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Planning Commission PKT 07-15-2015City of Federal Way PLANNING COMMISSION July 15, 2015 City Hall 117:00 p.m. Council Chambers AGENDA 1. CALL TO ORDER 2. ROLL CALL 3. APPROVAL OF MINUTES May 20, 2015 4. AUDIENCE COMMENT 5. ADMINISTRATIVE REPORT • Manufactured Home Park Stakeholder Group Update 6. COMMISSION BUSINESS • STUDY SESSION Proposed Amendments Related to the Federal Way Revised Code (FWRC) Nonconformance Chapter, 19.30 7. ADDITIONAL BUSINESS 8. ADJOURN Commissioners Tom Medhurst, Chair Lawson Bronson, Vice -Chair Hope Elder Wayne Carlson Tim O'Neil Sarady Long Diana Noble- Gulliford Anthony Murrietta, Alternate KAPlawng Commission\201 AAgenda 07- 15- 15.doc City Staff Isaac Conlen, Planning Manager Margaret Clark, Principal Planner E. Tina Piety, Administrative Assistant 253- 835 -2601 mmnt citvoffederatway.com CITY OF FEDERAL WAY PLANNING COMMISSION May 20, 2015 City Hall 7:00 p.m. Council Chambers MEETING MINUTES Commissioners present: Tom Medhurst, Lawson Bronson, Hope Elder, Wayne Carlson, Tim O'Neil, Diana Noble - Gulliford, Sarady Long, and Anthony Murrietta. Commissioner absent: none. City Staff present: Community Development Director Michael Morales, Planning Manager Isaac Conlen, Principal Planner Margaret Clark, Senior Planner Matt Herrera, Deputy Public Works Director/PAEC Project Director Will Appleton, City Traffic Engineer Rick Perez, Assistant City Attorney Mark Orthmann, and Administrative Assistant E. Tina Piety. Consultant present: Ilon Logan of Environmental Sciences Associates CALL TO ORDER Chair Medhurst called the meeting to order at 7:00 p.m. APPROVAL OF MINUTES The minutes of April 1, 2015, April 15, 2015, and May 6, 2015, were approved as presented. AUDIENCE COMMENT None ADMINISTRATIVE REPORT Planning Manager Conlen stated that the Periodic Major Updates to the Critical Areas Ordinance and the Federal Way Comprehensive Plan is the result of two years of work by staff. He thanked Ms. Clark, Mr. Herrera, and Ms. Piety for their work and their willingness at times to work overtime to complete the project per the state mandated timeline. The Commission has been meeting regularly since July 2014 on briefings for each of the chapters and the critical areas ordinance. Planning Manager Conlen thanked the Commissioners for their work and expects that because of these briefings, we will be able to complete tonight's two public hearings, which will help staff meet the state's mandated deadline of June 30, 2015 for these major updates. He noted this means we are on a tight schedule to complete these updates. COMMISSION BUSINESS Chair Medhurst informed the audience and the Commissioners that this evening we will have two public hearings that are related. The first deals with changes to the Critical Areas regulations of the Federal Way Revised Code. The second is the Major Update to the Federal Way Comprehensive Plan. State law requires the critical areas ordinance and the comprehensive plan updates be completed and approved by the City Council by June 30, 2015. The Planning Commission's recommendations will be forwarded to the City's Land Use /Transportation Committee (LUTC), who will then forward their KAPIanning Commission\2015\Meeting Summary 05- 06 -15. doc Planning Commission Minutes Page 2 May 20, 2015 recommendation to the Council for action. The LUTC is scheduled to meet June 1, 2015, and has scheduled June 8, 2015, for continuation if needed. The City Council is scheduled to meet June 16, 2015, for the First and Second readings of the periodic update ordinances. These dates may change if necessary. During the briefings held over the last year, the Commission provided comments and suggested edits. Tonight's presentations will focus mostly on changes made as a result of those comments. Public Hearing — Critical Areas Ordinance Periodic Update — Proposed Text Amendments to the Federal Way Revised Code, Title 19, Division V, "Critical Areas" Senior Planner Matt Herrera delivered the staff presentation. He went over the regulatory background, public participation the city engaged in, and the proposed amendments. The existing critical area regulations are in nine separate chapters of the zoning and development code. The proposed amendments will consolidate information from the chapters into one Environmentally Critical Areas chapter. The result will be a streamlined code that is easier to use by applicants and city staff. In regards to wetlands and wetland buffers, one change since the Planning Commission briefing is that the city is required by the state to regulate all wetlands, regardless of size, but the city will not require a buffer for wetlands 1,000 square feet or less. The hearing was opened for public testimony. Peter Townsend, 1648 SW 310" Street — He spoke from a letter he had prepared for the Commissioners. In regards to streams, he thanked Senior Planner Herrera for taking care of his issues. He is interested in preserving view corridors. He opposes the proposed change to a 50 -foot setback for