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HomeMy WebLinkAboutPermit L99-0091 - KEIROUZ JIHAD - APPEALL99 -0091 NOTICE OF APPEAL JAK INC. • s t. W•D' ''00" MAW I—i W O' _ Z� •I— • O 2 Lu • :U �, .11J H— V; • • :. U N` F= H I O .. 2 3 4 5 0 7 8 9 10 11 12 13 14 • • • I; 15 17 13 19 20 21 31 23 24 23 26 FILED KING COUNTY, WASHINGTON SEP 21 2001 SUPERIOR COURT CLERK EXPO2 ECEDVE AUG 2 8 2001 JOHNS MONRQEM TSUNAGA pllc ATTORNEYS AT LAW CLIENT'S COPY IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THE COUNTY OF KING JIHAD KEIROUZ, Petitioner, Cause No.: 00 -2- 07932 -0SEA STIPULATION AND ORDER OF vs. DISMISSAL THE CITY OF TUKWILA, WASHINGTON Respondent. STIPULATION Petitioner and Respondent, by and through their counsel of record, stipulate that all claims and counterclaims that have been or could have been brought herein may be dismissed with prejudice and without costs or fees. Dated: August, 2001 Dated: August,` , 2001 LAW OFFICE OF THOMAS E. STANLEY, JOHNS IviONROE MITSUNAGA Garth R. Brandt, WSBA #30454 Attorney for Petitioner Jihad Keirouz Keirouz v. Tukwila Dismissal Page 1 + l: �k: i::: i.:��.'l�f��:��sliG�i.,i?I�..1 f4't'�i� \ii �i:!.�PI$±•. M�......� R. . ert D. John; ' WSBA #7086 Attorney for Respondent City of Tukwila Thomas E. Stanley Atrorney ar Law 16300 Mill Creek Blvd., Suite 103 Mill Creek, Washington 98012 Telephone (425) 743 -S744 Fas (425) 742 -2505 z =H W JU 'U O. W= J � wo �¢ d =w 0. H= z l— no o w _. w z. =. 01- z 2 3 4 6 7 e 9 1') 12 13 14 15 16 17 13 19 20 • 21 11 • 23 24 25 26 ORDER Pursuant to the foregoing Stipulation, it is hereby ordered that all claims and counterclaims that have been or could have been brought herein are dismissed with prejudice and without costs or fees. Done in Open Court this 19 ti09�G��N SF-Q �� Z;cR CPQ'� GQ�'„550 Day of , 2001 Judge /Commissioner Approved for presentation and entry without further notice: LAW OFFICE OF THOMAS STANLEY d arth R. : randt, WSBA Attorney for Petitioner Jihad Keirouz 0454 JOHNS MONROE MITSUNAGA Robert D. Johns, l4j l3A # 7086 Attorney for Res ndent City of Tukwila Keirouz v. Tukwila Dismissal Page 2 Thomas E. Stanley Attorney of Low 16300 Mill Creek Blvd., Suite 105 Mill Creek, Washington 93012 Telephone (425) 743 -5744 Fax (425) 742 -2505 z . Wiz. re W 6 JU: UO c, o : . • w =; J F.. wO • g u- Q. • _. .Z zo • O co, 0- z z RECEIVED: 3/12/01 2:49PM; - >LAW OFFICE; #2i5; PAGE 2 03/12/01 14:43 FAX 425 451 2818 SENT BY: LAW OFFICE; 2 3 1 • 15 '6 �7 a 1 9 15 16 17 1s 14 20 21 22 23 24 2i 25 JOHNS MONROE MITSUNAGA 425 - 742 -2505; MAR -12 -01 Recei "1u R 2 0 2001 DEVELOPNITy MENT I1002 2 :07PM; PAGE 315 CLIENT'S COPY HONOTE[Eleel.% 2 MAR 1 4 2001 JOHNSMONROEMITSUNAGA pllc ATTORNEYS AT LAW IN THE SUPERIOR COURT OF TT-IF. STATE OF WASHINGTON FOR THE COUNTY OF KING JIHAD ISIROUZ, Petitioners, Vs. TIE CITY OF TUKWILA, WASHINGTON Defendant, Cause No.: 00 -2- 07932 -0SEA STIPULATION AND ORDER OF NEW TRIAL DATE CLERK'S ACTION REQUIRED STIPULATION Plaintiff and Defendant, by and through their counsel of record, stipulate that the trial date, currently scheduled for April 16, 2001, should be rescheduled September 24, 2001, and all other litigation deadlines rescheduled accordingly. This case involves the City of'1'ukwila's Land Use Decision denying Jihad Keirouz's application for a Reasonable Use Exception. The City of Tukwila has agreed to accept and consider a new application and Mr. Keirouz is in the process of completing that application with the assistance of the city's staff. Unless and until the new application is denied, further litigation will be unnecessary. Keirouz v. Tukwila Stipulation and Order of New Trial Date Page 1 r Thomas E. Stanley dummy at Law 16300 Mill Creek Blvd„ Suite 105 Mill Creek, Washington 98012 Telephone (425) 7434744 Fax (425) 742.2,505 nc..c.�vcu; ;.1/12/01 2 :49PM; - >LAW OFFICE; #215; PAGE 3 03)12/01 14:44 FAX 425 451 2818 JOHNS MONROE MITSUNAGA SENT SY.: LAW OFFICE; 425 - 742 -2505; MAR -12 -01 2:07PM; PAGE 4/5 2 3 4. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 e loner Jihad kirouz Dated this _e of F'116. ■c l , 2001 LAW OFFICE OF THOMAS STANLEY Garth R. Brandt, WSBA #30454 Attorney for Petitioner Jihad Keirouz and JAK, Inc, Dated this of , 2001 JO MONROE MJTSUNAGA 01 kid( Robert D. Jo s, WSBA # 7086 Attorney for ' pondent City of Tukwila Dated this 1 Pf , 2001 Keirouz v. Tukwila Stipulation and Order of New Trial Date Page 2 Thomas E. Stanley Attorney at Law 16300 Mill Creek Blvd., Suite 105 Mill Creek, Washington 98012 Telephone (425) 743.5744 Fax (425) 742.2505 RECEIVED: 3/12/01 2:49PM; - >LAW OFFICE; #215; PAGE 4 03/12/O1 14:44 FAX 425 451 2818 JOIiNS AfONROE bfITSUNAGA 2004 ENT 'BY: LAW OFFICE; 425-742-2505; MAR -12 -01 2:07PM; PAGE 5/5 ORDER .t Pursuant to the foregoing Stipulation, it is hereby ordered that the trial of this matter, currently scheduled for April 16, 2001, is rescheduled for September 24, 2001, 3 and all other litigation deadlines shall be rescheduled accordingly. a 5 Done in Open Court this / 3Day of 3 , 2001 6 8 9 to 1L 12 13 1.4 15 16 17 1'9 20 21 22 23 24 25 26 Approved for presentation and entry without further notice: LAW OFFICE OF THOMAS STANLEY Garth R. Brandt, WSBA #30454 Attorney for Petitioner Jihad Keirouz and JAK, Inc. JOHNS MONROE MITS1JNAGA tahaii obert D. JP / WSBA it 7086 Attorney for ' espondent City of Tukwila Keirouz v. Tukwila Stipulation and Order ofNew Trial Date Page 3 Tbomas E. Stanley Aucrney at Law 16300 ■ff Creek B1vd., Suite 105 Mill Creek, Wahinitton 98012 Telephone (425) 743 -5744 Pax (425 )742 -2505 z 0 0. W W W =. F- U) u_ in O • }r: J. LL Q: = C1 ▪ Lu• z F-, 1- O: z lu •U� O 1—. Wi LL 17- —O z U w? Hi z Apr -05 -00 01:15P Kenyon #Law #Firm 1 2 3 4 5 7 9 10. 11 12 13 14 15 16 17 I8 19 20 21. 22 21 24 25 26 e: 0'v /+' P_02 RECEIVED MAR 2 7 2000 Ci 1 1' ur i umviu., CITY CLERK IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THE COUNTY OF KING JIHAD KEIROUZ, Petitioners, Vs. THE CITY OF TUKWILA, an incorporated Municipali in the State of Washington Re • ndent. p? Causee No.: _ • ,0 t) �'' f.: ;v' fir' �: �J ri ..•f{'/, SUMMONS ON PETITION FOR REVIEW OF A LAND USE DECISION To the Respondent(s): A lawsuit has been started against you in the above entitled court by the above named Petitioner(s). Petitioner(s)' claim is stated in the written petition, a copy of which is served upon you with this summons. In order to defend against this lawsuit, you must respond to the petition by stating your defenses in writing, and serve a copy upon the person signing this summons within 20 days after the service of this summons, excluding the day of service, or a default judgment may be entered against you without notice. A default judgment is one where,, petitioner is entitled to what he or she asks for because you have not responded. If you Land Use Petition Page 1 C� Thomas E. Stanley Attorney at Law 16300 Mill Creek Blvd., Suite 105 Mill Crcck, Washington 98012 Telephone (425) 743.5744 Fax (425) 742.2505 Apr -05 -00 01:15P Kenyon #Law #Firm P.03 2 serve a notice of appearance of the undersigned person you are entitled to notice before a default judgment may be entered. If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written response, if any, may be served on time. This summons is issued pursuant to Rule 4 of the Civil Rules and RCW 4.28.080. Land Use Petition Page 2 Dated March 2 0 Thomas E. Stanley, WSBA #17325 Attorney for Petitioner 16300 Mill Creek Blvd., Suite 105 Mill Creek, WA 98012 (425) 743-5744 Thomas E. Stanley Attorney at Law 16300 Mill Crcek Blvd.. Suite 105 Mill Creek, Washington 98012 Telephone (425) 7434744 Fax 025) 742.305 z . _ 1- z 0: 0 O: w= W O. � a z � z o'. M Cl" ,0 cn' CI I; .ww' H 0: o .,z w _' O ~: Apr -05 —O0 01:15P Kenyon #Law #Firm 1 3 4 5 7 9 10 11 12 13 14 I5 16 17 18 19 20 21 22 23 24 25 26 +cY RECEIVED) MAR 27 2000 C11 Y ur i:Ji1..IL,, CITY CLERK IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THE COUNTY OF KING JIHAD ICE UZ and JAK, INC., Petitioner, r, _ • .,,•y ;.. PETITION FOR REVIEW OF A LAND' USE DECISION Vs. Cause No.: x P.04 THE CITY OF TUKWILA, an incorporated Municipality in the State of Washington Res • ondent. Petitioner Jihad Keirouz and JAK, Inc. ( "Petitioner "), for his Petition for Review of The City of Tukwila's Land Use Decision denying his request for a Reasonable Use Exception, in compliance with RCW 36.70C.070, sets forth the following: I. Petitioner's Name and Address: 2. Petitioner's Attorney's Name and Address: 3. Name and Address of Local Jurisdiction That Made the Land Use Decision: 4. Decision Maldng Body: Land Use Petition Page 1 Jihad Keirouz and JAK, Inc. 13407 51st Avenue West Edmonds WA 98026 Thomas E. Stanley 16300 Mill Creek Blvd. Suite 105 Mill Creek WA 98012 The City of Tukwila, Washington 6300 Southcenter Blvd. Suite 100 Tukwila WA 98188 The Tukwila City Council Thomas E. Stanley Attorney at law 16300 Mill Creek Blvd., Suite 105 Mill Creek, Washington 98012 Telephone (425) 743 -5744 Fax (425) 742-2505 Apr -05 -00 0115 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Kenyon #Law #Firm P_05 5. Required Parties per . None RCW 36.70C.040(2)(b) -(d): 6. Facts Demonstrating The Petitioner has standing as the Petitioner has Standing: applicant and owner of the property to which the land use decision was directed per RCW 36.70C.060 (1) 7. Errors Committed by the City of Ttkwila ("the city ") in its' Resolution No. 1440 which denied Petitioner's Reasonable Use Exception and upheld a prior decision by its' Planning Commission, a copy of which is attached: (a) The decision is an erroneous interpretation of the law, including but limited to Section 18.45.115 of the Tukwila Municipal Code ( "TMC ") and relevant case law; (b) The body or officer that made the decision engaged in unlawful procedure or failed to follow a prescribed process, including the process set forth in the TMC, including section 18.45.115; (c) The decision is not supported by evidence that is substantial when viewed in light of the whole record before the court; (d) The decision is a clearly erroneous application of the law to the facts, including but not limited to a misapplication of the criteria for a Reasonable • Use Exception under TMC 18.45.115; (e) The decision violates the constitutional rights of the Petitioner. 8. Statement of the Facts. Petitioner' is the owner of a specific parcel of real property referred to hereinafter as "Lot 12" and legally described as: ' Jihad Keirouz is a property owner. His company, JAK, Inc. is listed on the Reasonable Use Application. Land Use Petition Page 2 IrgSY' � •a.'t Thomas E. Stanley Anornsy at Law 16300 Mill Creek Blvd.. Suite 105 MW Creek, Washington 98012 Telephone (425) 743 -5744 Fax (425) 742.2505 Apr -05 -00 01:16P Kenyon #Law #Firm P.06 2 3 4 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 13' 24 25 26 LOTS 12 IN BLOCK 5 OF ROBBINS SPRING BROOK ADDITION TO RIVERTON, AS PER PLAT RECORDED IN VOLUME 16 OF PLATS, PAGE 57, RECORDS OF KING COUNTY; SITUATED IN THE CITY OF TUKWILA, COUNTY OF KING, STATE OF WASHINGTON. Lot 12 contains type 3 wetlands to such an extent that strict application of the TMC would deny all reasonable use of the lot, Petitioner properly applied for a Reasonable Use Exception under TMC 18.45.115. The city did not process the application properly under the TMC. The city, originally through its' Planning Commission and then through its' City Council, denied his application. Petitioner has exhausted the available remedies in the city's administrative process. In the process of the land use decision, the city made factual errors, including but not limited to the following: (a) The city regarded lot 12 as a part of a larger parcel, when in fact lot 12 was and always has been a separate and distinct legal lot, and was considered as such for other purposes by the city; (b) The city regarded lot 12 as being "segregated" by Petitioner from a larger parcel, when in fact he acquired the lot by separate deed; (c) The city regarded separate adjoining parcels, owned at one time by Petitioner, as containing wetlands when in fact they did not; (d) The city assumed that Petitioner had either constructive or actual knowledge of the wetland condition on Lot 12. This assumption was incorrect, and in any event irrelevant to the criteria for a reasonable use exception under TMC 18.45.115; and (e) The city regarded lot 12 as being developable for other purposes under the TMC when it is not. Land Use Petition Page 3 Thomas E. Stanley Attorney at Law 16300 Mill Creek Blvd., Suite 105 Mill Creek, Washington 98012 Telephone (435) 743 -5744 • Fax (425) 742 -2505 Apr -05 -00 01:16P Kenyon #Law #Firm 2 3 4 6 7 s 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 26 P -07 The foregoing errors resulted in the denial of Petitioner's application for a Reasonable Use Exception for lot 12. As a result the city has,violated Petitioner's rights under the TMC, the Washington State Constitution, ad the United States Constitution. 9. Petitioner Requests the Following Relief: a) An order'stting aside the decision oldie city; b) An order declaring the correct interpretation of the relevant section(s) of the Tukwila Municipal Code at issue; c) An order declaring the decision to be a violation of state and federal constitutional law; and d) An order preserving any other potential future claims for compensatory or monetary damages. Reservation of Claims and Causes of Action. This petition is brought under the Lan Use Petition Act, RCW 36.70C, and Petitioner specifically reserves all other claim or causes of action against the city, including but not to limited claims for consti 'onal violations, civil rights violations, or other claims. Land Use Petition Page 4 Dated March 23, 2000 Thomas E. Stanley, WSBA # 17325 Attomey for Petitioner Thomas E. Stanley Auornry a( Law 16300 Mill Creek Blvd.. Suite 105 Mill Creek, Washington 98012 Telephone (425) 743.5744 • Fax (425) 742 -2505 z ~Z w Q � JU O 0: to tnw J = F- • LL w 0. g Q. • d = w H= z1. 1— o z 2 o: • cri 0 = • U'. —o ..z w U =,. O I- z • Thomas E. Stanley Attorney At Law 16300 Mill Creek Blvd. Suite 105 Mill Creek, WA 98012 Telephone: (425) 743-5744 Fax: (425) 742-2505 October 23, 2000 Robert D. Johns Johns Monroe Mitsunaga 1500 114th Avenue S.E., Suite 102 Bellevue, WA 98004 Re: Keirouz v City of Tukwila Dear Mr. Johns: lipECIEFVE !! 1, OCT 2 4 2003 L JOHNSMONROEMITSUNAGA plIc ATTORNEYS AT LAW caws COPY Enclosed is a copy of the Stipulation and the Order of New Trial Date which was entered on October 16, 2000. I will forward you a case schedule when I receive one. If you have any questions or concerns, please don't hesitate to contact me. Very Truly Yours, arth R. Brandt • Legg] Intern Enclosure Cc: Jihad Keirouz 23 2.000 " z , w 2 6 0 0 0)0 cn w = ai 0 u. co 3 1— in z i-0 z w LLf 0, 0, =, 0 1.- LU 1.1J r- -L6 'a- z 0 co 0 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ECEHE OCT 2 4 2000 JOHNSMONROEMITSUNAGA pllc ATTORNEYS AT LAW HONORABLE LINDA LAU IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THE COUNTY OF KING JIHAD KEIROUZ, Petitioners, Vs. THE CITY OF TUKWILA, WASHINGTON Defendant. Cause No.: 00 -2- 07932 -0SEA STIPULATION AND ORDER OF NEW TRIAL DATE CLERK'S ACTION REQUIRED STIPULATION Plaintiff and Defendant, by and through their counsel of record, stipulate that the trial date, currently scheduled for December 4, 2000, should be rescheduled for April 16, 2001, and all other litigation deadlines rescheduled accordingly. This case involves the City of Tukwila's Land Use Decision denying Jihad Keirouz's request for a Reasonable Use Exception. The City of Tukwila has granted Mr. Keirouz permission to submit a new ;request; .with the caveat that certain additional information will be required. Accordingly, Mr. Keirous is in the process of obtaining and compiling the requisite information. Until and unless the new request is denied, further litigation will likely be unnecessary. 00 Dated: October Q , 2000 Dated: October homas E. Stanley, WSBA #17325 Robert D. Attorney for Petitioner Jihad Keirouz and Attorney JAK, Inc. Keirouz v. Tukwila Stipulation and Order of New Trial Date • Page 1 hns, WSBA # 7086 or Respondent City of Tukwila ORIGINAL Thomas E. Stanley Attorney at Law 16300 Mill'Creck Blvd., Suite 105 Mill Crcek, Washington 98012 Telephone (425) 743 -5744 Fax (425) 742 -2505 ncnwwe. �rzrs,• nxroaxaa :�u�tre- rrew+.ervr.�.++��...,. 1 2 3 5 6 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER Pursuant to the foregoing Stipulation, it is hereby ordered that the trial of this matter, currently scheduled for December 4, 2000, is rescheduled for April 16, 2001, and all other litigation deadlines shall be rescheduled accordingly. i-A sha 1 Done in Open Court this L Day of G- .,--- , 2000 Approved for presentation and entry without further notice: Thomas E. Stanley, WSBA #17325 Attorney for Petitioner Jihad Keirouz and JAK, Inc. Robert . Johns, WSBA # 7086 Attorney for Respondent City of Tukwila Keirouz v. Tukwila Stipulation and Order of New Trial Date Page 2 Thomas E. Stanley Attorney at Law 16300 Mill Creek Blvd., Suite 105 Mill Creek, Washington 98012 Telephone (425) 743 -5744 Fax (425) 742 -2505 =- ''CL 2. 6 • 00: W (n w% J =. H w 0. LL Q. Z� Z I—: .w. mil D o` ..wW' • I p, lLZ' U CrY` • O I—!.. Z mrna�sxw!aaew.,,oe«�,,,,.,.., s7 Thomas E. Stanley Attorney At Law 16300 Mill Creek Blvd. Suite 105 Mill Creek, WA 98012 Telephone: (425) 743 -5744 Fax: (425) 742 -2505 October 5, 2000 Robert D. Johns Johns Monroe Mitsunaga 1500 114th Avenue S.E., Suite 102 Bellevue, WA 98004 Re: Keirouz v City of Tukwila Dear Mr. Johns: RECEIVED OCT 11 2000 COMMUNITY DEVELOPMENT Enclosed is a Stipulation and Order of New Trial Date which will continue the trial from December 4, 2000 to April 16, 2001. I have received approval for the new date from Judge Lau's judicial assistant. If for any reasonApri1.46 s200,11,will not work for you, please contact me as soon as possible. Otherwise, I will take care of filing the order as soon as I receive it back from you. Very Truly Your (earth R. Brandt Legal Intern KENYON DORNAY MARSHALL, PLLC MICHAEL R. KENYON MARGITA A. DORNAY LISA M. MARSHALL ROBERT F. NOE BRUCE L. DISEND THE MUNICIPAL LAW FIRM 11 FRONT STREET SOUTH ISSAQUAH, WASHINGTON 98027 -3820 (425) 392 -7090 (206) 628 -9059 FAX (425) 392 -7071 April 20, 2000 Robert Johns Reed McClure 701 Fifth Avenue, Ste. 3600 Seattle, WA 98104 -7081 Re: Keirouz LUPA matter. Dear Bob: RECEIVED APR 21 2000 C diMUNITY DEVELOPMENT SANDRA S. MEADOWCROFT SIMON STOCKER ELIZABETH A. ABBOTT AARON J. WOLFF STEVE C. KARIMII Thanks for returning my call to let me know that you are available to handle the LUPA portion of Mr. Keirouz's Superior Court action. Enclosed you will find a copy of the Petition, Case Schedule, and my Notice of Appearance which has already been filed. Please file a Notice of Association. I look forward to speaking with you in the near future regarding this matter. Very truly yours, KENYON ORNAY MARSHALL, PLLC Robert F. . oe Enclosures cc: Steve Lancaster F:\ APPS\ MUNI \RFN \LT06559.rfn /rfn /042000//d1 SERVING WASHINGTON CITIES SINCE 1993 Z Q Z`. JU o O' N 0 W I J • u_: o` Ii ¢: w; z o; z ;o 2f LPL rt;i Z. LU :Z Dept. Of Community Development City of Tukwila AFFIDAVIT OF DISTRIBUTION I, DO1( U ` R.>1.0\Ye—HEREB1.' DECLARE THAT: Notice of Public Hearing Project Name X91 (E � Determination of Non - Significance Mailer's Signature: 1 H 11 Notice of Public Meeting Mitigated Determination of Non - Significance Board of Adjustment Agenda Pkt Determination of Significance & Scoping Notice Board of Appeals Agenda Pkt Notice of Action Planning Commission Agenda Pkt Official Notice Short Subdivision Agenda Notice of Application Shoreline Mgmt Permit Notice of Application for Shoreline Mgmt Permit __ FAX To Seattle Times Classifieds Mail: Gail Muller Classifieds PO Box 70 - Seattle WA 98111 V Other OrCI"A-C-Q- . Was ma i l ed to each of the addresses listed on th i s Q,day of t-O,li n the year 20 P:GINAWYNETTA/FORMS /AFFIDAVIT- MAIL01 /24/0011:44 AM 3:.'Si::••,P .,s+tiGa;Wfi1ft.V. u6Wr.Cx • z W JU 00, CO CI U) ILI J = CO W w O. LL? ±' a =w z�. �• z 1—. co O I— w w' • U u- o .z w co 0I z Project Name X91 (E � jIha_A Project Number: IX('c)cPj I Mailer's Signature: 1 H 11 P:GINAWYNETTA/FORMS /AFFIDAVIT- MAIL01 /24/0011:44 AM 3:.'Si::••,P .,s+tiGa;Wfi1ft.V. u6Wr.Cx • z W JU 00, CO CI U) ILI J = CO W w O. LL? ±' a =w z�. �• z 1—. co O I— w w' • U u- o .z w co 0I z ILA, .!kt • r � so8 v M/1 R Q f 20g City of T Washington Resolution No. %'/ 5/D A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DENYING AN APPEAL BROUGHT BY JIHAD KEIROUZ, D.B.A. JAK, INC., CONCERNING THE TUKWILA PLANNING COMMISSION DECISION DENYING HIS REQUEST FOR A REASONABLE USE EXCEPTION. WHEREAS, Jihad Keirouz, d.b.a. JAK, Inc., filed an appeal (L99 -0091) on December 27, 1999 after the Tukwila Planning Commission denied his request for a Reasonable Use Exception (L99 -0049) to fill a Type 3 wetland and alter a Type 3 watercourse at 13031 — 33rd Ave. S.; and WHEREAS, the City Clerk advertised in The Seattle Times on February 4, 2000 that the Closed Record Appeal would be heard on February 22, 2000; and WHEREAS, the City Council held a Closed Record Appeal hearing on February 22, 2000 to review the record of the Planning Commission hearing and to consider the arguments of the parties; and WHEREAS, the City Council closed the hearing on the appeal and, after deliberations, rendered a decision 7 -0 upholding the Planning Commission's denial of the Reasonable Use Exception request brought by Jihad Keirouz, d.b.a. JAK, Inc.; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The City Council upholds the Planning Commission's decision denying the applicant's request for a Reasonable Use Exception, because the Planning Commission's decision is supported by substantial evidence in the record and their decision was not based on erroneous interpretation or application of the law. PASSED BY THE CITY COUNCIL OF THE CITY OF TU, KWILA, WASHINGTON, at a Regular Meeting thereof this 6 day of 72ic'/r.e , 2000. ATTEST /AUTHENTICATED; &. 04_4x.5 E. Cantu, CMC, City Clerk APPROVED AS TO FORM: By: Office of the C' Attorney Filed with the City Clerk: o. D Passed by the City Council: (v /01-7) Resolution Number /VP APPEAL- KEIROUZ 3 -2000 4/29/99 ouncil Presi Apr -05 -O0 01:16P Kenyon #Law #Firm P.08 MAR 072000 C it of Tukwi!Pr Washington Resolution No. l V1/4) ) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DENYING AN APPEAL BROUGHT BY JIHAD KEIROUZ, D.B.A. JAK, INC., CONCERNING THE TUKWILA PLANNING COMMISSION DECISION DENYING HIS REQUEST FOR A REASONABLE USE EXCEPTION. WHEREAS, Jihad Kelrouz, d.b.a. JAK, Inc., filed an appeal (L99.0091) on December 27, 1999 after the Tukwila Planning Commission denied his request for a Reasonable Use Exception (1.99.0049) to fill a Type 3 weUand and alter a Type 3 watercourse at 13031 — 33rd Ave. S.; and WHEREAS, the City Clerk advertised In The Seattle Times on February 4, 2000 that the Closed Record Appeal would be heard on February 22, 2000; and WHEREAS, the City Council held a Closed Record Appeal hearing on February 22, 2000 to review the record of the Planning Commission hearing and to consider the arguments of the parties; and WHEREAS, the City Council closed the healing on the appeal and, after deliberations, rendered a decision 7-0 upholding the Planning Commission's dental of the Reasonable Use Exception request brought by Jihad Kelrouz, d.b.a. JAK, Inc.; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The City Council upholds the Planning Commission's decision denying the applicant's request for a Reasonable Use Exception, because the Planning Commission's decision is supported by substantial evidence In the record and their decision was not based on erroneous Interpretation or application of the law. PASSED BY THE CITY COUNCIL OF T4Fy/ILA1 C TY WASHINGTON, at a Regular Meeting thereof this la r day of r , 2000. ATTEST /AUTHENTICATED; e. E. Cantu, CMC, City Clerk APPROVED AS TO FORM: By: Office of the Attorney Filed with the City Clerk: J I Passed by the City Council: 60/ r Resolution Number JV AIWA-KM= 3-2000 9R9N9 &oPresLt MAR 9 2000 11I(MAS E. STAULEY ATTOil NEYAI LAW Apr -05 -00 01:16P Kenyon #Law #Firm • IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THE CO Y OF KING RECEIVED vs. MAR 1 8 2000 TY • K Petitioner(s), Respondent(s). ITV A ORNE NO. I �� �'::� a •. u ORDER-SETTING CASE SCHEDULE (Land Use Petitition - RCW 36.70C) ^r sl'rev ASSIGrED JUDGE: M R 27 2000 CITY ur Tuhwu.A CITY CLERK Pursuant to the Revised Code of Washington (RCW 36.70C) the King County Superior Court issues an Order Setting Case Schedule (Land Use Petition) when a Land Use Petition is filed with the King County Superior Court. It is ORDERED that all parties involved in this action shall comply with the schedule listed below and that failure to meet these event dates will result in the dismissal of the petition. It is FURTHER ORDERED that the party filing this action must serve this Order Setting C' - - . le (Land Use Petition) and attachment on all other parties. P_09 I. ORDER DATED: 3/27/2000 BRI II. CASE SCHEDULE SID : G JUDGE CASE EVENT DEADLINE or EVENT DATE Petition for Review of Land Use Decision Filed and'Schedule Issued (RCW 36.70C.040) Mon 3/27/00 DEADLINE to Contact Assigned Judge to Confirm Initial Hearing (RCW 36.70C.080) • Mon 4/03/00 Mon 4/24/00 Fri 5/19/00 . . Thu 6/29/00 Mon 7/24/00 • DEADLINE to Stipulate or File a Motion for Change of Hearing Date or Adjustment of Schedule (RCW 36.70C.080(1); RCW 36.70.090) Initial Hearing on Jurisdictional and Preliminary Matters (FRIDAYS ONLY) (RCW 36.70C.080) DEADLINE for Filing Certified. Copy of the Local Jurisdiction Record (RCW 36.70C.110) 1 DEADLINE for filing Brief of Petitioner [RCW 36.70C.080(4)] le DEADLINE for filing Brief of Respondent (RCW 36.70C.080(4)] • i DEADLINE for filing Reply Briefs [RCW 36.70C.080(4)] Review Hearing/Trial Dare (MONDAYS ONLY - Approximately 154 days after filing) (RCW 36.70C.090) Mon 8/14/00 Mon 8/21/00 Mon 8/28/00 __ J Indicates a document that must be filed with the Superior Court .Clerles Office by the date shown. "I understand that I am required to give a copy of these documents to all parties in this case." Print Name Sign Name IMPORTANT! Carefully READ ALL NOTICES on the back of this page. Rev 5/26/99 oc et o e: * RSCS SiyiMZ8tkstgy -._ — tovto1 eocttk rxsvztvta1fKn!`trk4, r ht'rvov.P7>vve,r.+.±.w.o.. ,.ru>., -,- •+r>•ortue.u; sec,ttrzttsr.. w.n,,r„,,,„ jpYr , Apr -05 -00 01:17P Kenyon #Law #Firm LAND USE PETITION CASE SCHEDULE III. NOTICES THE PERSON (PETITIONER) SEEKING REVIEW OF A LAND USE DECISION MUST: 1. File a Land Use Petition within the time frames as instructed by applicable RCW 36.70C.040. 2. Serve a copy of the Land Use'Petition and this Order Setting Case Schedule (Land Use Petition) (including these Notices) on all other parties to this action. You, as the person who started this Petition, must make sure 2 the other person and/or agency is notified of your action and gets a copy of the Schedule. See, Revised Code = of Washington RCW 36.70C.040(5). Your signature must appear on the other side of this form showing that w you understand that you must make sure the other person and/or agency gets a copy of this form. 3. Pay the statutory filing fee to the Clerk of the Superior Court in which the Petition is filed. -a p Co NOTICE TO ALL PARTIES: _ All attorneys and parties should make themselves familiar with the rules of the court -- especially those referred to in CO "- w O. this Schedule. In order to comply with the Schedule, it will be necessary for attorneys and parties to pursue their II 2 appeals vigorously from the day they are filed. All events must occur promptly. If they are late, the Superior Court g 5 Clerk is authorized by the King County Superior Court Local Rules to schedule the petition for a dismissal hearing. LL- co STIPULATION/MOTION TO CHANGE INITIAL HEARING: • I in z� . Parties may file a stipulation or any party may file a motion to change the initial hearing prior to the deadline as z 0 shown on the Schedule. A copy of the stipulation or motion must be filed with the assigned Judge. Preliminary w hearings must be set on Fridays. Stipulated change of hearing dates must be within +/- 7 days of the original date and must be approved by the assigned judge. o ,O D- o E- MOTIONS ON JIrRISDICTIONAL AND PROCEDURAL ISSUES: w w Motions on jurisdictional and procedural issues shall comply with Civil Rule 7 and King County Local Rule 7, except H that the minimum notice of hearing requirement shall. be 8 days. z o PENDING DUE DATES CANCELED BY FILING PAPERS THAT RESOLVE THE CASE: O When a final decree, judgment, or order of dismissal of all claims is filed with the Superior Court Clerk's Office, and z a courtesy copy delivered to the assigned judge, all pending due dates in this Schedule are automatically canceled, including the scheduled Trial Date. It is the responsibility of the parties to 1) file such dispositive documents within 45 days of the resolution of the case, and 2) strike any pending motions by notifying the bailiff of the assigned judge. Parties may•also authorize the Superior Court to strike all pending due dates and the Trial Date by filing a Notice of Settlement pursuant to KCLR 41, and forwarding a courtesy copy to the assigned judge. If a final decree, judgment or order of dismissal of all claims is not filed by 45 days after a Notice of Settlement, the case may be dismissed with notice. P.10 If you miss your scheduled Trial Date, the Superior Court Clerk is authorized by KCLR 41(b)(2)(A) to present an Order of Dismissal, without notice, for failure to appear at the scheduled Trial Date. NOTICES OF APPEARANCE OR WITHDRAWAL AND ADDRESS CHANGES: All parties to this action must /seep the court informed of their addresses. When a Notice of Appearance /Withdrawal or Notice of Change of Address is filed with the Superior Court Clerk's Office, parties must provide the assigned judge with a courtesy copy. NOTICE OF NON - COMPLIANCE FEES: ALL parties will be assessed a fee authorized by King County Ordinance 13330 whenever the Superior Court Clerk must send notice of non - compliance of schedule requirements as per Local Rule 4 and/or dismissal of actions as per Local Rule 41. Notice Regarding Land Use Petition Case Schedule October 1s, 1999 Apr -05 -O0 01:17P Kenyon #Law #Firm IV. ORDER ON ASSIGNMENT TO INDIVIDUAL CALENDAR • READ THIS ORDER PRIOR TO CONTACTING YOUR ASSIGNED JUDGE This case has been assigned to the Individual Calendar (LC.) Judge whose name appears in the caption of this Schedule. The I.C. Judge will preside over and manage this case and will conduct trials, motions, and conferences in this minter until completion of all issues. COMPLEX LITIGATION: If you anticipate an unusually complex or lengthy trial, please notify the assigned court as soon as possible, The following procedures hereafter apply to the processing of this case: Applicable Rules: Except as specifically modifiedlow, all the provisions of KCLR 4-26 shall apply to'the processing of civil cases before I.C. Judges. I.C. Schedule and Requirements: A. Trial: Trial Is confirmed for 00 a.m. on the date on the Schedule. The Friday before trial, the assigned court will contact the parties to determi • e status of the case•and inform the parties of any adjustments to the Trial Date. 1• B. Joi t Status Reps 120 day before the Trial Date, parties shall prepare and file. with a copy to the assigned judge, a joint status report setting forth the nature of the case, whether ajury demand has been filed. the expected duration of the trial,-the status of discovery, the need to amend pleadings or add parties, whether a settlement conference has been scheduled, special problems, etc. Plaintiff s/Petitioner's. counsel is responsible for proposing and contacting the other parties regarding said report. C. Pretrial Conference: A pretrial conference will be scheduled by the assigned judge. Approximately thirty (30) days before the conference, you will receive an Order Setting Pretrial Conference that will set the specific date and time for the conference. The conference will be held in the courtroom of the assigned judge, and the following nonexclusive list of matters will be addressed at that time: 1) Status of settlement discussions; 2) Jury trial -- selection and number of jurors; 3) Potential evidentiaryprobleras; 4) Potential motions in liming; 5) Use of depositions; 6) Deadlines for nondisposicive motions; • ') Procedures to be followed with respect to exhibits; 8) 'Witnesses -- identity, number, testimony; 9) Special needs (e.g. interpreters, equipment); 10) Trial submissions, such as briefs, Joint Statemenrof Evidence, jury instructions, voir dire questions, etc. 11) Receipt of Public Assistance Payments (Domestic Cases) -- If any party is on public Assistance, notify the Prosecutor's Office of this proceeding now at 296 -9020. D. Settlementllvfediation/ADR: 1) 45 days before the Trial Date; counsel for plaintiff shall submit a written settlement demand. Ten (10) days after receiving plaintiffs written demand. counsel for defendant shall respond (with a counteroffer, if appropriate). • • 2) 30 days before the Trial Date, a sectlement/mediation/ADR conference shall have been held. FAILURE TO COMPLY WITH THIS SETTLEMENT CONFERENCE REQUIREMENT MAY RESULT IN SANCTIONS. 3) 20 days before the Trial Date, counsel for plaintiff shall advise the assigned judge of the progress of the settlement process. SEE NEXT PAGE P.11 Apr -05 -00 01:17P Kenyon #Law #Firm I.C. Motions Procedures: ' A. Noting of Motions 1) Dispositive Motions: All Summary Judgment or other motions that dispose of the'caie in whole or in part will be heard with oral argument before the assigned judge. The moving party must arrange with the bailiff a date and time for the hearing, consistent with the court rules. 2) Nondispositive Motions: These motions, which include discovery motions. will be ruled on by the assigned judge without oral argument. unless otherwise ordered. All such motions must be noted for a date by which the ruling is requested; this date must likewise conform to the applicable notice requirements. Rather than noting a time of day, the Note for Motion should state "Without Oral Argument." 3) Motions in Family Law Cases: Discovery motions to compel, motions in Iiminc and motions relating to trial dates.shall be brought before the assigned judge. All other motions should be noted and heard on the Family Law Motions Calendar. 4) Emergency Motions: Emergency motions will be allowed only upon entry of an Order Shortening Time. However, emergency discovery disputes may be addressed by telephone call, and without written motion, if the judge approves. . . B. Filing of Papers All original papers must be filed with the Clerk's Office on the bth floor. The working copies of all papers in support or opposition must be marked on the upper right corner of the first page with the date of consideration or hearing and the name of the assigned judge. The assigned judge's working copy trust be delivered to his/her courtroom or to the judges' mailroom. Do not file working copies with the Motions Coordinator, except those motions'to be heard on the Family Law Motions Calendar, in which case the working copies should be filed with the Family Law Motions Coordinator. 1) Original Proposed Order: Each of the parties must include in the materials submitted on any motion an original proposed order sustaining his/her side of the argument. Should any party desire a copy of the order as signed and filed by the judge; a preaddressed, stamped 'envelope shall accompany the proposed order. 2) Presentation of Orders: All orders, agreed or otherwise, must be presented to the assigned judge. If that judge is absent, contact the assigned court for further instructions. If another judge enters an order on the case, counsel is responsible for providing the assigned judge with a copy. Proposed orders finalizing settlement and/or dismissal by agreement of all parties shall be presented to the assigned judge or in the Ex Parte Department. Formal Proof in Family Law cases must be scheduled before the assigned judge by contacting the bailiff, or•Formal Proof may be entered in the Ex Parte Department. If final orders and/or Formal Proof are entered in the Ex Parte Department, counsel is responsible for providing the assigned judge with a copy. C. Form: Memoranda/briefs for matters heard by the assigned judge may not exceed 24 pages for dispositive motions and 12 pages for nondisposicive motions, unless the assigned judge permits over - length memoranda/briefs in advance of filing. Over - length memoranda/briefs and motions supported by such memoranda/briefs may be stricken. IT IS SO ORDERED. FAILURE TO COMPLY WITH THE PROVISIONS OF THIS ORDER MAY RESULT IN DISMISSAL OR OTHER SANCTIONS. PLAENT1FF/PETITIONER SHALL FORWARD A COPY OF THIS ORDER AS SOON AS PRACTICABLE TO ANY PARTY WHO' HAS NOT RECEIVED THIS ORDER. revised I /10/2000 KIA JUDGE P -12 its• ,Stuff» Apr -05 -00 01 :18P Kenyon #Law #Firm 1 2 3 4 5 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY JIHAD KEIROUZ, vs. Petitioner, THE CITY OF TUKWILA, an incorporated Municipality in the State of Washington, Respondent. NO. 00 -2- 07932 -OSEA NOTICE OF APPEARANCE P_13 TO: JIHAD KEIROUZ, Petitioner; TO: THOMAS F. STANLEY, Attorney for Petitioner; AND TO: CLERK OF THE COURT. Respondent City of Tukwila appcars in this action through Robert F. Noe and Kenyon Dornay Marshall, PLLC (the "Attorneys of Record "), 11 Front Street South, Issaquah, Washington 96027 -3820, without waiving objection as to improper service, venue, or jurisdiction, and requests that all further papers and pleadings herein, except original process, be served upon the Attorneys of Record at the address shown on this Notice. /// /// NOTICE OF APPEARANCE - 1 r: \APPS\ MINT \RFN \HL06493.rfh /pa1/040100//dl KF,NYON DORIVAY MARSHALL. PLI.0 THE MUNICIl:4LLAW FIRM 11 F orrr STawar Sotrrx ISSAQUAN. WASHINGTON 98027 -3820 (425) 392.7090 FAX (425) 392 -7071 z s. �Z • tr 2 JU. 00. CO 111 U U. J N u_ ul 0}: • ¢ co =d 1- i.. z I- 0 z 1—. ET .0 WI.- W` Iii z' H =� z • .Apr -05 -O0 O1:18P.Kenyon #Law #Firm 10 .11 12. 13 14 15. 161 17 18 19 20 21 22 23 24 25. DATED this P - 14 day of April, 2000. KENYON DORNAY MARSHALL, PLLC NOTICE OF APPEARANCE - 2 F,\ APPS\ NUb12 \RFN \PLO*493.rfn /ea1/040t00//d1 By e?. Robert WSBA No. .730 Attorneys for Respondent KENYON DORNAY MARSHALL, PLLC TlwMuNn'rvwLAW Fay 11 FxoNT STREer Soon+ TSSAouAH. WASHINGTON 98027.3820 (425) 392.7090 FAX (425) 392 -7071 .z • <•L. L •UO` •UU :cnw; wz .1 H U_: W O u. a;. �w z O. z UJ • ,0 W W .Z — 0; 111 Z co O •Z JOHNSMONROEMITSUNAGA P L L C March 7, 2001 Garth R. Brandt Law Office of Thomas E. Stanley 16300 Mill Creek Blvd., Suite 105 Mill Creek, WA 98012 Re: Keirouz v. City of Tukwila Dear Mr. Brandt: Jac, Robert D. Johns Michael P. Monroe Darrell S. Mitsunaga Hilary S. Franz RECE WED MAR r 2 fir COMM'L ;M-,.,: "'3''f DEVELOs „'MENT The letter responds to your most recent letter discussing the issues pertaining to a reasonable use application in the above matter. You state that Mr. Keirouz is uncertain as to how to remedy his past actions. As you are certainly aware, it would be inappropriate for me to suggest a particular course of action, particularly in light of your client's ongoing litigation in this matter. The City's decision regarding a reasonable use exception application is discretionary. The City has the authority, but is not required, to grant such an application if it determines that it would be in the public interest to do so and if the application complies with applicable code requirements. Certainly, in any case, the City will provide a fair review of any application submitted by your client in this matter. However, you have erroneously assumed that a review of such an application for a reasonable use exception would be based exclusively on the provisions of the Tukwila Municipal Code and that the City will not consider constitutional principles. You have also assumed that reasonable use of the property has been denied your client. In fact, your assumptions directly contradict the City's position, the decisions of the Planning Commission and City Council, and my discussion of the matter with you. The City's review of any application for a reasonable use exception would be discretionary, based on all applicable constitutional, state and local law. No representative of the City, including the Planning Director and their attorneys can guarantee any particular outcome or decide what the pivotal issues will be without actually reviewing the application and all other necessary information.. As I have tried to explain to you, because the reasonable use process is discretionary, the City does have the authority to weigh the facts, consider all aspects of your client's application and T: (425) 451 -2812 • F: (425) 451 -2818 Cypress Building 1500 114th Ave. SE • Suite 102 • Bellevue, WA 98004 • a • Garth R. Brandt March 7, 2001 Page 2 determine whether, when all factors are considered, it would be appropriate to allow your client to develop the property despite the fact that almost all of the site is wetlands. If your client wishes to submit a revised application which he believes addresses the City's concerns, he is free to do so and it will be reviewed by the City as required by law. As a final matter, you requested a response to your letter in this matter by March 1, 2001. Please understand that I am often not able to respond to your letters in the timeframe you might desire. Simply, your request that no response by a certain date be understood as agreement to your position would not an accurate reflection of the situation, and would clearly be contrary to our discussions and the City's position in this matter. Very truly yours, Robert D. Johns cc: Jack Pace, City of Tukwila Document2 Direct Tel: (425) 467 -9960 Email: johns @jmmlaw.com JOHNSMONROEMITSUNAGA I'LLC z _ 5. 0 0; Nom, ,U) IL =. F-. w0 g a_? = Ci` F- 111 Z 0 .z IL •Do 0 F- W W 91 a LIJ on; ..z 2 Law Office of Thomas E. Stanley 16300 Mill Creek Blvd., Suite 105 Mill Creek, Washington 98012 Telephone (425) 743 -5744 Fax (425) 742 -2505 FEB 2 3 2001 JOHNSMONROEMITSUNAGA pllc ATTORNEYS AT LAW Garth R. Brandt, Attorney at Law = Email: BrandtLegal @aol.com , ..� w February 22, 2001 _1 0 . cn° • w= 1--: U) w0 Robert D. Johns 2 Johns Monroe Mitsunaga L 1500 114th Avenue S.E., Suite 102 a. Bellevue, WA 98004 Z z0 Re: Keirouz v City of Tukwila w C.)° Dear Mr. Johns: 0 El °H w w: This letter will confirm.the telephone conversation we had on February 21, 2001, 0 concerning the above referenced matter, and the issues discussed therein. "-- O z w N: As I explained to you, Mr. Keirouz is very uncertain as to how he should proceed in this p matter. While the City of Tukwila has agreed to consider a new application for a 0 Reasonable Use Exception ( "RUE ") for the subject property, it has previously documented its position that the subject property is not deserving of a RUE "regardless of the merits of any plan that the applicant may develop to address ...water issues." (See . City of Tukwila Staff Report, Prepared December 3, 1999). Accordingly, Mr. Keirouz is understandably skeptical as to whether he should invest additional time and money at this point on wetland mitigation planning, as the city now suggests. Obviously, if the city is unwilling to overlook its above stated position, such an investment should not be made unless and until the disputed legal issues are resolved in Mr. Keirouz's favor. In order to resolve this uncertainty, you have assured me that, regardless of the city's previous position, it's primary focus in considering RUE applications now, is the net cost/benefit the proposed activity will have on the community. Effectively, this means that if Mr. Keirouz's submits a new application, the city will not deny his application on the basis of constitutional law issues such as those relied upon in denying his first application. Rather it will apply the pertinent criteria in the Tukwila Municipal Code. ( "TMC ") under the assumptions that strict application of the TMC "would deny all reasonable use of the property" (TMC 18.45.115 (C)(1)), and that "the inability to derive reasonable use of the property is not the result of actions by the applicant..." (TMC x 18.45.115 (C)(4)(g). In particular, it will assess the overall effect the proposed activity will have on the wetlands in the area. If you have any concerns regarding the above reiteration of our telephone conversation, please contact me at your earliest convenience. If I do not hear from you before March 1, 2001, I will assume that you concur with my reiteration. Thank you for your efforts to resolve this matter. amicably. Very Truly Your Garth R. Brandt Cc:. Jihad Keirouz 1 City of Tukwila 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Office of the City Clerk 6200 Southcenter Blvd. Tukwila, WA 98188 J. A. K., Inc., by Jihad Keirouz, vs. City of Tukwila, Appellant, Appellee Statement for Transcripts Preparation February 22, 2000 March 06, 2000 I, Robert H. Baker, am a Certified Municipal Clerk, serving in the capacity of Deputy City Clerk fo the City of Tukwila. I affirm that I prepared two verbatim transcripts in association with the above captioned matter. The following is a statement of cost in connection with the preparation of sai transcripts PAGES: Transcript from 02/22/00 - 31 pages Page Rate $26.00 X 31 pages = $ 806.00 Transcript from 03/06/00 - 1 page Page Rate $26.00 X 1 page = $ 26.00 BINDER: Transcript from 02/22/00 1 binder at $1.99 = $ 1.99 TOTAL: DATED this 1st day of June, 2000. 4 = $ 833.99 Robert H. Baker, CMC, Deputy City Clerk City of Tukwila Office of the City Clerk 6200 Southcenter Blvd. Tukwila, WA 98188 (206) 433 -1800 CC© 12)Y Sf 1 2 3 4 5 6 7 8. 9 10 11 12 } • 13 14 15 16 17 18 19 20 21 22 23 24 25 City of Tukwila Office of the City Clerk 6200 Southcenter Blvd. Tukwila, WA 98188 (206) 433 -1800 J. A. K., Inc., by Jihad Keirouz, vs. City of Tukwila, Appellant, Appellee Verbatim Transcript of Proceedings City Council Regular Meeting March 06, 2000 NEW BUSINESS Let it be remembered that the following took place before the City Council for the City of Tukwila, on Monday, March 06, 2000, at 7:00 p.m., Council Chambers, City Hall, 6200 Southcenter Boulevard, Tukwila, Washington. Keirouz Appeal — File No. L99 -0091. I, Robert H. Baker, am a Certified Municipal Clerk, serving in the capacity of Deputy City Clerk for the City of Tukwila. I affirm that I prepared the attached transcript of proceedings and further affirm it to be complete, exact and true to the best of my abilities; based upon the cassette recordings used in its preparation. DATED this 1st day of June, 2000. (yam: LDA, Ftobert H. Baker, CMC Deputy City Clerk City of Tukwila Office of the City Clerk 6200 Southcenter Blvd. Tukwila, WA 98188 (206) 433 -1800 z • 6 J U U0 u, a.. wz - H CO u_ w0 g a. • • z • 1-0 zt-, ill al UD Ui ww - ` LL ..z. w O z 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR MULLET: Now we're on to new business which is a resolution denying an appeal brought by Jihad Keirouz, uh, J.A.K., Inc. Councilmember Haggerton: I move the resolution be read by title only. Councilmember Duffle: Second. Mayor Mullet: It's been moved and seconded to read the resolution by title only. All in favor Entire Council: Aye. Mayor Mullet: Any opposed? (No response) Bob. City Attorney Noe: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DENYING AN APPEAL BROUGHT BY JIHAD KEIROUZ, D.B.A. J.A.K, INC., CONCERNING THE TUKWILA PLANNING COMMISSION DECISION DENYING HIS REQUEST FOR A REASONABLE USE EXCEPTION Councilmember Haggerton: I move the resolution be adopted as read. Councilmember Hernandez: Second. Mayor Mullet: It's been moved and seconded. Is there discussion? (no response) Seeing none, uh, it's been moved and seconded, that, that the resolution denying the appeal. All in favor, say aye. Entire Council: Aye. Mayor Mullet: Any opposed. (no response). That one carries. / / /// City of Tukwila— Office of the City Clerk Page 1 of 1 Keirouz Appeal File No. 99 -0091 runenvwrr. ant 0 0. rn J H W O, An a • =a: F..w z�: • I—O .Z 1- .W uj '0 0 • •0 H • W ui. 0. .. z:. W 0 • `Z 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City of Tukwila Office of the City Clerk 6200 Southcenter Blvd. Tukwila, WA 98188 (206) 433 -1800 J. A. K., Inc., by Jihad Keirouz, vs. City of Tukwila, Appellant, Appellee ) ) ) Verbatim Transcript of Proceedings ) ) City Council Regular Meeting ) Februrary 22, 2000 ) ) Agenda Item 9 ) ) Let it be remembered that the following closed - record, quasi-judicial public hearing took place before the City Council for the City of Tukwila, on Tuesday, February 22, 2000, at 7:00 p.m., Council Chambers, City Hall, 6200 Southcenter Boulevard, Tukwila, Washington. Keirouz Appeal — File No. L99 -0091. I, Robert H. Baker, am a Certified Municipal Clerk, serving in the capacity of Deputy City Clerk for the City of Tukwila. I affirm that I prepared the attached transcript of proceedings and further affirm it to be complete, exact and true to the best of my abilities; based upon the cassette recordings used in its preparation. DATED this 25th day of May, 2000. f . obert H. Baker, CMC, Deputy City Clerk City of Tukwila Office of the City Clerk 6200 Southcenter Blvd. Tukwila, WA 98188 (206) 433 -1800 CCU z = �. W re 2 o O' Nc. J 0) IL w o. _5 N d = F- w = z� 1-- o. zI Cl: Lit O -; D F- wW 1-- U LL ~O ..z. w O ~. z . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CITY OF TUKWILA Office of the City Clerk Index to Verbatim Transcript of Proceedings Re: Keirouz Appeal, File No. 99 -0091 Appeal of Planning Commission's Denial of Request for Reasonable Use Exception Heard by the Tukwila City Council on February 22, 2000. SPEAKER'S NAME PAGE(S) (in order of speaking and /or introduction) MAYOR STEVEN M. MULLET 1, 2, 3, 4, 5, 11, 12, 13, 15, 16, 18, 22, 23, 24, 25, 27, 29, 30, 31 CITY ATTORNEY ROBERT F. NOE 1, 2, 3, 4, 5, 13, 16, 27, 30 COUNCILMEMBER PAM CARTER 2, 3, 4, 12, 13, 17, 23, 24, 26, 27, 29, 30 COUNCILMEMBER JOE H.DUFFIE 3, 5, 16, 22, 26, 27, 31 COUNCILMEMBER JOAN HERNANDEZ 4, 13, 14, 15, 27, 28, 31 ATTORNEY TOM STANLEY 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 23, 24, 25 COUNCILMEMBER PAMELA LINDER 15, 16, 24, 25 COUNCILMEMBER DAVE FENTON 16, 17, 18, 29 ATTORNEY BOB JOHNS 18, 19, 20, 21, 22, 23 COUNCILMEMBER JIM HAGGERTON 18, 22, 23, 25, 26, 27 COUNCILMEMBER RICHARD SIMPSON 29 ALL COUNCILMEMBERS 30 STEVE LANCASTER 31 D / / / / / / / / / / / / / / / / / / / / /// O F / / / / / / / / / / / / / / / / / /// INDEX // //// • Z -W, -I U• 00 Ill w O. u-_ =a w z1._ �o z F- U 0 I- W U1 H U. .Z o 0 Z 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR MULLET: CITY ATTORNEY NOE: City of Tukwila— Office of the City Clerk Next up is the public hearing on an appeal of the Planning Commission's denial of request for reasonable use exception to construct a home. This is a closed- record, quasi-judicial hearing. Everybody got a binder, which I hope we all brought; and before we start, I'd like to ask our attorney Bob Noe, to read or uh, summarize a letter that he wrote to the Councilmembers which explains, uh, what's going on here and what the options are. Bob. Good evening. Robert Noe for the record. Uh, this is a closed- record appeal. In other words, an appeal that no new evidence can be taken on. The City Council tonight will either remand an appeal by the Planning Commission decision that was an open- record appeal. Uh, the Planning Commission engaged in a fact finding and then drew a conclusion from the facts that were uh, illicited at the open- record appeal or open- record hearing. The closed record appeal, uh, the City Council basically acts as a Court, Court of Appeals. All you do is hear arguments from both sides. There is no new testimony. There won't be a swearing in of any witnesses. You'll have the appellants representative making an argument based on the record; then you'll have the City's uh, staff person doing a response; and then having uh, uh, providing any rebuttal. The appellant will have 15 minutes to present its case. The City will have a 15- minute response period; and then the appellant will have a 5- minute rebuttal period. And then it's closed after that. The, the decision that you make tonight is well, basically, a final of the Planning Commission's decision. Should it be upheld based on substantial evidence in the record. If there is Page 1 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 '23 24 25 substantial evidence in the record to support the Planning Commission's decision, then, it must be upheld. If there isn't substantial evidence in the record supporting that decision, then, the Council has the uh, option to overturn the decision and remand it back for further consideration on the mitigation plan uh, proposed by the appellant. Are there any questions? MAYOR MULLET: Yeah. I had one on procedure, Bob. You said that (cough) excuse me, we're all dying up here of various colds. Um, the Council can ask questions of the uh, um, appellant and the staff. Should that be done after their 15 minutes are up so they have a clean time span; or should it wait till the end after both has spoke and rebuttal happens? CITY ATTORNEY NOE: Well, the cleanest way to do it will be to reserve questions until after the presentation. However, that, that's not a hard and fast rule. If there are questions that need answers immediately, then the Council should feel free to go ahead and ask those questions, interrupt the speaker, and ask those questions. MAYOR MULLET: O.K. CITY ATTORNEY NOE: There's no hard and fast rule on that, so long as the, uh, each side has an adequate opportunity to present their, their side. MAYOR MULLET: Council, how would you like to do that? COUNCILMEMBER CARTER: I, I, think it's easiest to keep track of if they do their straight 15 minute shot. MAYOR MULLET: So I'll let `em speak their 15 minutes and then before they leave you can ask any questions that you need clarity on. O.K. That's how we'll proceed on that. Any other questions. Pam. City of Tukwila — Office of the City Clerk Page 2 of 31 Kcirouz Appeal File No. 99 -0091 s. wwvxwn+ aw. x+ r. ma�wwnrgR ^riMM!Vn+n:rM!.�gtWfY_,•fgTS�R 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMEMBER CARTER: I just wanted to make sure I've got it clear in my mind. Rather than, than sitting and thinking, gee, if I was on the Planning Commission I would decide this way or that way; it's our job to look at, was, given what they looked at, was it reasonable to follow the law, the solution that the Planning Commission arrived at. CITY ATTORNEY NOE: That's correct. COUNCILMEMBER CARTER: IS, is, there is a difference between the two in my mind anyhow. So, so, we're reviewing what they did and did they apply the law; rather than what our personal opinion is. CITY ATTORNEY NOE: COUNCILEMBER CARTER: CITY ATTORNEY NOE: MAYOR MULLET: CITY ATTORNEY NOE: MAYOR MULLET: COUNCILMEMBER DUFFIE: CITY ATTORNEY NOE: City of Tukwila— Office of the City Clerk That's correct. It, the first situation you described would be kind of a denovo review and you would be faced with your own, uh, input into based on the evidence presented; but this situation is closed- record appeal, all you're doing is determining whether the Planning Commission, uh, made a reasonable decision based on substantial evidence in the record. O.K. So you're, you're correct. And, uh, and there's three, basically three options that were outlined in t the letter. Did you reiterate those Bob? I did briefly; but I think in the first option there was a typographical error and I think that's what uh, let me grab the one in the book. And then we'll get to you after he's done. It has to do with Pam's question. I understand ya, boss. I understand ya, boss. I'm not. No problem. The first option, as you can read, is that the City Council can uphold the Page 3 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Planning Commission's decision. The second option is that you can overturn the Planning's Commission's decision and conclusions and then enter its own decision. Because of the nature of this appeal, the merits of the mitigation plan weren't really addressed at the Planning Commission level, so, really, really there's just two options. It can uphold the Planning Commission decision or it can overturn it, remand it back or a consideration of the mitigation. COUNCILMEMBER CARTER: Oh, on, on, your sentence, though before that, it says if we find it's unsupported then we can one, two or three. So it would be just uphold it, overturn it, make our own decision or remand it back for the mitigation. CITY ATTORNEY NOE: That's right. COUNCILMEMBER CARTER: Does that still work? CITY ATTORNEY NOE: Correct. COUNCILMEMBER CARTER: O.K. MAYOR MULLET: And we can discuss that mo. e at the end, uh, if you want, wish to make a decision. COUNCILMEMBER HERNANDEZ: Is, is that letter in our packet anywhere? CITY ATTORNEY NOE: It isn't. It's a letter I did outlining the closed- record appeal process COUNCILMEMBER HERNANDEZ: I remember reading it and I brought my packet with me but I didn't bring that letter, so. CITY ATTORNEY NOE: It's dated February 14 and it just described the process of the closed - record appeal and our argument, the rights. COUNCILMEMBER CARTER: Thank you for that. Otherwise, you would have gotten a lengthy e-mail this morning. City of Tukwila- Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 4 of 31 z =W JU 00 co w= J (- CO 1L. 2 g Q = us z� I- O: Z 1- LU uf U ' O :0 I— • 2 U, u_ O. 111 co' =; . O~ z 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CITY ATTORNEY NOE: You're welcome. MAYOR MULLET: O.K. Joe, did you have a question? COUNCILMEMBER DUFFLE: Yeah, I have one question. O.K., now, we're gonna give `em 15 minutes for a debate. And, uh, after that, then a question, answer, uh, are we gonna limit to them, the time on that or what? MAYOR MULLET: It'll be limited by the questions you ask. COUNCILMEMBER DUFFIE: Alright. I just wanted to make sure we get everybody understanding. O.K. Thank you, sir. MAYOR MULLET: Any other questions before we start? O.K., I, Bob, did you mention that since there's no new evidence we don't have to swear anybody in tonight? CITY ATTORNEY NOE: Yes. MAYOR MULLET: O.K. I was probably sleeping or coughing when you said that. At this time I would like to open the public hearing and, uh, we will begin with the, uh, uh, appellant, who has 15 minutes to present his arguments. And, please state your name and whatnot for the record. ATTORNEY STANLEY: Mr. Mayor, members of the Council, my name is Tom Stanley. I'm an attorney from Mill Creek, Washington. I'm here on behalf of J.A.K., Inc., uh, which, which is a corporation that's primarily owned by my client Jihad Keirouz. We are indeed appealing a, uh, decision by the, the Planning Commission, um, denying a reasonable use exception and I, and I will say that, um, feel free, I know you laid down the structure how this hearing goes, but I certainly take no offense and would welcome, if you feel like there's a questions needs to be answered immediately, I would welcome your question and be able to respond to City of Tukwila— Office of the City Clerk Page 5 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City of Tukwila— Office of the City Clerk your question in a timely manner. Um, I think the main thrust, uh, of this appeal can be condensed down to a single, vary narrow issue which was addressed in your staff report. And, that is, was this property a separate parcel at all times; or was it a larger, single piece of property that was then subdivided out; a portion of which rendered useless by government regulations, and now Mr. Keirouz is coming back to this body, originally the Planning Commission, and seek, seeking some form of regress for that process. As you'll note in the staff report, the heaviest emphasis is placed on the fact, on, on the position that Mr. Keirouz bought this as a single property. And, and, then segregated or subdivided out. The reason that's important is this. At the Planning Commission level, I think what happened there is the wrong question was posed. The question that the Planning Commission focused on and the question that the staff report to the Planning Commission focused on was, can the City of Tukwila within their large boundaries of its constitutional authority deny the development of this property under the constitutional uh, rules regarding takings? In other words, can the City of Tukwila do this? Is it within its broad ambit of constitutional authority? I think that's the wrong question. The real question is should you. The real question is, is it a good idea from a public policy standpoint and the does it make sense based on sound land use planning principles? And the answer to that lies in the Tukwila Municipal Code, not in the State or Federal Constitution. The can you do this question is a constitutional question for another forum. What we would like to get to is the should you do this question. Should you grant this Page 6 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City of Tukwila — Office of the City Clerk reasonable use exception in this narrow case, based on the criteria laid out in the Tukwila Municipal Code? So, I think the, the issue is as simple as that and that's truly where I believe that the Planning Commission went astray. And truly where I believe that the staff report to this body also went astray. Because, again, there's a very large distinction between constitutional analysis and the analysis of the Tukwila Municipal Code. If you look at the Tukwila Municipal Code, it's, it very clearly contemplates the use of properties that are otherwise encumbered by a wetland. It would otherwise be restricted under the, under the formal scriptures of the sensitive area ordinances. So there's this reasonable use exception that has developed in the code to, to allow owners, that have a piece of property that in this case, has Type III watercourse in a Type III sensitive area, to allow them to come up with a reasonable mitigation plan by very competent engineers working with the City; working together to come up with a plan that says look, there is these type III watercourses, type III, uh, wetland, and here's what we can do about it. And so, what the code contemplates is a consideration of eight factors labeled in, uh, Tukwila Municipal Code, 18.45.115(4)(a — g). The critical factor considered by the Planning Commission was factor (g). In other words, factors 1 — 7, were basically, agreed were met. So my client has met factors a -g. So factor (g) is the inability to derive reasonable use of the property is not the result of actions by the applicant in segregating or dividing the property and creating an undevelopeable condition after the effective date of the ordinance from which its chapter arise. So the narrow question there is, Page7of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did Mr. Keirouz buy a single piece of property, then carve it up, and then segregate out a wetland and then come back to you for regress? That's the question that's posed by factor (g). Clearly in this case he did not. At all times since 1907 when this property was originally platted, there's been three very distinct parcels from a land -use standpoint. There has never been a boundary line adjustment. There has never been a consolidation of the property lines. Mr. Keirouz bought what we call and we'll just refer to commonly erect in the record, is Tots 12, 13 and 14, along 33rd Avenue South, in Tukwila.. There's a map if you look at, at uh, exhibit three to your staff report and also uh, in exhibit two I believe, there are plat maps that clearly show lots 12, 13 and 14. I think where the confusion comes in and where I do believe that the Planning Commission went astray is that at some point the prior owner, there was owners who owned all three of these lots, for tax paying purposes only, this owner apparently went to King County and said can I pay one tax on all of 'em. The guy says sure, we'll make one Tax I.D. number. At no time, at no time, were these lot lines ever adjusted. They have always been separate and distinct parcels. When Mr. Keirouz bought this property, it was purchased as three separate parcels with three separate and very, very distinct Tax I. D. numbers. That's a critical point because in your, in your, in your staff report prepared for this body, one of the bullet points on page, the fourth page, one of the bullet points, states specifically, the second bullet point at the bottom of this page, "The property was a single lot at the time it was acquired by the applicant" is not true. I understand this is a closed record City of Tukwila- Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 8 of 31 • z re w J0 00 ( o (0 = J � w° g 5. tL Q u) d = w Z �. �-0 zr- UU 0E-. ww U b. ..z w U -. 0 z 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City of Tukwila— Office of the City Clerk proceeding, but have with me tonight the actual statutory warranty deed along with the real estate excise tax affidavit. That would be an unusual course for this Council to consider a new document but it is a public record and if the Council believes it needs that type of evidence, I'm happy to have it here. But I'd also call Council's attention, there, the Council's attention to page 56 of the verbatim report of proceedings which is in part of your packet, which is under exhibit 6 in your packet, page 56. This is comment by Mr. Lancaster the, the, Director of the of the Department of Community Development, and I'm quoting, "as Michael," I believe referring to Michael Jenkins, staff, "indicated earlier, when we were first approached, we were, because of the way the assessor's maps were laid out, we thought it was possible that this was one lot. We asked the applicant to provide evidence that there were three separate lots of record. He did that to our satisfaction." I believe that comment by Mr. Lancaster closes the loop on this issue of whether or not these were three, separate and distinct parcels. And, again the significance of that is we go right back to Tukwila Municipal Code and the eight factors that govern where the reasonable use exception is appropriate. Again, Mr. Keirouz did not buy a single property and then segregate it out in carving out a separate wetland. The final factor in the, the eight factors for reasonable use exception is the mitigation aspect. And that's something that went a certain point down the line and simply stopped because we sort of had this intervening issue of the separate, of the separate parcel matter, and then that's what lead to the uh, Planning Commission appeal that's lead us here today. So, to this Page 9 of 31 Keirouz Appeal File No. 99 -0091 z `~ w 00 o -I • wO g -, co =d w z =' o' z~ uj U� N O C H, w W: II= O .. z w =. 0 z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City of Tukwila— Office of the City Clerk point, there never has been a formal rendering of a decision by the engineering, the environmentalists, the wetland specialists within the City, working with Mr. Keirouz' engineers and his geo- technical specialists to determine if the mitigation plan is sufficient. If you'll notice on exhibit three, the very last, I'm sorry, exhibit one, the very last page of exhibit one, contains Mr. Keirouz' uh, mitigation plan that has been submitted. And what you'll see in there, there's a series of, of, rockeries and uh, uh, beds, in a cross section showing how this new watercourse will be handled. Um, as, and, and, and where the plantings for the mitigation purposes will take place. Again, that's not before this body because we haven't gotten to that point, because we got into this, what I, this sidetrack issue of whether or not these were three, distinct parcels. Clearly they are not. I would also like to um, moving beyond that issue of the three separate parcels, I think what's important for this body to understand what, what this property looks like and what this property's about. It's a single lot about 50 feet wide and about 117 feet deep, along 33rd Avenue South. It is surrounded by single - family development. It slopes from west to east. Along those, this, the northern border of this property is essentially a drainage swale. It's not a stream. There's no significant wildlife habitat of any, of any type. It has typical vegetation type things in it that are indicative where you have water coursing down properties. This is a drainage swale. This is not a stream. It's not a lake. It's not a pond. It's not something Mr. Keirouz is trying to destroy. In fact, his mitigation plan is very clear on how he intends to address this issue. The upward property owners, Keirouz Appeal File No. 99 -0091 Page l0 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City of Tukwila — Office of the City Clerk their, their surface water runs off into this swale and runs down under Mr. Keirouz' property and then runs down this, this uh, drainage swale which runs the length of this property. Now I understand this is a closed- record hearing. I do have photos if the Council's interested in just getting a perspective, I have photos. If you would be interested in seeing them, I would be happy to explain the way the property looks. But I do believe all of that is subject for later consideration because the stopping point for this has been whether or not these are three separate parcels and I think that issue has been decided conclusively by the evidence, um, in, in the, in the tax assessor's records and, and Mr. Lancaster's testimony at the PC hearing. So, to um, to sum up again, the issue is not can we do this within the broad parameters of our constitutional authority to the Council. That isn't the question. The question is should the Council do this? Does it make sense from a land use standpoint? Given everything around this, given that this is a drainage swale, given it everything around this property is single - family housing, it only makes sense to review this criteria under Tukwila Municipal Code and I believe that these have been satisfied with the exception of the mitigation issue which we request that we remand. We're fully happy to go back to the Planning Commission, work with the engineers, have our environmentalist people to continue to work that process through and develop adequate mitigation which is exactly the intent of the reasonable use exception so you don't artificially limit the use of land when mitigation is applied, it's in the public interest. So with that I'II conclude and, and, welcome any of your questions you may Page 11 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have. MAYOR MULLET: At this time are there any questions by the Council? Pam COUNCILMEMBER CARTER: You've made a, uh, major point of the fact that these have always been treated as three separate parcels. Am I mistaken, I thought there was a house that was built right across the boundary line. ATTORNEY STANLEY: Yeah, there, there was a house that was built across the boundary line on Tots 12 and 13. But, uh, a common building, um, doesn't change the characterization of the subdivision of the Tots. So in other words, there was never a boundary line adjustment. There was never a consolidation of parcels. It's always been lots 12, 13 and 14. And, and, a common structure doesn't change the characterization of those subdivideable lots. Another point is we're all, we're talking about lot 12 which is, and always has been, it's own distinct, uh, lot line. Thirteen and 14 is where the, the common, uh, structure was constructed. But, again, that doesn't change the fundamental character, the fundamental uh, land use designation of the, of the, lot. COUNCILMEMBER CARTER: That's, that's not what I asked. I asked if they had ever been treated as a common. And, you, you answered that there was a house on both lots. That answers my question. ATTORNEY STANLEY: Certainly, there were, yes, definitely. There was a house that spanned the designated property lines between 13 and 14. COUNCILMEMBER CARTER: Could, could I ask a question of our City Attorney, a point of, of information on our law? And, and tell me if I'm out of place in asking this question. Would our code allow a person to build a building on two separate lots that hadn't been, been combined? City of Tukwila— Office of the City Clerk Page 12 of 31 Keirouz Appeal File No. 99 -0091 1 CITY ATTORNEY NOE: I think I'm gonna have to take the, uh, the loser's way out, `cuz, `cuz I'd 2 have to look at the issue. I'd have to look at the code. 3 COUNCILMEMBER CARTER: O.K. 4 CITY ATTORNEY NOE: Um, yeah, I'II think I'll have to look at the issue. 5 COUNCILMEMBER CARTER: I didn't know if the question was something I shouldn't be asking in the 6 first place or, 7 CITY ATTORNEY NOE: I, I apologize for responding with an evasive answer; but I would have 8 to look it up. 9 COUNCILMEMBER CARTER: O.K., that's fair. 10 11 12 13 ' 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMEMBER HERNANDEZ: I have a question, too. MAYOR MULLET: Joan. COUNCILMEMBER HERNANDEZ: Uh, again, also let me know if I shouldn't be asking this, but in our staff report, under um, exhibit 1, there are three letters, uh, written, um, to Mr. Keirouz. Uh, one from Gary Schultz, the environmentalist, on July 17, and he's asking that uh, a wetland study by required prior to any land altering activity on the southern parcel, lot 12. And then there's a letter, September 4th, um, from Gary Schultz again, saying that a wetlands study identifies the extent of the wetland and watercourse area affecting the site and asking that um, the required study be submitted and a plan by October 1st, 1998; and then there's another letter, September 23rd, um, asking for four copies to be submitted of the new site plan. But we're not told, or else I just didn't discover it, what the response was to these requests. Could you tell us, uh, Mr. Stanley, what the response was, uh, to those requests on behalf of the City asking for that information. City of Tukwila— Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 13 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ATTORNEY STANLEY: I, I can tell you that um, the, the process on lot 12 did come to a halt and the time period lapsed and then Mr. Keirouz picked up the process again; but I think that maybe the, the timelag here, the entire wetlands process was revisited again and, and, I think upon a resubmission of the building permit, triggers all of this analysis. I think, I think that accounts for the timelag if that makes sense. I think there's a 180 day window and I think Mr. Keirouz, for a variety of reasons, I believe was out of the count, out of the country actually, when the time, when the timelimit lapsed and then that just triggers a refiling and then they revisit the issue. So I think that explains the timelag. There's also, I, I do want to point out that, uh, um, it's incumbent upon the, the, um, the DCD to consider all technical information etcetera, in, in, in the file. There is also other series of correspondence which fill in all these factual gaps. In other words you haven't been give the full universe of information that's in the City's file on this issue. If, if that makes some sense. But, but, there is not timeline issue at this point because Mr. Keirouz reified for his building permit and then that started the, the ball rolling again. COUNCILMEMBER HERNANDEZ: O.K. Thank you. ATTORNEY STANLEY: Again, just, just to clarify Mr. Keirouz originally applied for a building permit on lots 12 and 13. Uh, he started to develop lot 12 and 13 simultaneously and then uh, when these issues began to arise in the wetland, he, he then focused on lots 13 and 14. So those were developed first. Those houses have been completed. Those houses have been sold and there's people living there. So again, the point from City of Tukwila— Office of the City Clerk Page 14 of 31 Keirouz Appeal File No. 99 -0091 that is all around this lot is residential housing, single - family homes. COUNCILMEMBER HERNANDEZ: Now let me just clarify, that, something that you said then. He was aware that there a wetland problem on lot 12 before he began development on lots 13 and 14. That's, is that what you said? I think I just heard you say that. ATTORNEY STANLEY: Yeah, I think those, I think those, I think those, the issues were identified, um, uh, and, and, lot, the development of lot 12 was sort of put on hold while we worked through these wetland issues. Yeah, those issues were identified um, when he, uh, when he was working on lots 13 and 14. There were issues on lot 12 that were identified after he acquired these three separate lots. COUNCILMEMBER HERNANDEZ: O.K. MAYOR MULLET: Pam Linder. COUNCILMEMBER LINDER: O. K. I have the same preface that they had. I'm, tell me if this is an inappropriate question. For argument's sake, let's say that someone bought only lot 12 and it was a total wetland. Is every lot buildable? Because the applicant says when he reapplies, it's a total wetland. So even if there are homes everywhere, um, just because someone has bought a piece of property, a wetland would have to allow them to mitigate it? ATTORNEY STANLEY: You want me to address that, um, Councilman Linder? COUNCILMEMBER LINDER: Sure. ATTORNEY STANLEY: Councilmember Linder, excuse me. Um, the answer to that is absolutely not. In this narrow case, we have type III wetlands and a type III watercourse which is vary lower on the scale sort of, severity of impact. City of Tukwila — Office of the City Clerk Page 15 of 31 Keirouz Appeal File No. 99 -0091 ... ...