DECISION of the SNOHOMISH COUNTY HEARING EXAMINER

DECISION of the SNOHOMISH COUNTY HEARING EXAMINER DATE OF DECISION: February 16, 2010 PLAT/PROJECT NAME: THE REGENCY AT MANOR WAY APPLICANT/ LANDOWNER: Pearce A. Riggs FILE NO.: 09-101888-000-00-LU TYPE OF REQUEST: Conditional Use Permit (CUP) for a Proposed Assisted Living Facility in a Muli-Residential (MR) Zone and Variance for 14-Foot Reduction in Side/Rear Building Setbacks DECISION (SUMMARY): CUP APPROVED SUBJECT TO PRECONDITIONS AND CONDITIONS; ZONING VARIANCE APPROVED BASIC INFORMATION GENERAL LOCATION: 15130 Manor Way, Lynnwood, situtated in Section 2, Township 27 North, Range 4 East, W.M., Snohomish County, Washington ACREAGE:.6 acres CURRENT ZONING: Multi-Residential (MR) VESTED ZONING: MR COMPREHENSIVE PLAN DESIGNATION: General Policy Plan Designation: Urban High Density Residential (UHDR) UTILITIES: Water: Sewer: SCHOOL DISTRICT: Alderwood Water & Waste Water District Alderwood Water & Waste Water District Edmonds FIRE DISTRICT: No. 1 PDS STAFF RECOMMENDATION: Approve with precondition and conditions 09101888 1

INTRODUCTION The applicant filed the application on April 9, 2009, and it was determined to be complete on the date of submittal. (Exhibit 1A) The Department of Planning and Development Services (PDS) gave proper public notice of the open record hearing as required by the county code. Exhibit F1 (Affidavit of Mailing); Exhibit F2 (Affidavit of Notification by Publication); and Exhibit F3 (Posting Verification). A SEPA determination was made on October 1, 2009. (Exhibit E2) The Examiner held an open record hearing on January 27th and February 3 rd, 2010. Witnesses were sworn, testimony was presented, and exhibits were entered at the hearing. NOTE: The oral transcript is hereby made a part of the record in this matter. For a full and complete record, a verbatim recording of the hearing is available in the Office of the Hearing Examiner. FINDINGS OF FACT Based on all of the evidence of record, the Following Findings of fact are entered. A. Background 1. The master list of exhibits and witnesses which is a part of this file and which exhibits were considered by the Examiner is hereby made a part of the record as if set forth in full herein. 2. Summary of Proposal: The applicant requests approval of a CUP and building setback variance for future construction of a Health and Social Services Level II assisted living facility for seniors. The future building will have 60 units, 26 parking stalls and transportation services for residents on a.6 acre MR (Multi-family Residential) zoned property. Associated with the project is construction of a stormwater management system incorporating an underground detention vault and detention pipe, right-of-way improvements consisting of a bike lane, curb, gutter, planter strip and sidewalk along the development s Manor Way road frontage, ornamental landscaping and utilities. Access to the facility will be provided from both 151 st Place SW and from Manor Way. An underground garage will provide parking for the facility. There are no streams or wetlands on the property. Water and sewer service is to be provided by the Alderwood Water and Wastewater District. 3. Site Description: The subject property, a rectangular-shaped assemblage of two lots in an existing short plat, is.6 acres in size. The site lies at the southwest corner of 151 st Place SW and Manor Way. Two existing homes on the property have been recently demolished. Vegetation on site consists primarily of overgrown grass and weeds. There are no critical areas on the site. The topography of the site slopes down from west to east at approximately 9%. 4. Adjacent Zoning/Uses: The surrounding neighborhood is zoned either Low Density Multiple Residential (LDMR) or Multiple Residential (MR). Adjoining property to the west and south of the site is zoned Planned Residential Development (PRD)-LDMR. A townhouse 09101888 2

development is directly west of the site and the detention pond serving a single-family residential development is directly south of the property. Single-family homes are across the street from the site. Directly east of the site is a Native Growth Protection Area. B. Public Comment/Issues of Concern. 5. PDS received comments from two neighborhood residents, Paul Colvin and Eileen Joy Hequibal, each living approximately 400 feet away from the subject site, related to concerns about parking, noise from emergency vehicles and the building s HVAC system, and lack of sidewalks in the area. The applicant has provided a written response to these concerns (see Exhibit H3). Mr. Colvin testified at both Open Record Hearings addressing these same concerns, as well as others. In part, because of his input, there are many conditions mitigating this development that might not otherwise be there. One issue that he repeatedly raised, however, is not within the Hearing Examiner s jurisdiction and so the Examiner will not address it. Mr. Colvin attempted to indicate that the management company that will be operating the facility, is not closely connected to this project, and that the project is not financially sound. The Examiner does not address such matters. The Examiner s jurisdiction is strictly limited to compliance with land use codes and policies. None of those codes and policies involves investigation into financial dealings or solvency. Anything that may be in the record regarding such matters will be disregarded. The other matters raised by Mr. Colvin and Ms. Hequibal will be addressed as part of the discussion of compliance with individual codes and policies. C. Compliance with Codes and Policies. 6. Parks Mitigation. This proposal does not meet the definition of development as per SCC 30.91D.200 and consequently, is not subject to parks mitigation fees in accordance with SCC 30.66A.010 (3). 7. Traffic Mitigation and Road Design Standards (Title 13 SCC & Chapter 30.66B SCC). A. Road System Capacity [SCC 30.66B.310] A development must mitigate its impact upon the future capacity of the road system by paying a road system impact fee reasonably related to the impacts of the development on arterial roads located in the same transportation service area (TSA) as the development, at the rate identified in SCC 30.66B.330 for the type and location of the proposed development. A development's road system impact fee will be equal to the development's new average daily traffic (ADT), based on the latest edition of the ITE Trip Generation report published by the Institute of Transportation Engineers, times the per trip amount for the specific TSA identified in SCC 30.66B.330. The development s traffic study dated July 27, 2009 (Exhibit C1), indicates the use of Code 254 (assisted living) in the ITE Trip Generation Report to determine the mitigation for the subject development. Supplemental information from CDA Architects dated July 27, 2009, identifies proposed services at this facility that are similar to those uses identified in ITEs Code 254. The use of Code 254 is acceptable to PDS. Also, the study claims credit for two existing single-family residences. This too is acceptable. 09101888 3

