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HomeMy WebLinkAbout1987-03-24 Special Minutes - Valley View Estates Appeal Public Hearing (Continued)March 24, 1987 Tukwila City Hall 7:30 p.m. REBUTTAL BY APPELLANT TUKWILA CITY COUNCIL PUBLIC HEARING CONTINUED VALLEY VIEW ESTATES APPEAL M I N U T E S THIS IS NOT A VERBATIM TRANSCRIPT Council Chambers Mayor Van Dusen called the appeal hearing back to order. The presentations of the appellants and the City have been concluded. COUNCIL MEMBERS WENDY A. MORGAN, Council President; EDGAR D. BAUCH; CHARLES PRESENT E. SIMPSON; MARILYN G. STOKNES. Councilman McKenna is not in attendance at any of the appeal hearings to comply with the requirements of the Appearance of Fairness Doctrine. Dick Goe, appellant, 5112 So. 163rd P1., asked for clarifica- tion. The appellants and City will have rebuttal periods; will the interested party also have a rebuttal period? The appellants and City will then have a time for closing remarks; will the interested party also be allowed a closing statement? Mayor Van Dusen stated he has asked the City to include their rebuttal with the applicant. The interested party also must have time for input. Mr. Goe expressed concern with the interested party having the last word. The citizens are appealing a City decision- the decision of the BAR -the matter is between the appellants and the City in determining if the BAR made a rightful deci- sion. In the course of this action, the appellant and City staff arguments clearly present the differences in their opi- nions on this matter. The interested party should not have the last word in each case. Attorney Haney said that as long as all parties are given a reasonable opportunity to make their closing statement and rebuttal that is sufficient for purposes of due process. He explained that the final statement is a summary of the evi- dence that has been presented. The rebuttal is testimony. Council can allow whatever material they want to hear during this time as long as both parties are treated the same. Council President Morgan asked if during the course of testi- mony, either on previous days or this evening, it includes remedies or notions that were not included in the original BAR, should Council include these statements and any suggested changes to the BAR or may they, as part of these hearings, automatically be included? Attorney Haney recom- mended that if someone has asked for a mitigating measure that is appropriate based on the evidence, Council should make it a change in the condition. Council President Morgan noted that the City and the applicant have made a couple of suggestions during these hearings of information that is not included in the BAR findings. She asked to have a summary of these items prepared for Council to aid them in their deliberations. Councilman Bauch asked if during the Council's debate, something is not clear as to what the testimony was, can TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL March 24, 1987 Page 2 THIS IS NOT A VERBATIM TRANSCRIPT Council ask questions to clarify a point. Attorney Haney said, yes, they could ask a clarifying question. Mayor Van Dusen asked Council for a consensus on how long both sides should be allowed for closing statements. Council agreed on 15 minutes. Dick Goe, appellant, pointed out that the closing statement is their only opportunity to review comments made by the City or applicant during their rebuttal. Perhaps, after the rebuttal period might be the time to determine how much time is necessary. Mayor Van Dusen commented that no one will be shut off if they are in the middle of trying to make a point. We are trying to keep everything fair. Rick Beeler, Planning Director, asked if new information is requested by the Council, will the parties have the oppor- tunities to respond to that information? Attorney Haney said they have to be allowed that time if Council does do that. Mr. Goe explained that during Mr. Richard's testimony last week, he presented information about a fence which had pre- viously not been seen by the BAR nor the Council. This was new information. As long as that sort of information can be presented without challenge, that in presenting the burden of proof position, which we have done, a few words from an attorney which skewer the facts and mislead are not necessarily the last words Council should hear. Attorney Haney stressed that procedures were laid out at the beginning with the closing arguments as they are now with the City and the applicant going last. That is the way it is normally handled in a court proceeding. The City Council, regardless of who they hear last will be able to determine the facts from the record and are not going to take whoever speaks last as being the determining factor. He suggested Council stick with the procedure that was announced in the beginning. Council President Morgan stated that she concurred with this only on the condition that closing arguments contain summary information of that which was said before. Closing state- ments are not argumentative. Attorney Haggard stated, "I take strong exception for the record." 