+. z = = z cc 2 �W JU 0 W= 1�.. LL. WO u < cod _. z �. I- O w D o. O w' C W W' O Z. W U= O ~' z 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And if, in those cases we can meet the reasonable use criteria including uh, mitigation then yes, the property should be built. And, the reason for that is, do I encourage the availability of single - family housing. You don't want to leave anything in the lot in the public interest. In this case you essentially have a blackberry patch out there. Weeds growing up. So, absolutely not. If someone buys, uh, uh, uh, a low -lying land that's been a retention pond for years and years, they can't come to you seeking help. If it's a type I or a type II or more severe consequence wetland, what we have here is wetlands on the lowest end of the scale. That's what triggers the analysis under the eight -part reasonable use exception. Now, and that's why we're here tonight. COUNCILMEMBER LINDER: Thank you. MAYOR MULLET: I think a simple yes or no mighta answered that, but you, you got the long version. David. Oh, Mr. Noe. CITY ATTORNEY NOE: I think that's subject to interpretation and uh, when the staff presents it case, it'll probably have a different answer to that question. MAYOR MULLET: • Joe. COUNCILMEMBER DUFFIE: O.K. I have one question I wanna, maybe you've already been asked; but I just want one simple yes or no. Number one, when you first start purchasing this property, did you know that this was wetland? ATTORNEY STANLEY: No. COUNCILMEMBER DUFFIE: You didn't? ATTORNEY STANLEY: Did not. Mr. Keirouz was not specifically aware of that, no. COUNCILMEMBER DUFFIE: O.K. Thank you. MAYOR MULLET: David. City of Tukwila— Office of the City Clerk Page 16 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMEMBER FENTON: ATTORNEY STANLEY: COUNCILMEMBER CARTER: ATTORNEY STANLEY: COUNCILMEMBER CARTER: ATTORNEY STANLEY: COUNCILMEMBER CARTER: COUNCILMEMBER FENTON: City of Tukwila— Office of the City Clerk Bob. Uh, I've also got the same concern here. Um, looking on uh, our book, page 1, or tab 1, the last page, which is actually the mitigation plan, my question is, is this mitigation plan that I'm looking at here, ever been seen by the Planning Commission; or is this, or is this something that, that is developed since you were aware, became aware that it is a wetland issue, Type III, and then has gone in, done your study and presented it tonight? Is this true? No. This is, Sir, this is something that was in the works. Mr. Keirouz has been working diligently with the Planning Commission, his urban environmentalist, and staff. And, this is where that came from. They were in that process of working with the Planning Commission to, to develop uh, uh a plan. Again, we got sidetracked on this separate - parcel issue and that's why we're here tonight again. Uh, I, correction. Have you worked with the Planning Department or the Planning Commission on this? Uh, I'll confess, I don't know those distinctions. I can give you the Name of our urban environmentalist by the name of Gary Schultz; and I believe staff, Michael Jenkins, was also involved in the process. I apologize for not understanding those distinctions The Planning Commission is the group that denied the reasonable use exception. Yes. And, I, yeah, the Department, yeah the Department; the department would be a better way to put it. It's easier. O.K. And so Planning Commission. So, to answer my question then, the Page 17 of 31 Keirouz Appeal File No. 99 -0091 1 Planning Department did see this. They are aware of it. 2 ATTORNEY STANLEY: Yes. 3 COUNCILMEMBER FENTON: O.K. 4 MAYOR MULLET: Jim. 5 COUNCILMEMBER HAGGERTON: I'd like to withhold my questions at this time, but reserve the right to 6 question Mr. Stanley after I've heard from the other side. 7 MAYOR MULLET: I was going to suggest we move to the other side now, too. Mr. Stanley 8 will be back for rebuttal at the, he'll have the last say on this. You'll be 9 able to ask him some more questions then. 10 ATTORNEY JOHNS: Good evening. I'm Bob Johns. Um, I'm a land use attorney for the 11 Reed McClure law firm. My business address is 601 Union Street, Suite 12 4800, Seattle, 98101. Um, as some of you know I do land use advisory 13 work for the department from time to time. Because the issue here is 14 primarily a legal issue, they asked me to do the presentation tonight on 15 the staff's position regarding this particular issue. Uh, there is, in your 16 packet, toward the back of, of tab 1, a letter that I wrote; uh, while this 17 application was being reviewed. It's an analysis of the use exception 18 and I think it's important that we start there because I think the issues 19 been blurred rather substantially um, and you need to understand what 20 the basic facts are that triggered the request for the reasonable use 21 exception and what the law is about them. There's a couple of real, 22 straightforward facts here. One of them, uh, and there's no dispute 23 about this. This site is not buildable if one has to comply with the 24 sensitive areas ordinance. There isn't enough room on this site to meet 25 the sensitive areas ordinance which requires initially that you do not fill City of Tukwila— Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 18 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wetlands and you do not put streams in culverts. Those are basic, City sensitive area rules. The exception which the applicant wishes to pursue here, is to take the reasonable use exception approach and say, hold it, I can't do anything with this particular piece of property. You have to give me an exception; uh, and let me till the wetland or the put the stream in the culvert even though your ordinance would otherwise, normally prohibit me from doing so. Uh, reasonable use exception is an odd duck in a legal world. Um, it's not, sort of, it's the reverse of a permit if you will, uh. It is one of the constitutional requirements that the Courts have said over and over again applies to governments that are doing land use regulation. You can't deprive an owner of all economically viable uses of his or her property. And, the reasonable use exception was created in order to avoid that particular situation because the Courts will say they find that somebody, some agency, did deny all reasonable use of his property, but you have to compensate the property owner by either buying the property from them or paying for the reduction in value. So the reasonable use exception was created to allow government agencies to avoid paying compensation to property owners when they've lost all economic use of their property. So the question is, and that's why the legal memorandum was written, um, several months ago, that I, Mr. Lancaster asked for while they were reviewing this particular application. Because you've got an interesting situation here. Mr. Keirouz purchased a house um, a couple of years ago. The house ran on lots 13 and 14. Lot 12 was part of essentially the yard for this house. It was many, many, many years ago plotted as City of Tukwila— Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 19 of 31 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 three Tots when it was in the unincorporated part of the County. It's now in the City. Uh, I can answer one question that was asked about, ya know, would we require this be merged into a single lot if there was a house straddling the property lines. The City Code, if somebody, somebody could make that application but the City Code here would require that those lots be merged into a single lot. The problem is that when this house was constructed it was in King County and King County does not have similar rules. King County will let somebody build one house on two lots and leave 'em that way. Um, anyway, the bottom line here is did Mr., is Mr. Keirouz qualified for the reasonable use exception and the Courts have struggled with this before in situations like this where an owner is able to make some use of his property. In the legal memorandum that I provided to Mr. Lancaster which is in your materials, you'll see a reference to a case called Presbytery vs. City o Seattle. In that case, that the Court made quite a point of the fact that you don't look, or you don't break somebody's ownership into little pieces to make this decision. You look at what they own and you ask yourself the question is this person going to be able to do something reasonable with their property. It was, if, if you read the letter, you'll see I advised Mr. Lancaster that, in my legal opinion, Mr. Keirouz owned a lot, bought a house, tore it down, constructed two houses on that property. He now wants to build a third. He did get, in my legal opinion, a reasonable economic use of his property. He got two houses where there once was a, was only one. So, I believe that this is a situation where you do not have to give him a reasonable use exception City of Tukwila — Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 20 of 31 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City of Tukwila— Office of the City Clerk in order to avoid violating the constitutional rule that you can't take his, all away, all economic use of his property. His attorney, Mr. Stanley, would like to break the issue down and to sort of ignore the first two Tots and say well, ya know, we sold those, there's already houses of `em, all he's got left is the third piece here and it's completely wetlands. Um, and there's no useable ground on it, so you have to give me a reasonable use exception. I do not believe that is what the Courts require. Now, we said all that. You still, as the agency in charge, have the discretion, if you wish to do so, to give him permission to use his property. The City has the choice; but in order to do that, you have to recognize you're authorizing a violation of the Code and the Planning Department is concerned that it may not be possible to adequately mitigate this particular loss of wetlands. Typically, when somebody at the City proposes to build a wetland, they mitigate for that by providing other additional wetland area on site. Um, ya know, there's two little, three little, scattered wetlands but consolidated in one corner to make big one with the same general area that was there in the first place scattered into little, small ones. That's considered adequate mitigation in a number of circumstances by most jurisdictions that regulate wetlands. But, but he can't do that in this case because the site is a hundred percent wetland and no matter what he does, he's gonna fill some of it and some of it's gonna be, there's not enough, nobody's on site to buildable wetlands. So, then, he'd have to propose some off -site, ya know, replacement of wetland if he's gonna use that kind of approach. This issue, as Mr. Stanley indicated, did get bogged down at Page 21 of 31 Keirouz Appeal File No. 99 -0091 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR MULLET: the Planning Commission and the Planning Commission never addressed the question of adequacy of mitigation. But the Planning Commission looked at all this. Their decision was, by a four to three vote, that they felt that Mr. Keirouz and his company did get a reasonable return on their investment. They were able to build two houses where there'd only been one before; and they rejected the request to sort of piece- meal the ownership into three separate pieces and pretend there were three properties and three ownerships here; um, when in fact there was only one ownership and the owner did get a return on his investment in this property. I don't intend to take my full 15 minutes. I think this is a fairly straightforward issue. I'd be happy to answer any questions you have about this situation. I'll repeat about the facts that are reflective in the record, for the legal analysis, that we applied to this when the staff made the decision to recommend to the Planning Commission the reasonable use exception be denied. Do we have any questions? Jimmy. COUNCILMEMBER HAGGERTON: Mr. Johns, I wanna make sure I understood the one comment right at, at the start. You said that this particular parcel, based on our sensitive areas ordinance, there is no way, it, it's buildable. ATTORNEY3OHNS: The sensitive areas ordinance says thou shall not fill wetlands up with streams and culverts and that's what they're proposing to do. They're asking essentially for an exception to that requirement. COUNCILMEMBER HAGGERTON: O.K. ATTORNEY JOHNS: That's why we're here. They can't build on this lot without violating the sensitive areas ordinance. And that's recognized by everybody. City of Tukwila — Office of the City Clerk Page 22 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16• 17 18 19 20 21 22 23 24 25. COUNCILMEMBER DUFFIE: No, I don't have no questions. MAYOR MULLET: Anybody else? ATTORNEY JOHNS: Thank you very much. COUNCILMEMBER HAGGERTON: By the way, I have another comment, Steve. One of your comments were about mitigation of wetlands on site. There are some agencies that believe you can mitigate wetlands offsite. But that's a whole nother story. COUNCILMEMBER CARTER: In other watersheds. MAYOR MULLET: O.K. at this point, uh, the appellant has a rebuttal of 5 minutes. Mr. Stanley are you gonna do that again? ATTORNEY STANLEY: Yes, thank you. Um, my comments will be brief. Um, first on the Presbyterycase, it was uh, four and a half acres that had uh, a, uh, type I wetland which is defined as the presence of a species recognized by the Governor as rare, endangered or threatened. Then the wetland is essentially an outstanding central habitat to such species. That's not the case here. This is a drainage swale. Mr. Keirouz' property, for whatever reason over the years, became the depository for surface water runoff of the surrounding areas. There are no wildlife habitats in this drainage swale. The other point and, again, um, this idea of separate Tots. There are three lots. Whether or not they were owned by one person, three people or five people doesn't matter. They are today and they always have been and certainly they were when Mr. Keirouz bought this property, three separate lots, with three Tax L D. numbers and three lot designations for land use and planning purposes. Because it's a very critical point and whether or not there was common City of Tukwila— Office of the City Clerk Page 23 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ownership at any, any point, doesn't affect that conclusion. So, um, in sum again, I would say that, that Mr. Johns' very thoughtful analysis in his letter focuses on the can question. Can you deny reasonable use exception on Mr. Keirouz? I don't know. Quite frankly I disagree with his ultimate conclusion on that issue, but that's not the issue here today. The issue here today is, do we satisfy the reasonably, reasonable use exception criteria in the Tukwila Municipal Code? And I think if we stay focused on that narrow issue, the answer is yes; with appropriate mitigation, Mr. Keirouz could build a good, single - family dwelling on this lot. And I would ask that you remand this matter back so Mr. Keirouz can continue that process of having his expert work with the City's expert and see if we can work out this mitigation issue. Thank you. I'd be happy to field any questions. MAYOR MULLET: K. Any further questions of Mr. Stanley? Any further questions of staff? Alright. At this point, I will, COUNCILMEMBER LINDER: Can I ask. I do have one. I'm sorry. I'm sorry. I do. MAYOR MULLET: Alright. That's fine. Go ahead. Pam Linder. COUNCILMEMBER LINDER: I don't know. Anyone can answer this. Staff or both of you can answer it if you need to. Um, if the applicant had gone ahead and given a wetland study when he initially gave, uh, applied for a permit, and this information had all come to Tight, could he have done off -site using, a different configurations for the three Tots? COUNCILMEMBER CARTER: You don't mean offsite, you mean within the ownership. COUNCILMEMBER LINDER: (inaudible). You're saying lot 12 is all by itself. But since he owned the others, could have taken a little tiny portion of 14 and 13 and spread it City of Tukwila — Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 24 of 31 ,,,, z _1- H W. 6 00 • o w= J f -' W O. gQ zd H W z� Z W U• co - O : CI t—. W W • 1- 1L b .. Z W =. 0 z 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 around and then have three buildable Tots? ATTORNEY STANLEY: That's a technical question which I probably can not answer definitively. I can tell you these Tots are about fifty by a hundred feet in size. So they, uh, you get a very, there is limited room with which to work with and get the trucks inside to construct a reasonably sized single family dwelling. COUNCILMEMBER LINDER: But it would have been a good faith effort to, to do that rather than build on the two and to save a total wetland. UNKNOWN PARTY: Pam. I can answer that question. You can not. ATTORNEY STANLEY: Um, I, I don't think that was, uh, it was ever, or is now certainly ever an option for the, the, uh, mitigation issue. Again, we've never gotten into that, that realm. COUNCILMEMBER LINDER: K. MAYOR MULLET: O.K. Are there any other questions? And, we'll get into uh, uh, the debate after, amongst yourselves. No other questions. Bob, do I need to close the public hearing before we talk about it, or do they talk about it in the public hearing? ATTORNEY NOE: Technically speaking, it's not really a public hearing that needs to be opened or closed, but, uh, you can go ahead and close it and start the deliberations. MAYOR MULLET: O.K. At this point I will close the uh, testimony by the staff and the appellant and we will go to the discussion amongst the Council. Jimmy Haggerton. COUNCILMEMBER HAGGERTON: I don't mind, uh, starting out. I think one thing that's very clear, excuse me, we have to stay focused on the facts that are presented in front of City of Tukwila — Office of the City Clerk Page 25 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 us, because that's all we're supposed to judge. COUNCILMEMBER DUFFIE: Right. COUNCILMEMBER HAGGERTON: And, the facts were, been presented to us from both sides, represent two different spectrums and we've asked some questions, uh, that are kinda speculative questions. Did you consider this and did you consider that? But that's not really what we're here to judge about all the other possibilities. We're here to judge exactly what happened and what the Planning Commission ruled on. In my opinion, uh, it's pretty clear cut that the sensitive areas ordinance didn't, does not allow building on this and it does not allow the mitigation that would allow that building. We spent a lot of time developing the sensitive areas ordinance and I recall all those laborious hours we spent on it. We tried to find every possible way and every exception that might come up so that some, some people could get use out of their land by using one corner of it as wetland and so on. This particular parcel is not large enough to accomplish some of that obviously. And, I don't, I'm not of the opinion that we should violate all the work we put into the sensitive areas ordinance by granting an exception in this case. So, uh, before I, uh, announce my decision, I'll open it up for other discussion. COUNCILMEMBER CARTER: I think that's wondering, though, from the point of what we're supposed to be doing. According to Bob Noe's memo, we have to the, the appellant has the burden of demonstrating that the Planning Commission made an error; and we have to uphold the Planning Commission if we find that there's substantial evidence in the record to support, did they have the evidence to support their decision; rather City of Tukwila— Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 26 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 than do we think it's the right decision, or the wrong decision. Did, COUNCILMEMBER HAGGERTON: I'm leaning that direction, but I just don't think, COUNCILMEMBER CARTER: Did, was, did they have the evidence to support their decision? Did they apply the law? And, if they had the evidence and applied the law, then we have to support them. If they didn't have the evidence; if they we're building dream castles, if they applied the law wrongly, then we should overturn their decision. COUNCILMEMBER DUFFIE: O.K. now. MAYOR MULLET: Go, ahead, Joe. COUNCILMEMBER DUFFLE: O.K. My, would I, would you explain just what you just said, because I did not understand what you just said because, COUNCILMEMBER CARTER: O.K. in, in his memo and correct, maybe you can do it better. You probably can do it, you should do it better than I. ATTORNEY NOE: Just the way you characterize it, is the standard of review. What are you reviewing? You reviewing the Planning Commission's decision; and how do you review that decision? You have to determine whether their decision is supported by evidence within the record, and if they took sound legal positioning. Uh, does that help? COUNCILMEMBER DUFFIE: Well, I understand what you said, but I was trying understand what she was saying. I, I, I, I, COUNCILMEMBER CARTER: As long as you understand him, you don't have to understand me. COUNCILMEMBER DUFFIE: O.K., O.K., well I understand to look, by reading it, reading this, I got it. I'm O.K. with it, I have my decision and I'm ready to render my decision. MAYOR MULLET: Any more? Want to take a second? City of Tukwila — Office of the City Clerk Page 27 of 31 Keirouz Appeal File No. 99 -0091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMEMBER HERNANDEZ: Well. It appears to me that they, they had the same evidence that we had and it just comes down to a judgment call. They, they had a close decision, too. I think it was a four -three split. Um, they made the decision. I don't think they erred in making their decision but it is a difficult decision. Um, because it does appear as though um, ya know, all the evidence that we have, was available to them at the time they made their decision also. And, it appears as thought they were aware that there was a wetland problem on this lot 12 is why they moved to lot 13 and 14 to do their development and hopefully that maybe it could get resolved. Um, and I do also remember working on the S. A. 0. ordinance and allowing this reasonable use exception so that somebody would not be denied a reasonable use of their property. Even in a commercial area, if there was a wetland, they could still build a single - family house on it. But it does appear in this, I believe that would have been the case, I think in order for them not be denied a completely reasonable use of their property. Uh, uh, and on this case, it doesn't appear he's been denied the opportunity to at least take some profit from his investment. Um, I know there was one house on the property and he was able to turn that into two, two houses on two separate lots anyway. And, if, uh, this wetland problem hadn't been resolved he could possibly of even enlarged those two lots and made larger lots out of them. I don't know, but, it appears as the reasonable use exception was, uh, that he was able to use this property and he was able to develop part of it and make, uh, a reasonable profit out of it, so I don't think that it was denied completely. And I think the Planning City of Tukwila — Office of the City Clerk Page 28 of 31 Keirouz Appeal File No. 99 -0091 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Commission probably deliberated a lot on this issue themselves, just like we are, too. So, I think they made the right decision. I can't see where they made an error in judgment and I think that's what we're here to decide, is if, if there's any avenue here that will lead us to an error and I don't see that. I don't see where they made an error in arriving at that decision. So, I think I would have to support their decision. COUNCILMEMBER FENTON: Steve. MAYOR MULLET: Go ahead, Dave. COUNCILMEMBER FENTON: Uh, I, I agree with my colleague. I, I think that she made a very valid point. It, it seems that it's, it's a, it's a sad state of affairs that lot 12 has, uh, through other building, in and around it, and surface water runoff, created a wetland on this property. Um, but I have some, some grave concerns about surface water runoff. Does it actually create a wetland or is just, you know, Mr. Stanley talked about that it's more of a culvert type situation than it is anything else. Uh, you know, each one of us here at the Council has different ideas on what wetland is and there are different variances of, of wetland is. But, um, that in itself is not enough, to, to, to change my thinking that the information that was supplied to the Planning Commission, which is the same information that we have looked at over the weekend, uh, doesn't sway me, in, in uh, uh, in changing the Planning Commission's decision. So. MAYOR MULLET: Richard. COUNCILMEMBER SIMPSON: Um. I hate. I hate to say it, ya know, I hate to, to, take the man's land. I mean it actually isn't to say taker or whatever, not to, but under the rules, if they, if it violates ours, uh, our ordinances, it's the only way City of Tukwila — Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 29 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we can go. I read these, I spent all weekend looking at these things. And I forgot about my agenda to read this. MAYOR MULLET: Has everybody said, uh, all they wanna say, before I call for a vote? COUNCILMEMBER CARTER: Yeah. No, I, MAYOR MULLET: Pam. COUNCILMEMBER CARTER: Uh, I would agree with what Joan said, but I think the, um, the record shows; it, it gives the evidence upon which they acted; and I think, um, that we don't have much choice but to say they applied the law in a reasonable manner. That's not to say whether I would have voted that way or not had I been on the Planning Commission. But looking to see if they were relying on, on legal advice and evidence and they arrived at this decision. Does it back up their decision? I think it does. And, so in looking at that very narrowly, that seems to be the only way, the only conclusion to come to, in our position reviewing this. MAYOR MULLET: That's it? O.K., I'm just going to call for a, uh, yea or nea vote because I didn't hear a lot of exceptions; so, at this point the vote will be in support of the Planning Commission's decision; and that will be a yes vote. So, all in favor of supporting the Planning Commission in their decision, say aye. ALL COUNCILMEMBERS: Aye. MAYOR MULLET: Any opposed? (No response.) It carried unanimously. Bob, what's our next page of this? Is that the end of it or do we have to uh, support that with a written decision or what? ATTORNEY NOE: What you would want to do is direct the staff to prepare a written decision; and then, uh, we'll go ahead and prepare that in the next City of Tukwila — Office of the City Clerk Keirouz Appeal File No. 99 -0091 Page 30 of 31 ..— .��.,�� w�+••wrc�r +. i•.• �.— �•• w+ r+ �• ay. WnM�wA� fw�Nl+�swawK.fiQY.'fW.�'%t� T j��? .-�.b � j 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 meeting and enter it and that will trigger the appeal rights and so forth. MAYOR MULLET: O.K. COUNCILMEMBER HERNANDEZ: Does that take a motion by the Council, or? MAYOR MULLET: Mr. Lancaster, would you prepare that for us then? And, uh, we'll bring that back for Council's approval? STEVE LANCASTER: Yes. MAYOR MULLET: Alright. At this point, we might want to take a short recess and catch our breath. COUNCILMEMBER HERNANDEZ: I move that we take a 10- minute recess. COUNCILMEMBER DUFFIE: Second. MAYOR MULLET: Then we will be in recess for 10 minutes. / / /// City of Tukwila— Office of the City Clerk Page 31 of 31 Keirouz Appeal File No. 99 -0091 Z W, 00 co • W W =: J WO. ln Do, = W. 2 O Z !— • U• � W LL1; H U. W 1— . W 0 =a O t— Z City of Tukwila Steven M. Mullet, Mayor Department of Community Development Steve Lancaster, Director STAFF REPORT TO THE CITY COUNCIL PREPARED FEBRUARY 11, 2000 HEARING DATE: February 22, 2000 NOTIFICATION: On January 4, 2000, a Notice was sent to the Appellant that the appeal was tcheduled for a hearing on February 22, 2000. The Notice of the Closed Record Appeal was published in the Seattle Times on February 4, 2000. FILE NUMBER: L99 -0091 APPELLANT: Jihad Keirouz / J.A.K., Inc., by Thomas Stanley, Attorney at Law PROPERTY OWNER: Jihad Keirouz REQUEST: Request for An Appeal of the Planning Commission denial of a Reasonable Use Exception (TMC 18.45.115) to alter a Type 3 Watercourse and fill a related Type 3 Wetland for the construction of a new Single Family Residence LOCATION: 13041— 33`d Ave S STAFF: ATTACHMENTS: C: mydocuments...9991fin Michael Jenkins 1. Staff Report, dated December 3, 1999 2. Exhibit B from December 9, 1999 Hearing 3. Exhibit C from December 9, 1999 Hearings 4. Notice of Decision dated December 13, 1999 5. Notice of Appeal by Thomas Stanley dated December 27, 1999 6. Verbatim Transcripts of Planning Commission hearing 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: 206 - 431 -3670 • Fax: 206 - 431 -3665 z LLI 6 D: JU oo ,.N O. W =• J F.. CO w w o: 5. u. Q co 3 = o; •w z1- o. Z -: moo.. o Nl o W w'. H 0. z• w • .0I z February 11, 2000 Staff Report to the City Council Re: Appeal of Planning Commission decision - Keirouz Reasonable Use Exception File: L99 -0091 REQUEST: The applicant filed for an appeal of the Planning Commission's denial of his request for a Reasonable Use Exception under Tukwila Municipal Code (TMC) 18.45.115. A Reasonable Use Exception is reviewed under a Type 4 decision process. Type 4 decisions are detailed in TMC 18.108.040. An appeal of a Type 4 decision is generally heard by the City Council as a Closed Record Hearing. Closed record appeals are defined in TMC 10.06.152 as: "Closed record appeal means a quasi judicial appeal to a hearing body designated by this chapter from a decision regarding a project permit application that was made after an open record hearing. Testimony and submission of relevant evidence and information shall not be permitted at a hearing on such an appeal. The hearing on such an appeal shall be limited to argument based on the testimony, evidence and documents submitted at the open record hearing conducted on the project permit application." BACKGROUND On December 9, 1999, the Planning Commission held a hearing on a request for a Reasonable Use Exception by Jihad Keirouz, d.b.a. JAK, Inc. The applicant had initially submitted an application for a development permit for a new Single Family Residence at 13031 — 33rd Ave S, an existing lot located in the Low Density Residential (LDR) zone. The lot in question contains a Type 3 wetland and a related Type 3 watercourse. Because the wetland and stream occupy substantially all of the lot and the project would require filling a portion of the wetland and placing a portion of the stream in a culvert, the application is inconsistent with the Sensitive Areas Ordinance (TMC 18.45). In order to obtain relief from this ordinance, the applicant filed a request for a Reasonable Use Exception. Following review of his request, staff determined that Mr. Keirouz would not be eligible for a Reasonable Use Exception based on the specific facts of his application and case law concerning Reasonable Use Exceptions. In order to evaluate this appeal, the following timeline regarding the history of development on the subject parcel is provided: • April 30, 1998 Jihad Keirouz purchases a lot located generally at 13031 — 33rd Ave S. and legally described as Lots 12, 13 and 14 of Robbins Springbrook Addition to Riverton February 11, 2000 Staff Report to the City Council Re: Appeal of Planning Commission decision - Keirouz Reasonable Use Exception File: L99 -0091 • June 15, 1998 Jihad Keirouz (applicant) applies for a Demolition Permit (MI98 -0113) to demolish an existing Single Family Residence at 13031 — 33rd Ave S. The existing house straddled Lots 13 and 14. Applicant provided a map with the application showing lots 12, 13 and 14 as one parcel (Attachment 2 to this Staff Report). • June 19, 1998 Keirouz applies for a Development Permit (D98 -0215) for a new Single Family Residence on the subject property (Lot 12). Applicant also applied for a Development Permit (D98 -0216) for a new Single Family Residence on Lot 13 immediately north of Lot 12. The applicant presented a map revised by the King County Assessors office showing that the site had been re- segregated into three tax lots based on Mr. Keirouz's request and that each lot was now 5,886 square feet (Attachment 3 to this report). The minimum lot size in the Low Density Residential (LDR) zone is 6,500 square feet. • July 17, 1998 Gary Schultz, Urban Environmentalist, visited the site at the request of Public Works and determined that a wetland study would be required on Lot 12. • August 11, 1998 Applicant was notified in a Correction Letter on August 11, 1998 that a wetland study would be required for Lot 12. The applicant did not submit a response to the correction letter and the original application (D98 -0215) for the house on Lot 12 expired on or around February 7, 1999, 180 days after this notification. • August 24, 1998 Keirouz applies for a Development Permit (D98 -0287) for a new Single Family Residence on Lot 14, immediately North of Lot 13. • September 4, 1998 Gary Schultz sends a letter to the Applicant indicating that the construction activities on Lot 13 have encroached and disturbed the wetland on the subject parcel (Lot 12). • October 14, 1998 Development Permits are issued for new Single Family Residences on Lot 13 and Lot 14. February 11, 2000 Staff Report to the City Council Re: Appeal of Planning Commission decision - Keirouz Reasonable Use Exception File: L99 -0091 • May 13, 1999 The applicant applies for another Development Permit (D99 -0168) on Lot 12, the subject lot. z z 6 • May 19, 1999 o o co w v_� w 0. 2 J • June 11, 1999 u- < id Applicant submits a wetland study. ~ i Z �. I— 0. • June 17, 1999 z no U 0 -: 'D H ww. u -O. wz 0- z D99 -0168 is determined to be incomplete, because the required wetland study was not included. The applicant was informed in the referenced August 11, 1998 Correction Letter that a wetland study was required on Lot 12. Application is determined to be incomplete based on review of the wetland study. The applicant is told that a Reasonable Use Exception is required before the Development Permit on Lot 12 can be reviewed. • July 6, 1999 Mr. Keirouz files an application for a Reasonable Use Exception. Based upon the history of development on the parcel, the site conditions of the parcel and the applicant's own actions, staff determined that Mr. Keirouz would not be eligible for a Reasonable Use Exception for the following reasons: • The applicant acquired the subject parcel after the adoption of the City's Sensitive Areas Ordinance (SAO) (TMC 18.45). At the time he acquired the property, the SAO did not permit the wetland fill and stream culverting proposed by the applicant. • The property was a single lot at the time it was acquired by the applicant. • The applicant, through the King County Assessors office, segregated the parcel into three tax lots. Discussions concerning the segregation of the original parcel can be found on Pages 39 -44, 50 and 55 in the Verbatim Transcripts. • The applicant developed two of the three parcels (lots 13 and 14) with the knowledge that there were limitations due to surface and ground water that affected all of the subject parcels February 11, 2000 Staff Report to the City Council Re: Appeal of Planning Commission decision - Keirouz Reasonable Use Exception File: L99 -0091 • The applicant developed Lots 13 and 14 with solutions that were designed to address surface and ground water issues • The applicant left the remaining lot (Lot 12) until the other lots had been developed and knew, or should have known, that a watercourse and wetland significantly encumbered the remaining lot. Staff sought legal advice from Robert Johns of the law firm of Reed McClure. Specifically, staff sought Mr. Johns' opinion on the following question: "Can an applicant that purchases a lot after the adoption of the Sensitive Area Ordinance be barred from a Reasonable Use Exception, especially if he had or should have knowledge of a wetland or watercourse?" Mr. Johns provided a lengthy analysis for staff, included in the Staff Report to the Planning Commission. A copy of that legal analysis is included in Attachment 1 to this report. The discussion concerning Mr. Johns' legal analysis can be found on Pages 30 -31, 41 and 46 -49 in the Verbatim Transcripts. Mr. Johns' analysis states that the Planning Commission had the authority, based on case law, to deny the applicant's request and that denial would not result in a taking of Mr. Keirouz property rights. In particular, in his discussion of two cases, Maple Leaf Investors v. State DOE and Presbytery of Seattle v. King County cases, Mr. Johns indicates that the basic rule regarding the reasonable use exception is that it may be used to allow development of a property in those situations where denial of a permit would otherwise prevent a property owner from making any reasonable use of his or her property. In evaluating the application of the rule, Mr. Johns explained that the economic use of the entire parcel held by an applicant must be evaluated in determining if a taking would occur if a permit to develop is denied. A discussion of the applicability of the Maple Leaf and Presbytery cases in this matter are found on Pages 41 -50 of the Verbatim Transcripts. Comments by Bob Noe, City Attorney, on the applicability of the Maple Leaf and Presbytery cases to Mr. Keirouz's situation are found on Pages 51 -54 of the Verbatim Transcripts. In this case, staff, relying on Mr. Johns' advice, concluded that since the applicant had been able to obtain permits to develop two houses on his property, he had not been deprived of all reasonable use. As a result, staff recommended denial of his application for a Reasonable Use Exception on Lot 12. NOTICE OF APPEAL In the Notice of Appeal, Mr. Stanley makes a number of assertions about the facts in this case, some of which are, in the opinion of staff, inaccurate. These are as follows: t z ~w' J0 00 �o w =' w0 gQ i a' t-- _ Z 1.- 1-0. Z r. U-1 11J O 0. 0 l- w w U O ..z w 0 2' O� z February 11, 2000 Staff Report to the City Council Re: Appeal of Planning Commission decision - Keirouz Reasonable Use Exception File: L99 -0091 • On Page 2 of the Notice of Appeal, Mr. Stanley incorrectly indicated that the Planning Commission directed him to develop a mitigation plan. The requirement for a wetland study came from staff during review of the initial development permit on Lot 12. Mr. Keirouz did submit a mitigation plan with his application for a Reasonable Use Exception. This plan has components that are in compliance with City requirements. However, the assertion that " a plan was ultimately completed which resolves the potential problems and meets the technical requirements for a Reasonable Use Exception" is inaccurate. Other than the issuance of a SEPA threshold determination, there has been no determination in this case that the mitigation plan meets City standards or is acceptable. The review and decision on the mitigation plan has not taken place because it is not necessary unless and until a decision is made on the application for a Reasonable Use Exception. There is at least one easily identified shortcoming in the mitigation plan: the applicant has not addressed the requirement for providing 1.5:1 replacement wetlands. The applicant must first attempt to replace the wetland on -site and, if that is not feasible, identify an appropriate off -site mitigation site. A discussion of the issue of mitigation, and the applicant's responses are on pages 21 -22, 30, 53 and 62 of the Verbatim Transcripts. • Section 2 on Page Three of the Notice of Appeal includes a brief discussion on the appropriateness of staff's reliance on the development history on Lots 13 and 14, which are adjacent to Lot 12. That history was included in the December 3, 1999 Staff Report (Attachment 1) to explain Staff's position, based on Mr. Johns' advice, that Mr. Keirouz was able to derive a reasonable economic return on the parcel by first segregating the parcels (through the King County Assessors Office), demolishing the existing residence and obtaining development permits on newly segregated lots 13 and 14. Furthermore, the permit history was included in the Staff Report to demonstrate that the applicant he had prior knowledge of the sensitive areas on Lot 12. • In his appeal, Mr. Keirouz indicates that a complete application was submitted and should be granted. This request oversimplifies the process applicable to this appeal. If the appeal of the Planning Commission's denial of the Reasonable Use Exception is overturned by the City Council, a decision must still occur on the merits of the Mitigation Plan submitted by Mr. Keirouz. As discussed earlier, the applicant did submit a mitigation plan and other documents to evaluate the proposal of filling the wetland and altering the watercourse. However, staff has not made any formal determination about the appropriateness of the plan. If the Council overturns the Planning Commission decision, the matter should be remanded to the Department for review of the mitigation plan February 11, 2000 Staff Report to the City Council Re: Appeal of Planning Commission decision - Keirouz Reasonable Use Exception File: L99 -0091 PLANNING COMMISSION HEARING During the Planning Commission hearing, staff presented Exhibits B and C that showed the parcel both before and after the individual lots were segregated by Mr. Keirouz. These are included with this staff report as Attachments 2 and 3. These exhibits, developed by staff and the applicant during the hearing to show the location of the wetland and watercourse on the subject parcel, demonstrate that the parcel, when the applicant acquired it, was a single lot. The applicant segregated the property to create three lots, two of which he has developed with new homes. This is reflected in pages 41 -48 of the Verbatim Transcript. TMC 18.45.115 (4) provides criteria that must be met to grant a Reasonable Use Exception request. Subpart 4 of the criteria reads: "The inability to derive reasonable use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of the ordinance from which this chapter derives." On Page 6 in the Notice of Appeal, Mr. Stanley indicates that Lot 12 is a "completely separate and independent parcel of property which has no reasonable use under government regulation without a Reasonable Use Exception ". This argument ignores TMC 18.45.115(4). It is clear that prior to the time the Applicant bought the property, it was being used as a single lot. The applicant, seeking to maximize the number of homes he could build, divided the property into three lots through the tax segregation process. By allowing the lots to be segregated to their original plat, King County allowed Mr. Keirouz to believe he had a developable lot in Lot 12. Thus, Mr. Keirouz seeks relief from the very situation he created. This is not permitted by TMC 18.45.115(4). Discussion concerning the segregation of the lots can be found on Pages 40 — 45, 47 -52 and 54 -56 of the Verbatim Transcripts. RECOMMENDATION The City Council has two options: 1. Uphold the decision by the Planning Commission by denying the applicant's request for a Reasonable Use Exception 2. Overturn the Planning Commission's decision and approve the Reasonable Use Exception request and remand to staff to review the applicant's Mitigation Plan If the City Council decides to set aside the Planning Commission decision, the applicant must still meet the underlying requirements of the Sensitive Area Ordinance, including the development of a Mitigation Plan that either provides for a 1:5 -1 on -site mitigation for filling the wetland or an appropriate off -site location for the wetland. City of Tukwila 6200 Southcenter Boulevard • Tukwila, Washington 98188 January 4, 2000 Thomas E. Stanley Attorney at Law 16300 Mill Creek Blvd., Suite 105 Mill Creek, WA 98012 RE: Notice of Appeal: Planning Request for Reasonable Use Project File Number: Property Location: Appellant/Property Owner: Appellant's Address: Appellant's Telephone No: Dear Mr. Stanley: Steven M Mullet, Mayor VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Z 311 656 312 Commission's 12/9/99 Denial of J.A.K., Inc.'s Exception to Construct Home L99 -0049 (Reasonable Use Exception L99 -0091 (Appeal) E99 -0017 (SEPA Checklist) 13041 — 33rd Ave. S. J.A.K., Inc. by Jihad Keirouz 13407 — 51st Ave. West Edmonds, WA 98026 206 -300 -6874 The Tukwila Department of Community Development has forwarded your appeal to me for scheduling of a closed record quasi-judicial public hearing before the Tukwila City Council pursuant to Tukwila Municipal Code Chapter 18.104.010 (E). Appeal processes are governed under TMC. Chapter 18.116. This letter will serve as notification that a hearing has been tentatively scheduled for Tuesday, February 22, 2000 at 7 p.m. in the Tukwila City Council Chambers, 6200 Southcenter Boulevard, Tukwila, WA 98188. RECE VED JAN 0 6 2000 COMMUNITY DEVELOPMENT Phone: (206) 433 -1800 • City Hall Fax: (206) 433 -1833 Thomas E. Stanley January 4, 2000 Page 2 If you have questions regarding the appeal process, please contact Michael Jenkins, Associate Planner, at 206 -431 -3685. Sincerely, e E. Cantu, CMC ity Clerk Cc: Jihad Keirouz, Appellant/Property Owner Mark Stefnik John Dickover Steve Lancaster, Director, DCD .Michael Jenkins, Associate Planner, DCD Robert Noe, City Attorney z • ,1 Z: re Uj' UO:. • • CO a: • • w =; • WO,. LL • = a: i--w • _ ;• z1-; FO . • z �. w • w— :=.W HV. . LL. LLI (1): • z Dept. Of Community Development City of Tukwila AFFIDAVIT OF DISTRIBUTION I , HEREBY DECLARE THAT: Notice of Public Hearing Determination of Non - Significance Notice of Public Meeting Mitigated Determination of Non - Significance '. Project Name Ts Board of Adjustment Agenda Pkt L q Determination of Significance & Scoping Notice C4)03aS c\I\ONICk2.1-- Board of Appeals Agenda Pkt Notice of Action WQ._lf\t- Planning Commission Agenda Pkt Official Notice Short Subdivision Agenda Notice of Application Shoreline Mgmt Permit Notice of Application for Shoreline Mgmt Permit Other Other Was mailed to each of'the addresses listed on this 0 day of �Lin the year 2,.0 \C9 P:GINAWYNETTA /FORMS /AFFIDAVIT- MAIL01 /11/0012:53 PM • . ��ekv.'k:n'C.'A: R:umucu • z w Ce 6 JU 000 w1- cw w0 Q co a 1— w Z= z1- • 0 O �. O H wW 4- z; w U fri z �?\ C ct Project Name Ts Project Number: \ 3Ck _ L q Mailer's Signature: C4)03aS c\I\ONICk2.1-- Person requesting mailing: P:GINAWYNETTA /FORMS /AFFIDAVIT- MAIL01 /11/0012:53 PM • . ��ekv.'k:n'C.'A: R:umucu • z w Ce 6 JU 000 w1- cw w0 Q co a 1— w Z= z1- • 0 O �. O H wW 4- z; w U fri z Thomas E. Stanley Attorney At Law 16300 Mill Creek Blvd., Suite 105 Mill Creek, WA 98012 Telephone: (425) 743 -5744 Fax: (425) 742 -2505 NOTICE OF APPEAL SUBMITTED TO: ' .Tukwila City Council C/O Department of Community Development . 6300 Southcenter Boulevard, Suite 100, Tukwila Washington 98188 RE: Decision At Issue Project File Number Property Location Appellant/Property Owner Appellant's .Address 'Appellant's Telephone Not 'Dear Council Members: RECEIVED DEC.2 71999 COMMUNITY DEVELOPMENT - Planning Commission's 12/9/99 Denial of Request For Reasonable Use Exception to Construct Home - L99 -0049 - .13041 -33rd Ave S. - J.A.K., Inc. by Jihad Keirouz . 13407 51st Avenue West Edmonds,' WA 98026 ' ' - (206)300 -6874 • On December,9, 1999 the Tukwila Planning Commission denied J.A.K., Inc.'s (by Jihad.. Keirouz) request for a Reasonable Use Exception to construct a single family residence on his property located at 13041 3'3`d Ave South in Tukwila by adopting the Staff 'Report's findings and conclusions.: This document shall 'serve as. Mr. Keirouz's Notice of Appeal'. As requested in the December 13, 1999 Notice of Decision (paragraph (h)(3)), the following issues are discussed herein: • . The specific errors of fact or errors in application of the law; The harm suffered or anticipated by Mr. Keirouz; and The relief sought In order to convey the foregoing information in a logical manner, the history of the project must first be discussed. I For the purpose of this appeal all records, and documents contained or referenced in the Department of ' 'Community Development's files with respect to the parcel at issue, and any other related documents or records in the departments files, are incorporated herein. All records of prior proceedings are likewise incorporated. • December 13, 1999 Notice of Decision L99 -0049 — Reasonable Use Exception, 13041— 33rd Ave S. Parties of Record Jihad Keirouz 13407 — 51st Ave W. Edmonds, WA 98062 Mark Stefnik 2322 S.W. 120th Burien, WA 98148 John Dickover 13202 - 32nd Ave S. Tukwila; WA . 98168 z ire D i UOr c i w w =, u) 'w O • =O: H z; z � o w w; U ION;. w W. 0° 111 O~ Z Lc{ 4 . oact 1 Thomas E. Stanley Attorney At Lan' 16300 Mill Creek Blvd., Suite 105 Mill Creek, WA 98012 Telephone: (425) 743 -5744 Fax: (425) 742 -2505 NOTICE OF APPEAL SUBMITTED TO: Tukwila City Council C/O Department of Community Development 6300 Southcenter Boulevard, Suite 100 Tukwila Washington 98188 RE: Decision At Issue Project File Number Property Location Appellant/Property Owner Appellant's Address Appellant's Telephone No: RECEIVE �R� DEC 2 7 1999 COMMUNITY DEVELOPMENT - Planning Commission's 12/9/99 Denial of Request For Reasonable Use Exception to Construct Home - L99 -0049 - 13041 -33rd Ave S. - J.A.K., Inc. by Jihad Keirouz - 13407 51st Avenue West Edmonds, WA 98026 " - (206)300 -6874 Dear Council Members: On December 9, 1999 the Tukwila Planning Commission denied J.A.K., Inc.'s (by Jihad Keirouz) request for a Reasonable Use Exception to construct a single family residence on his property located at 13041 33rd Ave South in Tukwila by adopting the Staff Report's findings and conclusions. This document shall serve as Mr. Keirouz's Notice of. Appeals. As requested in the December 13, 1999 Notice of Decision (paragraph (h)(3)), the following issues are discussed herein: b. c. ,. The specific errors of fact or errors in application of the law; The harm suffered or anticipated by Mr. Keirouz; and The relief sought In order to convey the foregoing information in a logical manner, the history of the project must first be discussed. For the purpose of this appeal all records and documents contained or referenced in the Department of Community Development's files with respect to the parcel at issue, and any other related documents or records in the departments files, are incorporated herein. All records of prior proceedings are likewise incorporated. "S's .. !..✓•..'!,i:•„ n'.td: ^!..>ii:....... n.e`4i ai.'i...ivv t:.yf..!:k,wt�:y: i.:�hv +l %�i r' xyr '��Ni'_NA12.L'I_Xt3J..•.......: Notice of Appeal J.K.A., Inc. (by Jihad Keirouz) 12/27/99 Page 2 HISTORY OF THE PROJECT Mr. Keirouz purchased the property at 13041 33rd Ave South (hereafter referred to as "Lot 12 ") in April 1998. He also purchased two neighboring lots (hereafter referred to as "Lot 13" and "Lot 14 "). Soon thereafter he applied for a building permit for Lot 12 and Lot 13. A building permit for Lot 13 was issue in due course. During the process of preparing Lot 12 for the construction of a home, it was discovered that Lot 12 contained a wetland area. Due to this wetland, Mr. Keirouz was informed that the construction of a home on Lot 12 would need mitigation. In order to develop the mitigation plan, engineers would be needed to develop a plan to eliminate potential water problems related to Lot 12. In accord with the Commission's direction, Mr. Keirouz hired an engineering firm to develop such a plan. Upon realizing that he would not be able to construct a home on Lot 12 for several months, Mr. Keirouz began working on his other Lot 14. As a result of building permits issued for Lots 13 and 14, Mr. Keirouz built one home on each of these lots prior being informed he needed a Reasonable Use Exception for Lot 12. In the mean time, Mr. Keirouz continued to proceed through the steps necessary to obtain a building permit Lot 12. He continued to communicate with the Planning Commission and he performed all of the Commission's requirements. A plan was ultimately completed which resolves the potential problems and meets the technical requirements necessary for a Reasonable Use Exception under TMC 18.45.115. Despite that fact, the Planning Commission's December 3, 1999 Staff Report concluded that a Reasonable Use Exception for Lot 12 was "barred as a matter of law" (page 5). Based on that conclusion, the Staff Report recommended that the request for the Reasonable Use Exception be denied. Subsequently, on December 9, 1999 the Planning Commission denied the request. SPECIFIC ERRORS IN FINDINGS (See 12/3/99 Staff Report, Findings, Pages 3 -4) 1. The findings state that "if an applicant purchases a property and knows, or should know, that limitations on the parcel affect its development potential because of sensitive areas, they may be limited from being granted relief' (Findings, Discussion, Paragraph Two). The Reasonable Use Exception section of the Tukwila Municipal Code, TMC 18.45.115, does not consider the owner's knowledge of sensitive areas at the time of. purchase. The requirements of the code may be summarized into the following three rules: a. The owner must demonstrate that without a Reasonable Use Exception, there is no reasonable use for the property(See TMC 18.45.115(C)(3)); z 61j 6 JU 00 W z' J F.. wo J u. c Iw z= �o w~ U 0' o -. CI 1- ww 2 O wz U= o F-. z Notice of Appeal J.K.A., Inc. (by Jihad Keirouz) 12/27/99 Page 3 b. The request for the Exception includes a plan that demonstrates the proposed development fits in with its surroundings and does not cause a threat to any other property or the public safety and health(See TMC 18.45.115(C)(4)(a -f); and c. The inability to derive reasonable use of the property is not the result of the owner subdividing his property (See TMC 18.45.115(C)(4)(g). If these requirements are met, the development may be allowed (See (TMC 18.45.115(C)(3). Under TMC 18.45.115(C)(4) whether or not the owner knew or should have known of a sensitive area condition is simply not a factor. 2. Paragraph Three of the Discussion subsection focuses almost exclusively on Lots 13 and 14 and their development issues. The inclusion of this information implies that these issues are part of the Reasonable Use Exception criteria provided in TMC 18.45.115. They are not. Lots 12, 13 and 14 and separate and distinct parcels and the development of each must reviewed independently. 3. The Legal Analysis subsection discusses a letter written by an attorney, Robert Johns, that addresses the constitutional issues involved in this matter. The Staff Report states that this letter addresses the applicability of the Sensitive area Ordinance as it pertains to this Reasonable Use Exception request. That statement is incorrect. The letter only addresses whether or not the denial of a Reasonable Use Exception in this matter would violate the Constitution of Washington and/or the United States of America. The letter is limited in scope. The constitutional issues only become relevant if and when a Reasonable Use Exception is analyzed in light of the relevant law, TMC 18.45.115, and then denied. In other words, the first question is whether the proposed Reasonable Use Exception meets the criteria of TMC 18.45.115. It is only after an exception is denied that the constitutional issues are addressed. Thus, this body should focus initially on the criteria of the municipal code and sound land use policy, not on the broader constitutional matters. Findings typically contain all of the facts (as determined by the author(s)) upon which a Conclusion/Decision will be based. The Findings in this Staff Report are composed of two pages of data. Approximately one page is composed of the preliminary facts such as the property description, location, history, etc. The remaining page is composed of a discussion of the development of two neighboring parcels and a discussion of the constitutional issues which may be relevant if this Reasonable Use Exception is denied. The facts necessary to analyze the Exception request and apply the relevant law, TMC 18.45.115, are not included. Thus, not only are there several "errors of fact," the facts crucial to determining if a Reasonable Use Exception should be granted are not included in the Findings. Notice of Appeal J.K.A., Inc. (by Jihad Keirouz) 12/27/99 Page 4 ERRORS IN APPLICATION OF THE LAW (See Staff Report, Conclusions, Page 5) The Conclusions section provided in the Staff Report consists of five short "conclusions." The first four of these conclusions are irrelevant. Furthermore they do not apply the relevant law, TMC 18.45, or any law for that matter, to the facts. Basically conclusions One through Four belong in the "findings" section of the Staff Report because they are factual assertions. Ultimately then, the Staff Report provides their entire application of the law to the facts in Conclusion Five. Accordingly Conclusions One through Four are addressed briefly, followed by an analysis of the Conclusion Five. Staff Report - Conclusions One through Four Conclusions One through Four may be summarized as follows: Mr. Keirouz bought three separate parcels of land with some surface and ground water issues after the city adopted its Sensitive Areas Ordinance. He has successfully mitigated the water issues on two of the parcels and developed those. Now he is applying for a Reasonable Use Exception as required by Tukwila Municipal Code (See Conclusions, Bullet Points One through Four, page five). None of this provides any application of the relevant law, TMC 18.45.115, to the facts. As such these conclusions are more characteristic of "findings" and should be viewed as such in analyzing the Staff Report as a whole. Although not relevant to the issues on Lot 12, it is important to note that no sensitive area analysis was requested or required on lots 13 and 14. During construction, typical groundwater was encountered which required minor engineering analysis. At no time were lots 13 or 14 determined to contain sensitive areas. Staff Report — Conclusion Five Conclusion Five states that "regardless of the merits of any plan that the applicant may develop to address surface and ground water issues for the subject parcel, the applicant is barred as.a matter of law from being granted a reasonable use exception. This is well documented in Mr. Johns' letter included as Attachment K." Unfortunately, this conclusion applies the constitutional law of the United States and/or the State of Washington to the facts rather than the appropriate law, which is the Tukwila Municipal Code. As discussed previously, the constitutional law only becomes relevant if and when a Reasonable Use Exception is analyzed in light of the relevant law, TMC 18.45.115, and then denied. Moreover, the case law discussed in Robert Johns letter, and subsequently relied upon by the Commission Staff, is not on point with the facts of this case. Because the Staff Notice of Appeal J.K.A., Inc. (by Jihad Keirouz) 12/27/99 Page 5 Report, and ultimately the Planning Commission relied heavily on Robert Johns letter in deciding to deny Mr. Keirouz's request, the letter must be analyzed in further detail. Attorney Robert Johns Letter — Scope of Subject Matter As discussed previously, the scope of Mr. John's letter is extremely limited. As illustrated in the second paragraph of the letter, the issue being addressed is as follows: If the city of Tukwila denies Mr. Keirouz's request for a Reasonable Use Exception, has the city ultimately "taken" away his property by not allowing him to use it without compensating him, in violation of his constitutional rights? Mr. Johns is not addressing the issue of whether the city should grant or deny the Reasonable Use Exception under the code. Rather, the letter simply analyzes whether the denial of the Reasonable Use Exception would amount to a taking barred by the constitution. The third paragraph of the letter states that "this analysis [of constitutional law] applies to all forms of land use regulation and to all types of uses." The letter goes on to explain what factors are involved in determining whether the government has "taken" property without compensation. He concludes his letter by stating that he does not believe that "it is necessary to approve a reasonable use exception" in this case. That is the full extent of his conclusion. Nowhere does he say that the Reasonable Use Exception "should not" or "cannot" be approved. Relying on Mr. Johns letter, Tukwila is free to approve Mr. Keirouz's request. In other words, Mr. John's letter addresses when the city must either grant an Exception, or pay the property owner compensation because they have "taken" his property under the Constitution. This is an entirely different legal question than whether the city can, and should in this case, grant a Reasonable Use Exception. Attorney Robert John's Letter — Flawed Factual Assumption Mr. Johns explains a complex legal concept with clarity and efficiency. It is therefore unnecessary to re- explain that concept in this document. The problem with his analysis is with his misunderstanding of the facts. The letter states that a "taking" has occurred if regulation denies a' property owner all reasonable use of his or her property. The letter goes on to explain that the Reasonable Use Exception provides a mechanism for avoiding the otherwise necessary paying of compensation to the property owner (See Mr. John's Letter, Page 2, 1st Full Paragraph). Mr. Johns then discusses several cases in the course of making one ultimate point; government regulations can "take" away part of a parcel's z = 1: ,F- w cc JU 00 • 0 w= J F- � ll. wO 2 uQ co .= z= F-0 zF- LIJ U• � ON w • w' 1- � ..z• w O ▪ F- z Notice of Appeal J.K.A., Inc. (by Jihad Keirouz) 12/27/99 Page 6 reasonable use or value without violating the constitution (See Mr. John's Letter, Pages 2 -3). This rule of law is fairly accurate2, although there are exceptions. The fatal error lies in Mr. John's application of the foregoing rule to the facts because his assumptions of fact are incorrect. He assumes that Lot 12 is a "part" of a larger parcel. Lot 12 is not part of a larger parcel. In fact, the Staff Report is clear throughout the Findings section that lot 12 is a separate parcel and that it was a separate parcel when Mr. Keirouz purchased it. There is no reference to any larger parcel in the Staff Report. Lots 12, 13 and 14 are at all times referred to as completely separate parcels. In each case referred to in the Mr. John's letter, government regulation is only taking away the reasonable use of part of a parcel of land. Here the government regulation is taking away the reasonable use of all of the parcel at issue, Lot 12. The Staff Report states without reservation that "strict application of the setback and buffer requirements under TMC 18.45 and the underlying development standards in the Low Density residential zone leave a negligible developable area on the parcel" (See Findings, Vicinity /Site Information, Project Description). Ultimately, there is no dispute in the record on this issue. Lot 12 is a completely separate and independent parcel of property which has no reasonable use under government regulation without a Reasonable Use Exception. HARM SUFFERED BY APPELLANT AND RELIEF SOUGHT As demonstrated above, the Planning Commission's Staff's recommendation to deny the Reasonable Use Exception was based on the following flawed information: The staff contained "findings" which were incorrect; The report inappropriately attempted to apply constitutional law instead of the Tukwila Municipal Code to determine whether a Reasonable Use Exception was appropriate; and The constitutional analysis was flawed because it relied on cases that addressed the taking of a portion of a parcel of land rather than an entire parcel of land. Because the fatally flawed findings, conclusions, and recommendation of denial of the Staff Report were adopted by the Planning Commission in its denial of Mr. Keirouz's request for a Reasonable Use Exception, that decision should be reversed and Mr. Keirouz's development proposal for Lot 12 should be analyzed in accord with the applicable law, Tukwila Municipal Code, 18.45.115. Furthermore, because Mr. Keirouz, with the help of several experts, has successfully created a development proposal that 2 This is not to be construed as an admission that Mr. Johns conclusions based on the legal principles are correct. Notice of Appeal J.K.A., Inc: (by Jihad Keirouz) 12/27/99 Page 7 meets the requirement of 18.45.115, his request for a Reasonable Use Exception should be granted. If Mr. Keirouz is not granted a Reasonable Use Exception his property will be of absolutely no value. It is surrounded by single family dwellings and is covered with heavy vegetation. Without the Exception, Mr. Keirouz will be unable to build any permanent structure on the land. He will be forced to leave it as is Over time it will become a threat to public safety and health due to refuse and stagnation. Given the options for Lot 12, it is in everyone's best interest for this lot to be properly developed. This will lead to an aesthetically pleasing influence on the community, as well as preventing a long -term health and safety threat to the community. Very Truly Yours, Thomas E. Stanley Cc: Jihad Keirouz f.E.Y .Vint' »:.3:P e.r eirg Dept. Of Community Development City of Tukwila AFFIDAVIT OF DISTRIBUTION , I, ` (0`tom j3si. DECLARE THAT: Notice of Public Hearing Determination of Non - Significance Notice of Public Meeting Mitigated Determination of Non - Significance Board of Adjustment Agenda Pkt 1 Determination of Significance & Scoping Notice Project Number: Board of Appeals Agenda Pkt \, .\q -- ocq 1 Notice of Action Planning Commission Agenda Pkt Official Notice Short Subdivision Agenda Notice of Application Shoreline Mgmt Permit Notice of Application for Shoreline Mgmt Permit __ __ FAX To Seattle Times Classifieds Mail: Gail Muller Classifieds PO Box 70 - Seattle WA 98111 �(' Other 1_ ca ) �bTe..A0C3Cf \'‹5 Was mailed to each of the addresses listed on this year 20 day of in the < lc ed \� \ \- 0 U- () 4). \ \-Nc), \�i,-, LH.a_ Project Name 1 Q 1\C p �---L 4 Qnti___ Project Number: \, .\q -- ocq 1 Mailer's Signature: � - Q..3�'� \URILQ P:GINAWYNETTA /FORMS /AFFIDAVI' - MAIL01 /24/0011:44 AM `- Th City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director STAFF REPORT TO THE PLANNING COMMISSION PREPARED DECEMBER 3,1999 HEARING DATE: NOTIFICATION: FILE NUMBER: APPLICANT: OWNER: REQUEST: LOCATION: ASSOCIATED PERMITS: SEPA DETERMINATION: COMPREHENSIVE PLAN DESIGNATION: ZONE DESIGNATION: STAFF: C: mydocuments...9949a December 9, 1999 On September 28, 1999 Notice of Application was posted and mailed to surrounding properties. Notice of Hearing was posted and mailed to surrounding properties and published in the Seattle Times on November 24, 1999. L99 -0049 Jihad Keirouz / J.A.K., Inc. Jihad Keirouz Request for a Reasonable Use Exception (TMC 18.45.115) to alter a Type 3 Watercourse and fill a related Type 3 Wetland for the construction of a new Single Family Residence 13041 - 33`d Ave S Land Altering Permit Development Permit Determination of Non - Significance issued November 16, 1999 Low Density Residential (LDR) Low Density Residential (LDR) Michael Jenkins 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 z w 0 .0O tn w =, w 0' g Q: • �w _. zF- z 0. w `n 1-• .= 0 1--- W '01-- z December 3, 1999 Staff Report to the Planning Commission Re: Keirouz Reasonable Use Exception File: L99 -0049 ATTACHMENTS: A. Vicinity Map B. Site Plan C. July 17, 1998 Memorandum D. September 4, 1998 letter E. 9/23/98 Public Works comments for D98 -0287, 13021 — 33rdAveS. Permit conditions for D98 -0287 9/23/98 Public Works comments for D98 -0216, 13031- 33rd Ave S. H. 7/21/98 Public Works comments for D98 -0216 I. 9/11/98 Building Division comments for D98 -0216 J. Permit conditions for D98 -0216 K. November 22, 1999 letter from Robert Johns of Reed McClure F. G. • z U; 00 ' w =: J I w g¢ w:• Z �. F- O` Z w U0 rn • O • = V, . • U =.: 0 :z • 1 December 3, 1999 Staff Report to the Planning Commission Re: Keirouz Reasonable Use Exception File: L99 -0049 FINDINGS Vicinity /Site Information Project Description The applicant is requesting a Reasonable Use Exception under TMC 18.45.115 to develop a Single Family Residence at 13041 — 33rd Ave S. The request includes piping of a Type 3 watercourse running along the south portion of the property, immediately adjacent to the property line and the filling of a related Type 3 wetland covering much of the parcel. The applicant has requested a Reasonable Use Exception request, as strict application of setback and buffer requirements under TMC 18.45 and the underlying development standards in the Low Density Residential (LDR) zone (TMC 18.08) would leave a negligible developable area on the parcel. Existing Development The property is a pre - existing legal lot of record addressed as 13041 — 33rd Ave S. A map of the property and adjacent parcels is included as Attachment A. Surrounding Land Uses The surrounding properties are all zoned Low Density Residential (LDR) and are primarily occupied by single family residences. Terrain The parcel includes portions that have slopes of approximately 15 %. The proposal calls for significant earth removal to create a developable area on the parcel. DISCUSSION The applicant is seeking to develop the last of three parcels that he acquired in April, 1998. The lots acquired by the applicant abut each other and are pre - existing legal lots of record pursuant to TMC 18.70. The lots were annexed into Tukwila under Ordinance 1574 adopted in June, 1990. Each of the lots are approximately 5,886 square feet and are located in the Low Density Residential (LDR) zone. The minimum lot size in the LDR zone is 6,500 square feet. The Sensitive Area Overlay (TMC 18.45) provides criteria for evaluating Reasonable Use Exceptions to develop property where the effect of the regulation limits the owner from having a reasonable economic use of the property. However, if an applicant purchases a property and knows, or should know, that limitations on the parcel affect its development potential because of sensitive areas, they may be limited from being granted relief. December 3, 1999 Staff Report to the Planning Commission Re: Keirouz Reasonable Use Exception File: L99 -0049 As referenced, the applicant purchased the subject parcel and the abutting parcels to the North after the adoption of the Sensitive Area Ordinance. Following this, the applicant applied for and received two separate development permits to construct single family homes on each of the abutting parcels. Attachment C is a Memorandum between staff of the Departments of Community Development and Public Works documenting wetland and watercourse issues on the three lots. This analysis provided the basis for subsequent conditions on development of the parcels. Attachment D is a September 4, 1998 letter to the applicant documenting the wetland and watercourse issues on the subject parcel, including encroachment and alteration of the sensitive areas as a result of development on the adjacent north parcel. Attachment E and F show the permit history related to the northernmost of the three lots (13021 — 33rd Ave S.) developed by Mr. Keirouz. Attachments G -J are permit history for the lot closest to the subject parcel (13031 — 33rd Ave S.). The attached permit history indicates that significant problems with drainage existed on the parcels, including an active spring, which were disclosed to the applicant prior to filing for a development permit (D99 -0168) on the subject parcel. Attachments D through J are provided to show how drainage issues were documented on the parcel as a whole, as well as what occurred on individual parcels in response to permit activity. LEGAL ANALYSIS Attachment K is a letter from Robert Johns of the law firm of Reed McClure. Staff has sought his legal opinion concerning the applicability of the Sensitive Area Ordinance as it pertains to this Reasonable Use Exception request. Mr. Johns' letter provides important insight into the issue of Reasonable Use and its application in the instant case. Some of Mr. Johns' pertinent points include: • Even though most of the value of a parcel of property may be eliminated (due to a regulation) it does not mean that there is no economically viable use left (Page Two, Johns' letter) • An analysis of a "taking" of property rights must consider the circumstances in which the property was acquired and the natural restrictions on the use of the property (Page Two, ibid.) • An inquiry to determine the economic viability of a property does not focus on a portion of a regulated property, rather a regulations economic impact is to be determined by looking at uses of the entire property (Page Three, ibid) • The owner...does not need to be given a reasonable use exception to build on all of the lots so long as he is able to achieve an economically viable use of at least some portion of the total property (Page Three, ibid.) • A property owner cannot purchase a property that has little value "due to natural limitations and then expect the government to compensate for the fact that the property cannot be developed as fully as one might otherwise wish" (Page Three, ibid.). December 3, 1999 Staff Report to the Planning Commission Re: Keirouz Reasonable Use Exception File: L99 -0049 CONCLUSIONS • The applicant acquired legally non - conforming parcels as to the minimum lot size after the adoption of the City's Sensitive Areas Ordinance (TMC 18.45) • ▪ ▪ The applicant developed two of the three parcels he purchased with the knowledge that there were limitations due to surface and ground water that effected all of the subject parcels • The applicant developed two of the three parcels with conditions that were designed to address surface and ground water issues • The applicant sought relief from the Sensitive Areas Ordinance despite prior knowledge of the cumulative effect of surface and ground water issues on the subject parcel • Regardless of the merits of any plan that the applicant may develop to address surface and ground water issues for the subject parcel, the applicant is barred as a matter of law from being granted a reasonable use exception. This is well documented in Mr. Johns' letter included as Attachment K. RECOMMENDATION Staff recommends that the Reasonable Use Exception request be denied, based on the facts of the request and the pertinent case law discussed in this staff report. , i IINMI I�INI MDR D r ubi S 1 C!) r I 5TH sTt L M 4r EL itTAI P .I• Zi wArn- • ow F-- 1 , 1 MIA r 1 Hen. LDR- Density Residential Subject Area W M ti CY, Keirouz Property 13041 33rd Ave. S. Reasonable Use Exception Attachment A . tAlty z z re w 0 0, N ww W =: J Fes, fAu. w0 g Q: a. W r-z. o 0 —: 1 wz o Off z File: L 99 -0091 35mm Drawing #1 MEMORANDUM TO: Gary Barnett, Development Engineer Tammy Frederick, Permit Technician �y/ FROM: Gary Schulz, Urban Environmentalist x, �"� /X DATE: July 17, 1998 RE: Keirouz Single - Family, Permit #D98 - 0215 & -0175 Preliminary observations of wetland drainage. At your request, I visited the site of 2 existing lots on 33rd Avenue S. earlier this week. Your observations of active drainage on the southern lot are warranted. I observed groundwater drainage in the ditch along the front of the property which may be considered a regulated watercourse. The greater area of concern is the extent of wetland on the property. Wetland associated vegetation is present throughout with an apparent seep area on the south property boundary. As required by the Sensitive Areas Ordinance, a wetland study will be required prior to any land altering activity on the southern parcel, Lot #12. It is likely that this lot will not be developed without some wetland mitigation planning. Please refer the applicant to me if there questions at 206 - 431 -3662. Thank you for your attention to the situation. cc: Steve Lancaster, DCD Director ATTACHMENT C Q ,t- Z, W. J0 C..) O': W = w o, g -; u D. a I- _' Z 1-o' Z E-: U ;O H wW 1-- u- liJ Z; ~ Z jrho4 5F P` City of Tukwila 6200 Southcenter Boulevard • Tukwila, Washington 98188 John W Rants, Mayor September 4, 1998 Mr. Jihad Keriouz 13520 Linden Avenue N. Seattle, WA 98133 Re: Single - Family Demolition Permit #M198 -0113 & Building Permit #D98 -0215. Dear Mr. Keirouz: Based on a site visit I conducted on approximately 8/12/98, your house demolition/construction activities have encroached and disturbed a sensitive area located on Lot #12 of the Robbins Springbrook Addition in Tukwila. The site is located along the west of 33rd Avenue S. just south of S. 130th Street. Portions of the lot were cleared by machinery and a small drainage pipe was plugged. I discussed the situation with your biologist by telephone and met with you on the site last week. There is wetland area on the lot associated with a small drainage that enters the property from the southwest. The local area has groundwater seepage and city mapped wetlands are present to the west along 32nd Avenue S. Per the City's 8/11/98 Correction Letter #1 and activities that occurred on -site, you will need to submit the following: 1) Wetland study that identifies the extent of wetland and watercourse area affecting the site. 2) A plan to restore the disturbed drainage and maintain it as an open system. This plan may include incorporating an enhanced drainage channel that become part of the final building permit for the single - family residence. ATTACHMENT D Phone: (206) 433 -1800 • City Hall Fax (206) 433-1833 c Mr. Jihad Keriouz September 4, 1998 Page 2 Please submit the required study and plan by October 1, 1998 to continue the building permit review. An Hydraulic Approval Permit (HPA) may be required by the State Department of Fish and Wildlife prior to altering the watercourse on the site. If you have questions about this letter contact me at 206 - 431 -3662. Sincerely, 1 0) C. Gary Schuh Urban Environmentalist cc: Steve Lancaster, DCD Director Joanna Spencer, PW Associate Engineer 4 Kelcie Peterson, DCD Permit'Coordinator ..........us..iin.A4 +h ". •.i. City of Tukwila Department of Public Works PUBLIC WORKS DEPARTMENT C(D/MENTS DATE: September 23, 1998 PROJECT NAME: Keirouz Residence PLAN CHECK NO.: D98 -0287 John W. Rants, Mayor Ross A. Eams4 P. E, Director PLAN REVIEWER: Contact Tammy Frederick, Permit Technician at (206) 433 -0179, if you have any questions regarding the following comments. Due to the amount of surface water associated with your property the Public Works Dept. will require that your storm drainage plan be disigned by a licensed engineer. Please submitt 4 copies of your new site plan with the engineer deisgned storm drainage plan to us as soon as possible so we can review and approve your engineered plan. cc: Gary Barnett, Public Works ATTACHMENT E 6300 Southcenter Boulevard Suite #100 • Tukwila, Washington 98188 • Phone (206) 433 -0179 • Far (206) 431-3665 • W '-a.,.zLO2i�S'v'wr�iLi_ r. N'o:.3.t�l.:,c:FS x✓ Address: 13021 33 AV S Suite: Tenant: Type: DEVPERM Parcel #: 735960 -0495 -CITY OF TUKWILA Permit No: D98 -0287 Status: ISSUED Applied: 08 /24/1998 Issued: 10 /14/1998 *•1 ***•*****.