The development will generate 133.44 new average daily trips (ADT) and has a road system impact fee of $30,290.20 based on $227.00/ADT, the current fee rate for commercial developments inside the Urban Growth Area (UGA), for TSA D. These figures do include credit for on-site TDM measures. Consistent with SCC 30.66B.340, payment of this road system impact fee is required prior to building permit issuance. The estimates of trip generation for the development are based on the 7 th Edition of the Institute of ITE Trip Generation Report as follows: ITE Land Use Category: Assisted Living ITE Land Use Code: 254 Applicable Measurement Unit (ITE Independent Variable): Beds Number of applicable measurement units for this development: 60 Trip Generation Calculations: Trip Generation Based on Average Rates: New ADT = [[2.66 ADT/Bed X 60 Beds] - [2 SFRs X 9.57 ADT/SFR]] 0.95 = 133.44 new ADT New AM PHTs = [[0.14 AM PHTs/Bed X 60 Beds] [2 SFRs X 0.75 AM PHTs/SFR]] X 0.95 = 6.56 new AM PHTs New AM PHTs = [[0.22 PM PHTs/Bed X 60 Beds] [2 SFRs X 1.01 PM PHTs/SFR]] X 0.95 = 10.62 new PM PHTs B. Concurrency [SCC 30.66B.120] "Level-of-service" (LOS) means a qualitative measure describing operational conditions within a traffic stream, and the perception thereof by road users. LOS standards may be evaluated in terms such as speed and travel time, freedom to maneuver, traffic interruptions, comfort, convenience, geographic accessibility, and safety. The Highway Capacity Manual defines six levels of service for each type of facility for which analysis procedures are available. They are given letter designations, from A to F, with LOS A representing the best operating condition, and LOS F the worst. The County makes a concurrency determination for each development application to ensure that the development will not impact a county arterial unit in arrears. The subject development has been evaluated for concurrency under the provisions of SCC 30.66B.120 and is concurrent as of September 23, 2009. The expiration date of the concurrency determination is six years from this date. Consistent with the Department of Public Works (DPW) Rule 4225.070, the point in time for which the concurrency analysis is based (the concurrency vesting date) is April 9, 2009. Development generating 50 or fewer peak-hour trips in TSA with one or more arterial unit in arrears, SCC 30.66B.160(2)(a). The subject development is located in TSA D which, as of the date of submittal, had the following arterial units in arrears: 202 (Seattle Hill Road, 35 th Ave SE to SR 96). Based on peak-hour trip distributions, the subject 09101888 4

development will NOT add three (3) or more directional peak-hour trips to this arterial unit. Pursuant to SCC 30.66B.160(2)(a) the development is determined concurrent. The development generates 6.56 a.m. peakhour trips and 10.62 p.m. peak-hour trips which is not more than the threshold of 50 peak-hour trips in which case the development would also have to be evaluated under SCC 30.66B.035. C. Inadequate Road Condition (IRC) [SCC 30.66B.210] Regardless of the existing LOS, any development which adds three or more p.m. peak-hour trips to a location in the road system determined to have an existing IRC at the time of imposition of mitigation requirements, or development whose traffic will cause an IRC at the time of full occupancy of the development, must eliminate the IRC. The subject development proposal will not impact any IRC locations identified within TSA D with three or more of its p.m. peak hour trips, nor will it create any. Therefore, it is anticipated that mitigation will not be required with respect to IRCs and no restrictions to building permit issuance or certificate of occupancy/final inspection will be imposed under this section of Chapter 30.66B SCC. D. Frontage Improvements [SCC 30.66B.410] All developments will be required to make frontage improvements along the parcel's frontage on any opened, constructed, and maintained public road. The required improvement shall be constructed in accordance with the EDDS, including correction of horizontal and vertical alignments, if applicable. DPW Rule 4222.020(1) requires full urban frontage improvements along the subject parcel s frontage on Manor Way. The existing improvements on 151 st Pl SW are adequate and do not need to be modified. Curb, gutter and sidewalks exist on Manor Way north of and across the street from the subject development. It will be required that the curb location proposed match the existing curbs in the area. This will provide consistency for the motoring public. A five-foot planter and a seven-foot sidewalk will be required along the applicant s frontage. This section of Manor Way is not in the impact fee cost basis (Appendix D of the Transportation Needs Report), therefore credit towards the applicant s frontage improvements is not applicable. Construction of frontage improvements is required prior to any final inspection and prior to any occupancy of the development. E. Access and Circulation [SCC 30.66B.420] 1. All developments will be required to: (a) (b) Provide for access and transportation circulation in accordance with the comprehensive plan and this chapter applicable to the particular development, Design and construct such access in accordance with the EDDS, and 09101888 5