hazardous slopes. He feels this will result in a taking of his property. He owns a 20,000 square foot lot with a critical area slope. With the current 25 -foot setback, he may have 8,000 square feet for a building pad. With the 50 -foot setback (stated as 51 in his letter) he would have an approximately 3,500 square foot building pad, which would not be feasible. Yes, he could have a geotechnical report done, but that would be very expensive. He suggests the city use the variable setback matrix used by Gig Harbor (copy attached to his letter). He requested that a no takings clause be included. He feels the city's policies, which is about 15 pages, is too long and suggests cutting them back to 2 or 3 pages. Commissioner Noble - Gulliford asked staff what is their opinion on Mr. Townsend's comments on takings and his ability to build a home on his referenced property. Assistant City Attorney Orthmann commented that he is unable to give an opinion on Mr. Townsend's particular issue; a taking happens only if no economically viable use may be made on the property. Planning Manager Conlen commented that the 50- foot buffer is a default buffer. A buffer can be reduced (even up to 0 feet) if a geotechnical report states that it would be safe to do so. Commissioner O'Neil asked if the city allows a house to be built on a slope and 20 years later it slides down that slope, would the city be liable? Assistant City Attorney Orthmann responded that recent litigation shows that plaintiffs have not been very successful suing cities in such cases. Commissioner O'Neil commented that he has found that some jurisdictions will require test after test and will not make a decision. Is there a point in the process where a decision must be made? Planning Manager Conlen stated that the City of Federal Way does not operate that way. We are clear up front about what information we need to make a decision. Commissioner Bronson commented that he has the same concern that a city can delay a decision and there is no recourse for the property owner. If a geotechnical report states it is safe to build, will you let it be built or will you seek further tests. Planning Manager Conlen stated that at the beginning of the KAPlanning Commission\2015Weeting Summary 05- 20- 15.doc Planning Commission Minutes Page 3 May 20, 2015 application process, the city will let the applicant know if a geotechnical report will be required and if so, that the city may seek a third party geotechnical review to be sure of an objective perspective. Land use and building permits applications do have timelines (per the subdivision and zoning codes, and the building code) and if the city does not act, the property owner can seek legal action. Commissioner Long expressed his concern that off -site wetland mitigation funds may go somewhere else in King County, as opposed to Federal Way. He wants the funds to stay in Federal Way. Senior Planner Herrera commented that the city expects this option to be rarely used. It is just another tool in the tool kit to give applicants a way to mitigate for wetlands. It is expected be used for low- functioning wetlands where it does not make sense to have to monitor the progress of other mitigation for five to ten years. Commissioner Noble - Gulliford commented that she is concerned about the city's source of water (and the possibility of future drought) and would like assurance that any off -site mitigation would be used within the city's drainage basin. Chair Medhurst asked if there was a particular catalyst to make the change to a 50 -foot buffer. Senior Planner Herrera responded that it comes from reviews and articles in journals about the need for a buffer around landslide hazard areas. It is appropriate for geotechnical engineers to prescribe a buffer specific to each hazard areas as they are unique. In the absence of a geotechnical engineer's prescribed, buffer, a default 50 -foot buffer is appropriate. Many jurisdictions are making the same change. Remember, the size can be reduced if the safety is ensured by a geotechnical report. Commissioner Carlson moved (and it was seconded) to recommend approval of the critical areas amendments as presented by staff. There was no further discussion and the motion carried unanimously. The public hearing was closed. Public Hearing — Federal Way Comprehensive Plan (FWRC) Periodic Major Update and Citizen - Initiated Requests Commissioner Long recused himself. Principal Planner Clark delivered the staff report on the Citizen - Initiated Requests. The city received five site - specific requests to change the comprehensive plan designations and zoning, one of which was withdrawn. In addition, the city received one request to amend the text of the comprehensive plan to allow senior housing, including assisted living and nursing homes, in the Commercial Enterprise (CE) zone. She went over the specifics of the four active site - specific requests and the text amendment request. The city received one citizen comment in support of the text amendment request (included in the