COUNTY COMMISSIONERS Cathy Wolfe District One Diane Oberquell District Two Robert N. Macleod District Three HEARING EXAMINER BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY In the Matter of the Application of ) NO. 2006100974 ) Eric Russell, ) Russell and Associates ) FINDINGS, CONCLUSIONS, ) AND DECISION For a Reasonable Use Exception ) ) SUMMARY OF DECISION A Reasonable Use Exception (RUEX) to reduce a Class II wetland buffer from 200 feet to 50 feet in order to construct a single-family residence is GRANTED, subject to conditions. SUMMARY OF RECORD Request Eric Russell (Applicant) requests approval of a RUEX to reduce a Class II wetland buffer from 200 feet to 50 feet in order to construct a single-family residence on property located at 21710 Meadow Court SE, in Yelm, Washington. Hearing Date The held an open record public hearing on the request on August 21, 2006. Testimony At the open record public hearing, the following individuals presented testimony under oath: Kim Pawlawski, Thurston County Development Services, Associate Planner Eric Russell, Applicant Exhibits At the open record public hearing, the following exhibits were admitted into the record: EXHIBIT 1 Development Services Planning & Environmental Section Report with the following Attachments: Attachment a Notice of Public Hearing 2000 Lakeridge Drive SW, Olympia, Washington 98502 (360) 786-5490/FAX (360) 754-2939
Attachment b Reasonable Use Exception Application, received April 27, 2006 Attachment c Zoning Map and Assessor Data for Parcel Attachment d Site Plan dated May 16, 2006 Attachment e Wetland Mitigation Plans prepared by Russell & Associates, dated March 21 and April 26, 2006 Attachment f Photos of Subject Parcel, taken July 21, 2006 Attachment g Aerial Photos of Site Attachment h Plat Map of Clearwood Division 18, dated April 1974 Attachment i Critical Area and Buffer Notice Attachment j Emails from John Ward, Thurston County Environmental Health, dated May 2 and May 17, 2006 Attachment k Letter from the Washington State Department of Ecology, dated May 18, 2006 EXHIBIT 2 Site Plan (11x17), dated May 16, 2006 (enlarged copy of Exhibit 1, Attachment d) Upon consideration of the testimony and exhibits submitted at the open record public hearing the Hearing Examiner enters the following Findings and Conclusions: FINDINGS 1. The Applicant seeks approval of a RUEX to reduce a Class II wetland buffer from 200 feet to 50 feet in order to construct a single-family residence on property located at 21710 Meadow Court SE, in Yelm, Washington. 1 The subject property is Lot 2 of the Clearwood Division 18 plat, approved in April 1974. Proposed development would include a driveway, a septic system, and a single-family residence. Exhibit 1, Staff Report, pages 1-2; Exhibit 1, Attachment b, Application. 2. The site is an irregular shaped parcel surrounded by undeveloped parcels to the north, south, and west, and a cul-de-sac, Meadow Court SE, to the east. The property was once used as a summer recreation area. Two small sheds were installed along the west boundary of the site, which are accessed by an existing driveway. The property is vegetated by mature second growth conifers and scattered shrubs. Topographically, there is a ridge in the south-central portion of the site from which the land slopes downward to the north and south. Exhibit 1, Attachment e, Wetland Report. 1 The subject property is known as Clearwood Division 18 Lot 2, Tax Parcel #41330000200, also known as a portion of Section 31, Township 16 North, Range 3 East, W.M. Exhibit 1, Attachment b, Application. Russell RUEX, No. 2006100974 page 2 of 8
3. The 0.31-acre subject property is within a Rural Residential Two Dwelling Units per Acre (RR 2/1) zone. Exhibit 1, Staff Report, page 2. The intent of the RR 2/1 district is to encourage development that enhances and preserves the semi-rural residential character of areas that contain large or scattered areas having moderate physical limitations for development and are in the path of urban development, but do not currently have services required for urban-level development. TCC 20.13.010. Permitted uses in the RR 2/1 zone include agriculture, single- and two-family residential development, and home occupations. TCC 20.13.020. 4. The Thurston County Critical Areas Ordinance (CAO), enacted in 1994, defines residential development in the RR 2/1 zone as high intensity development and requires a 200-foot buffer between Class II wetlands and high intensity uses. Exhibit 1, Staff Report, pages 2-4; TCC 17.15.940, Table 10. 5. There has not been any alteration of the lot configuration since the parcel recording in 1974. The Applicant purchased the site in March 2006 for $28,500.00 and has not altered it. Exhibit 1, Staff Report, pages 4, 6; Exhibit 1, Attachment e, page 4; Testimony of Ms. Pawlawski. 