CITY OF FERNDALE HEARING EXAMINER

CITY OF FERNDALE HEARING EXAMINER RE: Planned Unit Development ) 16001-PUD Preliminary Plat ) 16018-SE Plat Variance ) 16002-VAR Application by ) ) MD General, L.L.C. ) FINDINGS OF FACT, Malloy Heights ) CONCLUSIONS OF LAW, ) AND RECOMMENDATION TO ) THE FERNDALE CITY COUNCIL SUMMARY OF APPLICATION AND RECOMMENDATION Application: The Applicant is requesting approval to subdivide two adjacent parcels, totaling 38.78 acres, creating 192 single-family detached, residential lots. The Plat Variance is requested in order to allow reduction in the front yard setback for all of the proposed lots. Recommendation: The Hearing Examiner for the City of Ferndale recommends that the Ferndale City Council grant approval for the requested subdivision creating Malloy Heights Planned Unit Development, and the requested Plat Variance, subject to the attached conditions. SUMMARY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION The following Findings of Fact and Conclusions of Law are based upon consideration of the exhibits admitted and evidence presented at the public hearing. I. Applicant: MD General, L.L.C. Property Location: 6200 block of Malloy Avenue, west of Malloy Avenue, north of Thornton Street, Ferndale, Washington Assessor s Parcel Numbers: 390219 504236 and 390218 504171 ~ 1

Zoning: Residential Single-Family [RS 8] Authorizing Ordinances: Revised Code of Washington, Chapter 58.17 Ferndale Municipal Code, Title 18, Zoning Ordinance Ferndale Municipal Code, Title 17, Subdivision Ordinance Ferndale Municipal Code, Title 16, Environmental Policy and Critical Areas State Environmental Policy Act (SEPA). Washington Administrative Code, Chapter 197-11 Ferndale Municipal Code, Title 14, Development Review and Application Procedures SEPA Review: Mitigated Determination of Non-Significance, MDNS, issued April 17, 2017 Legal Notices: Notice of Public Hearing, April 12, 2017 Hearing Dates: May 4, May 16, and May 24, 2017 Parties of Record: Michael Carey MD General L.L.C. Craig Parkinson 119 Grand Avenue, Suite D Bellingham, WA 98225 Lee Delorme 2096 Calico Loop Ferndale, WA Mike Young 6315 Malloy Road Ferndale, WA Linda Petrasek 6252 Lincoln Drive Ferndale, WA Murphy Evans 1545 Marine Drive Bellingham, WA Haylie Miller, Assistant Planner City of Ferndale Planning Department ~ 2

Exhibits: 1 Staff Report, Revised May 4, 2017 2 Planned Unit Development (PUD) Application 3 Picture of ROW 5/4/2017 4 Picture of ROW 5/4/2017 5 Picture or ROW 5/4/2017 6 Malloy Village PUD Development Traffic Impact Analysis, dated Nov. 4, 2004 7 Staff Report Addendum, dated May 4, 2017 8 Ferndale Record Affidavit of Publication 9 Correspondence between City Attorney and Hearing Examiner, dated 05/15/2017 10 Addendum to Malloy Heights PUD Project Narrative, dated May 12, 2017 11 Malloy Heights PUD Stream/Ravine Buffers Exhibit 12 Malloy Heights PUD and Preliminary Plat 13 Second Addendum to Malloy Heights PUD Project Narrative, dated May 16, 2017 Attachments to Staff Report and Application 1 PUD Maps 2 Aerial Photo Map 3 Comprehensive Plan Map 4 Zoning Map 5 SEPA MDNS April 17, 2017 6 SEPA Comment #1 7 SEPA Comment #2 8 SEPA Comment #3 9 SEPA Comment #4 10 SEPA Comment #5 11 Applicant SEPA Comment Response 12 Wetland Delineation Study July 16, 2016 13 Wetland Stream Buffer Average 5-11-17 14 Wetland and Buffer Mitigation Strategy 15 Stream Buffer Strategy November 23, 2016 16 Housing Examples 17 CC&R s for Malloy Heights PUD 18 Preliminary Storm Report 19 Preliminary Storm Review Letter 20 Temporary Concurrency Certificate 21 Landscape Plan 22 Street Lighting Plan 23 Neighborhood Meeting Information ~ 3