8:00 p.m. COUNCIL MEMBER HARRIS ARRIVED AT THE MEETING. Mr. Goe explained that last week, Mr. Richard, the noise expert, presented some information about fence heights and about the Maekawa method of determination of sound mitiga- tion. This formula was not presented. He asked if they could question Mr. Richards to determine certain information about the data presented. Attorney Haney said it is up to the City Council if they wish to allow cross examination. Mayor Van Dusen offered that Council could ask the questions so they don't get into the problem of cross examination. Attorney Haggard offered that 36 minutes has been spent discussing procedure that was laid out at the beginning of TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL March 24, 1987 Page 3 RECESS 8:10 8:25 p.m. THIS IS NOT A VERBATIM TRANSCRIPT the proceedings. He took strong exceptions to the granting of allowing Mr. Goe or Mr. Robertson the right of cross exa- mination. These people have the burden of proof, and they have the responsibility to come forward. The testimony by Mr. Richard was that the methodology usedwas accepted by the United Stated Department of Transportation. Mayor and Council concurred that all questions should be addressed to the Council. Dennis Robertson addressed two questions to Council: (1) Mr. Richard mentioned that he used sound measurements taken from the FEIS. There are four sensors in the FEIS; which sensors did he use for which recreation play area; (2) Mr. Richard said that it would be improper to use the 24 hour night average calculations for the recreation areas because no one uses them at night. When he used the average Leq, did he use the full 24 hours or a shorter time period. Mayor Van Dusen declared a 10 minute recess. He called the appeal hearing back to order. Council Member Harris asked that Mr. Goe's questions be answered briefly. Mr. Richard reported that the time period for determining the daytime Leq was from 10 a.m. to 9 p.m. The measurement locations used for the barrier height calculations for: Area A was location 2, the daytime Leq was 63; Area B was location 2, the daytime Leq was 63; Area C was location 1, the daytime Leq was 70; Children's Play Area was location 1 the daytime Leq was 70. He added that for measurement location 2, there was six hours of data missing during the 10 a.m. to 9 p.m. time period, however, there is enough data in the other time periods that he considered it to be adequate. Dennis Robertson, 16038 48th Ave. So., distributed Exhibit 62 to Council (document of 5 pages, dated March 22, 1987, TMAC Presentation). Attorney Haggard stated there may or may not be facts in this exhibit that have not been previously testified to so it should be the sworn testimony of Dennis Robertson. Mr. Robertson entered 6 pages of photographs as Exhibits 63 -68 for the record. They were taken of the site last weekend and are pertinent to some of the points made in the original arguments. Mr. Robertson explained what the pho- tographs illustrate. They used a 35 foot pole to show the height of specific buildings. Some of the photographs have a shaded overlay to illustrate the visual appearance of the proposed buildings. Attorney Haggard referred to the photographs and said that the overlays give no representation that they are accurate. He asked that the overlays not be allowed until that is established, and they have had an opportunity to examine Mr. Robertson on his technique. Mr. Robertson responded that the photographs presented by the applicant used the same technique. They used a pole to illustrate size. The overlays are scaled the best they could. When you look at the pole in the pictures, you will see that it is in the right proportion. TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL March 24, 1987 Page 4 o THIS IS NOT A VERBATIM TRANSCRIPT Attorney Haggard, reacting to the first picture said it is obviously out of perspective, out of scale and misrepresen- tative of the situation. He said that until such time as the accuracy representiveness and truthfulness of the shading can be established that the overlays not be admitted. Until that is established, they may be prejudicial. Mr. Robertson said they are willing to postpone the hearing until that fact can be established. Mr. Beeler agreed with Mr. Haggard that the overlays are going to be somewhat difficult, if not impossible to ascer- tain as to factually being a representation of what the building would look like on that site in that particular location. This is the difficulty with photographs and trying to locate what it looks like. This could take a considerable amount of time. An alternative is to admit the photographs into the record; it is the overlays that cause the concern. Attorney Haggard took strong exceptance to the admissability of the overlays until the appellants establish with a burden of proof the accuracy and the representiveness of the infor- mation that is being presented. They have that burden. Mr. Robertson was willing to testify first, where the pole was located in regard to the actual plans; second, the height of the pole; third, where the photographer was located; forth, the camera settings. We were very careful; we didn't have to misrepresent anything in this case. Attorney Haney suggested that Council allow Mr. Robertson to testify concerning the accuracy of the overlays to get this out of the way then, Council can make a decision as to whether or not the overlays are accurate enough for Council to accept. Mayor Van Dusen ruled that the overlays can be submitted to Council with their permission. Attorney Haggard took exception for the record. 