6. A Category II wetland, greater than ten acres in area, extends along the north and west sides of the site. The Applicant submitted a wetland delineation report, prepared by Russell & Associates, indicating that the wetland extends into a small area in the northern tip of the irregularly shaped site. The 200-foot buffer required for Category II wetlands by the CAO encumbers the entire subject property. Exhibit 1, Staff Report, pages 2-4; Exhibit 1, Attachment d; Exhibit 1, Attachment e, Wetland Report; Exhibit 2. If the CAO-required 200- foot buffer were applied to Lot 2, no development of the property would be possible. Testimony of Ms. Pawlawski. 7. The Applicant s preliminary site plan depicts a varying width, no-disturb buffer adjacent to the wetland that is 50 feet wide at its narrowest point. The site plan depicts the proposed residence as being set back 58 feet from northern part of the wetland and approximately 80 feet from the western part of the wetland. Exhibit 2. As proposed, the northern one-third and the southwestern tip of the site would contain the reduced wetland buffer. The Applicant proposes to place the single-family residence, driveway, and septic system in the southcentral portion of the lot, as far upland from the wetland edge as possible. An eight-foot building setback would be retained between the proposed northern buffer edge and the building envelope to provide room for equipment during construction of the residence. The site plan depicts a total of 3,052 square feet of the site developed with a 1,800 square foot residence, a 900 square foot new driveway, and a 360 square foot septic system. The existing dirt driveway would be abandoned within the proposed northern wetland buffer area. Exhibit 2, Site Plan; Testimony of Mr. Russell; Exhibit 1, Attachment e, Wetland Report and Addendum. 8. The Applicant submitted a proposed mitigation plan to address unavoidable impacts to the wetland buffer that would result from development of the site. Proposed mitigation includes Russell RUEX, No. 2006100974 page 3 of 8
constructing a split rail wood fence along the edge of the reduced buffer at both its northern and western crossings of the site. Three aluminum wetland signs would be posted on the north buffer fence and two buffer signs would be posted on the west buffer fence, each facing the residence. Also, to mitigate the impacts of buffer reduction, the Applicant proposes to scarify the existing dirt driveway within the proposed north wetland buffer and plant it with 24 one-gallon native Douglas fir and western red cedar trees. Exhibit 1, Attachment e, Wetland Report Addendum, dated April 26, 2006; Testimony of Mr. Russell. 9. Thurston County Environmental Health Division reviewed the Applicant s proposed preliminary site plan and recommended RUEX approval. The Applicant s preliminary septic design was approved. Exhibit 1, Attachment j. 10. The Water Quality Division of the Department of Ecology submitted comments on the proposed RUEX requesting mitigation measures that require the Applicant to identify and field-mark the buffer prior to clearing or grading activities and prevent sediment-laden discharge to waters of the state. Exhibit 1, Attachment k. 11. Although the CAO criteria for reasonable use exception ordinance, in effect at the time of application, require the County to make a determination regarding reasonable economic use of property, the code does not define the term reasonable economic use. County Staff identified recreation, open space, and support facilities as potential economic uses of the site. However, because of the size of the parcel and its location within a single-family residential subdivision, Staff opined that none of the three potential uses can be considered reasonable economic uses. The RR 2/1 zoning designation, the 1974 subdivision approval, and the January 2006 approval of an RUEX on the adjacent lot to the south reducing the wetland buffer to 50 feet (RUEX No. 2005103075) support the Applicant s contention that the property was zoned and platted to allow residential construction on the parcel. Testimony of Ms. Pawlawski; Exhibit 1, Staff Report, page 4. 12. Based on the purchase price, County Staff agreed that the Applicant intended residential development of the site at time of purchase and that construction of a single-family home would be the minimum development possible for a reasonable economic use of the property. While passive recreation or open space would be allowed, given the lot s size and location within a residential subdivision, neither constitutes a viable economic use of the property. Conditions of approval would be necessary to ensure that no disturbance, permanent or temporary, is allowed to occur within the reduced wetland buffer. Testimony of Ms. Pawlawski; Exhibit 1, Staff Report, pages 5-7. 13. In order to avoid intrusion into the wetland buffer, the proposed building envelope must be clearly marked prior to the start of construction. To prevent future residential uses from encroaching into the critical area, the edge of the buffer must be identified and permanently marked on-site with fencing and signage. County Staff recommended that the minimum number of trees be removed from the site to establish the building envelope and that minimal fill be imported for site preparation. With these recommended conditions, Staff determined that the proposed RUEX would not negatively impact public health, safety, or welfare. Testimony of Ms. Pawlawski; Exhibit 1, Staff Report, page 5. Russell RUEX, No. 2006100974 page 4 of 8