24 Variance Application 25 Street Width Exhibit 26 Notices and Affidavits 27 Latecomer Agreement 28 Public Comment # 1 29 Public Comment # 2 30 Public Comment # 3 31 Public Comment # 4 32 Public Comment # 5 33 Combined NOA & Intent to Issue an MDNS 34 Public Comment #6 35 Public Comment #7 36 Public Comment #8 37 Public Comment #9 38 Public Comment #10 39 Public Comment #11 40 Public Comment #12 41 Public Comment #13 42 Public Comment #14 43 Public Comment #15 44 Public Comment #16 45 Public Comment #17 46 Public Comment #18 47 Public Comment #19 48 Public Comment #20 49 Public Comment #21 50 Public Comment #22 51 Public Comment #23 52 Public Comment #24 53 Public Comment #25 54 Project Narrative Addendum May 12, 2017 55 Project Narrative Second Addendum May 16, 2017 56 Project Narrative Third Addendum May 17, 2017 57 Postal box location map and email from Post Master The City of Ferndale Community Development Department has carefully II. analyzed the proposal in a 58 page Staff Report, Exhibit No. 1 in the Hearing Examiner file. Exhibit No.1 is the final revised Staff Report, dated May 23, 2017. The original ~ 4

Staff Report was revised after the initial hearing on May 4, 2017, and reflected changes resulting from testimony and comments at the first public hearing, and further discussions between Staff and the Applicant after the initial hearing. This initial revised Staff Report was then reviewed and discussed at a second hearing on May 16, 2017, and lead to further revisions resulting in the final Revised Staff Report and a final hearing on May 24, 2017. The final Revised Staff Report represents a consensus agreement between Staff, the Applicant, and the Hearing Examiner, resulting in this Recommendation of the Hearing Examiner that the Ferndale City Council grant Preliminary Approval to the proposed Subdivision and Planned Unit Development, and grant the requested Plat Variance, subject to the recommended Conditions of Approval contained therein. The Applicant does not object to any of the Conditions of Approval recommended by Staff. The Factual matters set forth in the final Revised Staff Report, Exhibit No. 1 in the Hearing Examiner file and attached hereto, as prepared by the Community Development Department, are supported by the record as a whole and are hereby adopted as Findings of Fact herein by the Hearing Examiner through this reference, insofar as they do not conflict with specific Findings set forth in this Recommendation. III. The Applicant conducted the required Neighborhood Meeting. The results of the meeting and the concerns raised by those members of the public in attendance are identified and addressed in the attached Staff Report, Exhibit 1 of the Hearing Examiner file. Some of the concerns addressed in the neighborhood meeting were also issues raised during public testimony at the hearing. These concerns have been adequately addressed in the Staff Report, and in the conditions recommended by Staff. A specific concern about existing stormwater problems affecting the existing development across Malloy Avenue, known as Malloy Village, was raised during SEPA ~ 5

Review, again in a letter submitted just prior to the public hearing, and then again during the Hearings. Staff concluded the the SEPA Mitigation Condition proposed regarding stormwater was adequate to address the offsite stormwater impacts from this development and that, subject to the proposed condition, this proposed development would not have a significant adverse environmental impact from stormwater exiting the site post-development. The Mitigated Determination of Non-Significance issued under SEPA was not appealed and is therefore a Final Determination of this issue. In any case, the record as a whole established that post-development there will be less stormwater leaving the site than currently is the case, and that the developer is required to meet all currently applicable regulations regarding stormwater management. These requirements result in stormwater leaving the site to not exceed the runoff from the site as if it were in a fully forested natural undeveloped state. There is also undisputed expert testimony in the record indicating that the existing runoff problems actually come from a different property. The Hearing Examiner concludes that citizen concerns are adequately addressed by the Conditions of Approval. IV. Any Conclusion of Law which is deemed a Finding of Fact is hereby adopted as such. Based on the foregoing Findings of Fact, now are entered the following CONCLUSIONS OF LAW I. Subject to the attached Conditions of Approval, the proposed Subdivision is consistent with the requirements of RCW 58.17.110 and serves the public interest and welfare. II. Subject to the attached Conditions of Approval, the proposed PUD is consistent with the requirements for a Planned Unit Development Subdivision in the RS 8 zone, ~ 6

