Plat Alteration request of Barkley North LLC re 3400 Sussex Drive (aka Village on the Green Division #5 Tract B) 08/26/2015

Hearing Examiner Summary and Decision Hearing Examiner No. Planning No. Incident No. Filing Date City Contact Hearing Date Description Decision Date Decision Summary HE-15-PL-022 SUB2015-00019 06/22/2015 Ryan Nelson 08/12/2015 Plat Alteration request of Barkley North LLC re 3400 Sussex Drive (aka Village on the Green Division #5 Tract B) 08/26/2015 Approved with conditions THE HEARING EXAMINER OF THE CITY OF BELLINGHAM WHATCOM COUNTY, WASHINGTON IN RE: HE-15-PL-022 BARKLEY NORTH LLC, APPLICANT 3400 Sussex Drive SUB2015-00019 / Plat Alteration of Village on the Green Division #5 Tract B FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER Sharon Rice, Hearing Examiner Hearing Date: SUMMARY OF DECISION The requested alteration of the approved final plat of Village on the Green Division 5, relocating two approved lots south of approved and recorded Lots 19 and 20 within approved future development Tract B is APPROVED. SUMMARY OF RECORD Request: Ali Tayshi of ATV Consulting, on behalf of Barkley North LLC (Applicant), requested alteration of the approved final plat of Village on the Green Division 5, relocating two approved lots south of approved and recorded Lots 19 and 20 within approved future development Tract B. Hearing Date: Page 1 of 9

The Bellingham Hearing Examiner conducted an open record hearing on the request on August 12, 2015. Testimony: At the hearing the following individuals presented testimony under oath: Ryan Nelson, Planner I, City of Bellingham Kathy Bell, Planner II, City of Bellingham Ali Tayshi, Applicant Representative Harold Scott Joann Cowan Larry Thompson Penny Zehnder Exhibits: At the open record hearing, the following exhibits were admitted in the record: 1. Planning Department Staff Report to the Hearing Examiner, dated August 12, 2015, with the following attachments: A. Resolution # 2004-38 Preliminary Plat Map B. Plat Alteration Preliminary Plat Map C. Recommended Plat Alteration Conditions of Approval D. RCW 58.17.215 E. Final Plat approval for Division 5 of Village on the Green Subdivision F. Public Comment submitted by Larry Thompson, August 2, 2015 G. Plat Alteration Application H. Private Access Road Design I. Critical Areas Permit Approval, issued July 20, 2015, with attachments: 1. Critical area permit application 2. Geological Hazardous Area Evaluation for Lots 21 and 22 of Sussex Drive, prepared by GeoTest, January 28, 2015 3. Geological Hazardous Addendum (sic), prepared by GeoTest June 23, 2015 2. Additional public comment received prior to hearing: A. William and Penny Zehnder, August 8, 2015 B. Harold and Maryanne Scott, August 7, 2015, with attached Uniform Residential Appraisal Report 3. Email from Ali Tayshi to Ryan Nelson, dated July 29, 2015 Mr. Tayshi's email indicated that Village on the Green Div 5 CCRs are attached to the email as a.pdf; however, the CCRs were not attached to the printed email submitted at hearing. Exhibit 3. 4. Recorded Final Plat of Village on the Green Division 5, recorded March 14, 2008 (2 Sheets plus cover) 5. Conceptual Layout of future development on the proposed relocated lots 6. Map showing proposed relocated lots within Tract B and as relative to properties from which public comment submitted (Tract B in orange, anticipated development envelopes outlined in red, public comment property in pink) 7. City IQ map showing relative topography (topo scale five feet) Page 2 of 9