8:45 P.M. COUNCILMAN DUFFIE ARRIVED AT THE MEETING. Mr. Robertson's exhibits were marked 63 through 68. Along with these, he submitted Exhibit 69, site plan, showing where the photographs were taken from and the angle. Mr. Robertson referred to the photographs, explained where they placed the 35 foot pole to show how high the proposed building would appear. Their concern is that at the north and south ends of the proposed development, the buildings would be so large the view of them would be overwhelming. While the legal height may be 32 feet, that is not the proper thing for the BAR to use; this is one of the errors. The BAR does not deal with a definition of the code; they deal with the visual or architectural impact. In reality, from the south end, the building is over 50 feet in the air, not 32 feet. This is what the photograph attempts to show. Looking toward the south in the next photograph is the house across the street to show how close these buildings are to single family houses. The next series of photographs are taken from the proposed site for building No. 1. The pole is only 35 feet high; the building in photo B -1 is going to be another 15 feet higher at that point. Mr. Robertson discussed photos B -2, B -3, and B -4 and commented that is is hard to tell the angle of something from a photograph. TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL March 24, 1987 Page 5 Attorney Haggard objected. THIS IS NOT A VERBATIM TRANSCRIPT Attorney Haggard moved to strike the shadings based on the representation from Mr. Robertson in his testimony where he indicated it is hard to tell the angle from a photograph. Mr. Robertson continued, they wanted to show the trees in the R -1 to the west of the children's play area (Photo C -1). They are described as a dense buffer. The edge of the play area would be about 80 feet from the road. The point is that if the play area goes in as proposed, there won't be any buffer at all. What you have is 5 or 6 tree trunks. The final set of photographs are taken from the north end of the site. They are attempting to illustrate the size of the pro- posed building. The main point in these photographs is to show that these buildings are out of scale and would be very large visually. The fact that they are legally only 32 feet high misses the fact that visually they are 50 feet high from the north and south ends. They concluded that the BAR made several significant errors of fact. (1) They grossly overstated the open space; (2) They alluded to the density being 15* units per acre when, if you leave the R -1 out, it is 20 units per acre. The R -1 zone cannot be used for anything that is required in a higher development. Mayor Van Dusen noted that it has been ruled that the R -1 will not be discussed. Mr. Robertson explained that the point he is trying to make is the fact that the R -1 is owned by the applicant in no way bares on the fact they want to put apartments in the RMH and R -4. Attorney Haggard objected; the testimony is prejudicial; this witness should be warned. He continues to assert that the R -1 area can't be used in conjunction with the multi family development. That is not before this; it is not in appeal. Council has already ruled it was not in front of them. Councilman Bauch objected; Council did not rule on the R -1 on this site. Attorney Haney, for clarification, said that he recommended to Council that the R -1 zoning was properly used for purposes of the children's play area was not an issue for this Council. He asked Mr. Robertson if his argument is that the use of the R -1 density means the buildings are out of scale to the adjoining area. It is not that the property is impro- perly zoned R -1. Mr. Robertson said, "Exactly." Attorney Haney said this seems to be a different issue than what Council ruled on about the children's play area being located in the R -1. That is not an issue before Council. Council President Morgan agreed that these are two different issues. Council Member Harris asked for an explanation of how a 32 foot building appears to become 50 feet. Dick Goe drew an example and explained how the 50 foot measurement is arrived at. His drawing was labeled Exhibit 70 for the record. TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL March 24, 1987 Page 6 RECESS 9:25 9:45 p.m. Appellants Continue Rebuttal THIS IS NOT A VERBATIM TRANSCRIPT Mr. Robertson explained that the BAR has already accepted the fact that the different zoned area has to be treated dif- ferently. They did not allow the lofts to be used in the R -4 area. They are allowed in the RMH section. If they have acknowledged this, they have to say that the R -1 cannot be used for density calculations for the overall site. In conclusion, he noted that Variation B proposed in the FEIS showed the removal of buildings 1 and 2 as a possibility. This is reasonable because it takes the mass of the buildings away from the single family area. Buildings 3 and 4 should only be two stories high; then they would approximate the height of the single family homes. Also, building 18 on the north side of the site is going to sit way up on the hill; you will see the largest side of it sitting above any single family homes. They suggest that