14. The proposed project is categorically exempt from review under the State Environmental Policy Act (SEPA). Exhibit 1, Staff Report, page 2; Washington Administrative Code (WAC) 197-11-800. 15. Written notice of the public hearing was sent to all property owners within 500 feet of the site and posted on site on August 10 2006. Notice was published in The Olympian on August 11, 2006. Exhibit 1, Staff Report, page 2; Exhibit 1, Attachment a. CONCLUSIONS Jurisdiction The Hearing Examiner is granted jurisdiction to hear and decide applications for Reasonable Use Exceptions pursuant to Chapter 36.70 of the Revised Code of Washington and Chapters 2.06 and 17.15 of the Thurston County Code. Criteria for Review Critical Area Impacts: 17.15.325 Review standards--mitigating critical area impacts. A. Impacts to critical areas are best reduced through avoiding the activity altogether; thus avoidance shall be the primary means to achieve the requirements of this chapter. B. Unavoidable impacts to critical areas often can and should be minimized by sensitive site design and deliberate actions during construction and implementation. Reasonable use Exception: Pursuant to TCC 17.15.415(C), the Hearing Examiner shall grant a reasonable use exception if: 1. No other reasonable economic use of the property as a whole is permitted by this chapter; 2. No reasonable economic use with less impact on the critical area or buffer is possible; 3. The requested use or activity will not result in any damage to other property and will not threaten the public health, safety or welfare on or off the development proposal site; 4. Any alteration to a critical area is the minimum necessary to allow for reasonable economic use of the property; and 5. The inability of the Applicant to derive reasonable use of the property is not the result of actions by the applicant in subdividing the property or adjusting a boundary line thereby creating the undevelopable condition after the effective date of this chapter. Russell RUEX, No. 2006100974 page 5 of 8
Conclusions Based on Findings 1. No other reasonable economic use of the property as a whole is possible. Because the entire subject property is encumbered by the Class II wetland and associated buffer, reasonable economic uses are limited. While passive open or recreation space is a possible use, it is not a reasonable economic use for the property due to the size of the parcel and its location within a residential subdivision. With conditions of approval demarking the wetland buffer and ensuring compliance with the required setbacks, single-family residential development is the only reasonable economic use of the property. Findings Nos. 6, 11, and 12. 2. No reasonable economic use with less impact on the buffer is possible. The applicable Thurston County standard requires consideration of a reasonable economic use. While passive open space or recreational use could have less impact on the buffer, they are not reasonable economic uses given the size and location of the parcel. The only viable economic use identified in the record is residential development. Findings Nos. 11 and 12. 3. With conditions, the requested use would not threaten the public health, safety, or welfare on or off the development proposal site. The Applicant s preliminary septic system design has received approval from the Thurston County Health Department. Final on-site septic design would be required to comply with all County septic setback and other design standards. Conditions of approval would ensure that the unavoidable impacts to the wetland buffer would be minimized through sensitive site design and deliberate actions during construction, consistent with TCC 17.15.325(B), including wood fencing and signage to mark the buffer edge, limiting fill, limiting tree removal to the minimum necessary, and buffer enhancement in the location of the existing dirt driveway. With these conditions, the proposed development would not cause harm to public health, safety, and welfare. Findings Nos. 8, 9, 10, and 13. 4. The proposed alteration to the critical area is the minimum necessary to allow for reasonable economic use of the property. Due to the size of the subject property and the limited upland area, few changes to the preliminary site plan are possible. With conditions to protect the wetland buffer edge and ensure compliance with the required septic setback, the proposed residence will alter the critical area to the minimum extent necessary to allow for reasonable economic use of the property. Findings Nos. 11, 12, and 13. 5. The inability of the Applicant to derive other reasonable economic use of the property is not the result of the Applicant s actions. The subject property has not been part of a subdivision or boundary line adjustment since before the adoption of the Critical Areas Ordinance in 1994. The Applicant has not altered the site. Findings Nos. 1, 2, and 5. DECISION The request for approval of a RUEX to reduce a Class II wetland buffer from 200 feet to 50 feet in order to construct a single-family residence on property located at 21710 Meadow Court SE, in Yelm, Washington is GRANTED subject to the following conditions: Russell RUEX, No. 2006100974 page 6 of 8