8. Photograph of the view west (over the proposed lots) from the east side of Chandler Parkway, submitted by the Applicant 9. Assessor Map with highlighted lots of interest: pink is the proposed relocated lots, orange is the Thompson residence Upon consideration of the testimony and exhibits submitted, the Hearing Examiner enters the following findings and conclusions: FINDINGS 1. The Applicant requested alteration of the approved final plat of Village on the Green Division 5, relocating two approved lots south of approved and recorded Lots 19 and 20 within approved future development Tract B. The subject property is located at 3400 Sussex Drive. The subject property is known as Whatcom County Assessor parcel number 380316-378078-0000. Exhibit 1. Exhibits 1 and 1.G. 2. Village on the Green preliminary plat was approved in March 1994 (Resolution 11-94). The preliminary plat was amended in August 1995 (Resolution 50-95). It was amended again in December 2004 (Resolution 2004-38), when the Bellingham City Council approved a redesign from single-family attached units to 25 single-family detached units and granted a one-year extension for the portion of the Village on the Green plat located north of Sussex, south of Vining Street, and west of Chandler Parkway. Village on the Green Final Plat came before the Bellingham City Council on November 19, 2007. Council found that all conditions for preliminary plat approval had been met or ensured by a financial security and granted final plat approval. Division 5 final plat was recorded with the Whatcom County Auditor on March 14, 2008. Exhibits 1.A, 1.E, and 4. 3. The majority of the lots near the site for the proposed plat alteration within Village on the Green Division 5 are developed or have been issued building permits for single-family residences. Exhibit 1. Surrounding parcels are also developed with existing residential development. Exhibits 8 and 9; Public Comment. 4. A portion of the approved preliminary plat was the subject of an attempted boundary line adjustment. The proposal would relocate the density of two previously approved lots (identified as Lots 19 and 20 on the original plat map at Exhibit 1.A) to a new location within future development Tract B. The history and background of why the lots must be relocated is not exactly clear in the record, but it related to a change in ownership of the overall property after preliminary plat approval and a boundary line adjustment that was not successfully negotiated, which together with other actions resulted in the originally proposed Lots 19 and 20 not being located in the property included in approved and recorded Village on the Green Division 5. Instead the land on which those two lots were originally proposed is presently located in adjacent Meadow Woods. See the map attached to Resolution 2004-38 at Exhibit 1.A; Tayshi Testimony. 5. During final plat consideration of Village on the Green Division 5, it was recognized that a portion of Tract B would be needed to fulfill the creation of initially approved Lots 19 and 20 depending on the outcome of the boundary line adjustment. The open space areas identified as Tracts A and B were both called out for future development on the recorded final plat in order to provide flexibility in relocating the approved density. Exhibit 4; Tayshi Testimony. The current owner of the subject property seeks to relocate the approved density of the two lots to an open area between two rows of homes in what was approved as future development Tract B. See Site Plan for Plat Alteration, Sheet 2 of 2, at Exhibit 1.B. Page 3 of 9

6. The relocated two lots are proposed as Lots 21 and 22 due to renumbering of previously recorded lots in Division 5. Exhibit 1.B; Bell Testimony. 7. Proposed Lots 21 and 22 would have site areas of 7,704 and 8,127 square feet respectively. Although proposed Lots 21 and 22 front on Sussex Drive, a developed residential street, access to both lots would be provided by an extension of the existing private driveway serving Lots 16, 17, 18, 19, and 20 in Division 5 recorded under AF#2080302115. The proposed lots would be served by the existing public infrastructure. There is an existing sewer main located within an easement, which runs between proposed lots. Consistent with the preliminary plat, the all of Tract A and the remaining portion of Tract B would be designated private open space and would not be further subdividable. Exhibits 1 and 1.B, Nelson Testimony; Tayshi Testimony. 8. The subject property is located in Area 2 of the Barkley Neighborhood. The site is zoned Residential Multi with a Planned Use Qualifier and a 10,000 square foot minimum overall density. As noted in the staff report, view, clearing, steep slopes, Fever Creek, and wetlands are listed as Special Conditions. Sufficient water capacity and supply is identified as a prerequisite consideration however there are no special regulations associated with this subarea. All abutting properties share the site's zoning designation. Exhibit 1. 9. The subject property contains steep slopes. The Applicant submitted a critical area permit on May 20, 2015, together with a geological hazard areas evaluation of the site. The geologic hazard area evaluation and a subsequent addendum addressed future construction and identification of buildable area within the two lots, which are encumbered by steep slopes and required setbacks. The geologic hazard evaluation concluded that with proper engineering at construction, the two lots were suitable for development with single-family residences. The critical area permit was administratively reviewed for compliance with the critical areas ordinance under BMC 16.55 and approved by Planning Staff as a Type I permit under #CAP2015-00030 on July 20, 2015. Exhibits 1, 7, and 10. 10. The Applicant submitted a copy of the covenants, conditions, and restrictions (CCRs) for the Village on the Green Division 5 plat to Planning Staff on July 29, 2015. Based on Staff's review of the CCRs, the proposal does not violate any of the terms and conditions of the plat. Exhibits 1 and 3; Nelson Testimony. 11. For the purposes of determining compliance of the proposed plat alteration with the BMC, the proposal is treated as a subdivision and must be found to comply with all provisions of Title 18. As proposed, the plat alteration maintains the approved overall density of the Village on the Green preliminary plat. Each of the proposed lots has a site area of at least 7,700 square feet and maintains the 10,000 square foot overall average density required for Area 2 of the Barkley Neighborhood as previously approved under Resolution #2004-38. Each lot provides the required 40-foot lot width and 60-foot depth dimensions required in BMC 18.32.040.E. Exhibit 1; Nelson Testimony. 12. The City's residential development standards require construction of all abutting streets to three-quarter residential street standard. Sussex Drive is improved to full residential standard and satisfies this requirement without further improvements. The existing access easement from which the two lots are proposed to access meets the minimum driveway requirements for single-family residences under BMC 20.30 & 20.12. Extension of the driveway to serve the two lots, including any engineering associated with retaining wall construction, would be reviewed for compliance with applicable standards at the time of building permit application for construction of the residences. The City's development standards require all residential lots to fully abut on a public water and sewer main, and the proposed lots abut the required Page 4 of 9