and the Hearing Examiner should recommend that the Ferndale City Council approve the proposed Planned Unit Development, to be known as "Malloy Heights," subject to these Conditions of Approval. III. Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such. Based on the foregoing Findings of Fact and Conclusions of Law, now is entered the following RECOMMENDATION The Hearing Examiner for the City of Ferndale recommends that the Ferndale City Council grant MD General, L.L.C. Preliminary Planned Unit Development Approval for 192 single-family detached residential lots, located on Assessor s Parcel Nos. 390219 504236 and 390218 504171, within the 6200 block of Malloy Avenue, Ferndale, Washington, subject to the following Conditions: 1. Once action on the Preliminary Plat is taken by the City Council, the Plat map shall be revised to include any revisions or additions imposed by Council or noted in the Conditions of Approval. Four copies of the revised Preliminary Plat shall be submitted to the City for approval. One stamped copy of the approved Preliminary Plat will be returned to the applicant. 2. The approved Preliminary Plat does not authorize any construction. Construction plans must be submitted and approved by the City as required in the City Development Standards. Should the preliminary plat be approved, the applicant will be required to submit fully engineered civil drawings to the Ferndale Public Works Department for review prior to the issuance of a land disturbance permit authorizing the construction and installation of infrastructure. Should the review of civil drawings identify inconsistencies with the Ferndale Development Standards or the approved preliminary plat, re-review by the Hearing Examiner may be required. 3. Any earthwork, drainage, utilities, or other construction must be designed and carried out in accordance with city standards, to the satisfaction of the Public Works Director, and in accordance with Department of Ecology guidelines (where applicable). 4. A complete set of engineered construction drawings shall be submitted with a Land Disturbance Permit Application and approved for the development prior to ~ 7

start of any construction of infrastructure improvements. The initial submittal shall include a final comprehensive stormwater management plan and an erosion and sediment control plan. 5. A full review of the stormwater report will be conducted following submittal of full civil drawings. The project drainage system is to be designed to comply with the adopted Ecology stormwater standards, and must be approved by the Public Works Department. The applicant submitted a complete application on October 4, 2016, which allows the project to design in accordance with the 2005 Department of Ecology Stormwater Management Manual. However, substantial changes to the project, or if construction has not started by January 1, 2022, will require applying the current Stormwater Management Manual. The storm pond shall be adequately screened from the Malloy Avenue right of way to the satisfaction of the City. Lot drainage design for individual lots shall comply with the City development standards. A minimum 20-foot wide access, including access to all structures, and a minimum 14-foot wide roadway to support a minimum 70,000 pound vactor truck in order to maintain the private stormwater facility is required. 6. Sewer service to each lot will be required. Sewer services will be installed as necessary, to be determined during the review of civil plans. 7. Water service to each lot and tract, as well as water service necessary for required irrigation of landscaping will be required. Water services will be installed as necessary, to be determined during the review of civil plans The applicant is required to extend necessary watermain to achieve appropriate fire flow for each phase of the development as it is developed, to the satisfaction of the Public Works Department. 8. With exception to approved variance requests, the public streets within the proposed subdivision shall meet the minimum dimensional requirements of the City of Ferndale. A full set of civil plans that reflect the proposed changes have not been submitted and will be reviewed by Public Works staff for compliance with the City s Development Standards prior to issuing a land disturbance permit. 9. Frontage Improvements: The project will also be required to construct full ¾ street frontage improvements per City of Ferndale Development Standards. ~ 8

All frontage along Malloy Avenue from the main entrance to the south along the property line shall be substantially complete per City standards, prior to recording final plat. The remaining frontage along Malloy Avenue north of the main entrance along the property line shall be substantially complete per City standards, prior to issuance of the 51 st single family structure building permit. 10. The project is subject to terms listed within latecomer s agreement referred to as The City of Ferndale Utility Improvement Recovery Agreement related to water and sewer main extension Malloy Village, LLC, Auditors File Number 2090302422. The city takes no position on the enforceability of this latecomer s agreement given the capacity or lack thereof of the sewer improvements described therein. 11. Compliance with City traffic concurrency is required. 12. Guidelines for housing design shall be incorporated into the CC&Rs. Prior to final plat approval, the CC&Rs shall be revised to reflect this requirement and all requirements listed in FMC 18.68.070 A-C. Staff will require these design concepts be utilized and will confirm this is the case when a building permit is submitted. Should the design change substantially, the City will require an additional design review and approval prior to issuance of building permits for the lots. 13. Per FMC 18.68.060, the applicant must submit and record bylaws for an owner s association and, prior to final plat approval, the applicant shall convey by deed all private facilities including but not limited to; stormwater drainage facilities lying outside of dedicated right-of-way, common areas, critical areas, trails and open space areas to an owner s association. The City shall be provided with easements necessary to serve and maintain all property and utilities owned and/or maintained by the City. The owner s association shall be empowered to collect dues and assessments and to enforce covenants, conditions, and restrictions and any rules and regulations deemed necessary for the governing of development and use of each lot and common areas within the PUD. 14. The plat survey shall be tied to the City of Ferndale Survey Monument Network established in June 2001. If no suitable monuments exist from the aforementioned network then coordinates from the City of Ferndale Existing Monument Location Survey shall be utilized. If no Monumentation from either of the aforementioned surveys can be reasonably utilized, the surveyor may use the best available information as approved by the City. The applicant s engineer/surveyor shall contact the City s GIS/Mapping Specialist to determine which monuments shall be utilized based on the location of the project (the Cityapproved monument information shall be noted on the revised preliminary plat, and if necessary, the preliminary plat shall be revised to reflect the ties to the appropriate monument network). ~ 9