**. k•******************•k*•****** •k** ** #****•k **** *** *•k * * * * * *•k k*** * *•k *A Permit Conditions: 1. .No changes wi11 b. to .the plans unless approved by the •Airchitect:or Engineer and th •• a Butlding Division. 2: 'Plumbing permits shall the .Seattle -King :County .Department • inspected by th •(296 -4722) • 3. Electrical >-•/- Wag ed ilt hrq he ': ' ington State•'Div -fI*fn o 'L nd Industrigs a _ d l ,lec•.l al' tom ,work wi 1 • ,e p d bv* tHa.� e agerier eq. 48-600\,. 4. :A11 mec -. c w . sr,a'��1 be u der separate per ai "s • .the C i .. of u 11;a,40..-.,.,.... . � ��• • • 5. All *p , i t.:insptttion�r^,� •rds, a approved "la : avai e a : the.!job :s p ior•.t .the start of.any ` <-•r strt ion. hese ;do ents 0 be maintained'on. abl n inel • ins ti on 1pr'ova. • is ararited. • .. 6. Eng 1t e d rips •d.r•a�1 s,• . • ca1c�uTations shall •bey :o an •' •'vai le. to *•44414 •di' g .ins �e to�' • inspect' +io .pu ses: `•Dcbbum --• "= a -eke d s.i gnatyre :Wa - i n ton •Sta o s f 1 1 e 7, An -xpose irn 1 • o a• ing a e - •all have :a Fla e• . ;Sp` -d in4•o_ 25' *• . es .��nd - to ial -hall •.bear• •.i� " :f i • ion,..., _ oval ng ,' . r • e • rm� - ng •*:thereot 8 ,Al 'lion. t on :..,• , -. 7 • e .in o' • ith .appro ;.-LP1 t aquri.rements'-of • the • Cod . Edi ►�• n). .. m de.d;'';Uni.form Mec • - - e 1997b`Ed `and 1 h Y' i !fate Eriergv'' :Codd ( 9 t. ) '' < ' 9: ;Novi th City :•of.�..,Tukwi••la ,•Bu11 • in D i • • 'r br. :to •. '` ;p1•ac1 � r 'an concrtie '_"-;ACCEP.TA,�`E :• = 'AT �� ..EXCAVATI :CONDI !S' =AN UN�ATION:`'ORAI� GE S - Y 'IGEOT CO • iTANTS, 'n'IS 'a.PUI PRIOR. TO FOOTING: JN'SPEC AP BY•.TUKWI\ UIL';•. G.DIVIt•Iptr• •,.,••:. ......'••: ,.. �`t• no • ccupanicy��of.,ei- ��auilding(s) anti e ';There:�'sha � :final ;inspe •has been" m :the Tukwi 1 •�,,;� !ding Inspector.. '• :. ;;� i. I'1 Vallditv'`of'tPe The i s c errn •• PP roval •of - 'plans; 'specif icat��: P • • computation y of be con - •strtied •to be`a• permit,•' nk;� -j•.' -.1: i•Z,4 - • , . any violation of any • of =the provisions '0 7 • • ng code or ..of •an_v •• . :'other •ordinance:.o -( the ''jur.tsdiction. No ••permit `.presuming• to .:'give. :authority ' :to 'violate :Or ',cancel the - provisions 'of • this • • • code *shall Ube valid .: , 12'. <: ** * * *w * * *•k PUBLIC'= WORKS * * * * * * * * ** .. Temporary•erosion;control measures shall be •implemented as • :the first brder7of business to prevent sedimentation •off ;site or 'into. existing storm •drainage facilities. . . 13. The's i te-'sha 1 1 have ' permanent .'ergs i on 'control measures in. ; . ;place as soon as possible after-final grading has ;completed ,anCprior,.to 7the.4Final Inspection. ATIACHME • 14.- Driveway width 'Shall :'be't'a '•10' ''minimum and 20•x* maximum :'Slope; . '• shall be a.• maximum'`of •-•15'x...= -•Turning •radii shall be a minimum • of five feet. " ' -' •• . • ,E 'tF+ttreeS+ .m..tvAr y tree- }Y.r,,tr . Ai`1r -y,+., ,ctCw+ ,,,,,,,,,,,, ,.re.- ..,.».. • c • 4c ea1th. udir9 all g wi11 be a e h -1 i 3. :Haul:�n`g over" 50. acv.: Thal l :requireappl ication;:fo.4a iiau7 ing 4Per�iditrpr.'iorLtoany ssociated:•activity; 16. ;No•`.sewer..`design =was provided as.`part of: the' appl ication ;submittal.-The side sewer design and subsequent. construction ;shall .be completed in accordance with City sewer 'standards. ;Downspouts, 'driveway; patio -and drainage from other `impervious areas-shall be collected in an strom drain system. Drains shall be 4" min. diameter, PVC schedule 40 or corregated poly ethalyne pipe with a smooth interior wall. NO ADS flex. pipe. Drain shall be laid with a minimum 1% slope for gravity discharge to location approved by Public Works Dept. Downspouts shall not connect to footing drains.• .Footing drain and downspouts may share a single discharge .pipe downstream . (niin of 5') of the lowest : footing .drain: 18. ;The 'Citv.`of..Tukwila; ;requiring :the pow lines;be •under' pole : to'=the , •� ; 19'. The''.a PP 1 ica 43 us S 206= 3 =0. • �E'', po '' .. least °24 utility 20 :THE�AP= • :SYSTE.! . •FIEL 'PLA rdinance ommun i ca t i on fro a poi of conn 51 l i cementbgpROacompliet an wig ancp••Ail :insiett.bi n q hours: Nadv ., I G ..AND . Ste n TECH CONS TAN ATTACHED T •THE ble service On the • • • :r: City of Tukwila Department of Public Works PUBLIC WORKS DEPARTMENT COMMENTS DATE: September 23, 1998 PROJECT NAME: Keirouz Residence PLAN CHECK NO.: D98-0216 John W. Rants, Mayor Ross A. Eamst P. £, Director PLAN REVIEWER: Contact Tammy Frederick, Permit Technician at (206) 433 -0179, if you have any questions regarding the following comments. Due to the amount of surface water associated with your property the Public Works Dept. will require that your storm drainage plan be disigned by a licensed engineer. Please submitt 4 copies of your new site plan with the engineer deisgned storm drainage plan to us as soon as possible so we can review and approve your engineered plan. cc: Gary Barnett, Public Works ATTACHMENT G 6300 Southcenter Boulevard Suite #100 • Tukwila, Washington 98188 • Phone: (206) 433 -0179 • Far (206) 431-3665 .1.:4.� �.a'2J: ^ °5'>w�:w.6±I.�.:�bi•R�lw wv'�.t.�.. v.�i h.:. z • z'. w J U: O 0 W= J 1.- w0 • F g --J D. a = w. Z I- 0i w 2 • o p (11' CI I-- w W- F- V. U. 176 O; CU.z' O 1- z File: L 99 -0091 5mm Drawing #2 PUBLIC WORKS DEPARMIENT•COMMENTS DATE: July 21, 1998 PROJECT NAME: Keirouz Residence PLAN CHECK NO.: D98 -0216 PLAN REVIEWER: Contact Tammy Frederick, Permit Technician at (206) 433 -0179, if you have any questions regarding the following comments. After reviewing the plans you submitted the Public Works Department finds that the site plan is incomplete, we will need four (4) copies of the site plan showing the following information: 1. The Storm.Drainage System you show on your plan does not exist. Either show your storm water connecting to existing catch basin or submit a plan showing how you will be creating a new storm drainage system and where it will tie into existing system. Include the type of material to be used. 2. There appears to be a storm drainage pipe running through the property which connects to the catch basin at the southeast corner of your property. Show where this existing pipe is located including where the other end is. 3. The topography on the site plan seems to be off. Is the topography shown how the lot will be after grading? If so, estimate the amount of cut and fill to be done for a land altering permit. 4. Show the location of the nearest fire hydrant. 5. Show the location of the closest power pole and how the lines will be connected to the house. The City of Tukwila has an undergrounding ordinance requiring the power, telecommunications, and cable service lines be underground from the point of connection on the pole to the house. cc: Gary Barnett, Public Works ATTACHMENT H z -w 6 U O; co J H SQL wO 2 J u- <. =• d I.. w z= tu F-O Z I- U• � O cn:.. = - U tii z' P Is OH Z TUKWILABUILDING DIVISION PLAN REVIEW COMMENTS DATE: September 11, 1998 PROJECT NAME: Keirouz residence PLAN CHECK NO: D98 -0216 PLAN REVIEWER: Contact Bob Benedicto at (206) 431 -3670 if you have questions regarding the following comments. 1. The foundation design that was submitted with this application was based upon an assumed allowable soil bearing pressure of 2000 p.s.f. The building code permits the design of foundations for stud bearing walls to be in accordance with U.B.C. Table 18-1 -C provided that the design loads for continuous footings have a load of less than 2000 pounds per lineal foot and isolated footings have design loads of less than 50,000 pounds and_ the foundations is on nonexpansive soil. Re: U.B.C. 1805. The current site conditions indicate that the soil on this lot may be of organic clays and perhaps an expansive soils condition. In addition, there is an active spring to the West side of the lot that is pumping water over the proposed building footprint. Based upon this new information regarding the site conditions, we are not permitted by code to approve the prescriptive foundation design, as submitted, without additional information. Provide a geotechnical report prepared by a professional engineer. The report should. include recommendations for foundation type and design criteria, including bearing capacity, provisions to mitigate the effects of expansive soils (if found) and provisions to drain the spring water from around and under the proposed building. A revised foundation plan and detail's may be required based upon the findings of the geotechnical report. End. Initial plan review comments. ATTACHMENT 1 CITY OF TUKWILA 'Address: 13031 33 AV S Permit NO D98 -0216 Suite: Tenant: Type: DEVPERM Parcel #: 735960 -0474 ** k*******• k• kk*• k******* k********• k*:t**:***:k*• k*****• k***• k: k* k *•kk•k***ik:k:tit:k*:t•k•k•kkk Status: ISSUED Applied: 06:19:1998 Issued: 10/14/1998 z Permit Conditions: ~ w 1. No changes will be made to the plans unless, approved by the 6 D Architect or Engineer and the_, ukw.,i,_1 a Bu 1'1 d i ng Division. 0 2. Plumbing permits s�hall�b e..,ob_ta.inedu.yq, the Seattle -Kira o County Department . f= FSitil4ic'' -Hea 11th 'P�iLrr►b' .Trg:..,wi 1 1 be coo w .inspected by that nc_v, .,including, all gas•'�pti Ring W _ F- (296-4722). �.-,' ,r �;, f� ' F,-;3, '-'' w p 3. Electrical ye .ai ts.,sha T'}i be ob:ta tined .;through ,,:the •Washington State Divi.s'�.on of: jabo.r sand Industries and a'11.,electrical .work wi 1 J40. be inspected by, that' 'ageric '' :(248!6630) ..S, .r•. u. 4. All mect*ani cad wo ii shall be•',und.er separate perry t , i sued. by c d the Cix5 %of 1ukvi1a,''� 4 `,, ,,'., �, 5. All pet rn'i ts, i nspa�t i on ��r.e.dords, and approved pal arse sha 1 1 •be z �. ava i l;ab'l e. at the d.ob s1.•te; prior teethe start ot'4any conk ' z O strurt.1on. These .doc„3iments ac.e..•to be maintained''.and .oavai 1�, ww ablF inti' fined i.nspeltion ap'prov is granted. 4 ..;,II- Uo. 6. Engi.nber..;ed truss drara't'1igs_.and ca1cui1'ations shall b�e one'si:te and vailable,to the�bR•i,ldi.ng\ ins.pecedr --tar inspection- •' pur oses. • Dotumen s hat� {bear,;�ttje se,aJ- -and signature.�� of\a FLF Wasf�ngton State- ofe.ssioi<ial Eng'fnee� :n''; �- Any exposed tnsu l a.ti ors baclO ng rna eai4aT ha 1 1 have ?a Flame ;4; u. 0 Spread Reins'; of'2� 5 or less 'and!,material ;shall bear i'de iti -:,..: z fi ;'atior howAng /Dine ,pert:ormarrce.. ang thereof . 4 in • 8. Al 'fcon'st action to�be4done im,cori'formance?w,ith approved off pld! �` ark qutiirements of the LJr 4for•in Bu•rtd1ng Code' t1''9g +T' NI. z EdiC$'on) s#"aniapded, Uniform MeehaRica•1--Ca.deM997r Edition);,i,,, and ‘Wish ,ten State Energy Code /( 1:597 ;Ed.i t on) . , -Ale t I 9. Notitith .City lof Tukwila Bui id`ing Divisiogpr4or to ,,/ p 1 ac fn any concrUe . ACCEPTANCP OF..,,THE\ FOUNQA�T'ION EXCAVAT%,. ION CO TIONS.;(��ND tpAINAGE SY;5.ZEM B1?'�6E0TE� h> CONSULTANT$_; ' INC. ISM, DUIREA RIOTO FOOTING INSPECT .ON APaRQVAL p:Y.T TUKWILA pApi IVISIOIVa.s • a , a 'a,* ''G t) �r. % 10. All wood tolTemain in placed deri ate shall be'treated"wopd. 11. There sha 1 1\de io occupancy /afNthe\ bCfl l d i ng (s) unt41 the final i nspectib •has been comgl'eted 'JYSt the Tukw.i1-48u i 1 d i ng tJ ........r- 12. fry Inspector. N.,A�.,, - Temporary erosion c :on'tr¢- 1.._measures shaj.l e 1Jnplemented as the first order of busixess to-pventc sed•�'t»entation off- site or into existing stornrdage-'facilities. 13. Driveways shall comply with City residential standards. Driveway width shall be a 10' minimum and 20' maximum. Slope shall be a maximum of 15%. Turning radii shall be a minimum of five feet. 14. Driveways shall be paved for a minimum distance of 20' from the edge of existing road pavement. )15. For residential driveways, a minimum 12" concrete or ADS N -12 pipe shall be installed under the driveway at the ������ existing drainage ditch location. e 16. It is strongly recommended that storm drainage desa :s :e certified by a licensed engineer; otherwise, the owner assumes liability ;for the design and any subsequent related danaoes. .. _ .k r}cX.. ••,.(4 :Y Y fY}v_xy*�rn,,,-r.�..___ compaction, and fill requirement shall conform strictly with recommendations giv, in the soils report by Ge ech Consul- tants, Inc. A LETTER OF ACCEPTANCE WILL BE RELAUIRED OF THE GEOTECH ENGINEER PRIOR TO COVER OF REQUIRED DRAINAGE SYSTEM. CALL FOR GEOTECH INSPECTION PRIOR TO CALLING FOR FOUNDATION INSPECTION. 18. Validity of Permit. The issuance of a permit or approval of plans, specifications, and computations shall not be con - strued to be a permit for, or an approval of, any violation of any of the provisions of the building code or of any other ordinance of the jurisdiction. No permit presuming to give authority to violate or cancel the provisions of this code shall be valid. 19. The site shall have permanent erosion control measures in p #ace as soon as possible aft- ..1 ar iing has been completed and prior 20. Hauling over 50 cv 6aat re-Cu-ire app for a Hauling y Permit prior to a g.assocta edacti' vit_v. 21. 1 . No sewer des 1g,t Ta•s pro v; de C pa of tl~re� apa1.4 aa.t ion submittal . 7 .'side ewers :les :gn•:4nd . ubse.qu,ent construction shall be caa�p'feted adbordance wits Cit"y.as'ewar siranda�'ds. 22. Downspoutst; drt. ew''�l\ pat.3o'and dr-afirtagg fronr4;othes • • impervious• "area s�.iialldbe collected in an.eun- siite�5jtrom; .s. drain sistem " D irair�ssha,11"S :be',£.°;�.min. diameter .,;P,VCs, `�y, sched.�je 40 or cor,,r•egatedh poly eth yne pipe vr.i th yas;smuotfi . inter.'•io'r .rva.11. NO ADS`: f;lex,:pipe...•r'Drain shall `be laid` witti.. a mtri muni� .t.c, slope f gravfitarsi'fscharge to locat,iori ,s' � •;.. appro'ivedf bir:.1Pub''1 is Wor l�s Dep; Dowjspouts shat 1 not :.cos ec•t to,foot i :fig drain_.. Fbbt- ing'7dra in and downspouts m'ay share a s.irigle di'scgiarge p.i'pe- downstreamMIN --OE1 5' l of the•itowest_.�, foo ing drairr% r �`�.. �. ;23 . Thee i tv of T;u i 1 has `kan6iundergron'df•ng ordinance r• equ ir;i ng; f • the4ipower a+ to l e.commun tins . and \cab- a ,service 1 i ides be un6e ground i rom;`t --po'i n,t Zof connection on the pole to-4t•tae ii .1; 24 • The` pp ii';ca�nt' mustrio•.t�i�irar' the 'C'i t) t '1- ty��inspector s 206 33 01,0 upon. commencement ar m,p' t-i-on_ of ws3rk� .tom � • lea'S 24 hots s',in advance. A11 ; i,pectionre,quests fo•r+t ut i i1 .€ riorkYmus t also be made 2,4 Hours'' n (iyanc�e . 25. THE A ,LICANT SW ALL BUILD THE FOOTING4NU S- TROM„•DRAINAGE vk SYSTE�•lt'ER THE RECOMMENDATION OF GENTEC(i 'CONSu TANTS, INC :js FIELD ORT DATED '- -15 -98 WHIal IS iii ACHES; tO THE' SITE;' PLAN AN ADE PAT OF'eTJ1IS PERMIT. ' k 9$1 * i;4 .... ;j." U” .• REED MCCLURE A T T O R N E Y S A T L A W A PROFESSIONAL SERVICES CORPORATION TWO UNION SQUARE 601 UNION STREET, SUITE 4800 SEATTLE, WASHINGTON 98101.3900 FAX: 206/223 -0152 206/292.4900 November 22, 1999 Mr. Steve Lancaster, Director Dept. of Community Development City of Tukwila 6300 Southcenter Blvd. Tukwila, WA 98188 1999 IN REPLY REFER TO OUR FILE NUMBER 18555.31663 WRITER'S DIRECT LINE (206) 386 -7016 rjohns @rmlaw.com RE: Summary of Legal Standards regarding Takings and the Reasonable Use Exception Dear Mr. Lancaster: This letter is in response to your request for legal analysis of the circumstances in which the reasonable use exception to general takings law should be used in Washington and in particular as it applies to the Keirouz application. In order to provide some context for this analysis, it is important to recognize that historically a "taking" was a physical, appropriation of property to the government, but that in recent years, the Courts have ruled that the "over- regulation" of the land uses can also be a taking of private property. State law defines property broadly to include not merely ownership and possession, but the rights of use, enjoyment, and disposal'. Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960). The United States and Washington State constitutions prohibit uncompensated takings of property by the City. However, this does not mean that all actions of the City which lower the value of property or limit its use require constitutional compensation. Most regulation of property is a legitimate exercise of the police power and requires no compensation under the constitution, in spite of what may be a severe negative impact in some cases on the value of the property. I should note at the outset that this analysis applies to all forms of land use regulation and to all types of uses. The rules are the same for residential, commercial and industrial properties. The United States and Washington State Supreme Courts have defined a series of tests which a challenge to a land use regulation must meet in order for the court to determine whether a regulation creates a taking which entitles a property owner to monetary compensation or some 1 The term "disposal" refers to the right to lease, buy or sell property. ATTACHMENT K Mr. Steve Lancaster, Director November 22, 1999 Page 2 other relief. Lucas v. South Carolina Coastal Council, 504 U.S. 1003, 112 S.Ct. 2886 (1992), Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993), cert. denied, 114 S.Ct. 1216 (1994); Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 111 S.Ct. 284 (1990).2 One test for determining whether an unconstitutional taking has occurred requires a determination of whether a regulation denies the owner of all economically viable uses of the property? If the answer is "yes ", then there is a taking which may require that the agency pay compensation to a property owner.3 In the event that a potential taking occurs under the "total taking" test, the "reasonable use exception" exists as a mechanism for providing relief to the property owner and avoiding the necessity of paying compensation. There are several important aspects to the "total taking" issue which should be examined in any case where there is a request for a reasonable use exception. First, the fact that most of the value of a parcel of property has been eliminated does not mean there is no economically viable use. Second, the analysis must consider the circumstances in which the property was acquired and the natural restrictions on the use of the property. As a result, the analysis is very specific to the factual circumstances of each case. Several examples may be helpful. In Maple Leaf Investors, Inc. v. State Dep't of Ecology, 88 Wn.2d 726, 565 P.2d 1162 (1977), the court upheld a regulation which prevented construction of homes within a floodway because other structures, including some agricultural and commercial uses, could be developed on about thirty percent of the plaintiffs property. The court also noted: [I]t was not the State which placed appellant's property in the path of floods. Nature has placed it where it is, and if the State] had done nothing with respect to flood -plain zoning, the property would still be subject to the physical realities." 88 Wn.2d at 734. On the other hand, in Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 733 P.2d 182 (1987), the court determined that a downzone from industrial to agricultural deprived the landowner of all economically viable use of its property and resulted in a taking. The city argued that even though the parcel was purchased when it had industrial zoning and was subsequently. downzoned to "agriculture ", it had not been deprived of all economically viable use because in theory it could be used for a blueberry farm, a raspberry farm, or a horse farm. In the absence of evidence that there was a viable market for such uses or that the owner /developer could put the property to such uses, the court rejected the city's contentions. By contrast to the Maple Leaf Investors case, there was no argument in Valley View that natural conditions made the property unsuitable for any use other than agricultural operations. 2 Only some aspects of these tests apply to cases involve the-reasonable use exception and I will not go into those issues in this letter. 3 There are some exceptions to this rule, but they are not relevant to the reasonable use exception situation you have raised. �rurriir�- rev „a..rir.....�..�,,.- �.,,�,_,_„� ...... _. _.. ..�... e.. �... �n•.. �.. w.. �+ t. Mw+ �m+'.. nrx�_a, >,•a+N.rf.:v.^+e.;•iuwn: z �z w JU • 0 w= • LL w 2 g r3 a =w F- _ z� F-o z 111I-. uj UO oN .0 I-- wW tom- O. �o wz U2 0 F; z • Mr. Steve Lancaster, Director November 22, 1999 Page 3 One issue arises frequently concerning the economically viable use test and it is the principal issue affecting Mr. Keirouz's application: how to define the size of the parcel to be considered when measuring whether all productive use has been denied. In Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907 (1989), the Supreme Court specifically held that a rit operty could not be divided into pieces for purposes of-claiming a reasonable use exception on only a fraction of an owner's property. Thus, the inquiry does not focus upon a portion of a regulated property. Instead, a regulation's economic impact is to be determined by looking at uses that can be made of the entire property. See also, Orion II, 109 Wn.2d 621, 664, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1996. This is consistent with Maple Leaf Investors, in which the court held that the State could completely prohibit all use of about 70% of a site, so long as the uses- permitted on the remaining 30% made the total property economically viable. In the case you are presently examining, a property owner purchased three adjacent unbuilt lots in a situation where he knew or should have known that the lots were severely impacted by wetlands and wetland restrictions. The owner in such a case does not need to be given a reasonable use exception to build on all of the lots so long as he is able to achieve an economically viable use of at least some portion of the total property. The net result of these decisions can be summarized with a few basic principles: • A government agency cannot restrict property to the point that there are no viable economic uses. • When analyzing a total takings claim, the agency must consider all of the property held by an owner. As a practical example of the application of this rule, consider a situation in which a property contains five potential lots, but one is completely covered by regulated wetlands: The owner is not permitted to build and sell the first four lots and then 'claim a taking because the last lot is a wetland. In such a case, the owner was able to obtain a viable economic use of the property as a whole. • When analyzing whether an economically viable use exists, a site specific analysis must occur, and the agency . may consider natural limitations on the use of the property. A property owner cannot purchase property which has very little value due to natural limitations and then expect the government to compensate for the fact that the property cannot be developed as fully as one might otherwise wish. In other words, whether a use is economically viable depends on the individual circumstances. • In determining whether a potential use is economically viable, the circumstances under which the property was acquired may be important. If an owner purchased property for a very low price because pre - existing regulations or natural conditions made the property difficult to develop, the level of use which must be permitted to allow an economically viable use may be much lower than for a property which was purchased for a large sum because it was readily developable but which was subsequently subjected to new restrictions. The Valley View case illustrates this principle. In that case the owners bought industrial land at industrial prices and were then subjected to a downzone to very limited agricultural uses. There, the intensity of use needed to achieve economic viability was wxypou,yrxc s�am.+aNstttT Yff '«waeon•«...:.,„. ..sir wr;..tr.,,e;;Kt !a':ettoc.'4:-.,?ttrMY,1,1'rgrr wsu.,,yh Mr. Steve Lancaster, Director November 22, 1999 Page 4 substantially higher than it would be intensive uses impractical. In summary, in the circumstances of the Necessary to approve a reasonable use excep I trust this letter has addressed the questions are many other aspects to the complex law you would like to discuss any aspect of this case, please call me. Very truly yours, in a case where natural conditions made more Keirouz application, I do not believe that it is tion. REED McCLURE Robert D. ohns RDJ:rdj 65932 vl which you have in this case. As I mentioned, there related to takings. If there are other questions or analysis either in general or as applied to a specific z = F-, H- z UJ re 2 J U; U O' cnw w= JI— LL wo g _i u_< . cn w: z z f—; U iO N "s = wU 1- i l..z U —. F- _' O— z CITY OF • 'UKWILA DEPARTMENT OF COMMUNITY DEVELOPMENT 6300 Southcenter Boulevard, Tukwila, WA 98188 Telephone: (206) 431 -3670 REASONABLE USE EXCEPTION (P -SP) APPLICATION • FOR.'STAFF:USE ONL Y: Planner , File.Number: :ReceiptNUmber: .:Project File #: 1 <ApplicationComplete; i:SEPA<File #: J Application' Incomplete: (Date: Other File 1. PROJECT BACKGROUND A. NAME OF PROJECT /DEVELOPMENT::. it 1� SINGLE F�.r�I4 -Y Keiae.ve �t,�'S3' Avg S, T441G..I1LLA. L t: rr , 64 C' K. . i xs S'2it� -no..J Tv F .1e. r01.! B. LOCATION OF PROJECT /DEVELOPMENT: STREET ADDRESS: 1303I 33' Ave- S. 16185 ASSESSOR PARCEL NUMBER: LEGAL DESCRIPTION: Loy IZ bt-ouG 5 dKob6nsS SPatw Arxt.enc.", "Tx, AvFe -r. Ie A-it, pc.i. 67.. zC-...ea w NC Quarter." Section: 15 Township: .7.3N Range: 1 (This information may be found on your tax statement) C. CONTACT: (Primary contact regarding the application, and to whom all notices and reports shall be sent) NAME: J . ADDRESS: i'1°4 . 51Ifr & o PHONE: • %S SIGNATURE: DATE: 7 f t / EXHIBIT DATE 2- n, PROJECT NAM - r_t ;_. "10 RUCKLST.DOC 7/3/96 00 t. "1. �.. .,.. f. Ef L ` -; 4' 1999 tr.r,, ATTACHMENT L 11. A. PRESENT USE OF PROPERTY' \Sr —ANT L ,-r B. SENSITIVE AREAS REQUIREMENT FROM WHICH RELIEF IS SOUGHT:_�F���.ryp l�NV ST2JE<AM aWV-47 gge rL J. TIEIN� C. ON A SEPARATE SHEET, DESCRIBE THE MANNER IN WHICH YOU BELIEVE THAT YOUR REQUEST FOR AN REASONABLE USE EXCEPTION WILL SATISFY EACH OF THE FOLLOWING CRITERIA AS SPECIFIED IN TMC 18.45.115(4). 1. No reasonable use with Tess impact on the sensitive area and its buffer is possible. 2. There is no feasible on -site alternative to the proposed activities, including reduction in size or density, phasing of project implementation, change in timing activities, revision of road and lot layout, and/or related site planning activities that would allow a reasonable economic use with fewer adverse impacts to the sensitive area and its buffer. 3. As a result of the proposed development there will be no increased or unreasonable threat of damage to off-site public or private property and no threat to the public health, safety or welfare on or off the development proposal site. 4. Alterations permitted shall be the minimum necessary to allow for reasonable use of the property. 5. The proposed development is compatible in design, scale and use with other development with similar site constraints in the immediate vicinity of the subject property. 6. Disturbance of sensitive areas has been minimized by locating the necessary alterations in the buffers to the greatest extent possible. 7. The inability to derive reasonable use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of the ordinance from which this chapter derives. 8. Any approved alteration of a sensitive area under this section shall be subject to conditions as established by this chapter and will require mitigation under an approved mitigation plan. If a development is approved as a reasonable use, the Board of Architectural Review's process, review and standards shall be applied. RUCKLST.DOC 7/3/96 ?i �.S%;'. iw.. �! Servib::{.q:K •in'.�m �dt. YYl 7iLii:+. �SrY'". rJA +:.S7�)`i.+riwJi.5.K3'.iti�Si.'M J. _.. Jones and Associates, Inc. J.A.K, INC. Single - family Permit Appl. No. D98 -0215 REASONABLE USE EXCEPTION C. ON A SEPARATE SHEET, DESCRIBE THE MANNER IN WHICH YOU BELIEVE THAT YOUR REQUEST FOR A REASONABLE USE EXCEPTION WILL SATISFY EACH OF THE FOLLOWING CRITERIA AS SPECIFIED IN TMC 18.45.115(4). 1. No reasonable use with less impact on the sensitive area and its buffer is possible. The property is zoned LDR (residential) in a residential neighborhood. One single - family residence is the minimum use of this lot. 2. There is no feasible on -site alternative to the proposed activities, including reduction in size or density, phasing of project implementation, change in timing activities, revision or road and lot layout, and/or related site planning activities that would allow a reasonable economic use with fewer adverse impacts to the sensitive area and its buffer. The entire site is wetland, so impacts to sensitive areas are unavoidable. The applicant proposes the minimum street setback with the residence located outside of the existing stream channel. Clearing, grading, foundation and utility construction work should occur in the months of August, September, and October, if construction occurs this year. 3. As a result of the proposed development there will be no increased or unreasonable threat of damage to off -site public or private property and no threat to the public health, safety or welfare on or off the development proposal site. The construction of a single - family residence on this site will not pose a threat to public health or safety. 4. Alterations permitted shall be the minimum necessary to allow for reasonable use of the property. The square footage of the proposed house is 1,300 square feet, which is of similar size to other residences in the neighborhood. The minimum setback to the street is proposed. The house will be located outside of the existing intermittent stream (i.e. excavated ditch). 5. The proposed development is compatible in design, scale and use with other development with similar site constraints in the immediate vicinity of the subject property. The proposed single - family residence is of similar design, size and use to adjacent properties and the neighborhood. z Z. re w 6 J0 00 N 0. w= JI... fAu., w0 g Li_ 5 ¢ w z1 �= o LLJ ,o N oI u,r 0: ,Z 0 =. 0 z J. Jones and Associates, Inc. 6. Disturbance of sensitive areas has been minimized by locating the necessary alterations in the buffers to the greatest extent possible. The entire site is wetland, so impacts to sensitive areas are unavoidable. The applicant proposes the minimum street setback with the residence located outside of the existing stream channel. Z = 1-: z. 7. The inability to derive reasonable use of the property is not the result of actions by the r4 2 applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of the ordinance from which this chapter derives. 0 o. The property was a legal lot prior to the effective date of the Tukwila Sensitive Area -1 1-: Ordinance. N W 0 8. Any approved alteration of a sensitive area under this section shall be subject to ga:. conditions as established by this chapter and will require mitigation under an approved co mitigation plan. If a development is approved as a reasonable use, the Board of w Architectural Review's process, review and standards shall be applied. z =° 1- O Mitigation in the form of creating wetland for impacts to wetland is not possible on this w w' 0;site, because the entire property is wetland. The application proposed enhancement of o;. the stream channel and remaining wetland areas as mitigation for impacts. 8 � ;01—x. 'w 1— U LL 0' 111 co. Z'. O ~. Z 2 s D. PROPERTY OWNER DECLARATION The undersigned makes the following statements based upon personal knowledge: 1. I am the current owner of the property which is the subject of this application. 2. All statements contained in the application are true and correct to the best of my knowledge. 3. The application is being submitted with my knowledge and consent. 4. I understand that conditions of approval, which the City and applicant have jointly agreed may not be completed prior to final approval of the construction (e.g., final building permit approval) will be incorporated into an agreement to be executed and recorded against the property prior to issuance of any construction permits. I declare under penalty of perjury under the laws of the State of Washington and the United States of America that the foregoing statement is true and correct. EXECUTED at IV KtA-1 LA (city), , 199°, : • (state), on (Print Name) 13'r o 7 (Address) 6711 (Phone Numb. r) (Signature) Use additional sheets as needed for all property owner signatures. MITIGATION`-LAN 1•• n.n lwr..rr1.. 7Yolul Simla Cron kr.11111 1 l 'Qr- 'TM and Shrub Slake Nail PLANTS .l1ED f . 44. v- W C.1. 11.14r M• I Q Ors 1../ WY.r..wi. 11v1 M O' r./.•.•/ I..w.t..1..r 1rl 11 Q Kola /4./. 14/1/ mama 1 p T Q 1.111w A61002 I... I 4 11 I_•___, 7 /*/MKS 1W I IAn ►irTr UY�.rI /Ma he. .r 11.1.• ...._1 W Non n.../Meg IM 7.6.11/47.. (DWT +.rlr.1 IM 1.1/4•4 Coto. (I.4. 1/4/40 11.124.214/0/.4.111.124.214/0/.411.124.214/0/.4.1141. I.a . MYp .re 41L4 AZZA.42.1112MaitgalaMILTIRrAM rtlllAr(CvMLYr TOTAL AIWA: ILl ea pa. U■I.i 0./4414LL __ MITIGATI ❑N PLAN Scale: 1" r 10' Iro.r.1 .1r AM..r1 Trd: 1 O •mow n C r. cr.■nd Q All e.441/4"Il) 1, . a. IIIIY. a 1 Rnl1' j12Th 647,4.4./ 744 t 1 (s: 1: v a Appl. No. 096 -02,5 VICINITY MAP SHEET W -I 14r.+ tit ?: it:cr:�:xo.:,yACt51MC'rSf.•:iMS ifi?..T`s7er'.'�ti:.. ssd:CSttJ'. NE 16 -23 -4 N 1- 32- 34 E 4 ac Li.A ,L ltb0G1 J2 N 1) • '1;7, tog ,00 111 is M s 1 • • At'• v4,a � •1 sl L • • toy • •s: 1 i BIT • \4• a i •• CJt 6% 11/4 � . I6 SO* JO. .1 • v 1�IT At w -J V • • Z • �Z w -J D co WI H 0 Q cog W = _ Z E- O tu ZZH • C 0 0— 01-. W W 1— wZ W U= 0 z \ L yo ST .Q- LUT egyy �o�, 162 N88-25W •6 m 87 •27E(su4 t h �` � 6ZJ d 5 s 60 5. 03 '.p,N"a • /64.41(p) Zvi .5 67.44 - 27e 145.8 (81/R.) co M w C:1 z N M 6 39,00 37.62 AC. /OZ. G1 /37.05 13L1 11.98,03s ro 1L2.32 5/.93 117.72 ro nvr tJ-A 850G5 v 9.: to1.47 iz.'■ 117.72 BBZ9fl o575 7 it. N t 882ofgx 10 h z u.12 JU 000 J N LL W0 d = F- W _ Z �- Z uj 0 0 1- W tL 0 .z W O~ z To: City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director NOTICE OF DECISION December 13, 1999 • Jihad Keirouz, dba JAK, inc. (applicant) • Jihad Keirouz (owner) • King County Assessor, Accounting Division • Parties of record (See Attached) This letter serves as a Notice of Decision and is issued pursuant to TMC 18.104.170. At their December 9, 1999 public hearing, the Planning Commission denied the applicant's request for a Reasonable Use Exception to construct a Single Family Residence at 13041 — 33rd Ave S., by the adoption of the findings and conclusions in the staff report. PROJECT BACKGROUND a. Project file number: L99 -0049 The name of the property owner(s): Jihad Keirouz ' c. Project Description: Textual description as well as 8.5" x 11" site plans, building elevations and other appropriate characteristics. . Reasonable Use Exception to construct a single family residence by filling a Type 3 wetland and altering a Type 3 watercourse, pursuant to TMC 18.45 d. Project location: 13041— 33rd Ave S. e. The permits submitted concurrently with this application: D99 -0168 — Development Permit for a Single Family Residence 6300 Southcenter Boulevard Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 z J !.) 0 W =; w Q. =d H w =: z �-O. Z uj w U0 O -, w uj - O: z • w O December 13, 1999 =—, Notice of Decision L99 -0049 — Reasonable Use Exception, 13041 — 33rd Ave S. f. Environmental threshold determination (if any): g. Determination of Non - significance (E99- 0017), dated November 16, 1999 Property owners affected by this decision may request a change in valuation for property tax purposes notwithstanding any program of revaluation. w 6 J U. U 0: :.W =' J F-: SQ V_ w 0. gQ co = a. I-w z= 2. The address and phone number of the appealing party, and if the appealing party is a z O corporation, association or other group, the address and phone number of a contact w g= person authorized to received notices on the appealing party's behalf, and v O N' CI H, 3. A statement identifying the decision being appealed and the alleged errors in that w decision. The Notice of Appeal shall state specific errors of fact or errors in application 0: of the law in the decision being appealed, the harm suffered or anticipated by the LI 0 appellant, and the relief sought. The scope of an appeal shall be limited to matters or w issues raised in the Notice of Appeal. �. O h. Administrative appeals for the various permit Types are discussed below. The period for administrative appeals is 14 days, starting from the issuance of this Notice of Decision. The administrative body hearing the appeal is the City Council. All appeal materials shall be submitted to the Department of Community Development. Appeal materials shall contain: 1. The name of the appealing party, A copy of TMC 18.108 outlining the Type 4 decision process and TMC 18.116 outlining Appeal processes are included with this Notice �f Decision. Project materials including the application, any staff reports, and other studies related to the permits) are available for inspection at the Tukwila Dept. of Community Development; 6300 Southcenter Blvd.; Suite 100; Tukwila, WA; from Monday through Friday, between 8:30 AM to 5:00 PM. The project planner is Michael Jenkins, who may be contacted at 206 - 431 -3685 for further information. December 13, 1999 Notice of Decision L99 -0049 — Reasonable Use Exception, 13041— 33rd Ave S. Parties of Record Jihad Keirouz 13407 — 51st Ave W. Edmonds, WA 98062 Mark Stefnik 2322 S.W. 120th Burien, WA 98148 John Dickover 13202 — 32nd Ave S. Tukwila, WA 98168 1 TUKWILA MUNICIPAL CODE B. The Director shall have the discretion to include additional information in the Notice of Hearing if the Director determines that such information would `increase public awareness or understanding of the proposed project. (Ord 1768 §2(part), 1996) 18.104.170 Notice of Decision. A. The Department shall provide written notice in a timely manner of the final decision on permits requiring Type 2, 3, 4 and 5 decisions and on permits requiring Type 1 decisions which require SEPA review. Such notice shall identify the threshold determination, if any, and the procedures for administrative appeals, if any. Notice shall be delivered by first class mail or in person to the applicant, to the Department of Ecology and to agencies with jurisdiction, and to all parties of record. B. Notices of Decision for Shoreline Substantial Development permits shall also comply with the requirements of RCW 90.58. (Ord. 1768 §2(part), 1996) 18.104.180 Referral to other City departments. The Department shall refer permit applications and portions of permit applications to other City departments and administrators with authority and /or expertise to review such applications. The Department shall incorporate the decisions and consider the recommendations of such other City departments and administrators in permits, approvals and recommendations issued pursuant to this Title. (Ord. 1768 §2(part), 1996) 18.104.190 Date of mailing. All notices issued pursuant to this chapter shall be deemed to have been issued on the date on which they are mailed by the Department. (Ord 1768 §2(part), 1996) Chapter 18.108 DECISION PROCESSES Sections: 18.108.010 Type 1 decision process. 18.108.020 Type 2 decision process. 18.108.030 Type 3 decision process. 18.108.040 Type 4 decision process. 18.108.050 Type 5 decision process. 18.108.060 Legislative decisions. 18.108.010 Type 1 decision process. A. Type 1 decisions shall be made by the City department or officer specified by ordinance. B. Type 1 decisions shall be final unless an appeal is filed with the City department pursuant to TMC 18.116. (Ord 1847 §3, 1998; Ord. 1768 §3(part), 1996) 18.108.020 Type 2 decision process. A. All Type 2 decisions shall be made by the Director, or in appropriate cases, the Short Plat Committee, pursuant to the procedures set forth in TMC Chapter 18.104. B. Type 2 decisions other than Shoreline Substantial Development permits shall be final unless appealed to the Hearing Examiner, the Planning Commission, or City Council, as specified in TMC 18.104.010. C. All appeals of Type 2 decisions other than appeals of Shoreline Substantial Development permits shall be filed with the Department, which shall coordinate scheduling of the appeal hearing with the appropriate appeal hearing body. D. Appeal of a Shoreline Substantial Development permit shall be to the State Shoreline Hearings Board pursuant to RCW 90.58. E. In the event that a project involves more than one Type 2 decision appealable to different bodies and no Type 3, 4 or 5 decision, all appeals shall be consolidated in the following sequence: 1. If an appeal to the City Council is involved, all appeals of Type 2 decisions shall be consolidated before the City Council. 2. If no appeal to the City Council is involved, all appeals of Type 2 decision shall be consolidated before the Planning Commission. F. All appeals of Type 2 decisions shall be open record appeals, processed pursuant to the time limits and other procedures for such appeals specified in TMC Chapter 18.116. G. Following an open record appeal hearing on a Type 2 decision, the hearing body shall render a written decision, including findings of fact and conclusions, and the Department shall promptly issue a Notice of Decision pursuant to TMC 18.104.170. Page 18 -132 Printed June 8, 1999 H. The decisions of the Hearing Examiner, the Planning Commission and the City Council regarding Type 2 decisions shall be final and shall be appealable only to Superior Court pursuant to RCW 36.70C. (Ord. 1796 §3(part), 1997; Ord. 1768 §3(part), 1996) 18.108.030 Type 3 decision process. A. Type 3 decisions shall be made by the Hearing Examiner following an open record public hearing. Such public hearing shall be conducted in accordance with the procedures for open record public hearings specified in TMC Chapter 18.112. "B. Following a public hearing on a Type 3 decision, the hearing body shall render a written decision, including findings of fact and conclusions, and the Department shall promptly issue a Notice of Decision pursuant to TMC 18.104.170. C. The decision of the Hearing Examiner shall be final and shall be appealable only to Superior Court pursuant to RCW 36.70C. (Ord 1796 §3(part), 1997; Ord 1768 §3(part), 1996) 18.108.040 Type 4 decision process. A. Type 4 decisions shall be made by the Board of Architectural Review or Planning Commission, as appropriate, following a open record public hearing. B. Type 4 decisions by the Board of Architectural Review or Planning Commission, except shoreline conditional use permits, shall be final unless an appeal is filed to the City Council pursuant to TMC 18.116. C. Following a public hearing on a Type 4 decision, the Board of. Architectural Review or Planning Commission shall render a written decision, including findings of fact and conclusions, and the Department shall promptly issue a Notice of Decision pursuant to TMC 18.104.170. D. All appeals of Type 4 decisions shall be filed with the Department within the time limits specified in TMC 18.116.010, except shoreline conditional use permits, which shall be appealable only to the State Shoreline Hearings Board pursuant to RCW 90.58. The Department shall coordinate scheduling of any City appeal hearing with the City Council. E. All appeals of Type 4 decisions except shoreline conditional use permits, shall be closed record appeals, processed pursuant to the time limits for such appeals specified in TMC 18.104.130. F. Following a closed record appeal hearing on a Type 4 decision, the City Council shall render a writ- ten decision, including findings of fact and conclusions, and the Department shall promptly issue a Revised Notice of Decision pursuant to TMC 18.104.170. G. The decision of the City Council regarding a Type 4 decision shall be final and shall be appealable only to Superior Court pursuant to RCW 36.70C. (Ord. 1768 §3(part), 1996) TITLE 18 — ZONING 18.108.050 Type 5 decision process. A. The Notice of Application for a Type 5 decision shall set a date for a public meeting, which shall be conducted at least 5 calendar days prior to the end of the public comment period and at least 14 calendar days prior to the City Council public hearing. The public meeting shall be staffed by a representative of the Department, who shall explain the decision criteria applicable to the proposal and the process by which decisions will be reached. The applicant or applicant's representative shall describe the proposal which is the subject of the application. Information and comments submitted at the public meeting shall be considered by the Department in the preparation of its recommendation to the City Council, but shall not constitute part of the public record to be considered by the City Council in its deliberations. B. Type 5 decisions shall be made by the City Council following an open record public hearing. C. Following a public hearing on a Type 5 decision, the City Council shall render a written decision, including findings of fact and conclusions, and the Department shall promptly issue a Notice of Decision pursuant to TMC 18.104.170. D. The decision of the City Council regarding a Type 5 decision shall be final and shall be appealable only to Superior Court pursuant to RCW 36.70C. (Ord. 1768 §3(part), 1996) 18.108.060 Legislative decisions. The procedures set forth in TMC chapters 18.104 through 18.116 shall not be applicable to the adoption or amendment of any comprehensive plan or subarea plan, or to area wide rezoning processes, area wide shoreline redesignation processes, street vacations, or other legislative decisions. (Ord 1768 §3(part), 1996) Printed June 8, 1999 Page 18 -133 the City Council, in the case of a Type 4 closed record appeal hearing, determines that it lacks adequate information on which to make findings of fact necessary to its decision, the City Council shall remand the project permit to the Board of Architectural Review or Planning Commission with instructions to re -open the public hearing to take additional testimony and provide the Board of Architectural Review or Planning Commission's findings on the factual issue(s) identified by the City Council as requiring such additional information. (Ord 1768 §4(part), 1996) 18.112.060 Combined public hearing processes - other agencies. If requested to do so by the applicant, the Department, pursuant to RCW 36.70B.110(7), shall combine any public hearing held pursuant to this chapter with public hearings held by other agencies on the same project, so long as such joint hearing can be held within the time limits of TMC 18.104.130, unless the applicant agrees to a different hearing schedule. (Ord. 1768 §4(part), 1996) TITLE 18 — ZONING Chapter 18.116 APPEAL PROCESSES Sections: 18.116.010 Time for filing appeal. 18.116.020 Dismissal of untimely appeals. 18.116.030 Notice of Appeal - contents. 18.116.010 Time for filing appeal. A:- Except for shoreline permits which are appealable to the state Shorelines Hearings Board, all notice of appeal of Type 2 land use decisions and Type 4 decisions made by the Board of Architectural Review or Planning Commission shall be filed within 14 calendar days from the date of issuance of the Notice of Decision; provided that the appeal period shall be extended for an additional seven calendar days if the project involves any one or more of the following situations: 1. There is another agency with jurisdiction as defined in WAC 197 -11- 714(3). 2. The project involves the demolition of any structure or facility that is not categorically exempt under WAC 197- 11- 800(2)(f) or 197 -11 -880. 3. The project involves a clearing or grading permit not categorically exempt under WAC 197 -11- 800 through 197 -11 -880. 4. A Mitigated Determination of Nonsignifi- cance was issued for the project pursuant to WAC 197- 11 -350. 5. A Declaration of Significance for the project has been withdrawn pursuant to WAC 197 -11- 360(4) and replaced by a Declaration of Nonsignificance. B. Any appeal from a code interpretation issued by the Director shall be filed within 14 days of the date of issuance of a final code interpretation by the Director. C. All notices of appeal of Type 1 decisions issued by City administrators shall be filed within 14 days of the date of the issuance of a final decision of the City administrator. D. Except as specifically provided in this chapter, no administrative appeals are permitted or required for Type 1, 2, 3, 4, or 5 land use decisions. (Ord 1847 §4, 1998; Ord. 1768 §5(part), 1996) 18.116.020 Dismissal of untimely appeals. On its own motion, or on the motion of a party, the Department or any hearing body shall dismiss an appeal for untimeliness or lack of jurisdiction. (Ord 1768 §5(part), 1996) 18.116.030 Notice of Appeal - contents. A. Every Notice of Appeal shall contain the following information: 1. The name of the appealing party. Printed June 8, 1999 .F`x.;sc:;:,4•x4 :i rx.,4 4.,W.I+s+2o*410rWt.':.�:Yk Page 18 -135 TUKWILA MUNICIPAL CODE .-- 2. The address and phone number of the appealing party; and if the appealing party is a corporation, association or other group, the address and Thphone number of a contact person authorized to 'receive notices on the appealing party's behalf. 3. A statement identifying the decision being appealed and the alleged errors in that decision. The Notice of Appeal shall state specific errors of fact or errors in application of the law in the decision being appealed; the harm suffered or anticipated by the appellant, and the relief sought. The scope of an appeal shall be limited to matters or issues raised in the Notice of Appeal. B. The Notice of Appeal shall be distributed by the Department to the body designated to hear the appeal and to parties of record pursuant to TMC 18.112.020A. (Ord 1768 §5(part), 1996) Page 18 -136 Printed June 8, 1999 w. �g4 JU; 'U 0 W =, J.� w O: J; F- w; • •Z • I-0: Z •w w :U 10 _f .= V: . w ft; Z4 wL O H ,. Z • { Thomas E. Stanley Attorney At Law 16300 Mi11 Creek Blvd., Suite 105 Mill Creek, WA 98012 Telephone: (425) 743 -5744 Fax: (425) 742 -2505 NOTICE OF APPEAL SUBMITTED TO: Tukwila City Council C/O Department of Community Development 6300 Southcenter Boulevard, Suite 100 Tukwila Washington 98188 RE: Decision At Issue Project File Number Property Location Appellant/Property Owner Appellant's Address Appellant's Telephone No: RECEIVED DEC 2 71999 COMMUNITY DEVELOPMENT 3:..7-u T..M, Via, - Planning Commission's 12/9/99 Denial of Request For Reasonable Use Exception to Construct Home - L99 -0049 - 13041 -33rd Ave S. - J.A.K., Inc. by Jihad Keirouz - 13407 51st Avenue West Edmonds, WA 98026 • - (206)300 -6874 • Dear Council Members: • On December 9, 1999 the Tukwila Planning 'Commission denied J.A.K., Inc.'s (by Jihad • Keirouz) request for a Reasonable Use Exception to construct a single family residence on his property located at 13041 33rd Ave South in Tukwila by adopting the Staff Report's findings and conclusions.: This document shall serve as Mr. Keirouz's Notice of Appeal'. As requested in the December 13, 1999 Notice of Decision (paragraph (h)(3)), the following issues are discussed herein: b. c. The specific errors of fact or errors in application of the law; The harm suffered or anticipated by Mr. Keirouz; and The relief sought In order to convey the foregoing information in a logical manner, the history of the project must first be discussed. 1 For the purpose of this appeal all records and documents contained or referenced in the Department of 'Community Development's files with respect to the parcel at issue, and any other related documents or records in the departments files, are incorporated herein. All records of prior proceedings are likewise incorporated. • • z • re w2 • 00 NCI w z' J F- w0�-- • �J. ¢ = w'. . z� z 0: .W LLy ca 0 "1 0I w tu, II ..z W 1_. z Notice of Appeal J.K.A., Inc. (by Jihad Keirouz) 12/27/99 .Page 2 . HISTORY OF THE PROJECT Mr. Keirouz purchased the property at 13041 33rd Ave South (hereafter referred to as "Lot 12 ") in April 1998. He also purchased two neighboring lots (hereafter referred to as "Lot 13" and "Lot 14 "). Soon thereafter he applied for a building permit for Lot 12 and Lot 13. A building permit for Lot 13 was issue in due course. During the process of preparing Lot 12 for the construction of a home, it was discovered that Lot 12 contained a wetland area. Due to this wetland, Mr. Keirouz was informed that the construction of a home on Lot 12 would need mitigation. In order to develop the mitigation plan, engineers would be needed to develop a plan to eliminate potential water problems related to Lot 12. In accord-witli the Commission's direction, Mr. Keirouz hired an engineering firm to develop such a plan. Upon realizing that he would not be able to construct a home on Lot 12 for several months, Mr. Keirouz began working on his other Lot 14. As a result of building permits issued for Lots 13 and 14, Mr. Keirouz built one.home on each of these lots prior being informed he needed.a Reasonable Use Exception for Lot 12. In the mean time, Mr. Keirouz continued to proceed through the steps necessary to obtain a•building permit Lot 12. He continued to communicate with the Planning Commission and he performed all of the Commission's requirements. A plan was ultimately completed which resolves the potential problems and meets the technical requirements necessary fora Reasonable Use Exception_ under TMC 18.45.115. Despite that fact, •the Planning Commission's December 3, 1999 Staff Report concluded that a Reasonable Use Exception for Lot 12 was "barred as a matter.of law" (page 5). • Based on that conclusion, the Staff Report recommended that the request for the Reasonable Use Exception be denied. Subsequently, on December 9, 1999 the Planning Commission denied the 'request.. • • • .. ' • SPECIFIC ERRORS IN FINDINGS (See 12/3/99 Staff Report, Findings, Pages 3 -4) 1. The findings state'that "if an applicant purchases a property and knows, or should know, that limitations on the parcel affect its development potential because of sensitive areas, they may be limited from being granted relief' (Findings, Discussion, Paragraph Two). The Reasonable Use Exception section of the Tukwila Municipal Code, TMC 18.45.115, does not consider the owner's knowledge of sensitive areas at the time of purchase. The requirements of the'code may be summarized into the following three rules: a. The owner must demonstrate that without a Reasonable Use Exception, there is no reasonable use for the property(See TMC 18.45.115(C)(3)); z 11-w Ce JU 000 w =. t- w0 ga =a �w z= z o. U C) O - o w • u 0- . wz 0 z Notice of Appeal J.K.A., Inc. (by Jihad Keirouz) 12/27/99 Page3 b. The request for the Exception includes a plan that demonstrates the proposed development fits in with its surroundings and does not cause a threat to any other property or the public safety and health(See TMC 18.45.115(C)(4)(a -f); z and . ~w ft c. The inability to derive reasonable use of the property is not the result of the n owner subdividing his property (See TMC 18.45.115(C)(4)(g). -J o v)w If these requirements are met, the development may be allowed (See (TMC w • 18.45.115(C)(3). Under TMC 18.45.115(C)(4) whether or not the owner knew or should co u- have known of a sensitive area condition is simply not a factor. w o 2 2. Paragraph Three of the Discussion subsection focuses almost exclusively on Lots U '13 and 14 and their development issues. The inclusion of this information implies that = c1 these issues are part of the Reasonable Use Exception criteria provided in TMC I- i 18.45.115..They are not. Lots 12, 13 and 14.and separate and distinct parcels and the Z ~ development of each must reviewed independently. • z o w 3. The Legal Analysis subsection discusses a letter written by an attomey, Robert 0 N Johns, that addresses the constitutional issues involved in this matter. The Staff Report o ~` states that this letter addresses the applicability of the Sensitive area Ordinance as it w w pertains to this Reasonable Use Exception request.. That statement is incorrect. Theletter F- v LL.. ~O, only addresses whether or not the denial of a Reasonable Use Exception in this matter z ' would violate the Constitution of Washington and/or the United States of America. The v cn letter is limited in scope.: The constitutional issues only become relevant if and when a o �: Reasonable Use Exception is analyzed in light of the relevant law, TMC 18.45.115, and z then denied. In other words, the first question is whether the proposed. Reasonable Use Exception meets the criteria of.TMC 18.45.115. It is only after an exception is denied that the constitutional issues are addressed. Thus, this body should focus initially on the criteria of the municipal code and sound land use policy, not on the broader constitutional matters. Findings typically contain all of the facts (as determined by the author(s)) upon which a Conclusion/Decision will be based. The Findings in this Staff Report are composed of two pages of data. Approximately one page is composed of the preliminary facts such as the property description, location, history, etc. The remaining page is composed of a discussion of the development of two neighboring parcels and a discussion of the constitutional issues which may bdrelevant if this Reasonable Use Exception is denied. The facts necessary to analyze the Exception request and apply the relevant law, TMC 18.45.115, are not included. Thus, not only are there several "errors of fact," the facts crucial to determining if a Reasonable Use Exception should be granted are not included in the Findings. Notice of Appeal J.K.A., Inc. (by Jihad Keirouz) 12/27/99 Page 4 ERRORS IN APPLICATION OF THE LAW (See Staff Report, Conclusions, Page 5) The Conclusions section provided in the Staff Report consists of five short "conclusions." The first four of these conclusions are irrelevant. Furthermore they do not apply the relevant law, TMC 18.45, or any law for that matter, to the facts. Basically conclusions One through Four belong in the "findings" section of the Staff Report because they are factual assertions. Ultimately then, the Staff Report provides their entire application of the law to the facts in Conclusion.Five. Accordingly Conclusions One through Four are addressed briefly, followed by an analysis of the Conclusion Five. Staff Report - Conclusions One through Four Conclusions One through Four may be summarized as follows: . Mr. Keirouz bought three separate parcels of land with-some surface and ground water issues after the city adopted its Sensitive Areas Ordinance. He has successfully mitigated the water issues on two of the parcels and developed those. Now he is applying for a Reasonable Use Exception as required by Tukwila Municipal Code (See Conclusions, Bullet Points One through Four, page five). None of this provides any application of.the relevant law, TMC 18.45.115, to the facts. As such these conclusions are more characteristic of "findings" and should be viewed as such in analyzing the Staff Report as a whole. Although not relevant to the issues on Lot 12,: it is important to note that no sensitive area analysis was requested or required on lots 13 and 14. During construction, typical groundwater was encountered which required minor engineering analysis.' At no time were lots 13 or 14 determined to contain sensitive areas: Staff Report — Conclusion Five. Conclusion Five states that "regardless of the merits of any plan that the applicant may develop to address surface and ground water issues for the subject parcel, the applicant is barred as a matter of law from being granted a reasonable use exception. This is well documented in Mr. Johns' letter included as Attachment K." Unfortunately, this conclusion applies the constitutional law of the United States and/or the State of Washington to,the facts rather than the appropriate law, which is the Tukwila Municipal Code. As discussed previously, the constitutional law only becomes relevant if and when a Reasonable Use Exception is analyzed in light of the relevant law, TMC 18.45.115, and then denied. Moreover, the case law discussed in Robert Johns letter, and subsequently relied upon by the Commission Staff, is noton point with the facts of this case. Because the Staff Notice of Appeal ' .- J.K.A., Inc. (by Jihad Keirouz) 12/27/99' Page5 Report, and ultimately the Planning Commission relied heavily on Robert Johns letter in deciding to deny Mr. Keirouz's request, the letter must be analyzed in further detail. Attorney Robert Johns Letter — Scope of Subject Matter As discussed previously, the scope of Mr. John's letter is extremely limited. As illustrated in the second paragraph of the letter, the issue being addressed is as follows: If the city of Tukwila denies Mr. Keirouz's request for a Reasonable Use Exception, has the city ultimately "taken" away his property by not allowing him to use it without compensating him, in violation of his constitutional rights? Mr. Johns is not addressing the issue of whether the city should grant or deny the Reasonable Use Exception under the code. Rather, the letter simply analyzes whether the denial of the Reasonable Use Exception would amount to a taking barred by the constitution. • The third paragraph of the letter states that "this analysis [of constitutional law] applies to. all forms of land use regulation and to all types of uses." The letter goes on to explain what factors are involved in determining whether the government has "taken"-property without compensation. He concludes his letter by stating that he does not believe that "it is necessary.to approve a reasonable use exception" in this case. That . is the full extent of his conclusion. Nowhere does he say that the Reasonable Use Exception "should not" or "cannot" be approved. Relying on Mr. Johns letter, Tukwila is free to approve Mr. Keirouz's request. • In•other words, Mr. 'John's letter addresses when the city must either grant an Exception, or pay the property owner compensation because they have "taken" his property under the Constitution. 'This is an entirely different legal question than whether the city can, and should in this .case, grant a Reasonable Use Exception. Attorney Robert John's Letter — Flawed Factual Assumption Mr.'Johns explains a complex legal concept with clarity and efficiency. It is therefore urmecessary to re- explain that concept in this document. The problem with his analysis is with his misunderstanding of the facts. The letter states that a "taking" has occurred if • regulation denies a property owner all reasonable use of his or her property. The letter goes on to explain that the Reasonable Use Exception provides a mechanism for avoiding the otherwise necessary paying of compensation to the property owner (See Mr. John's Letter, Page 2, 1St Full Paragraph). Mr. Johns then discusses several cases in the course of making one ultimate point; government regulations can "take" away part of a parcel's Rl & +YdLi<`itLL;vSiSAiiidtF4fr'.x xis,,+.:::.ir d'.�G Notice of Appeal - J.K.A., Inc. (by Jihad Keirouz) 12/27/99 Page 6 reasonable use or value without violating the constitution (See Mr. John's Letter, Pages 2 -3). This rule of law is fairly accurate2, although there are exceptions. The fatal error lies in Mr. John's application of the foregoing rule to the facts because his assumptions of fact are incorrect. He assumes that Lot 12 is a "part" of a larger parcel. Lot 12 is not part of a larger parcel. In fact, the Staff Report is clear throughout the Findings section that lot 12 is a separate parcel and that it was a separate parcel when Mr. Keirouz purchased it. There is no reference to any larger parcel in the Staff Report. Lots 12, 13 and 14'are at all times referred to as completely separate parcels. In each case referred to in the Mr. John's letter, government regulation is only taking away the reasonable use of part of a parcel of land. Here the government regulation is taking away • the reasonable use of all of the parcel at issue, Lot 12. The Staff Report states without reservation.that "strict application of the setback and buffer requirements under TMC 18.45 and the underlying development standards in the Low Density residential zone leave a negligible developable area on the parcel" (See Findings, Vicinity /Site Information, Project Description). Ultimately, there is no dispute in the record on this issue. Lot 12 is a completely separate and independent parcel of property which has no reasonable use under government regulation without a Reasonable Use Exception. HARM Snit ERED BY APPELLANT AND RELIEF SOUGHT As demonstrated above, the Planning Commission's Staffs recommendation to deny the Reasonable Use Exception was based on the following flawed inforniation: a. The staff contained "findings" which were incorrect; The report inappropriately attempted to apply constitutional law instead of the Tukwila Municipal Code to determine whether a Reasonable Use Exception: was appropriate; and The constitutional analysis was flawed because it relied on cases that addressed the taking of a portion of a parcel of land rather than an entire parcel of land. Because the fatally flawed findings, conclusions, and recommendation of denial of the Staff Report were adopted by the Planning Commission in its denial of Mr. Keirouz's request for a Reasonable Use Exception, that decision should be reversed and Mr. ' Keirouz's development proposal for Lot 12 should be analyzed in accord with the applicable law, Tukwila Municipal Code, 18.45.115. Furthermore, because Mr. Keirouz, with the help of several experts, has successfully created a development proposal that 2 This is not to be construed as an admission that Mr. Johns conclusions based on the legal principles are correct. Notice of Appeal J.K.A., Inc. (by Jihad Keirouz) 12/27/99 Page 7 meets the requirement of 18.45.115, his request for a Reasonable Use Exception should be granted. If Mr. Keirouz is not granted a Reasonable Use Exception his property will be of absolutely no value. It is surrounded by single family dwellings and is covered with heavy vegetation. Without the Exception, Mr. Keirouz will be unable to build any permanent structure on the land. He will be forced to leave it as is. Over time it will become a threat to public safety and health due to refuse and stagnation. Given the options for Lot 12, it is in everyone's best interest for this lot to be properly developed. This will lead to an aesthetically pleasing influence on the community, as well as preventing "a long -term health and safety threat to the community. Very Truly Yours, Thomas E. Stanley Cc: Jihad Keirouz ORIGINAL CITY OF TUKWILA PLANNING COMMISSION MEETING DECEMBER 9,1999 Counsel members: Bill Arthur, Chairman Kathryn Stetson, Vice Chairman David Livermore George Malina Arthur: Vern Meryhew Henry Marvin Kirstine Whisler (unintelligible 657). The next item we have before us is case #L99 -0049. Uh, I'll spell the applicant's name, J- I- H -A -D, K- E- I- R- O -U -Z, doing business as JAK, Inc. The request is for Reasonable Use Exception to pipe a Type 3 watercourse and fill a related Type 3 wetland to construct a single family residence at 13041 33rd Avenue South. Staff can you tell us what's going on here? Jenkins: This is, for the record this is Michael Jenkins for the staff. Prior to starting my review of staff report, there is one additional attachment that I'd like to provide you. Arthur: Stetson: Jenkins: Livermore: I declare the public hearings open. Okay. Yeah, that's fine. Attachment L, this will be attachment L to your staff report. It's the original reasonable use exception application that the applicant provided to us, in part to make sure that the record from beginning to end was clear, that you'd have all of the (unintelligible 734) related to the discussion tonight. For clarification Michael is this the, uh, part of what the applicant wants us to have or - 1 - •Z Z', • 2. -J JU 00 N v)w J 'CO w o. u-Q =a �w I- O' z1—• U w w` H U` w 0 N` • z Arthur: Jenkins: Jenkins: (unintelligible 754)? Yeah. We typically provide these in all cases, so the client, (unintelligible 767) a conditional use permit so that you can see so you can see how the action began and the applicant's initial response to the criteria listed in the application. And that's something that we try to do to make sure that the record that you look at is in as much as we can in its entirety. Again this is Michael Jenkins for staff. The occupant is requesting a Reasonable Use Exception under TMC 8.45.115 (unintelligible 818) family residence at 13041 33rd Avenue South. The request (unintelligible 824) along the south portion of the property immediately adjacent to the south property line, as well as the (unintelligible 832) Type 3 wetland, excuse me, encompassing (unintelligible 837). The applicant requested the Reasonable Use Exception as his first application as a set -back and buffer requirement under the sensitive area ordinance. And the underlying belts are standard in our density residential zone standard, where the property is located (unintelligible 858) area on the (unintelligible 859). The applicant is seeking to develop the last of three parcels that he acquired April the 10th of 198. The lots acquired by the applicant abut each other and are (unintelligible 865) pursuant to the non - conforming uses exception or code TMC 18.70, in that each lot is approximately 5,886 square feet. However, the minimum lot size in that zone is 6500 square feet. The sensitive area overlay provides that criteria to evaluate this, these types of proposals. Staff is here this evening to seek some determination from the planning commission if the applicant is (unintelligible 900) eligible for the discussion, based upon his application, the facts of the situation, case law and our ordinance. As a reference, in the staff report the applicant purchases the subject parcel and the abutting parcels that are marked after the adoption of our ordinance. (Unintelligible 920) are provided in your his', in the packet, shows a history of how those related parcels - 2 - z w r4 2 __IU 00 u) 0 J 1— U) u_ w0 g- LL w w. z �. z I- • 0 • fn O — C3ff w W O. .z: U= 0 z ( Livermore: S were developed with legally (unintelligible 932) law. A particular note is attachment K, which is provided by Robert Dunn, an attorney in the law firm of Reed McClure. Staff sought his legal opinion given the facts of the case and our concern that the Reasonable Use Exception ordinance was applied to Mr. Keirouz. Staff sought his opinion concerning, concerning applicability and what we tried to do in the staff report is summarize some of the findings that Mr. Johns provided us, so you can see a summary of those as well as (unintelligible 965) attachment K (unintelligible 966) more detail. The conclusions from the staff report we think are well founded, but the applicant acquired legal and non - conforming parcels. And as detailed in the staff report, was and has developed those parcels to the north leaving the last parcel that he had acquired. And again given the case law that we've provided in sum and in detail by Mr. Johns, leading up to our recommendation in our, on our conclusion, that staff recommends that the request be denied based upon request, application of our ordinance and case law. Did you have any questions? I've got something I'd like clarified a little bit. Under your last bullet under conclusions, you have a sentence segment that reads: "The applicant is barred as a matter of law from being granted a reasonable use exception." Can you expound on this a little bit? Is it your opinion that uh, staff is barred from law in allowing this or does the law bar anyone from allowing this use? Jenkins: No. The question is, is this applicant eligible for this exception given the facts and given the ordinance and given case law? No one is barred from trying to obtain the exception. What we're saying is upon review both internally and through Mr. Johns, which is why Mr. Noe, the City Attorney, is here this evening.. Arthur: Uh, huh. (Affirmative) Jenkins: ...that we did not think he was eligible for that. However, we couldn't make that determination. We had - 3 - z W. 0 00 co w J = O w Q. u. -❑ = a. w Z. z� H O z I— uj 'O co ❑ I—. =U 1— - O iii z ul ---_' O h- z Arthur: Jenkins: Arthur: Jenkins: Arthur: Jenkins: Arthur: Jenkins: Arthur: Jenkins: Arthur: A to have you, we, we're seeking your determination on that issue prior to proceeding. And then following in David's footsteps. This is, this was I find a little confusing. I guess taking your statement, the first question we have to answer is whether or not uh, the applicant is eligible. Yes. Eligibility is the first question. Yes. Okay. So this is appearing then like a two -step or multi -step .... In essence we're asking, we, we are separating the two issues, because we didn't feel, staff did not feel that that first threshold was met. So rather than expound on the merits of the plan, we need your determination and guidance and a state', a conclusion from you that as we have indicated in our staff report, we believe that this applicant is barred from this action. However, there are other options available to you. But that was, when we looked at the situation, coupled with what we know about our ordinance and case law, that that second part of that analysis couldn't be continued. Okay. My question is only to clarify what we're doing. Yes. Yeah. I don't want to get into the deliberations aspect of this thing at this point. I just uh... I understand. Yeah. I just need to know where we're going and how we're going to address this thing. Jenkins: Okay. 4 Whisler: I do have a little, I'm confused. On a reasonable use exception here, does that mean that if we don't grant it, they can't build anything on that lot or are they asking for, does reasonable use exception mean they don't want to do the water in the critical area mitigation things that you guys would like to see. Jenkins: Because of what Mr. Keirouz is proposing, which is to construct a single family residence, to do that on this remaining parcel, he would have to seek relief from the sensitive area variance, because filling in a wetland is not, is prohibited in the City. Altering the true annexation and they can't be divided, they're linked, the water course and the wetland. There are, they're even located in a low density residential zone, there are other uses permitted in that zone. That has not been, that's not the issue before us. The issue is however, is a single family, is he able to construct a single family residence because he applied for a development permit to construct a single family resident on that parcel and we said a reasonable use exception has to be brought because of the wetland and the (unintelligible 1324). Arthur: Jenkins: Arthur: Jenkins: Whisler: Okay. So that's why we have to concern (unintelligible 1326) ? That's why you're, yes. Okay. Okay. But did that answer your question? So in the process that you've been following for a couple years it looks like, no one ever said, no you can't develop that third parcel. It was just if you want to develop the third parcel, you would need to go and request a Reasonable Use Exception? Jenkins: To construct the single family residence, given the plan that he presented requires filling in a wetland and the alteration piping of the watercourse. To do that you, it requires a Reasonable Use Exception. - 5 - z W. 6 J 00 00. w= w • O g U O =d w Z �. Z • w. U0 co O 1- ww • U IL' 0 Z WO =; O � z Livermore: Okay. In numerous places in this documentation that we've been given, it's been inferred that the lot is virtually 100% wetlands. Jenkins: Yes. Yes. Livermore: Given, given that, what use of any kind could be done to the property without having uh, having a reasonable use exception granted? You inferred that there are other uses for the property, but having been involved a little bit in wetland issues in other areas, uh, I can't come up with any kind of use that he could use for the property without an exception. Jenkins: Yeah. I don't want to, I don't want to hypothesize too much about what the available uses are and what he has decided to look at to exhaust any potential uses. The zoning code provides examples (unintelligible 1438) public facilities. There are a host of uses that are detailed in the (unintelligible 1443). Livermore: But you can't construct in a wetlands without ... Jenkins: This is... Livermore: ...some kind of a variance to do it. Jenkins: But you're talking, again the application would be to fill in a wetland because the setback and buffer leave that parcel virtually undevelopable because of that requirement. Now if he were seeking relief from that with other uses, that's a whole other issue. Livermore: What other uses are there that you can do on a wetland? Jenkins: There, the, the entire parcel is not necessarily a wetland. We believe that the watercourse and the wetland encompassed a fair area of it. The applicant (unintelligible 1494).... Livermore: Percentage? 