packet). The letter includes information regarding local market conditions for senior housing. A letter the Seattle -King County Advisory Council on Aging and Disability Services (ADS Advisory Council) stated that the older population living in south and east King County are growing most rapidly. In addition, King County elder population (age 60 +) will be almost 25% of the population by 2035. At this point, Chair Medhurst recalled that he owns property in the CE zone and asked if he should recuse himself. Assistant City Attorney Orthmann stated that as long as he feels he has no conflict of interest, he does not need to recuse himself. The hearing was opened for public testimony. Rob Rueber, Represents Youngspring's Text Amendment Request — He stated that the history of the CE zoned area is truck oriented and light industrial uses, but that is changing. There is now more commercial and he feels this trend will continue to change the make -up of the area. He has KAPlanning Commission\2015UNeeting Summary 05- 20- 15.doc Planning Commission Minutes Page 4 May 20, 2015 never considered senior housing development in this area, but has received a number of calls from developers seeking to place senior housing there. The developers are looking for areas near the freeway, on major arterials, and five acres or more in size. Few properties in the city will meet these criteria, but the CE zoned area does. In regards to noise and traffic issues, he notes there are current developments (Park 16 being one) that are being done in spite of these issues. Commissioner Noble - Gulliford asked what zoning designations allow this use. She has heard comments from people that want to develop more senior housing, some in the city center. She has also heard comments that that type of housing is not wanted in the city center because it does not fit the vision. Director Morales commented that the city is targeting mixed -use in the city center because we want to provide workforce housing. Many of our citizens leave Federal Way to work and the city is working to develop more jobs in the city and the housing for those jobs. In regards to the text amendment, he noted that the city has a limited supply of light industrial zoned land. Principal Planner Clark went over the zones where senior housing is allowed. At this point, Assistant City Attorney Orthmann interjected to state he is revisiting his early comment and stating that if Chair Medhurst owns property in an area to be rezoned, it would be appropriate for him to recuse himself. Chair Medhurst recused himself; Vice -Chair Bronson took over the gavel. Chair Medhurst did not participate in the discussion regarding Citizen Initiated Requests. Commissioner O'Neil commented that we have zoning because we want certain activity to take place there. However, if everything around it is change in regards to use, should not we allow senior housing in the CE zone? Planning Manager Conlen stated that there is no light industrial development pending at this time, but it may in the future. Commissioner Carlson stated he is sympathetic to Mr. Rueber's argument, but there few such zoned areas in the city. If the change continues to occur, it may be right to consider rezoning in a few years. Commissioner O'Neil stated that the Lee/Princen site - specific request will increase density. What degree does traffic play a role in this decision? City Traffic Engineer Perez responded that traffic does not have a significant role at this stage of the process. The city uses concurrency to mitigate development. Once an application is made for a specific development on that property, the city will research the traffic and if the development is likely to lead to a Level of Service (LOS) failure, the applicant would have to mitigate (so that it will not lead to a LOS failure) at that time. Janice Pool, owns property on 6'" Avenue — Discussion this evening has led her to the impression that all senior housing is low- income. She stated that her personal experience is that not all senior housing is low- income. Commissioner Bronson concurred. The housing his parents were in was not low- income. Principal Planner Clark delivered the staff report on the Major Update to the Federal Way Comprehensive Plan (FWCP). She went over the regulatory requirements and the public participation the city engaged in. She then went over each chapter and comments received by citizens and Commissioners (received during the previously mentioned briefings), and the staff responses to those. She noted that Chapter 10, "Public Utilities," was the second chapter to go through a briefing and city had received information from the utilities after that briefing. The following changes were made: • Staff incorporated edits from Puget Sound Energy. • All of the old language related to electric and gas service have been replaced with the new PSE language. KOwning Con ssion\2015 \Meeting Summary 05- 20- 15.doc Planning Commission Minutes Page 5 May 20, 2015 • PSE also provided a map on electric service only, which is included