this building be only two stories. Mr. Robertson commented on the noise calculations. He pointed out that the measurement from Site #2 was taken on the 22nd of October, 1983; this was a Saturday when there isn't as much noise as there is during the week. Second, the noisiest time was missing; that is from noon to 6 p.m. They think the calculations for the play area are incorrect, however for the rest of it, they think the addition of the fences for areas A, B and C is a vast improvement. He asked if the fences are now a part of the site plan. Rick Beeler explained that the BAR Decision 3 requested that the design of the fence and landscaping shall be brought back to them for approval. The applicant has submitted the revised site plan to indicate their intention for compliance with that condition. Council President Morgan asked to have this made part of the list that they requested earlier. Mr. Goe stated that they have clearly shown that the project is far more overpowering than was initially presented. The footprint size is not the question. The question here is how big does it appear to its neighbors. How does it relate to the surrounding neighborhood. The appellants are asking Council to recognize that it is of significant stature and does not relate well to the single family neighborhood. They asked that the buildings to the south and north be scaled down. The transition zoning proposed in the R -1 is insigni- ficant in that it does not do any mitigation to the size of the structures when viewed from the west, north or south. Across the street from the RMH and R- 4zoned property are single family residences; the only buffering that can be accomplished to meet the requirements of the Comprehensive Land Use Plan and Policies is to scale down the size of the buildings. Mayor Van Dusen called for a recess. He called the Public Hearing back to order. Dharlene West, appellant, discussed matters of noise impacts on the site. The BAR required a wooden fence with the design to be returned to them for review. No guidelines were given to the applicant as to how much noise this fence should be able to attenuate. The applicant has quoted dimensions for a wooden fence to lower the noise level in the adult recreation areas. Will the City Council require that the fencing reduce the noise level a certain number of decibels? It is necessary so the applicant will know what the noise barrier TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL March 24, 1987 Page 7 It has been stated that the upper two stories of most of the buildings will be able to view the play area. There are a lot of units that will not see the area, and it is a block away from some of the buildings. The applicant has told you that the play area should not have lights. In the fall and winter 5:00 p.m. is dark enough to turn on lights. The children will all have to be inside by then because it is too dark, and there is no lighted area to play in. It is not fair. The applicant has said that lighting the play area would give a "false sense of security." Mrs. West said she doesn't believe this. The fact that it is so far from the buildings is not very secure. Isn't it dangerous to require the children to cross a driveway that services more than 100 cars in order to reach the play area. Crosswalks would help. Logically, the driveway should be west of the play area not on the east between the buildings and the play area. If buildings 8 and 9 were turned as suggested, and if a sound barrier is erected between them, the play area could be moved just west of the buildings. The children would no longer have to cross the driveway to reach the play area. The proximity to the adult area would enhance supervision of the children. Council can specify that the children's play area be located so as to have a certain level of decibels to protect from excessive noise, that the play area be located between the building and the driveway for safety, and that the play area be lighted until 9:00 p.m., again for safety. Ann Crain, 5105 So. 163rd Pl., discussed the landscaping. She referred to Mr. Van De Vanter's plan and said that landscaping can do more than enhance the project for the people living there. It can provide a transition from a non- conforming use in a residential neighborhood. In his presen- tation Mr. Van De Vanter presented photographs to Council, and she objected because there was no way to tell what type of trees were in the pictures. She made a trip to the Renton Shopping Village to see the pine tree shown in one of his photos. The pictures do illustrate that you can see right through the bare branch trees; they don't provide any screening effect for the people that live on the other side of the street. Mr. Van De Vanter reported that it will take 15 years for the deciduous trees and 20 years for the evergreen trees before the plants grow to the size shown on the landscape plan. It will be that long before the project will provide a dense screen that the BAR approved. The revised plan does not show evergreen plantings on either side THIS IS NOT A VERBATIM TRANSCRIPT is expected to accomplish. How long will a wooden fence last? Will it last the life of the project? Would a masonry or cement structure be better? These questions need to be resolved? She expressed concern about the children's play area. There