6 z W Ce uQ] � 00 U 0 u)w W 2; w 0: IL a co = w' z �. I— 0 z F-; U0 OU OH w w, .2 U. O. w z - 1: 0 z Jenkins: We believe it's approximately two thirds. But again the applicant has applied for a single family residence. There has been no opportunity to look at any other uses because the application before us was for that. Livermore: Okay. You've got... Jenkins: To hypothesize on other uses .... Arthur: Jenkins: Man: Jenkins: Arthur: Jenkins: Well we're getting into deliberations. It would seem like... (unintelligible 1523). Yeah. I, I... (unintelligible 1530) . Anyone can apply for a reasonable use permit. Whether or not they're eligible is a determination of who? The Planning Commission. Man: The Planning Commission. Arthur: Okay. And that's the question right now. Lancaster: Right. And one of the things that helps me, for the record, my name is Steve Lancaster. I'm the Director of Dept. of Community Development for the City. One of the things that has helped me focus in on what it is you're looking at is looking at the, the very first section where our ordinance talks about Reasonable Use Exceptions and says, "An application of this chapter would deny all reasonable use of the property containing wetlands." All reasonable use is a legal term. Arthur: Lancaster: Yep. "The property owner or the proponent or development proposal may apply for a reasonable -7- z Ce n. .J U. C-) 01 cnW: W =. 1—. U)u; w 0. J LL.Q N d 1 LLJ z� F- 0. Z 1- U • ;w w, O wz UN E_ _' .0I-: z use exception." So the first thing you need to determine is whether or not the application of our ordinances will deny all reasonable use of the property. That's where the legal memorandum comes in and I think is important, is it tries to provide an assessment of whether um, the strict application of our codes which uh, was very very z difficult to meet on this site while building w single family home. Uh, why the strict @t=i application of that we believe does not um, result v in a denial of all reasonable use property. LOW w= N LL Livermore: Okay. w O. Lancaster: Again it's a legal determination and I've got a a_ legal memo. _ 1- w Livermore: Okay. You have the book in front of you. Maybe z F. you can refresh my memory on one thing. This lot z O` is 50 feet wide. Uh, I presume the stream and w uj the, the wetland virtually run the length of the v O property or very close thereof and what is the o �" setback on a Type 3 wetland? Is it 25 feet? w w: U Lancaster: For Type 3 wetlands, it's 25 feet. That's LL'O W Z' correct. Livermore: So if there is any significant wet, with the z. wetlands or streams on that property, you find that boundary, you take a 25 foot buffer zone, which is the requirement for our code, and I don't see where there is anything left for any reasonable use. Lancaster: A couple of points. First of all there are provisions in our code for reducing buffers by up to 500. Livermore: But that's with a low impact use next to it, is it not? Lancaster: Well it's, the buffer reduction generally is done through enhancement of a reduced buffer. So in -8- other words in this type of situations you may be able to do a 12 1/2 foot buffer, if that buffer is Livermore: But isn't there a qualifier to be able to do that, like the adjacent use is low impact? Lancaster: No. Livermore: We don't have that in ours? Okay. Lancaster: Not necessarily. Um, again the threshold determination that has to be made is would the strict application of our code result in denial of all reasonable use of the property. Um, so that's why we're here. Meryhew: Is that being the property as currently defined or is that being, could be (unintelligible 1754) and then used that way? Lancaster: The entire ownership, my understanding, as to take into consideration (unintelligible 1767). Livermore: Lancaster: Livermore: So you're saying different ground rules would apply if, if individual owned just this lot and not the two adjacent lots? That is a different factual situation. And there are kind of two things that we're looking at here, both the ownership and also um, when an owner either knows or should have known when they purchased property determines its limitations. So Okay. The owner should know. I understand what you're talking about. I uh, it seemed to me that the individual lots that were plotted prior to his purchase, i.e., he bought three individual lots, not a piece of property that potentially could be subdivided. I would think that each of these pieces of property should stand alone. Is that not true? 9 1 Lancaster: Arthur: Malina: I don't believe that's consistent with the recommendations that are being (unintelligible 1828) we're getting from Bob Johns. Okay. Thank you Mr. Lancaster and thank you Mr. Jenkins. Are there any more questions of staff at this time? Has the applicant complied and revisited the request by DCD as well as Public Works for more copies of site plan of the wetlands? The drawing from the Geo -Tech engineers? Jenkins: Mr. Keirouz provided all of the items that are needed to complete the evaluation. (Unintelligible 1877). That's been provided. Again there is that threshold. Yes he's met, met all the applications and has been forthcoming (unintelligible 1890) to analyze any potential mitigation. However, based on the staff, our review and thus the findings, we don't feel we can go there, to feel that this has to be resolved. Arthur: Stetson: Arthur: Meryhew: Arthur: Stefnik: Commissioner Stetson. Listening still. Listening still. Commissioner Meryhew? Listening. Okay. Thank you Mr. Jenkins. Uh, ask the applicant to come forward. And your name and address and ... Good evening. My name is Mark Stefnik and I live at 2322 S.W. 120th Street in Burien. I am an associate with, with Mr. Keirouz and I have knowledge of the property since from his acquisition to the current. Um, there are some items that I take exception to including some of the legal (unintelligible 1983). As I've read through this package that Mr. Jenkins has provided. I might mention I've got Tukwila City, City of Tukwila sensitive area overlay and this is the municipal Title 18, (unintelligible 2007). Just to -10- • touch on it briefly, the notion or the idea of (unintelligible 2013). I agree with what the gentleman over here was suggesting these lots stand on their own, individually (unintelligible 2022) in terms to referring to relief through exceptions also state that as well in 18.45.115, paragraph (g), "unless the inability to derive, to derive reasonable use of the property is not a result (unintelligible 2045) by the applicant in segregating or dividing the property and creating the undevelopable condition as of the effective date of the ordinance." So that has not occurred. So that if a lot (unintelligible 2063) individually it would seem to be qualified and that way a stand alone. But, so that's just one point. But I might just for the sake understanding and getting I think a more complete picture of what has taken place here, one thing that I did not hear mentioned from Michael Jenkins because it appears that the premise, the basis of not, or recommending to approve this, this reasonable use, is (unintelligible 2108) the idea that Mr. Keirouz had knowledge of this property having wetland or draining problems before he could have bought it. On February 17th of 1998, which predates his ownership to May of that year myself and Mr. Keirouz came to the community, to the building department down here. Actually were helped by Mr. Daniels. We asked what the criteria was for application of single family building permits and he gave us the criteria as far as had legal lot that has a tax identification number, etc., etc. If it was a non- conforming lot we need to prove that existed and was created legally prior to adopting any ordinance, blah, blah, blah. At the time we were down here, `cause I don't have personal knowledge of, this is my first encounter with the Tukwila jurisdiction, not knowing what you might know or the building department might know versus what I might know, we asked specific questions, one of them being did it show, the properties show any sensitive area overlay. And Mr. Jenkins checked his maps and said, "no, it doesn't show on there." He also made comments (unintelligible 2191) based on the (unintelligible 2192) that we might have some concern about slope here. (Unintelligible 2196) z ug 00 J= w O. g u. to ;T:w z I- O Z t- ui 0 O- O I- w ui =- U u - _ O: w Z, O~ z Livermore: take a look at the lot. That was in February. Mr. Keirouz thereafter had it cleared, or got indications, strong indications which we relied on, he relied on, went ahead and acquired the property based on what we were being told (unintelligible 2216). He developed the plan for it, submitted the plans for lots 12 and 13 which are contiguous lots and when the site visit was made by staff, that would be like in June or July of `98, was told, "Hey, you may have a problem here on lot 12" as far as drainage goes and (unintelligible 2242) were asking for a study at that time. There was some indication or suggestion that there might be drainage or wetland problems. (Unintelligible 2255). Was this after he purchased the property? Stefnik: This was after he purchased the property. Livermore: Stefnik: Okay. The, the, I noticed in the record here, is that it suggests that he had known about the drainage and /or water problems prior to applying to the reasonable use relief, which is not true. The, and, application by virtue of his applying in `98 for a building permit, was developed by the City of Tukwila staff, by the building department staff. It did not appear to us or Mr., Mr. Jihad Keirouz or myself that there were any problems on the property, but again I'm saying that because I don't have experience, knowledge (unintelligible 2312) conclusions of my own. When we came down to get the criteria for building applications, we were told what those were and asked specifically and Mr. Jenkins checked the books and found there to be sensitive area in question that we, that he could find here. And that's the reason that Mr. Keirouz proceeded with the purchase of the property, based on the strength of that. Now after he's already gotten into the system, he's being told we have problem and we may have to get wetland study and then through of course all of that activity he says, he's being told that, okay, due to this wetland, the only recourse you have are uh, way around this s.V� Wah;lhal= ✓,.ti: W�' ntC<+i:ii4.�.e "st:..t:Ke,�u;.�� �.,•,;:;�.�n;t' ;.:.rx� Livermore: r basically is, is for a reasonable use permit application, which is what he did. He was directed and given some steer by staff to go in that direction and see what the findings in the report for the wetland produce. And that's what he did. He simply just followed direction and the steer from what he was getting from staff and now at this point it's being suggested that he had knowledge, way back at the beginning and that's the basis for denying the reasonable use, `cause he supposedly or somebody constructed that he had some prior knowledge to this. There was no questions about drainage or wetlands on either lot 13 or lot 14 and they're contiguous lots. A quick question here. Prior to buying the property, uh, during the due diligence phase, did he do a Phase I environmental? Stefnik: No. The, I guess you'd have to have seen the property. It really didn't look like there was any issues to be had with it. There was an old house on it that had to be tore down, but there was no, almost the entire property was stickers or blackberries. Livermore: Stefnik: Yeah. I'm familiar with it. I live close. And the blackberries didn't lend themselves to be a wetland problem issue in the first place. But, but as part of the due diligence when we came down to the building department we asked, that's why I suggested, you better ask, because I don't know. You know, we might know something they do. And uh, and I was, it was interesting to note in some of the commentary I think from Gary Schultz that the street directly, the next street to the west apparently does fall within a wetlands mapping that the City does have on 32nd Avenue South. It's curious that we were apparently not even told we, well you're close to one. I see 32nd is, but 33rd is not (unintelligible 2566). We were just told flatly it's not (unintelligible 2569) the various zoning, the mapping that we have. The only question that was raised by Mr. Jenkins was (unintelligible 2577) might, you know, have some concern for slope, but - 13 - Meryhew: Stefnik: Meryhew: Stefnik: Meryhew: Stefnik: Meryhew: Stefnik: Meryhew: Stefnik: Meryhew: Stefnik: • we won't know that until we get out there and take a look at the site. And that was the end of it. We encountered Gary Barnett that day too, `cause we were curious about storm drainage and he couldn't find anything in the mapping on it either (unintelligible 2599). So prior to coming with the requirements we made as best we could based on what the site view that we saw there, stickers and blackberries. There was nothing on the site that suggested that there was a wetland problem to the extent, let along have prior knowledge of it, I mean that being the whole scheme of things here, was to get this far enough down the road, then apply for a reasonable use permit is, I think, absurd. This is in February when you took a look (unintelligible 2643)? February `98. And what is your area of expertise? Are you (unintelligible 2651)? I'm a real estate agent. I work.... You're a real estate agent. ...with builders quite a bit. You're a builder also? Uh, I have done ... So you are, you're familiar with properties? Yes I am. I've done some (unintelligible 2670). You didn't walk the property? You didn't notice a stream on the property? Well, yeah. No, and that's what, you know, what we did notice and I think this is maybe important or of some benefit to mention, is on the west end of the property, - 14 - z ;ice W. QQ -J V 0 CO w w= J H wO• .... g 5. w¢ a 1 z� f- O z UQ, O N = w U u-O Z U N' O H; Malina: there is recorded public right of way, a sixteen foot alley that runs through there and some of the drainage lines that were coming out of that alleyway were from the direction were severed or fractured or crushed, so the water is not being contained in there and there appears to be a problem of repair of drainage line, drainage lines to capture the water. But there was, you couldn't get far enough up into the lot to see, because of the stickers to see what else was going on there. So there really wasn't any, any draw to check it out for what was issued beyond just seeing that there were some pipes broken here that somebody had installed at one point. But they were coming from the right of way back there, the alley. And you say you do real estate, do you feel that the applicant at that particular time knew that he was purchasing a lot below the requirements for the City of Tukwila, of under 6500 square feet. Stefnik: (unintelligible 2764) do you mean, are you talking about dimensions then or square footage? Malina: Stefnik: Malina: Square footage. Yeah, the square footage. Sure. Once I, `cause I, and part of my preliminary examination and Tukwila is not unique. Unincorporated areas, City of Burien, in fact there was an ordinance finally passed in the City of Burien to grandfather non - conforming pre- existing lots as, in the same fashion as Tukwila does, Sea -Tac, Normandy Park and unincorporated King County areas too. So, but, and that's why you have to be careful, because there are certain, certain conditions under which you can't just um, lead -pipe your expectation about being able to build on a particular lot. That's why, one of the reasons we came down to make sure as to what the criteria was in taking a permit for, in that zoning, you know, what would be required to recognize that lot as a building site (unintelligible 2839). Let me ask you this, are you the real estate agent that sold him the property? - 15 - Stefnik: Malina: Meryhew: (not audible) Yes. Okay. Has there been any activity on that lot since the sale date? Have, have you had equipment on there to open up any of the water seepage or anything like that. Or is it still existing today as it was in February of `98? Stefnik: The stickers I think were cleared, (unintelligible 2871) the other two lots that were brought along, um, because of the peripheral I guess, if you want to call it that, the overlapping impact of the other two lots being developed, they had to look at the whole in terms of the drainage picture. In order to do that we had to see what you had, because there was no way to know what was under the (unintelligible 2904) just didn't know what you had back there. So there had to be some clearing, even as far as the routing of the existance... Meryhew: Stefnik: Did that clearing open up any of the seepage or anything? Oh, no. Not that I know of. But of course I'm not, I'm not in the mechanical, involved with the mechanical end of it. Livermore: Were the stickers blackberries? Stefnik: Yes. Malina: According to a September 4th letter from, on attachment D here, and that's from Gary Schultz, there was activity on that property on 8/12/98 where during the demolition process of a single family, they also found permit, and portions of the lot were cleared by machinery and a small drainage pipe was plugged. So there was evidence according to the attachment D. Stefnik: And that was actually a, an error in observation on the part of Gary (unintelligible 2972). -16- Malina: An error on what? Stefnik: Malina: Stefnik: Malina: Stefnik: Malina: Stefnik: An error on the part of the observation on Mr. Schultz's part. And he had a subsequent site visit with Mr. Keirouz to clarify that. But to back up, in the process of demolition, when you have an existing sewer, they require you to cap that sewer when you demo the house and that the run, as built, sewer line to the main took it into the lot 12. That was the only reason they had to go in there at all, to track and find out where it wound up at the main so they could cap it there at the stub. Well this doesn't identify it that way. It talks about small drainage pipe that's plugged. Yeah. And, and... That's not talking about a sewer that could be virtually from the fact that the house had drainage... Right. As I understand it though that line was either abandoned or just buried in the ground and it appeared to be a drainage line that really turned out to be of zero consequence. It was un, unrelated to anything. And met, subsequent to the writing of this letter, Mr. Keirouz and Mr. Schultz met on site again, because um Jihad was certain that what he had done was, wasn't anything more than what the demolition permit had allowed him to do and in fact he had his, his sewer cap permit signed off at that time too. But I don't think anybody realized prior to that point and subsequent to the acknowledgment that there may be site problems on lot 12, still knowing, you know, this is that point where we have demolition that involves the house here. Right. When they demolish the house they have to go back and cap off that, that main, the sewer line and nobody knew that it ran and traversed lot 12 at all. Malina: Well there seems to be a conflict here because on -17- z z re 2 6 U O CO 111 W I F- cnu.: w 0. g• - co u. Q. ▪ w z �. 1- O z !- 0 O N C1 1- w w: H U. 0 w ..z O z Stefnik: Malina: Stefnik: attachment D in the lower portion of this letter, it says on 8/11, with correction letter #1, if you look at item #2, it says, "You need to develop a plan to restore the disturbed drainage and maintain it as an open system." That doesn't tell me that you're, that he wants you to maintain an open sewer line. That tells me that he wants you to maintain an open drainage system to keep that water flowing. So there is evidence of that, not, no evidence in this letter here that tells me that you're talking about a sewer line. That's correct. And well if, if, go up towards the top. You're talking about attachment D, is that right? I'm talking about attachment D, September the 4th, 1998. Yeah. If, if you notice the reference up above, it makes a reference to the demolition permit and the building permit. The demo, part of the demolition permit was the requirement to cap the main. Okay! Nobody knew anything about this drainage line at that time. Because in the process of digging the dirt and everything like that, it may have been revealed where it was not apparent, not apparent. SECOND TAPE BEGINS HERE Malina: Stefnik: Malina: Well according to this, this letter saying that you need to maintain the open system, what, what... Well he's referring... ...you're, you're talking to me, you're talking about two different things. You're talking about a sewer line. I'm talking about an open line. Stefnik: No. Malina: And the City is telling you by the same token, in attachment D, with the correction letter, that it was sent on 8/11/98. - 18 - z , �z w re � JO: 00. uo w =• J F, W }O co J u.¢ w Z� H 0 w I-. U i0 . (: CI f- W 0. ..z w O Z Stefnik: Right. Maybe I'm confusing it in how I'm relating to this. What I'm suggesting is that in the process of doing the, locating and tracing out the sewer line, `cause they have to dig, they may have exposed a pipe that was dead pipe, didn't go, didn't come from anywhere, didn't go anywhere. But may have only revealed a portion of the pipe. And when Mr. Schultz was out there, it looked like they had maybe disrupted or dislodged an existing drain pipe that was functional, when in fact it was a non - functioning, defunct pipe. Nobody knew that if it wasn't fully exposed. Malina: Stefnik: Malina: Stefnik: Malina: Stefnik: Malina: Stefnik: Malina: Well apparently in this letter it's telling you, the City is saying you need to develop a plan to restore... `Cause he thought... ..this particular pipe... Right. Right. ...that was damaged because you need to keep it an open system. And I... One that sends up a red flag saying .. Right. Right. ...there is an existing watercourse and that pipe is part of the water - coursing system that runs there. That's got nothing to do with a sewer line. Stefnik: No I understand that. And what I'm suggesting is that in the process of dealing with the sewer line, in the demolition process... Malina: I, I understand what you're saying when it comes to the demolition process.... Stefnik: Okay. - 19 - z • , w. ce m- UO. W w w: LL: • w O' U. Q =d • �w • z� E- O, z E--: U i0 -. w W I- - O: w z. U g ' O I • z.._: Malina: ....of a house where you have a sewer line, to cap that off to prevent raw sewage coming on the property. Stefnik: Right. Right. Malina: That's fine and dandy. Stefnik: Yeah. Malina: I'm talking about the lower portion of this letter which is identifying basically part of a wetland, part of water course that was piped. During your demolition process your machinery must have tagged this thing and plugged that pipe again and the City telling you to develop a plan to restore that disturbed drainage pipe and keep that system open. Stefnik: And that's what I'm suggesting as, and I'm, maybe it would be better if you explained it because it appeared to Mr. Schultz that it was a functional pipe, but on a subsequent visit with Mr. Keirouz, on site, it was determined it wasn't. I mean what you said earlier is true. That understanding never got expressed in a written form. All we're seeing is what his initial impressions were. Malina: Well apparently it has to be in a written form because it's telling you in a letter dated on 8/11, on a correction letter, that it's saying to maintain that as an open pipe for drainage, wetland watercourse. Would you state your name and address? Keirouz: My name is Jihad Keirouz. My address is 13407 61st Avenue West, Edmonds, 98026. This what he was talking about, Mr. Schultz to approve this permit, it's regard to the (unintelligible 3462) permit. We need to seek, we need to resubmit drawing to keep the water course open. He was talking about this undisturbed drainage of the water course at the end, because in my prior application I (unintelligible 3484) all the way across the property. He didn't like that. He wanted for the environment to keep it open, that portion and continue it to the ditch in front. And my plan was to pipe this - 20 - z z re w 6U 0 w= J f- U) ' w O' < wd 1- ILI z �. I- 0: w~ U ,A, 0. w LU -~O .z w O ~. z all the way down. As you see in the (unintelligible 3502) plan, we kept it open and it's completely piped, only about 60 to 70 feet of it is piped and the entire water course before and after the pipe is open. And that's what he was referring here to. To resubmit the drawings and he wants that watercourse to maintain open. He wasn't talking about that pipe. The pipe that he thought was (unintelligible 3538) had nothing to do with this. On that property, that last pipe, the people who used to build, live in that house developed something like a little pond from the watercourse apparently and they piped for overflow from that pond that they built, piped towards the ditch to drain the overflow instead of going to the driveway, because they had a gravel driveway that was overflowing. That's what happened. That's why the plumbing... Malina: So you were aware of the fact that there was a wetland out there? Keirouz: After, after we got this letter and this, the disturbance that happened on the property was before Mr. Schultz send us the letter stating that this application had a wetlands issue that we need to discuss as well. And I have, still have a copy of the mailing, the envelope with the stamp on it and the date when he mailed it and I have the exactly the signature of the capping of the sewer, showing that he mailed it, I received that letter from him, after we did the disturbance because of capping the sewer. If we had known that we wouldn't have done that without permission to continue the demolition part and cap the sewer. But this letter has nothing, this was 8/11, way after July, way after we discovered that okay, Mr. Schultz is saying that there's wetland and then we start walking the property and trying to look between bushes, (unintelligible 3640) bushes and we saw some of the water course and at that time it was easier to walk the property instead of February or March. And then discovered, that was 8/11/98 and obviously then we saw the water course. Then that's how we wanted to address it. He didn't deny us application for the permit. He said we need to address it in that manner. At that -21 - ...ra':aik:::�4 R: Rw•:altf.(IJ i1hi.YLD:.` rta point we continued application for lot 12 for the building permit and it wasn't denied and rejected or anything. No one gave us an indication that we had a wetland issue that stopped building 13 and 14 because we have all these (unintelligible 3683). They are not related together. So we pulled another application for lot 14 and we built lot 13 and 14, whatever water issue was stated by Mr. Jenkins, it's common, (unintelligible 3703). Sometime there is ground water that comes out here. Addressed this (unintelligible 3708) and we addressed this and the house, the houses are there and they're fine. There is no other issues. On this property we are still addressing the wetland. And we met with Gary Schultz and Carol Lumb probably was 8/98 to discuss this, how can we do this. He said you can do, with the application of the reasonable use and that's how we can do it. And there's no, the property is 90 %, almost 100% wetlands and this, (unintelligible 3755) did the study for the wetlands and it's all wetland. We cannot have any buffer, even if it's reduced to 15%, here on the other property, on their neighbor. We have neighbors on both sides and then we have 16 feet of alley for the City. We, we don't have buffer (unintelligible 3776). The only way to build, to use this property for any use except to let bushes and grow berries on it, we have to build a lot. We have to get this application. That's why this needs to be approved so we can put a house there. It's the only thing you can do there. There is no other use for this property except wild berries. Livermore: Question. Which lot was the prior house you referred to located on? Keirouz: 13 and 14. Livermore: 13 and 14. Keirouz: Had nothing to do with 12. Livermore: Okay. Keirouz: With this demolition the reason we had to get on 12 and - 22 - only maybe the first 10 feet of lot 12, very minor disturbance is because the sewer stump was located on lot 12. And that was, and the map of the sewer cap was in the application, the demolition application was an old application where at the same time. It's not like we did 13 and we did 12 and then we did 14, then we hit 12 and then we attacked 12. Everything was laid on the table. We had no idea it was wetland until Gary Schultz addressed it. And when he addressed it, did indicate this is wetland, stop 13 and 14, we have to do something here. He, when he said address it, your application is still open, but address it, to progress (unintelligible 3888) discovery and they gave us permits for 13 and 14. At that time, if there is any mitigation that, from what I heard previously, okay, you have three lots, you put one on hold or (unintelligible 3903) the wetland or you put a buffer around all three of them. No one addressed that issue. No one told us we cannot build on 13 and 14 even though they are separate lots, completely, have nothing to do with 12. Legal size. I've paid taxes on this lot since I got it. And we have water. We have sewer. There's no reason for anyone to tell us we cannot build a house. And there is no other use for this property. z W. .J U. O 0 moo. J= w• O u-< I a W F- _. z� I- O z i- . • w. U� O ww 2 1U z� Livermore: Are you willing to do off -site mitigation for the wetlands? ~ z Keirouz: We did the wetland mitigation and Gary Schultz approved it. Livermore: You didn't answer my question. Are you willing to do off -site mitigation? Keirouz: We addressed that issue with Gary Schultz and Gary thought we cannot do any mitigation off -site the property, so what we did was a plan to keep it open in the front and put wetland vegetation on the property. That's the sensitive, the solution that he came up with, what we can do for this property. There's no, we don't own property next to this to say, transfer, do wetland off -site. - 23 - Livermore: Keirouz: Yes. Well if your lot is 100% wetlands, you can't get there from here to do the mitigation on that piece of property. What I am asking is are you willing to do the mitigation off -site? In other words if there is some other wetlands... Livermore: ...in this flood plain, would you be willing to do some mitigation in an off -site location? Keirouz: Sure. Livermore: Okay. Thank you. Arthur: Any further questions? Do you have any additional people from your group wishing to speak to us? Keirouz: Actually I can talk a little bit more, just because in this, there's a lot of things that are incorrect. Like piping, we're not piping the whole water course. And we are not filling the property. Maybe about 100 yards, (unintelligible 4065). There's no fill brought to the property and the SEPA pass, there is nothing wrong with the SEPA. And so every, the only thing we're doing is asking to build a house on the property, `cause there is nothing else we can do on it. And we had no knowledge of wetlands before and even all between when the City has plenty of time, two years and we have built the houses that they inspected regularly and soon. If there is an issue this issue should have been brought up long before we were (unintelligible 4109). SOMEONE CLEARING THEIR THROATS MAKING IT IMPOSSIBLE TO HEAR Keirouz: And this was we had the first application and I applied again after the first application expired. It wasn't denied. I applied again for the second because the first one expired and I paid an extra fee for that. Arthur: Okay. You're saying that you had no knowledge of wetland on lot 12... - 24 - z ~w re LI n UO Uo w w; w: w O. LLa Via,. =w. Z~ Z o,. o` U m: ,o I w w, U. O 1j Z U �. O z Keirouz: No. Arthur: Keirouz: ...before you headed into this process. I wouldn't have bought it and I'm not a builder per se. I'm an architect. I do this also as an architect. I design and I build. I don't develop properties. So whatever he thought I might, I should have as a builder to identify wetlands, I can't. And that's why we went to the City and went to planning on three different occasions to double check `cause this is where we can get our information. But there is an overlay, sensitive area overlay, any wetland addressed for that site and no, everything is green light. Everything is a go. Meryhew: There is, there is a full blown stream coming out of the south end of that piece of property. Is that, what's the source of that? Is that an underground spring or is that... Keirouz: No. That's drainage from other houses and part of the street. It goes around between basically, the people that live there, this was developed, flooding from ground coming up. The people that drain... Meryhew: So it's coming up, from uphill? Keirouz: From uphill, from the corner, it curves around. Let's say this is my lot. It curves around from around here and every, all these houses drain their property, their water into it, and comes behind this property (unintelligible 4230). Meryhew: Keirouz: Meryhew: So it's coming underground from up, from those other pieces of property? It comes maybe all the way across, that's hard to say. But, but it's a big stream coming out of the south end of the property about oh, must be 50 feet um, east of the road there. There's a big stream there. What, what is the source of that? It's, if you go back . n..�i;i �. F:'.\ F^ �j�.' iFLt= a�t. �i:: �:':£. fr.!: ir: u} l��l .M.n<..ri.4:r.a�:�.1.4'•Y..` �f��'+tS�.Y. -25- Man: • further west on that, you don't see the water at all. You're talking about roadside? Meryhew: No I'm talking at the south end of the property, right next to the other piece of property there. Man: You said you had a geo -tech study done? Keirouz: Yes. Man: Simpson: Let's hear from... My name is Tye Simpson. I live at 2628 East Valley, Seattle, Washington. I'm a licensed civil engineer. Um, I guess to address the ground water issue, um, the geo -tech, I'm not the geo -tech (unintelligible 4302) did the study on the ground water and he, he couldn't come out and directly say whether primarily this ground water or this surface water, in my opinion there is, it is ground water. And there's a spring somewhere in the area. Meryhew: It's a pretty heavy flow. Simpson: I don't know. I guess I wouldn't use the term stream. I mean I guess I observed uh, this was a dry portion of the year, but a couple of inches of flow in a v- ditch, which is not, definitely not a ... Meryhew: Simpson: Meryhew: Simpson: Meryhew: Simpson: I walked up by there just this last week and 15 feet away I could hear it falling. Are you hearing the drainage along the eastern edge? Not along the road, no. Well I... But back up on the very south end of the property, up next to the garage of the next house. Sure. - 26 - z _ - • 2LLy. J0 .0 0 N 0 . JI. H wO g Via' • I- a Z �- U� • •ww Z ui U= • O F" z Keirouz: Well I would say that, I don't even know what you hear. What you hear is the stream that the (unintelligible 4382) directed and it does continue along the road of the neighbor to the ditch. Like I said the people that lived that house, they diverted the water and goes down, if you look in there, they created like a pond. And there's the rocks. z '1- Z w. Meryhew: No, but it's uphill of that pond. It, it's west of 6 v that big cedar. And it flows along the whole south end 00 of the property. It flows about 50 feet long there, co W open, open water, flowing heavy enough that you can her -J = F- M 15,20 feet away. w O Man: (Unintelligible 4433). 5 LL. Q 0, d Arthur: Could you separate your comments so that we can get an _ adequate record here. You're beginning to speak ... Z i- O Z I-. uj Man: One at a time. 2 D U � Arthur: ...all at once and it's just going to be jumble. p I , UJ =U Man: What I'm looking for is the source of it. F-:- --O wZ H =: O I- Simpson: But I would say if that was the issue, if you're concerned with what we're doing with the stream, the whole plan here, as part of application process was to maintain the existing drainage course. And, and this method would capturing it for a short period and discharging it into its natural drainage course. We weren't altering the drainage course or we weren't impacting it in that way. We had almost a four layer drainage conveyance system to capture the ground water which is above and beyond a belt and suspender type of method. Just, just to insure that there are no problems. And so I guess it's not, uh, a matter of causing upstream effects to the property or even a down stream effect. I guess there is a negligent down stream effect in the sense that we're adding (unintelligible 4516) surface that would increase the run -off to the down stream, but the entire drainage basin that I analyzed was like 60 acres and this is .15 -27- ..Y.i■AC3W11,4.:h z Meryhew: Simpson: Meryhew: /. AMIN `: acres. I mean the impact was less than a quarter of percent of runoff of the entire basin. I mean if that's your concern. Well, my concern is that whole hillside has got numerous underground springs. Right. And that... Once you, once you start construction on there, then move a dozer in and backhoe, you may be discovering quite a few problems with water. Simpson: Yeah. And I think, you know, obviously in the Seattle area we have experience with ground water and a lot of places we don't have ground water. And it's taken major, (unintelligible 4576) re -route that drainage during construction and then once it's completed, we have all the measures in place to ensure that the drainage would cause no damage to the adjacent properties and no damage to the proposed house. And keep that, and actually increase the conveyance capacity of that ditch that's in there in my opinion. But there definitely is ground water in there. Undoubtedly I was out there in the dry period of the year and you can see ground water in there. But I guess, I haven't heard that as an issue, is why they're not accepting application. Well I think right now we're still trying to decide if you're qualified to apply for a reasonable use exception. Simpson: I think so. I think it's mainly a side issue. Arthur: We aren't really to the merits. I think that is a separate item. Simpson: Correct. Arthur: If we get that far. Simpson: Sure. Any more questions relating to the engineering -28- • z w CL 6 J U. 00 N 0 w =. J U.) w� ga 5: u.¢ a F. w Z = I- 0 Z~ U m '0 -: .0 I--. w • uj V. LI O w Z. U N � 0 z Malina: Stetson: Arthur: Stefnik: Malina: portion? Have you guys read the sensitive areas ordinance? Either, either three of you? Do you understand the sensitive areas ordinance? Why it was developed and why it was written? Up to the mike please. Up to the mike and identify yourself please. I'm sorry. Mark Stefnik. I've got some general knowledge of sensitive area ordinances in just about all jurisdictions. I was talking our jurisdiction. I'm not talking about anybody else. And you've read our ordinance? Stefnik: Not in it's complete entirety. The parts that are related or referred in Mr. Jenkins' disertation. Malina: Have you, has the applicant read the Tukwila sensitive area code? Keirouz: Yes. I've... Malina: And do you understand it? Keirouz: Yes. I read it again, the numbers that were referred to for this application, not the whole package. CHAIRMAN WHISPERING TO VICE CHAIRMAN MAKING IT DIFFICULT TO HEAR Arthur: Has the applicant completed his testimony and have the commissioners completed their questions at this time? You're going to get another shot at it. Stefnik: I'm Mark Stefnik and I just might recap um, what appears to be the thrust of the recommendation to deny a reasonable use by Mr. Keirouz is apparently founded in the presumption, the assertion that he had prior knowledge to the conditions on the site, which um, he did not. I did not and I accompanied. We both came -29- z • w • cc 2 u6m: JU U O• . .(0 cnw J = H wO 2 g-j w a. co a w H'= z �. �o z�-: UJ O N' O. Z. z down here and queried the building department, not just about building application criterias, but whether or not the property showed to lie within a sensitive, sensitive area overlay. And we were told that it does not. I think the question raised by the building department here was (unintelligible 4832) might suggest that there's, might be some slope issues that we'd have to take a look at. That was the only thing that was said. And, and along with that then I guess is the actual application date. It's tied to that application date for, for relief here by the, the sensitive or the reasonable use permit occurring, that application occurring subsequent to his knowledge and the knowledge he gained was by virtue of the staff, Tukwila staff coming on site and subsequent to the building application being submitted, and that's subsequent to ownership. And the question of wetland or drainage issues was raised by staff, not by Mr. Keirouz. Neither one of us had any clue about there being wetlands, drainage issues, alleged underground springs, even with checking with the City we were told that there weren't any issues. So it would seem appropriate from the reasonable use permit to be approved or at least given a shot to address, to meet the threshold, reach that threshold of reasonable use and, and allow him to proceed with meeting other mitigation requirements if they're available to us or to him. (Unintelligible 4951). Arthur: But I think he stated earlier, unless I misunderstood, uh, you said that uh, the applicant had no knowledge of the wetland on lot 12 and you would not have purchased the property had you known there was a wetland condition on the property and I think that's what you're saying here too, or am I mis- interpreting? Keirouz: Jihad Keirouz again. Um, even the argument, the argument is that we had knowledge. Let's say we did according to Michael Jenkins. According to ordinance overlay sensitive, the overlay, (unintelligible 5009) overlay, paragraph 18.45.115, exception #4, (unintelligible 5025) granting approval, we need both reasons a, b, c, d, all the way to 8 and through that - 30 - z ~w a2 JU 0 0. u) 0 w w: J � w O. g ± I- _. z� �- 0 z w U,A • :0 -'. • w w. z U= 0 1- z Livermore: Arthur: Livermore: Arthur: E .1 it doesn't say anywhere if we had prior knowledge that we should be denied. According to this, even if we had prior knowledge, which Mr. Jenkins is saying, we shouldn't be denied by law, according to your ordinance. So even the argument that Mr. Jenkins is trying to prove, let's say he proved it correct, which is incorrect, according to the ordinance it shouldn't matter. By law it shouldn't have any reason not to approve the reasonable use. Let me make one clarification here, uh, as I read Mr. Jenkins' comments in here, he suggested that you either had knowledge or should have had knowledge and, and I view that correct, because in this day and age when you buy a piece of property, you do due diligence. And you go and you do a title search to make sure that the property is free and clear and, and in this day of environmental nightmares, if you're smart, you do uh, a Phase I environmental study on that to see what's happened on that property in the past, the potential for wetlands and so on and so forth. So I want to go on record as saying I think that Mr. Jenkins' comments were correct. He's not insinuating that you did. He's saying that either you did or you should have. Before we get much further with this though, why don't we, can we save some of this for deliberations David? I'm still... I'm through. Okay. I appreciate it. I'm still trying, wrestling with the questions are we qualified to apply for a reasonable use exception. I'm a little slower than maybe I should be. Keirouz: (unintelligible 5241) because we did all the work, engineering and the permit application for it to be approved and it's been pretty much accepted by planning and zoning (unintelligible 5264) and if they're still trying to decide if we can do, why did the City of -31 - Arthur: Tukwila requested us to do all this engineering, all this work and submit it, spend all this time and money and still, we still have to decide if we can do this. Right from the get -go of this hearing, and we broke and I'm having problems discerning what we're doing here tonight. And that's the way I prefaced this meeting or this public hearing and that's why I have the attorney here. The first question we have to answer, are you qualified to, to move ahead with this reasonable use exception. That's what we're deciding now. We kind of slip into maybe discussing the merits a little bit right now, but we have to answer this question first, as I understand it, before we can move forward. And I guess I'm going to have to rely on staff to, to say are we still on track with that? Keirouz: One thing I need to, according to Gary Schulz and Carol Lumb from the City of Tukwila, from planning. I think she's with the Planning Commission. Livermore: Arthur: No. He is with the planning department. This is the planning commission. Keirouz: I'm sorry, planning department. She's the one who recommended this and said this would work, this is what you need to do. Now if there is conflicts within the City and somebody else is saying no you cannot do this, we came out to the site and you cannot do this, then we were mislead all along for a year and spending all that time and money and energy on this. So the conflict is not with us. We were told we can do this, this is what you should, what you need to do. Arthur: Keirouz: Okay. With Gary Schultz and Carol Lumb we met and they told us specifically what you need to do. And then after we did all this work, we're having a discussion, well, no you cannot do this. -32- z • z. QQom. -J O 0 N O w =. J CD w. w 0. gQ z• c5 1-w F- w 'O N. C31- U. z ui O • . z Arthur: Let's make it, I'm going to try and make it clear one time, unless I'm unclear on this. We're trying to decide whether we're qualified to address the reasonable use issue. Is this what we're trying to do at this point? Meryhew: I'd like some clarification as to what the qualifications are. What does it take to qualify for this? Lancaster: Arthur: Lancaster: Arthur: Lancaster: This is Steve Lancaster. I'd like to try to (unintelligible 5498). Let me ... That would be helpful. Okay. I think the questions that you're all asking and the information that they provided is all relevant to the situation you're faced with. But to break it back down into um, the basic reason that we're here, um, first of all, the applicant does have the right to apply for any kind of permit that they believe they um, have a right to obtain. And that's what Mr. Keirouz has done. Uh, your job is to decide whether or not under our ordinances and other legal constraints on the City, whether in fact that permit should be issued. Um, the situation here there, there is kind of a tiering of decision making that the planning commission has to make to decide whether the project goes forward. And the very first tier is to determine whether or not all reasonable use of this property will be denied if we strictly apply the limitations of our code. And through the strict applications of our code Mr. Keirouz would not be able to build a house on this lot. The escape is the reasonable use. But that, that reasonable use permit is only to be used where we would otherwise be denying reasonable use of the property. Our position, the City staff position is that by not allowing him to go forward with the - 3 3 - z Z" ce 6 JU 0 LLJ J = H W wO J lL < =w z� I- O z �— LLI U 0, O -(9-. O H. w W. u' O: .z. w O/7 z application he submitted, which would fill or cover over most of the (unintelligible 5672) on this side and provide less than 1 and 1/2 to 1 mitigation, under our, that that would not meet requirements of our code. And by denying him the ability to do that, are we denying him reasonable use of the property. The legal analysis provided to you, written by Bob Johns, is intended to provide information as to whether or not that denial of this permit will deny him reasonable use. It concludes that it will not. It's your decision whether to confirm that staff opinion or to not. Does that help? Meryhew: Yes. As a way of being able to use the property, for some other use, if he were to combine that property with the property adjacent to it and then use it, the two of them together as one lot, that would still be the, a way to use the piece of property, is that correct? Livermore: Lancaster: No. Well. If I... Meryhew: Let him answer that question. Lancaster: If I understand, if I understand the question you're asking, um, I could... Meryhew: There is not a structure on it. It's combining it with the piece of property directly north of it. Lancaster: Meryhew: Yes. Lancaster: Are you talking about combining it with property, part of the property he already owns? What, what the legal analysis says, what Mr. Johns indicated and so I don't get it wrong, I'll quote it from his paper, um, this is on page 3 of Bob Johns' letter, the second bullet, and again we're talking about whether our ordinance results in - 34 - z ;mow 0 0, w CO a =. J I w` w O 5 co u. = Cl F-- _; z �. Z O: w ui � H w w. LO .. Z w 0- O z total taking, another way of saying denying all reasonable use. "And when analyzing a total taking claim the agency must consider all of the properties held by an owner." So what that says to me is, if you look at the totality of the property, and the owner has a reasonable use of that property, a taking does not result. Meryhew: So by combining with the adjacent piece of property, it's not a taking. Lancaster: That's my opinion based upon this analysis. Arthur: Now you're talking about lots 12.... Meryhew: It doesn't have to have a structure on it. Lancaster: That's right. Meryhew: You're combining 12 with 13 and leaving 14 as it stands? Man: Right. Stetson: I have a question? Man: No. Stetson: When the property was purchased there was a house on it that was demolished. Was the property, was the house that was demolished on lot 12 or 13 or 14 or across all three of them or two of them or? Lancaster: I don't know that. Perhaps Michael Jenkins can answer. Stetson: Thank you. Keirouz: I can answer. Stetson: Well let me hear from Mike and then I'll hear from you. Keirouz: Okay. - 35 - Z. 4-4 w J0: U CY V) 0: W W. J I. CO W} J .LL Q' a• • w = F- _. I- 0 z�- 111 ut 2 UO .w w. O, wz O z i, Man: We can't... Arthur: Oh, yeah. We're still with the applicant. Stetson: We're still jump... Jenkins: Michael Jenkins for the record. The, the house that ,:� w was demolished was on lot 13. And it appears to have re encroached, it may have encroached onto 14. Not much, 6 v but slightly. But 12, the parcel that's the issue this c) 0 evening was vacant. co w LL w =: J � Stetson: Okay. Thank you. ± w O Arthur: That's parcel 12. g d Meryhew: Was the sewer line, was the sewer line coming out of �_- _ the house on property 12? 1-- 0. Jenkins: I, I do not know. That's something that the Public D Works Department would have looked at. If, well... 0 .0I-; Man: Yeah, I have a question. w w 0 w z. oS O Keirouz: (unintelligible 6040). Man: Let him clarify. Keirouz: Jihad Keirouz again. The house was on 13/14. Half of the house was 13, half of it was on 14. The sewer line did not go, did not sit on lot 12. It came down, part of it, the first 10 feet was on 12. It went from the side of it, connected to stump. The stump, the main line, the main sewer was located on lot 12 and according to our previous note it was mentioned that we can add 12 and 13. I cannot do 12 and 13. Lot 13 and 14 I do not own. They're not mine. At this point I only owe, own lot 12. And when I did this application I only owned lot 12. 13 and 14 are not mine any more. From the date of the application the only property I own is lot 12. Everything else is not mine. Meryhew: What were the sale dates on lots 13 and 14? - 36 - z Keirouz: They were pre - sales. They were closed in February `99. BACKGROUND WHISPERING BY THE COUNSEL MEMBERS MAKING IT DIFFICULT TO HEAR Meryhew: So all three sales were... Keirouz: March `99 and the application was well beyond that. So what you also need to look according, by law, I did talk to an attorney on this, not to the City Attorney, you need to look at this, when I applied for the reasonable use. At this point, that's another point. At this point I didn't have, I didn't own lot 14 or 13. The only thing that you need to look at is lot 12. That's when I applied for this reasonable use. All the property I owned before has no relevance to this application. You have to look at only lot 12 when I applied and what I am doing with right now. If I owned the property next to it 10 years ago I should have guessed. I mean if I wait 10 years from now and say, okay, I need to build on lot 12, you have no knowledge of what I owned before next to it. So you cannot look at 13 and 14 at this point. You only need to look at lot 12 and give that, approve that only on the, on lot 12. Livermore: I've got a clarification that I'd like from Steve. Um, in your last dissertation you mentioned the determination needs to be made by an understanding of the ordinances and other issues and I guess I'd like to know what other issues are you referring to? Lancaster: Primarily the case law and ... Livermore: Okay. Lancaster: ..any other um law higher than city ordinance. Livermore: Okay. Thank you. Arthur: Thank you. Is there any other member of the public that would like to testify on this matter? If so - 37 - ,�. +? oe-- ki:•Yary:aii;lad: k�r' S +F�..::' • :Yi.t�Sa; i�r1,+.;tb.fufw;:ih.G4;sYw"�" .'.vx. z =H i_ w ug =: J U O 0 (0 0, w= J �• � LL. w 0: g :71. = a. I-w z z� I- a Z uj • 0 0 D. o E-. uj w: -O Z W U =. 0 z please approach the podium and identify yourself. Dickover: I'm John Dickover. I live at 13202 32nd Avenue South, which is west of the property in question and south of it. That whole south area from approximately where his south property line is, going south another 240 feet is a high elevation and has a year round running creek in it. And if someone had done due diligence like the commissioner on your right said, title insurance would have shown that that whole area was originally platted as spring hills addition. There's water been there for years and years and years and it hasn't been mitigated. That creek runs year round. And if it is dammed up, and it will, over time, because you're not going to leave a brush cutter. The builder isn't going to leave a brush cutter there for somebody to run, the pipe will become clogged. That water will back up to all the houses to the south and they are uphill. So when the water, the ground water there, that's really going to impact the area and I would certainly support the staff's position that the permit be denied. Thank you. Arthur: I have one question for you. I have a map here. You were going a little quick for me. Could you come and identify the property which you own so I can tell, what, what and where. Here uh, this is a map out of the... Dickover: Here is 33rd. Here is 32nd. Okay. Now lot 12 runs all the way to 32nd South. Arthur: And this is the 16 foot alley to the west. Dickover: Okay. This is the alley and the creek runs normally along the alley right away. Arthur: Okay. And where is your property? Dickover: Um, Livermore: it would be, let's see, where is 32nd Street. Right here. Dickover: 132nd? Okay. Here's 32nd and 132nd. One, two, three, - 38 - z • Z r- ‘ U0 co o. -J SL wo u.¢ co De, I- U-1 z� F-0 Z 1-. 0 to 0 I- w W, H U. 0 Lii z. =, 0~ four.... Man: Well if you went to... Dickover: This house right here. Right here. Z . Arthur: Right here? m W• Livermore: The yellow house which is down below the road -J v' • level. UO • m o: ' cn w_: Arthur: Okay. Right here where I've made this "x "? -' ~ U) u_ . i w O; Dickover: Nominally yes. This is the best I can, yeah, that would be it. u. 5. _ Arthur: Okay. I-' _: zi.— Dickover: And this creek runs all the way through here and all z 0 the way down to 130th. And it's an open creek. • 2�: U 0'. Arthur: Basically in that 16 foot alleyway? 'O co w W- U: Dickover: Nominally, yes. Arthur: Okay. Just, just so we... Livermore: So it's running along the west edge of this property then? Dickover: Sir? Livermore: It's running along the west edge of this property? Dickover: His property, correct. Man: West and south and north. Arthur: Would you like to see the map? Dickover: Water can't run up hill. Man: It runs along his south property... -39- z { Arthur: Here's where he indicated his property was. Here's the 16 foot alley. He is saying nominally the stream runs along this 16 foot alleyway. Keirouz: That's not true. z Man: Where is the stream then? ? w: O' CO 0. w= J � LL w0 N LLQ co = 0, zF- F- 0' Z~ Nom: Arthur: Let's back up to get you on the record. And um.... 0, ,0==, 01- Keirouz: (unintelligible 6704) the correct, if you come around w w this way, goes around between these houses. This is �' the house here were it comes and turns down to lot 12. 0' z It comes down to this point and then disperse over here 0 and it catch through, there is a catch basin that is next to the storm down. And this is an open ditch z where this was open in the ditch and goes to the storm catch basin. It's not an open creek at this point. It goes through pipe, another catch basin and connects to city storm. Keirouz: The stream, you don't even know. The stream... Dickover: I live there. Keirouz: Well, well... Dickover: I've been there for over 10 years. Keirouz: Well okay. MULTIPLE VOICES TALKING AT ONCE Dickover: It's open all the way down here to 130th except for the catch basin down here at the end behind the last house. Keirouz: There are sewer lines in here. Dickover: No. How can the sewer be there because it would run up hill. Keirouz: Not for these, for this, these lots. If you check the records ... -40- Dickover: The sewer line here is on 32nd and goes north. It is not behind the properties. Man: Chairman... Meryhew: Why don't you put this drawing on the blackboard over there so everybody can see just exactly what (unintelligible 6814). Arthur: I think we have another exhibit. Stetson: Okay. WHISPERING AND BACKGROUND TALKING Marvin: John I'd like to make a suggestion. Man: Yes. Marvin: My suggestion is that we take a recess, whether it be 5 or 10 minutes and let staff perhaps make a drawing of, of this and where the creek goes. If this is um, right here I have a map that says "subject area." I've got one little blue square. If that's not the area we're talking about, we're talking about the creeks and surrounding the property. I would like all of us to be aware of exactly the property we're talking about. `Cause right now we're talking west, south. These things are all flying around the air and I don't know if it's fair to us that we all understand exactly if this is pertinent. If it's not, I would like to avoid it. If it is, I would like to have a map to see just what we are looking at. Does that make any sense to anyone else. Stetson: Is it, is it pertinent? Man: I would like... Meryhew: I believe it's pertinent. It will be in deliberations. I can guarantee that. Arthur: Yeah. I need a map that's, you're absolutely right. -41 - This north, south, east,.west, uh, flying around here, I cannot keep up with the directions. Is that possible, some of the staff can.. Lancaster: Um.... z Arthur: ...or is there an alternative. = Lancaster: A couple of points. If you'd like to do that if you think it's important to your deliberations, v O' we'll try to accommodate that. If you're going to w have a break, the first thing that I need to remind is, that you not talk to each other or w�'- wp anybody else during that break. g Q, Stetson: Right. c Iw z� o' z (- Lancaster: Um, and uh, I guess, if you'd like us to go w w forward and do that give me a little bit of v o' understanding of what it is you're looking for on o this map. Are you looking for the location of the w w water course? H Arthur: I am. Lancaster: Anything else. Z ~ Man: Sure. Arthur: Well the location of the stream, the location of the wetland, with respect to lot 12. Stetson: We'd also want 13 and 14, just number the lots. Marvin: Number the lots so we know what lots we're talking about. Arthur: Yeah. One blue dot on the map is just not doing it for this particular... Whisler: Do you have the sensitive areas map too, the overlay? Lancaster: We don't have in the room our sensitive areas -42- Arthur: Lancaster: Arthur: Lancaster: Arthur: Stetson: Arthur: A .. ilaNk overlay map. Maybe this would be the appropriate time for me to clarify that situation. We do have maps in our offices that are inventories. Our ordinance is very clear that those maps are not to be solely relied upon for final determination of what is wetland and what is not. Our staff is trained to make sure that when they are providing that information over the counter that applicants are informed that the maps are not the final word of the location of any sensitive areas. One additional question on that Mr. Lancaster. Hasn't the definition of wetlands kind of changed over the years since, since the variance ordinance was adopted and... It has. The methodology for determining what is wetlands and what is not has changed in our ordinance. The inventories have not changed from that um... Okay. And those definitions I believe continue to change? Well right now we use what's known as the 1987 methodology developed by the U.S. Army Corp of Engineers in combinations with EPA. Okay. We've been asked for a 5 to 10 minute recess. Are we all in agreement to this? And we can't talk to each other. And we can't talk to each (unintelligible 7284) Stetson: Okay. TAPE ENDS SECOND TAPE BEGINS AT COUNTER 15 - December 9, 1999 Arthur: Okay. It is not rebuttal time. Staff do you have a rebuttal for this? -43 - t.► Jenkins: I would like to do, you requested that we provide some maps that show the wetlands and the water course and what I've done is taken two assessor's maps that were provided to staff during the course of this, of not only the application before you, but the reference development proposals. And I, I'll go ahead and just briefly describe what I've done with the maps. The first map I'll provide you uh, both maps were prepared by myself and Tye Simpson and Mr. Keirouz. Both show north. Both show the wetland, shaded area. Both show the water course as it approximately exists on the parcel #12. The first map shows, that I'm going to hand out, shows #12 highlighted. Marvin: Michael if you could give us the maps and then explain, I believe it would be better. Jenkins: I'm going to explain 12, this one first. Man: Oh, okay. Jenkins: I'm dividing them individually so Wynetta can do that and mark them because I'm not sure where, what exhibit we're on. They were an attachment to the report and now we have exhibits. So the first map shows, again the shaded area approximately indicating the wetland, the water course as it both enters and leaves the parcel. One of the points that I wanted to bring up here, speaks directly to what you see on this map. When the applicant applied for his initial permits, and as you can see as represented, those three parcels had been joined for tax purposes. This is a King County Assessor's map. The, as the property existed there was only one house roughly on 13 and possibly straddling 14. Those were considered to be one lot for tax purposes. The second map we wanted to give you, again shows the same features. The same features being the shaded approximate area of the wetland, the line drawn in the water course and #12 highlighted. The difference being that this map was generated after Mr. Keirouz had worked with the King County Assessors to in effect take that overlay off, showing the pre - existing legal lots of record. - 44 - z Z. JU o0 co w= Ji- u)LL. w0 u_? d = w F- 2 z� 1-0: Z 1-. n o U O H� w w` F. • U F- wz 0 ~` Z Marvin: Jenkins: .k When you say take the overlay off, what do you mean? He had to approach the King County Assessor's to fulfill our requirement to show that there were three existing legal lots of record. As it was presented at the time there, and as you can see in the first attachment that I gave you, the line that heads north to south within parcels 12, 13 and 14, indicates that those are one tax lot. This is an assessor's map. Hence it shows it as one lot. What you see on the second attachment shows the end effect that the three lots were in effect, they were three separate lots, legal lots of record, which I indicated at the beginning of the staff report, that they did not meet current standards. That speaks directly to one aspect that's been discussed this evening in our criteria, under 18.45.115, subsection (4)(g) and I'll read it. "The inability to derive reasonable use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of the ordinance from which this chapter derives." Second, Mr. Lancaster has talked about the issue of the sensitive area maps. I'm sorry, Mr. Stefanik, Stefnik, thank you. I thought I got it, but I wasn't sure, had indicated that they had come in and approached staff. About, you know, what was the situation with the parcels. As you'll see in 18.45.020(b), which I'll read in, which Mr. Lancaster discussed, "maps and preliminary inventories and ratings are hereby adopted by reference. The actual presence or absence of sensitive areas is defined by or otherwise referred to in this chapter and as determined by the City will govern." Which I think speaks quite clearly to the discussions that we've had so far. Another important point which is in your staff report that I'd like to restate is the Maple Leaf case. The Maple Leaf case, as Mr. Johns references clearly speaks to not only the requirement and the effect of due diligence. I guess the last aspect again, which is why it's stated in your report, which speaks to not only the Maple Leaf case, but the situation at hand, did the owner or the applicant know or should he have known about the z ~ w QQ• � O 0' en • = J I--.. • w wO 2 g Q. co a w Z� I- O Z I- 0 0 S O I-' ww F-, U 0 wz P _. O I--. Z A .► n aspects of this property that could potentially limit any or all developable area, which is why it's included in your staff report. Stetson: When the applicant first came in, prior to purchasing other property, this property, these three lots, and inquired about the, any sensitive areas or whatever, on that property, were you dealing with, with this assessor's map, that shows the three lots as essentially one lot of record, one, I mean how do you say that? One tax lot? Jenkins: One tax lot. Livermore: Jenkins: Tax lot. I'm going to yes and because I want to preface that yes with, we see a lot of people and we talk to a lot of people. My recollection, in preparing for this evening, I went back and pulled that map, my rec', and I pulled it out of one of the original development files that were developed for either 13 or 14, I do not recall. That was presented and my recollection was, when Mr. Keirouz came in and initially wanted to develop those parcels, that was an issue at the time of the initial application, that he prove, because he purchased those on, on or around or the deed was filed on or around April 30th, of 1998. Those assessor maps did not adequately reflect that condition, so we did not know that those were, based upon the map that he submitted, individual legal lots. We, looking at that, believed that to be one lot. He was able to, because they were three existing legal lots, that the assessor's map that you're referring to, the first attachment I gave you, when he presented it, it looked to us like it was one lot. And so we needed was clarification and proof of that in fact. And the second map that you see is the end result. We would not have created that situation because 5800 square foot lots are not legal lots of record. Hence the lots that you see represented on the second attachment were, as they existed. But the first map that you're referring to, that I presented, shows the tax - 46 - assessor's indication of that parcel. And those two are very, it's important to keep those two (unintelligible 492). Stetson: How do they become, come from joined to be separated? How, what is that process? Jenkins: You can, if you have common ownership I believe that you can talk to the tax assessor's office and for tax purposes, and again, which has been discussed this evening and is referred to in your staff report, there was a house on 13 and who knows, historically if the person, clearly they were enjoying ownership and there must have been some reason for them to, you know, join them for tax purposes. Again we did not, we inherited these lots when we annexed and so the history is not necessarily as clear as we'd like it. It is represented as such though on those attachments. Stetson: Arthur: Jenkins: Arthur: Jenkins: Arthur: Jenkins: Livermore: Okay. Okay. If the, well as they are shown as being one tax lot on the first map you gave us, so presumably that was a unified ownership as well. Presumably. I, you know, again... Do we have any reason to think it was not? ...I don't know the intent, but that's what, what you see is one tax lot... So it was... ....of record which does not mean that they're individual lots. They were, but what was presented to us showed, lead us to believe that it was one lot, when in fact it was three. Okay. We've all agreed that there were three legal lots there when they came into Tukwila, even though the tax assessor says it's one tax parcel. -47- z ce w. 6 U' 0 co co = j: w, w O. < cn =a w. z� O: Z U.1 uj O� w w. �U' O: w .. z' U N' .H ' O 1 z .1. Jenkins: Yes. Yes. Livermore: IN lb The legal description. Was there a separate legal description for each of those lots when they purchased it? Is there one legal description for the whole tax parcel? Jenkins: Presumably because there were three separate lots. Three separate warranty deeds, two of which I know of that were filed on August 30th, that say one, lot 13, of blah, blah, blah, that was owned by Edna Blalch or her, they were three individual deeds. Livermore: Okay. So that pretty much sets the precedent... Jenkins: And.... Livermore: Jenkins: Livermore: ...that there are three individual lots. I know for a fact that there are three `cause I went to the King County Assessor's office approximately a month ago and looked at the filing of those deeds. The 13th and the 14th were on April 30th. The number 12, which is the issue tonight, I don't recall when that was done. Okay. So there has never been a record of a lot consolidation of three lots into one or anything? Jenkins: No, not that we can.. Livermore: Jenkins: Yes. Livermore: So legally there have been three separate lots in the reasonable past? And the fact that the tax assessor billed them as one is really irrelevant to that fact then is it not? Jenkins: Well... Malina: Well no. That would have to be changed because ... - 48 - Livermore: Malina: Livermore: It changed when he sold part of it. That's right. That's when it triggered. He had to change... But they were three legal lots all the way along. The fact that the assessor lumped them together does not remove the fact that they are three individual lots. Jenkins: I guess it, there are three individual lots that at one point were joined for tax purposes. Livermore: And that's something we don't want to loose sight of. Stetson: Well... Jenkins: Were there any questions? Meryhew: Can we ask our attorney if uh, is that possible that the county assessor can change these, by a, by a verbal request? Don't we have to go through a boundary, lot adjustment to make a change on lots? BACKGROUND WHISPERING - UNINTELLIGIBLE 732 Noe: For the record Robert Noe, City Attorney. Um, I can't speak for the County Assessor's office. I know that they have, from my own personal knowledge, I know that they have done things where we have requested boundary lot adjustments and it's not reflected as, basically it just shows this jagged line that connects the lots. They don't actually take out the boundary. So when you look at lots 12, 13 and 14, it shows that they are connected for tax purposes, but whether those boundaries were actually removed as a result of boundary line adjustment, I couldn't tell you. King County Assessor's office would have (unintelligible 770) . Livermore: Well if, if they buy the property with three separate legal descriptions, isn't that pretty - 49 - z 11 JU U 0 U uJ -_ w00• } J u_ ¢. 