infrastructure. The Applicant submitted a professionally prepared stormwater management report dated April 2015. Compliance with the City's stormwater management standards at BMC Chapter 15.42 must be demonstrated, and any mitigation necessary to satisfy code requirements would have to be fully implemented, prior to final plat approval. Exhibits 1 and 1.B; Nelson Testimony. 13. Future development of Lots 21 and 22 would be reviewed for compliance with the singlefamily residential development standards at BMC Chapter 20.30 at the time of building permit application, and would be required to abide by applicable restrictions for the life of the residential use of the site. Items reviewed include: restrictions on permitted uses; minimum site area, open space, structure height, and yards; parking; signs; accessory structures; fences; and vision clearance at site entrances and frontages. Exhibit 1; BMC Chapter 20.30. 14. The Applicant and City of Bellingham Public Works, Planning, Fire, and Building Department Staff met for a pre-application meeting regarding the proposed plat alteration on November 18, 2013. The Applicant conducted the required neighborhood meeting on March 10, 2015. The application for plat alteration was submitted May 20, 2015 and deemed complete on July 22, 2015. Notice of application was mailed to surrounding property owners, published, and posted on July 22, 2015. Exhibit 1; Nelson Testimony. 15. In response to notice of application, public comments submitted raised concerns about view obstruction, property value impacts, and noise associated with increased traffic on the extended driveway easement. Exhibit 1.F. At hearing, the owners of the three parcels on Chandler Parkway immediately upslope of the proposed relocated lots attended and submitted additional comments and concerns including the following: When the Village on the Green Plat was developed, the Tract B area was identified on plat maps as open space; one still retained copies of the map she was given during due diligence research on the upslope parcel she purchased, which labels Tract B as open space. In purchasing their upslope properties, two neighbors indicated they were told by real estate agents that the area immediately west (where the two lots are proposed to be located) was permanently protected open space and their views could not be impacted by future development adjacent to them. They don't believe the real estate agents deliberately misled them. One described the fact that the tract is now called a future development tract as "bait and switch". The proposed two homes would occupy the forefront of the striking, unobstructed, valuable views now enjoyed by those upslope properties. The neighbors opposed approval based on alleged decreased property values for the upslope properties. One adjacent property owner sought permission from the City to clear trees from the slope below his property for the purpose of enhancing his view, and he was told it was not permitted because of the slope. He testified that he did not understand how homes could be built where trees cannot be cleared for slope stability concerns. Several members of the public expressed strong concern about the noise of access along the extended driveway that will border their backyards. One stated that she is an especially light sleeper who needs to protect her sleep for health reasons; she stated that the existing noise from the driveway already interrupts her peace. Another testified that the sounds of garbage collection and children playing on what will be the only flat area on the lots would be a major impact to their quiet enjoyment of their existing residences. Neighbor opponents were concerned to learn that the Applicant does not own initially approved Lots 19 and 20 and yet is still allowed to develop proposed Lots 21 and 22. Page 5 of 9