(c) Improve existing roads that provide access to the development in order to comply with adopted design standards, in accordance with SCC 30.66B.430. 2. Access to state highways and city streets shall be in accordance with the applicable state or city standards and requirements. 3. All developments that propose to take access via an existing public or private road which, for the vehicle trips projected to use the road after full occupancy of the development, is not designed and constructed in accordance with the EDDS, will be required to improve such road to bring it into compliance with the EDDS when the director of public works determines it necessary to provide for safety and the operational efficiency of the road. The extent of improvements will be established by the director of public works in accordance with SCC 30.66B.430. There are no private roads associated with this project and no off-site road improvements are required due to the impacts of the subject development, as determined by PDS Traffic. F. Extent of Improvements [SCC 30.66B.430] In determining the extent of improvements required, the director of public works will consider, with other relevant factors, the following: 1. Extent of the development proposed assisted living facility 2. Priority of improvements to involved county roads in the county s six-year transportation improvement plan; There are no scheduled County improvements to this section of Manor Way. 3. Condition of existing transportation facilities in comparison to adopted standards; The existing standards on 151 st Ave SW are lacking a planter, but will not be required to be improved. The applicant will be improving their frontage on Manor Way to the current EDDS standards. 4. Existing and projected land uses and development densities; There are proposed residential developments in the area. There are parcels that have the potential to develop. 5. Current and projected LOS on the affected road system; The LOS on the County road system is not expected to fall below the accepted standards with the subject development. 6. Availability of public transit; The authority to create, eliminate or modify a transit route or transit stop lies with the transit agency within whose service area the development is located in or nearby to. The two county transit agencies that serve the residents of Snohomish County are Community Transit and Everett Transit. Sound Transit currently has routes that provide express bus service to King County from 09101888 6

hubs such as Everett Station, and the Ash Way Park & Ride. Everett Transits boundaries are all within their city limits and Sound Transits routes are in incorporated areas of the UGA. Community Transit is the only transit agency that has routes and stops in both the urban area and the rural area. The county has no authority to require any transit authority to service a subject property or development, although the county and developer are required to consult with the developer regarding the development. The only authority the County does have is to approve the location of a transit stop along a county right-of-way if the transit authority chooses to install one. According to a National Personal Transportation Survey, conducted by the American Planning Association, the average person is willing to walk about 1,500 feet to a transit stop. Currently there is a Community Transit bus stop 1200 feet north of the subject development at 148 th St SW. 7. Any traffic study submitted; The traffic study by Gibson Traffic Consultants dated March 23, 2009, was received by Snohomish County on April 9, 2009. 8. Availability of a specific improvement program; There are no specific road improvements planned. 9. The number of dwelling units currently using the road system that must be improved and projected to use the road system after full occupancy of the development; Volume of traffic expected to use Manor Way. 10. The needs of low-income persons for decent, affordable, low-cost housing; The subject development is not a low income housing project. There are no low income housing measures or design features associated with this development. 11. Transportation system or demand management measures proposed by the developer; Refer to Section I, below, for information and analysis on any Transportation Demand Management measures associated with this development. 12. The need for pedestrian and bicycle facilities; Bicycle facilities will be provided in the form of bicycle lanes in the frontage improvements made on Manor Way and in the provision of bicycle racks for employees who may want to bicycle to work. The development will also be providing and continuing sidewalks as a part of its frontage improvements. 13. Continuity with existing and proposed improvements; Refer to Sections D and E for information and analysis on these two areas. 14. Development standards of adjacent cities; 09101888 7