as Map X -1. • All of the maps on existing and proposed electric and gas service (Maps X -2, X -3, and X- 4) are proposed for deletion since they are outdated. • Map X -1, Council - Approved PAA, is proposed for deletion, since it does not add value to the chapter. • Map X -5 is proposed for deletion based on a request from Comcast. There was no public testimony. Commissioner Carlson moved (and it was seconded) to take separate votes on the two segments of this public hearing (one on the Citizen- Initiated Requests and the second on the Major Update to the FWCP) so that Chair Medhurst may join the discussion and vote on the Major Update to the FWCP. There was no further discussion and the motion carried unanimously. Chair Medhurst rejoined the meeting. Commissioner Carlson acknowledges that due to time constraints, an Executive Summary cannot be prepared this year, but he would like it done next year. He noted that in Chapter 5, "Housing," he noted that two policies are numbered 25 and thereby, the following numbers are incorrect. The first HP25 speaks to affordable housing and he asked if this policy would be applicable to single - family housing. Principal Planner Clark responded that this policy applies to multi - family housing. Commissioner Elder left at 9:00. Commissioner Bronson commented that we only had a few weeks to review the Transportation chapter, but it appears to say there is not much that can be done to improve traffic in Federal Way. City Traffic Engineer Perez responded that the whole region is struggling with traffic. We are dealing with large distances between jobs and affordable housing, as well as geographic constraints. The city's emphasis is on road safety, and to provide bike and pedestrian connections. An Intelligent Transportation System (ITS) would help manage traffic as efficiently as possible. Commissioner Carlson moved (and it was seconded) to approve the Citizen - Initiated Comprehensive Plan amendments as presented by staff. There was no further discussion. The motion carried unanimously with two recused (Long and Medhurst) and one absent (Elder). Commission Noble - Gulliford moved (and it was seconded) to approve the Major Update to the Federal Way Comprehensive Plan as proposed by staff. Commissioner Carlson asked staff to go back and renumber the policies in Chapter 5. There was no further discussion. The motion carried unanimously with one recused (Long) and one absent (Elder). The public hearing was closed. ADDITIONAL BUSINESS None ADJOURN The meeting was adjourned at 9:20 p.m. KAPlanning Commission\201SMeeting Summary 05- 20- 15.doc th Proposed Amendments to Nonconformance Regulations In the City of Federal Way Planning Commission Study Session July 15, 2015 I. INTRODUCTION The purpose of this code amendment is to establish a consistent and intentional policy direction on how the City would like to deal with nonconformities (uses and developments /sites). In addition, the purpose is to correct a number of problems with language in the chapter. Certain provisions are unclear, while others appear disproportionate to the impact being addressed or the work proposed. This is a high priority, but a discretionary item on the Planning Commission Work Program. The report includes a discussion on nonconformance in general, identifies strategies employed by other jurisdictions, and provides analysis and recommendations on proposed amendments. II. BACKGROUND What is a `Nonconformance'? Under FWRC Chapter 19.05, "nonconformance" means any use, structure, lot, condition, activity, or any other feature or element of private or public property, or the use or utilization of private or public property, that does not conform to any of the provisions of this title, or that was not approved by the City of Federal Way through the appropriate decision - making process required under this title. Legal vs. Illegal Nonconformance It is important to note the distinction between "legal" and "illegal" nonconformances. A building, site improvement or parcel complying with zoning or land division regulations at one time, but which subsequently does not comply with new regulations or ordinances adopted by council is a "legal nonconformance." For example, following annexation, lots that do not meet the current minimum lot size may be annexed into the city. These lots are legal nonconforming lots. Illegal nonconformances are those nonconformances that were not legal when they were created or established. This report generally focuses on legal nonconformances. Illegal nonconformances are typically addressed through code enforcement to reach compliance. Specific Types on Nonconformance Generally there are three types or combinations of nonconformities: Proposed Code Amendments Pertaining to Nonconformance File 1 5- 100439.00- UP /15- 100454 -SE July 15, 2015, Planning Commission Study Session Pagel of 7 • Nonconforming Lot "means a parcel of land with a minimum lot size or lot dimension which is less than that prescribed for by the district in which such parcel is located." • Legal