1. Prior to or in conjunction with building permit issuance, all applicable regulations and requirements of the Thurston County Environmental Health Division, Thurston County Roads and Transportation Services Department and the Thurston County Development Services Department shall be met. 2. Prior to building permit issuance, the Applicant shall record with the Thurston County Auditor: a) a document similar to the Critical Area and Buffer Notice (Exhibit 1, Attachment h); and b) a site plan showing the wetlands and associated buffers. The Applicant shall also record the Hearing Examiner Decision for the purpose of providing public awareness of the permit and these conditions. 3. Wetlands, marshes, bogs, and swamps are designated as critical areas per the Thurston County Critical Areas Ordinance, TCC 17.15. As a condition of approval, the following note must be recorded with the Critical Area and Buffer Notice: Wetlands are designated as critical areas in Thurston County. Due to the importance of these wetlands for wildlife habitat, pollution control, ground water recharge and flood water storage, no clearing, filling, grading or other construction activities shall be allowed within the wetland or buffer area except where exempted by and when prior authorization is obtained from Thurston County Development Services, Planning and Environmental Section. 4. Structures or land clearing that are not incidental to the preparation of the home site shall be permitted on the property. The Applicant shall mark the trees that must be removed and County Staff shall verify that the vegetation clearing satisfies the conditions of the permit. 5. A wetland mitigation plan has been prepared and submitted in accordance with TCC 17.15.1005 to enhance the existing buffer and reduce the impacts of activities associated with a single-family residence, on-site septic system, and driveway installation. To ensure installation and survival of the plantings, this plan is subject to monitoring by Development Services Staff for three years after it has been installed. The three year period shall commence upon notice to the Development Services Staff that all of the plantings have been installed. 6. A permanent fence (low, split rail, non-barbed wire or wood farm fencing) shall be erected at the intersection of the reduced buffer edge and the developed portion of the lot before any clearing or construction can occur. County Staff must inspect and approve this fence before and after construction. The permanent fence may be constructed in sections with gaps not to exceed 10 feet. It shall not be totally solid or made of barbed wire. All construction materials shall be stored outside of the wetland buffer areas. The permanent fence is to provide the clearing limits during construction and provide a physical definition of the buffer locations that is to be preserved. The fence shall be constructed to allow wildlife to pass through the area. The edges of the buffers must be accurately located prior to installation. Assistance Russell RUEX, No. 2006100974 page 7 of 8
from a wetland biologist may be required to determine where the location of the buffer edges. The portion of the subject property between the fence and the northern property line shall be replanted consistent with the wetland mitigation plan. 7. The perimeter of the wetland buffer on the upland must be marked with five permanent metal face signs along the buffer boundary, as identified on the preliminary site plan (Exhibit 2). A template for these signs can be obtained from the Thurston County Development Services Department. The signs must be a minimum of 9 by 18 of heavy gauge aluminum affixed to 4 by 4 pressure-treated wood posts. The signs must be placed approximately 4 feet above the ground surface and face the residence. The signs must be installed prior to approval of the final inspection of the single-family residence. 8. The septic drainfield shall be constructed so that vegetation removal is minimized. Erosion and sediment control devices shall be installed prior to any construction activity or clearing of property to prevent upland sediments from flowing off the property into the wetland. 9. Future removal of trees within the wetland and associated buffer must be reviewed by Thurston County Development Services Department Staff at the time of the proposed removal. This includes the identification of the tree(s) as hazardous which will require a certified arborist to determine whether the tree(s) present a hazard to surrounding structures. The review may also include requirements for additional mitigation and replanting to replace the function and value of the tree(s) proposed for removal. DECIDED this 6 th day of September 2006. James M. Driscoll \\Tcbldg1d\VOL1\apps\track\Planning\Amanda Save File\Reasonable Use Exception XI\Decisions\2006100974.decision.russell.doc Russell RUEX, No. 2006100974 page 8 of 8