9. • w z� F=0 Z i-- U0 cot W I F— V: LI ill Z. =` 0 Z Noe: .k clear that they have not been combined into one lot? That, that would be the conclusion that I would draw. The, in order, speaking directly to your question, if there were lots that had been combined as a result of boundary line, boundary line adjustment, once those become part of the City of Tukwila those would be processed in the City of Tukwila. The County Assessor would make the change (unintelligible 808). Arthur: I believe in the staff report it says uh, they, they were pre- existing lots (unintelligible 821). Lancaster: Yeah. Steve Lancaster. Just, just to be absolutely clear about this. We have accepted the fact that they are three individual legal lots of record. So we're not asserting... Arthur: Okay. Lancaster: ...that they're not. Stetson: I was mostly asking that question to determine, trying to figure out what was presented at the time of sale, what the appearance of the property was, to this, to the purchaser. So you have a house that straddles a boundary line and you're buying all three of them, you know, visually what, what you have, even though maybe the legal description says, you know, lot 12, 13 and 14 are such and such, it, it still is (unintelligible 884) . Man: (Unintelligible 884). Stetson: But... Noe: Yeah. And again it speaks to apply the fact to the law in your discuss, the case law. It's, the property as a whole. Stetson: That, exactly... z w ce 6 UO u o w =; J � cn LL wO ga co =a I-w z �. t- O. z ,—. • 2 uj U � 0 H` w ui 1— • U ui z; H =1' O' z AIM Noe: Yes. Stetson: Right. Yes. Arthur: It's too bad you sat down. I had a question for you. It says here in the, Mr. Johns' letter, it says, on page three of his letter, when analyzing (unintelligible 920) claim the agency must consider all of the property held by an owner. So when we're looking at this we have to look at all of the property held by owner? Is that your, are you in agreement with Mr. Johns? Noe: I didn't draft the letter. Obviously Mr. Bob Johns did. I've reviewed the cases that he's cited and uh, I agree with that proposition. When you're in the context of determining whether there is a taking or whether there's no longer any reasonable use of the property, you need to consider the properties that, that the owner has as a whole. Arthur: Okay. Specifically how does Mr. Johns' letter that we have here and how do the cases that he cites pertain to this situation in your opinion? Noe: Mr. Lancaster had touched on it earlier. It's a threshold determination of whether of all these, whether there is no reasonable use left. The cases speak to the fact that we have use of the property that obviously you haven't been deprived of all reasonable use. The way that Bob Johns laid it out is that you look at all the properties and the conclusion is that if he developed two of the properties, build houses and sold those off, he's had beneficial use of the property even if he can't develop the third (unintelligible 1015) . Arthur: Okay. That, that's the point that I was looking for I think. That's what was, but if you're, that's what I was reading, that was the way I was reading Mr. Johns' letter and you're in agreement with that and that's how it pertains to this in your opinion? -51 - z Z 61-1 6 JU' O 0 w • =. J W • O H= z� I- 0 Z i-- U� - ICI W. 1-- 0. O .Z U =. 0 17 z Noe: Right. Arthur: Okay. Livermore: Okay. This paragraph of Mr. Johns' letter on page three, says, "When analyzing a total taking claim, the agency must consider all the property held by an owner. As a practical example of the application, we'll consider a situation in which a property contains five potential lots." It doesn't say five lots. It says five potential lots. Like he bought a big lot that has a potential to be subdivided into five lots. And that's a little different picture than buying five individual lots, is it not? z i i-- �w 0o OD 0 w= WO 5. u_¢ co= —a Noe: I'm not sure why Mr. Johns choose to put potential. _ Livermore: I think he picked his words very carefully. z mia Noe: Um, I suppose that is a way to distinguish in you v wanted to draw a distinction. 'O SS MO, Livermore: Livermore: Well that, that is very germane to this case. — Li. I- -O Stetson: "Potential" there is some opportunity for how you... vcn O Livermore: Yeah. But it says potential, that... z Stetson: ...divide ... Livermore: ... means to me that there isn't five lots there, that it has a potential of being subdivided into five lots. And that's doing a little comparing of apples and oranges. Malina: The other contention here is that the applicant is saying not to look at lots 13 and 14. The actual vision that he sees is only lot 12, in this particular context. He seems to be wrong. This has to be a total picture because that's the way it is. Noe: Well I guess going back to try to answer both of your -52- questions, the um, when Mr. Johns talks about potential lots, I think he's addressing a situation, well the first sentence here before the bullet point, is "The net result of these decisions," he's talking about all the (unintelligible 1153) at this point. It can't be summarized with a few basic principles. So he's, he's wrapping in this Presbytery of Seattle vs. King County and the other Maple Leaf Investors case, and draw a conclusion from those. The Maple Leaf Investors case, well, the Presbytery of Seattle vs. King County case talks about uh, one property of undivided land that was later divided and section of that becomes undevelopable, developable. The court said, well you can't claim a taking there because you had beneficial use of all the other property. The um, the Maple Leaf case talks about a situation where, you know, they're looking at each particular parcel of property. In that case each of the particular parcels of property were located within a flood plain and the developer was precluded from developing single family residences in the flood plain. Without, they did that regardless of whether they were going to look at the entire parcel of property or not. If, if you read the Maple Leaf case, if that property owner had purchased just one parcel and it was in the flood plain, they had done it with knowledge or should have known of the, the restriction regarding development of the flood plain. They would not have any cause to claim a taking or to claim that their reasonable use had been blocked. If, if you read the Maple Leaf case, it stands for the proposition that if a property owner purchases a parcel, it can be a single parcel of property, with knowledge that it's subject to a flood plain or, or a flood plain is located on the property, that that property has no taking or basis for a taking claim or for a claim that reasonable use has been deprived of that property. Stetson: What is the "should have known" phrase that got tossed around earlier? Noe: Okay. Property... - 53 - z W. re 2 6U O 0 co w =. F- LL.. w 0. �¢ a. =w H =. z� �=o zt-- w uj O u-, w w. F-- ILL- 0 .z! o !` P. I. O F- z • .► Stetson: Known or should have known. Noe: There, there are two types of notices. You can be on notice by actual notice with actually knowing the condition or you could have what the law calls constructive notice. Notice that you should have. When a person purchases a piece of property they have to go through due diligence. So they should have known that, they're placed on constructive knowledge (unintelligible 1316). Arthur: I, I am not really asking for a critique of uh, why can't I remember, John, Mr. Johns' work, but it seems like he was citing this Presbytery of Seattle and the Maple Leaf thing because of the, what he felt were the similarities to the situation we have here. Is that a correct assumption? Noe: That's correct. His analysis of the law was focused on trying to address the factual scenario that we have before the council or before the commission. Arthur: Okay. In your opinion is this, did he, are these comparable? Are these .... Noe: They are, they are analogous. The Maple Leaf case I think is, as far as case law goes pretty much on point. Um... Stetson: On those two cases were they big parcels of land or small, so were they similar in, we've got three residential lots here. Were these big or little and, and were they already developed? Because I think the question is, one of the questions would be on those cases, is if the developer had the opportunity by the way that they made, you know, made the parcels, that they could create a parcel, but wasn't useful so that they could get reimbursed with a taking. Livermore: Yes. Stetson: And in this case, I mean, or in these cases I guess was -54- o She'..Jbva: ?i:Yi3la:a::�.ssd�aii&:c."x.u..c rtu>y Livermore: Stetson: Noe: it all mapped out like this, with the three lines or the three lots? These guys didn't pick where those lot lines are. They were already developed. That's right. They didn't have an opportunity to draw the lines to make it to their advantage on where the lots were. They, they're existing lots. In these other two cases, were the lines drawn? The Maple Leaf, the Maple Leaf Investors case involved, I don't remember the exact number, but that was large volume of parcels of property that were all located in the flood plain. Those parcels were already designated prior (unintelligible 1443). Stetson: Is it easier to designate a property that is in a flood plain or in a wetland? I mean for a "should have known" is it easier to tell when you're in a flood plain or when you're in a wetland? Noe: In the Maple Leaf case I believe that the court said that that's flood plain was common knowledge or part of the (unintelligible 1470). Stetson: So there probably weren't other houses in there? Noe: What's that? Stetson: Were there other houses in the area? Noe: Livermore: I don't think the case tells us. Well there is a little bit of difference mechanically too. In a flood plain there is not much man can do about avoiding the damage from the flood. But if you're in a sensitive area, there are things engineering wise that be can done to keep it from being a problem. So there's a little bit of apples and oranges between these two. Stetson: Yeah. I have another question. When a person applies L+at:.'K1LeN.6i ul -55- for a building permit, do they have to tell you the parcel number and give you the legal description? Lancaster: Yes. They have to identify the location of the lot. Stetson: So when the City granted a building permit for the first two lots, the City was treating them as individual lots and individual parcels? Lancaster: Yes. Stetson: The City was not looking at it as three parcels being or one big development. Lancaster: As, as Michael indicated earlier, when we were first approached, we were, because of the way the assessor's maps were laid out, we thought it was possible that this was one lot. We asked the applicant to provide evidence that they were three separate lots of record. He did that to our satisfaction. Stetson: And so, and then in the process, because was I reading this right, that in this packet there were letters and correspondence from the other two lots? Lancaster: Letters and correspondence regarding the ... Stetson: The things that they had to do to mitigate. Lancaster: Yes. Stetson: So for the first two projects the City was treating them as separate projects, and creating mitigation issues for those. Lancaster: But that was mitigation of surface water issues, as I recall, not necessarily mitigation of wetland issues. Livermore: Yeah. - 56 - Lancaster: Two separate codes. We've got our sensitive areas ordinances, which deals with wetlands and water courses. And we've got our storm water ordinance that deals with storm water. Stetson: Okay. So we applied the storm water ordinance on a parcel by parcel basis? Lancaster: Correct. Stetson: And we're going to apply this on a different basis? Lancaster: Man: Lancaster: Stetson: Lancaster: Stetson: Lancaster: No. No. Perhaps I don't understand the question. Well it seems, if I'm understanding it, it seems that, you're trying to make an argument that it's one parcel made up of ... No. ...three thirds. No. There are three separate parcels, lots of record as far as we're concerned. Stetson: Okay. So it's three separate parcels and my understanding is that the question is on this one lot can it be developed or not? Lancaster: That's correct. Stetson: So how is it... Lancaster: There is a difference between this lot and the other two lots. This lot is encumbered by wetlands and a water course. Stetson: Uh, huh. Right. - 57 - Z • z ' w 6 00: w0, w =. J I-• w 0 J' LL Q' _. Z F-: .I- O; Z I- U 0. O •0 I-; 20 CY Z; ui N-=i 0 H, Z Lancaster: The other two lots were not. Stetson: Lancaster: Livermore: Lancaster: Livermore: Lancaster: Right. So if it's separate how can you say he can develop two thirds of it when they're separate lots? r What our understanding of the case law is, that when you look at whether or not a person is able to obtain and legally reasonable use of their property, (unintelligible 1655). Um, Mr. Keirouz controlled all of this entire property. Um, he's built two homes, two houses on this property. He still has a legal lot of record. The question is um, is the application of our ordinances depriving him of reasonable use of his property. But does not our ordinance say that you have deal in this situation as an individual lot, not as a whole? That was read to us earlier and that's the way I remember it. No. It doesn't say that. What it says is that if you pass the threshold of determining that um, the strict application of our ordinances would deprive an owner of a reasonable use of the property, there are several things you inquire into. One of them is whether or not that situation was caused by the property owner by dividing the property. That's not the case here and we are not arguing that it is. Could I ask that that section of our code be re- read, that was read to us earlier. Okay. I have to read the heading first and then there are 1, 2, 3, 4, 5, 6, 7, 8 subparagraphs. Um, and I'll just read the one that I believe applies. "The commission in granting approval of the reasonable use exception must determine that an inability to draw reasonable use of the property is not the result of actions by the applicant in segregating or dividing the property -58- Livermore: Lancaster: Livermore: Lancaster: Arthur: Lancaster: Marvin: Right. ...meeting the undevelopable condition after the effective date of the ordinance for which the chapter derives." That's one of 1, 2, 3, 4, 5, 6, 7, 8 criteria that you have to find. Another one of those criteria that you have to find is that "Any approved alternation sensitive area under this section shall be subject to conditions established by this chapter and will require mitigation under the, an approved mitigation plan." Um, that (unintelligible 1819) ties us back to the 1 and 1/2 to 1 implementation. Yep. So my point is you can't take one criteria in isolation. Um, if you got past the threshold, if you're determining that our ordinance is depriving him of reasonable use of his property in order to grant reasonable use, you have find in the affirmative for all eight of those conditions. Does that conclude the questions? Does that conclude staff's rebuttal? I believe so. I have one question for Michael Jenkins. On staff report, on page three I believe, I'll read it. It says "The attached permit history indicates that significant problems with drainage existed on the parcels including an active spring which were disclosed to the applicant prior to filing for a development permit on the subject parcel, parcel." Um and that's true? Jenkins: Yes. Marvin: Attachment, then it says attachments D through J are provided to show how drainage issues were documented on the parcel as a whole. Jenkins: Yes. D990168, this developer permit that was filed, -59- Arthur: which triggered this reasonable use request. The attached permit history indicates the problems with drainage on the south parcels, the two, 13 and 14, which there is a permit history on. At, through the development process those issues were revealed. And further substantiating what was known or should have been known, is what that says. And those issues are well documented in the attachment that we have, including permit requirements or the adjacent parcels which were developed. Okay. Thank you Mr. Jenkins. The applicant, do you have some rebuttal? I suspect you may have. Keirouz: Yes. Jihad Keirouz and Mark is going to talk after this as to just, as to what Michael just said. Application D990168 which triggered the use of why we're here. At that point I didn't own any other lot except lot 12. So for him to refer to the history of the previous lots which the City give me permit and approved the permit, whatever problem they had of surface water we addressed, mitigate, the engineers and the build the house and they approved it and it's done and over with. When we submitted this permit for lot 12, for its particular history, saying because I build these two homes, I know surface water problems in that area, I don't have the right to submit for this, at this point this permit, is not right. Meryhew: Mr. Keirouz as a, as a point of curiosity what did you pay for these lots? Did you pay for them individually or (unintelligible 2042)? Keirouz: Meryhew: Keirouz: Meryhew: Keirouz: Individually. $30,000.00 each. How much? $30,000.00. For each of the three? For each of the three. Because there are other problems that we had to do, the demolition and that - 60 - Meryhew: Keirouz: Marvin: Keirouz: Marvin: Keirouz: Marvin: Keirouz: Marvin: cost about $15,000.00 so that adds up to about (unintelligible 2061). You bought all three of them at the same time? Yes. And I bought them as individual lots. I did not go to the assessor office and ask them to do whatever Mr. Jenkins was implying I did. The owners had this already done and there was already established as legal, separate. I think the tax ID for all three of them together is the same as the house, not to the individual lots. That's why I (unintelligible 2089). Were you required to develop these as individual lots? Yes. That was a requirement? Well they were the original lots. There were three individual lots. Were you required to develop as three individual lots? Yes. If I'm going to move, to move the lot line, and each of them apply for a lot line adjustment. That's a whole different process. I cannot say this property is going to be, just because I own all three of them, I'm going to make this lot 30 foot wide and this lot 70 foot wide. I cannot do that. It's an application process. But since these were under the, what is it, 65,000 I think, they were 58,000 they were already pre- established lots. Even if I wanted to do that, I couldn't. Well now doesn't lot 13 and 14, the house that was on 13 riding on two lots? Keirouz: I have the demolition plans (unintelligible 2149). The house was on both, in the middle between 13 and 14. And I even have the sewer drawing from the sewer department where it crosses on 12 and where the stub is. This lot, you can own five lots and put one house -61 - It• I .k and still have five lots. Stefnik: Mark Stefnik for the record. Um, just to reiterate, and there is, you know, some implication as to uh, the application and development or the date of application for development which we're talking about on lot 12 being in the 1999. I'll just remind everyone that the original application for development on lot 12 dates to 1998, actually. It predates, it was actually back in lot 13, that were applied for initially. So it, it uh, (unintelligible 2236) it had, it had to do with the `99 uh, date that we're talking about for that application, he applied for a permit. That permit expired while he was abroad. Mr. Keirouz was out of the country at the time of the renewal. (Unintelligible 2263) inappropriate, `cause I guess you have to renew those permits every six months if you don't get them completed and issued within that time period. So the issues that were prevailing and hovering over lot 12 at that time and his focus on the other, the other lot, 13 and 14, made his trip abroad. He did not renew that, that permit. Otherwise it would have been dated back to `98 versus 1999. NO w g¢ w _ z� I- 0 zF w O� 0 H ww LI Livermore: Are you telling us he had a permit to build on lot uiz 12 in 1998? U O Stefnik: He was in process with that permit in 1999. Alright. Z. Livermore: And when that application was made were these items brought up at that time? Stefnik: Um,... Livermore: In there was an application made for a building permit in 1998, did the information come back from the City that there is wetland problems and so on and so forth? Stefnik: Exactly. That the City is the one that actually brought up the question or the possibility of those wetlands being present subsequent, now this is subsequent to Mr. Keirouz's ownership and after we had, -62- v him and myself had been down there... Livermore: Stefnik: Okay. Livermore: Stefnik: I'm aware of that. But it's prior to him selling the other two lots? Yes. Right and so they offered to economize on time and move towards lot 14 development, hit the pause button or do whatever was going to be needed to sort out these questions now that were raised about lot 12. Um, there was a question I had and it has to do what um, Mr. Jenkins had mentioned here in one of his comments here about uh, a person having knowledge. "However if an applicant purchases a property and knows or should know the limitations or, how the parcel effect its development potential, because of sensitive areas, they may not, they may be limited from being granted relief." There's a, I was trying to find where I could in a quick look of the sensitive area ordinance, it didn't say anything about if a person's got knowledge or doesn't have knowledge or even the question of whether a person has knowledge of the presence of wetlands, sensitive area, water course or anything, as to whether or not that carries weight or has bearing on whether they're afforded relief by way of reasonable use. And if it's in there I'm missing it and maybe somebody could point it out to me. Liveromore: Okay. It's standard procedure that requires you due diligence prior to buying a piece of property. And... Stefnik: No, it... Livermore: Malina: If you were doing diligence you would know that there is wetlands on the property. And you being someone in the real estate business, how long have you been in the real estate business? Stefnik: About twelve years? -63- Z. ce w. 6 00 CO o, W =. J I—, U) IL w0} j Ci z� I- a z I- U� !O N' • I U'. .z w U 0 Man: Stefnik: A 4•11 Have you ever heard of due diligence? Oh, sure. I hear it all the time. And, and there's a difference and it's been talked about here versus the kind of Phase I, if you do a Phase I, Phase II, if it calls for that and um, a wholesale gross large piece of property which you're intending to parcel down or either multi - family use or single, detached single family use, and the types of areas of focus here, due diligence might hold. Keeping in mind that, and I have some experience believe me with doing precursory inspections of property and more involved ones, Phase I, Phase II as this gentleman over here has talked about. Our observation of the property when we went on site to even examine it, was stickers there. There wasn't any problem that suggested there was a stream. There's nothing close to a stream running there. It, it was surface water that looked like had been allowed to escape its containment or drainage line, because it was crushed, actually pieces of it missing. So it really didn't look like there was anything more than, than surface water management issue versus a wetlands issue. There were stickers there which prevented from us traipsing back further up into the property to do a closer examine. But the property itself with a house in place, and with single family built on all sides of it, except for the two parcels directly behind it, which are currently now being developed. I believe Bill Hooney owned those properties and sold them. There was nothing to suggest there was problems with construction there. So, you know, you have to take a, those kind of observations into account and make I guess a determination whether there's serious problems or suspicion of problems that you need to look further or whether or not this looks like it's going to be okay. And a lot of that is based on the kind of experience you have. Personally I didn't see any reason to be alarmed by it. But, as an effort, or in an effort to, not just rely on my gut feelings or Mr. Keirouz, was to come to City of Tukwila and inquire on them to check out their sensitive area maps to see if there was some issue we were aware of or wasn't apparent by the sites. -64- Arthur: One question. Have you dealt with the sensitive area ordinance in Tukwila's version before or is this your first encounter with it? Stefnik: I have come, not to the point of hearings. It's usually we've got the mitigation plan in place, but has been some preliminary blessings where we don't have to get into it other than (unintelligible 2685) which is a formality of it. But I've been examining property close enough to know, at one point, to just bail on them. And it comes out in feas, what we call feasibility study, where we're doing a (unintelligible 2695) . Arthur: Stefnik: Arthur: Okay. But you have dealt with the sensitive areas ordinance in Tukwila? Yes. I have not in Tukwila. I have not in Tukwila's sensitive areas ordinance but in other jurisdictions. Okay. So this is your first encounter? Stefnik: With Tukwila. Arthur: Yes. Livermore: It's not that much different. Arthur: Mr. Lancaster I have a question for you, procedurally. We've have public comment. Does the public get any chance to rebut? Lancaster: Man: Lancaster: Well I'll to defer to the City Attorney. I'm not aware of an opportunity for the public rebut. Well if he say anything let him. He's shaking his head no, so I'll take that as a no. Meryhew: I'd like to ask another question of either Steve or Michael. And uh, is, is there a building permit been requested or issued for those two lots behind this one -65- z • z re II J U O 0; U W J �. w • -5 �< =• 0 t--= z� I- 0 zI-, 11.1 w U Ca. O D. 0 I- 11.1 w. • U ai O z 4 .1 here? Lancaster: Uh, I don't know that. Man: (Unintelligible 2761). Lancaster: Just because we don't know doesn't mean it hasn't t- w 6 _J U. Meryhew: Yeah. c o w =;. Man: But I am not aware of it. mu_ w O. Arthur: Mr. Noe am I in violation of anything if we ask the g 5 public if they want to have an additional comment? -- CY Noe: No. .6- I-- I-- o zr happened. Arthur: Okay. ui Dickover: John Dickover again. Thank you. As to the, Mr. °co Keirouz's question, I don't know specifically except wi they had equipment in there. It's completely cleared, v those two lots. LL 0. ..z w O~ z Malina: Been surveyed. Dickover: Yes. You're aware of that. Okay. No, I would be flogging a dead horse to reiterate everything that uh, (unintelligible 2804) except the property to the, directly to the south of us, the Bloomfields and Kellys, they are, would be here except they are in their mid - seventies and not too ambulatory and Johnson's to the north of us, they are, have cancer in the family and they're pretty well house bound. And they have all expressed when this initially came up that they were concerned about this, because of the water and the uh, ground water that we face every year. Thank you. Livermore: Are you concerned about the two lots that are up behind this lot, that they're potentially going to build on? - 66 - 1 Dickover: Sir? Livermore: Are you concerned about the two lots that have just been cleared above this piece of property? Potentially if they're going to be building those? Dickover: No because I don't know what they're doing. Uh, they are at an elevation that uh, they're going to have, assuming spring water, ground water like we have, and they're going to have to provide some sort of drainage to the property. Otherwise it's going to be much like (unintelligible 2884). But I don't know what their plans are, haven't talked to them or anything. The only thing I've seen out there is a fellow out there clearing the brush and (unintelligible 2894). Man: Thank you. Livermore: Thank you. Simpson: Tye Simpson, civil engineer. I just wanted to comment on, on the drainage issue. There were questions in the beginning as to concern about the drainage and uh, wouldn't be practicing engineering in this state for very long if you didn't understand storm drainage and impacts to up stream and down stream property. And as part of this we also address the public works comments. We prepared a drainage assessment and down stream analysis for, for this property. And through the design we satisfied all their conditions. And I guess one issue is, this has been a drainage course. There is nothing that precludes you from, from designing, `cause this is not an open system all the way to a stream or something. It is a closed to open to close system. So all we're doing is in one portion is capturing that portion, conveying it with the capacity to convey the flow, so you're not causing any up stream impact. And this system is designed and like every system is in this area, that, that if that should overflow, then it goes some place where it doesn't do and damage to the downstream or up stream. It has measures in place to accommodate that. And I think the public works agreed with, with our drainage analysis - 67 - and they were, they signed off. Arthur: Thank you. Our the commissioners ready for deliberation at this point? Woman: I am. Man: Last question? Man: Last question, yeah. Keirouz: Jihad Keirouz again. Mark attempted to ask a question for the exception hearing. Where does it say in this ordinance, the ordinance, if you had knowledge or if you should have knowledge of existing wetland on the property that you cannot submit for reasonable use application. I didn't see it and I cannot find it... Livermore: It's not. Arthur: Mr. Lancaster? Lancaster: I'd like to answer that question. Steve Lancaster. Our ordinance does not have those words in it. As I said earlier the in the hearing tonight, um, well, let me preface it by saying it would be a much simpler world if the only thing we had to rely on was the legal parameters within which we operate were in Tukwila Municipal Code. That's not the only thing that we have to listen to. We have to listen to all the laws that apply to us by the state, by federal government and case law which has grown up around those. What we tried to describe to you tonight in terms of what Mr. Keirouz is referring to, is the case law that (unintelligible 3093) on that, not our ordinance. Arthur: I understand. Thank you Steve. It appears as though we are ready for deliberation. I declare the public hearing closed. And deliberations shall begin. Who would like to start? Liverore: Okay. I'll wade in. ,= Z J U' O O: cn • w =, J H CO u_ w0 g a, w a. 1- w zF �= 0 z I- w c O . Ww H 0: O. . z` U z •.. LAUGHTER Livermore: Uh, this is probably one of the hardest ones I've been on in over four years and um, being somewhat of a property rights advocate, yet knowing the problems in the area, it's been, it's been a very trying thing to make up my mind what way I lean. Uh, I think it's pretty clear that these are four or three distinct lots. It was plotted as distinct lots with individual legal descriptions prior to the area being annexed by Tukwila. Uh, from what I've heard and read in our sensitive areas code, I don't think we can apply the rules, the grouping of three lots. I think we have to apply the rules to the lots individually since they are individual lots. The fact that one person owned all three versus three people owning it uh, doesn't make a whole lot of difference in my mind. I think there's a general consensus that most of the property is wetlands if not all of it. I think there's probably pretty general agreement by everyone that you could not mitigate the reduction of the wetlands on the site. However, the applicant is agreed that he would be willing to do wetlands mitigation off -site within the same flood plain which is allowed for in our sensitive areas ordinance. It's pretty clear in my mind that without granting an exception use on this, there is no viable use for this piece of property. When the majority of it is wetlands, when you have, you know, a buffer required around wetlands, there's nothing left to do anything with. I think that while I appreciate the concerns of the neighbors about the potential case of problems, I'd like to believe in this day and age that uh, geo- engineers are smart enough to design systems to handle this water in all conditions. And uh, I think with stipulations that uh, the applicant meet all of the requirements of the City of Tukwila's code, etc., off -lands mitigation, having a geo- engineer do the design work for the handling of water, and so on and so forth, I feel we ought to grant an exception use permit. Uh, you drive - 69 - Whisler: Arthur: Whisler: around the area, most all of the lots have been built on. Those that haven't it appears are going to be built on. The water problems in this area is not unique to this lot. I've lived in the area since `45 and I used to play all over this area and there's lots of water on it. There was standing ponds on it at one time and uh, I have friends that live down in that area and they have moisture in their yards and so on and so forth. They deal with it. And I think it's within the realm of uh, engineering capabilities in this day and age to make this piece of property work. I feel we ought to grant it. Going right to left? No particular order Kristen. I agree with David's assessment of it pretty much. Um, and if, and I guess I'd just add, looking at the court cases it lead me to believe that those court cases may have applied more to situations where you had the opportunity to divide the property to your own best interests and these lots were already divided and had we had better information and unfortunately, I understand that sensitive areas aren't always on a map and that they can be, that, the opportunity for him or the property owner to take it and divide it into two lots, maybe build bigger houses and mitigate it differently, that opportunity was lost when they were, the other building permits were issued individually and not the property as a whole. So that any of the other opportunities that may have been available were lost. And driving around the area too, there's a lot of properties that are already developed and houses there that have water problems, severe water problems and at least if we did grant this one and required the mitigation, it might help the situation for other people. So I guess I am in support of granting it. Stetson: One of the points that um, Michael brought up was that by denying this we are not denying all use of, all potential use of the property and, and as I understand -70- Marvin: "taking" that to, to qualify as taking you have to, there can be no reasonable use of the property, period. Michael brought up that in this zone other things are permitted. I don't know what they are. It's not our determination here to, to, to say, you know, well you should build this or that or the other thing. This is really a tough one for me. I mean it really is. I, I think that the applicant at the time he purchased the property and the time that he applied for the building permits, I believe he said that he was out of the country. He applied, one expired. He went on. At that point, I believe he was aware of the limitations of lot 12 and could have chosen to do something else and did not. So I am not inclined to grant the exceptional use. I have some, some opinions and still some questions. Um, but with this particular um, I'm trying to stay focused on, on what it is I'm supposed to look at and Whisler: It's hard. Marvin: ....it's very difficult. And I keep coming back to this, the case law and um, reading that and examples of this situation. I, I can see there were other, there were some other possibilities possible. But um, I read, "When analyzing a total takings claim, the agency must consider all the property held by an owner. As a practical example of this rule, a situation which property contains five potential lots, one is completed covered by regulated wetlands. The owner is not permitted to build and sell the first four lots and then claim a taking because the last lot is a wetland." I don't know why the applicant choose to develop lot 14 and 13 first. Um, and I don't know if that's up to me to decide whether he knew about this or not. I, I feel bad for anybody who can't develop property they buy `cause property costs money and anybody should develop it. Um, I also know when, when I went to the site, I could tell right away there was a lot of water coming down there and um, I wasn't, I wasn't surprised why I was up there, when I first went and saw it. So um, I -71 - Stetson: Malina: AI A don't really know, as far as, I know he had to go through hoops and do a lot of things, but then um, he has the right to do that. You know, he can't, shouldn't be denied to do that. And that doesn't necessarily mean that they'll necessarily be approved. But um, he does have that right and, and here we are. And I think, you know, it was obvious there was suspicion of problems there and um, I don't know, what I read and the case law and what I am supposed to govern on, I tend to lean with Kathy's opinion that I have to deny it. It's going be a taking. Well I guess I go back all the way to the uh, sensitive area ordinance, why it was developed. Why the exceptions and the reasonable uses were put in there. The intent of the sensitive areas ordinance, not only for our community but for all communities. I also have a hard time believing that when you have an architect who is now turned developer is not smart enough to sufficiently see what can be done and what can't be done. As far as starting out with lot 13 and 14, it probably makes sense doing it that way, especially if you have a demolition permit where you're tearing down something that's actually on, theoretically between the properties and one house being on top of two pieces of property. Um, as far as the criteria and the case law cases go, I feel that, that the exceptional use criteria in my opinion supports the fact that there should be a denial for the reasonable use. This is not a taking, but a denial for reasonable use. And I will concur with Kathy and (unintelligible 4140). Meryhew: David is right. This is a tough one. Probably one of the toughest ones we've had. Uh, first of all I think the staff did an outstanding job presenting arguments, conclusions. I agree with all except the last one. Uh, this is a piece of property where I fully believe that the applicant should have known at the time he first walked on the property that he had a portion that was unbuildable. And I think he probably should have taken a different action than he did (unintelligible Arthur: Stetson: Arthur: • 4211). I think though that the way the thing has progressed, it's kind of been a comedy of errors or something along that line and the, the part that bothers me more than anything now is what would happen if we would deny the use of that property. And uh, what would happen is it would sit there and it would grow blackberries and wild cats and rats and turn into nothing but a dumping ground. And uh, this city doesn't need any more of those. What we need is buildable lots and places where we can put homes and, and we're hurting for those already, the city. Um, so I uh, I guess I feel that to make (unintelligible 4305) situation work that uh, it should be allowed to go forth and he should be granted the reasonable use exception. Um, and hopefully we won't have a situation like this one. This happens, I think at this point in the game, it should be allowed. Bill we'll now let you make the final decision. Well for me it's crystal clear. Yeah, right. Yeah, right. Yeah, I uh, I agree with David. I agree with Vern. This, this one has really caused me some concern and tossing and turning and flip- flopping and, and that is one reason that I went ahead and um, asked Mr. Noe to be here. Um, like George uh, I was around during the drafting, re- redrafting, deliberations and adoption of the sensitive areas ordinance. Um, and I'm aware of the provisions of the portion of the sensitive areas ordinance that uh, lets you know that you don't rely on the city sensitive areas maps to determine whether or not there's a wetland there or a steep slope or whatever. Those were never intended to be the ultimate tool on which a decision as to whether a wetland existed or not. That was not their intent, nor are they today. I agree with Vern that we, the City of Tukwila need to do things to improve the neighborhoods, develop lots, first class new homes, single family residences. I really want to do the right thing and uh, the time that we made our report from the planning commission to the city council, at the last city -73- z f�Z IY w 6D. 0 0 0 co 0 w I• J I- �w w0 LLQ a. =w z� I-0. Z ui 0 0 0- :0I- 2 U. H ,-_-, ..z w 0 - =. z J .k council meeting, I said this group was made up of well - intentioned, well- meaning people who did not come the table with an agenda to better their own position, but they were trying to do something for the good of the community. And I'm honored to be with this group. I said it that night. I mean it now. This has been tough and I know the agonizing that uh, we haven't talked obviously. I sense the agony that we're all going through. I guess if I do have an agenda of my own, it would be to look at the case law and I have concentrated as much on the case law as the specific sensitive areas ordinance that we have in the city. And I read and I re -read this case law and I can never remember Mr. Johns' name, but uh, he makes some very convincing arguments. "The agency must consider all of the property held as an owner" as the basis for this thing and he uses a couple of specific examples and then I take the opinion of the City Attorney, who I watched in action over the last few years and respect his opinion. My personal agenda is not try to set new case law. Taking everything into consideration I am going to vote with Kathy, George and Mr. Marvin. A four to three vote I think is an interesting split. Uh, I don't agree with the three people who I'm voting against, but that is not to be indicative of my lack of respect of their deliberations and thought processes and logic in this matter. It's just in this particular instance I have a difference of opinion. And I will vote for denial. Malina: And with that can I get some clarification from staff? Uh, either Steve or the City Attorney. With what we heard through consensus here do we still go ahead and make a motion on the case number or take what consensus we have here. Stetson: We have to vote on it. Man: (Unintelligible 4779). Lancaster: Yeah, you do need a motion and second and vote for the record. - 74 - z Z 6 00 W J H wO 2 LL Q co c 1- w` 2 z� I- O. z E- 0 :O N'- '0E-- W w. U: w� -O wz Uw O z Malina: Okay. I'll make motion on L99 -0049, denial of the reasonable use exception through staff's finding and conclusions. Stetson: I'll second that. Arthur: Meryhew: Livermore: It's been moved and seconded for denial. Is there any further discussion on the matter? You want role call? I, I got a comment before you take a vote. I don't know that it's necessary that we follow the existing um, case law that is been established. It's our prerogative to make this reasonable use exception based on our own preferences and priorities. And I don't think we have to follow the cases. And adding onto that I would also that the existing case law that has been quoted is not quite the same as the situation we're looking at. We're looking at a little bit of apples and oranges here, but that's the way it goes. Whisler: I'd like to say two things. Is when you ask for legal advice, normally your attorney is going to present the cases that support your decision and there may be other cases out there that support a different one. But we're going to get the cases that support staff's decision. The second thing I'd like to say is, is my house is built on springs and water and it was blackberries and it was still, it was before this sensitive area ordinance, probably. So probably I wouldn't be there today if, with the sensitive ordinance you wouldn't grant them a building permit I suppose. But the technology was there to create the drainage and the catch basins and the french drains and the this and the that, to collect the water and I think • that my home added to the community. It didn't detract from the community and I'm afraid that not developing that lot will detract from the community and I can't see any other reasonable uses for that property that would be acceptable to the neighbors in a residential area. That's all. -75- Malina: Arthur: Malina: Arthur: Malina: Arthur: Malina: Arthur: Stetson: Man: Man: Stetson: Man: Arthur: Can I ask a question? Can I make one comment? Sure. Yeah. I agree that we don't have follow case law and if I felt strongly about this, I would not go. At this point I feel as though it's, they're not exactly the same, but it's, it's close. And so I, (unintelligible 5051). It's a tough call. It's a tough call. I guess... I'm glad all seven of us were here tonight. Yes. I think that what was presented to us and what we had to deliberate upon should (unintelligible 5072) in our focus. And I think that's where we as individuals, whether we drifted a little bit, I mean, I concur with what Vern has said. I concur with basically what David said, that, you know, you hate to see something down the road. However, what I'm looking at is the path before us. I'm not looking at the probable causes down the road. If the probable causes were here before me, things may be a little bit different. But I'm looking at what's presented before me and that's what I have to make a decision on. Alright. Are we ready for the vote? Yep. Yeah. Do you want a roll call vote? No, just do it. (Unintelligible 5168). All those in favor of the motion for denial raise their right hand. I count four. All those opposed? I -76- count three. I don't count any abstentions. The request is denied. BACKGROUND WHISPERING - UNINTELLIGIBLE 5243 I certify, under penalty of perjury of the laws of the State of Washington, that the foregoing is true and correct to the best of my ability, except for the identification of the parties which was provided by Wynetta M. Bivens. Dated this day of January, 2000. „A. Charlotte Corbley t Transcriber - 77 - ... FILE CPY City of f Tukwila 6200 Southcenter Boulevard • Tukwila, Washington 98188 January 4, 2000 Thomas E. Stanley Attorney at Law 16300 Mill Creek Blvd., Suite 105 Mill Creek, WA 98012 RE: Notice of Appeal: Planning Request for Reasonable Use Project File Number: Property Location: Appellant/Property Owner: Appellant's Address: Appellant's Telephone No: Dear Mr. Stanley: Steven M Mullet, Mayor VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Z 311 656 312 Commission's 12/9/99 Denial of J.A.K., Inc.'s Exception to Construct Home L99 -0049 (Reasonable Use Exception L99 -0091 (Appeal) E99 -0017 (SEPA Checklist) 13041 — 33`d Ave. S. J.A.K., Inc. by Jihad Keirouz 13407 — 51S` Ave. West Edmonds, WA 98026 206 -300 -6874 The Tukwila Department of Community Development has forwarded your appeal to me for scheduling of a closed record quasi-judicial public hearing before the Tukwila City Council pursuant to Tukwila Municipal Code Chapter 18.104.010 (E). Appeal processes are governed under TMC Chapter 18.116. This letter will serve as notification that a hearing has been tentatively scheduled for Tuesday, February 22, 2000 at 7 p.m. in the Tukwila City Council Chambers, 6200 Southcenter Boulevard, Tukwila, WA 98188. Phone: (206) 433 -1800 • City Hall Fax: (206) 433 -1833 Thomas E. Stanley January 4, 2000 Page 2 If you have questions regarding the appeal process, please contact Michael Jenkins, Associate Planner, at 206 -431 -3685. Sincerely, J e E. Cantu, CMC ity Clerk Cc: Jihad Keirouz, Appellant/Property Owner Mark Stefnik John Dickover Steve Lancaster, Director, DCD Michael Jenkins, Associate Planner, DCD Robert Noe, City Attorney z _�. w 2. JU, UO c v) W• w =. W a w. _•. z E- O: z t— uj ,D 0 .w w� I : U O. ui Z' z • City of Tukwila 6200 Southcenter Boulevard Tukwila, WA 98188 -2599 12 To m ru .--1 d • g 2 m _n rac Ln w rn.z 0 -a U ' E .Z U O c 1-4 1-4 0 U- m `�a id •. EEi s iV nO (i . � C O D CT Z CD Sent to Thomas E. Stanley StreptEth Offey at Law 1 conn ne; 1 1 r ,,.-j DMA SOT alms nA t n \Inn MOdIZMJelVi9PPris° N r-1 CV) CD '--1 1.25 CO N V? Postmark or Date 1/6/2000 W i U a° Certified Fee Special Delivery Fee Restricted Delivery Fee Return Receipt Showing to Whom & Date Delivered Return Receipt Showing to Whom, Date, & Addressee's Address TOTAL Postage & Fees 9661. !JdV '008£ WJod Sd I CERTIFIED 2 3'�1 b 656 312 MAIL Thomas E. Stanley Attorney at Law 16300 Mill Creek Blvd, Suite 105 Mill Creek, WA 98012 Z Z, 6 0: 0 O; CO a CO W W =i �LL 0 2 LL j- `. N � = 1-- w_ Z 1- o Z F- .0 O== :0I-.. w w E-- V: 1L0, Z'. U -- . O MEMORANDUM TO: Bob Johns FROM: Michael Jenkins DATE: January 11, 2000 RE: Keirouz timeline /issues To assist in your review of Mr. Keirouz's appeal, I have provided a timeline concerning the permit history on the subject parcel, as well as a brief discussion on some of the points raised by Mr. Stanley. TIMELINE • June 15, 1998 Jihad Keirouz (applicant) applies for a Demolition Permit (MI98 -0113) to demolish an existing Single Family Residence at 13031 — 33rd Ave S. House straddles Lots 13 and 14. Applicant provided map with application showing Tots 12, 13 and 14 as one parcel • June 19, 1998 Keirouz applies for Development Permit (D98 -0215) for a new Single Family Residence on subject property (Lot 12). Applicant also applied for a Development Permit (D98 -0216) for a new Single Family Residence on the parcel immediately adjacent to the north of Lot 12 (Lot 13). • July 17, 1998 Gary Schultz, Urban Environmentalist, visited site at request of Public Works and determined that wetland study would be required on Lot 12. August 11, 1998 Applicant notified in Correction Letter on August 11, 1998 that permit should be denied due to on -site wetland z az Ce w J U• U o• co O: W =. W0 co a �a z� �o z o III w. .z —o lllZ. • .o z. : Memorandum January 11, 2000 RE: Keirouz timeline /issues • August 24, 1998 Keirouz applies for a Development Permit (D98 -0287) for a new Single Family Residence on Lot 14, immediately to the North of Lot 13. z w CC 6 oo co 0 J = w o. a = a. I- 1 Z �. I- 0 Z1- U 0 '0 I-. w LU: -O .z w _. o ~' z • September 4, 1998 Gary Schultz sends applicant to the applicant indicating that the construction activities on Lot 13 have encroached and disturbed the wetland on the subject parcel (Lot 12) • October 14, 1998 Development Permits issued for Lot 13 and Lot 14 • May 13, 1999 Applicant applies for a Development Permit (D99 -0168) on Lot 12 • May 19, 1999 Application is determined to be incomplete, as a required wetland study is not included • June 11, 1999 Applicant submits a wetland study • June 17, 1999 Application is determined to be incomplete based on review of wetland study. Applicant is told that a Reasonable Use Exception is required before Development Permit can be reviewed. • July 6, 1999 An application for a Reasonable Use Exception is filed Memorandum January 11, 2000 RE: Keirouz timeline /issues DISCUSSION • On Page 2 of the Notice of Appeal, Mr. Stanley incorrectly indicated that the Planning Commission directed him to develop a mitigation plan. The requirement for a wetland study came from staff during review of the development permit. Mr. Keirouz later submitted a mitigation plan with his application for a Reasonable Use Exception. While Mr. Keirouz was developing a plan that had some key elements necessary for a successful outcome, the assertion that " a plan was ultimately completed which resolves the potential problems and meets the technical requirements for a Reasonable Use Exception" is inaccurate. Other than the issuance of SEPA, there had been no determination that the mitigation plan had been acceptable to staff. One key problem that the applicant has not addressed was the requirement for 1.5:1 replacement where a wetland is disturbed. The applicant must first replace the wetland on -site and then look for off -site options if on -site mitigation is not feasible. Most importantly, their had been no findings on the merits of the plan due to staff's first requirement which was to determine the applicant's eligibility for a Reasonable Use Exception in the first place. z w IX 00 y0. w= J H w0 2 u-a cn 0 a = I-w z� �0 z F-- ■ Section 2 on Page Three includes a brief discussion on the appropriateness of 2 D including the development history on Lots 13 and 14, which are adjacent to Lot 12. D 0 That history was included to underscore that Mr. Keirouz was able to derive an o c, economic return on the parcel by first segregating the parcels (through King County), w w' demolishing the existing residence and obtaining 2 development permits on each lot. 1- i Furthermore, the inclusion of the permit history was to further underscore that he z. had prior knowledge of the sensitive area, especially as it impacted the adjacent Cu c U parcels. 01' z • Mr. Stanley indicates that Lots 12, 13 and 14 are separate lots and should be reviewed independently, as the development issues on all of the parcels is not relevant to a Reasonable Use Exception. In effect, Mr. Keirouz violated the criteria evaluating Reasonable Use Exception requests in TMC 18.45.115 (4)(g) which reads: The inability to derive reasonable use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of the ordinance from which this chapter derives." Memorandum January 11, 2000 RE: Keirouz timeline /issues In effect, Mr. Keirouz violated this section by getting King County to segregate these Tots which had been joined "for tax purposes" and had historically been used as one parcel with a single use. By having the lots segregated based on their initial platting, he was able to divide the parcels that were easiest to develop first, which he did based on the timeline. By allowing the lots to be segregated to their original plat, King County allowed Mr. Keirouz to believe that he had a developable lot in Lot 12. However, Lot 12 is primarily covered by wetland and the watercourse that is the basis for the reasonable use. • Mr. Stanley assumes that existing case law cannot be applied by a jurisdiction unless it is codified into their existing ordinance. Applying this logic to SEPA, for example, a jurisdiction would not be able to apply conditions or mitigation's unless the relief is codified in the City's codes. • As part of the relief sought by Mr. Keirouz, it is indicated that a successful application was submitted and should be granted. If the appeal of the Planning Commission's denial of the Reasonable Use Exception is overturned by the City Council, a hearing must still occur on the merits of the mitigation plan submitted by Mr. Keirouz. As discussed earlier, the applicant did submit a mitigation plan and other documents to evaluate the proposal of filling the wetland and altering the watercourse. However, staff has not made any formal determination about the appropriateness of the plan. This approaches further supports staffs approach on this file, where staff first needed to determine if the applicant was eligible for a Reasonable Use Exception before a hearing on the merits of the proposal could occur. ■ Mr. Stanley indicates in his closing that if the Reasonable Use Exception is not granted, the property will be of absolutely no value. This is a fact hat is assumed and not proven. There has been no other application brought for other uses. For example, Cellular Towers are permitted uses in this zone, subject to a Conditional Use Permit. The applicant has not presented any information that he has exhausted possible uses for this property but only assumes it has no value. Hopefully this summary provides you with background to help with your review of the case and preparation of our response. If you need any additional information, feel free to contact me. REED MCCLURE A T T O R N E Y S A T L A W A PROFESSIONAL SERVICES CORPORATION TWO UNION SQUARE 601 UNION STREET, SUITE 4800 SEATTLE, WASHINGTON 98101 -3900 FAX: 206/223-0152 206/292.4900 November 22, 1999 Mr. Steve Lancaster, Director Dept. of Community Development City of Tukwila 6300 Southcenter Blvd. Tukwila, WA 98188 ;:77. C 11.5 l:o. s= 01999 IN REPLY REFER TO OUR FILE NUMBER 18555.31663 WRITER'S DIRECT LINE (206) 386 -7016 rjohns @rmlaw.com RE: Summary of Legal Standards regarding Takings and the Reasonable Use Exception Dear Mr. Lancaster: This letter is in response to your request for legal analysis of the circumstances in which the reasonable use exception to general takings law should be used in Washington and in particular as it applies to the Keirouz application. In order to provide some context for this analysis, it is important to recognize that historically a "taking" was a physical appropriation of property to the government, but that in recent years, the Courts have ruled that the "over- regulation" of the land uses can also be a taking of private property. State law defines property broadly to include not merely ownership and possession, but the rights of use, enjoyment, and disposal'. Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960). The United States and Washington State constitutions prohibit uncompensated takings of property by the City. However, this does not mean that all actions of the City which lower the value of property or limit its use require constitutional compensation. Most regulation of property is a legitimate exercise of the police power and requires no compensation under the constitution, in spite of what may be a severe negative impact in some cases on the value of the property. I should note at the outset that this analysis applies to all forms of land use regulation and to all types of uses. The rules are the same for residential,' commercial and industrial properties. The United States and Washington State Supreme Courts have defined a series of tests which a challenge to a land use regulation must meet in order for the court to determine whether a regulation creates a taking which entitles a property owner to monetary compensation or some The term "disposal" refers to the right to lease, buy or sell property. ATTACHMENT K Tfl. wv. �. a vwps nww s. mw . ..•ay.7v K•1 !�'rsic_�uu�s rl Mr. Steve Lancaster, Director November 22, 1999 Page 2 other relief. Lucas v. South Carolina Coastal Council, 504 U.S. 1003, 112 S.Ct. 2886 (1992), Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993), cert. denied, 114 S.Ct. 1216 (1994); Z z Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 111 S.Ct. 284 :i- Z (1990).2 re 6 One test for determining whether an unconstitutional taking has occurred requires a o o determination of whether a regulation denies the owner of all economically viable uses of the u) w property? If the answer is "yes ", then there is a taking which may require that the agency pay J 1 compensation to a property owner.3 In the event that a potential taking occurs under the "total w o LL taking" test, the "reasonable use exception" exists as a mechanism for providing relief to the property owner and avoiding the necessity of paying compensation. g u. Q There are several important aspects to the "total taking" issue which should be examined in any z w case where there is a request for a reasonable use exception. First, the fact that most of the z = 1._ value of a parcel of property has been eliminated does not mean there is no economically viable z o use. Second, the analysis must consider the circumstances in which the property was acquired w w and the natural restrictions on the use of the property. As a result, the analysis is very specific D o to the factual circumstances of each case. Several examples may be helpful. In Maple Leaf o Investors, Inc. v. State Dep't of Ecology, 88 Wn.2d 726, 565 P.2d 1162 (1977), the court upheld 0 F- a regulation which prevented construction of homes within a floodway because other i i al structures, including some agricultural and commercial uses, could be developed on about u �. thirty percent of the plaintiff's property. The court also noted: w z UN [I]t was not the State which placed appellant's property in the path of floods. o I. Nature has placed it where it is, and if [the State] had done nothing with respect to z flood -plain zoning, the property would still be subject to the physical realities." 88 Wn.2d at 734. On the other hand, in Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 733 P.2d 182 (1987), the court determined that a downzone from industrial to agricultural deprived the landowner of all economically viable use of its property and resulted in a taking. The city argued that even though the parcel was purchased when it had industrial zoning and was subsequently downzoned to "agriculture ", it had not been deprived of all economically viable use because in theory it could be used for a blueberry farm, a raspberry farm, or a horse farm. In the absence of evidence that there was a viable market for such uses or that the owner /developer could put the property to such uses, the court rejected the city's contentions. By contrast to the Maple Leaf Investors case, there was no argument in Valley View that natural conditions made the property unsuitable for any use other than agricultural operations. 2 Only some aspects of these tests apply to cases involve the-reasonable use exception and I will not go into those issues in this letter. 3 There are some exceptions to this rule, but they are not relevant to the reasonable use exception situation you have raised. • .vrr. ��.• wµwsnuer +l+ta+.kll'�!:t'- "� #.!f'�S�fy Mr. Steve Lancaster, Director November 22, 1999 Page 3 One issue arises frequently concerning the economically viable use test and it is the principal issue affecting Mr. Keirouz's application: how to define the size of the parcel to be considered when measuring whether all productive use has been denied. In Presbytery of Seattle v. King = w County, 114 Wn.2d 320, 787 P.2d 907 (1989), the Supreme Court specifically held that a C4 Wm property could not be divided into pieces for purposes of claiming a reasonable use exception 0 -J on only a fraction of an owner's property. Thus, the inquiry does not focus upon a portion of a co o regulated property. Instead, a regulation's economic impact is to be determined by looking at w w LIJ J = uses that can be made of the entire property. See also, Orion 11, 109 Wn.2d 621, 664, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1996. This is consistent with Maple Leaf w 0 Investors, in which the court held that the State could completely prohibit all use of about 70% 2 of a site, so long as the uses permitted on the remaining 30% made the total property economically viable. In the case you are presently examining, a property owner purchased _ cn a three adjacent 'inbuilt lots in a situation where he knew or should have known that the lots were ��. w severely impacted by wetlands and wetland restrictions. The owner in such a case does not z need to be given a reasonable use exception to build on all of the lots so long as he is able to z o achieve an economically viable use of at least some portion of the total property. o The net result of these decisions can be summarized with a few basic principles: p (1), oF- • A government agency cannot restrict property to the point that there are no viable economic v uses. u. ra- z • When analyzing a total takings claim, the agency must consider all of the property held by c0i N • an owner. As a practical example of the application of this rule, consider a situation in o I- which a property contains five potential lots, but one is completely covered by regulated Z wetlands: The owner is not permitted to build and sell the first four lots and then 'claim a taking because the last lot is a wetland. In such a case, the owner was able to obtain a viable economic use of the property as a whole. • When analyzing whether an economically viable use exists, a site specific analysis must occur, and the agency .. may consider natural limitations on the use of the property. A property owner cannot purchase property which has very little value due to natural limitations and then expect the government to compensate for the fact that the property cannot be developed as fully as one might otherwise wish. In other words, whether a use is economically viable depends on the individual circumstances. • In determining whether a potential use is economically viable, the circumstances under which the property was acquired may be important. If an owner purchased property for a very low price because pre - existing regulations or natural conditions made the property difficult to develop, the level of use which must be permitted to allow an economically viable use may be much lower than for a property which was purchased for a large sum because it was readily developable but which was subsequently subjected to new restrictions. The Valley View case illustrates this principle. In that case the owners bought industrial land at industrial prices and were then subjected to a downzone to very limited agricultural uses. There, the intensity of use needed to achieve economic viability was .. .S$T!C1!.In. W.+rwam —ta • mere s..........._.,..w+.•mm..+!•+b .• ha'.!+' wqw. Vr. iCeMMf�Y +Y••.+t�ir,.'^.I•.'H'. +j n- �n......,...... -,. .n,u . ... e«yY.ryY,v:«�is!z4r..:y:t,j;; ,4, Mr. Steve Lancaster, Director November 22, 1999 Page 4 substantially higher than it would be in a case where natural conditions made more intensive uses impractical. In summary, in the circumstances of the Keirouz application, I do not believe that it is necessary to approve a reasonable use exception. I trust this letter has addressed the questions which you have in this case. As I mentioned, there are many other aspects to the complex law related to takings. If there are other questions or you would like to discuss any aspect of this analysis either in general or as applied to a specific case, please call me. Very truly yours, REED McCLURE Robert D. ohns RDJ:rdj Fry. Schulz - Re: Americon, Inc (Looney- prop.) D99 -0225 . Page 1,; From: Jim Morrow To: Gary Schulz Date: 11/2/99 11:16AM Subject: Re: Americon, Inc (Looney Prop.) D99 -0225 Since the violation concerns Mr Looney, then the restoration for areas that are within the City's ROW, etc, and not part of the Americon permit should be addressed separately. Americon has submitted a plan for restoring the wetland within his property. Jim »> Gary Schulz 11/02/99 11:05AM »> Jim and Joanna, I cannot approve the Wetland Restoration Plan until the DCD Director reviews the plan. I would like to see this resolved soon but there was clearing in the City ROW and offsite to the east. This is not being addressed within the submitted plan. Gary <Z CC w U; UO; fop: w= J i w Os LL a co d I— W. _. Z Z • uj • U pf pF_ W w' Z' LU u), =‘, Z City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director October 7, 1999 Mr. Jihad Keirouz 13407 51st Avenue W. Edmonds, WA 98026 Re: Reasonable Use Exception #L99 -0049: Sensitive Area Code Standards. 13031 33rd Avenue S. Dear Mr. Keirouz: After our meeting on 9/29/99 I decided I would give you my comments in writing. I helped coordinate the letter Michael Jenkins provided to you. dated 9/22/99. However, I need to repeat some points that are important to your Exception application. My recommendations will not guarantee approval of your Exception application. The final decision is determined by the City Planning Commission. First, as I stated in an earlier letter to you (5/25/99), the watercourse should be preserved as an open channel. If this is not possible then it needs to be technically evaluated by an engineer. The existing grade change along your south property boundary does not seem to limit the potential for an open drainage channel. It seems likely that a retaining wall will be necessary due to the change in elevation. Second, development of sensitive areas may be allowed which is consistent with the general purposes of the Sensitive Areas Ordinance and the public interest. Please note the criteria listed in TMC Section 18.45.115 C. 4. I have attached a copy of this portion of the code. Third, the mitigation plan (J.S. Jones & Associates 6/29/99) you have submitted is reasonable in its proposed enhancement of existing wetland and watercourse drainage. However, the site plan and mitigation do not equally replace open watercourse channel, wetland area, and the trees that were removed from the west portion of the Lot #12. These are comments that were not adequately explained to you at the meeting.- If you or your wetland expert have questions, you may call me at 206 - 431 -3662. Sincergly, C. Gary S' ulz f1 ..Cc: Steve Lancaster, DCD Director Urban Environmentalist Michael. Jenkins, Associate Planner 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431 -3670 • Fax (206) 431-3665 City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director September 22, 1999 Jihad Keirouz JAK, Inc. 13407 — 51St Ave W. Edmonds, WA 98062 Re: Reasonable Use Exception, 13031 — 33rd Ave S. (L99 -0049, E99 -0017) Dear Jihad: Your application for a Reasonable Use Exception to construction a Single Family Residence, as referenced, was determined to be complete on September 10, 1999. While we were able to determine your application complete, there are a number of outstanding substantive issues that have not been fully addressed. As indicated in the August 2, 1999 Notice of Incomplete Application, we requested that you provide a conceptual drainage plan designed to meet King County Surface Water Design Manual (KCSWM) requirements, specifically those related to Small Site Drainage Review and Targeted Drainage Review requirements, Category 1, from said manual. Accordingly,.a Grading and Drainage Plan was submitted on September 1, 1999, along with other materials in response to the August 2, letter. On review of the Public Works Department, Core Requirements #2, 3, 4 and 6 from the Small Site Review were not adequately addressed in your recent submittal. This review must include: • An on site flow analysis and . supporting calculations • An offsite analysis including a Level One downstream analysis • Indications on how water will be controlled during construction • How the proposed system will be maintained after construction. To assist you, copies of the pertinent sections from the referenced manual are attached. The following is a review of additional information that must be submitted to continue our review: • You submitted a Mitigation Plan with your initial application that is not consistent with the materials from your September 1 submittal. Specifically, the Mitigation Plan appears to call for open stream and outfall area while the later materials call for the entire watercourse to be piped. The technical basis for the piping is also not well explained in either the Geotechnical Report or in the plans provided. This must be corrected. 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431 -3670 • Fax. (206) 431-3665 September 22, 1999 Jihad Keirouz Re: L99 -0049 / E99 -0017, 13033 — 33`d Ave S. • On review of the Geotechnical Report, there is a significant lack of detail regarding the potential construction in relation to the existing watercourse. For example, there does not appear to be any recommendations regarding mitigation of existing or potential surface /ground water during construction. The report must include, at a minimum, an explanation of how this situation will be addressed. • Staff visited the site in July, 1999 regarding an issue concerning the properties immediately to the west that abut your property. At that time, staff noted that the neighboring site was cleared. At that time, we noticed that the Red Alder and Cottonwood listed on the Mitigation Plan did not appear to be on your property, although the plan calls for their retention. This discrepancy should be further explained. If these features were not on your property, they should be removed from the plans. • In your September 1 submittal you provided a Grading and Drainage Plan, Erosion and Sediment Control Plan and a Survey. Please provide an 8 ' /z" x 11" reduction for each of the plans you submitted on September 1. These reductions are used for archival purposes. Finally, staff has some concerns over the overall validity of your application. Your application for a Reasonable Use Exception is to seek relief from requirements of the Sensitive Areas Ordinance (TMC 18.45) in order to allow you to alter an existing watercourse and fill a related wetland covering a significant portion of the property. Since it appears that you obtained the property after the adoption of TMC 18.45 and had previous knowledge of the drainage problems related to the site as a whole, including the two adjacent lots that you purchased and have developed, you may not be eligible for a Reasonable Use Exception. It is our intent to take this application to a hearing before the Planning Commission. Before this can be taken to a hearing, the issues detailed in this letter must be resolved and additional plans submitted in their entirety. In addition, we feel it is necessary to discuss our potential recommendation to the Planning Commission. We would like to schedule a meeting with you to discuss this matter more fully. Please contact me at (206) 431 -3685 to set up a meeting. We would like to meet as soon as possible, preferably the week of September 27, 1999. Under TMC 18.104.130, the City of Tukwila has 120 days from "the time the applicant is notified the application is complete" to issue a permit. Under subsection 1, this time period may be put on hold when additional studies or information is required to conduct a substantive review. Accordingly, the 120 day review period is stopped until the additional information requested in this letter is received and reviewed for completeness. Sincerely, Michael Jenkins Associate Planner i.Eiiacwria'4rSN.i+.-9�b. :`.',httY.?x 34 - ?/ " }, (206) 386 -7016 rjohns @rmlaw.com November 22, 1999 Mr. Steve Lancaster, Director Dept. of Community Development City of Tukwila 6300 Southcenter Blvd. Tukwila, WA 98188 RE: Summary of Legal Standards regarding Takings and the Reasonable Use Exception Dear Mr. Lancaster: z F Z re 6 2 J U: 0 J = w 1 ¢. w' z �. o z i-- g rn.. ww This letter is in response to your request for legal analysis of the circumstances in which the reasonable use exception to general takings law should be used in Washington and in particular - O as it applies to the Keirouz application. ui z; U= O~ z In order to provide some context for this analysis, it is important to recognize that historically a "taking" was a physical appropriation of property to the government, but that in recent years, the Courts have ruled that the "over- regulation" of the land uses can also be a taking of private property. State law defines property broadly to include not merely ownership and possession, but the rights of use, enjoyment, and disposal'. Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960). The United States and Washington State constitutions prohibit uncompensated takings of property by the City. However, this does not mean that all actions of the City which lower the value of property or limit its use require constitutional compensation. Most regulation of property is a legitimate exercise of the police power and requires no compensation under the constitution, in spite of what may be a severe negative impact in some cases on the value of the property. I should note at the outset that this analysis applies to all forms of land use regulation and to all types of uses. The rules are the same for residential, commercial and industrial properties. The United States and Washington State Supreme Courts have defined a series of tests which a challenge to a land use regulation must meet in order for the court to determine whether a regulation creates a taking which entitles a property owner to monetary compensation or some 1 The term "disposal" refers to the right to lease, buy or sell property. ancaster, Director 2, City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director elief. Lucas v. South Carolina Coastal Council, 504 U.S. 1003, 112 S.Ct. 2886 (1992), Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993), cert. denied, 114 S.Ct. 1216 (1994); Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 111 S.Ct. 284 (1990).2 One test for determining whether an unconstitutional taking has occurred requires a determination of whether a regulation denies the owner of all economically viable uses of the property? If the answer is "yes ", then there is a taking which may require that the agency pay compensation to a property owner.3 In the event that a potential taking occurs under the "total taking" test, the "reasonable use exception" exists as a mechanism for providing relief to the property owner and avoiding the necessity of paying compensation. There are several important aspects to the "total taking" issue which should be examined in any case where there is a request for a reasonable use exception. First, the fact that most of the value of a parcel of property has been eliminated does not mean there is no economically viable use. Second, the analysis must consider the circumstances in which the property was acquired and the natural restrictions on the use of the property. As a result, the analysis is very specific to the factual circumstances of each case. Several examples may be helpful. In Maple Leaf Investors, Inc. v. State Dep't of Ecology, 88 Wn.2d 726, 565 P.2d 1162 (1977), the court upheld a regulation which prevented construction of homes within a floodway because other structures, including some agricultural and commercial uses, could be developed on about thirty percent of the plaintiff's property. The court also noted: [I]t was not the State which placed appellant's property in the path of floods. Nature has placed it where it is, and if [the State] had done nothing with respect to flood -plain zoning, the property would still be subject to the physical realities." 