No other city has an ILA with Snohomish County in this area. It should be noted that Snohomish County cannot impose another jurisdictions requirements without the benefit of an Interlocal Agreement (ILA), which is an agreement that is voluntarily entered into by the jurisdiction. 15. The need for safety improvements for school children; This is not applicable to the subject development, but sidewalks will be provided along the entire parcel s frontage. 16. The types, sizes and performance of vehicles generated by the development, including but not limited to large trucks; The proposed development is for an assisted living facility. The majority of the types and sizes of vehicles associated with this type of development are passenger cars, vans and trucks. Other less prevalent types are larger commercial vehicles such as buses, semi trucks, fire trucks, utility trucks and delivery trucks that provide goods and/or services to the residential occupants or customers of business in the area. The applicant has worked with Fire District 1 to ensure adequate access for emergency vehicles and turnarounds, both off 151 st Place S.W. and Manor Way. During the hearing, the applicant has offered up solutions for large truck parking on Manor Way to alleviate back-up noise on 151 st Place SW by placing a loading zone by the garage entrance, and encouraging commercial trucks to park on the street in front of the facility. Based on the traffic study, PDS Traffic concluded that this project did not warrant extensive improvements to the road system, other than typical frontage improvements. According to the industry study submitted by the applicant, low traffic impact is a characteristic generally shared by assisted living facilities. (Exhibit C-2 at 7) Mitigation required by local government must be in proportion and have a reasonable nexus to the impacts of the development. (See generally, RCW 82.02.020). While citizens in this case have asked for the applicant to provide sidewalks all the way down Manor Way to 164 th St SW to the Fred Meyer shopping center, the Examiner agrees with PDS Traffic that the impact of the development is neither proportionate, nor is there a reasonable nexus to require such extensive mitigation. Seniors living in assisted living are unlikely to be walking almost a mile to the Fred Meyer store, especially in the inclement weather that we have here most of the year. In addition, the small amount of trips put on the road simply does not justify that type of very expensive improvement. The sidewalk will have to be put into place on an incremental basis as other portions of the neighborhood redevelop. G. Right-of-Way Requirements [SCC 30.66B.510, SCC 30.66B.520] A development shall be required to dedicate, establish or deed right-of-way to the county for road purposes as a condition of approval of the development, when to do so is reasonably necessary as a direct result of a proposed development, for improvement, use or maintenance of the road system serving the development. In section D. above, the road serving this development, 151 st Pl SW, is designated as a non arterial and requires a right-of-way width of 30 feet on each side of the right-of-way centerline. Currently, 30 feet of right-of-way exists on the development s side of the right-ofway. Therefore, no additional right-of-way is required. 09101888 8

The other road serving this development, Manor Way, is designated as a collector arterial and requires a right-of-way width of 37 feet on each side of the right-of-way centerline. Currently, 20 feet of right-of-way exists on the development s side of the right-of-way. Therefore, 17 feet of additional right-of-way is required and is adequately shown on the site plan. Dedication of additional right-of-way that is tangent to the ultimate right-of-way on both of these roads is needed. Adequate right-of-way is shown on the site plan. The Examiner will condition the approval to require the applicant to deed this right-of-way to the County. Neither this section of Manor Way, nor 151 st Pl SW, is in the impact fee cost basis (Appendix D of the Transportation Needs Report), therefore credit towards the applicant s impact fee for the deeded right-of-way is not applicable. H. State Highway Impacts [SCC 30.66B.710] When a development's road system includes a state highway, mitigation requirements will be established using the County s SEPA authority consistent with the terms of the ILA between the County and the Washington State Department of Transportation (WSDOT). This is consistent with the County s SEPA policy SCC 30.61.230(9), through which the county designates and adopts by reference the formally designated SEPA policies of other affected agencies for the exercise of the County s SEPA authority. This development is subject to SEPA and thus is subject to the ILA between Snohomish County and the WSDOT that became effective on December 21, 1997, and as amended through the date of completeness for this application. Comment from the WSDOT dated May 13, 2009, indicates that no mitigation is requested. I. Other Streets and Roads [SCC 30.66B.720] There are no city jurisdictions that have an ILA with the County that will be impacted by new trips from the subject development. J. Transportation Demand Management (TDM) [SCC 30.66B.630] TDM is a strategy for reducing vehicular travel demand, especially by single occupant vehicles during commuter peak hours. TDM offers a means of increasing the ability of transportation facilities and services to accommodate greater travel demand without making expensive capital improvements. The County requires TDM of developments inside the UGA and developments that impact arterial units designated as ultimate capacity. All new developments in the urban area shall provide TDM measures. Sufficient TDM measures shall be provided to indicate the potential for removing a minimum of five (5) percent of the development s P.M. peak hour trips from the road system. This requirement shall be met by the provisions of on-site design requirements under SCC 30.66B.640, as applicable, except where the development proposes construction or purchase of specific offsite TDM measures or voluntary payment in lieu of site design, in accordance with SCC 30.66B.620 and SCC 30.66B.625. 09101888 9