15. State and Federal approvals, as applicable, shall be evidenced by appropriate permits or other qualifying documentation prior to issuance of any City permit for construction including land disturbance. Responsibility for compliance with other agency requirements shall be solely the applicant s. 16. Critical Areas: The Project shall seek to avoid wetland and critical area impacts to the extent practical and shall mitigate for wetland impacts on-or off-site in accordance with City, state and federal regulations. If the wetland mitigation is proposed off-site, the applicants shall first consider off-site mitigation within the City of Ferndale, if practical. A final critical area mitigation plan in accordance to all items specified in FMC 16.08.270 and Article XI. Appendix A of the CAO must be submitted for review and approval. All remaining identified critical areas and mitigation areas (after on-site mitigation), the applicant is required to place a deed restriction on all remaining on-site wildlife corridors, buffer, and mitigation area that protect the critical area from future development. A deed restriction shall be placed on the remaining on-site critical area buffer that protect the critical area from future development prior to final plat recording. 17. Prior to construction activity, the applicant is required to post a performance surety for all critical area work in conformance to 16.08.240 and Development Standards Chapter 5, section 503 Performance Securities and Section 504, maintenance securities. Construction activities shall not impact protected wetlands, streams or buffer areas. The final mitigation plan shall propose methods to protect critical areas, buffers and enhancement areas during construction of the plat. A maintenance bond in the amount of 150% is required for all mitigation/maintained activities associated with the critical areas. Portions of the maintenance bond will be released after each annual inspection or inspection timeline proposed by the critical areas professional 18. Split rail fencing or other protective measure shall be installed along the perimeter of the wetland buffers to notify future home owners of the sensitive areas wetland protection area signs shall be installed in a conspicuous place at least every 300 feet along the fence, unless otherwise approved by the Critical Areas Administrator. Proposed fence/protective screening locations shall be included in a revised wetland buffer report for review and approval. The fencing and signs shall be installed, inspected and approved on site by planning division prior to final plat recording. ~ 10

The applicant shall propose a method to protect residents from the steep slope with split railing fencing, warning signage or another acceptable method approved by the City, prior to establishing the trail 19. Due to the dynamic nature of wetlands and per city policy a new wetland report will be required, should land disturbance activities be proposed after 5 years of plat approval. 20. Adequate fire protection infrastructure, of a type and location approved by the Fire District, shall be included in the civil construction plans. All travel ways shall provide for emergency vehicle access to the satisfaction of the Fire District. No buildings may be constructed until adequate fire flow and emergency access is provided 21. Fire protection and emergency medical services for the area will be provided by Whatcom County Fire District #7 (WCFD7). The civil plans must be acceptable to the Fire District prior to issuance of the Land Disturbance Permit. The Fire District has not identified significant obstacles in providing these services based on the conceptual layout that has been provided to the City. 22. The applicant will be required to submit civil plans acceptable to WCFD7 prior to land disturbance permit approval for infrastructure construction. Should substantial changes in grade or site design be required during civil plan review, the Hearing Examiner may be required to re-review the proposal. 23. SEPA mitigation measures, as identified in the project SEPA checklist and SEPA Mitigated Determination of Non-Significance (April 17, 2017) shall be reflected in the project design and civil construction plans, and made conditions of this approval. 24. A geotechnical study prepared by a qualified professional shall be prepared for building foundations prior to building permit issuance. All findings of such study or studies shall become requirements of subsequent building permits. 25. Covenants, Conditions, and Restrictions (CC&R s) shall be approved by the City prior to approval and recording of the Final Plat. The CC&R s shall identify the Homeowners Association s (HOA) responsibilities for storm water detention and treatment facilities, drainage infrastructure, wetlands and buffers, and other common, non-public infrastructure of the project. The CC&R's shall contain the following: Specific language ensuring inspection and maintenance of the wetland consistent with the Final Mitigation Report. A provision that ensures inspections of the wetland and buffer by a qualified wetland professional. ~ 11

