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HomeMy WebLinkAbout03-029Resolution No. 03-029 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORT TOWNSEND DENYING AN APPEAL OF THE HEARING EXAMINER'S DECISION GRANTING PRELIMIMNARY SUBDIVISION APPROVAL FOR THE PLAT OF LAUREL HEIGHTS, APPLICATION LUP03-022 BE IT RESOLVED by the City Council of the City of Port Townsend, Washington as follows: FINDINGS OF FACT Laurel Heights, LLC, applicant and underlying land owner, has petitioned the City for preliminary subdivision approval to create 14 lots from 40 existing platted lots located within the R-II medium-density, single-family zoning district. Included with the preliminary subdivision application was a request for review under the State Environmental Policy Act (SEPA). The applications were submitted on Februar~ 18, 2003 by Island Construction, on behalf of the land owner, and the application is vested under the current rules then in effect; and The property is located in the R-II - Medium Density Single-Family zoning district as described in Chapter 17.16 PTMC. The intent of this zone is t° accommodate single-family dwellings (including duplexes, triplexes, and fourplexes) at a density of up to eight units per 40,000- square-foot area (i.e., 5,000-square-foot minimum lot size, or approximately eight dwelling units within one block of platted land). It allows four or fewer single-family dwelling units to be contained within one structure upon condition of sufficient tract size: 10,000 square feet for a duplex; 15,000 square feet for a triplex; and 20,000 square feet for a fourplex. The permitted density of the R-II zone accurately reflects the Comprehensive Plan designation of the underlying property; and Of the 14 proposed lots, 12 would be sized to allow fourplex development, one would be sized for duplex development, and the final lot would be sized for detached single-family development. Overall, a total of 51 low-income housing units would be constructed with the use of Low Income Housing Tax Credits from the Washington State Housing Finance Commission; The applicant owns additional lands (approximately 4.75 acres, excluding adjoining rights-of-way) north of the project site that is not 1 Resolution 03-029 o included with the proposed subdivision; however, the applicant intends to limit future development of these lands to detached single-family housing via a restrictive covenant. Pursuant to WAC 197-11-060(5)(b), a proposal subject to SEPA review may be phased so that SEPA compliance can be done for each phase. Conducting Phased SEPA review for this project allows the City's Responsible Official, interested agencies and the public to focus on those issues ready for a decision and exclude those that are not; and Sufficient environmental information regarding development of the applicant's adjoining lands was required to ensure cumulative adverse impacts would not occur. The specific information or studies required for these adjoining lands included stormwater analysis, traffic analysis and an assessment for environmentally sensitive areas. When a site specific proposal for the applicant's adjoining lands is proposed, any related SEPA mitigations imposed during the review LUP03-022 will be applied and additional SEPA review will be required; and All full subdivision (or plat) proposals are classified as Type III applications pursuant to PTMC Chapter 20.01. Type III permit applications are reviewed and processed by the Building & Community Development (BCD) department, who prepares a recommendation to the City's Hearing Examiner. Following an open-record public hearing, the Hearing Examiner issues a written decision on the matter. Decisions of the Hearing Examiner on Type III permit applications are final, unless appealed to the City Council; and On February 26, 2003, a Notice of Application and Pending Threshold Determination (for both the subdivision and SEPA review) was published in the local newspaper, mailed to neighbors within 300 feet of the property, and posted at three locations on or near the site. This initial Notice generated 122 written comment letters from 67 different citizens, community groups, businesses and interested agencies; and Based, in part, upon on the comments received, City staff requested additional information from the applicant. The applicant provided the requested information via a variety of supplemental reports and documents between May 1 and May 12, 2003. City staff reviewed the additional information submitted and deemed it complete for continuing with the SEPA process; and The Building and Community Development (BCD) Director issued a State Environmental Policy 'Act (SEPA) Mitigated Determination of Non-Significance (MDNS) on June 11, 2003. Notice of the ThreshoM MDNS for the subject development was published in the local paper, 2 Resolution 03-029 10. 11. 12. 13. 14. 