The applicant has submitted a plan that includes some TDM features. The applicant will be providing a handicap accessible pedestrian ramp from the door of the facility to Manor Way. It will also be providing a bike rack and other TDM features as shown on the site plan and as detailed in the TDM narrative in the traffic study. A 5% credit has been applied to the applicant s trip generation and impact fee. 8. Mitigation for Impacts to Schools [Chapter 30.66C SCC] This proposal does not meet the definition of development as per SCC 30.91D.220 and, therefore, is not subject to school mitigation fees in accordance with SCC 30.66C.010(2). 9. Drainage and grading. A. Drainage. The project will add approximately 16,295 square feet of impervious surface to the site. Rainwater runoff from the site will be collected and transported via catch basins and pipes to two separate detention facilities; an underground detention vault and an underground detention pipe. Water quality treatment will be provided via a manhole stormfilter and a catch basin stormfilter. Stormwater will be released at a controlled rate into the existing drainage system along Manor Way. Water in this system travels northward, eventually outfalling into an unnamed creek approximately 500 feet to the north of the site, which then flows to the eastward and eventually merges into Swamp Creek. PDS has determined the targeted drainage plan (Exhibit B1, Civil Site Plan,) and supplementary drainage report (Exhibit C4) submitted with the land use application to be in conformance with the regulatory provisions of Chapter 30.63A SCC. Prior to site development, a full drainage plan must be approved pursuant to Chapter 30.63A SCC. B. Grading. A grading permit, including a temporary erosion and sedimentation control plan (TESCP) consistent with regulatory provisions of Title 30.63B SCC and Chapter 33 UBC, must be obtained for any grading outside of the county right-of-way. Grading to accommodate site development is estimated at 7,500 cubic yards excavation and 750 cubic yards fill. 10. Critical Areas Regulations (Chapter 30.62 SCC) PDS biology staff visited the site on July 18, 2008. No critical areas were observed on the subject property. However, a stream and associated wetland were observed east of Manor Way, just south of 151 st Place SW, and a WSDOT mitigation site was observed east of Manor Way, approximately 150 feet north of 151 st.place SW. These critical areas do not affect development of the subject property and the county has no critical areas requirements. 11. Consistency with the GMA Comprehensive Plan. Consistency with the GMA comprehensive plan will be evaluated as a part of the CUP criteria. 12. Zoning. Health and Social Service Facilities, Level II, are permitted as a conditional use in the MR zone (Chapter 30.22.100 SCC). The proposal will satisfy minimum zoning code requirements relating to building height and lot coverage (Chapter 30.23.040(1) SCC). 09101888 10

Parking. The applicant provided parking studies in support of the level of parking proposed. The code does not mandate a specific number of parking places per bed for assisted living facilities, but instead allows the applicant to rely on parking studies. (SCC 30.26.030(1) and 30.26.035) The applicant provided a study done by the American Seniors Housing Association (ASHA), which conducted a study of traffic and parking implications of assisted living residences. (Exhibit C2) According to the calculations derived from the study, the project would only need to provide 22 parking spaces to support the 60-bed facility. This facility is providing 26 spaces. Although that may seem inadequate when the lay person considers the facility, it has to be remembered that very few people in an assisted living facility own a car, and that employees may find different methods of getting to work, such as mass transit, carpooling or even walking. The applicants listed many facilities of similar size with similar sized parking facilities. Moreover, there is no other expert study in the record to refute the applicant s study. A lay opinion that the parking is inadequate is without foundation. The applicant applied for an EDDS deviation to allow a 20-foot (in width) drive instead of the required 35-foot driveway on Manor Way and a 7% grade leading down to the garage instead of the 5% grade required by EDDS. In essence, the applicant asked for a residential rather than a commercial access. In addition, it requested a garage clearance that would be needed for passenger cars, not trucks. The deviation was granted by PDS Traffic/DPW, on the basis that the use is similar to residential in type of volume and vehicle. The Examiner and citizens were concerned about the noise that larger delivery trucks would make in backing up if the only parking option was in the turnaround on 151 st Place SW. In response, the applicant offered to enlarge the loading area next to the trash bin area to allow parking for larger trucks. Trucks may also park along Manor Way. Commercial truck parking should be discouraged in the fire lane off 151 st Place SW. Landscaping. The proposal can comply with the landscaping requirements of Chapter 30.25 SCC. The original landscaping plan submitted for the CUP (Exhibit B1, page L-1) shows the required Type B buffer adjacent to the two public roads, but mistakenly shows a Type B landscape buffer along the west and south property lines, instead of the required Type A buffer. The applicant has made a commitment to revise the plan and provide the Type A buffer along these property lines so that the project can fully comply with code. The Examiner will add a precondition of approval to revise the site plan to ensure that the plan is properly revised before the CUP is approved. In addition, the applicant needs (and has agreed) to do a landscape modification to provide additional landscaping in the front of the building along Manor Way to mitigate for the landscape buffer area lost due to the additional area needed for the hammerhead requested by Fire District 1. The Examiner will add a condition requiring the applicant to do the landscape modification during building permit review. Setbacks. Regarding required building setbacks, SCC 30.23.110(10) states that Health and Social Service Facilities, Level II buildings be set back at least 30 feet from all external property boundaries. The proposed building complies with the setback requirements along the north and east property lines. A building setback variance request has been submitted to reduce the setbacks along the west and south property lines (see discussion, below in (16)). 13. Utilities A. Water. Water is available from Alderwood Water & Waste Water District. (Exhibit G3) B. Sewer. Sewer service is available Alderwood Water & Waste Water District. (Exhibit G4) 14. State Environmental Policy Act Determination (Chapter 30.61 SCC) 09101888 11