88 Wn.2d at 734. On the other hand, in Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 733 P.2d 182 (1987), the court determined that a downzone from industrial to agricultural deprived the landowner of all economically viable use of its property and resulted in a taking. The city argued that even though the parcel was purchased when it had industrial zoning and was subsequently downzoned to "agriculture ", it had not been deprived of all economically viable use because in theory it could be used for a blueberry farm, a raspberry farm, or a horse farm. In the absence of evidence that there was a viable market for such uses or that the owner /developer could put the property to such uses, the court rejected the city's contentions. By contrast to the Maple Leaf Investors case, there was no argument in Valley View that natural conditions made the property unsuitable for any use other than agricultural operations. 2 Only some aspects of these tests apply to cases involve the reasonable use exception and I will not go into those issues in this letter. 3 There are some exceptions to this rule, but they are not relevant to the reasonable use exception situation you have raised. 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 ancaster, Director 2, �y of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director sue arises frequently concerning the economically viable use test and it is the principal issue affecting Mr. Keirouz's application: how to define the size of the parcel to be considered when measuring whether all productive use has been denied. In Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907 (1989), the Supreme Court specifically held that a property could not be divided into pieces for purposes of claiming a reasonable use exception on only a fraction of an owner's property. Thus, the inquiry does not focus upon a portion of a regulated property. Instead, a regulation's economic impact is to be determined by looking at uses that can be made of the entire property. See also, Orion II, 109 Wn.2d 621, 664, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1996. This is consistent with Maple Leaf Investors, in which the court held that the State could completely prohibit all use of about 70% of a site, so long as the uses permitted on the remaining 30% made the total property economically viable. In the case you are presently examining, a property owner purchased three adjacent unbuilt lots with a clear understanding that the lots were severely impacted by wetlands and wetland restrictions. The owner in such a case does not need to be given a reasonable use exception to build on all of the lots so long as he is able to achieve an economically viable use of at least some portion of the total property. The net result of these decisions can be summarized with a few basic principles: z a • w re 00 CO CI CO J U)O w co J zd I_ w z z o, • U• O 'O (22 ; O I- • A government agency cannot restrict property to the point that there are no viable economic = w F- tL ~O z • When analyzing a total takings claim, the agency must consider all of the property held by 0 u). an owner. As a practical example of the application of this rule, consider a situation in 0 I which a property contains five potential lots, but one is completely covered by regulated z wetlands: The owner is not permitted to build and sell the first four lots and then claim a taking because the last lot is a wetland. In such a case, the owner was able to obtain a viable economic use of the property as a whole. uses. • When analyzing whether an economically viable use exists, a site specific analysis must occur, and the agency may consider natural limitations on the use of the property. A property owner cannot purchase property which has very little value due to natural limitations and then expect the government to compensate for the fact that the property cannot be developed as fully as one might otherwise wish. In other words, whether a use is economically viable depends on the individual circumstances. • In determining whether a potential use is economically viable, the circumstances under which the property was acquired may be important. If an owner purchased property for a very low price because pre- existing regulations or natural conditions made the property difficult to develop, the level of use which must be permitted to allow an economically viable use may be much lower than for a property which was purchased for a large sum because it was readily developable but which was subsequently subjected to new restrictions. The Valley View case illustrates this principle. In that case the owners bought industrial land at industrial prices and were then subjected to a downzone to very limited agricultural uses. There, the intensity of use needed to achieve economic viability was 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 ancaster, Director 2, city of Tukwila Department of Community Development John W Rants, Mayor Steve Lancaster, Director stantially higher than it would be in a case where natural conditions made more intensive uses impractical. I trust this letter has addressed the questions which you have in this case. As I mentioned, there are many other aspects to the complex law related to takings. If there are other questions or you would like to discuss any aspect of this analysis either in general or as applied to a specific case, please call me. Very truly yours, • REED McCLURE Robert D. Johns RDJ:rdj 63ffStfiMPfter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 z. J U; O O. co J H W • O' 2 gJ' u_a; d z �. moo'. z �- W W; M o' U ON io W W' H V, O • Z (1); U ; O ▪ H' TUKWILA BUILDING DIVISION PLAN REVIEW COMMENTS DATE: September 11, 1998 PROJECT NAME: Keirouz residence PLAN CHECK NO: D98 -0216 PLAN REVIEWER: Contact Bob Benedicto at (206) 431 -3670 if you have questions regarding the following comments. 1. The foundation design that was submitted with this application was based upon an assumed allowable soil bearing pressure of 2000 p.s.f. The building code permits the design of foundations for stud bearing walls to be in accordance with U.B.C. Table 18 -1 -C provided that the design loads for continuous footings have a load of less than 2000 pounds per lineal foot and isolated footings have design loads of less than 50,000 pounds and the foundations is on nonexpansive soil. Re: U.B.C. 1805. The current site conditions indicate that the soil on this lot may be of organic clays and perhaps an expansive soils condition. In addition, there is an active spring to the West side of the lot that is pumping water over the proposed building footprint. Based upon this new information regarding the site conditions, we are not permitted by code to approve the prescriptive foundation design, as submitted, without additional information. Provide a geotechnical report prepared by a professional engineer. The report should. include recommendations for foundation type and design criteria, including bearing capacity, provisions to mitigate the effects of expansive soils (if found) and provisions to drain the spring water from around and under the proposed building. A revised foundation plan' and detail's may be required based upon the findings of the geotechnical report. End. Initial plan review comments. ATTACHMENT 1 m,MA K+ Yra B r A, City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director September 10, 1999 Jihad Keirouz JAK Incorporated 13407 — 51st Ave West Edmonds, WA 98062 • NOTICE OF COMPLETE APPLICATION RE: Application for a Reasonable Use Exception, 13031 — 33rd Ave S. (L99 -0049, E99 -0017) Dear Jihad: Your application for a Reasonable Use Exception to construct a Single Family Residence at 13031 — 33rd Ave S. has found to be complete on September 10, 1999 for the purposes of meeting state mandated time requirements. The project has been assigned to me and is tentatively scheduled for a public hearing before the Planning Commission on October 28, 1999. The next step is for you to install the notice board on the site within 14 days of the date of this letter. The sign should be posted in a location that is easily accessible to people using the site. You received information on how to install the sign with your application packet. If you need another set of those instructions, you may obtain them at the Department of Community Development (DCD). Also, you must obtain a laminated copy of the Notice of Application to post on the board. This notice is also available at DCD. After installing the sign with the laminated notice, you need to return the signed Affidavit of Posting to our office. This determination of complete application does not preclude the ability of the City to require that you submit additional plans or information, if in our estimation such information is necessary to ensure the project meets the substantive requirements of the City or to complete the review process. Based upon your submittals, a follow up letter detailing specific concerns about your proposal will be sent within the next week. I will be contacting you soon to discuss this project. If you wish to speak to me sooner, feel free to call me at 206 - 431 -3685. Sincerely, Michael Jenkins Associate Planner cc: Reviewing City Departments Lance Erickson, J.S. Jones 6300 Southcenter Boulevard Suite #100 • Tukwila, Washington 98188 • (206). 431 -3670 • Fax (206) 431-3665 City of Tukwila John W Rants, Mayor Department of Community Development Steve Lancaster, Director MEMORANDUM TO: Gary Shultz FROM: Michael Jenkins DATE: September 10, 1999 RE: Reasonable Use Exception — Jihad Keirouz (L99 -0049) We determined Jihad's application complete today. Now that the application is complete, Public Works has provided me with initial comments concerning the content of the Drainage Plan. Apparently, the plan does not meet the requirements of the King County Surface Water Design Manual and must be revised. In conjunction with this, we must also have a definitive statement of the type of Watercourse and Wetland that is on the subject property. The watercourse and wetland is not indicated on our sensitive area map, and presumably, in the supporting studies. Accordingly, I need to have the wetland and watercourse rated for this application. The case is tentatively scheduled for a hearing on October 28, 1999. Depending on when the materials are revised to meet Public Works concerns, this date may be changed to November or December. However, the rating of the property should occur as soon as possible. I will be out of the office on Sept 13 and 14. We should talk after that date 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 :z Wiz; e :, 6_ • J U . -U O; N w =: w u, Q. 09/10/99 16:41 FAX 206 223 0152_ Reed McClure B @j002 /013 REED MCCLURE A T T O R N E Y S A T L A W A PROFESSIONAL SERVICES CORPORATION TWO UNION SQUARE 601 UNION STREET, SUITE 4e00 SEATTLE, WASHINGTON 901013900 FAX: 206/223 -0152 206/292 -1900 September 9, 1999 IN REPLY REFER TO OUR FILE NUMBER WRITER'S DIRECT LINE (206) 386 -7016 rjohns@ITniaw.com z W oQQ:2. JU 00 co cnw 1 H w 0. Mr. Steve Lancaster, Director g Dept. of Community Development c City of Tukwila = w 6300 Southcenter Blvd. z Tukwila, WA 98188 E- O z�-: LIJ RE: Summary of Legal Standards regarding Takings and the Reasonable Use Exception 2 o O (12: o ww This letter is in response to your request for legal analysis of the circumstances in which the 2. reasonable use exception to general takings law should be used in Washington. In order to u- O understand when the exception may be applied, it is critical to understand when a "taking of ui z private property" can occur. As you undoubtedly appreciate, this area of the law is somewhat o confusing and the "standard?' adopted by both state and federal courts are not very precise. z 1- Dear Mr. Lancaster: In order to provide some context for this analysis, it is important to ,recognize that historically a "taking" was a physical appropriation of property to the government, but that in recent years, the Courts have ruled that the "over- regulation" of the land uses can also be a ts+king of private property. State law defines property broadly to include not merely, ownership and possession, but the rights of use, enjoyment, and disposal'. Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960). The United States and Washington State constitutions prohibit uncompensated takings of property by the City. However, this does not mean that all actions of the City which lower the value of property or limit its use require constitutional compensation. Most regulation of property is a legitimate exercise of the police power and requires no compensation under the constitution, in spite of what may be a severe negative impact in some cases on the value of the property. There are two different ways in which takings analysis can apply to land use regulations. The first is when a general regulation, such as a zoning code or critical areas ordinance, is applied to property. The other, which is analyzed differently, applies only when site specific discretionary conditions are imposed on a development project as part of a permit; process. 1 The term "disposal" refers to the right to lease, buy or sell property. ..? cL. SS. S• �i52tiyiY.; i' C' irSatti4i3zZ. 11k": .'.tru:n:ix.�v1�:4Ar`4d'.�.:t'. . , ,- . 09/10/99 16:42 FAX 206 223 015a. Reed McClure B Mr. Steve Lancaster, Director September 9, 1999 Page 2 2 003/013 I should note at the outset that this analysis applies to all forms of land use regulation and it all types of uses. The rules are the same for residential, commercial and industrial properties. Taking Anal sis When A General Re lation Is Involved. . The United States and Washington State Supreme Courts have defined a series of tests which a challenge to a land use regulation must meet in order for the court to determine whether a regulation creates a taking which entitles a property owner to monetary compensation or some other relief. Lucas v. South Carolina Coastal Council, 504 U.S. 1003, 112 S.Ct. 2886 (1992), Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993), cert. denied, 114 S.Ct. 1216 (1994); Presbytery of Seattle v King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 111 S.Ct. 284 (1990). Step One: Does the regulation permit a physical invasion of property? The Washington Supreme Court has divided the potential situations in which a taking may occur into three categories: (1) those traditional cases which involve a "physical invasion" of private property by the government, (2) "total takings" in which over- regulation of the property leaves the owner with no reasonable use of the property, and (3) "partial takings" in which the owner has some reasonable use of the property but the impact of the regulation on the property owner outweighs the public benefit created by the regulation_2 The clearest forms of taking is a "physical invasion ", which occurs when the government requires an owner to permit the public to use some portion of their property, prohibits an owner's access to their property,3 or otherwise denies an owner the exclusive possession of their property. Typical examples would be those cases in which a government agency constructs a public utility line or a road across private property without an easement or right-of-way. More recently, courts have ruled that taking by physical invasion may occur if a Iocal government constructs a storm water system which damages private property by increasing the flow of stormwater onto that property. Phillips v. Lozier Homes, 136 Wn.2d 946 (1998). If a taking by physical invasion occurs, compensation is required. 2 Many of the court decisions describe a taking in terms of interference with a "fundamental attribute of property ownership." The fundamental attributes of ownership include the right to possess, to exclude others, to dispose of property, prevent physical invasion, or make some economically viable use of the property. If a governmental action does not interfere with one or more fundamental attributes of ownership, it cannot be a taking under any circumstance. However, this particular issue is not particularly helpful when examining land use regulations, since by their nature, most land use regulations somehow limit the ability to use property. 3 A taking by denial of access occurs most commonly when the government constructs a limited access highway and cuts off the only access to someone's property. 09/10/99 16:42 FAX 206 223 0152 Reed McClure B Mr. Steve Lancaster, Director September 9, 1999 Page 3 [21004 /013 Most land use regulations, on their face4, however, do not permit the actual physical invasion of private property by the public, do not prohibit access to private property, and do not otherwise impede the ability of a property owner to possess his property and exclude others. More typically, land use regulations limit the ability of an owner to use their own property in some manner. The Courts have separated such regulations into two groups: those which result in a total denial of all economically beneficial use of a property, which is described by the Courts as a "total taking", and those which interfere with some uses of property but do not deny the owner all economically beneficial use. The latter group of regulations may or may not create a taking, depending on further analysis, described below. Step Two: Does the regulation deprive the owner of all economically viable use of the property? The second step in the analysis is to determine whether a regulation denies the owner all economically viable uses of the property? If the answer is "yes ", then there is a taking requiring compensation, subject to one exception discussed below as the third step of the analysis. In the event that a potential taking occurs under the "total taking" test, the "reasonable use exception" exists as a mechanism for providing relief to the property owner and avoiding the necessity of paying compensation. Notably, the economically viable use test does not require that property be rendered valueless. Lucas v. South Carolina Coastal Council, 504 U.S. 1003, 112 S.Ct. 2886 at 2908, 2919 (1992). The focus is not on the absolute value of the regulated parcel, but rather on whether any "beneficial or productive use" can be made of the parcel. Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1996 (1988)(Orion II). It is also important to recognize that in Guimont, the court ruled that whether a "total taking" has occurred depends on whether a property owner has been deprived of a all economically viable use of their property and not on the legitimacy of the state's interest or whether the purpose of the regulation is an appropriate subject of government control. In other words, even if the regulation has a very strong and legitimate public purpose, a taking occurs if it deprives the owner of all economically viable uses of their property. There are several important aspects to the "total taking" issue which should be examined. First, the fact that most of the value of a parcel of property has been eliminated does not mean there is no economically viable use. Second, the analysis must consider the circumstances in which the property was acquired and the natural restrictions on the use of the property. As a result, the analysis is very specific to the factual circumstances of each case. Several examples may be helpful. In Maple Leaf Investors, Inc. v. State Dep't of Ecology, 88 Wn.2d 726, 565 P.2d 1162 (1977), the court upheld a regulation which prevented construction of homes within a floodway because other structures, including some agricultural and commercial uses, could be 4 As noted above, the situation m which a specific permit condition, as opposed to a general land use regulation, requires dedication of open space, construction of public roads or trails, and otherwise requires a developer to allow public use or access to some portion of his or her property is analyzed differently and is discussed at p. 7 of this letter. `,'S'�f✓3ff:1°w^!r2M.i 09/10/99 16:43 FAX 206 223 0152. Reed McClure B Mr. Steve Lancaster, Director September 9, 1999 Page 4 2005/013 developed on about thirty percent of the plaintiff's property. The court also noted "[I]t was not the State which placed appellant's property in the path of floods. Nature has placed it where it is, and if [the State] had done nothing with respect to flood -plain zoning, the property would still be subject to the physical realities." 88 Wn.2d at 734. On the other hand, in Valley View Indus. Park v. City of Redmond; 107 Wn.2d 621, :733 P.2d 182 (1987), the court determined that a downzone from industrial to agricultural deprived the landowner of all economically viable use of its property and resulted in a taking. The city argued that even though the parcel was purchased when it had industrial zoning' and was subsequently downzoned to "agriculture ", it had not been deprived of all economically viable use because in theory it could be used for a blueberry farm, a raspberry farm, or a horse farm. In the absence of evidence that there was a viable market for such uses or; that the owner /developer could put the property to such uses, the court rejected the city's contentions. By contrast to the Maple Leaf Investors case, there was no argument in Valley View that natural conditions made the property unsuitable for any use other than agricultural operations) In Allingham v. City of Seattle, 109 Wn.2d 947, 749 P.2d 160 (1988), the court inv dated the city of Seattle's greenbelt ordinance, which essentially denied all use of 70 per t of each parcel subject to certain steep slope regulations. The city argued that property subject to its greenbelt ordinance had not been deprived of all economically viable use because " theory a house with a 900 square foot footprint for impervious surfaces could be built on ea lot. The plaintiffs proved that in the neighborhoods affected by the ordinance there was o viable market for such houses. Based on that showing, the trial court found that the ordinance deprived the properties of all viable economic use. At first blush, the Allingham d l sion may appear to ignore the natural conditions of the property (steep slopes) and requires City to compensate an owner for a limitation on use of property that results from a naturalcondition rather than a regulation. However, the Court noted that it was possible to safely bi4.ld on the slopes with proper engineering. By failing to allow property owners an opportunit,to design and construct housing with such engineering, the City was depriving the owners of the only economically viable use allowed by the underlying zoning. One issue arises frequently concerning the economically viable use test: how to define the size of the parcel to be considered when measuring whether all productive use has been denied. In Allingham, the court used broad language which appears to permit a division of property into segments so that a taking would occur any time one segment of a property was left with no viable economic use. This part of the court's holding was later clarified in Presbytery, which held that property would not be divided into pieces for purposes of takings analysis. the inquiry does not focus upon a portion of a regulated property. Instead, a regulation's economic impact is to be determined by looking at uses that can be made of the entire; property. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907; Orion II, 109 wn.2d 621, 664, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1996. This is4onsistent with Maple Leaf Investors, in which the court held that the State could completely ohibit all use of about 70% of a site, so long as the uses permitted on the remaining 30% mad the total property economically viable. In this type of case, it is important to distinguis between regulations which protect environmentally sensitive areas (Le., wetlands and strews), where '11Wmz9:°_!Y:,L:9:5c,srt? 09/10/99 16:43 FAX 206 223 01$9 Reed McClure B Z006/013 Mr. Steve Lancaster, Director September 9, 1999 Page 5 there are important reasons to protect natural features from those situations in which development of hazard areas (steep slopes and landslide areas) with proper engineering and construction techniques can eliminate the hazard. The net result of these decisions can be summarized with a few basic principles: • A government•agency cannot restrict property to the point that there are no viable economic uses. • When analyzing a total takings claim, the agency must consider all of the prop held by an owner. As a practical example of the application of this rule, consider a si tion in which a property contains five potential lots, but one is completely covered by gulated wetlands: The owner is not permitted to build and sell the first four lots and th claim a taking because the last lot is a wetland. In such a case, the owner was able t obtain a viable economic use of the property as a whole. • When analyzing whether an economically viable use exists, a site specific anal sis must occur, and the agency may consider natural limitations on the use of the prop rty. A property owner cannot purchase property which has very little value due natural limitations and then expect the government to compensate for the fact that th property cannot be developed as fully as one might otherwise wish. In other words, wheth r a use is economically viable depends on the individual circumstances. • In determining whether a potential use is economically viable, the circumstances under which the property was acquired may be important. If an owner purchased property for a very low price because pre - existing regulations or natural conditions made the property difficult to develop, the level of use which must be permitted to allow an economically viable use may be much lower than for a property which was purchased for a large sum because it was readily developable but which was subsequently subjected, to new restrictions. The Valley View case illustrates this principle. In that case the owners bought industrial land at industrial prices and were then subjected to a downzone to very limited agricultural uses. There, the intensity of use needed to achieve economic viability was substantially higher than it would be in a case where natural conditions made more intensive uses impractical. does deprive a roe owner of all ecop omicall If a determination is made that a regulation p p p rty � Y viable use of the property, monetary compensation is required unless either (I) the agency grants a reasonable use exception, or (2) the proposed use would have been barred by the common law of nuisance. The latter issue is addressed as the .third step of the analysis, described below. If a regulation does not deprive an owner of all economically viable uses, of a property, the regulation must still be evaluated to determine if it is a "partial taking ", which requires an analysis of the public benefit of the regulation and the burden it creates on private property. This issue is examined as the fourth and fifth steps of the analysis, below. ,09/10/99 16:44 FAX 206 223 015' Mr. Steve Lancaster, Director September 9, 1999 Page 6 Reed McClure B Q007/013 Step Three: Is the proposed nse of property a common law nuisance? As noted above, there is one exception to the rule that the denial of all economically viable uses of property is a taking. Even if the owner demonstrates that a :regulation would deny all reasonable use of his or her property, the public body has the opportunity to rebut the taking claim by identifying common law principles of nuisance and property law that would prohibit the use the landowner intends. See Lucas v. South Carolina Coastal Council, 504 U.S. 1003, 112 S.Ct. 2886 (1992). Where the owner's title is itself limited by background principles of property law that otherwise prevent the owner from engaging in a particular use, such use can be prohibited by a government without providing compensation. In, other words, compensation is not due when a pre - existing limitation upon the landowner's title would prevent the owner from engaging in the proposed use. What is or is not considered a nuisance under the common law is a complicated issue, but the bottom line is that a property owner is not entitled to use property in a manner that creates an unreasonable health or safety risk to other people or other property. The factors cited in Lucas for determining what constitutes a nuisance include, among other things- (1) the degree of harn to other lands that would result from the proposed activity, (2) the social value of the activity and its suitability to locality, and (3) the relative ease by which harm could be avoided. Activities that have been determined to be nuisances include such things as emitting large quantities of dust or other airborne pollutants, use of explosives in a manner which threatened damage to other property, emission of noxious fumes, disposal of chemicals into water bodies rendering them unsafe, uncontrolled airport noise, and flooding adjacent properties.5 It is not possible to make a complete List of possible nuisances, but for our purposes it is sufficient to know that if a government regulation restricts an activity that would be considered a common law nuisance, no taking can occur.6 If you encounter a situation which you believe may involve this issue, I urge you to consult the City Attorney for a case specific evaluation of the situation. Step Four: Is the regulation a valid exercise of the police power? Assuming that the court determines that a regulation does not result in a "physical invasion" or denial of all economically viable use of the property, the courts apply another test: whether the 5 Note that in each case, the adverse impacts of the activity occur outside the boundaries of the property. The mere occurrence of adverse impacts outside property boundaries does not mean a nuisance exists, but the absence of such impacts means there is no nuisance. 6 The Court in Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1996 (1988), also held that activities that would be barred by the public trust doctrine are not fundamental rights of ownership and cannot be takings. In Orion, an owner wanted to dredge and 011 certain tidelands. The Court held that since filling of the tidelands was barred by the public mist doctrine, the owners of the underlying property did not have an ownership interest which was adversely affected by a regulation which also barmed such filling .. w: n��q"+ u+ �MOr.�.tttaritxM.�?1�,:,Q.nF9Y: oii�w ,09/10/99 16:45 FAX 206 223 01F'. Reed McClure B Mr. Steve Lancaster, Director September 9, 1999 Page 7 Rh 008/013 regulation is a valid exercise of the police power? The `police power" provision of the Constitution authorizes government agencies to adopt laws to protect legitimate state interests in "public health, safety and welfare." In general, if a law does not' protect Such state interests it is not a valid exercise of the police power.? If a regulation does not protect the "health, safety or welfare" of the community, the regulation is deemed an improper exercise of the police power rather than a taking. If a regulation is not a legitimate exercise of the police power, the remedy available to the property owner is a judgment which declares the regulation invalid rather than an award of monetary damages for a taking'. If a regulation passes the police power test because it advances a legitimate state interest, there is a final test applied by the courts, as follows: Step Five: Balance the public benefit and the private harm. Even if a regulation is a valid exercise of the police power and does not deprive an owner of all economic viability of his or her property, it is still possible for a taking to occur if the public interest in the regulation is outweighed by its adverse economic impact to the landowner. In analyzing a "partial taking" claim in this situation, a court would balance (1) the economic impact of the regulation on the property; (2) the extent of the regulation's interference with "investment- backed expectations "; and (3) the character of the government action. Presbytery, 114 Wn.2d 320, 335 -36, 787 P.2d 907. Under this so- called "balancing test," if the impact on the owner outweighs the public benefit, there is a taking. There is some question as to what the terms in the balancing test mean and how, they are supposed to be weighed. The court in Orion II stated without qualification that whether a regulation's economic impact is excessive is determined by comparing private loss and public gain. The following provides some analysis of the terms and the actual weight they should be given. a. Measuring Economic Impact. Excessive economic impact can be determined by a quantitative standard of whether the claimant's property retained reasonable market value. Orion II, 109 Wn.2d at 665, 747 P.2d at ' The Courts have ruled that laws which protect the environment or the:fiscal integrity of the community are intended to protect the public health, safety and welfare. Regulations in the land use area which fail this test tend to be those where an agency attempts to force a private property owner to pay for or provide a public benefit normally paid for by taxes. As you know, the City of Seattle's attempts to force private property owners to pay for low income housing programs have been invalidated several times, largely on this basis. a An owner may be entitled to monetary damages for the temporary loss of use of property between the time the regulation is imposed on the owner and the time the court declares the regulation invalid. This subject is complex and beyond the scope of this letter_ If you would like us to analyze this aspect of the rules at a later date, I would be glad to do so. ..,.frorimxs nl'N. A,y.+Mr x tTCAwCdr* ,09/10/99 16:45 FAX 206 223 01F9 ,. Reed McClure B Mr. Steve Lancaster, Director September 9, 1999 Page 8 li009 /013 1085. The court in Orion 11 provided a helpful explanation of this factor, stating that even if no reasonable use in the traditional sense of an active use remains, there is no taking if the , m w property has a reasonable market value for passive conservation use. Thus, even if the re 6 challenged regulation precluded a reasonable use by Orion, it would not be a taking if another 6 = private person or corporation would sufficiently value passive ownership of the tidelands to pay c) o 0 a price equivalent to their reasonable use value. co W - H b. Interference with Investment-Backed Expectations. cn u_ w The extent of interference with reasonable investment- backed expectations is the second 2 consideration in determining the significance of the economic deprivation. This variable is u_ concerned with the extent of value lost. Losses that are supported:by reasonable investments i d are deemed worthy of compensation, but an investor is not entitled to compensation for a F- _ foolish investment. z I-o z 1- In Orion 11, the court offered some guidance. The court held that Orion had no reasonable w ul investment- backed expectation worthy of consideration because its investment was induced by D 0 an expectation that it could dredge and fill tidelands, which the public trust doctrine precluded. 0 Since Orion's expectations were deemed either unreasonable or legally impossible to achieve, i° w Orion was not entitled to compensation. i v I- Similarly, under this rule, when a landowner purchases property that, for example, contains a w z wetland, any investment- backed expectation to develop the part of the property with the o wetland would be deemed unreasonable when the owner had constructive notice of the o I limitation on dredging and filling a wetland before the Landowner made the investment. z As is evident, this aspect of takings analysis is also very specific to individual properties and property owners. We urge you, when confronted with a regulatory takings claim, to carefully evaluate all of the relevant facts and seek legal advice in any case where the situation is unclear. Takings Anal ►psis When Permits or Exactions Are Involved. As mentioned at the outset of this letter, there is a separate set' of rules applicable to the imposition of discretionary permit conditions. Permits, in and of themselves, may create property rights but the statutory scheme for permit issuance may also impose "significant substantive restrictions" on the decision to grant a permit. To determine whether a permit condition is a legitimate exercise of regulatory power or constitutes an unconstitutional taking depends upon resolution of two questions. First, does an "essential nexus" exist between a legitimate state interest and the requirement? And second, if so, is the exaction or condition "roughly proportional" to the projected impact of the proposed development? Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987); Unlimited v. Kitsap County, 50 Wn.App. 723, 750 P.2d 651 (1988); Sparks v. Douglas County, 127 Wn.2d 901, 911, 904 P.2d 738 (1995). ,09/10/99 16:46 FAX 206 223 0159. Reed McClure B Mr. Steve Lancaster, Director September 9, 1999 Page 9 Z010/013 1. Nexus Between A Legitimate State Interest And The Permit Condition or Exaction. z ce The first rule, referred to as the "nexus" rule, simply provides that a permit. condition or exaction can only be imposed if it is necessary to mitigate an adverse impact of a project. -I o Conversely, a proposed condition is not permissible and constitutes an unconstitutional taking to w if it does not mitigate harm caused by the development. Nollan v. California Coastal 1.11 Commission, 483 U.S. 825 (1987). In the Nollan case, a property owner wanted to build a new cn u_ residence on the waterfront The Coastal Zone Commission granted the permit, subject to a w o condition that the owner dedicates a public easement across the length of the beach in front of g his new house. On appeal, the Supreme Court struck down the permit condition, ruling that u. there was no `nexus" between the proposed construction of a house and the public's desire or d need for a public easement along the beach. The Court's ruling, put simply, was that the _. construction of a house on private property did not increase the public's need for beachfront Z F- access. z o U1 Similarly, in Unlimited v. Kitsap County, the county conditioned adevelopment permit on the landowner's dedicating strips of its property for commercial access and a road extension to 0 another property. The court held that the exaction serves no public interest, let alone a ° }— reasonable one. The court reasoned that the public had no interest in the commercial ° development of the other property, and it was unreasonable for the county to exact a rL o: commercial access easement to that property as a condition of the landowner's planned unit iu z development. �_)-- 2. Rough Proportionality Between The Impact And The Extent of The 0 Mitigation Required. Under the second part of the test, there must be "rough proportionality" between the impact of the new development and the extent of the mitigation requirement. In other words, there must be an individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. This rule was announced in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994).9 In Dolan, the property owner wanted to expand a hardware store that happened to be located adjacent to a river. As a 9 In Monterey v. Del Monte Dunes at Monterey, Ltd, _ U.S. (1999) the United States Supreme Court recently held that the rough proportionality rule did not apply to the denial of a land use permit. Language in the decision suggests the Linked States Supreme Court may ultimately rule that the rough proportionality rule does not apply, for federal constitutional purposes, to permit conditions which do not require a property owner to dedicate property to the government This case, however, has little relevance in Washington because the Washington Supreme Court has already make it clear that the rule still applies to all forms of permit conditions and exactions under the Washington State Constitution. There is a critical difference between the two constitutions because the United States Constitution prohibits "taking" private property without compensation and the State Constitution prohibits "taking or damaging' private property without compensation. The exact significance of this distinction has not yet been established by the courts. 09/10/99 16:46 FAX 206 223 0152 Reed McClure B Mr. Steve Lancaster, Director September 9, 1999 Page 10 1 011/013 condition of the permit, the City required the owner to build and dedicate a public bicycle trail z along the riverfront portion of the property. The City defended the proposed condition under z • the nexus rule by arguing there would undoubtedly be some people who would ride their w bicycles or walk on the trail to the hardware store. The Supreme Court agreed that there was a 6 nexus, but struck the condition down anyway, ruling that the required mitigation was _1 o disproportionate to the potential impact because the vast majority of trail users would not be ° riding to or from the store, but simply passing by. w Washington courts have applied Dolan reasoning to a number of cases. See, e.g., Trimen Dev. 1110 Co. v. King County, 124 Wn•2d 261, 877 P.2d 187 (1994)(upholding a park development fee 2 only after finding that "the fees imposed in lieu of dedication were reasonably necessary as a g a direct result of Trimen's proposed development "); Luxembourg Group, Inc. v. Snohomish cn a County, 76 Wn•App. 502, 887 P.2d 446 (1995)(striking down a requirement that a developer w provide a 60 -foot right of way to a landlocked parcel, where the parcel had been landlocked z before the subdivision application, and its access was not changed by the application): Sparks, z o 127 Wn.2d 901, 904 P.2d 738. In Sparks, the Washington Supreme Court applied this "rough w w proportionality" rule enunciated in Dolan to find that requiring the landowner to dedicate property for rights -of -way as a precondition of a building permit approval did not constitute a O D- taking. In that case, there was evidence that the development would increase traffic on roads ° !— not adequate for safe access under the county standards and would create a specific need for 0 dedication of rights -of -way. u. z In the event that a court finds that a permit condition violates the nexus or rough proportionality o N rules, the usual remedy is invalidation of the permit condition and, in some circumstances, an o award of monetary damages for a temporary taking of the property. z Finally, in you should also be aware that a regulation that limits or delays development may constitute a temporary taking. The general rule is that if a government regulation denies all economically viable use, then the owner will be entitled to compensation for the time the regulation was in effect. However, not all government delays of development will cause a compensable temporary taking. In First English Evangelical Lutheran Church of Glendale v. Los Angeles, 482 U.S. 304 (1987), the United States Supreme Court recognized that normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like" are not temporary takings The delay also must be unreasonable, excessive, or extraordinary. Norco Construction, Ina v. King County, 801 F.3d 1143, 1145 (9`h Cir. 1986). I am aware that all of these rules are complex and difficult to apply in practical circumstances. It is also clear that the manner in which courts analyze these cases is not terribly helpful to agencies trying to review permit applications. As a result, 1 would suggest you use the following series of questions as a practical guide to dealing with.these issues. (The ultimate outcome of this analysis will lead you to the same answers that the courts have developed, but should be simpler to deal with on a case by case bases.) ,09/10/99 16:47 FAX 206 223 012, Reed McClure B Mr. Steve Lancaster, Director September 9, 1999 Page 11 21012/013 Analysis of takings claims regardingnd use regulation (such as a general requirement of the z zoning code or critical areas ordinance): ° i 09/10/99 16:47 FAX 206 223 0152 Reed McClure B 11013 /013 Mr. Steve Lancaster, Director September 9, 1999 Page 12 I trust this has been helpful. If there are other questions or you would like to discuss any aspect of this analysis either in general or as applied to a specific case, please call me. Very truly yours, REED McCLURE 1 Robert D. J RDJ:rdj 16YB011 1 .doc z • will 2 J U: 00; o w =; • J � N 1L; 1., W O! H • • : ,O U: ,W W' S U LLI • It jcho4 SF City of Tukwila SouthcenterBoulevard • Tukwila, Washington 98188 John W Rants, Mayor September 4, 1998 Mr. Jihad Keriouz 13520 Linden Avenue N. Seattle, WA 98133 Re: Single - Family Demolition Permit #MI98 -0113 & Building Permit #D98 -0215. Dear Mr. Keirouz: Based on a site visit I conducted on approximately 8/12/98, your house demolition/construction activities have encroached and disturbed a sensitive area located on Lot #12 of the Robbins Springbrook Addition in Tukwila. The site is located along the west of 33rd Avenue S. just south of S. 130th Street. Portions of the lot were cleared by machinery and a small drainage pipe was plugged. I discussed the situation with your biologist by telephone and met with you on the site last week. There is wetland area on the lot associated with a small drainage that enters the property from the southwest. The local area has groundwater seepage and city mapped wetlands are present to the west along 32nd Avenue S. Per the City's 8/11/98 Correction Letter #1 and activities that occurred on -site, you will need to submit the following: 1) Wetland study that identifies the extent of wetland and watercourse area affecting the site. 2) A plan to restore the disturbed drainage and maintain it as an open system. This plan may include incorporating an enhanced drainage channel that become part of the final building permit for the single - family residence. Phone: (206) 433 -1800 • City Hall Far (206) 433 -1833 z �w re 2 6 00 co to w w= fn u.. w0 L Q; co d w. z zF. I-- 0 zI- . �o ww 1-- ul U W. 0_ 0 I- z ir C Mr. Jihad Keriouz September 4, 1998 Page 2 • Please submit the required study and plan by October 1, 1998 to continue the building permit review. An Hydraulic Approval Permit (HPA) may be required by the State Department of Fish and Wildlife prior to altering the watercourse on the site. If you have questions about this letter contact me at 206 -431 -3662. Sincerely, 0) C. Gary Schulz Urban Environmentalist cc: Steve Lancaster, DCD Director .Joanna Spencer, PW Associate Engineer ..y Kelcie Peterson, DCD Permit'Coordinator w -1 U: 00 W0 cn w w =: u-. wO u-.¢;. cn =a uJ. _ 1- a z t-, ;0 H = LJ ui z. N 0 1—! CITY OF TUKWILA Id: ACTP120 Keyword: @ACTM User: 1685 09/04/98 Activity File Maintenance DEVELOPMENT PERMIT Permit No: D98 -0215 Occupant: KEIROUZ JIHAD Status: PENDING Address: 13041 33 AV S 8ee[Locks, Holds, and NoticesJeeeeeeeee88888& eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee£ ❑ Notice: 7/14/98 - SITE VISITED BY GARY SCHULZ (URBAN ENVIRON- ❑ ❑ Notice: MENTALIST). OBSERVED GROUNDWATER DRAINAGE IN THE DITCH ❑ ❑ Notice: ALONG THE FRONT OF THE PROPERTY WHICH MAY BE CONSIDERED ❑ Notice: A REGULATED WATERCOURSE. THE GREATER AREA OF CONCERN IS THE ❑ ❑ Notice: EXTENT OF WETLAND ON THE PROPERTY. WETLAND ASSOCIATED ❑ Notice: VEGETATION IS PRESENT THROUGHOUT WITH.AN APPARENT SEEP AREA ❑ Notice: ON THE SOUTH PROPERTY BOUNDARY. AS REQUIRED BY THE ❑ Notice: SENSITIVE AREAS ORDINANCE, A WETLAND STUDY WILL BE ❑ Notice: REQUIRED PRIOR TO ANY LAND ALTERING ACTIVITY ON THE SOUTHERN ❑ ❑ Notice: PARCEL, LOT #12. IT IS LIKELY THAT THIS LOT WILL NOT BE ❑ ❑ Notice: DEVELOPED WITHOUT SOME WETLAND MITIGATION PLANNING. KJP. ❑ aeeeeeeeeeeeeeeeeee888888eeeeeeeeeeeeeeeeeeeeeeed eeeeeeeeeeeeeeeeeeeeeeeeeeeee4Y ❑ * * Additional locks, holds or Notices exist - Press Any key to continue * * * n.........', �S'.: i!.. LUrciiw: v�w�L .vS�;suL.i.::il�.'n....�a.a..0 lra +'+, ��'. •• "wu'.'i- ti:u'::.:Li.'6.I�W4: •Aug 31 99 11:528 JIM FINLEY GEOTECH CONSULTANTS, INC. 13256 NE 20th titrcct. mite 16 13cIievue, WA 9ti0115 (4251 747 -561?; FAX (42.) 747 -x561 J.A.K. Inc, 13520 Linden Avenue North Seattle, Washington 98133 Attention: Jihad Keirouz Subject: Geotechnical Considerations Proposed Residence 130)(X - 33rd Avenue South Tukwila, Washington Dear Mr. Keirouz: t4Eb1'j4 r -8561 p.1 August 31, 1999 JN 8128 -1 CITY OF KWILA (=, Y'r; r ic,ee PERMIT CENTER In September of 1998, the undersigned Associate of Geotech Consultants, Inc. visited lots in Tukwila that had just been excavated for proposed residences. We understand that you propose to construct another residence adjacent to the southem side of those residential Tots. The purpose of this letter is to discuss the likely near - surface soil and groundwater conditions, as well as foundation parameters, on the proposed residence lot based on the conditions seen in the earlier, adjacent excavations. Baed on the Grading and Drainage Plan for the project dated May 1, 1999, we understand that the proposed residence will be located near the middle of the property with a driveway along the northeastern side of the property, Cuts of up to approximately 4 feet are proposed on the westem side of the residence and garage. An approximate 4 -foot rockery is proposed west and south of the residence; a cut will be made to install this rockery. A catch basin and tightline pipe will be constructed to control surface water that enters the southwestern side of the property. The pipe will ultimately discharge the surface water to an existing ditch on the eastern side of the property. The project subsurface drainage system will include typical footing drains. The subject property is located on the upslope, western side of 33`d Avenue South. It scopes gently upward above the street with a topographic relief of about 15 feet. The property is undeveloped and heavily overgrown with vegetation. Some surface water is currently channeled diagonally to the northeastern side of the property to the existing ditch. Excavations in the range of 3 to 5 feet were made for the two residences to the north. We observed that the upper, approximate 3 feet of soil was Loose. It was underlain by competent, firm silty sand, sift, and sand. Groundwater was observed perched on these competent soils. Conclusions and Recommendations The competent soils that we observed in the adjacent excavation are very suitable to support the building loads. Therefore we believe that competent soil should be revealed on the subject site at relatively shallow depths. We recommend that continuous and individual spread footings .have minimum widths of 16 and 24 inches, respectively. They should be bottomed at least 18 Inches below the lowest A z z � W 6 00 to 0' U) 111 111 J 1— WO u. Y.).d w t-= Z p- i- z 0 ID al • CI cn 01—. wW 1- U.= O. Z US O~ z .Auo _3 1 99 11:52a JIM FINLEY f• 1 J.A.K. MC. August 31, 1999 (425)747 -8561 JN 8128 -1 Page 2 adjacent finish ground surface. The local building codes should be reviewed to determine if different footing widths or embedment depths are required. An allowable bearing pressure of 2,000 pounds per square foot (psf) is appropriate for footings supported on the competent, native soil. Because the native soil is somewhat sensitive to moisture, we recommend that any loose surficiai soil in the footing areas we removed pnor to pouring the foundation. Another option would be to cover footing areas with a mat of imported, granular fill at the time the initial excavation is done. A one -third increase in this design bearing pressure may be used when considering short -term wind or seismic loads. Lateral loads due to wind or seismic forces may be resisted by friction between the foundation and the bearing soil, or by passive earth pressure acting on the vertical, embedded portions of the foundation. For the latter condition, the foundation must be either poured directly against relatively level, undisturbed soil or be surrounded by level structural fill, We recommend using the following design values for the foundation's resistance to lateral loading: Parameter Design..'V.alue Coefficient of Friction 0.40 Passive Earth Pressure 300 pcf Where: (i) pcf is rKtunds per cubist foot, and (ii) passive earth pressure is computed using the equivalent fluid density. If the ground in front of a foundation is loose or sloping, the passive earth pressure given above will not be appropriate. We recommend a safety factor of at least 1.5 for the foundation's resistance to lateral loading, when using the above design values. We observed groundwater perched at or near the level of the competent native soil on the adjacent sites. We believe that a similar groundwater conditions will be found on the subject property. The amount of groundwater seen on the adjacent sites, as well as the density of the competent soil, indicate that the soil has a very low permeability (not suitable for percolation). We expect that groundwater will be encountered in the excavation of the proposed residence. It is our professional opinion that the amount of groundwater flow will be readily handled by the project's subsurface drainage system. We agree with the system that is shown on the Grading and Drainage Plan, but recommend that another footing drain be added behind the western and southern garage walls. The drainage system shown on the plan, and recommended around the garage, is very similar to the system we recommended earlier for the adjacent residences. All footing drains should consist of a perforated pipe that is surrounded with washed rock and filter fabric. p.2 z .` w UO co WI W O. 2 g Q, = d l-w z= I— 0. z~ in 2o 00 —: CI F— W W' F=- U. O z W o 1- z .111..:.g . 3 1 99 1 1 : 52a J.A.K. Inc. August 31, 1999 JIM FINLEY .14251747 -8561 p.3 JN 8128 -1 Page 3 We trust that this report meets your immediate needs for the proposed devel opment. Please contact us if we can be of further service. Respectfully submitted, GEOTECH CONSULTANTS, INC. D. Robert Ward, P.E. Associate .`�'�",..yl� r!li�.��.T �{ a!f •'H �1 ��� ����. ���.� � a . , `,180 j -; ,„Z • J U' • '0 0' CO o:. cn wT, w }Or: • co a Z� F- O. 'zF- w w: U .H Ut. O' w N'. IL; z City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director August 11, 1998 Mr. Jihad Keirouz 13520 Linden Avenue North #338 Seattle, Washington 98133 Dear Mr. Keirouz: SUBJECT: CORRECTION LETTER #1 Development Permit Application Number D98 -0215 Keirouz, Jihad 1304133 Av S This letter is to inform you of corrections that must be addressed before your application for development permit can be approved. All correction requests from each department must be addressed at the same time and reflected on your drawings. I have enclosed comments from the Fire Department, Planning Division and the Public Works Department. At this time the Building Division has no comments regarding your application for permit. The City requires that four (4) complete sets of revised plans be resubmitted with the appropriate revision block. In order to better expedite your resubmittal a Revision Sheet must accompany every resubmittal. I have enclosed one for your convenience. Corrections /revisions must be made in person and will not be accepted through the mail or by a messenger service. If you have any questions please contact me at the City of Tukwila Permit Center at (206) 431 -3672. Sincerely, -fetu501 Kelcie J. P erson Permit Coordinator Enclosures File: D98 -0215 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 .,.. �s-.} 4i1a .J9AtiM:.,xtrd „v..vi?eS:�;y.: i::�:.».Gr2sw7�Y eY:; n3vn�iC:Cdttr.f >': •AiA.' ,�.�.......... City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director MEMORANDUM TO: Bob Johns FROM: Michael Jenkins DATE: August 3, 1999 RE:. Reasonable Use Exception ISSUE Can an applicant that purchases a lot after the adoption of the Sensitive Area Ordinance be barred from a Reasonable Use Exception, especially if he had or should have knowledge of a wetland or watercourse? FACTS The applicant, Jihad Keirouz, purchased a pre - existing legal lot of record, located at 13031 — 33`d Ave S., along with two adjacent lots in.1998. A map showing the lot in question is attached. The property is zoned Low Density Residential. The application calls for the relocation and piping of an existing watercourse on the south side of the property and the filling of a related wetland. Without this action, the lot could not be developed for a single family residence. A copy of the mitigation plan is also attached. While the mitigation plan may be adequate, the question before staff concerns the validity. of the application itself. Staff believes the applicant may be barred from a Reasonable Use Exception as he purchased the property after the adoption of the Sensitive Area Ordinance (in 1990) and would have known that a watercourse, wetland or other feature was present. The lot is included in the City's Sensitive Area inventory . for regulated slopes but is not mapped for wetlands or watercourses. However, both the watercourse and wetland are clearly evident on the property. Further, the adjacent lots also owned by the applicant were developed in the past year and required approval of storm water drainage plans with Geotechnical Reports due to the conditions on the property. We would appreciate your opinion on staff's belief that the applicant would not have a case for reasonable use due to prior knowledge and the purchase of the lot after the adoption of the ordinance. Once you have reviewed this memo, please give me a call at (206) 431 -3685 and I can arrange a telephone conference call with Steve and Jack to discuss this issue. cc: . Bob Noe .Gary Schulz n-98IBR • .17.06).. 431 :3670.•mF1vl?.0611;431a61 S: August 2, 1999 City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director Jihad Keirouz JAK, Inc. 13407 — 51s` Ave West Edmonds, WA 98062 NOTICE OF INCOMPLETE APPLICATION Re: Application for Reasonable Use Permit, 13031 — 33`d Ave S. (L99 -0049, E99 -0017) Dear Mr. Keirouz: Your application for a Reasonable Use Exception from the Sensitive Areas Ordinance for the construction of a single - family residence has been found incomplete. In order for this application to be determined as complete, you must submit the following information to the Department of Community Development, based on the comments detailed below: • A site plan, as described on the application checklist, including all proposed setbacks • A plan documenting both existing and proposed conditions of the property, including the proposed mitigation plan • A Geotechnical Report with Hydrological Assessment, including impacts to surrounding areas • A conceptual drainage plan designed to meet current Small Site Drainage Review and Targeted Drainage Review category 1 from the King County Surface Water Design Manual • A temporary erosion prevention plan • A temporary sediment control plan In addition, the following features should be included in the materials you submit so that technical review of your proposal can be adequately done: • The existing and proposed contours should be shown on the site plan at two (2) foot intervals for a minimum of 100 feet off site, in support of TMC 16.54.110. A copy of the code is included Upon receipt, the City will re- review the materials you submit for completeness and will mail you written notification of completeness or incompleteness within 14 days. This application will expire if we do not receive the additional information within ninety (90) days of the date of this letter unless an extension is granted pursuant to Section 18.105.070(E). If you have any questions, my telephone number is 431 -3685. Sincerely, Michael Jenkins Associate Planner 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 ary Schulz - Keirouz -L99 -0049 From: Gary Schulz To: Michael Jenkins Date: 7/29/99 12:27PM Subject: Keirouz -L99 -0049 Michael, Per discussions yesterday with Director and on our site visit, I have the following completion comments. 1) Applicant needs more detail on the existing conditions of the site related to surface water and groundwater seeps. All existing drainage features should be mapped or identified to determine proposed alterations for sg family residence. Noting the existing vegetation cover will also be helpful for the RU request. 2) A geotechnical /hydrological analysis is a sensitive area study that will be required for this project' s feasibility and on -site mitigation. Thank you, Gary Schulz CC: Jack Pace Page z sue, z,. 6 U' '0 0' cw, n w z.: 2u- w g J. u. 0) d. = w' z� I-o z w w: • O -I WuJ �U IJJ Vi O ~' z City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director May 25, 1999 Mr. Jihad Keirouz 13407 51st Avenue W. Edmonds, WA 98026 Re: Single - Family Residential Permit #D99 -0168: Sensitive Area Requirements. Dear Mr. Keirouz: This letter is in response to your questions about processing a permit to construct a new single - family house in sensitive areas. The site address is 13041 33`d Avenue S. According to the City's Sensitive Areas Overlay, there are no water features mapped on the site. However, a watercourse originating from groundwater, is located on the south boundary of the subject, Lot #12. In addition, potential wetland area is also present adjacent to the watercourse on the site. You have developed the two lots immediately north of the subject property ( #D98 -0215 & #D98 -0175. These two existing legal lots of record were not affected by the watercourse. However, Lot #12 is subject to the City's Sensitive Areas Ord. (TMC Chapter 18.40. My memorandum dated 7/17/98 to Gary Barnett, Public Works Engineer was sent to you (copy attached). Briefly, I requested a wetland study at that time to inform you of an issue with developing Lot #12. A recent site visit observed disturbance and potential wetland impacts on the Lot. Prior to processing a building permit you must submit the following: 1) On -site wetland study, prepared by a qualified wetland expert, to describe existing conditions and extent of wetland area, if present. Include the watercourse in the study and provide wetland and watercourse ratings per the Sensitive Areas Ord. 2) The extent of wetland/watercourse areas will need to be mapped/surveyed and include standard buffer setbacks. 3) Based on my observations, Lot #12 may be completely affected by the sensitive areas. The Sensitive Areas Ord. includes an Exception process for this type of situation (TMC 18.45.115). An application for a Reasonable Use Exception permit is appropriate if sensitive area regulation would deny all reasonable use of a property. 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431 -3665 eu rrws.rr Mr. Jihad Keirouz May 25, 1999 Page 2 In summary, it appears the Exception process may be necessary for building on the subject lot. The Ordinance standard for wetland mitigation is a ratio of 1.5 to 1.0 area replacement. An alternative may be to mitigate (replace) wetland area off the site in order to use most of the property for a house. The watercourse should be preserved as an open channel since it is located along the south property boundary. I have also attached a copy of the Sensitive Areas Ordinance. If you or your wetland expert have questions, you may call me at 206 - 431 -3662. Sincerely, C. Gary Schulz Urban Environmentalist Cc: Steve Lancaster, DCD Director Carol Lumb, Associate Planner z mow. J U: U O' CD Ck CD w: w =- I-. .N LL w 0'; J Q; I-w z�... ;CI I-; 1SV =. Z' on : .O CITY OF-'UKWILA DEPARTMENT OF COMMUNITY DEVELOPMENT 6300 Southcenter Boulevard, Tukwila, WA 98188 Telephone: (206) 431 -3670 REASONABLE USE EXCEPTION (P -SP) APPLICATION i4F: F:0SE'ONL Y. • r.;wrN;:,;: Planner: Ie umber :'.: ReceiptNumtici rolectFile #; plicatioh;Complete; qDatea. SEPAFile pplication`Incomplete; bane 1. PROJECT BACKGROUND A. NAME OF PROJECT /DEVELOPMENT: .�A IN(, 44C 1 E . t- ii-- r ResspeNtc.E.e 1141' Ave_ S. Tuoe.1.41L.L..A. L�r IZ, � M NS SP204C2 41?0 -ncau Tv F �JF�TON B. LOCATION OF PROJECT /DEVELOPMENT: STREET ADDRESS: I301 33420 At/� . l . i .i.4ILL.A •■ 1 & Is ASSESSOR PARCEL NUMBER: LEGAL DESCRIPTION: Lo -r IT_ L -cxIG. 5, �- t �-+f Q�.-nn.�� `rte O. ez.ra... ~_/rn_ llo t____ PCT 67 r RC-Lo2vg. OIc K4 Ncm aC.or u.Nq'•r • Quarter: "w 1 Section: 15 .Township: 25N Range: 1E- (This information may be found on your tax statement) C. CONTACT: (Primary contact regarding the application, and to whom all notices and reports shall be sent) NAME: ��. �►. �. I t'4 . ADDRESS: ( O' 51""1" A.,./gm e. FAST gt9 i 4t S {� mac &Z_ PHONE: (Z4CP6) • !o£, SIGNATURE: DATE: 7/ t RUCKLST.DOC 7/3/96 RECEIVED JUL. 0 $ 1999 COMMUNJ qY DEVELOPMENT i• 11. A. PRESENT USE OF PROPERTY: \S ., ►I a-r L_o-r B. SENSITIVE AREAS REQUIREMENT FROM WHICH RELIEF IS SOUGHT:F_- rt.,�a,r.�y ANn ST2EAM Ix+r ¢ - �y�Tec,r —r C. ON A SEPARATE SHEET, DESCRIBE THE MANNER IN WHICH YOU BELIEVE THAT YOUR REQUEST FOR AN REASONABLE USE EXCEPTION WILL SATISFY EACH OF THE FOLLOWING CRITERIA AS SPECIFIED IN TMC 18.45.115(4). 1. No reasonable use with Tess impact on the sensitive area and its buffer is possible. 2. There is no feasible on -site alternative to the proposed activities, including reduction in size or density, phasing of project implementation, change in timing activities, revision of road and lot layout, and/or related site planning activities that would allow a reasonable economic use with fewer adverse impacts to the sensitive area and its buffer. 3. As a result of the proposed development there will be no increased or unreasonable threat of damage to off -site public or private property and no threat to the public health, safety or welfare on or off the development proposal site. 4. Alterations permitted shall be the minimum necessary to allow for reasonable use of the property. 5. The proposed development is compatible in design, scale and use with other development with similar site constraints in the immediate vicinity of the subject property. 6. Disturbance of sensitive areas has been minimized by locating the necessary alterations in the buffers to the greatest extent possible. 7. The inability to derive reasonable use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of the ordinance from which this chapter derives. 8. Any approved alteration of a sensitive area under this section shall be subject to conditions as established by this chapter and will require mitigation under an approved mitigation plan. If a development is approved as a reasonable use, the Board of Architectural Review's process, review and standards shall be applied. RUCKLST.DOC 7/3/96 ..ry •.k:�.l r� +'.sn�s>ry,t,kla;aA•i 41,.66 ni44if5..v.Yi= :Htnee�:..?yr >S•��: WI A l 'wsv... : +n�...v:kYN9•bL NNt.i.if� ?+�1NH.M , ... S. Jones and Associates, Inc. J.A.K, INc. Single- family Permit Appl. No. D98 -0215 REASONABLE USE EXCEPTION C. ON A SEPARATE SHEET, DESCRIBE THE MANNER IN WHICH YOU BELIEVE THAT YOUR REQUEST FOR A REASONABLE USE EXCEPTION WILL SATISFY EACH OF THE FOLLOWING CRITERIA AS SPECIFIED IN TMC 18.45.115(4). ;' w re 2 1. No reasonable use with less impact on the sensitive area and its buffer is possible. 00 The property is zoned LDR (residential) in a residential neighborhood. One single- w family residence is the minimum use of this lot. J 1— LL. 0 2. There is no feasible on -site alternative to the proposed activities, including reduction 2 in size or density, phasing of project implementation, change in timing activities, revision ga or road and lot layout, and /or related site planning activities that would allow a d reasonable economic use with fewer adverse impacts to the sensitive area and its buffer. = w = z!— The entire site is wetland, so impacts to sensitive areas are unavoidable. The applicant z O. proposes the minimum street setback with the residence located outside of the existing w w stream channel. Clearing, grading, foundation and utility construction work should occur v in the months of August, September, and October, if construction occurs this year. 0 N, ca 3. As a result of the proposed development there will be no increased or unreasonable z o threat of damage to off -site public or private property and no threat to the public health, -L170 ' safety or welfare on or off the development proposal site. w z U (12; The construction of a single - family residence on this site will not pose a threat to public 0 health or safety. 4. Alterations permitted shall be the minimum necessary to allow for reasonable use of the property. The square footage of the proposed house is 1,300 square feet, which is of similar size to other residences in the neighborhood. The minimum setback to the street is proposed. The house will be located outside of the existing intermittent stream (i.e. excavated ditch). 5. The proposed development is compatible in design, scale and use with other development with similar site constraints in the immediate vicinity of the subject property. The proposed single - family residence is of similar design, size and use to adjacent properties and the neighborhood. J. S. Jones and Associates, Inc. 6. Disturbance of sensitive areas has been minimized by locating the necessary alterations in the buffers to the greatest extent possible. The entire site is wetland, so impacts to sensitive areas are unavoidable. The applicant proposes the minimum street setback with the residence located outside of the existing stream channel. 7. The inability to derive reasonable use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of the ordinance from which this chapter derives. The property was a legal lot prior to the effective date of the Tukwila Sensitive Area Ordinance. 8. Any approved alteration of a sensitive area under this section shall be subject to conditions as established by this chapter and will require mitigation under an approved mitigation plan. If a development is approved as a reasonable use, the Board of Architectural Review's process, review and standards shall be applied. Mitigation in the form of creating wetland for impacts to wetland is not possible on this site, because the entire property is wetland. The application proposed enhancement of the stream channel and remaining wetland areas as mitigation for impacts. z • re w JU 0 C 0; .N mo C111./ H-: w o: u —a: I-w HO; Z al la w a. ui Z: = O� z k. D. PROPERTY OWNER DECLARATION The undersigned makes the following statements based upon personal knowledge: 1. I am the current owner of the property which is the subject of this application. 2. All statements contained in the application are true and correct to the best of my knowledge. 3. The application is being submitted with my knowledge and consent. 4. I understand that conditions of approval, which the City and applicant have jointly agreed may not be completed prior to final approval of the construction (e.g., final building permit approval) will be incorporated into an agreement to be executed and recorded against the property prior to issuance of any construction permits. I declare under penalty of perjury under the laws of the State of Washington and the United States of America that the foregoing statement is true and correct. EXECUTED at 1 V I' t LA (city), J L—Y , 1992_: 144 (Print Name) (state), on 1-5 7 1 (Address) c-6 68 72-t (one Numb. r) (Signature) INc �8oZee:. Use additional sheets as needed for all property owner signatures. Th CITY OF . JKWILA DEPARTMENT OF COMMUNITY DEVELOPMENT 6300 Southcenter Boulevard, Tukwila, WA 98188 Telephone: (206) 431 -3670 REASONABLE USE EXCEPTION APPLICATION CHECKLIST The materials listed below must be submitted with your application unless specifically waived in writing by the Department. Please contact the Department if you feel certain items are not applicable to your project and should be waived. Application review will not begin until it is determined to be complete. The initial application materials allow starting project review and vesting the applicant's rights. However, they in no way limit the City's ability to require additional information as needed to establish consistency with development standards. Department staff are available to answer questions about application materials at (206) 431 -3670. RETURN THIS CHECKLIST` WITH YOUR APPC:ICATI( RECE VE0 APPLICATION FORMS: 1 a Application Checklist 11 L 0 6 1999 pp ❑ Design Review Application and fee ($900) CO>��1t1lii. Nrn( Q Application Form (12 copies\ /ELOPMVMENT ❑ Application(s) and fee(s) for all other applicable land use permits �i71" © Reasonable Use Application Fee - $200. Specify: Complete Environmental Checklist and fee ($325) PLANS: (12 copies) CT Site plan at 1 "= 30' or 1" = 20', with north arrow, graphic scale, and date; and the license stamp of the architect. The following information must be contained on the plan (details may be included on additional drawing sheets): O Property lines and dimensions, lot size(s), and names of adjacent roads O Location and setbacks of existing and proposed structure(s) with gross floor area O Location of driveways, parking, loading, and service areas, with parking calculations O Location and design of dumpster /recycling area screening and other exterior improvements O Location and type of exterior lighting O Location and classification of any, watercourses or wetlands, and 200' limit of Shoreline Overlay District O Existing and proposed grades at 2' contours, with the slope of areas in excess of 20% clearly identified O Location of closest existing fire hydrant; location and size of utility lines; location and size of utilities or street/sidewalk easements or dedications O Description of water and sewer availability from provider of utility (note which utility district or City) O Other relevant structures or features, such as rockeries and fences. •RUCKLST.DOC 7/3/96 z ~ w • J 0 00. w= • J H M IL w 0. J ▪ w z� I- 0 Z I- O • o. OD 0. ww w z: U (4. z Location of outdoor s+ "age areas and method of screening , andscape/planting plan at the same scale as site plan, with nori. arrow, graphic scale, and date; and the license stamp of the landscape architect. The following information must be contained on the plan: O Property lines and names of adjacent roads O Location of the following: proposed structure(s), vehicle and pedestrian circulation areas, dumpster /recycling area, site furniture, any proposed public outdoor art O Existing trees over 4" in diameter by size and species, and any trees to be saved O Proposed landscaping, including size, species, location and spacing. O Mitigation Plan which identifies the impacts on the sensitive area and proposed mitigation appropriate to, and in scale with, the impacts on the sensitive area. DiZt 171,.,:: /2)2A. /1- -) lJ One (1) "PMT" (photomaterial transfer, or photostat) each of the plan set, reduced to 8.5 x 11 inches. w/ 4,19/9 hut, Wiz_ . a Site percolation data approved by the Seattle -King County Department of Environmental Health if the site is proposed for development using a septic system, or a Certificate of Sewer Availability from the sewer utility purveyor (if other than the City). 0 Proof that the lots are recognized as separate lots pursuant to the provisions of TMC Title 17 and RCW Ch. 58.17. a Any Sensitive Area studies required by TMC 18.45, including, but not limited to, the surveyed location and professional evaluation of any wetlands, streams, and their buffers. a A list of existing environmental documents known to the applicant or the City that evaluate any aspect of the proposed project. a A list of any permits or decisions applicable to the development proposal that have been obtained prior to filing this application, or that are pending before the City or any other governmental entity. CT A storm water design which meets the requirements set forth in the Surface Water Design Manual adopted pursuant to TMC 16.54.060(D). 71 OTHER MATERIALS: &7Zci-Ge l2 c.' 