have a minimum lot size of 5,000 square feet, RS7.2, which would have a minimum lot size of 7,200 square feet, and RS9.6, which would have a minimum lot size of 9,600 square feet. This rezone request for higher density is well within the designations available from the single-family high -density comprehensive plan designation. As noted on page seven of the staff report, the request is also consistent with the goals and the policies of the Federal Way comprehensive plan. Criteria four requires that the rezone is consistent with all applicable provisions of the chapter, including those adopted by reference from the comprehensive plan. This request to go from one single-family zoning designation to another single-family zoning designation is consistent with a non -project -related rezone request. All future development will be required to comply with all of the applicable code provisions that are in effect at the time when an actual application is received. If approved, single-family housing density could increase and any resulting impacts would be mitigated based on the codes that are in effect at the time of development. KNE809082.DOCX; 1\1 3041.900000\ Rezone Request p. 2 Findings, Conclusions and Recommendation Mr. Olbrechts asked about the availability of the sewer. More specifically, he asked if the city would have required the sewer line to be extended or if the properties could have been developed with a septic system. Ms. Barker explained that the septic standards are regulated under the King County Public Health Department. Septic standards are based upon the rate of soil percolation, which typically sets up the size of the septic and drain field. The county does have a fairly new standard in effect that requires, in addition to the drain field, a 100% reserve area. Mr. Olbrechts asked whether or not a septic system would still be allowed for this property when a sewer line is available. Ms. Barker responded that septic could still be allowed under Federal Way regulations. For the benefit of the public, Mr. Olbrechts asked about the issue of drainage and how the future development will or will not address this issue. Anne Dower, from Federal Way Public Works, explained that they did not have a proposal in on the property at the time of the hearing. When a development gets proposed they will be required to meet the regulations that are in effect at that time. Currently, the City is using the 2009 King County Surface Water Design Manual. Under that manual, this property would be required to provide flow control and water quality for the site itself. It would also be required to provide a downstream analysis, which would reveal any flooding problems and any off -site issues. If one of these problems were to occur, they would be required to mitigate them. In other words, they could not increase an existing problem nor could they create a new problem. This information was not available at the time of the hearing; however, some documentation in the stormwater department and from the neighborhood that there are some issues out there. Since they are aware of that, that would certainly be addressed in any downstream analysis that is completed for this project. Mr. Olbrechts asked Ms. Dower if she was saying that allowing a greater density would not make the drainage problem any worse because the development would fully mitigate the drainage. Ms. Dower answered that Mr. Olbrechts' statement was correct. Mr. Olbrechts asked what kind of restrictions would the Federal Way code impose to protect the pileated woodpecker. Ms. Barker explained that the Federal Way code defers generally to the state code and the codes that are in effect at the time. At the time of the hearing, there were several different designations of threatened, endangered, or species of concern. The pileated woodpecker was listed on one of the three lists. At the time that a formal subdivision application comes in, that may be raised or lowered on that list, such as the status of the bald eagle. Since the Federal Way revised code criteria is silent on this topic, they would look to the state of Washington code's criteria. Mr. Olbrechts also asked if wildlife protection buffers would be put up around any of the species located on this property. Ms. Barker explained that if the state has it listed as a requirement for that particular species that they would follow that code. There are some species that do have protection requirements laid out and they would have buffer zones. She did not know whether or not it had become effective with the pileated woodpecker. KNE809082.DOCX; 1\1 3041.900000\ Rezone Request p. 3 Findings, Conclusions and Recommendation Joseph Mitchell, co -applicant, was the first commenter. He said the applicants believed they have responded to all comments, including the three most recent comments submitted. Regarding water, he said the applicants had hired a consulting engineer company who said in a letter that all water problems could be mitigated. Regarding the pileated woodpecker, he said the pileated woodpecker is on the Non -Endangered list statewide and nationally. The second commenter was Dannie Allen Austin. He owns property that is immediately adjacent to the Southwest to the parcels in question. The eastern portion of his lot would be the most severely impacted by the rezoning. He pointed out his property on a