is a 10 foot retaining wall on the west to hold the hillside. The retaining wall covers about half of the side of the play area; it slopes down at either end and will be an attraction to the children. What is to be done to pro- tect the children from climbing this wall? If it is to be a fence, will it be unclimbable? The ten foot retaining wall will not help the noise; it will bounce the noise right back at the children. The 15' barrier on the east appears to be for seating. It will not protect children standing in the play area. Mr. Richards had suggested that buildings 8 and 9 could be moved to reduce the sound level at the children's play area. If the applicant is going to use the movement of these buildings in making the computations, then what should be a condition of the building permit. TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL March 24, 1987 Page 8 THIS IS NOT A VERBATIM TRANSCRIPT of the fence that is to mitigate the noise in the recreation area. Both sides of the fence will need to be landscaped. Also, the plan does not show the sidewalk that is going to be required along the edge of the project. The revised plan still has 6 foot evergreen cedars on 40 foot centers. The specific cedar is not spelled out. Mrs. Crain quoted from the Planning Commission staff report dated March 27 con- cerning dense evergreens along the southwest and west pro- perty lines adjacent to So. 160th and 53rd intersection -a row of evergreen trees will be planted to provide a screen. In a staff report to uphold the BAR review, they state that the BAR conditioned the project by requiring dense evergreen screens along the east and west perimeters of the site. This is to provide additional screening of the structures from the adjoining areas. The definition of dense is having the parts crowded together, difficult to penetrate and oblique. She did not see how they can say this is a dense planting of evergreens. Mrs. Crain presented Exhibit 71 for the record. They are pictures to show what a dense screening of evergreen shrubs can provide. She also presented a sample of the evergreen. Attorney Haggard objected to the characterization that this is dense. This is not a dense screen. The sample of the evergreen was recorded as Exhibit 72. Mrs. Crain concluded, the BAR failed to have the landscape plan provide appropriate transition to adjoining properties. Mr. Van De Vanter failed to show how the landscape plan pro- vided this transition. His presentation dealt mainly with the landscaping for the people within the project. The large deciduous trees on the south side of the project will not screen the residents across Slade Way. Dick Goe commented that 40 foot centers don't provide any screening at all. According to the latest landscape plan, it won't provide any significant visual obstruction from off site to on -site. The deciduous trees are not going to pro- vide any significant screening either as shown in Exhibits 55, 56 and 57. We have shown you the errors that the BAR has made primarily through omission. We have not provided any significantly different testimony to you than we did to the BAR except that we have had to update it based on more recent submissions of the applicant. The BAR erred on the size and scale of the project. The data they used is incorrect. They were not provided with any visual information such as Mr. Robertson provided this evening. Since they failed to take this into consideration, they did not feel the necessity of the mitigation to the transition for the surrounding neigh- borhood. The BAR did recognize there is significant impact on the site from the freeway noises; their answer is a wooden fence without specification but with a request for review. The appellants feel that a wooden fence of the size necessary to provide the attenuation required for good safety and men- tal health may not be adequate. The BAR erred in recom- mending wood over whatever engineering was necessary to provide a sound barrier that would provide the required attenuation barrier for the children's play area. It does require a barrier or it does require being moved. They recommend that it be moved closer to the buildings to use the buildings, in conjunction with a sound barrier, to provide a quiet area for the children to play in, a safer area for them to play in terms of visibility and better lighting. This is a reasonable thing to do, and it does move ,__1"-"'°7 TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL March 24, 1987 Page 9 CONTINUATION 10 :30 p.m. This concluded the appellant's presentation. THIS IS NOT A VERBATIM TRANSCRIPT it to the other side of the traffic lanes. The landscaping does not provide the screening that really is necessary for the transition zoning. The BAR erred in recommending 40 foot centers along Slade Way and 53rd. They should be con- siderably closer. If the BAR erred in recommending dense instead of solid, perhaps, Council needs to correct this error and make it a solid planting. They have just shown Council where the BAR erred. It is up to Council to sit in judgment and make the determination that they did err either through commission or omission and immediately correct those errors. The public hearings will be continued to April 7 and 9 at 7:00 p.m. Gary L. Van lusen, Mayor s /7/4641,(...<_ Maxine Anderson, City Clerk