Nonconforming Developments "are structures, building and site improvements' that complied with zoning and development regulations at the time it was built [yet due to] ... subsequent changes to the zoning and/or development regulations, no longer fully complies with those regulations." • Legal Nonconforming Use "means the use of land, a building, or a structure that complied with use regulations at the time it was established [yet due to] ... subsequent changes to the zoning regulations, no longer comply with those regulations." The Purpose of Nonconforming Provisions Nonconforming provisions or "grandfathering" aims to correct existing nonconformities either incrementally over time or in some instances immediately. This is achieved by establishing a specific threshold type and level, generally tied to proposed improvements on the property, which triggers the owner to correct the existing nonconformance. For example, the current Federal Way Title 19- Zoning and Development code requires a site to come into conformance when adding new square footage to an existing building. III. JURISDICTIONAL SCAN Traditionally, there are three types of nonconformance thresholds in local zoning and development codes: valuation , 2 increased square footage,' and cessation of use (or abandonment). a In preparing this report, staff researched regulations in several cities, including but not limited to Olympia, SeaTac, Auburn, Lynnwood, Burien, Bellevue, and Kent. Staff selected cities containing suburbs and redeveloping urban downtown areas—both in the traditional and suburban sense. Proposed revisions to Federal Way's existing nonconformance provisions are discussed below; accompanied by provisions from neighboring and peer cities. s IV. PROPOSED CODE AMENDMENTS AND ANALYSIS This section provides a summary of the proposed major text amendment in the FWRC 19.30, "Nonconformance." At this point in the process, this information is provided to prompt a discussion with the Planning Commission about the preferred policy direction. Your comments and suggestions in reaction to this summary will help staff to prepare detailed code amendments (i.e. strikeouts, deletions, and added text) for presentation at an upcoming public hearing. 1 Improvements on a site required in order for the use on the site to comply with the provisions of this code. Site improvements include, but are not limited to landscaping, parking, signs, design features, impervious surface coverage, multi - family recreation space and other open spaces on the site 2 Valuation Threshold: A percentage of the assessed or appraised (per City of Federal Way regulations) value of an existing nonconforming structure, development or improvement. Assessed values are typically based on the most recent county assessor's tax roll. Appraised values are based on an appraisal by a state certified real estate appraiser provided by the applicant, per FWRC 19.135.030. 3 Increase to Gross Floor Area Threshold: Establishing a maximum additional gross floor area or a maximum percentage of the existing gross floor area that can be added to a nonconforming structure, development, or use. ° Cessation of Use /Abandonment: A nonconforming use may lose their status if it stops for a specified period of time; based on occupancy, discontinuing an activity, or forfeited by the owner /occupant due to bankruptcy etc. S Peer cities are of a similar size (population and geographic area) and character. Proposed Code Amendments Pertaining to Nonconformance File 15- 100439-00d1P/15- 100454 -SE July 15, 2015, Planning Commission Study Session Page 2 of 7 1. Nonconforming Uses Current code language requires discontinuation of a nonconforming use when: a) any square footage is added to the site; b) any structural alteration is made to the site; c) when work that exceeds 15% of the valuation of the existing structure is undertaken; and /or d) the property has been abandoned —tax forfeiture, bankruptcy or mortgage foreclosure. Valuation triggers are difficult to enforce and accurately measure. It puts staff in an awkward position trying to determine if an appraisal of the existing structure is legitimate and if the estimate of the cost of the improvement is accurate. We recommend getting away from that type of trigger. It also is debatable what the definition of a "structural alteration' is. Staff proposes to eliminate the 15% valuation and "structural alteration' triggers. We recommend maintaining the new square footage and abandonment triggers. We recommend adding a new compliance trigger — vacancy. The proposed language would state that if a building or site housing a nonconforming use is vacant for 12 months or more, the owner would lose the rights to their nonconforming use. Several jurisdictions, including SeaTac, Lynwood and Fife, have similar provisions. 