map. As a property owner, he wants to see everyone have the rights of "quiet enjoyment" and "highest and best use" of their property. On the other hand, the property in question serves as a buffer to traffic off of Dash Point Road because there is no other way to access the neighborhood. His neighbors appreciate the rural nature of the area. His primary concern is that increasing the density of the area through rezoning will have a negative impact on the quality of life in the neighborhood by increasing the traffic. He is also afraid that pedestrians will be endangered by greater traffic, particularly when walking to and from Palisades Park. Mr. Olbrechts asked staff if, in rebuttal, they could address the capacity of Dash Point Road to handle the increased traffic due to proposed increased density. Next was Wolfgang Erbe. He has lived for 18 years on the northeast corner of Mr. Mitchell's property. He believes that increased development will negatively affect the quality of life in the neighborhood, due to increased traffic, trees needing to be cut down, and increased noise level. Also, there are drainage problems in the area. There is a huge pond which develops every winter due to poor area drainage, which he has taken pictures of over the years. Part of the pond, about 30 feet of it, ends up on his property during the rainy season. The pond is usually about one foot deep, which is deep enough for ducks and geese to use. He would like to have the drainage problems in the area repaired if development of these parcels is approved or not. He pointed out his property on the map. Next was Leslie Perrault. She pointed out her house on the map. She questioned the original zoning designation for the area. Everybody living in the area is on septic so nobody is RS7.2. The lots are so large that everyone is RS9.6 or bigger. Her house is on a septic tank and her lot is over 10,000 square feet. Her biggest concern is that everyone is on large lots and nobody wants to get squished in the neighborhood. She stated, "If we wanted to live in apartments, we would live in apartments." The next commenter was Bruce Lee. He purchased his property in the area 30 years ago when there was no zoning and the neighborhood was rural. He pointed out his home on the map. He does not want more density in the area. Also, since he is on septic, he is afraid of sewer assessments that could possibly come as the result of adding greater density in the area. Next was Sherry Kerr. She read something prepared by her husband Brian. She, her husband, her son, and her dog live on 53rd and 316th in a low -traffic area with lots of pedestrians, including other children and dogs. Everyone in the neighborhood walks a lot, including trips to Palisades Park. She pointed out her house on the map. Fifteen years ago, they started hosting KNE809082.DOCX; 1\1 3041.900000\ Rezone Request p. 4 Findings, Conclusions and Recommendation the Night Out Against Crime although the police say this neighborhood is one of the safest in the City. She is afraid that adding 21 homes to the neighborhood will increase crime. She also would like the neighborhood to remain rural. Ms. Kerr also submitted another comment letter from another resident of the neighborhood. Next was John Reed. He lives just west of the Mitchell property and pointed out his house on the map. He referred to the petition that the neighbors have put together; there are 129 signatures. The first concern was that sewer lines will be accessible whether the zoning was either RS7.2 or RS9.6, so why not keep the property RS9.6. The second concern was that the land surrounding the proposed parcels is composed of large lots, some either larger than RS9.6. Rezoning to RS7.2 is not within the character of the present neighborhood and will not benefit the current residents in any manner. The third concern was that today's current economic situation has the City of Federal Way already experiencing vacancy of many high -density properties. The property in question is the furthest distance possible, almost 5 miles, from the I- 5 corridor where high -density will be least served. Fourth, the Palisades Park is a community park serving residents. Foot traffic is fairly consistent, especially parents with young children and children on bikes. Property development will bring an increase injury risks because it will bring an increase in traffic. At present, there are no streetlights, sidewalks or street bumps for pedestrian protection. Fifth, the neighborhood has little crime but property development will no doubt bring increased crime. Sixth, wildlife, such as the endangered red -crested woodpecker and the red squirrel, live in the area because it is a mature habitat. Development will remove many of the mature trees and shrubs in which the animals live. Seventh, school bus stops are currently located directly in the line of development having been moved from a previous location due to safety concerns. Increase in traffic due to development will put children once again at increased risk of injury. Mr. Reed concluded by asking whether a plan for developing the land exists and whether this rezone set precedents for future housing development? In a decreasing economy with property values plummeting, can the City and its residents afford further reductions in property values? John Reed then read his own letter. He said he has