PDS issued a Determination of Nonsignificance (DNS) for the subject application on October 1, 2009. (Exhibit E2) The DNS was not appealed. 15. Fire Code Although the Fire Marshall found that the fire apparatus met the minimum requirements of SCC 30.53A.150, Fire District 1 submitted a letter providing extensive comments. (Exhibit G5) As the applicant had not had the opportunity to meet with the Fire District and discuss these concerns, the Examiner continued the hearing from January 27 th to February 3 rd to allow time for that meeting to occur. As a result of the meeting, the applicant submitted a new version of the site plan (Exhibit K6) that provides for a larger driveway off 151 st Place SW and a much larger turnaround area that meets the District s specifications. (See Plan Review Comment 6, Exhibit G5). The new turnaround required the retaining wall to be bumped out in front, which will impact the Type B landscape buffer. This can be mitigated by providing additional landscape buffer in other areas, preferably along the road frontage. The Examiner will include a condition to that effect. The Fire District was also very concerned about the distance from Manor Way to the building. Fire equipment must be able to access a building from the street. The Fire District had concerns about accessing the building from Manor Way, but the applicant worked out a plan whereby the District could pull a truck in at the parking garage entranceway safely and be close enough to the building. Compliance with the other comments will be made conditions of approval of the CUP. 16. Zoning Variance The applicant has applied for a Zoning Code Variance to reduce the south side and rear setbacks required for a Health and Social Services Facility (Level (II) Assisted Living Facility in an MR zone. Per SCC 30.43B.020(2), any variance submitted with another application requiring a predecision hearing by the Hearing Examiner shall be processed concurrently before the Hearing Examiner as a Type 2 decision. The Department may approve or approve with conditions a variance request when the following criteria are met: (1) There are special circumstances applicable to the subject property or to the intended use, such as size, shape, topography, location or surroundings, that do not apply generally to other properties or classes of use in the same vicinity and zone; (2) A variance is necessary for the preservation and enjoyment of a substantial property right or use possessed by other properties in the same vicinity and zone but which because of special circumstances is denied to the property in question; (3) The granting of the variance will not be materially detrimental to the public welfare or injurious to the properties or improvements in the vicinity and zone in which the subject property is located; and (4) The granting of the variance will not adversely affect the comprehensive plan. [SCC 30.43B.100] 09101888 12

SCC 30.23.110(10), dictates that buildings for Health and Social Service Facilities, Level II, be set back at least 30 feet from all external property boundaries. The proposed building does not comply with the setback requirements along the west and south property lines. The applicant requests a setback variance to reduce the setback along these property lines to 16 feet (a reduction of 14 feet). This would equate to the same setbacks as would be allowed in the MR zone for a four story multifamily building. The applicant asserts the following in support of the application for a zoning code variance (Exhibit A3): a. The site is a corner lot fronting two public roads. The amount of right-of-way dedication required by DPW along Manor Way on this small site (17 feet), when coupled with a minimum required 30 foot setback from all property lines, will make this project infeasible without the variance. b. The setbacks proposed by the applicant would be allowed if this were a four story multi-family project. This facility will operate with much less clutter, noise and traffic impacts that would be associated with an apartment building of similar scale. c. The architectural standards both for the site and the building itself will meet or exceed the neighborhood context. The building massing and size are entirely consistent with a more typical multi-family apartment project that could be constructed on this site. d. Proposed building coverage is 35% before dedication of right-of-way deeding rather than the allowable 40% per code. After the dedication of right-of-way the project will still be at the allowable 40%. Building setbacks for residential projects generally allow for lesser setbacks from side and rear property lines than from front property lines. While not technically a residential project, the proposed assisted living facility, unlike a commercial development, will not produce the noise or visual blight which might otherwise require increased setbacks from adjacent residential property lines. The floor plans for the proposed building show that the private rooms of the residents are to be located along the west and south property lines. More intrusive uses are located on other sides of the building. The majority of the parking stalls are located below grade and the entrance to the parking garage is on the east side of the building, adjacent to Manor Way. Only one handicapped parking stall and an access driveway are located near the northeast side of the building. The central dining/activity room fronts Manor Way. Furthermore, existing uses on the adjoining properties to the west and south do not warrant increased setbacks from what typically would be required of a multi-family development. An access driveway runs along the neighboring property line to the west and a townhouse building is adjacent to the southwest corner of the site. According to the PD staff report, this building is approximately 45 feet away from the new assisted living center. The other nearest townhouse structure, located on the northeast side of the adjoining lot to the west, would be approximately 70 feet away from the assisted living center. Installation of the required Type A landscape buffer along the west and south property lines will visually enhance the appearance of the facility and, along with an existing board fence that runs along the western property line, partially screen the building from adjoining properties. It will also be down slope, which will prevent the building from towering over the townhomes. 09101888 13