15. posted at the site and mailed to parties of record. The Threshold MDNS provided a comment/appeal period that ended at 4:00 PM, June 27, 2003; and At a few minutes past 4:00 PM on June 27, 2003, an attempt to appeal the Threshold MDNS was made by a party of record, Neighbors for Responsible Development (NRD). In.general, the basis of the attempted SEPA appeal was that the City erred in issuing the Threshold MDNS by not: a) requiring the applicant to submit a development proposal for all of their contiguous holdings; b) requiring said submittal to be reviewed as a Planned Unit Development (PUD); c) subjecting the submitted traffic analysis to a qualified third-party review; and, d) incorporating a number of "smaller concerns" related to mitigation "language and enforceability;" and On July 18, 2003, the Port Townsend Hearing Examiner conducted a duly noticed, consolidated open-record public hearing for the purpose of taking testimony, hearing evidence, considering the facts germane to both the proposal and the attempted SEPA appeal, as well as considering a motion by the applicant to dismiss said appeal and for evaluating the proposal for consistency with adopted plans and regulations; and The Hearing Examiner, in a formal written decision issued August 4, 2003, dismissed the attempted SEPA appeal on the basis it was not timely filed. Said decision also approved the preliminary plat request, subject to a number of conditions. In dismissing the attempted SEPA appeal, the Examiner advised parties at the open-record hearing that relevant issues raised in the attempted SEPA appeal would be heard within the scope of the proposed subdivision review; and A timely appeal of the Hearing Examiner's decision was filed by NRD on August 18, 2003. In general, the basis of this second NRD appeal mirrors that of the attempted SEPA appeal and cites eight (8) specific appeal issues; and As the attempted SEPA appeal was dismissed by the Hearing Examiner, the City's Threshold MDNS became a Final MDNS just as if the appeal attempt had never been made. After the Examiner's written decision was issued, NRD requested a refund of their SEPA appeal fee. Said appeal fees have been refunded; and As the MDNS is now final, the City Council is not in a position legally to modify, or supplement, any of the imposed SEPA mitigation measures. Council review of the NRD appeal is limited to whether the proposal complies with the approval criteria for preliminary plats as set 3 Resolution 03-029 16. 17. 18. 19. 20. forth in Port Townsend Municipal Code (PTMC) 18.16.060.A. 1 through A.4; and The City Council held a closed-record public hearing for the purpose of considering the Hearing Examiner's decision and the August 18 appeal by NRD, as well as evidence in the record including any written comments and/or public testimony received; and The appellants first appeal issue characterizes the proposal as a "large development of multi-family low income housing within (the) R-II neighborhoods." However, as defined by both the Comprehensive Plan and zoning code, the built-out subdivision would consist of 13 attached single-family dwellings and one detached single-family dwelling. The proposed structures do not meet the City's adopted definition of "multi- family dwellings." Both attached and detached single-family residences are a permitted use in the R-II zone; and The appellant first appeal issue further claims that the proposal must be reviewed under the City's Planned Unit Development (PUD) process. Council finds that it is not the Hearing Examiner's role to determine if one review process is better suited than another process for a particular project; rather, the Examiner's role is to determine if the proposal complies with the City's adopted development regulations. While City regulations offer considerable incentives for low-income housing developments to use the PUD process, it is not a requirement. The submitted request to create 14 new lots, each of which would comply with the bulk, dimensional and density requirements of the underlying R-II zone, was correctly processed as a full subdivision; and Appellants second assertion is that the proposed subdivision must include a plan for the applicant's adjoining lands, as it constitutes another phase of the development. However, Council finds that there is no code requirement that adjoining lands be included as part of a proposed development. As required by PTMC 18.16.050.C(3), the .submitted application correctly identified the property proposed for subdivision along with all other lands under the same ownership lying within 200- feet. Council further fmds that the Phased SEPA review conducted on the project site and the adjoining lands was done in conformance with WAC 197-11-060(5)(b); and Appellants third assertion is that the traffic analysis performed for the project is inadequate and that third-party review of the submitted information is necessary to ensure intersection safety, traffic circulation and parking adequacy are not compromised. However, Council finds that the appellant provides no empirical evidence (such as their own 4 Resolution 03-029 21. 22. 23. traffic counts, intersection analysis or sight distance measurements) to refute those provided by the applicant's licensed Traffic Engineer. The City's Public Works Department has reviewed the submitted traffic analysis and finds no fault with the methodology used and the anticipated impacts which have been adequately mitigated for; and Appellants fourth assertion is that SEPA review of the stormwater plan & facilities for the project were inadequate, specifically in terms of safeguards to protect adjacent property owners. Council finds that issues surrounding the adequacy of the SEPA review for the proposed stormwater facilities lie outside the scope of this closed-record hearing. Council further notes that the SEPA MDNS did identify and mitigate for potential impacts resulting from the planned stormwater facilities, including West Nile Virus and long-term maintenance. Preliminary engineering for the completed facilities, prepared by a licensed civil engineer, have been reviewed and approved by the Public Works Department. These mitigations, and other stormwater-related conditions, were incorporated by the Examiner into the August 4, 2003 