read the technical analyses of the staff report but feels the staff do not look at the proposed zoning changes with a broad enough view. He said he disagrees with the staff report. He feels City leaders must balance the concerns of the residents and support what is most important. Should a cherished quality of life be sacrificed to add a few more houses to a future development to meet a housing goal that is set for 2022? Isn't preserving neighborhoods and the environment just as important to citizens as development? He does not believe the zoning request is in the best interests of the City. While the owners of the property have the right to develop their land, it would be better for our community if the development required the lots be maintained at the size currently zoned. Reducing lot size just because the sewers are available is a weak argument. Additionally, Mr. Reed cited both wetland issues and flooding concerns in the Dumas Bay Palisades critical areas, and raising housing density, coupled with apartment runoff, which will impact the downstream sensitive areas. He attached three photos he took this year but said the problems have been there since he moved there 25 years ago. He said the applicants have obtained a sewer access point from another property and have therefore added value to their properties. The condition of most neighboring properties has not changed and it is those properties in our community which will lose value, suffer safety concerns and have considerably more traffic should this zoning change occur. KNE809082.DOCX; 1\1 3041.900000\ Rezone Request p. 5 Findings, Conclusions and Recommendation Mr. Reed testified that the staff report repeatedly mentions housing targets and density goals, but wondered if the development is necessary now? The City of Federal Way is ahead of its housing targets; it is full of unfinished developments, and empty houses abound in the area. Federal Way's Comp Plan speaks more of housing along I-5 and Highway 99 with the City's center being the most important. The community is 10 or 15 minutes from those highways in the best of conditions and he does not understand how housing added with this rezone will meet the goals of the Comp Plan. He does not believe the rezone will be beneficial to the public's health, safety and welfare. There will be more traffic, more noise, more crime, less wildlife and greater flood potential in the neighborhood. The current zoning will allow development to proceed in the neighborhood in a manageable way. What he objects to is raising the density and making the situation worse than it needs to be. The difference between 16 houses and 22 houses may seem minimal to the staff planners, but it makes a big difference to this community. Next was Doran Reano. He said he lives on 54th and pointed it out on the map. He said he has a young son and they walk daily to Palisades Park although there are no sidewalks. He is afraid that more traffic will make their walks even more dangerous. Next was Robert Barnes. He pointed to the zoning map during his comments. He stated that, contrary to the City's statements, there is no logical transition between high density areas and the community. SW 315th Place is blocked off and therefore high density is not part of the neighborhood. Between the apartments and the community is a six-foot fence. There are a few footpaths through the forest, but basically there is no true access. The apartment complexes are not part of our community. The proposed rezoning change would be new to our neighborhood, not a transition. Also, he does not believe that septic systems are not safe; he believes they are fine and not a health hazard. As for safety issues, he has two children who walk along the streets to get to bus stops, so he is concerned about increased traffic. The impact of rezoning and future development on the watershed is not known because no studies have been done so talk of "no significant impact" is premature. Finally, he personally does not want to see higher density and more houses. In staff rebuttal, Mr. Ken Miller, Deputy Public Works Director testified that, regarding traffic, his answer would be general in the absence of a development application. The number of lots has yet to be determined. Daily trips are typically ten trips per lot. Five extra lots equals 50 additional daily trips. Mr. Olbrechts asked if the surrounding traffic network is at LOS or well above LOS. Mr. Miller responded that the roads are capable of handling the additional trips that the proposal would generate. In several areas, there are no sidewalks or speed bumps. The City could provide traffic -calming improvements but the City would not have the money to provide sidewalks, curbs, drainage, etc. Such requirements for traffic calming could be added to a development proposal. Mr. Olbrechts asked for any other staff comments. Ms. Barker answered the question of why certain areas zoned RS7.2 when so many lots were much larger. She directed attention to a table on page 4 of the Staff Report under Section E. The zoning from King County, before Federal Way incorporation in 1990, was SR (Suburban Residential). At incorporation, zoning was established as is seen on that table. There had been a zero lotline development which flipped the KNE809082.DOCX; 1\1 3041.900000\ Rezone Request p. 6 Findings, Conclusions and Recommendation