To the south of the subject property, a large detention pond dominates the entire south property line. The reduction in setback variance does not affect neighboring property owners on the south side at all. In considering this variance, the Examiner studied the types of uses included in the HSSF-II category. (See SCC 30.91H095(2)) The category includes hospitals, nursing homes, mental health facilities, large institutional boarding homes, retirement homes, state residential schools for the hearing and visually impaired, child birthing center/facilities; and hospices. The Examiner finds that these uses are fairly disparate in their needs for zoning setbacks and bulk regulations. For big institutional uses like hospitals and schools, a 30-foot setback is appropriate. The Examiner is not quite so sure that the same is true of a small assisted living facility in the MR zone. It may be time to review these regulations in light of the new types of facilities that have recently come to the region to determine whether Snohomish County s regulations have kept up with the times. The applicant indicated that the state licensing authority remarked that the county s regulations were overly onerous and out of step with current philosophies. Although the Examiner does not believe in granting variances lightly, the Examiner will grant the variance in this case. The circumstance of this property is these extremely large setbacks applicable to the HSSF II uses, which when squeezed in with the right-of-way requirements make the lot too small to feasibly build the project. It would be one thing if these setbacks served a legitimate purpose, but as the applicant points out, in this particular case they really don t. The impacts to the neighborhood of the assisted living facility will likely be less than those of a multi-family apartment building, especially in terms of use of the side and rear yard setbacks. There will be landscape buffers to mitigate the visual impact of the facility, along with the existing wooden fence. SCC 30.43B.120 requires execution and recordation with the County Auditor of a Land Use Permit Binder (LUPB) in conjunction with the issuance of a variance or CUP prior to the initiation of any site work. The Examiner has included a condition of approval for inclusion within the project decision to comply with this code section. 17. Conditional Use Permit Criteria In considering the application, the Examiner must apply SCC 30.42C.100, which outlines the decision criteria for a CUP as follows: 1. The hearing examiner may approve, approve with conditions, or deny a conditional use permit only when all the following criteria are met: (a) (b) The proposal is consistent with the comprehensive plan; The proposal complies with applicable requirements of this title; (c) The proposal will not be materially detrimental to uses or property in the immediate vicinity; and (d) The proposal is compatible with and incorporates specific features, conditions, or revisions that ensure it responds appropriately to the existing or intended character, appearance, quality of development, and physical characteristics of the site and surrounding property. 2. As a condition of approval, the hearing examiner may: (a) Increase requirements in the standards, criteria, or policies established by this title; 09101888 14

(b) (c) (d) (e) (f) (g) (h) Stipulate the exact location as a means of minimizing hazards to life, limb, property damage, erosion, landslides, or traffic; Require structural features or equipment essential to serve the same purpose set forth in 30.42C.100 (2)(b); Impose conditions similar to those set forth in items 30.42C.100 (2)(b) and 30.42C.100 (2)(c) as may be deemed necessary to establish parity with uses permitted in the same zone in their freedom from nuisance generating features in matters of noise, odors, air pollution, wastes, vibration, traffic, physical hazards, and similar matters. The hearing examiner may not in connection with action on a conditional use permit, reduce the requirements specified by this title as pertaining to any use nor otherwise reduce the requirements of this title in matters for which a variance is the remedy provided; Assure that the degree of compatibility with the purpose of this title shall be maintained with respect to the particular use on the particular site and in consideration of other existing and potential uses, within the general area in which the use is proposed to be located; Recognize and compensate for variations and degree of technological processes and equipment as related to the factors of noise, smoke, dust, fumes, vibration, odors, and hazard or public need; Require the posting of construction and maintenance bonds or other security sufficient to secure to the county the estimated cost of construction and/or installation and maintenance of required improvements; and Impose any requirement that will protect the public health, safety, and welfare. 18. Testimony from the applicant s representative is relevant to various criteria for the CUP. Criteria (1)(a): The Examiner finds that with the adopted preconditions and conditions, the project is consistent with the comprehensive plan. As explained by the applicant, part of the idea behind siting this facility in a residential neighborhood, even though this particular piece of property is zoned MR, is that the residents want to continue living in a residential neighborhood and setting. Just because they have moved to an assisted living facility doesn t mean they want to abandon the type of lifestyle they have been familiar with all their lives. Supporting this notion, the GPP states: Objective HO 2.A Promote opportunities for all county residents to reside in safe and decent neighborhoods. This objective is part of the larger goal to Ensure the vitality and character of existing residential neighborhoods. (Goal HO2 (GPP at p. HO-6)) The Examiner interprets this objective and goal to encourage facilities for seniors in residential neighborhoods not only so they can live in safety, but so the seniors and the facility can enhance the vitality and character of the neighborhood. Criteria (1)(b): The applicant has demonstrated that the proposal meets the applicable requirements of this title (Title 30 SCC). 09101888 15