'r Other documentation and graphics in support of the proposal may be included as appropriate, such as color renderings, perspective drawings, photographs or models. If other materials are to be considered, twelve (12) copies of each must be submitted (except models). Color drawings or photos may be submitted as 8.5 x 11 -inch color photocopies. PUBLIC NOTICE: ❑ King County Assessor's map(s) which shows the location of each property within 500 feet of the risubject property. Two (2) sets of mailing labels for all property owners and tenants (residents or businesses) within 500 feet of the subject property. (Note: Each unit in multiple - family buildings - -e.g. apartments, condos, trailer parks - -must be included.) See•Attachment A. ❑ A 4' x 4' public notice board will be required on -site within 14 days of the Department determining that • a complete application has been received. See Attachment B. a • lC U GC 17 /7 1,LZA- - fL k..12 r\,17 r1t -L.7 lac, ,LL.1 • RUCKLST.DOC 7/3/96 Control No. Epic File No. '% Fee $325 Receipt No. ENVIRONMENTAL CHECKLIST A. BACKGROUND 1. Name of proposed project, if applicable: JAK Single- family Residence, 33`d Ave S. Tukwilla, Lot 12, Block 5, "Robbins Springbrook Addition to Riverton ", Vol 16 of Plats, Page 67, Records of King County 2. Name of applicant: Jihad Kierouz, J.A.K. Inc. 3. Address and phone number of applicant and contact person: Phone: (206) 300 -6874 Address: 13407 51" Avenue West Edmonds, Washington 98062; 4. Date checklist prepared: June 29, 1999 5. Agency requesting checklist: City of Tukwila 6. Proposed timing or schedule (including phasing, if applicable): The applicant wants to construct as soon as possible, while the intermittent stream is dry. 7. Do you have any plans for future additions, expansion, or further activity related to or connected with this proposal? If yes, explain. No 8. List any environmental information you know about that has been prepared, or will be prepared, directly related to this proposal. A wetland investigation was performed by J. S. Jones and Associates, Inc., dated June 9, 1999. 9. Do you know whether applications are pending for governmental approvals of other proposals directly affecting the property covered by your proposal? If yes, explain. Yes, Single- Family Permit No. D98 -0215 RECEIVED JUL 0 6 1999 COMMUNITY DEVELOPMENT 2 g 10. List any government approvals or permits that will be needed for your proposal. Single- Family Residence Permit and Reasonable Use Exception 1. Give brief, complete description of your proposal, including the proposed uses and the size of the project and site. There are several questions later in this checklist that ask you to describe certain aspects of your proposal. You do not need to repeat those answers on this page. Section E requires a complete description of the objectives and alternatives of your proposal and should not be summarized here. The applicant proposes to construct a 1,300 square foot house on a 5,733 square foot lot. The proposal includes enhancement of the stream channel and remaining wetlands. 12. Location of the proposal. Give sufficient information for a person to understand the precise location of your proposed project, including a street address, if any, and section, township, and range, if known. If a proposal would occur over a range of area, provide the range or boundaries of the site(s). Provide a legal description, site plan, vicinity map, and topographic map, if reasonably available. While you should submit any plans required by the agency, you are not required to duplicate maps or detailed plans submitted with any permit applications related to this checklist. The site is located immediately south of 13031 33`d Avenue South in Tukwila, Washington. The site is Lot 12 of Robbins Block 5, "Robbins Springbrook Addition to Riverton ", According to the Plat Thereof Recorded in Volume 16 of Plats Page 67 Records of King County Washington. The site is further described as located in the NW1 /4 of the NW 1/4 of Section 15, Township 23 North, Range 4 East, of the Willamette Meridian. 2. Does the proposal lie within an area designated on the City's Comprehensive Land Use Policy Map as environmentally sensitive? No 'tl TO BE COMPLETED BY APPLICANT Evaluation for Agency Use Only B. ENVIRONMENTAL ELEMENTS 1. Earth a. General description of the site (circle one): Flat, rolling, hilly steep slopes, mountainous, other East - facing hillside b. What is the steepest slope on the site (approximate percent slope)? Approximately 20% c. What general types of soils are found on the site (for example, clay, sand, gravel, peat, muck)? If you know the classification of agricultural soils, specify them and note any prime farmland. The soil on site is Norma gravelly sandy loam, described in the Soil Survey of King County Area Washington (Snyder, 1973). d. Are there surface indications or history of unstable soils in the immediate vicinity? If so, describe. A seepage spring originates southwest of the site. There are no indications of unstable soils e. Describe the purpose, type, and approximate quantities of any filling or grading proposed. Indicate source of fill. The fill is for the construction of a single- family residence. Fill is not proposed. f. Could erosion occur as a result of clearing, construction, or use? If so, generally describe. Erosion as a result of clearing and construction is a potential problem. A seasonal stream flows along the south property line. g. About what percent of the site will be covered with impervious surfaces after project construction (for example, asphalt or buildings)? 2,250 square feet h. Proposed measures to reduce or control erosion, or other impacts to the earth, if any: Filter fencing will prevent the movement of suspended solids off -site. 4 :t`.:.<:✓Lf•t•',U .ir_,twlatxtrtihuTi:, +tYmW�-a Evaluation for Agency Use Only 2. Air a. What types of emissions to the air would result from the proposal (i.e. dust, automobile, odors, industrial wood smoke) during construction and when the project is completed? If any, generally describe and give approximate quantities if known. There will be the normal dust, equipment and automobile odors associated with the construction of a single - family residence. b. Are there any off -site sources of emissions or odor that may affect your proposal? If so, generally describe. No c. Proposed measures to reduce or control emissions or other impacts to air, if any: None proposed 3. Water a. Surface: 1) Is there any surface water body on or in the immediate vicinity of the site (including year -round and seasonal streams, saltwater, lakes, ponds, wetlands)? If yes, describe type and provide names. If appropriate, state what stream or river it flow into. Yes, an unnamed seasonal stream flows along the south property line. 2) Will the project require any work over, in or adjacent to (within 200 feet) the described waters? If yes, please describe and attach available plans. Yes. an existine pipeline will be replaced and the stream will and remaining stream buffer will be reconstructed and enhanced with native vegetation. 3) Estimate the amount of fill and dredge material that would be placed in or removed from surface water or wetlands and indicate the area of the site that would be affected. Indicate the source of fill material. 11.1 cu. yds of stream substrate and rock. 5 :iwc.i.1c'.l +i.iAf!�ti:.vt {Jirt�dS!•Ti:eirvv �`� ..._..�..�..,'w. Evaluation for Agency Use Only 4) Will the proposal require surface water withdrawals or diversions? Give general description, purpose, and approximate quantities if known. No 5) Does the proposal lie within a 100 -year floodplain? If so, note location on the site plan. No 6) Does the proposal involve any discharges of waste materials to surface waters? If so, describe the type of waste and anticipated volume of discharge. No b. Ground: 1) Will ground water be withdrawn, or will water be discharged to ground water? Give general description, purpose, and approximate quantities if known. No 2) Describe waste material that will be discharged into the ground from septic tanks or other sources, if any (for example: Domestic sewage; industrial, containing the following chemicals ...; agricultural; etc.). Describe the general size of the system, the number of such systems, the number of housed to be served (if applicable), or the number of animals or humans the system(s) are expected to serve. None c. Water Runoff (including storm water): 1) Describe the source of runoff (including storm water) and method of collection and disposal, if any (include quantities, if know). Where will this water flow? Will this water flow into other waters? If so, describe. The source of runoff will be roof drains and the driveway. Runoff will flow into the road ditch that the stream flows into. 2) Could waste materials enter ground or surface waters? If so, generally describe. Yes, pollutants from the street and driveway may enter surface waters. 6 Evaluation for Agency Use Only d. Proposed measures to reduce or control surface, ground, and runoff water impacts, if any: Vegetative enhancement of the stream buffer, substrate and rock in channel to prevent erosion. 4. Plants a./Check or circle types of vegetation found on the site: eciduous tree: alder, maple, aspen, other evergreen tree: fir, cedar, pine, other ,shrubs ■■ grass pasture crop or grain _ wet soil plants: cattail, buttercup, bulrush, skunk cabbage, other _ other types of vegetation b. What kind and amount of vegetation will be removed or altered? Reed canarygrass, Himalayan blackberry, red alder, western red cedar, and willow. c. List threatened or endangered species known to be on or near the site. None d. Proposed landscaping, use of native plants, or other measures to presence or enhance vegetation on the site, if any: See Mitigation Plan, J. S. Jones and Associates, Inc., June 30, 1999 5. Animals a. Circle any birds and animals which have been observed on or near the site or are know to be on or near the site: birds: hawk, heron, eagle, songbirds, other: mammals: deer, bear, elk, beaver, other: fish: bass, salmon, trout, herring, shellfish, other: b. List any threatened or endangered species known to be on or near the site. None 7 c. Is the site part of a migration route? If so, explain. Yes, Pacific Flyway EVALUATION FOR AGENCY USE ONLY d. Proposed measures to preserve or enhance wildlife, if any: Vegetative enhancement of wetland, stream, and buffers. 6. Energy and Natural Resources a. What kinds of energy (electric, natural gas, oil, wood stove, solar) will be used to meet the completed project's energy needs? Describe whether it will be used for heating, manufacturing, etc. Electricity for heating b. Would your project affect the potential use of solar energy by adjacent properties? If so, generally describe. No c. What kinds of energy conservation features are included in the plans of this proposal? List other proposed measures to reduce or control energy impact, if any: No 7. Environmental Health a. Are there any environmental health hazards, including exposure to toxic chemicals, risk of fire and explosion, spill, or hazardous waste, that could occur as a result of this proposal? If so, describe. No 1) Describe especial emergency services that might be required. Fire and emergency medical 2) Proposed measures to reduce or control environmental health hazards, if any: None 8 Z Z W JU U O. N •U: W= u. WO u_ = C! Z= I— 0 • Z I— W • U� O U, = U_! O: 'W U =. O~ Z EVALUATION FOR AGENCY USE ONLY b. Noise 1) What types of noise exist in the area which may affect your project (for example: traffic, equipment, operation, other)? Aircraft 2) What types and levels of noise would be created by or associated, with the project on a short-term or a long -term basis (for example: traffic, construction, operation, other)? Indicate what hours noise would come from the site. Construction noise between the hours of 7 am and 5 pm on weekdays 3) Proposed measures to reduce or control noise impacts, if any: None 8. Land and Shoreline Use a. What is the current use of the site and adjacent properties? The site is currently a vacant lot. Adjacent properties are single- family residences. b. Has the site been used for agriculture? If so, describe. No c. Describe any structures on the site. None d. Will any structures be demolished? If so, what? No e. What is the current zoning classification of the site? LDR f. What is the current comprehensive plan designation of the site? LDR 9 tr. EVALUATION FOR AGENCY USE ONLY g. If applicable, what is the current shoreline master program designation of the site? Not Applicable h. Has any part of the site been classified as an "environmentally sensitive" area? Is so, specify. Yes, the entire site is wetland with a stream present. i. Approximately how many people would reside or work in the completed project? Between one and five j. Approximately how many people would the completed project displace? None k. Proposed measures to avoid or reduce displacement impacts, if any: Not applicable 1. Proposed measures to ensure the proposal is compatible with existing and projected land uses and plans, if any: None 9. Housing a. Approximately how many units would be provided, if any? Indicate whether high, middle, or low - income housing. One b. Approximately how many units, if any, would be eliminated? Indicate whether high, middle, or low - income housing. None c. Proposed measures to reduce or control housing impacts, if any: None 10. Aesthetics a. What is the tallest height of any proposed structure(s), not including antennas; what is the principal exterior building material(s) proposed? Twenty -five feet b. What views in the immediate vicinity would be altered or obstructed? None c. Proposed measures to reduce or control aesthetic impacts, if any: None 10 TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY 11. Light and Glare a. What type of light or glare will the proposal produce? What time of day would it mainly occur? None b. Could light or glare from the finished project be a safety hazard or interfere with views? None c. What existing off -site sources of light or glare may affect your proposal? None d. Proposed measures to reduce or control light and glare impacts, if any: None 12. Recreation a. What designated and informal recreational opportunities are in the immediate vicinity? None b. Would the proposed project displace any existing recreational uses? If so, describe. No c. Proposed measures to reduce or control impacts on recreation, including recreation opportunities to be provided by the project or applicant, if any: None 13. Historic and Cultural Preservation a. Are there any places or objects listed on, or proposed for, national, state, or local preservation registers known to be on or next to the site? If so, generally describe. No b. Generally describe any landmarks or evidence of historic, archaeological, scientific, or cultural importance known to be on or next to the site. None c. Proposed measures to reduce or control impacts, if any: None 14. Transportation a. Identify public streets and highways serving the site, and describe proposed access to the existing street system. Show on the site plans, if any. The site is located between Military Road and Hwy. 99, accessed from S.132 "" St. and 33rd Ave. S. 11 TO BE COMPLETED BY APPLICANT EVALUATION FOR AGENCY USE ONLY b. Is the site currently served by public transit? If not, what is the approximate distance to the nearest transit stop? The nearest bus stop is at Highline Riverton Community Hospital c. How many parking spaces would the completed project have? How many would the project eliminate? The project will have two parking spaces outside the garage and will not displace any parking spaces. d. Will the proposal require any new roads or streets, or improvements to existing roads or streets, not including driveways? If so, generally describe (indicate whether public or private). No e. Will the project use (or occur in the immediate vicinity of) water, rail, or air transportation? If so, generally describe. No f. How many vehicular trips per day would be generated by the completed project? If known, indicate when peak volumes would occur. 2 -6 g. Proposed measures to reduce or control transportation impacts, if any: No 15. Public Services a. Would the project result in an increased need for public services (for example: fire protection, police protection, health care, schools, other)? If so, generally describe. No b. Proposed measures to reduce or control direct impacts on public services, if any. No 16. Utilities a. Circle utilities currently available at the site: electricity, natural gas, water, refuse service, telephone, sanitary sewer, septic system, other. b. Describe the utilities that are proposed for the project, the utility providing the service and the general construction activities on the site or in the immediate vicinity which might be needed. Seattle City Light, U. S. West, Seattle Public Utilities C. Signature The above answers are true and complete to the best of my knowledge. I understand that the lead agency is relying on them to make its decision. ,/ Signature: /� Date Submitted: 7/1 ,99 12 ► J S JONES AND ASSOC: CO BE COMPLETED BY APPLICANT 1 :4WD f25360b E. SUPPLEMENTAL SHEET FOR ALL PROJECT AND NON PROJECT PROPOSALS Evaluation for Agency Use Only The objectives and the alternative means of reaching the objectives for a proposal will be helpful in reviewing the aforegoing items of the Environmental Checklist. This information provides a general overall perspective of the proposed action in the context of the environmental information provided and the submitted plans, documents, supportive information, studies, etc. 1. What are the objective(s) of the proposal? The objective of the proposal is to obtain a sin • le -famil residence • ermit and com • 1 with the sensitive area regulations to the greatest extent possible. 2. What are the alternative means of accomplishing these objectives? There are no alternatives, because the applicant has requested the reasonable use of the property with the minimum impact possible to wetland. Compensation for impacts is limited to vegetative enhancement of existing wetlands and restoration of the stream channel. Since the entire site is wetland, there is no area that wetlands can be created in. Existing_ wetlands are dominated by invasive non- native plants in the understory and would benefit from enhancement. The stream channel is an eroded ditch. Restoration of the stream will provide an esthetically Pleasing and stable channel. 3. Please compare the alternative means and indicate the preferred course of action: Denying the applicant a single- family residence based on the presence of wetlands would constitute a taking of property and may legally require com•cnsation. The minimum reasonable use of the site is for one sin_le- family residence, with minimum setbacks to the street and side of lot, and minimum yard area adjacent to the proposed house. Although mitigation in the form of creating wetland for wetland impacts is not possible, the site will benefit from vegetative enhancement of remaining wetlands and stream restoration. These measures are the only possible mitigation. The preferred course of action is minimal impact by selecting the least impact location for the residence, and strean3 restoration and vegetative enhancement of remaining wetlands. 1 J S JONES AND ASSOC 1 206 7253606 P. OS Evaluation for Agency Use Only 4. Does the proposal conflict rehensive Ladd Use Policy Plan? If so, what policies of the plan? There is no conflict with the Tukwila Con prehensive Land Use Policy Plan. The'proposal. is consistent with zoning and in character with the nei hborhood. Proposed measures to avoid or reduce the conflict(s) are: None z W; no, 2, 6 J U; U O W =' J F-. W0 2 J: u_ d W Z� o Z W • w • -,- 10 -; C3 H; w W; = Ui U Y2. O F-. 4 City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director PLANNING DIVISION COMMENTS DATE: ' June 15, 1999 APPLICANT: Jihad Keirouz RE: D99 -0168, New Single Family Home ADDRESS: • 13041 33rd Avenue South Please review the following comments listed below and submit your revisions accordingly. If you have any questions on the requested revisions, Carol Lumb is the planner assigned to the file and can be reached at (206) 431 -3661. 1. A letter dated June 9, 1999 from Charles Repath, J.S. Jones and Associates, was submitted evaluating the wetland located on the site. This letter states that the property is entirely wetland except for a 2 -5 foot fringe along the south property line. As a result, before the building permit can be processed, you must submit a Reasonable Use Exception application and a SEPA application. These applications are attached. The Planning Commission reviews and makes a decision on Reasonable Use applications at a public hearing. Attachment: Reasonable Use Exception Application SEPA Application c: \carol \general \d99 - 0168 -2.doc 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431 -3670 • Fax- (206) 431 -3665 z • z`. • w o O` w =. -J w• o 11 a. �w 2 z 1._ o w I- U� .o N 43 F-, al z' ui 0 F- z J. S. uD ones and Associates, ]Irkc. June 9, 1999 Mr. Jihad Kierouz J.A.K. Inc. 13407 51st Avenue West Edmonds, Washington 98062 RE: Lot 12, Robbins Block 6, Located Immediately South of 13031 33"' Avenue South, Tukwila, Washington Dear Mr. Kierouz: The property is entirely wetland, except for a 2 to 5 -foot fringe along the south property line where old Fill was placed for the residence to the south. The northeastern third of the site has been recently graded. The undisturbed portion of the site is dominated by a hydrophytic plant community. Dominant species include western red cedar (71n ja plicata), giant horsetail (Equiselrnn telmaleia), creeping buttercup (Ranunculus repens), reed canarygrass (Ranunculus repens) (see attached data sheets). Soils are black gravelly sandy loam from 0 to 20 inches. Soils were inundated or saturated to the surface. In the graded portion of the site, vegetation had been cleared. Soils are gleyed at ten inches. Wetland hydrology was not present a the time of the June 8, 1999 site visit, but was present on a previous site visit. According to the City of Tukwila Sensitive Areas Overlay from the Tukwila Municipal Code, the wetland is an isolated "Type 3 wetland. "Type 3 wetlands (are) those wetlands which are equal to or less than one acre in size and that have two or fewer wetland classes" (Tukwila Municipal Code, 1997). A Type 3 watercourse crosses the property from west to east. Tukwila requires a 25 -foot buffer for Type 3 wetlands and a 15 -foot buffer for Type 3 watercourses. An additional 10 -foot building setback is required for residential developments (Tukwila Municipal code, 1997). The only way to it appears you can achieve the intended use for this property is to apply for a reasonable use exception. Section 18.45.115 of the Tukwila Municipal Code, explaining exceptions to Tukwila wetland regulations, is attached. J. S Jones and Associates, Inc. does not guarantee that any intended use may be achieved. Wetlands are subject to seasonal and annual variation. Use is dependent upon approval of all regulating jurisdictions. Very Truly Charles Repath Wetland Biologist 3408 52nd Place, N.G. TACOMA, WASHINGTON 98422 253 -942 -7131 / FAX 253 -942 -7132 3eM00+.414.,,.......11,,,,,,C + iNt.f0s∎n AtVie3W.CWOMM H.xvawm.• .- .............. -. z �z w J 0. 00 co u) w w= - H w 0: u_ zd �w z� F- 0' z 1: o O � D H,. Ill Ili 1- 1= 0 wz Z City of Tukwila John W Rants, Mayor Department of Community Development Steve Lancaster, Director May 25, 1999 Mr. Jihad Keirouz 13407 51st Avenue W. Edmonds, WA 98026 Re: Single - Family Residential Permit #D99 -0168: Sensitive Area Requirements. Dear Mr. Keirouz: This letter is in response to your questions about processing a permit to construct a new single - family house in sensitive areas. The site address is 13041 33`d Avenue S. According to the City's Sensitive Areas Overlay, there are no water features mapped on the site. However, a watercourse originating from groundwater, is located on the south boundary of the subject, Lot #12. In addition, potential wetland area is also present adjacent to the watercourse on the site. You have developed the two lots immediately north of the subject property ( #D98 -0215 & #D98 -0175. These two existing legal lots of record were not affected by the watercourse. However, Lot #12 is subject to the City's Sensitive Areas Ord. (TMC Chapter 18.45). My memorandum dated 7/17/98 to Gary Barnett, Public Works Engineer was sent to you (copy attached). Briefly, I requested a wetland study at that time to inform you of an issue with developing Lot #12. A recent site visit observed disturbance and potential wetland impacts on the Lot. Prior to processing a building permit you must submit the following: 1) On -site wetland study, prepared by a qualified wetland expert, to describe existing conditions and extent of wetland area, if present. Include the watercourse in the study and provide wetland and watercourse ratings per the Sensitive Areas Ord. The extent of wetland/watercourse areas will need to be mapped/surveyed and include standard buffer setbacks. 3) Based on my observations, Lot #12 may be completely affected by the sensitive areas. The Sensitive Areas Ord. includes an Exception process for this type of situation (TMC 18.45.115). An application for a Reasonable Use Exception permit is appropriate if sensitive area regulation would deny all reasonable use of a property. 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 z JU UO N: W =. J H, u- w0 = a. I— O z w �-. 0a U to, • •w w: H U: z w O z Mr. Jihad Keirouz May 25, 1999 Page 2 In summary, it appears the Exception process may be necessary for building on the subject lot. The Ordinance standard for wetland mitigation is a ratio of 1.5 to 1.0 area replacement. An alternative may be to mitigate (replace) wetland area off the site in order to use most of the property for a house. The watercourse should be preserved as an open channel since it is located along the south property boundary. I have also attached a copy of the Sensitive Areas Ordinance. If you or your wetland expert have questions, you may call me at 206 - 431 -3662. Sincerely, C. Gary ' chulz Urban Environmentalist Cc: Steve Lancaster, DCD Director Carol Lumb, Associate Planner City of Tukwila John W. Rants, Mayor Department of Community Development Steve Lancaster, Director PLANNING DIVISION COMMENTS DATE: May 19, 1999 APPLICANT: Jihad Keirouz RE: D99 -0168, New Single Family Home ADDRESS : 13 041 33rd Avenue South Please review the following comments listed below and submit your revisions accordingly. If you have any questions on the requested revisions, Carol Lumb is the planner assigned to the file and can be reached at (206) 431 -3661. 1. A wetland study is required for this site, as noted in the attached copy of a memo that was provided in 1998 to the applicant, when a building permit was applied for on lot 12. The wetland study must be submitted and reviewed along with the building permit application. Attachment: 7/17/98 Memorandum c: \carol \general \d99- 0168.doc 1,41 A u.n cd k. Pd 11* v_04-1),-) l 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • (206) 431-3670 • Fax (206) 431-3665 z _ ~' j--w ce C 0 0. J = t-- W w: wo g5 u_ to �. I0 �w z� I-0. w O I-' w F— LL 0: lil 1- 0 z City of Tukwila John W. Rants, Mayor Department of Public Works Ross A. Eamst, P. E., Director PUBLIC WORKS DEPARTMENT COMMENTS DATE: September 23, 1998 PROJECT NAME: Keirouz Residence PLAN CHECK NO.: D98 -0287 PLAN REVIEWER: Contact Tammy Frederick, Permit Technician at (206) 433 -0179, if you have any questions regarding the following comments. Due to the amount of surface water associated with your property the Public Works Dept. will require that your storm drainage plan be disigned by a licensed engineer. Please submitt 4 copies of your new site plan with the engineer deisgned storm drainage plan to us as soon as possible so we can review and approve your engineered plan. cc: Gary Barnett, Public Works ATTACHMENT E 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: (206) 433 -0179 • Fax (206) 431-3665 TUKWILA BUILDING DIVISION PLAN REVIEW COMMENTS DATE: September 11, 1998 PROJECT NAME: . Keirouz residence PLAN CHECK NO: D98 -0216 PLAN REVIEWER: Contact Bob Benedicto at (206) 431 -3670 if you have questions regarding the following comments. 1. The foundation design that was submitted with this application was based upon an assumed allowable soil bearing pressure of 2000 p.s.f. The building code permits the design of foundations for stud bearing walls to be in accordance with U.B.C. Table 18 -I -C provided that the design Loads for continuous footings have a load of less than 2000 pounds per lineal foot and isolated footings have design loads of less than 50,000 pounds and the foundations is on nonexpansive soil. Re: U.B.C. 1805. The current site conditions indicate that the soil on this lot may be of organic clays and perhaps an expansive soils condition. In addition, there is an active spring to the West side of the lot that is pumping water over the proposed building footprint. Based upon this new information regarding the site conditions, we are not permitted by code to approve the prescriptive foundation design, as submitted, without additional information. Provide a geotechnical report prepared by a professional engineer. The report should include recommendations for foundation type and design criteria, including bearing capacity, provisions to mitigate the effects of expansive soils (if found) and provisions to drain the spring water from around and under the proposed building. A revised foundation plan and detail's may be required based upon the findings of the geotechnical report. End. Initial plan review comments. z z re w 0 co 0! .w = --I I—. w0 co LL =w z�.. I— O Z I—: ww. M • ;O N' O H' w La = U. Z' Off. z Nit-had SFR. City of Tukwila 6200 Southcenter Boulevard • Tukwila, Washington 98188 John W Rants, Mayor September 4, 1998 Mr. Jihad Keriouz 13520 Linden Avenue N. Seattle, WA 98133 Re: Single - Family Demolition Permit #M198 -0113 & Building Permit #D98 -0215. Dear Mr. Keirouz: Based on a site visit I conducted on approximately 8/12/98, your house demolition/construction activities have encroached and disturbed a sensitive area located on Lot #12 of the Robbins Springbrook Addition in Tukwila. The site is located along the west of 33rd Avenue S. just south of S. 130th Street. Portions of the lot were cleared by machinery and a small drainage pipe was plugged. I discussed the situation with your biologist by telephone and met with you on the site last week. There is wetland area on the lot associated with a small drainage that enters the property from the southwest. The local area has groundwater seepage and city mapped wetlands are present to the west along 32nd Avenue S. Per the City's 8/11/98 Correction Letter #1 and activities that occurred on -site, you will need to submit the following: 1) Wetland study that identifies the extent of wetland and watercourse area affecting the site. 2) A plan to restore the disturbed drainage and maintain it as an open system. This plan may include incorporating an enhanced drainage channel that become part of the final building permit for the single - family residence. ATTACHMENT D Phone: (206) 433 -1800 • City Hall Fax: (206) 4334833 Mr. Jihad Keriouz September 4, 1998 Page 2 Please submit the required study and plan by October 1, 1998 to continue the building permit review. An Hydraulic Approval Permit (HPA) may be required by the State Department of Fish and Wildlife prior to altering the watercourse on the site. If you have questions about this letter contact me at 206 - 431 -3662. Sincerely, cif ?' C. Gary Schulz Urban Environmentalist cc: Steve Lancaster, DCD Director Joanna Spencer, PW Associate Engineer 4 Kelcie Peterson, DCD Permit*Coordinator z u�D J Ui U co o W. W =; •w•o• 1 =d z o. • ,o'P-i w w' V' Z. .O •Z • July 23, 1998 TO: Kelcie Peterson, Permit Coo; FM: Carol Lumb, Associate Plan 'er RE: Permit D98 -0215, Keirouz Residence A re- review of this permit application indicates that it should be denied based upon the memo from Gary Schultz, Urban Environmentalist, which notes' the presence of a wetland on the building site. As a result, Chapter 18.45 of the Tukwila Zoning Code applies to development of the site. If you have any questions, please call me at 431 -3661. cc: Jack Pace, Planning Manager Z mow, u6= 00 cow: w =; J I- w0 L,.. •'. 0, w Z I- 0, Z :w 2 O- Ili 11i 1- U - ~O 111 Z' U N; H Z PUBLIC WORKS DEPARTMENT'COMMENTS DATE: July 21, 1998 PROJECT NAIL: Keirouz Residence PLAN CHECK NO.: D98 -0216 PLAN REVIEWER: Contact Tammy Frederick, Permit Technician at (206) 433 -0179, if you have any questions regarding the following comments. After reviewing the plans you submitted the Public Works Department finds that the site plan is incomplete, we will need four (4) copies of the site plan showing the following information: 1. The Storm.Drainage System you show on your plan does not exist.: Either show your storm water connecting to existing catch basin or submit a plan showing how you will be creating a new storm drainage system and where it will tie into existing system. Include the type of material to be used. 2. There appears to be a storm drainage pipe running through the property which connects to the catch basin at the southeast corner of your property. Show where this existing pipe is located including where the other end is. 3. The topography on the site plan seems to be off. Is the topography shown how the lot will be after grading? If so, estimate the amount of cut and fill to be done for a land altering permit. 4. Show the location of the nearest fire hydrant. 5. Show the location of the closest power pole and how the lines will be connected to the house. The City of Tukwila has an undergrounding ordinance requiring the power, telecommunications, and cable service lines be underground from the point of connection on the pole to the house. cc: Gary Barnett, Public Works ATTACHMENT H z 00 ND w= Jam. ui � 2 ga -. u. a I- w zF I- 0' Z jo o N. 0 I- w w; F- U 0 w.. U= 0 City of Tukwila John W. Rants, Mayor Department of Public Works Ross A. Earnst, P. E., Director PUBLIC WORKS DEPARTMENT COMMENTS DATE: July 20, 1998 PROJECT NAME: Keirouz Residence PLAN CHECK NO.: D98 -0215 PLAN REVIEWER: Contact Tammy Frederick, Permit Technician at (206) 433 -0179, if you have any questions regarding the following comments. After reviewing the plan you submitted the Public Works Department denies the plan due to the attached Memorandum from Gary Schulz, Urban Environmentalist, dated 7 -17 -98 addressing that a wetland study will be required prior to any land altering. Please resubmit 4 new sets of your site plan when the wetland issue is resolved. cc: Gary Barnett, Public Works 6300 Southcenter Boulevard, Suite #100 • Tukwila, Washington 98188 • Phone: (206) 433 -0179 • Fax (206) 431 -3665 z • _ I• . Ce . U• .0 0: • wm wO w •• •a z � • is z 0 :. • z�-: U� OU Zi • .'= 1110 F-- _, • LI 0i z. O .z • MEMORANDUM TO: Gary Barnett, Development Engineer Tammy Frederick, Permit Technician FROM: Gary Schulz, Urban Environmentalist DATE: July 17, 1998 RE: Keirouz Single-Family, Permit #D98 - 0215 & -0175 Preliminary observations of wetland drainage. At your request, I visited the site of 2 existing lots on 33rd Avenue S. earlier this week. Your observations of active drainage on the southern lot are warranted. I observed groundwater drainage in the ditch along the front of the property which may be considered a regulated watercourse. The greater area of concem is the extent of wetland on the property. Wetland associated vegetation is present throughout with an apparent seep area on the south property boundary. As required by the Sensitive Areas Ordinance, a wetland study will be required prior to any land altering activity on the southern parcel, Lot #12. It is likely that this lot will not be developed without some wetland mitigation planning. Please refer the applicant to me if there questions at 206-431-3662. Thank you for your attention to the situation. CC: Steve Lancaster, DCD Director DATE: PROJECT NAME: PLAN CHECK NO.: PLAN REVIEWER: FIRE DEPARTMENT COMMENTS June 24, 1998 Keirouz, Jihad D98 -0215 Nick Olivas, Assistant Chief, (206) 575 -4404 Please show the closest fire hydrant location on your site plan. CITY OF TUKWILA Address: 13031 33 AV S Permit No: D98 -0216 Suite: Tenant: Type: DEVPERM Parcel #: 735960 -0474 • k• kk****:** k• k* k: 4' k: k' k' k• kk, k• kk• k**** k ****** * :1* * :*••k•k:k*k•k•k•k*'• ' k• r• k :Fk•k•k•k•kkkk.ik :k :k*- .4'k :+' kA*k Permit Conditions: 1. No changes will be made to the plans unless; approved by the Architect or Engineer and thuk.w.i_ta Building Division. 2. Plumbing permits sha11,..be.;,obta:inedd .through the Seattle- I,:ir,a County Department :K04b1�rc"HF•al th:"'P -1unib 1,112 ,will be inspected by thaty, jenc_v. .4i nci ud i ng all gas" i psi ng F': (/296 -4722) . J/4" 11 IX t �J� „=" ;. 3. Electrical ple rafts shaTj be obtained ,through._:the •Washington State Divi.sa,on of Labor` =and Industries an'd4a11 :,electrical work wi 1 4 b.e in %petted bye that' a encv' ;(248- 6630)'. ,, 4. All mecfi•aM eat wbrk shall be sunder separate perm.i t '`� s:;iiaii by Status: ISSUED Applied: 06/1911998 Issued: 10.1411998 .=re 2 Z 00 CO o J w0 u.Q the City of '�1'1'kwitla;•3 w,,j yR. _ ;ti =w 5. A 1 1 p :t.T ,a �- = pet}mits, insPeyttionOe.dords, and approved - planst.shal'•t'pe ZF, avai��ab�le. at the, job se�''pr.ior t.Vthe start of'.t3any ,Gan -� i\ F-0 struon.Y These .doci, ents ar�,e,.,.to be maintained.�andoavai 1'- , wI' ab101int1 ina�'1 inspte tion a•pprov�l; is granted. •a .;;,xs �' \ 2D 6. Engineered truss draWiTigs. and calculations shall be onJs3,te Y o co U and availgble.,to the�b Oi,lding',ins,p�ejcttor ^f_or insnect'�ions„,,, k �; °� 0- pur uses. Dobumen.ts Sha 11 bear, ;.th,e ;se,a_.L. -and s i gnaturer of . a r ; Wa'', ingtonl St'at'e -P o� f,f sOo al '•E'nginee6'; w. ", _ � t iv, y. 1, 1-- 7. Any exposed Insulations back`;ing raater�aT;shall have pa Fiame �: , �~O Spread tld ing, of.. 25 mess and!• material ,shall bear i'd'errti -:; q; f alto i '�a;t i on'`b homi ng th:e,f tire �p`erforniance...rat'i ng thereof . 5 Yas U 8. A11 corist ctct'ion Ca -(be .iri'.,•cori`f•ormance'rw,ith approved '' , 1"="F_ pla.' : �� ar�d giairements of the UniOrm Btzii-drna Cody' (1''997 3F i 0 Edi ti'+on) s'amApded, Uniform Mecha'nT a-1 --Code G1997� Edr't=i;on)J,j.! and'Wash tpn State Energy Cade.;' (1.997 +Ed.i t ton) . a 4 '" t;%, 9. Not1f th City '�Qf Tukwila Bui lding D uisi'on `.pr1br to '�''' p 1 ac r n_ any concr&te . ACCEPTANCE OF..,THE FOUNQAT)ION EXCAVI T4 ION CON TIONSr\,�1ND ` RAINAGE SY alEM B1 6EOTEt �f' CONSULTAN ?S : INC. I.c.ki;tourRgOpRidibg0 FOOTING INSPECTION AP9 dVAL or' ,. TUKWILA BULDI I VISIONte.. ,4 «° 40 � 10. All wood tQivemainin placed 2ori'c4te shall be1treateid;' ood. 11. There s ha l T R � occupancy 1 'th b 1 d i ng (s) un �1 e h e final i nspecitO" has been cop1ee r the Tukwil-a $u i 1 d i ng Inspector.,.., 4 12. Temporary erbsion''c :o nr ,l. nmeasures s Ybemp'lemented as the first order of bua:esto` paventd"Tb"rrentation off- site or into existing storm`dr�a >1- riag`e= `facilities. 13. Driveways shall comply with City residential standards. Driveway width shall.be a 10' minimum and 20' maximum. Slope shall be a maximum of 15%. Turning radii shall be a minimum of five feet. 14. Driveways shall be paved for a minimum distance of 20' from the edge of existing road pavement. 15. For residential driveways, a minimum '12" concrete or ADS N -12 pipe shall be installed under the driveway at. the ���� existing drainage ditch location. J 16. It is strongly recommended that storm drainage de r -s TT, certified by a licensed engineer; otherwise, the owner assumes liability for the design and anv subsequent related damages. 17 c.uh,ir•:a,ia nrenar,atinn innlr,din,i drainage. excavation. .compaction. and fill requirement shall conform strictly with recommendations given An the soils report by Geotech Consul- •tants. Inc. • A LETTER OF ACCEPTANCE WILL BE REQUIRED OF THE GEOTECH ENGINEER PRIOR TO COVER OF REQUIRED DRAINAGE SYSTEM. CALL FOR GEOTECH INSPECTION PRIOR TO CALLING FOR FOUNDATION INSPECTION. 18. Validity of Permit. The issuance of a permit or approval of plans, specifications, and computations shall not be con- strued to be a permit for, or an approval of, any violation of any of the provisions of the building code or of any other ordinance of the .jurisdiction. No permit presuming to give authority to violate or cancel the provisions of this code shall be valid. 19. The site shall have permanent erosion control measures in place as soon as possible after 1 grading has been y completed and prior toa� ~ u� 20. Hauling over 50 cv t_,0 - r qu re ap� IP'T`to l '••for a Hauling Permit prior ta,d`nssocta ed activity. 21. No sewer des i n- Wes' pr:;o�r�l,de s part of t'he app. {L at i on submittal. ' piide :pewe x estant and-- y��ubseqpent construction shall be cp-lete:dii��o dance with Ci'v ewer;, sirs "n'ards,. 22. Downspouit'dri rew v` pat. o'an-d dr�ai'nag� from- other ,i imperviaui' areas? sha1.1,,be coi.l1ected in an'�9n- sitecstrom;� r�s sha11``be y ti '` drain s stem. �Drai �£•: iin. diameaer.. P:UC.,; 'r,� schedi,.:fi�e 40 or coraregatedi poly ett're ,yne pipe kr�i�th •,a ;smooth.��, inter�l"or ,all. MO ADS f�1�ek,;pipe.T.r'Drain shall 'be 1a�'1.d with \a, a mi' tmuni,2 ;~,slope fo..i~ti.gravitj,,.•d4fscharge to location„ �' ';� app ,,o ed+gti PuLf1 i c WoP s p r p 'y 'i t � De t'!"i?ow s outs shall riot.,•cd »"'hec, `; to Jt•ooti:ng rains. Fst t-i�ng�;'drain Sand downspouts may share ' .:It a s prig l e "' di'' sci�arge- .p:fipe••-��iowrrstreaM (MIf -0E1 5') of the '1 owest_ J" It • footing Brainy -�. i ;` 1 r-' 7 e ; ,4 1, 23. TheJJCi ty o f. Tpuii •i.l.a h'as`lart lundergi�on'd.•f+ng ordinance r• equ,.i`r;;ingi; th1e�4power % teale•oon)munlcatiDins, and 0cab0•67,service 1 iriles be 1. IV unid.e ground f romr`th poi n,t i f• co nnect••t& on the pole tv the :Yz 24. Th� pp i;ca "•nty�mus `'' < <y5~4y2' . p ,- �r1 a.t =i:f�' the C'�t� ''�u -fi�"1 � a � s e c t o r �� ; •;' 20 331Q1.0 upon. commencement ar ,eomp' 'tton_ of w.ark' t•I , lea �24 hatrrs -,in advance. Al li,nS'p�e��an.reques�Cs torte ;.,r 'uti� w wi�or must .also be made T ou s n 4vance. ?i ` ,1j';' 25. THE �A . LI ANT SHALL BUILD THE RIOT NGf NUt'S- 7OM. 'DRAINAGE v /.A'. SYStEMJ; ER THE RECO OF MMENDATION GE TEC4 CONSU�. ��TANTS, INS,' , FIELD of ORT BATTED -15 -9L WHI kl IS 'T ACHES��TO THEE SITE�`V/ • PLAN AN ADE PAR OF'iTJiI5 PERMIT. ,�'�� • •'ii f;' 1 1 4 1 b 4 A• 4- 11 f I ... . SECTION 1.1 DRAINAGE REVIEW ;' o.,PL... 5 ..,Lr_a. ,,z , y , ,,;zt. .rt Oiv a.. s• N;TS =�^,:: ,_� w; er.:..,;717 '` .`' et vz:r..,:�.. r -:1i, t.—z `.r:...',4:.`i'1 1,;: _...ti ^_, .ti`s *C "+1 _.. • �� - — _ )�REiEWTYEE °: �• .. INACY ... v.:,,,...,..1.,, ... - .ti�w}:= :�''''�,;�. ;Wr.. ..: :TA;B is • 01%,--v 0 ;.�.w:�,-.x,-- .,aa�•r� �::w- �. =r�ra� •. �...�t+t,.�;��, At`ERL�IINDEREACH:DRA :a,�.t >:4'+a =; :. ^faa�i�:? +1c,,.�..: .... • 'Drainage • . Small Site Review Targeted Drainage Review Full Drainage Review Large Site Drainage Review . • _ . . Single family residential projects that add 2,000 to 10,000 sf of new impervious surface AND clear < 2 acres or < 35% of the site, whichever is greater. Small Site projects or other small projects that are not subject to Full or Large Site Drainage Review as deter- mined in Sections 1.1.2.3 (p. 1 -13) and 1.1.2.4 (p. 1 -13), AND which have the characteristics of one or more of the following categories of projects: 1. Projects containing or adjacent to floodplains /sensitive areas; or projects . within a Landslide Hazard Drainage Area (LHDA) or Critical Drainage Area; or rural zoned projects subject to areal clearing limits per KCC 16.82.150(c) 2. Projects proposing to construct or modify a drainage pipe /ditch that is 12" or larger or receives runoff from a -12° or larger drainage pipe /ditch 3. Redevelopment projects proposing >_ $100,000 in improvements to a high -use site.(') All projects, including redevel- opment projects, that add >_ 5,000 sf (2,000 sf within a LHDA) of new impervious sur- face but do not qualify for Small Site Drainage Review, OR redevelopment projects costing ? $500,000 that create >_ 5,000 sf of contiguous PGIS from new and/or replaced impervious surface. UPDs, OR projects that result in >_ 50 acres of new impervious surface within .a subbasin or multiple subbasins that are hydraulically connected, OR projects on sites.> 50 acres within the recharge area of a sole- source aquifer. . Category 1 Category: 2 Category 3 SMALL. SITE REQUIREMENTS .1I • CORE REQUIREMENT #1 - Discharge at Natural Location ' • *(2) - ✓ - V CORE REQUIREMENT #2 Offsite Analysis *(2) 17 (3) 1( (3) ✓(3) - CORE REQUIREMENT #3 Flow Control *(2) • .V(3) V. (3) CORE REQUIREMENT #4 Conveyance System *(2) ✓ V . CORE REQUIREMENT #5 Erbsion & Sediment Control 1 17 '7 '7 - CORE REQUIREMENT #6 M aintenance & Operations • *(2) ✓ le CORE REQUIREMENT #7 Financial Guarantees & Liability *(2) 17 (3) V(3) 1((3) 1( (3) CORE REQUIREMENT #8 Water Quality . *(2) 1( (3) .,7 (3) SPECIAL REQUIREMENT #1 Other Adopted Requirements ./(3) .V(3) 17 (3) SPECIAL REQUIREMENT #2 Floodpin/Floodwy Delineation - .7(3) _/(3) l�� �(3) • SPECIAL REQUIREMENT #3 Flood Protection Facilities. .(3) _ _/(3) 1/(3) SPECIAL REQUIREMENT #4 Source Control �(3) 1/ (3) - V. (3) 1( (3) V (3) SPECIAL REQUIREMENT #5 Oil Control • 1( (3) 1,7(3) 1( (3) (1) Category 3 projects that install oil controls which construct or modify a 12 -inch pipe /ditch are also Category 2 projects. (2) May be applied by DOES based on project or site - specific conditions. (3) These requirements have exemptions or thresholds which may preclude'or limit their application to a specific project. 9/1/98* 1 -8 1998 Surface Water Design Manual „ 1.1.2 DRAINAG .EVIEW TYPES AND REQUIREMENTS" 1.1.2.1 SMALL SITE DRAINAGE REVIEW Small Site Drainage Review is a simplified .. alternative to Full Drainage Review for small residential building and subdivision projects adding less than 10,000 square feet of new impervious surface and restricting site clearing to less than 2 acres or less than 35% of the site, whichever is greater. The core and special requirements applied under Full Drainage Review are replaced with simplified small site requirements which can be applied by aLnon-enginee4 These requirements include flow control Best Management Practices (BMPs) such as setting aside open space to limit future site clearing, and using simple measures such as splash blocks and gravel trenches to disperse . or infiltrate runoff from impervious areas. Also included are simple BMPs for erosion and sediment control (ESC).7rFormal water quality treatment is not necessary. This alternative to Full Drainage Review acknowledges that drainage impacts for many small development proposals can be effectively mitigated without construction of costly flow control and water quality facilities. The Small Site Drainage Review process minimizes the time and effort required to design, submit, review, and approve drainage facilities for these proposals. In most cases, the requirements can be met with submittals prepared by contractors, architects, or homeowners without the involvement of a licensed civil engineer. T H R s H 0 1. D R Q M T 5 Threshold Small Site Drainage Review is allowed for any project that is subject to drainage review as determined in Section 1.1.1 (p. 1 -6) and that meets all of the following criteria: • The project is a single familx residential project,' AND • The project adds 2,000 to 10,000 square feet8 of new impervious surface, AND • The project clears less than 2 acres or less than 35% of the site, whichever is greater. Note: ,Some projects qualifying for Small Site Drainage Review may also require Targeted Drainage Review if they meet any of the threshold criteria in Section 1.1.2.2 (p. 1 -10). Any potential small site proposal may elect to go through Full Drainage Review described in Section 1.1:2.3 (p. 1 -13). Scope of Requirements IF Small Site Drainage Review is allowed, THEN the applicant may apply the simplified small site sus 01 • and draina • e des' • i - . - i. - s detailed in Small Site Drainage Requirements adopted as X-A.p endix C o this manual (detached) and available as a separate booklet from DNR or DDES. These requirements include simplified BMPs for flow control and erosion and sediment control. Note: An open space tract or covenant may be required to preserve uncleared areas. Exemption from Core and Special Requirements The simplified drainage requirements applied under Small Site Drainage Review are considered sufficient to meet the overall intent of the core and special requirements in Sections 1.2 and 1.3, except under certain conditions when a proposed project has characteristics that trigger Targeted Drainage Review (see the threshold for Targeted Drainage Review in Section 1.1.2.2, p. 1 -10) and may require the involvement of a licensed civil engineer. Therefore, any proposed project that qualifies for Small Site Drainage Review as determined above and complies with the small site drainage requirements detailed in Appendix C is considered exempt from all core and special requirements in Sections 1.2 and 1.3 except those which would apply to the project if it is subject to Targeted Drainage Review as specified in Section 1.1.2.2 (p. 1 -10). 7 Single family residential project is defined on page 1-4. 8 The threshold of 10,000 square feet of new impervious surface shall be applied by threshold discharge area and shall include all impervious surface that will ultimately result from the proposed project (e.g., impervious.surface that will result from • future homes within a plat or short plat). 1998 Surface Water Design Manual 1 -9 9/1/98 . SECTION 1.1 DRAINAGE REVIEI 1.1.2.2 TARGETED DRAINAGE REVIEW Targeted-Drainage Review (TDR) is an abbreviated evaluation by DDES permit review staff of a proposed project's compliance with selected core and special requirements. Projects subject to this type of drainage review are typically small -site proposals or other small projects that have site - specific or project - specific drainage concerns that must be addressed by a licensed civil engineer or DDES engineering review staff. Under Targeted Drainage Review, engineering costs associated with drainage design and review are kept to a minimum because the review includes only those requirements that would apply to the particular project:- 9/1/98 R E Q M T s Threshold Targeted Drainage Review is required for those projects subject to drainage review as determined in Section 1.1.1 (p. 1 -6), AND which are not subject to Full or Large Site Drainage Review as determined in Sections 1.1.2.3 (p. 1 -13) and 1.1.2.4 (p. 1 -13), AND which have the characteristics of one or more of the following project categories: • TDR Project Category #1: Projects that contain or are adjacent to a. floodplain, stream, lake, wetland, closed depression, or other sensitive area as defined by the Sensitive Areas Ordinance (codified in KCC 21A.24) excluding seismic, coal mining, and volcanic hazard areas; OR projects located within a Landslide Hazard Drainage Area9 or a Critical Drainage Areal': OR projects located within a rural zoned area11 subject to areal clearing limits under KCC 16.82.150(c) and which clear more than 7,000 square feet or 35% of the site, whichever is greater. • TDR Project Category #2: Projects that propose to construct or modify12 a drainage pipe /ditch that is 12 inches or more in size /depth or receives surface and storm water runoff from a drainage pipe/ditch that is 12 inches or more in size /depth. • TDR Project Category #3: Redevelopment projects that propose $100,000 or more of improvements . to an existing high -use site.t3 Scope of Requirements IF Targeted Drainage Review is required, THEN the applicant must demonstrate that the proposed project complies with the selected core and special requirements corresponding to the project.category or categories that best match the proposed project. The project categories and applicable requirements for each are described below and summarized in Table 1.1.2.A (p. 1 -8). Note: If the proposed project has the characteristics of more than one project category, the requirements of each applicable category shall apply. Compliance with these requirements requires submittal of engineering plans and/or calculations stamped by a licensed civil engineer registered in the state of Washington, unless deemed unnecessary by DDES. The engineer need only demonstrate compliance with those core-and .special requirements that have been predetermined to be applicable based on specific project characteristics as detailed below and summarized in Table 1.1.2.A (p. 1 -8). The procedures and requirements for submittal of engineering plans and calculations can be found in Section 2.3. 9 Landslide Hazard Drainage Areas are delineated on a map adopted with this manual (see map pocket inside of back cover). 10 See Reference Section 3 for a list of Critical Drainage Areas. 11 See Reference Section 1 for a list of rural zoned areas where this threshold applies. 12 Construct and modify is defined on page 1 -3. - 13 See the full definition of high -use site on page 1 -12. 1 -10 1998 Surface Water Design Manual 1.1.2 DRAINAGL ..EVIEW TYPES AND REQUIREMENTS TDR Project Category #1 • . This category includes projects that are too small to trigger application of most core requirements, but may be subject to site - specific floodplain or sensitive area requirements, or other area- specific drainage requirements adopted by the County. Such projects primarily include single family residential projects in Small Site Drainage Review. IF the proposed project meets the characteristics of TDR Project Category #1, THEN the applicant must demonstrate that the project complies with the following five requirements: • Core Requirement #5: Erosion and Sediment Control, Section 1.2.5 (p. 1-43) • Special Requirement #1: Other Adopted Area- Specific Requirements, Section 1.3.1 (p. 1 -59) • Special Requirement #2: Floodplain/Floodway Analysis, Section 1.3.2 (p. 1 -60) • Special Requirement #3: Flood Protection Facilities, Section 1.3.3 -(p. 1 -61) ' • Special Requirement #4: Source Control, Section 1.3.4 (p. 1 -61). In addition, DDES may require the applicant to demonstrate compliance with any one or more of the remaining seven core requirements in Section 1.2 based on project or site - specific conditions. For example, if the proposed-project contains or is adjacent to a SAO - defined landslide or steep slope hazard area, DDES may require compliance with "Core Requirement #1: Discharge at the Natural Location (Section 1.2.1, p. 1 -17). This may in turn require compliance with "Core Requirement #2: Offsite Analysis" (Section 1.2.2, p. 1 -19) if a tightline is required by Core Requirement #1. If a tightline is found to be unfeasible, DDES may instead require a flow control facility per "Core Requirement #3: Flow Control" (Section 1.2.3, p. 1 -25). If a tightline is feasible, "Core Requirement #4: Conveyance System" (Section 1.2.4, p. 1 -38) would be required to ensure proper size and design. Any required flow control facility or tightline system may also trigger compliance with "Core. Requirement #6: Maintenance and Operations" (Section 1.2.6, p. 1-46), "Core Requirement #7: Financial Guarantees and Liability" (Section 1.2.7, p. 1 -47), and possibly "Core Requirement #8, Water Quality" (Section 1.2.8, p. 1-49) if runoff from pollution - generating impervious surfaces is collected. • R E n M T s The applicant may also have to address compliance with any applicable sensitive areas requirements in KCC- 21A.24 as determined by DDES. TDR Project Category #2 This category is intended to apply selected core and special requirements to those projects that propose to construct or modify a drainage system of specified size, but are not adding sufficient impervious surface to trigger Full Drainage Review or Large Site Drainage Review. IF the proposed project meets the characteristics of TDR Project Category #2, THEN the applicant must demonstrate that the proposed project complies with the following requirements: • Core Requirement #1: Discharge at the Natural Location, Section 1.2.1 (p. 1 -17) • Core Requirement #2: Offsite Analysis, Section 1.2.2 (p. 1 -19) • Core-Requirement #4: Conveyance System, Section 1.2.4 (p. 1 -38) • Core Requirement #5: Erosion and Sediment Control, Section 1.2.5 (p. 1-43) • Core Requirement #6: Maintenance and Operations, Section 1.2.6 (p. 1-46) • Core Requirement #7: Financial Guarantees and Liability, Section 1.2.7 (p. 1-47) • Special Requirement #4: Source Control, Section 1.3.4 (p. 1 -61). R E. a M T s 1998 Surface Water Design Manual 9/1/98 1 -11 1.2.2 CORE REQUIREMENT #2: OFFSITE ANALYSIS 1.2.2. CORE REQUIREMENT #2: OFFSITE ANALYSIS R E Q M T All proposed projects must submit an offsite analysis report that assesses potential offsite drainage impacts associated with development of the project site and proposes appropriate mitigations of those impacts. The initial permit submittal shall include, at minimum, a Level 1 downstream analysis as described in Section 1.2.2.1 below. Intent: To identify and evaluate offsite drainage problems that may be created or aggravated by the proposed project, and to determine appropriate measures for preventing aggravation of those problems in accordance with the requirements of this manual. The primary component of an offsite analysis report is the downstream analysis, which examines the drainage system within one - quarter mile downstream of the project site or farther as described in Section 1.2.2.1 below. It is intended to identify existing or potential/predictable downstream problems so that appropriate mitigation, as specified in Section 1.2.2.2 (p. 1 -22), can be provided to prevent aggravation of these problems. A secondary component of the offsite analysis report is an evaluation of the upstream drainage system to verify and document that impacts will not occur as a result of the proposed project. The evaluation must extend upstream to a point where any backwater effects created by the project cease. 0 EXEMPTION FROM CORE REQUIREMENT#2 A proposed project is exempt from Core Requirement #2 if any one of the following is true: 1. DDES determines there is sufficient information for them to conclude that the project will not have a significant adverse impact on the downstream and/or upstream drainage system, OR. 2. The project adds less than 5,000 square feet of new impervious surface, AND does not construct or modify a drainage pipe /ditch that is 12 inches or more in size /depth or that receives runoff from a drainage pipe /ditch that is 12 inches or more in size /depth, AND does not contain or lie adjacent to a SAO - defined landslide, steep slope, or erosion hazard area, OR 3. The project does not change the rate, volume, duration, or location of discharges to and from the project site (e.g., where existing impervious surface is replaced with other impervious surface having similar runoff - generating characteristics, or where pipe /ditch modifications do not change existing discharge characteristics). 1.2.2.1 DOWNSTREAM ANALYSIS The downstream analysis must consider the existing conveyance system(s) for a minimum flowpath distance downstream of one - quarter mile and beyond that as needed to reach a point where the project site area constitutes less than 15% of the tributary area. This minimum distance may be increased as follows: • Task 2 of a Level 1.. downstream analysis (described in detail in Section 2.3.1.1) is a review of all available information on the downstream area and is intended to identify existing drainage problems. Inaa11 cases, this information review shall extend one mile downstream of the project site. The existence of flooding, erosion, or nuisance problems may extend the one - quarter -mile minimum distance for other tasks to allow evaluation of impacts from the proposed development to the identified problems. • If a project's impacts to flooding, erosion, or nuisance problems are mitigated by improvements to the downstream conveyance system, the downstream analysis will extend a minimum of one - quarter mile beyond the improvement. This is necessary because many such improvements result in a reduction of stormwater storage or an increase in peak flows from the problem site. At their discretion, DDES may extend the downstream analysis beyond the minimum distance specified above on the reasonable expectation of impacts. • 1998 Surface Water Design Manual 1 -19 9/1/98 SECTION 1.2 ' CORE REQUIREMENTS The Level 1 downstream analysis is aqualitative survey of each downstream system and is the_first step . in identifying flooding, erosion, or nuisance.prbblems as defined below under "Downstream Problems Requiring Special Attention." Each Level 1 analysis is composed of four tasks at a.minimum: • Task 1: Define and map the study area • Task 2: Review all available information on the study area • Task 3: Field inspect the study area • Task 4: Describe the drainage system, and its existing and predicted problems. u Upon review of the Level 1 analysis, DDES may require a Level 2 or 3 downstream analysis, depending 6 v on the presence of existing or predicted flooding, erosion, or nuisance problems identified in the Level 1 U o analysis. co w J Levels 2 and 3 downstream analysis quantify downstream problems by providing information on the - severity and frequency of an existing problem or the likelihood of creating a new problem. A Level 2 O analysis is a rough quantitative analysis (non -survey field data, uniform flow analysis). Level 3 is a more 2 precise analysis (survey field data, backwater analysis). of significant problems. If conditions warrant, g u. additional, more detailed analysis may be required beyond Level 3. A detailed description of offsite analysis scope and submittal requirements is provided in Section 2.3.1.1. �_. w Hydrologic analysis methods and requirements for Levels 2 and 3. downstream analysis are contained in . z_ Chapter 3; hydraulic analysis methods are contained in Chapter 4. 1— O z • w CI DOWNSTREAM PROBLEMS REQUIRING SPECIAL ATTENTION o U While the basic flow control standards in Core Requirement #3- serve to minimize the creation and 0 es— • F—. aggravation of many types of downstream drainage problems, there are some types that are more sensitive w w. to aggravation than others depending on the nature or severity of the problem and which basic flow control - U standard is being applied. In particular, there are three types of downstream problems where the County u_ has determined that the nature and/or severity. of the problem warrants additional attention through the Fii Z. downstream analysis and possibly additional mitigation to ensure no aggravation: V 1. Conveyance system nuisance problems Z o 1- 2. Severe erosion problems . 3. Severe flooding problems. Conveyance system nuisance problems are minor but chronic flooding or erosion problems that result from . the overflow of a constructed conveyance system that is substandard or has become too small due to upstream development. Such problems- warrant additional attention because of their chronic nature and because they result from the failure of a conveyance system to provide a minimum acceptable level of protection (see definition below). Severe flooding and erosion problems as defined below also warrant additional attention because they either pose a significant-threat to health and safety or can cause significant damage to public or private property. Conveyance System Nuisance Problems (Type 1) Nuisance problems in general are defined as any existing or predicted flooding or erosion which does not constitute a severe flooding or erosion problem as defined below. Conveyance system nuisance problems are defined as any nuisance flooding or erosion that results from the overflow of a constructed conveyance system for runoff events less than or equal to a 10 -year event. Examples include inundation of a shoulder or lane of a roadway; overflows collecting in yards or pastures, shallow flows across driveways, minor flooding of crawl spaces or unheated garages /outbuildings, and minor erosion. If a conveyance system nuisance problem is identified or predicted downstream, the need for additional - mitigation must be evaluated as specified in Section 1.2.2.2 under "Problem- Specific Mitigation 9/1/98 1 -20 1998 Surface Water Design Manual 1.2.2 CORE REQUIRIIb1ENT #2: OFFSITE ANALYSIS • Requirements "(p. 1 -23). This may entail additional onsite flow control or other measures as needed to prevent creation or significant aggravation of the problem. . For any other nuisance problem which may be identified downstream, this manual does not require mitigation beyond the basic flow control standard applied in Core Requirement #3. This is because to prevent aggravation of such problems (e.g., those caused by the elevated water surfaces of ponds, lakes, wetlands, and closed depressions or those involving downstream erosion) can require two to three times as z much onsite detention volume, which is considered unwarranted for addressing nuisance problems. However, if under some unusual circumstance, the aggravation of such a nuisance problem is determined . ;= w by DDES to be a significant adverse impact, additional mitigation may be required. 2 6 Severe Erosion Problems (Type 2) . o o Severe erosion problems are defined as downstream channels, ravines, or slopes with evidence of or w w J = potential for erosion/incisionsuffictent to pose a sedimentation hazard to downstream conveyance systems F- u) w or pose a landslide hazard by undercutting adjacent slopes. Severe erosion problems do not include w O roadway shoulder tilling or minor ditch erosion. • If a severe erosion problem is identified or predicted downstream, additional mitigation must be u_ Q considered as specified in Section 1.2.2.2 under "Problem- Specific Mitigation Requirements" (p. 1 -23). = d: This may entail additional onsite flow control or other measures as needed to prevent creation or w I— _ aggravation of the problem..: z I- - I— 0 Severe Flooding Problems (Type 3) w E-- w Severe flooding problems can be caused by conveyance system overflows or the elevated water surfaces of D p ponds, lakes, wetlands, or closed depressions. Severe flooding problems are defined as follows: 0 to 0I- • Flooding of the finished area23 of a habitable building,24 or the electrical/heating system of a habitable w building for runoff events less than or equal to a 100 -year event. Examples include . flooding of H U: finished floors of homes and commercial or industrial buildings; or flooding of electrical/heating tL ~O • system components in the crawl space or garage of a home. Such problems are referred to in this Iii z manual as "severe building flooding problems." U • Flooding over all lanes of a roadway25 or severely impacting a sole access driveway26 for runoff O ~ events less than or equal to the 100 -year event. Such problems-are referred to in this manual as "severe roadway flooding problems." If a severe flooding problem is identified or predicted downstream, the need for additional mitigation must be evaluated as specified in Section 1.2.2.2 under "Problem- Specific Mitigation Requirements" (p. 1 -23). This may entail consideration of additional onsite flow control or other measures as needed to prevent creation or significant aggravation of the problem. 23 Finished area, for the purposes of this definition, means any enclosed area of a building that is designed to be served by the building's permanent heating or cooling system. 24 Habitable building means any residential, commercial, or industrial building that is equipped with a permanent heating or cooling system and an electrical system. 25 Roadway, for the purposes of this definition, means the traveled portion of any public or private road or street classified as such in the King County Road Standards. 26 Sole access driveway means there is no other unobstructed, flood -free route for emergency access to a habitable building. Severely impacting means the flooding overtops a culverted section of the driveway, posing a threat of washout or unsafe access conditions due to indiscernible driveway edges, or the flooding is deeper than 6 inches on the driveway, posing a severe impediment to emergency access. 1998 Surface Water Design Manual 1 -21 VT *9/1/98 oanex»scexx�n -,ca m. +xH.*• 0479..r z SECTION 1.2 CORE REQUIREMENTS 1.2.2.2 IMPACT MITIGATION A proposed project must not significantly aggravate existing downstream problems or create new problems as a result of developing the site. This manual does not require development proposals to fix or otherwise reduce the severity of existing downstream drainage problems, although doing so may be an acceptable mitigation. ❑ PRINCIPLES OF IMPACTMITIGATION Aggravation of an existing-downstream problem means increasing the frequency of occurrence and/or severity of the problem. Increasing peak flows at the site of a problem caused by conveyance system overflows can increase the frequency of the problem's occurrence. Increasing durations of flows at or above the overflow return frequency can increase the severity of the problem by..increasing the depth and duration of flooding. Controlling peaks and durations through onsite detention can prevent aggravation of such problems by releasing.the increased volumes due to development only at return frequencies below the conveyance overflow return frequency, with the net result of causing the conveyance system to flow full for a longer period of time. When a problem is caused by high water - surface elevations of a volume- sensitive water body, such as a lake, wetland, or closed depression, aggravation means the same as for problems caused by conveyance overflows. Increasing the volume of flows to.a volume - sensitive water body can increase the frequency of the problein's occurrence. Increasing the duration. of flows for a range of return frequencies both above and below the problem return frequency can increase the severity of the problem; mitigating these impacts requires control of flow durations for a range of return frequencies both above and below the problem return frequency. The net effect of this duration control is to release the increased volumes due to development only at water surface elevations below that causing the problem, which in turn can cause an increase in these lower,.but more frequently occurring, water surface elevations. This underscores an unavoidable impact of development upstream of volume- sensitive water bodies: the increased volumes generated by the development will cause some range of increase in water surface elevations, no matter what detention standard is applied. Creating a new problem means increasing peak flows and/or volumes such that after development, the frequency of conveyance overflows or water surface elevations exceeds the thresholds for the various problem types discussed in Section 1.2.2:1. For example, application of the Level 1 flow control standard requires matching predeveloped and developed 2- and 10 -year peak flows. The 100 -year peak - flow is -only partially attenuated, and the flow increase may be enough to cause a "severe flooding problem" as described on page 1 -21. The potential for causing a new problem is often identified during the Level .1 downstream analysis, where the observation of a reduction in downstream pipe sizes; for example, may be enough to predict creation of anew problem. • A Level 2 or 3 analysis will typically be required to verify the capacity_of the system and determine whether 100 -year flows can be safely conveyed. ❑ SIGNIFICANCE OF IMPACTS TO EXISTING PROBLEMS The determination of whether additional onsite mitigation or other measures are needed to address an existing downstream problem depends on the significance of the proposed project's predicted impact on that problem. For some idertifed problems, DDES will make the determination as to whether the project's impact is significant enough to require additional mitigation. For the downstream problems defined on pages 1 -20 and 1 -21, this threshold of significant impact or aggravation is defined below. For conveyance system nuisance problems, the problem is considered significantly aggravated if there is any increase in the project's contribution to the frequency of occurrence and/or severity of the problem. for runoff-events less than or equal to the 10 -year. event. Note: Increases in the project's contribution to this type of problem are considered to be prevented if sufficient onsite flow control and/or offsite improvements are provided as specified in Table 1.2.3.A (p. 1 -26). 9/1/98* 1 -22 1998 Surface Water Design Manual l'Vito:Yn; C{;'Ihr 1.2.2 CORE REQUIREMENT #2: OFFSITE ANALYSIS For severe erosion problems, the problem is considered significantly aggravated if there is any increase in • project's contribution to the flow duration27 of peak flows ranging from 50% of the 2 -year peak flow up to the full . 50 -year peak flow at the eroded area. Note: Increases in the project's contribution to this type of problem are considered to be prevented if Level 2 flow control or offsite improvements are provided as specified in Table 1.2.3.A (p. 1 -26). For severe building flooding problems, the problem is considered significantly aggravated if there is any increase in the project's contribution28 to the frequency, depth, and/or duration of the problem for runoff events less than or equal to the 100 -year event. • • • For severe roadway flooding problems, the problem is considered significantly aggravated if any of the following thresholds are exceeded and there is any increase in the project's contribution28 to the frequency, depth, and/or duration of the problem for runoff events less than or equal to the 100 -year event: • The existing flooding29 over all lanes of a roadway or overtopping the culverted section of a "sole access driveway" is predicted to increase in depth more than a quarter -inch or 10% (whichever is greater) for the 100 -year runoff event. The "existing flooding" over all lanes of a roadway or "severely impacting a sole access driveway" is more than 6 inches deep or faster than 5 feet per second for runoff events less than or equal to the 100 -year event. • The "existing flooding" over all lanes of a sole access roadway30 is more than 3 inches deep or faster than 5 feet per second for runoff events less than or equal to the 100 -year event; or is at any depth for runoff events less than or equal to the 10 -year event. • ❑ PROBLEM - SPECIFIC MITIGATION REQUIREMENTS 1. IF a proposed project or threshold discharge area within a project drains to one or more of the three types of downstream drainage problems defined in Section 1.2.2.1 (pages 1 -20 and -1 -21) as identified through a downstream analysis, THEN the applicant must do one of the following: •• a) Submit a Level 2 or Level 3 downstream analysis per Section 2.3.1 demonstrating that the proposed project will not create or significantly aggravate the identified downstream problem(s), OR b) Show that the natural discharge area or threshold discharge area draining to the identified problem(s) qualifies for an exemption from Core Requirement #3: Flow Control, OR c) Document that the basic area - specific flow control standard required in Core Requirement #3 is - adequate to prevent creation or significant aggravation of the identified downstream problem(s) as indicated in Table 1.2.3.A (p. 1 -26) with the phrase, "No additional flow control needed," OR d) Provide additional onsite flow control necessary to prevent creation or significant aggravation of . the downstream problem(s) as specified in Table 1.2.3.A (p: 1 -26) and further detailed in Section 3.3.5, OR 27 Flow duration means the aggregate time that peak flows are at or above a particular flow rate of interest (e.g., the amount of time over the last 40 years that•peak flows were at or above the 2 -year flow rate). 28 Increases in the project's contribution'are considered to be prevented if sufficient onsite flow control and /or offsite improvements are provided as specified for 'severe flooding problems' in Table 1.2.3.A (p. 1 -26). For 'severe flooding .. problems' located within the mapped 100 -year floodplain of a 'major receiving water' (see Table 1.2.3.6, p. 1 -29) or the mapped 100 -year floodplain of a major stream for which there is an adopted basin plan, increases in the project's contribution are considered negligible (zero) regardless of the flow control standard being applied, unless DOES determines there is.a potential for increased flooding separate from that associated with the existing 100 -year floodplain. 29 Existing flooding, for the purposes of this definition, means flooding over all lanes of the roadway or driveway has occurred in the past and can be verified by County records, County personnel, photographs, or other physical evidence. 30 Sole access roadway means there is no other flood -free route for emergency access to one or more dwelling units. 