2. Nonconforming Development Nonconforming development, as a reminder, refers to structures and site improvements that do not comply with development regulations (but are distinguished from nonconforming uses in that the use of the property is permitted). Current code language requires that nonconformities be brought into compliance based on the following triggers: a) for a single tenant site when addition of any square footage to an existing building occurs; b) for a single tenant site when a new and separate structure is proposed in the "geographic portion" of the site in proximity to the new structure; c) for a multiple tenant site when an addition occurs, or a new building is constructed, in the "geographic portion' of the site in proximity to the new square footage or new building; d) when the property is abandoned; and e) the applicant is making any improvements to a structure (with the exception of normal maintenance and tenant improvements) and the value of such improvements exceeds 50% of the value of the existing structure. For your information, there are several other exceptions that we do not plan on discussing at this meeting. The problems we see with the current language are as follows: a) Using the example of a single tenant site, the policy is illogical in that it requires the entire site to be brought into conformance when any addition, regardless of size, occurs to an existing building. In the case of adding an entirely new building to the site, it requires only that the geographic portion of the site in the area of the new building be brought into conformance. By way of example, one property owner adds a 50 square foot addition to an existing building and as a result, is required to bring the entire site into conformance. A second property owner builds a brand new 10,000 square foot building on the site and is only required to bring the related "geographic portion' of the site into compliance. The point being that the current code, at times, results in disproportionate consequences. b) The concept of "geographic portion' is not well defined and is difficult to apply consistently. c) Valuation triggers are difficult to enforce consistently as discussed above. Proposed Code Amendments Pertaining to Nonconformance File 15- 100439- 00- UP /15- 100454 -SE July 15, 2015, Planning Commission Study Session Page 4 of 7 Nonconformance Policy Direction As discussed above, the purpose of nonconforming provisions is to bring existing nonconformities into compliance with city regulations over time. The main policy question is, how aggressive do you want to be? An aggressive approach would be to set low thresholds that trigger compliance, causing nonconformities to be corrected when even minor improvements are proposed to a site. An example would be to require nonconformities to be corrected anytime new square footage is added to the site. The benefit of this approach is it causes nonconforming sites to achieve compliance more quickly and thus, improves aesthetics and other aspects of the built environment. The drawbacks of this approach are as follows: 1. Correcting existing nonconformities may be costly and if the threshold is set low, the cost may be disproportionate to the scale of improvements that are triggering it. 2. In some cases it may not be possible to convect the nonconforming aspect of the site. For example, a property may be nonconforming because it does not have adequate parking spaces for the size of the existing building. If it is a small site, there may not be room to add the additional required parking spaces. r 3. It may discourage re- investment and property improvements. The risk incurred by the city in using a low or more onerous threshold, is that the cost and potential site challenges of correcting nonconformities may discourage re- investment and improvements. For example, if making a small improvement to the site would trigger the need to come into compliance on a site where such compliance is not feasible, a property owner is likely to forego making the improvement. In a worst -case scenario, blight -like conditions might occur or persist. The other option would be to set the thresholds that trigger conformance at a higher level, thus allowing more substantial improvements to be made without triggering the need to bring zoning regulations into conformance. The benefits of this approach are that property owners would not incur additional costs and barriers to investment are not created. The drawback is that nonconformities would tend to persist for longer periods of time. This is a classic case of policy preference. There is no state or federal law influencing our choices here. "The city may [within constitutional limits] establish its own standards for regulation of nonconforming situations" (MRSC, 2015a, para. 1). Policy makers need to weigh different competing interests in adopting regulations that implement their policy preference. As you review these materials consider the stakeholders: • Property owners, businesses, and tenants • The natural environment (i.e. water quality and critical areas) • Local residents • City's interest in promoting quality development/re- development Proposed Code Amendments The next section discusses four significant recommended policy changes