As demonstrated through the Findings of Fact, Conclusions of Law, and with the Preconditions and Conditions, the application meets the requirements of Title 30 SCC. Criteria (1)(c): There is no evidence in the record to indicate the proposal will be materially detrimental to uses or property in the immediate vicinity. Aside from other issues discussed in this Decision already, there was some discussion of the noise that could be produced by the HVAC system that was proposed to be put on the roof. The applicant agreed to put the system in the garage to reduce the noise and states that within the concrete walls of the garage, it will emit virtually no noise to the outside neighborhood. The Examiner will place a condition on the Decision to require the HVAC system to be placed in the garage. Criteria (1)(d): The applicant s representative made a presentation regarding the site plan and the proposed design of the building. 1. The CU, with the preconditions and conditions of approval, will respond to as well as maintain compatibility with surrounding uses and incorporate specific features, conditions, or revisions that ensure it responds appropriately to the character, appearance, quality of development, and physical characteristics of the site and surrounding properties. 2. The four-story building has a broken-up façade of different textures and finishes, along with different gables and structures to make the building visually interesting to the eye. The intended appearance is that of a Northwest lodge. The interior is intended to be somewhat upscale, according to the applicant. The applicant has created some outdoor recreational spaces around the outside of the building and is working on creating more. 3. Right-of-way buffering and landscaping contribute visual amenities from public roadways. 4. The applicant is providing a sidewalk for pedestrians and a pedestrian ramp to allow handicapped residents to access Manor Way from the facility, which will provide a public safety feature to the neighborhood. 19. Any Finding of Fact in this Decision which should be deemed a Conclusion is hereby adopted as such. CONCLUSIONS OF LAW 1. The Examiner has original jurisdiction over CUP applications pursuant to Chapter 30.72 SCC, Chapter 30.42C SCC and Chapter 2.02 SCC. 2 In considering the CUP, application of many of the decision criteria require the exercise of discretion by the Hearing Examiner. 09101888 16

3. The Hearing Examiner concludes the proposal is consistent with the GMACP; GMA-based county codes, the type and character of land use permitted on the project site, and the applicable design and development standards. 4. If approved with the preconditions and conditions determined by the Examiner to be necessary in the Findings of Fact,and outlined below in the Decision, the proposal will make adequate provisions for the public health, safety and general welfare. 6. The Examiner concludes that the proposed CUP with the preconditions and conditions of approval as outlined below, will be consistent with the comprehensive plan and comply with the applicable requirements of Title 30 SCC. 7. The Examiner concludes that the CUP, with the preconditions and conditions of approval as outlined in the Decision below, will not be materially detrimental to uses or properties in the immediate vicinity. 8. The CUP, with the preconditions and conditions of approval, will respond to as well as maintain compatibility with surrounding uses and incorporate specific features, conditions, or revisions that ensure it responds appropriately to the character, appearance, quality of development, and physical characteristics of the site and surrounding properties. 9. Any Conclusion of Law in this Decision, which should be deemed a Finding of Fact, is hereby adopted as such, and vice versa. DECISION Based on the Findings of Fact and Conclusions of Law entered above, the Decision of the Hearing Examiner on the applications is as follows: The request for a ZONING CODE VARIANCE is APPROVED. The request for a CONDITIONAL USE PERMIT is hereby CONDITIONALLY APPROVED, subject to the following preconditions and conditions: PRECONDITIONS A. A record of developer obligations shall have been recorded with the County Auditor against the real property on which the development is proposed. B. The submitted site plan (ExhibitS B1, A-1.1) shall be comport with the changes in Exhibit K-6. Applicant shall also revise the site plan to show a Type A landscape buffer along the west and south property lines. CONDITIONS 09101888 17

A. The CU official site plan shall be the plan approved pursuant to Precondition B. Any discrepancy between the content of the official site development plan and the performance standards of Title 30 SCC shall be resolved in favor of Title 30. SCC 30.42C.110 governs changes to the official site plan; B. The zoning code variance granted is limited solely to that requested, namely allowance of a 16 foot building setback from the west and south property lines to the proposed building. No other zoning code relaxation shall be authorized by this variance. C. Per SCC 30.26.075, parking lot lighting shall be arranged or shielded so as to reflect the light away from any dwelling units and the public right-of-way. D. All outdoor HVAC units shall be placed in the underground parking garage. E. Additional landscaping shall be provided along the property s road frontage. The applicant shall apply for a landscape modification to be processed by PDS during the building permit review to compensate for the loss of the required 10 foot Type B landscape buffer at the northeast side of the site to accommodate the hammerhead turnaround requested by Fire District 1. F. The applicant shall comply with all comments submitted by Fire District 1 in Exhibit G5. G. Prior to building permit issuance: i. Per SCC 30.42C.200 and 30.43B.120, a Land Use Permit Binder, on a form provided by PDS, shall be executed by the applicant and recorded with the County Auditor for both the conditional use permit and the building setback variance. ii. iii. The applicant shall pay an impact fee to Snohomish County for traffic impacts to Transportation Service Area D in the amount of $30,290.20 (Transaction Code 5210). This payment may be made proportionately with each building permit. Credit for certain expenditures may be allowed against said payments to the extent authorized by County code. Right-of-way at the intersection of 151 st Pl SW/Manor Way (NE corner of the parcel) and along Manor Way shall have been deeded to the County. H. Prior to the issuance of certificate of occupancy/final inspections; i. The features on the approved TDM plan shall be constructed and installed. ii. Urban frontage improvements shall be constructed in conformance with the EDDS along the parcel s frontage on Manor Way to the satisfaction of the County. iii. Site improvements and landscaping depicted on the approved plans shall be installed, inspected and approved by the County. Nothing in this permit/approval shall excuse the applicant, owner, lessee, agent, successor or assigns from full compliance with any other federal, state or local statutes, ordinances or regulations applicable to this project. In particular, no clearing, grading, filling, construction or other physical alteration of the site may be undertaken prior to the issuance of the necessary permits for such activities. 09101888 18