decision; and Appellant's fifth issue contends that the proposed project is inconsistent with the City's adopted Comprehensive Plan, particularly with Housing Policy 5.3 which states: "Integrate special needs and low income housing developments throughout the community. ' Appellants seek Council redress through: a) denial of the subdivision request; b) directing the applicant to seek project approval through the PUD process; and, c) docketing of a Comprehensive Plan amendment to clarify the intent and dispersal requirements of four-plex development in the R-II zone. Council finds that the Examiner did address the referenced Comprehensive Plan policy and found the proposed subdivision to be consistent with it. Whether amendments to the Comprehensive Plan are needed to limit fourplex development in the R- II zone lies outside the review process required for this proposal. The applicant has properly requested approval of a full subdivision, which is subject to all applicable provisions of municipal code that are in effect at the time of submittal; and Appellant's sixth assertion is that significant impacts to various public services have been inadequately addressed. In their view, the needs of many agencies such as "schools, DSHS, public transit, low-income health care, day care, disability services, police and emergency medical services" and others have not been accounted for. Appellant's request that Council review the applicant's Market Study to rule on its validity, establish a task force to consider long-term public service impacts of this development, and postpone approval of the subdivision pending the 5 Resolution 03-029 results of that effort. Council, however, finds written comments from many of the referenced providers themselves (Port Townsend School District, Jefferson Transit, and City Police & Fire Departments) do not reflect the appellant's level of concern. Mitigations to ensure safe walking conditions for school children as well as to address the stated needs of Jefferson Transit are included in the Examiner's decision. Council further finds that reliance upon the applicant's Market Study is useful and convincing for considering potential impacts to other social agencies. Said study indicates that many future residents of Laurel Heights will be moving into the development from existing housing either already in the City or from very near by (within 5 miles). Therefore, many future residents of Laurel Heights already use the social agency support system in Port Townsend and no significant adverse impacts to these services are anticipated from the proposed development; and 24. Appellant's seventh issue contends again that the proposal should be reviewed under the PUD process, coupled with a Multi-Family Design Standards review, to ensure buffers are established to protect all surrounding neighborhoods particularly those to the northeast and southeast. Council finds the proposed construction does not meet the City's adopted definition of "multi-family dwelling" found in PTMC 17.08.020 and therefore is not subject to the design standards for such. The approved project includes the applicant's offer to retain 75-foot wide vegetative buffers along the north and south project boundaries. Separating the subject project from these eastern neighborhood is the 80- foot wide Hancock Street right-of-way, which is currently unopened and vegetated. Minimal activity within the western half of Hancock Street will be necessary to serve the proposed subdivision. The nearest any existing home to the east will be to any proposed structure in Laurel Heights is approximately 100-feet. No evidence to support establishment of additional vegetative buffers has been demonstrated or is warranted; and 25. Appellant's eight and last appeal issue asserts that the SEPA MDNS must be modified to require any future development of the applicant's adjoining lands to be subject to additional SEPA review, even if the proposed development is categorically-exempt. Council again finds that the attempted SEPA appeal by NRD was dismissed by the Hearing Examiner for failure to be timely filed. With this dismissal, the Threshold MDNS became a Final MDNS just as if an appeal attempt had never been made. Since a Final SEPA determination exists, the City Council is not legally in a position to modify,, or supplement, any of the imposed mitigation measures. 6 Resolution 03-029 DECISION NOW, THEREFORE, the City Council of the City of Port Townsend hereby adopts the Findings of Fact, Conclusions of Law, and the Decision of the Hearing Examiner dated August 4, 2003, and conditionally approves the application subject to the conditions set forth by the Hearing Examiner, as follows: o o That the north parcel will be limited to 30 detached homes; and That patios or decks (depending on the lay of the land) will be provided in the south section construction; and That the maintenance fund specified in the MDNS will be supplemented by a cash account of $5,000, to be used for any code enforcement matter that arises and that that account will be replenished to remain at $5,000 when it is drawn upon; and That the developer will provide land for a community center and will donate up to one-half of the building cost and will build the building sharing the cost with an appropriate partner with construction coincident with the construction of the project. ADOPTED by the City Council of the City of Port Townsend on this twenty-ninth day of September, 2003. Kees Kolff, Mayor /1 Attest.· Approved as to Form: Pamela Kolacy, CMC~ John P. Watts, City Attorney 7 Resolution 03-029