71- 09tSurface. Water Design Manual 1 -23.. . *9/1/98 St, , um^J..,y :.fir 1.a;n�M!'rY.S:F'T�'?knrA M SECTION 1.2 CORE REQUIREMENTS • e) „Provide offsite improvements necessary to prevent creation or significant aggravation of the identified downstream problem(s) as detailed in Chapter 3 unless identified as not necessary in •Table 1.2.3.A (p. 1-26), OR f) Provide a combination of additional onsite flow control and offsite improvements sufficient to prevent creation or significant aggravation of the downstream problem(s) as 'demonstrated by a Level 2 or Level 3 downstream analysis. • 2. IF it is identified that the manner of discharge from a proposed project may create a significant • • Z adverseimpact as described in Core Requirement.#1, THEN DDES may require the applicant to • re 2 implement additional Measures or demonstrate the impact will not occur. 6 0 Intent: Ti) 0 . ensure provisions are made (if necessary) to prevent creation Cr significant aggravation of the , co CI three types . of downstream problems requiring special attention by this manual, and to ensure Compliance U) ILI III I with the discharge requirements of Core Requirement #1. Qu- In addressing downstream problems per Problem-Specific Mitigation Requirement 1 above, the easiest of ' w 0 the provisions to implement will often be that of additional onsite flow control. This involves designing g 5 the required onsite flow control facility to meet an additional set of performance criteria targeted to u_ prevent significant aggravation of specific downstream problems. To save time and analysis, a set of w — predetermined flow control performance criteria corresponding to each of the three types of downstream F_ w : problems is provided in Table 1.2.3.A (p. 1-26) and described in more detail in Chapter 3. z Note that in some cases the basic area-specific.flow control standard applicable to the proposed project per z 0 Section 1.2.3.1 (p. 1-31) is already sufficient to prevent significant aggravation of many of the defined w, downstream problem types. Such situations are noted in Table 1.2.3.A (p. 1-26) as not needing additional • 0 0 u) onsite flow control or offsite improvements. For example, if the Level 2 flow control standard is required '0 — a !— by Section 1.2.3.1 (p. 1-32), and a "conveyance system nuisance problem" is identified through offsite w w analysis per Core Requirement #2, no additional. onsite flow control is needed, and no offsite i improvements are necessary. i- u. . Z Li/ 0 0 ••■••••..., 9/1/98* 1.2.3 CC REQUIREMENT #3: FLOW CONTROL, 1.2.3 CORE REQUIREMENT #3: FLOW CONTROL R a M T All proposed projects, including redevelopment projects, must provide onsite flow control facilities to mitigate the impacts of increased storm and surface water runoff generated by the addition of new impervious surface and any related land cover conversion. These facilities shall, at a minimum, meet the performance criteria for one of the area- specific flow control standards described in Section 1.2.3.1 (p. 1 -31) and be implemented according to the applicable flow control implementation requirements in Section 1.2.3.2 (p. 1 -35). Intent: To ensure the minimum level of control needed to protect downstream properties and resources from increases in peak, duration, and volume of runoff generated by new development. The level of control varies depending on location and downstream conditions identified under Core Requirement #2. Gui:de=fa Applying Co re: Requirement #3' ,....oreaRequirement #3 requires that:onstte:detent ion_ and /or intiltration_facilitiesbe constructed to control: runoff discharges. from. the -.project.stte-: These tacihnes musrmeet:-armmiinum flow>control. performance standard as secforth irr<Sectiort L2 3 Area- SpecificF1ow Control.Standards" (page 1. -31),. and •rnav need'to be:even:larget to ensure that downstream probletns;are.not created " or'signiticantly ag ravated as . set:torth to Secnotrl 2 2. " Problem- SpeciitTcIvirti�ation Requirements" Table 1?_�.A. =,(p 1 -26) •provides :a.quick.guide.focselecting. the. flo. w controlperformance :.criteria:necessary. to meet - bothhof: these requirements Area - specific. flow•control standards target the level of flow control: performance.. to. the protection . needs -of specific -regions :orareas. of: the county. These: areas: are:calledfowcontrol.areas, and there. are::. three:sucli::areasdepicted on the. Fiow ContraApplications Map adopted with this manual (see. map: ;` packerort :inside•.of.back:cover):. Each:. flow conrro area has a basic flow- control. standard that_ is specific toithatarea.. The: performance•criteria:of that basic standard rnay need to-be to address a specific downstream drainage problerri as e'p1ained in Step 4 below.. ,Flow control implementation :requirements:are the minimum requirements for analyzing, designing, and: maintaining flow control: facilities: Forefficient application of Core Requirement. #3, the following steps are recommended: Use the: Flow Control. Applications Map to:determine the:flow control area in which your project is located:, If this- determination cannot bemade from the.map, arnore:detai1ed delineation of flow control: areas is available on King County's Geographic Information. System (GIS) Check the list of exemptions beginning_on. page ..1• -27 to determine if and/or which :portions -of y _our.: ro ect:must rovide =flow control facilities er.Core:Re uirement:#3:._ P J.. P p q IEflow control facilities: are required,. determine: (for the. flow controLarea idendfied: above) which '"area specific :'tlow'control -standardapplies to your :project'by consultingatie:detailed threshold' information Section. 1.2.311. The applicable_ flow control standard.will.determine the minimum:. flow control performance required for :your proposed project: 4.. If downstream problems were identified .through:offsite _analysis: per. Core. Requirement #2 and are proposed :to be addressed. through. onsitetlow .control, use Table .1.2.3.A (p. 1 -26) to determine if and'what additional flow control. performance. is necessary to mitigate. impacts (i.e., to prevent . creation ::or aggravation of the identified problems). UseSection 1.2:12 (p. 1 -35) to determine the minimum requirements for implementing flow controls... 1998 Surface Water Design Manual 1 -25 9/1/98 ..sa..vu- r,.n.- ..,�,,.... ..- .Y,,.. _wn x•:ifi�.ernx�t;: r ?ti�{;'!ittf.•`, ��f,!Cim;?:14'.a?'rya.9 SECTION 1.2 CORE REQUIREMENT :.TABLE'T:23:A- UMMARY OEFLDWCONTROL PERFORMANCE CRLl'ERL4 ACCEPTABLE FORINIPACt&TffibA Tit$4( Downstream Problems Identified through Offsite Analysis per Core Requirement #2 AREA - SPECIFIC STANDARD Level 1 Flow Control Level 2 Flow Control Level 3 Flow. Control_ No problem identified. Apply basic standard performance criteria. Match 2 -yr & 10 -yr peaks Match durations for 50% of 2 -yr through 50 -yr peaks Match durations for 50% of 2 -yr though 50 -yr peaks AND match 100 -year peaks Type 1 Conveyance System Nuisance Problem Additional Flow Control Hold 10 -yr peak to overflow Tr peak(2)(3) No additional flow control or other mitigation is needed No additional flow control or other mitigation is needed Type 2 • Severe Erosion Problem Additional Flow Control Apply Level 2 flow control(3)(4) No additional flow control is needed, but other mitigation may be required(4) No additional flow control is needed, but other mitigation may be required(4) Type 3 Severe Flooding Problem Additional Flow Control - Apply Level 3 flow control. If flooding is from conveyance system overflow, Level 3 may be modified to match durations above the overflow Ti. peak rather than 50% of the 2 -yr peak. If flooding is from a closed depression, make design adjustments as needed to meet the "special provision for closed depressions "(3)(5) Additional Flow Control Apply Level 3 flow control. If flooding is from a closed depression, make design adjustments as needed to meet the "special provision for closed depressions "(3)(5) Additional Flow Control If flooding is from a closed depression, make design adjustments as needed to meet the "special provision for closed depressions" (3)(5) Notes: (1) More than one set of problem- specific performance criteria may apply if two or more downstream problems are identified through offsite analysis per Core Requirement #2. if this happens, the performance goals of each applicable problem- specific criteria must be met. This can require extensive, time - consuming analysis to implement multiple sets of outflow performance criteria if additional onsite flow control is the only viable option for mitigating impacts to these problems. In these cases, it may be easier and more prudent to implement the Level 3 flow control standard in place of the otherwise required area - specific standard. Use of the Level 3 flow control standard satisfies the specified performance criteria for all the area - specific and problem- specific requirements except if adjustments are required per the special provision for closed depressions described below in Note 5. Overflow Tr is the return period of conveyance system overflow. To determine T,. requires a minimum Level 2 downstream analysis as detailed in Section 2.3.1.1. To avoid this analysis, a T,. of 2 years may be assumed. Offsite improvements may be implemented in lieu of or in combination with additional flow control as allowed in Section 1.2.2.2 (p. 1 -22) and detailed in Section 3.3.5. A tightline system may be required regardless of the flow control standard being applied if needed to meet the discharge requirements of Core Requirement #1 (p. 1 -17) or the outfall requirements of. Core Requirement #4 (p. 1 -41), or is deemed necessary by DDES where the risk of severe damage is high. Special Provision for Closed Depressions with a Severe Flooding Problem: IF the proposed project discharges by overland flow or conveyance system to a closed depression experiencing a "severe flooding problem" AND the amount of impervious surface area proposed by the project is greater than or equal to 10% of the 100 -year water surface area of the closed depression, THEN use the , point of compliance analysis technique" described in Section 3.3.6 to verify that water surface levels are not increasing for the return frequencies at which flooding occurs, up to and including the 100 -year frequency. If necessary, iteratively adjust onsite flow control performance to prevent increases. Note: The "point of compliance analysis" relies on certain field measurements taken directly at the closed depression (e.g., soils tests, topography, etc.). If permission to enter private property for such measurements is denied, DDES may waive this provision and apply the Level 3- flow control standard with a mandatory 20% safety factor on the storage volume. 9/1/98 : «,� 1.2.3 COI._ AEQUIREMENT #3: FLOW CONTROL ❑ EXEMPTIONS FROM CORE REQUIREMENT #3 There are eight possible exemptions from the requirement to provide a formal flow control facility per Core Requirement #3. The intent of these exemptions is to provide for situations where a facility may not be practical or needed, where other alternatives to a facility can be just as effective, or where it makes sense to provide incentives for retaining native vegetation or for maximizing use of existing developed areas. =H 1. impervious Surface Exemption � A proposed ro j ect or any threshold discharge area within a project is exempt if less than 5,000 -J� square feet of new impervious surface will be added and the project or threshold discharge area is not U 0 within a Landslide Hazard Drainage Area.31 If the project or threshold discharge area is located o w within a Landslide Hazard Drainage Area, this exemption only applies to new impervious surface less than 2,000 square feet. N w w0 2. Impervious Surface Exemption Using Flow Control BMPs g 5 u. Any threshold discharge area within a proposed project is exempt if less than 10,000 square feet of new impervious surface will be added, AND all of the following criteria are met: _ a I-- Ili a) The area cleared to accommodate the proposed project must be less than 35% or less than 2 acres z �. of the threshold discharge area (whichever is greater), AND Z O' b) If the project is a single family residential project, flow control BMPs must be applied within W W the threshold discharge area as specified in Small Site Drainage Requirements (detached. U Appendix C), AND p CO — ❑ l- c) For projects other than single family residential projects, the new impervious surface within.. w uj the threshold discharge area must be comprised of either non - pollution - generating roofs that H t? comply with the roof downspout controls in Section 5.1, OR roads, trails, or driveways that LI p comply with the rural roadway dispersion requirements in Section 5.2.1, AND til Z UU d) The manner in which runoff is discharged from the project site must not create a significant H adverse impact per Core Requirement #1. ❑ 3. Peak Flow Exemption Using Flow Control BMPs Any threshold discharge area within a proposed project is exempt if the project improvements within the threshold discharge area generate less than a 0.1 cfs increase in the existing site conditions32100- year peak flow rate, AND all of the following criteria are met: a) If the project is a redevelopment project, flow control BMPs must be applied as specified in Section 5.2, and the project improvements must not significantly impact a "severe erosion problem" or "severe flooding problem" (seepage 1 -21), and must not be located within a Landslide Hazard Drainage Area, AND b) If the project is a single family residential project, the runoff from impervious surfaces must be infiltrated or dispersed using flow control BMPs specified in Appendix C, and any areas of native 31 Landslide Hazard Drainage Areas are delineated on a map adopted with this manual (see map pocket on inside of back cover). 32 Existing site conditions depend on what, if any, land conversion activity has occurred on the site since May 1979 when King County first required flow control on developments adding more than 5,000 square feet of new impervious surface. IF a drainage plan has been approved by the County since May 1979 for any land conversion activity which includes the addition of more than 5,000 square feet of new impervious surface, THEN existing site conditions are those created by the site improvements and drainage facilities constructed per the approved engineering plans. OTHERWISE, existing site conditions are those that existed prior to May 1979 as determined from aerial photographs and, if necessary, on knowledge of individuals familiar with the area. The intent is-to mitigate unaddressed impacts created by site alterations or improvements, such as clearing, which have occurred since May 1979. 1998 Surface Water Design Manual 9/1/98 1 -27 SECTION 1.2 CORE REQUIREMEN t S vegetation assumed not to be cleared for the purposes of computing the increase in 100 -year peak flow must be preserved within a tract or by covenant as described in Appendix C, AND c) For projects other than redevelopment projects and single family residential projects, the new impervious surface within the threshold discharge area must be comprised of either non - pollution- generating roofs that comply with the roof downspout controls in Section 5.1, OR roads, trails, or driveways that comply with the rural roadway dispersion requirements in Section 5.2.1, AND d) The manner in which runoff is discharged from the project site must not create.a significant adverse impact per Core Requirement #1. 4. Peak Flow Exemption for Urban Redevelopment Projects Any natural discharge area of a redevelopment project located within the Urban Growth Area is exempt if the project improvements within the natural discharge area generate less than a 0.1 cfs increase in the existing site conditions 100 -year peak flow, AND all of the following criteria are met: a) The application of this exemption to natural discharge areas within a proposed project must not result in more than a 0.4 cfs increase in the existing site conditions 100 -year peak flow rate for any threshold discharge area of the project, AND b) Flow control B1\'IPs must be applied to the runoff from new impervious surfaces as specified in Section 5.2.1, AND c) The.project improvements within the natural discharge area must not be located within a Landslide Hazard Drainage Area and must not significantly impact a "severe erosion problem" or "severe flooding problem" (see page 1 -21), AND d) The manner in which runoff is discharged from the project site must not create a significant adverse impact per Core Requirement #1. 5. Forested Open Space Exemption for Rural Residential Projects Any natural discharge area within a proposed rural residential project (zoned RA -2.5, RA -5, RA -10, or RA -20) is exempt if all of the following criteria are met: a) At least 65% of the unsubmerged portion33 of the natural discharge area will be set aside as forested open space as specified in Section 5.2.1, AND b) The runoff from new impervious surfaces within the natural discharge area will be dispersed over native vegetation using the flow control BMPs detailed in Section 5.2.1, AND c) The manner in which runoff is discharged from the project site will not create a significant adverse impact per Core Requirement #1. 6. Direct Discharge Exemption Any natural discharge area within a proposed project is exempt if it.drains to one of the "major receiving waters" listed in Table 1.2.3.B, AND meets all of the following criteria for direct discharge34 to that receiving water: a) The flowpath from the project site discharge point to the edge of the 100 -year floodplain of the major receiving water shall be no longer than a quarter mile, except for discharges to Lake Sammamish, Lake Washington, and Puget Sound, AND b) The conveyance system between the project site and the ordinary high water line of the major receiving water shall be comprised of manmade conveyance elements (pipes, ditches, outfall 33 Unsubmerged portion means any portion outside the ordinary high water line of streams, lakes, and wetlands. 34 Direct discharge means undetained discharge from a proposed project to a "major receiving water." 9/1/98 1 -28 1998 Surface Water Design Manual $' ' . :' 1.2.3 COIL <EQUIREMENT #3: FLOW CONTROL protection, etc.) and shall be within_public right -of -way or a public_or private drainage easement, AND c) The conveyance system shall have adequate capacity per Core Requirement #4, Conveyance System, for the entire contributing drainage area, assuming build -out conditions to current zoning for the "equivalent area" portion (defined in Figure 1.2.3.A, below) and existing conditions for the remaining area, AND d) The conveyance system will be adequately stabilized to prevent erosion, assuming the same basin conditions as assumed in Criteria (c) above, AND e) The direct discharge proposal will not divert flows from or increase flows to an existing wetland or stream sufficient to cause a significant adverse impact. ABLE I B "W M' O1e.10E.CELISi WA£ ERS • Cedar River • GFeen/Duwamish River below River Mile 6 (S. Boeing Access Road) and above SR 18 • Snoqualmie River (includes the North, South, and Middle Forks) • Sammamish River • White /Stuck River • Skykomish River • Tolt River " • Lake Meridian • Lake Sawyer • Lake Sammamish • Lake Washington • Puget Sound Note: "Major Receiving Waters" do not include side channels, spring- or groundwater -fed streams, or wetland habitats that provide salmonid spawning or rearing habitat that may be connected or adjacent to major rivers. FIGURE 1.2.3.A EQUIVALENT AREA DEFINITION AND ILLUSTRATION Equivalent area: The area tributary to a direct discharge conveyance system that is contained within an arc formed by the shortest, straight line distance from the conveyance system discharge point to the furthermost point of the proposed project. Existing Conveyance System Discharge Point Basin Boundary Major Receiving Water I Arc Basin Boundary 1998 Surface Water Design Manual *9/1/98 1 -29 SECTION 1.2 CORE REQUIREMENTS • 7. Peak Flow Exemption for Urban Residential Infill Projects - Any single family residential project located within the Urban Growth Area is exempt if the total project improvements (within a single threshold discharge area) will generate less than a 0.4 cfs increase in the existing site conditions 100 -year peak flow, AND all of the following criteria are met: a) The surrounding area within 1/4 mile of the project site must be over 75% built -out35 to the zoned density as of the year 1998, AND b) The project must be within a Level 1 Flow Control Area as indicated on the Flow Control Applications Map adopted with this manual or otherwise subject to Level 1 flow control (see page 1 -31), AND c) The proposed project must not drain to a "severe flooding problem" or "severe erosion - problem" as defined on page 1 -21, AND d) The runoff from new impervious surfaces must be infiltrated or dispersed using flow control BMPs specified in Appendix C, and any areas of native vegetation assumed not to be cleared for the purposes of computing the increase in 100 -year peak flow must be preserved within a tract or by covenant as described in Appendix C, AND e) The manner in which runoff is discharged from the project site must not create a significant adverse impact per Core Requirement #1. 8. Discretionary Exemption for Infill Projects Using the procedures detailed in Sections 1.4.3 and 1.4.4 of the adjustment process, the DDES Land Use Services Division Manager /designee or Building Services Division Manager /designee may grant an exemption from the flow control requirements in Core Requirement #3 provided all of the following criteria are met: a) The catchment (defined as the tributary area to a point where the project site comprises 15% of the tributary area, or 1/4 mile downstream, whichever is greatest) is over 90% built -out to the zoned density, AND b) Eighty percent of the existing development within the catchment was constructed prior to 1979 (as determined from aerial photos) or is otherwise without formal flow control, AND c) There are no Class 1 or 2 streams with salmonids within 1/2 mile downstream of the project site (except streams designated as major receiving waters), AND d) There are no Class 1 wetlands within 1/2 mile downstream of the project site, AND e) There are no "severe building flooding problems" (see page 1 -21) within 1 mile downstream of the project site, AND f) Undetained flows from the proposed.project.will generate less than a 10% increase in the 10 -year peak flows to a downstream "conveyance system nuisance problem" (see page 1 -20). 95 Percent build -out is calculated by dividing the number of existing residential dwelling units (including existing multifamily units) by the total potential number of residential dwelling units as determined from current base zoning. The total potential number of residential dwelling units is defined as the sum of (1) existing residential dwelling units, (2) existing vacant non - subdividable single family residential lots, (3) potential single family residential lots (net buildable area of subdividable parcels multiplied by the base zoning, and subtracting out any lots with existing residential dwelling units), and (4) potential multifamily dwelling units on vacant or subdividable multifamily -zoned parcels. Permanent open space areas (e.g., sensitive areas and buffers, recreational tracts) and those properties that are zoned commercial or industrial, or are publicly -owned (e.g., parks, schools, arterial roadways, stormwater tracts) shall be excluded from these calculations. 9/1/98* 1998 Surface Water Design Manual 1 -30 . 1.2.3 CO. REQUIREMENT #3: FLOW CONTROL 1.2.3.1 AREA - SPECIFIC FLOW CONTROL STANDARDS R E 0 M T Projects subject to Core Requirement #3 must, at a minimum, comply with one of the three area - specific flow control standards: Level 1, Level 2, or Level 3, whichever applies per the threshold information detailed in this section. ❑ LEVEL 1 FLOW CONTROL H E s H 0 Level 1 flow control is a peak - matching performance standard primarily applied in areas where maintaining peak flows is sufficient to protect the natural and constructed conveyance systems that are not sensitive to development- induced increases in runoff volumes and flow durations. King County designates these areas as Level 1 Flow Control Areas. Most Level 1 Flow Control Areas are delineated on the Flow Control Applications Map adopted with this manual (see map pocket on inside of back cover). Any urban- zoned areas of unincorporated King County not shown on this map shall also be considered Level 1 Flow Control Areas. Z w 2 .JU. O 0. NO W= 1 w• � 2 Threshold • Q The Level 1 flow control standard shall be applied to the design of required flow control facilities for = C=J any proposed project which meets one of the following criteria: F-- _ ZH • The project is located within a Level 1 Flow Control Area as defined above, OR O Z I- • The project is located within a Level 2 Flow Control Area as defined on page 1 -32, but does not meet W W the threshold for application of the Level 2 flow control standard (see p. 1 -33). p' O -• U2 O I- wW Level 1 Flow Control: Match the developed peak discharge rates to the existing site conditions36 peak = U discharge rates for 2- and 10 -year return periods. u. g' Reduced Level 1 Flow Control: A modified version of this standard, controlling only the 10 -year LLi frequency peak flow rate, is allowed if the applicant demonstrates both of the following: U O I-' • The proposed project site discharges to a conveyance system not subject to erosion that extends from the project discharge point to one of the major receiving waters listed in Table 1.2.3.B (p. 1 -29), AND • There is no evidence of capacity problems along this conveyance system as determined by offsite analysis per Core Requirement #2, or such problems will be resolved prior to project construction. CL Performance Criteria Intent Level 1 flow control is intended to protect flow - carrying capacity and limit increased erosion within the downstream conveyance system for runoff events less than or equal to the 10 -year event. Matching the l- and 10 -year peak flows is intended to prevent increases in return- frequency peak flows less than or.equal to the 10 -year peak flow down to the 2 -year peak flow. This level of control is also intended to prevent creation of new "conveyance system nuisance problems" as defined in Section 1.2.2 (p. 1 120). Effectiveness in Addressing Downstream Problems While the Lever 1 flow control standard provides reasonable protection from many development- induced conveyance problems (up to the 10 -year event), it does not prevent increases in runoff volumes or flow durations that tend to aggravate the three types of downstream problems described in Section 1.2.2.1. Consequently, if one or more of these problems are identified through offsite analysis per Core Requirement #2, additional onsite flow control and/or offsite improvements will likely be required (see "Problem- Specific Mitigation Requirements" in Section 1.2.2.2, p. 1 -23). • 36 Existing site conditions is defined in footnote 32 on page 1 -27. 1998 Surface Water Design Manual *9/1/98 1 -31 SECTION 1.2 CORE REQUIREMENTS ❑ LEVEL 2 FLOW CONTROL . Level 2 flow control is a duration - matching performance standard which is effective in preventing increases in existing erosion rates. The standard is applied in areas where the County has determined that a greater level of control is needed and will be effective in preventing severe erosion and sedimentation damage caused by development- induced increases inflow durations.37 Such areas include those draining through SAO - defined erosion hazard areas or to salmonid- bearing streams considered sensitive to increased flow durations based on County studies or resource assessments. These areas are designated by King County as Level 2 Flow Control Areas, and they collectively include the following five types of special defined drainage areas and/or basin plan subbasins: 1. Basin Plan Stream Protection Areas: These are subbasins in adopted basin plans where the County has determined through hydrologic modeling that increases in flow durations from future development will cause erosion and sedimentation damage to salmonid- bearing streams. They are identified as requiring increased onsite detention to prevent acceleration of in -stream channel erosion as well as sediment - generating erosion in the stream's tributary areas. 2. Rural Stream Protection Areas: These are areas not covered by basin plans that drain to relatively undisturbed high -value resource streams on the rural side of GMA urban growth boundaries. There are nine such areas originating from a-group of 17 basins identified by King County as having the highest value habitat and aquatic resources from among the county's 72 basins. The 17 basins were identified through a county-wide assessment of habitat/resource values conducted in 1994 as part of the Waterways 2000 Program. Although extensive modeling has not been done to confirm the sensitivity of these streams to increased flow durations, there is a high probability they are sensitive based on County modeling of similar streams in adopted basin plans. Given this high probability and the high value of the resource, application of Level 2 flow control in these areas is warranted. The rural portions of the following nine stream basins are designated as Rural Stream Protection Areas: • Tokel Creek • Tolt River • Harris Creek • Raging River • Griffin Creek • Middle Green River • Patterson Creek • White River • Snoqualmie River In addition to the above nine basins, any rural zoned areas of the County not shown on the Flow Control Applications Map are also considered Rural Stream Protection Areas. • 3. Sensitive Slope Protection Areas: These are areas outside of stream protection areas that drain to those SAO - defined "erosion hazard areas" that are on slopes steeper than 15% (a delineation of all known SAO erosion hazard areas can be found in King County's Sensitive Areas Map Folio) and where the potential for future severe erosion is high based on the amount of upstream area yet to be developed. These areas require Level 2 flow control to prevent creation or aggravation of severe erosion problems. 4. Landslide Hazard Drainage Areas: These are areas both inside and outside of adopted basin plans which are mapped on the Landslide Hazard Drainage Areas Map adopted with this manual (see map pocket on inside of back cover) and which drain to SAO - defined "landslide hazard areas" that are on slopes steeper than 15% (a delineation of known SAO landslide hazard areas can be found in King County's Sensitive Areas Map Folio). Because these hazard areas pose a significant threat to health and safety, Level 2 flow control is the basic area - specific standard unless a tightline is provided per Core Requirement #1. If a tightline is provided, then the basic standard defaults to that required for whatever other drainage or flow control area the proposed project may occupy. For example, if the 37 Flow duration means the aggregate time that peak flows are at or above a particular flow rate of interest (e.g., the amount of time over the last 40 years that peak flows were at or above the 2 -year flow rate). 9/1/98* 1998 Surface Water Design Manual 1 -32 1.2.3 COR .EQUIi2EMENT #3: FLOW CONTROL R E M r project is located within a Basin Plan Stream Protection Area or a Rural Stream Protection_Area, as defined above, then Level 2 flow control would still be the basic standard. In cases where a tightline is not provided to convey project flows through the landslide hazard area Level 2 flow control must be implemented in a manner which infiltrates as much runoff as is feasible to prevent significant disturbance of the landslide hazard area by overland flows (see "Facility Requirement in Landslide Hazard Drainage Areas," Section 1.2.3.2, p. 1 -37). • 5. Forest Production Zone: These areas are typically steeper in slope and often drain to the County's most pristine streams. Level 2 flow control is therefore required to prevent creation or aggravation of W severe erosion problems. Most Level 2 Flow Control Areas are delineated on the Flow Control Applications Map adopted with U O this Manual (see map pocket on inside of back cover). Any forest production zone or rural -zoned areas of unincorporated King County not shown on this map shall also be considered Level 2 Flow Control Areas. H Note: A more detailed delineation of Level 2 Flow Control Areas, including the five component areas tO u.. described above, is available on King County's Geographic Information System (GIS). Threshold u_ Q The Level 2 flow control standard shall be applied to the design of required flow control facilities for = d any proposed project which is located within a Level 2 Flow Control Area as defined above, AND which I- _ is confirmed to meet one of the following criteria for application of the Level 2 flow control standard: ? ►— I— O • The project is located within a Basin Plan Stream Protection Area as defined above and confirmed by w ui detaileddelineation information in the applicable basin plan, OR ? 0 ui • The project is located within a Rural Stream Protection Area as defined above and, in fact, drains to a 0 cn. natural stream within that area, OR 0 I- 111 • The project is located within a Sensitive Slope Protection Area as defined above and, in fact, ultimately 2 U drains over the erodible soils of a SAO - defined "erosion hazard area" with slopes steeper than 15 %, ti ~O OR ..z. Co • The project is located within a Landslide Hazard Drainage Area as defined above and, in fact, ultimately 0 17- I H drains over the erodable soils of a SAO - defined "landslide hazard area" with slopes steeper than 15 %, z OR • The project is located within a designated Forest Production Zone. Note: If the proposed project does not meet the above threshold criteria, then the Level 1 flow control standard shall apply as detailed on page 1 -31. Performance Criteria Level 2 Flow Control: Match developed discharge durations to predeveloped durations for the range of predeveloped discharge rates from 50% of the 2 -year peak flow up to the full 50-year peak flow, assuming existing site conditions (see Footnote 32, p. 1 -27) as the predeveloped condition. Note: The peak - matching criteria of Level 1 flow control must also be met. Intent Level 2 flow control is intended to prevent initiation or aggravation of erosion or stream channel instability by maintaining existing erosion rates. This is accomplished by maintaining at predevelopment levels the aggregate time that developed flows exceed an erosion - causing threshold (i.e., 50% of the 2 -year peak flow). Maintaining existing erosion rates within streams and their tributary areas is important for preventing increases in channel erosion and sediment loading detrimental to fish habitat and production. Maintaining existing erosion rates on sensitive slopes is important for preventing initiation and/or aggravation of severe erosion problems. 1998 Surface Water Design Manual .. ... �.. ;:,�,..,Y•�:Nu: � -<t� auaan: aY. �S' i�rl: iTd :at�aS.�1Ba:%..:[v4Scia.as:}.1� .ti�'.z *9/1/98 1 -33 SECTION 1.2 CORE REQUIREMENTS Effectiveness in Addressing Downstream Problems While the Level 2 flow control standard provides an excellent level of protection for preventing most development- induced problems, it does not necessarily prevent increases in 100 -year peak flows which can aggravate "severe flooding problems" as defined in Core Requirement #2 (see page 1 -21), nor does it necessarily prevent aggravation of all "severe erosion problems." Consequently, if one or more of these problems are identified through offsite analysis per Core Requirement #2, additional•onsite flow control Z and/or offsite improvements will likely be required (see "Problem- Specific Mitigation Requirements" in m I-- Section 1.2.2.2, p. 1 -23). w pw Level 3 flow control is a duration - matching and peak - matching performance standard which is LLJ H effective in preventing significant increases in water surface levels of lakes, wetlands, and closed U) u.. depressions. The standard is primarily applied in areas that drain to certain lakes, wetlands, or closed uj 0 depressions where the County has determined that a higher average level of flow control is needed to prevent aggravation of existing documented flooding problems; the County has designated such areas as u. Q Level 3 Flow Control Areas. Note that these areas are not specifically delineated.on_the Flow Control cn ° Applications Map (located inside the back cover of this manual), but they are listed on the map by name of H w lake, wetland code number (from the King County Wetlands Inventory), or approximate address. z H I-- O. Z I— WW The Level 3 flow control standard shall be applied to the design of required flow control facilities for D p any proposed project which is located within the contributing drainage area of one of the County- Q H inventoried wetlands or lakes listed on the Flow Control Applications (FCA) Map. W W. Note: If the proposed project does not meet the above threshold criteria, then apply the area - specific F=- 0 standard for the flow control area in which the project is located as indicated on the FCA map. - u..11:":") Z Performance Criteria o Level 3 Flow Control: Apply the Level 2 flow control standard AND match the developed 100 -year peak 0 F-. discharge rate to the 100 -year peak discharge rate for existing site conditions. Note: The peak - matching criteria of Level 1 flow control must also be met. 0 LEVEL 3 FLOW CONTROL -r H R E s R E a M r Threshold Intent Level 3 flow control is intended to prevent significant increases in existing water surface levels for 2 -year through 100 -year return frequencies. Such increases are expected to occur as the volume of runoff discharging to the water body is increased by upstream development. Because inflow rates to these water bodies are typically much higher than the outflow rates, increased runoff volumes from upstream development are, in effect, stacked on top of existing volumes in the water body, resulting in higher water surface levels. The duration- matching and.100 -year peak - matching criteria of the Level 3 flow control standard counteract this stacking effect by slowing the arrival of additional runoff volumes. Effectiveness in Addressing Downstream Problems If the Level 3 flow control standard is implemented onsite, no additional measures are required to prevent aggravation of the three types of downstream problems defined in Core Requirement #2. The one exception is when the wetland or lake is a closed depression with a "severe flooding problem," and the proposed project is adding impervious surface area amounting to more than 10% of the 100 -year water surface area of the closed depression. In this case, additional onsite flow control or offsite improvements may be necessary as determined by a "point of compliance analysis" (see "Special Provision for Closed Depressions" in Table 1.2.3.A (p. 1 -26), and see Section 3.3.6, "Point of Compliance Analysis "). 9/1/98* _ 1 -34 14:1rsi`'_tt?1�.- s,;k';Xr:G :?i3tru'. itiM:aU' t-Mlra, -e 'CrrA- .tia4' . ra• 1998 Surface Water Design Manual 1.2.3 COI. ..EQUIREMENT #3: FLOW CONTROL 1.2.3.2 FLOW CONTROL IMPLEMENTATION REQUIREMENTS Onsite vs. Offsite Implementation 'All required flow control must be implemented onsite except where the below requirements can be met for direct discharge to a regional or shared facility constructed to provide flow control for the proposed project. Regional facilities are typically constructed as part of a basin plan or master drainage plan. Shared facilities.may be constructed under a County- developed shared facility drainage plan or under an H Z agreement between two or more private developers. 1. The regional or shared facility must be of adequate size and design to meet the current flow control U O requirements for the proposed project's increased surface and storm water runoff. Note: the current flow to 0 control requirements are those specified by Core Requirement #3 of this manual unless superceded by w = other adopted area - specific flow control requirements per Special Requirement #1 (see Section 1.3.1). J f" In some cases where the current flow control requirements differ from those used to originally design the O regional or shared facility, additional analysis and possible retrofitting of the facility may be required to ensure adequate size and design. In other cases where the current flow control requirements are not significantly different or are less stringent, adequate size and design may already be documented by an u- CO adopted King County basin plan or master drainage plan, an approved shared facility drainage plan, or a = w detailed drainage analysis approved by the County for a separate permitted development. Z _ H 2. The regional or shared facility must be fully operational at the time of construction of the proposed. Z 0 project. In the case of a shared facility, the proposed project must comply with the terms and conditions w w of all contracts, agreements, and permits associated with the shared facility. U • 3. The conveyance system between the project site and the regional facility must meet the same criteria O (1), specified for direct discharge to a major receiving water except for Criterion (a) (see "Direct Discharge O Exemption" on page 1 -28). In the case of a shared facility, the criteria are the same, except the 2 U conveyance system need only have adequate capacity and erosion protection for buildout of the t-- 0 participating portion38 of the contributing drainage area. Methods of Analysis and Design P O Flow control facilities must be analyzed and designed using a continuous flow simulation method such as Z HSPF (Hydrologic Simulation Program FORTRAN) or the simplified HSPF -based runoff files method. Specifications for use of the runoff files method and associated computer program, KCRTS, are found in Chapter 3. Detailed design specifications for flow control facilities are found in Chapter 5. Land Cover Assumptions Land cover assumptions for designing flow control facilities are detailed in Chapter 3. For residential development (plats, short plats, and large single family projects), flow control facilities must be sized for the ultimate potential development of the site; this assumes that all forest and shrub cover (outside of proposed impervious surface areas) will be converted to grass unless protected by an open space tract or covenant. For rural residential developments, all forest/shrub cover outside of proposed impervious surface areas will be assumed to be converted to 50% pasture and 50% grass, unless likewise protected. Roof Downspout Controls, in Subdivisions All proposed single family residential subdivision projects must, on a lot- specific basis, provide for or implement one of three types of roof downspout controls in the order of preference specified in Section 5.1. These include downspout infiltration, dispersion, or a perforated stub -out connection. 38 The participating portion includes those properties that have agreements for use of the shared facility. 1998 Surface Water Design Manual 1 -35 *9/1/98 SECTION 1.2 CORE REQUIREMENTS Sizing Credits for Roof Downspout Controls When sizing flow control facilities serving single family residential subdivisions, the following credits maybe applied: • Where roof runoff is infiltrated according to the requirements of Section 5.1.1, the roof area may be discounted from the net impervious area used for sizing flow control facilities. • Where roof runoff is dispersed according to the requirements of Section 5.1.2 on lots 22,000 square feet or larger, and the vegetated flowpath of the roof runoff is 50 feet or longer, the roof area may be modeled as grass surface rather than impervious surface when sizing flow control facilities. Note: These credits do not apply when determining eligibility for exemptions from Core Requirement #3. Onsite Runoff Bypass Proposed project runoff may bypass proposed onsite flow control facilities provided that all of the following are true: 1. Runoff from both the bypass area and the flow control facility converges within a quarter -mile downstream of the project site discharge point, AND 2. The flow control facility is designed to compensate for the uncontrolled bypass area such that the net effect at the point of convergence downstream is the same with or without bypass, AND 3. The 100 -year peak discharge from the bypass area will not exceed 0.4 cfs, AND 4. Runoff from the bypass area will not create a significant adverse impact to downstream drainage systems or properties, AND 5. Water quality requirements applicable to the bypass area are met. Offsite Bypass Requirement IF the existing 100 -year peak flow rate from any upstream offsite area is greater than 50% of the 100 -year developed peak flow rate (undetained) for the project site, THEN the runoff from the offsite area must bypass onsite flow control facilities. The bypass of offsite runoff must be designed so as to achieve all of the following: 1. Any existing contribution of flows to an onsite wetland must be maintained, AND 2. - Offsite flows that are naturally attenuated by the project site under predeveloped conditions must remain attenuated, either by natural means or by providing additional onsite detention so that peak flows do not increase, AND 3. Offsite flows that are dispersed or unconcentrated on the project site under predeveloped conditions must be discharged in a safe manner as described in Core Requirement #1 under "Discharge Requirements" (p. 1 -17). Manifold Detention Facilities A manifold detention facility is a single detention facility designed to take the place of two or more otherwise required detention facilities. It combines the runoff from two or more onsite drainage areas having separate natural discharge points, and redistributes the runoff back to the natural discharge points following detention. Because manifold detention facilities divert flows from one natural discharge point to another and then back, they are not allowed except by an approved adjustment (see Section 1.4, "Adjustment Process "). 9/1/98* 1 -36 w•bir...mc 1998 Surface Water Design Manual ^11 1.2.3 COR 3QUIREMENT #3: FLOW CONTROL Facility Requirement in Landslide Hazard Drainage Areas Proposed projects subject to Discharge Requirement 2 in Core Requirement #1 (see p. 1 -18) must provide a tightline system unless the 100 -year runoff from the project site can be feasibly infiltrated or one of the other exceptions listed on page 1 -18 apply. For infiltration to be used as an alternative to the tightline requirement, it must be feasible per the facility design requirements and limitations specified in Section 5.4. When evaluating the feasibility of infiltration, multiple facility locations scattered throughout the project site shall be considered and used where feasible and practical to avoid concentrating infiltrated water in one location. If multiple facilities are not feasible or practical, then a single infiltration facility meeting the minimum setback requirements in Section 5.4 may be used. Where infiltration is not feasible, a proposed project may still qualify for one of the other exceptions to the tightline requirement specified in Core Requirement #1 (p. 1 -18). If such a project is subject to Core Requirement #3, then the required flow control facility must be a detention pond sized to meet Level 2 flow control performance with a safety factor of 20% applied to the storage volume. The detention pond must be sited and designed so as to maximize the opportunity for infiltration in the pond. To accomplish this, all of the following design requirements must be met: 1. The detention pond must be preceded by either a waterr quality treatment facility per Core Requirement #8 or a presettling basin per Section 5.4, AND 2. All detention pond side slopes must be 3H:1 V or flatter and must be earthen, AND 3. Detention pond liners which impede infiltration shall not be used, AND 4. The pond bottom shall be at or above the seasonal high groundwater table, AND 5. The detention pond outflow must meet the discharge dispersal requirements specified in Discharge Requirement 1 of Core Requirement #1 (p. 1 -17). 1998 Surface Water Design Manual 1 -37 9/1/98 SECTION 1.2 CORE REQUIREME! 1.2.4 CORE REQUIREMENT #4: CONVEYANCE SYSTEM R Q M T All engineered conveyance system elements for proposed projects must be analyzed, designed, and constructed to provide a minimum level of protection against overtopping, flooding, erosion, and structural failure as specified in the following groups of requirements: • "Conveyance Requirements for New Systems," Section 1.2.4.1 (below) z • "Conveyance Requirements for Existing Systems," Section 1.2.4.2 (p. 1 -39) = z • "Conveyance System Implementation Requirements," Section 1.2.4.3 (p. 1-40) QQ JU Intent: To ensure proper design and construction of' engineered conveyance system elements. V 0 Conveyance systems are natural and engineered drainage facilities that collect, contain, and provide for the w flow of surface and storm water. This core requirement applies to the engineered elements of conveyance systems — primarily pipes, culverts, and ditches /channels. u. in ua All new conveyance system elements,39 both onsite and offsite, shall be analyzed, designed, and constructed according to the following requirements. _ z� I- 0 z r-- w p; • U 0 g I- LL w. O t1i z. U �. 0 1- z 1.2.4.1 CONVEYANCE REQUIREMENTS FOR NEW SYSTEMS Pipe Systems 1. New pipe systems shall be designed with sufficient capacity to convey and contain (at-Minimum) the 25 -year peak flow, assuming developed conditions for onsite tributary areas and existing conditions for any offsite tributary areas. 2. Pipe system structures may overtop for runoff events that exceed the 25 -year design capacity, provided the overflow from a 100 -year runoff event does not create or aggravate a "severe flooding problem" or "severe erosion problem" as defined in Core Requirement #2, Section 1.2.2 (p. 1 -31). Any overflow occurring onsite for runoff events up to and including the 100 -year event must discharge at the natural location for the project site. In residential subdivisions, such overflow must be contained within an onsite drainage easement, tract, covenant, or public right -of -way. 3. The upstream end of a pipe system that receives runoff from an open drainage feature (pond, ditch, etc.) shall be analyzed and sized as a culvert as described below. Culverts 1. New culverts shall be designed with sufficient capacity to meet the headwater requirements in Section 4.3.1 and convey (at minimum) the 25 -year peak flow, assuming developed conditions for onsite tributary areas and existing conditions for any offsite tributary areas. 2. New culverts must also convey as much of the 100 -year peak flow as is necessary to preclude creating or aggravating a "severe flooding problem" or "severe erosion problem" as defined in Core Requirement #2, Section 1.2.2 (p. 1 -31). Any overflow occurring onsite for runoff events up to and including the 100 -year event must discharge at the natural location for the project site. In residential subdivisions, such overflow must be contained within an onsite drainage easement, tract, covenant, or public right -of -way. 3. New culverts proposed in Class 1 streams or Class 2 streams with salmonids shall be designed to provide for fish passage as detailed in Section 4.3.2. Note: The SAO or the state Department of Fish and Wildlife may require a bridge to facilitate fish passage. 39 New conveyance system elements are those that are proposed to be constructed where there are no existing constructed conveyance elements. 9/1/98 ?L.j�utTVriG11:r.'M ur-1, '.1.ttna '• 1998 Surface Water Design Manual 1 -38 1.2.4 CORE REC.. .tEMENT#4: CONVEYANCE SYSTEM Ditches /Channels 1. New ditches /channels shall be designed with sufficient capacity to convey and contain, at minimum, the 25 -year peak flow, assuming developed conditions for onsite tributary areas and existing conditions for any offsite tributary areas. 2. New ditches /channels must also convey as much of the 100 -year peak flow as is necessary to preclude creating or aggravating a "severe flooding problem" or "severe erosion problem" as defined in Core Requirement 2, Section 1.2.2 (p. 1 -31). Any overflow occurring onsite for runoff events up to and including the 100 -year event must discharge at the natural location for the project site. In residential subdivisions, such overflow must be contained within an onsite drainage easement, tract, covenant, or public right -of -way. Tightline Systems Traversing Steep Slopes New tightline conveyance systems traversing slopes that are steeper than 15% and greater than 20 feet in height, or are a "sensitive area steep slope," shall be designed with sufficient capacity to convey and contain (at minimum) the 100 -year peak flow, assuming full build -out conditions40 for all tributary areas, both onsite and offsite. Tightline systems shall be designed as detailed in Section 4.2.2. Bridges New bridges shall be designed to pass the 100 -year peak flow with clearance as specified in Section 4.3.3. 1.2.4.2 CONVEYANCE REQUIREMENTS FOR EXISTING SYSTEMS The following conveyance requirements for existing systems are less rigorous than those for new systems to allow some salvaging of existing systems that are in useable condition. Existing systems may be utilized if they are capable of providing a minimum level of protection as -is or with minor modifications. Existing Onsite Conveyance Systems No Change in Flow Characteristics: Existing onsite conveyance systems that will not experience a change in flow characteristics (e.g., peak flows or volume of flows) as a result of the proposed project need not be analyzed for conveyance capacity. Change in Flow Characteristics: Existing onsite conveyance systems that will experience a change in flow characteristics as a result of the proposed project must comply with the following conveyance requirements: 1. The existing system must be analyzed and shown to have sufficient capacity to convey and contain (at minimum) the 10 -year peak flow assuming developed conditions for onsite tributary areas and existing conditions -for any offsite tributary areas. 2. The applicant must demonstrate that the 100 -year peak flow to the existing system will not create or aggravate a "severe flooding problem" or "severe erosion problem" as defined in Core Requirement #2, Section 1.2.2 (p. 1 -31). 3. Minor modifications may be made to the conveyance system to achieve the required capacity stated above. Examples of minor modifications include raising a catch -basin rim, replacing or relaying a section of pipe to match the capacity of other pipes in the system, improving a pipe inlet, or enlarging a short, constricted reach of ditch or channel. 4. Modifications to an existing conveyance system or element which acts to attenuate peak flows due to the presence of upstream detention storage shall be made in a manner that does not significantly 4° Full build -out conditions means the tributary area is developed to its full zoning potential except where there are existing sensitive areas, open space tracts, and/or native growth protection easements /covenants. 1998 Surface Water Design Manual 1 -39 *9/1/98 SECTION 1.2 CORE REQUIREMEWi increase peak flows downstream. For example, if water is detained in a pond upstream of a restrictive road culvert, then installing an overflow system for the culvert should prevent overtopping of the road without significantly reducing existing detention storage. Existing Offsite Conveyance Systems 1. Existing offsite conveyance systems need not be analyzed for conveyance capacity except as required by Core Requirement #2, or if offsite improvements or direct discharge are proposed per Core Requirement #3. 2. Improvements made to existing offsite conveyance systems to address the problem - specific mitigation requirements in Section 1.2.2.2 (p. 1 -23) need only change existing conveyance capacity sufficient to prevent aggravation of the drainage problem(s) being addressed. 3. Existing offsite conveyance systems proposed to be used for direct discharge to a major receiving water per Core Requirement #3 (p. 1 -28) shall meet the same conveyance requirements specified in Section 1.2.4.1 (p. 1 -38) for new systems. 1.2.4.3 CONVEYANCE SYSTEM IMPLEMENTATION REQUIREMENTS Methods of Analysis and Design Properly -sized conveyance elements provide sufficient hydraulic capacity to convey peak flows of the return frequencies indicated in Sections 1.2.4.1 and 1.2.4.2. Conveyance capacity shall be demonstrated using the methods of analysis detailed in Chapter 4. Design flows for sizing conveyance systems shall be determined using the appropriate runoff computation method specified in Section 3.21 Spill Control Provisions Projects proposing to construct or replace onsite conveyance system elements that receive runoff from non - roof -top pollution - generating impervious surface41 must provide a spill control device as detailed in Section 4.2.1 prior to discharge from the project site or into a natural onsite drainage feature.42 More specifically, this requirement applies whenever a proposed project does either of the following: • Constructs a new onsite conveyance system that receives runoff from non - roof -top pollution - generating impervious surface; OR • Removes and replaces an existing onsite conveyance system element that receives runoff from 5,000 square feet or more of non - roof -top pollution - generating impervious surface onsite. The intent of this device is to temporarily detain oil or other floatable pollutants before they enter the downstream drainage system in the event of an accidental spill or illegal dumping. It may consist of a tee section in a manhole or catch basin, or another alternative as specified in Section 4.2.1. Note: Spill control devices were referred to as "oil/water separation devices" in previous editions of this manual. Composition Where feasible, conveyance systems shall be constructed of vegetation -lined channels, as opposed to pipe systems. Vegetative channels shall generally be considered feasible if all of the following conditions are present: 1. The channel gradient generally does not exceed five percent, AND 41 Pollution - generating impervious surface means an impervious surface considered to be a significant source of pollutants in stomiwater runoff. Such surfaces include those which are subject to vehicular use or storage of erodible or leachable materials, wastes, or chemicals, and which receive direct rainfall or the run -on or blow -in of rainfall (for more details, see page 1 -50). Metal roofs are also considered to be pollution- generating impervious surface unless they are treated to prevent leaching. 42 Natural onsite drainage feature means a natural swale, channel, stream, closed depression, wetland, or lake. 9/1/98* 1-40 1998 Surface Water Design Manual 1.2.4 CORE REQI ?MENT #4: CONVEYANCE SYSTEM 2. _ No modifications to currently adopted standard roadway cross sections in the King County Road Standards are necessitated by the channel, AND 3. The channel will be accessible for maintenance (see Section 1.2.6), AND 4. The channel will not be subject to erosion. Exceptions: The following are exceptions to the requirement for vegetative channels: • Conveyance systems proposed under roadways, driveways, or parking areas • Conveyance systems proposed between houses in urban-zoned plats and short plats 6 • Conveyance systems conveying roof runoff only. JU 0 0. Outfalls w An outfall is defined as a point where collected and concentrated surface and storm water runoff is - LL discharged from a pipe system or culvert. 0 Energy Dissipation: At a minimum, rock erosion protection is required at outfalls from all drainage systems and elements except where DDES determines that erosion protection is being provided by other g means or is not needed. Details on outfall structures are included in Section 4.2.2. u d = New Point Discharges Over Steep Slopes: Proposed outfalls that will discharge runoff in a location 1' W _ where the natural (existing) discharge is unconcentrated over a slope steeper than 15% and greater than 20 ? F.- feet in height, or over a SAO - defined steep slope hazard area, must meet the following criteria: w O 1. IF the 100 -year peak discharge is less than or equal to 0.2 cfs43 under existing conditions and will NW7 remain less than or equal to 0.2 cfs under developed conditions, THEN outfall runoff may be 0 N discharged onto a rock pad shaped in a manner so as to disperse flow. The outfall and rock pad must :Op F.,, be located upstream from any landslide or steep slope buffer and no less than 50 feet from the top of a = w, SAO - defined steep slope unless otherwise approved by DDES based on an evaluation/report by a �-- geotechnical engineer. u- 0 Z 1 IF the 100 -year peak discharge is greater than 0.2 cfs but less than or equal'to 0.5 cfs under existing U U conditions and will remain less than or equal to 0.5 cfs under developed conditions, THEN runoff must N be conveyed to a dispersal trench or other dispersal system. The dispersal trench or system must be 0 located upstream from any landslide or steep slope buffer and no less than 50 feet from the top of a SAO - defined steep slope unless otherwise approved by DDES based on an evaluation/report by a geotechnical engineer. 3. IF the 100 -year peak discharge is greater than 0.5 cfs for either existing or developed conditions, ?F` THEN a tightline conveyance system must be constructed to convey the runoff to the bottom of the • slope unless other measures are approved by DDES based on an evaluation/report by a geotechnical -. engineer. Tightline systems must be designed such that existing baseflow conditions are not significantly changed and adequate energy dissipation is provided at the bottom of the slope. Outfalls to the Green River New stormwater outfalls or modifications to existing stormwater outfalls discharging to the Green River between River Mile 6 (South Boeing Access Road) and SR 18 are allowed only through the adjustment process. These outfalls must comply with requirements of the Green River Pump Operations Procedure Plan, which establishes storage volumes and release rate criteria for developments proposing to construct or modify outfalls. Copies of the plan are available from DNR. 43 Peak discharges shall be as computed using KCRTS as detailed in Chapter 3. 1998 Surface Water Design Manual 1 -41 9/1/98 SECTION 1.2 CORE REQUIREMEN Interflow and Interception Interflow is near - surface groundwater that moves laterally through the soil horizon following the hydraulic gradient of underlying relatively impermeable soils. When interflow is expressed on the surface, it is termed a spring or seepage. Any significant springs or seepage areas that impact a roadway or structure proposed by the project must be intercepted and directed into a conveyance system. Where roadways may impede the passage of interflow td downstream wetlands or streams, provision for passage of unconcentrated flows must be made. Pump Systems Pump systems may be used to convey water from one location or elevation to another within the project site provided they meet the design criteria specified for such systems in Section 4.2.3 and will be privately owned and maintained. Pump systems that discharge flows from the project site that would not have discharged by gravity flow under existing site conditions will require an approved adjustment to Core Requirement #1 (see.Section 1.4, "Adjustment Process "). These pump systems will be considered only when they are the sole • alternative to solving a flooding or erosion problem as defined in Section 1.2.2. Typical conditions of approval for these systems are available in Reference Section 8 -J under "Adjustment Application Form and Process Guidelines." 9/1/98 1 -42 .r'dY+,,,y�A..iG Y;:; ^:�3�� •.cr;;,e4.iruru.l;s;tri.d+a, 1998 Surface Water Design Manual SECTION 1.2 CORE REQUIREMEi 1.2.6 CORE REQUIREMENT #6: MAINTENANCE AND OPERATIONS R E a M T Maintenance and operation of all drainage facilities is the responsibility of the applicant or property owner, except those facilities for which King County is granted an easement, tract, or right -of -way and officially assumes maintenance and operation as described below. Drainage facilities must be maintained and operated in compliance with King County maintenance standards. = H Intent: To ensure that the maintenance responsibility for drainage facilities is clearly assigned and that , z these facilities will be properly maintained and operated in perpetuity. Drainage Facilities to be Maintained by King County o o to o . King County will assume maintenance and operation45 of the flow control and water quality facilities and w LIJ the conveyance system within improved public road right -of -way for any residential subdivision with two cm-more lots, and any. similar development where at least two- thirds of the developed contributing area is . n- WO from single family or duplex residential structures on individual lots, except where such facilities are 2 }. approved by King County to be maintained by the homeowners association. Note: King County may g Q assume maintenance of such facilities-serving any mix of developments as part of a shared facilities plan. King County will assume maintenance and operation of these facilities two years after final z a construction approval by DDES and an inspection by the County to ensure the facilities have been z properly maintained and are operating as designed. H O Flow control and water quality facilities to be maintained and operated by King County must be located L j in a tractor right -of -way dedicated to King County. Access roads serving these facilities must also be • located in the tract or right -of -way and must be connected to an improved public road right -of -way. 0 cn Underground flow control or water quality facilities (tanks or vaults) may be allowed in private rights -of- o 1— way or roads if the easement includes provisions for facility access and maintenance. = W Conveyance systems to be maintained and operated by King County must be located in a drainage u. - ~- O easement, tract, or right -of -way granted to King County. Note: King County does not normally assume Ili maintenance responsibility for conveyance systems which are outside of improved public road right -of- - U = way. I H z Drainage Facilities to be Maintained by Private Parties All privately - maintained drainage facilities must be maintained as specified in Appendix A, "Maintenance Requirements for Privately Maintained Drainage Facilities," and as further prescribed in. Chapter 6 for water quality facilities. A copy of the Operation and Maintenance Manual submitted as part of the permit application (see Section 2.3.1) shall be retained on site and shall be transferred with the property to the new owner. A log of maintenance activity indicating when cleaning occurred and where waste was disposed of shall also be kept by the owner and be available for inspection by the County: King County may inspect all privately- maintained drainage facilities for compliance with these requirements. If property owner(s) fail to maintain their facilities to the acceptable standards, the County may issue a written notice specifying the required actions. If these actions are not performed in a timely manner, the County may enter the property to perform the actions needed and bill the property owner(s) for the cost of the actions. In the event a hazard to public safety exists, written notice may not be required. If the proposed project is a commercial, industrial, or multifamily development or redevelopment, or a single family residential building permit, a "Declaration of Covenant" (see Reference Section 8 -F) must be recorded at the King County Office of Records and Elections prior to engineering plan approval. If the proposed project is a residential subdivision development, all privately maintained conveyance systems or other drainage facilities which convey flows through private property must be located in a 45 King County does not assume maintenance of lot drainage systems or drainage stub -outs serving single family residential lot . downspout, footing, or yard drains, nor does King County assume maintenance of those water quality facilitie® installed and r. integrated into site landscaping. 9/1/98 1 -46 1998 Surface Water Design Manual 1.2.7 FIN CIAL GUARANTEES AND LIABILITY drainage easement dedicated to convey surface and storm water. Individual owners of the properties containing such easements must maintain the drainage facilities through their property. The legal instrument creating drainage easements on private property must contain language that requires a private property owner to obtain written approval from King County prior to removing vegetation (except by routine mowing) from any drainage easement containing open, vegetated drainage facilities (such as swales, channels, ditches, ponds, etc.). See "Drainage Easements" in Reference Section 8 -H. 1.2.7 CORE REQUIREMENT #7: FINANCIAL GUARANTEES AND LIABILITY R E a M T All drainage facilities constructed or modified for projects (except downspout infiltration and dispersion systems) must comply with the financial guarantee requirements in King County Ordinance 12020 and the liability requirements of King County Code 9.04.100. There are two types of financial guarantees for 'projects constructing or modifying drainage facilities: the drainage facilities restoration and site stabilization guarantee, and the drainage defect and maintenance guarantee. Intent: To ensure financial guarantees are posted to sufficiently cover the cost of correcting, if necessary, incomplete or substandard drainage facility construction work, and to warrant for two years the satisfactory performance and maintenance of those newly - constructed drainage facilities; to be assumed by King County for maintenance and operation. Core Requirement #7 is also intended to ensure that a liability policy is provided which protects the proponent and the County from any damages relating to the construction or maintenance of required drainage facilities by private parties. Drainage Facilities Restoration and Site Stabilization Financial Guarantee Prior to commencing construction, the applicant required to construct drainage facilities pursuant to the drainage requirements in this manual and KCC 9.04.050 must post a drainage facilities restoration and site stabilization financial guarantee. This guarantee must be an amount sufficient to cover the cost of corrective work on or off the site performed specifically for the given project. .Note :DDES may waive the requirement of this guarantee on projects proposing only minor modifications or improvements to the drainage system (e.g., catch basin inserts, spill control devices, pipe replacements, etc.). In addition, this guarantee may be combined with other required guarantees as allowed in Ordinance 12020. Before King County will release the project's drainage facilities restoration and site stabilization financial guarantee, the applicant must do the following: 1. Construct the drainage facilities 2. Receive final construction approval from DDES 3. Pay all required fees. Drainage Defect and Maintenance Financial Guarantee For any constructed or modified drainage facilities to be maintained and operated by King County, the applicant must do the following: 1. Post a drainage defect and maintenance financial guarantee for a period of two years (see Reference Section 8 -E, "Maintenance and Defect Agreement "). Maintain the drainage facilities (per the maintenance standards.in' Appendix A) during the two -year period following posting of the drainage defect and maintenance financial guarantee. Before King County will release the drainage defect and maintenance financial guarantee and assume maintenance and operation of drainage facilities, the applicant must do the following: 1. For plats, record the final plat. 1998 Surface Water Design Manual 1 -47 9/1/98 J cor-rre:)6r._ tZL : 2' ; 1":„ 20" MITIGATION PLAN Typical Stream rents Ser(i= • htAM{DIR PORMI R Q•Nmattexarar 111NPorth Scale: 1" •.10' • ' Tree and Shrub Stake DOA . PLANT SCIHFINIT F wax MIAMI Ulf Inn Ifr LIM py, SUM WGA. Iti+l•e M4 1 O 11.1.a... t.. M+ 1N1 M tJ 11.1..I I_e. wb 1.11. 21 Q M.a.law 1....r 1.I O wF.. as Ari... I.a 19 m 1w I..u1.3 Yaw pare 1p a 1 Micaby. (Aye. maw wl. a11.w RVr *al at% uI.r p__.,r,y Ira ray IWpr War,. ma.) almApplicomt.... 60 inr son sa[A Or ROCK M.TERIAL POR ar3TA4 LM/M[7 Mr•fr TOTAL AIWA: ILI ea I.4 Alm rib. 0.2641.11* Um,* WYeW Ia.t o VICINITY MAP MITIGATI ❑N PLAN J. S. Jones and Associotes, Inc. 9 Appl. No. 098 -0215 a SHEET W -1 t i aeEXIM m....NIM - - - — + e7�Gixsa�a rth•',1rM'aaavemrrtmax+wam • ......_. ._ . • n•. e+ ar m+ wra.......,,,.. re ,mcea...,,rw.+.+�w.�e�povy�er,: rim :M".a*t,RSi!7f,F9?S.r'.'�!!r ?E :'f', File: L 99 -0091 35mm Drawing #3 -10 .. • ••• :• File: L 99-0091 35mm Drawing #1 . - " 10.1111-11,..1111111iii j:01111.Uj1111111.1)1.tV. . .1 ii.111:111,1111 1 File: L 99 -0091 35rnm Drawing #2 / 4t 'L t t 2 o_ o IfiZe ii 3 t. Q twZe -itJnw 3 t Y Z J '4R 42.43 w S � V Z • 5 l'. V l t I , • : ' . U .: t - r v l n ' 6 . C' 1, --" ... � .1 i �`-- -i �� --=_: O . 1jlfliiii1iili• Iuil1il1lini1iiiilniilwiiiniiiillllLIIII11IIi111iil1lilii1I�il�i�i���ul�lii�U��liiii�niiliiii�i�naiiii�liiili� .ii��i�il��i�l °`: • File: L 99-0091 35mm Drawing #3-10 • MITIGATION PLAN _I Sheini rest SeetioR • NN 1 lII.A • q- AtIMchaletir I North • A. r Scale: 1" ■ 10' e — ►7 • .:•w.. 'Tree rad'Shrub Stake Derma PLANT SCgED LE • ' m.oe_oaen...ri w�•YGI• TI.j•/If�� M1l 1.. p 11,01.i•• • t Irr►•. . 0 Ylh•HA�r reaolatmQKi 148i16••=0•0 , !•i % A.•amsr . pl. 27 A*,M .Yrem.; �1 MI. 1. ••••■•••• 2pL 0010•0•21 larpos (04,0•1.0.001 7•n Amok 0.sir.••••tll•.•9 0114 110111•03 pr..ta► 301‘ T•00030130000 te••∎∎ ••i••••••1 YTomb tls Inwa a • ABTA O• ROCK MAMMAL FOR STRTAM TINHANCTMF•T ToTALAMIIA: llt ea pis v4..l•1.0•6r1•sar... Y ..part 6•1103•Y00,0•••••• VICINITY MAP MITIGATION PLAN 1 . • U Z 13407 5131 Ave. S. J. S. Jones and Associates, Inc. a Environmental Consultants Y Appl. No. 098 - 0215'% SHEET w -1 ���itilliii�i( Il. liiii�lfuliili�iliiliiii�iii�! IiiiIIIIIIIIII�IIIIIIIII��lllfllll�lililllll�lllllllll�llilfllli�iiul iii11111 1liin1liiiliiii,111R.ii���. '11,\P\T';', • s, \‘1,,., .,:, \'' \... , ''',..„, 'S• \ ' '''.•.' ■••. ', ,,: '..,• ..:, • • s • - _ \\, \\‘‘'.• 147\ s , • • 1111111111 \ 11111111111111 tZt: • 11V North ilsylolotty (I) .-z:igrar ,;1111,1■IIIWN :1 i \ 4! f :,11mium fr • -010/43kag:rilaeower"-- ;; • -',-,i.: .-.' ,,,,,, ,-/ //7/ 2,,, „? ,f ..,'S-,' 4e. • • • , • • • NOTE Field data • for this survey was obtained by direct fled measurements. Angular and linear relationships were measured with a six second theodolite and electronic distance measuring device, supplemented by a steel tape. REFERENCES: PLAT OF ROe.NS SPRINGBROOK ADD. VOL. 1e/67 KING COUNTY ASSESSOR'S MAP NW 15-23-4 2623.45' calc. S. 128th St. ound King County monument w/brass disk marked ,9 10 (2/21/89) 1i115 5: A-50." r•-•"--.- 130' i I 2 CV IM I 30' 16' 1• O ms. O< <00* r- �4{„3('` 631 0Jb k,0 f Jo\ 1 I 15 I, , N87(Ei2' I 1 "W 11Q71' 14 Ol `, i. S87'ti2'18 "E 11171' 16' 0 0 316.02' S8712'26 "E 1 In N csi N 0) ai a) of l 12 117.71' oi 117171' N87'5233 "W 1 1 Found monument in case (8/19/98) Int. 32nd Ave. S. & S. 136th Street West 1/4 corner Sec. 15 -23 -4 cri cn NW NW --"'•-!I► 30' vi N > v ro 30' II Sec. 15 , T. 23 N., R 4 E., W.M. LEGAL DESCRIP110N LOTS 12, 13 and 14, BLOCK 5, ROBBINS SPRINGBROOK ADDITION TO RIVERTON, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 16 OF PLATS, PAGE 67, RECORDS OF KING COUNTY, WASHINGTON. GRAPHIC SCALE 90 0 25 50 100 (IN FUT) 1 inch = 50 ft. RECORDER'S CERTIFICATE FILED FOR RECORD THIS DAY OF . AT 19 AT .M. I OF •'c y. AT THE REQUEST OF �IiA•,��j�'`Y„ MGR • SUPT.:OF RECORDS • LAND SURVEYOR'S CERTIFICATE THIS MAP CORRECTLY REPRESENTS A SURVEY MADE BY ME OR UNDER MY DIRECTION IN CONFORMANCE IIITH THE REQUIREMENTS OF THE SURVEY RECORDING ACT AT�jlifE 'QifJ�j9T OF ,,,/j hid Klir& t 2 2A 84thg D' SUAPEYOR L.S. NO. DATE. SCHROETEROLAND SURVEYING PROFESSIONAL LAND SURVEYORS P.D. Box 813, Stahurst, Washington 98062 (206) 242 -6621 FAX (206)243 -9679 PROJECT NO. 98093 JOB NO. 332/7 SEC. NW 15 -23 -4 DATE FIELD 8/19/98 DWN BY low CHKD. BY DATE 8/24/98 SCALE 1" - 50' SHEET 1 OF 1 LEGEND ® Concrete Monument in Case ▪ Monument Bronze plug : Tack in Lead or Nail & Disk O set rebar w /cap #23604 • Found pipe or rebar SURVEY FOR: CITY OF TUKWILA AUG 3 1 1998 Jihad Keirouz PERMITCENTER 13520 Linden Ave. N. Seattle, WA 98133 t.1 • O..Inch': 1118' 1 sits alria Lli_ 11 .i1. • I rr,irrr ITh rjr7T L L 1 0