Neighbors stated they would prefer if the two lots would access from Sussex Drive, because it would cut down on noise and other impacts. Testimony of Harold Scott, Joann Cowan, Larry Thompson, and Penny Zehnder; Exhibit 2. 16. In response to public comment, Planning Staff offered the following comments. There are no existing recorded view easements and view preservation is not required in the municipal code. New construction would be required to comply with the building height requirements for single-family residences under BMC 20.30.040.E. The two lots are down the rather steep slope from the parcels owned by neighbors opposing approval. Because of the slope, height of the future structures is likely to be measured with Height Definition No. 2, which allows a structure to be a maximum of 20 feet from highest grade on the parcel to the highest peak of the roof. The tallest possible houses on the two lots would be in the view from the upslope parcels but would not obstruct their view. Regarding why houses are allowed when tree clearing was not, Planning Staff testified that tree clearing in a geologically hazardous area is strictly regulated in the code, requiring replacement of removed vegetation at a 3:1 ratio in order to protect slope stability. The Applicant obtained a geologically hazardous area evaluation and it was determined that residences can be built on-site safely with adherence to geotechnical recommendations and specific engineering. The developers of the future homes would be required to take measures to stabilize the slope, including recommended engineering for retaining walls and foundation, stormwater management, and vegetation of disturbed areas. Staff noted that the new lots could access from Sussex Drive, assuming they present plans demonstrating compliance with access standards which might be difficult due to the slope; however, there is nothing in the code that requires them to avoid access by the existing private driveway already serving the adjacent lots. Staff acknowledged that there would be increased traffic on the proposed driveway extension, but stated that traffic from two, new single-family residences is considered a minimal impact to surrounding residential development. Staff noted that residential garbage collection is mandatory under the code and necessary to protect public health. Fire access by the private driveway is not required, so the road built can be designed to minimum standards to access the two residences. Regarding the decision to place the relocated density in this specific area instead of elsewhere in Tracts A or B, Planning Staff indicated that this available space would less impactful than development in or adjacent to wetland areas in Tract A and that this location provides convenient access to sewer connection, minimizing disturbance for infrastructure construction. Finally Staff noted that property owners who believe they are negatively impacted from the proposal may request a reassessment of their property taxes from the Whatcom County Assessor's Office. Exhibit 1; Nelson Testimony. 17. In response to public comment, the Applicant representative testified that he is personally disappointed that the owners of the upslope parcels were informed that Tract B was permanent open space, because that was incorrect information; the area was specifically reserved for future development in the recorded final plat. Regarding why the Applicant is entitled to develop the two lots even though they do not own initially approved Lots 19 and 20, he noted that the current owners acquired the plat after Division 5 was recorded and the plat they purchased included these two yet-to-be-located units. Regarding view, he testified that the houses would sit much lower than the upslope residences. The representative noted that there would be an engineered retaining wall along the eastern boundary against the upslope parcels that would likely be at least eight feet tall, which should deflect some of the noise out to the west instead of up the slope. He observed that relocating the two units to the other end of Tract B would not reduce the impacts complained of but would only relocate them. He testified that access from Sussex Drive had been considered and determine to be infeasible due to the very steep driveways that would be created. He noted that of the houses on Sussex, only one accesses from Sussex. He testified that the proposed lots are consistent with City code and policies promoting urban infill development and that the selected location was chosen because Page 6 of 9