within FWRC Chapter 19.30, `Nonconformance." The report outlines the city's existing policy, discusses the problem with the policy, and identifies a proposed policy solution for Planning Commission consideration. Proposed Code Amendments Pertaining to Nonconformance File 1 5- 1 00439- 00- UP /15- 100454 -SE July 15, 2015, Planning Commission Study Session Page 3 of 7 d) There are too many options with different consequences. The provisions are hard to enforce and confusing to applicants. Staff proposes to establish a new threshold based on the percerntage of existing square footage that is proposed to be added. Additionally, there would be a maximum numerical square footage trigger. Nonconforming developments would need to be brought into conformance when new square footage exceeding 30% of existing square footage, or exceeding 3,000 square feet, is proposed to be added to the site (the percentage and absolute numerical numbers can be tweaked, but this gives an example). Notice that the proposed language makes no distinction between additions to existing buildings or new buildings. Also, the proposed language eliminates the concept of "geographic portion," meaning that if the threshold is crossed the entire site must be brought into conformance. We recommend eliminating the 50% valuation trigger as well for reasons previously discussed. We recommend retaining the abandonment trigger. The result is a clearer, easier to administer policy on correction of nonconforming developments. Our review of peer cities identified a wide range of approaches. Different cities use differing thresholds or triggers. Some required a quasi-judicial review process to consider square footage additions to nonconforming sites. 3. Legal Nonconforming Lots Currently, the nonconformance chapter does not address nonconforming lots. Legal nonconforming lots are those that were legally created, but are now substandard as to size and dimensions for the zoning district they are located in (i.e. width, area, etc.). FWRC 19.105 contains provisions regarding the definition and criteria for a legal "Building Site." This section is outside of the nonconformance chapter. This language includes criteria for when a legal nonconforming lot may be developed. This language would be more appropriately moved to the nonconforming chapter of the code. We also recommend clearly defining legal nonconforming lots and illegally created lots. The policy direction would be that lots which were legally created subject to the laws in effect at the time of creation would be treated as legal "building sites." 4. Damaged Nonconforming Improvements and Uses Current code language permits reconstruction of damaged nonconforming improvements without coming into compliance with current regulations, as long as the cost of the reconstruction does not exceed 75% of the assessed or appraised value of the structure prior to the damage. Permits must be applied for within six months of the damage. The main problem with this language is in any case where a structure suffers significant damage or total destruction; it will not be possible to be repair /replace it as is. The reasons for this are: a) the replacement valuation is limited to 75% of the damaged/destroyed structure's value; and b) the existing damaged/destroyed structure would likely tend to have a lower value than a newly constructed structure due to issues such as deferred maintenance, lack of modern conveniences, and space planning concepts and inflation. For these reasons, the effect of the policy is that only minor damaged improvements could be replaced without coming into conformance with current regulations. This seems unreasonable in that the owner has already suffered a disaster of some type (fire, tree damage, flooding, etc.) and should be granted a reasonable opportunity to replace the structure. Proposed Code Amendments Pertaining to Nonconformance File 15- 100439- 00- UP /15- 100454 -SE July 15, 2015, Planning Commission Study Session Page 5 of 7 Additionally, this code section does not address nonconforming uses. For that reason it is unclear what rights a nonconforming use has when damaged or destroyed by natural causes. Lastly, the valuation trigger is problematic for reasons discussed previously. Staff proposes to eliminate the valuation threshold trigger. The proposed policy is to allow restoration of destroyed/damaged nonconforming structures and uses as long as nonconformities are not increased upon repair /re- construction. We also suggest increasing the timeframe from 6 to 12 months to apply for building and land use permits. Again, peer cities varied widely in terms of approach to this issue (Exhibit B). They deal with damaged structures in several ways, commonly assigning a maximum percentage of the assessed or appraised development's value (ie.50, 75, or 100 %) for work performed. Others permit the nonconforming structure to be reconstructed and used as before, provided a permit application is received and deemed complete, or construction is complete in a specified timeframe (i.e. 6 months, 12 months, or completion within 36 months). V. PRELIMINARY RECOMMENDATIONS The Mayor recommends a less aggressive approach to address nonconforming development and uses. This approach would encourage investment and upgrades to nonconforming sites, minimize economic hardship on property owners and businesses, and reduce the risk of creation or persistence of blight like conditions. The overall philosophy guiding the proposed amendments is that compliance triggers be proportionate to the scope and scale of improvements being proposed. VI. PLANNING COMMISSION ACTION At a future public hearing the Commission will be asked to take action on the item, consistent with the provisions of FWRC Chapter 19.80.240. At the meeting on July 15, staff is asking for Commission feedback on the general direction of the above policy direction. No formal action will be taken at this meeting. VII. PLANNING COMMISSION NEXT STEPS Staff will consider the input of the Planning Commission and public during the study session and bring back the proposed code amendments for your consideration at a public hearing (yet to be scheduled). EXHIBITS Exhibit A- References Consulted Exhibit B — Jurisdiction Comparison Tables Proposed Code Amendments Pertaining to Nonconformance File 15- 100439- 00- UP /15- 100454 -SE July 15, 2015, Planning Commission Study Session Page 6 of 7 Exhibit A References Consulted Buffington, A. (2005). Nonconforming Uses Packet Synopsis. Retrieved from: littp: / /files.dnr.state.mn.us /waters /watermgmt section/shoreland/Nonconfo rming_Uses DA_LPA.gdf Clark County Development Services. Comprehensive Growth Management Plan Update: Nonconforming lots and legal lots of record FA Q. Retrieved from: http : / /www.clark.wa.gov/Plannin /2g/ 0 ]6update /documents/Nonconformin ag n, diegallotofrecordl:AQ PUB.pdf Ientilucci, A. J. (2003, April 3). "Pigs in the Parlor or Diamonds in the Rough: New Vision for Nonconformity Regulation. "American Planning Association: Zoning News. 1 -6. Lee, D. (2011, March 29). City of Newcastle Planning Commission Report: CBC Design Guideline 50% Value Threshold. Retrieved from: www.ci.newcastle.wa.us /documents /2011- 03- 16PL.pdf Municipal Research and Services Center (2015, May 18). Nonconforming Uses, Structures, and Lots — Regulations. Retrieved from: http: / /mrsc.org/Home /Explore- Topics /Plan n inf,/Development- Refzulations/Nonconform ink;- Uses,- Structures. -and- Lots -Regu latio.aspx Municipal Research and Services Center. (2015, March 9). Subdivisions. Retrieved from: http://mrsc.org/Home/Ex p1 ore -Top ics /Legal /Pl ail ning /Subdivisions.aspx Clark County Development Services. (2012, April 30). Development Services Legal lot determination. Retrieved from: http: / /www.clark.wa.gov /development/land use /documents /lot- determination.pdf Exhibit B Jurisdiction Comparison Tables Table 1 Triggers for Compliance of Existing Nonconforming Development *A nonconforming structure may not be expanded unless the expansion conforms to the regulations of this code. Exhibit B Jurisdiction Comparison Tables Page] of 2 Thresholds for Nonconforming Development Expansions City % of GFA Maximum Square Footage Bellevue* Up to 50% proportional compliance Nonconforming use maybe expanded Over 50% full compliance pursuant to an administrative conditional use permit if the expansions *Does not apply to downtown core > 20% or 20, 000 sq. ft., whichever is less SeaTac 20% for historic buildings 1 dwelling unit for every 3,600 sq. ft. of lot area Lynnwood* Level l- Up to 15% gfa, 2,000 sq. ft., between 10% and 25% of the assessed or appraised value, whichever is greater Level 2- Up to 50% gfa, between 25% and 50% of the assessed value or appraised value, whichever is greater Level 3- Up to 50% of gfa, exceeds 50% of the assessed value or appraised value, whichever is great *All levels have specific requirements for nonconforming improvements to structures and sites Auburn Up to 25% by special exception Work shall not exceed 50% of assessed valuation Kent No concession unless waiver granted by Planning Manager/Director Olympia No enlargement Fife 20% of its existing size and intensity subject to a conditional use permit by the Hearing Examiner *A nonconforming structure may not be expanded unless the expansion conforms to the regulations of this code. Exhibit B Jurisdiction Comparison Tables Page] of 2 Table 2 Loss of Legal- Nonconforming Use Status City Use or Occupancy Ceases Abandonment Federal Way N/A N/A SeaTac 6 months continuous, 12 months over 3 years Lynnwood -- 6 months, unoccupied Fife 1 year Table 3 Example Repair/Reconstruction Timeframes for Damaged Nonconformances City Permit Application (months) Completed Construction Olympia 12 months to secure permit N/A Lynnwood 12 month to achieve "complete application" N/A Kent 12 month to vested application N/A Auburn 1 2 years SeaTac 6 N/A Lynnwood 6 N/A Olympia 12 N/A Fife 12 18 mos. to complete w/ extension option Bellevue Replacement allowed over 3 years Exhibit B Jurisdiction Comparison Tables Page 2 of 2