A provision that the wetland professional creates a report and provide it to the HOA and the City. A provision that requires that should the periodic inspection identify any detrimental impacts, the wetland professional shall identify measures required to rectify the impact in the report prepared for the HOA and the City. A provision that specifies that any required repair, maintenance, or restoration associated with wetland and buffer common areas or facilities is the responsibility of the HOA. 26. Open space areas, buffers, or other tracts of land not suitable as building lots, together with any associated facilities or equipment shall be privately owned and maintained by the Homeowner's Association. A note to this effect shall be shown on the face of the revised Preliminary Plat. 27. A landscape and lighting plan, identifying the type, size, spacing, and maintenance schedule for all landscaping (including lighting elements) proposed within the required buffer areas, open space areas, and other common areas is required to be submitted and approved by the City prior to plat recording. Per 18.68.070.B., A maintenance bond in the amount of 125% is required for a period of three years for all landscaping associated with the Planned Unit Development. Malloy Avenue landscaping within the right of way shall be consistent with landscaping used for Malloy Village PUD and shall be drought tolerant, low maintenance plantings. Prior to final plat approval, the applicant shall propose and install fences, vegetative barriers, or other devices to limit user access to protected critical areas and stormwater facilities. A licensed stormwater professional will demonstrate active use and landscaping screening in and around the stormwater infrastructure will not diminish its effectiveness The applicant shall propose a landscaping ( street tree ) plan to the Ferndale Public Works Department as part of the review of full civil plans. Maintenance of trees along the public right of way is the responsibility of the property owners and must follow City conventions. The City will require that landscaping along the street be located behind the sidewalk and outside of the 10-foot dry utility easement as shown in the cross section. Root barriers shall be utilized, when necessary, to protect infrastructure. All street trees be planted prior to final plat approval. Alternatively, the applicant could post a performance surety in the amount of 150% of the landscaping costs including (plantings, installation and materials) with the City. ~ 12

28. All lots require a minimum 40 x40 building area, not including required setbacks or easements, and no lot shall be less than the 4,000 square foot minimum lot size authorized by the PUD chapter. 29. Setbacks shall be as follows: Front 15 feet to (non-garage) façade Front 20 feet for driveway to garage Rear 5 Sides 5 feet 30. Lighting shall be installed in the parking and driving areas. Exterior lighting shall be so installed that the surface of the source of light shall not cast a direct glare upon the adjacent right of ways, and shall be so arranged to reflect light away from residential uses to the north, south and west. The lighting shall be energy efficient (LED Lighting) and shown on the civil plans. 31. One half of traffic mitigation fees shall be paid prior to recording of the final mylars for each phase; the remaining half shall be paid pursuant to building permit conditions of approval. 32. One half of park mitigation fees shall be paid prior to recording of the final mylars for each phase; the remaining half shall be paid pursuant to building permit conditions of approval. A credit for one traffic trip is credited for the existing house on the project site. 33. Water and sewer connection fees shall be paid at the time of Building Permit issuance for each lot. 34. Impacts to the Ferndale School District resulting from the proposed development will be mitigated by the payment of school impact fees to be determined by the District. 35. Storm sewer mitigation fees shall be paid prior to recording of the Final Plat for each phase. 36. Credits will be applied to trails dedicated. The remaining balance will be owed for park impacts fees to be paid half at final plat for each phase and half pursuant to building permit conditions of approval. 37. All open space areas, stormwater tracts, or other common areas shall be labeled and recorded as separate tracts or lots within the plat. The revised Preliminary Plat plan shall reflect this requirement. 38. Street names and addressing shall be approved by the City of Ferndale prior to ~ 13

final plat approval. 39. The City requests that all recorded plats show the gross and achieved densities on the face of the plat. The revised Preliminary Plat plan shall reflect this requirement. 40. The Final Plat for any phase, when submitted, shall be consistent with the approved Preliminary Plat, reflect any and all conditions of approval, and be consistent with the requirements of Chapter 18.68 and Title 17 of the Ferndale Municipal Code, together with City Development Standards. 41. Shared driveways must be installed with plat infrastructure unless otherwise approved by the Public Works Director. No vehicular parking may occur on the shared access easement, and no waste receptacles or other personal belongings shall be left on the shared easement in a manner that would prevent access for one or more properties. 42. Tracts D currently exhibits steep slopes and is proposed to be terraced and used for community gardens with trail access from the cul-de-sac. To qualify as usable open space, the applicant is required to grade the tract to 15% or less. 43. The Preliminary Plat shall expire after a period of 5 years from the date of approval by the City Council. Submittal of a Final Plat application must commence within this time period. A note to this effect shall be placed on the revised Preliminary Plat plan. DATED this 6 th day of June 2017. Michael Bobbink, City of Ferndale Hearing Examiner ~ 14