it is expected to result in the fewest possible impacts. Exhibits 4, 5, 6, 7, 8, and 9; Tayshi Testimony. CONCLUSIONS Jurisdiction The Hearing Examiner is granted authority to hold hearings and issue decisions on plat alteration applications (a Type III-B land use) pursuant to BMC 21.10.040.E. Plat Alteration Criteria for Approval Pursuant to RCW 58.17.215 and BMC 21.10.040.E, the Hearing Examiner shall determine the public use and interest in the proposed alteration and may deny or approve the application for alteration. Conclusions Based on Findings 1. All applicable procedural steps outlined in BMC Title 21 were met. Finding 14. 2. As conditioned, the proposed plat alteration would further the goals and policies of the Comprehensive Plan by allowing urban infill development in an area served by municipal utilities. The proposal is consistent with applicable development standards for the Residential Multi zone and the Barkley Neighborhood and with the approved, recorded final plat of Village on the Green Division 5. The resulting density is consistent with the originally approved and recorded final plat; no additional units are created. Approval of the plat alteration would be consistent with the existing development pattern and the established overall neighborhood character. Findings 2, 3, 5, 7, 8, 10, 11, 12, 13, 15, 16, and 17. 3. With conditions, the alteration would not negatively impact the public use and interest. The proposed placement of the two lots reflects a minimal disturbance of the Village on the Green Division 5 Plat, in that it continues the existing development pattern, is placed immediately adjacent to necessary infrastructure including access, water, and sewer, and avoids impacts to wetlands and associated buffers. The remainder of Tract B and all of Tract A would be retained as open space not further developable. Future residential development of the two lots would be required to abide by all applicable codes relating to height, stormwater management, geologically hazardous areas, utilities, and access; conformance to these standards would be reviewed at the time of building permit. While immediately adjacent parcels would experience the changes associated with new residential development on previously vacant land, it is not in violation of any applicable code, policy, or condition of the recorded plat to create such additional single-family residential impacts. Findings 3, 5, 7, 8, 9, 10, 11, 12, 13, 15, 16, and 17. DECISION Based upon the preceding findings and conclusions, the requested alteration of the approved final plat of Village on the Green Division 5, relocating two approved lots south of approved and recorded Lots 19 and 20 within approved future development Tract B, is APPROVED subject to the following conditions: General Plat Requirements 1. No new lots are created. No more than two of the previously approved lots may be relocated. The remainder of the future development track shall be set aside as private open space. The altered plat shall be developed generally as shown on the attached Exhibit B, except as modified to comply with the conditions set forth herein. Page 7 of 9

2. Each lot shall comply with the minimum lot requirements for cluster detached lots under BMC 18.32 & 18.36. 3. Minor amendments may be approved by the Technical Review Committee as specified in BMC 18.20.020. 4. Development of the property shall be consistent with the provisions of BMC Titles 13, 15, 16, 18, and 20. 5. Development of the two lots shall be consistent with the approved critical areas permit and the geotechnical recommendations of the geologically hazardous area evaluation. 6. This approval shall expire as provided in RCW 58.17. 7. Heavy equipment work shall be compliant with BMC 10.24. 8. Impact fees for transportation, schools, and parks shall be paid in accordance with applicable BMC requirements. 9. Design and construction of the plat and improvements thereon and development of the lots shall comply with all applicable requirements of the Bellingham Municipal Code. 10. All required easement documents shall be reviewed and approved by the Planning and Public Works Departments and the Office of the City Attorney and recorded concurrently with the final mylars. Conditions for Final Plat Approval The following conditions shall be satisfied prior to final plat approval pursuant to BMC 18.20. 1. The Applicant, agent, or successor in interest shall be required to construct the private access driveway as depicted in Exhibit H and as approved by the Public Works, Building and/ or Planning Departments prior to final plat approval. 2. Any proposed construction within public easements and/or right of way including but not limited to the proposed retaining wall within the sewer easement between proposed Lots 21 and 22, shall be required to obtain Public Works Department review and approval through a Public Facilities Construction Agreement, Encroachment Permit or Building Permit. 3. The access easement shall be provided in a separate document and recorded concurrently with the final plat mylars. 4. Compliance with BMC 15.42 will be demonstrated prior to final plat approval. Any mitigation necessary to satisfy BMC 15.42 shall be fully implemented prior to final plat approval. General Final Plat Requirements 5. The requirements set forth in BMC 18.20 shall be completed. 6. Mailboxes shall be installed as approved by the United States Postal Service. 7. Monumentation shall be as required in BMC 18.28.180. 8. The following shall be shown on the face of the plat: a. Setbacks b. Joint utility easements. Page 8 of 9

c. A ten-foot wide easement adjacent to public rights-of-way reserved for utility purposes, as determined necessary by the utility providers. d. A note stating that all lots are subject to those conditions set forth in this Order, and as may be amended. e. A note referencing the existing private covenants and any covenants specific to the proposed lots. Lot Development Requirements Single Family 9. Individual lot development for single-family detached units shall be subject to compliance with BMC 20.30. 10. Financial surety may be accepted as provided in BMC 18.28.020. DECIDED August 26, 2015. Bellingham Hearing Examiner Sharon A. Rice Page 9 of 9