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HomeMy WebLinkAboutDecision - Admin Appeal -- Reasonable Use -- Jurgens Revised1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 1 CAO VARIANCE - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: Steve Jurgens Conditional Use Permit LUA18-000055, CU-H, SME ) ) ) ) ) ) ) FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION Overview Mr. Jurgens’ appeal is granted in part. Mr. Jurgens has appealed several conditions imposed by City staff on his reasonable use request to encroach into a wetlands buffer with an addition to a single-family home. Mr. Jurgens has successfully established that the area between an Ns stream on his property and Jones Avenue NE was maintained as a lawn or at least cleared area prior to the City’s adoption of stream buffers. For this reason, the reasonable use approval conditions requiring a native growth protection easement (“NGPE”) and associated fencing along the stream buffer are overturned. The approval condition requiring a wetlands NGPA along the north side of the addition is also overturned to give Mr. Jurgens maintenance access to the addition. A condition requiring stream restoration is also overturned per the agreement of staff at the appeal hearing. Although numerous conditions have been overturned due to nonconforming use status or the need for reasonable use, Mr. Jurgens’ reasonable use application still fails to identify and evaluate all the stream and wetland impacts created by his proposal. Consequently, a condition has been added requiring Mr. Jurgens to supplement his wetlands study with an assessment and recommendation of what wetland and stream mitigation is required for his addition. City staff and Mr. Jurgens are to be complimented on their excellent and thorough assessment of Mr. Jurgen’s reasonable use application as well as the presentations made at the appeal hearing. As evidenced by this decision, the issues that Mr. Jurgens’ application have generated are highly complex, both legally and factually. In point of fact, with all the complexities at play, staff’s only questionable decision was its finding that the cleared area between the stream and Jones Ave. NE didn’t qualify as a nonconforming use. The aerial and street view photographs establish fairly clearly that the stream buffer has been subject to a least intermittent clearing since at least 2002, which is before the City 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 2 CAO VARIANCE - 2 Council first adopted stream buffers in 2005. It appears that staff may not have been cognizant of the judicial requirement that once Mr. Jurgens establishes that the buffers were lawfully cleared and/or maintained as a lawn before 2005, the burden of proof shifted to the City to establish that the property owner had intended to abandon this type of buffer use. The courts have recognized that when nonconforming use regulations such as those adopted by Renton require proof of abandonment that it is very difficult to extinguish a nonconforming use1. It is not the least bit surprising that the City was not able to prove intent to abandon. The easiest way to understand how to apply the City’s critical areas ordinance to Mr. Jurgens’ property is to present a step by step analysis. The first step is to recognize what parts of Mr. Jurgens’ proposal encroach into critical area buffers. As determined in Finding of Fact (“FOF”) No. 6 below, Mr. Jurgens’ entire home, lawn area, both driveways, and his proposed addition encroach into the wetland buffer. His northern driveway, some lawn area and stream armoring encroach into both the stream and wetland buffers. The second step is to determine if any of Mr. Jurgens’ current use is exempt from the critical area requirements because they qualify as nonconforming uses. As determined in FOF 5 and 6, the northern driveway does not qualify as nonconforming but all other current use of the property does qualify as nonconforming use exempt from the stream and wetland buffers. As determined in the conclusions of law below, those portions of the stream and buffers that don’t have nonconforming uses must be placed in NGPE tracts and fenced, whether or not the proposed addition encroaches into the affected buffer. In this regard, since the driveway is not a nonconforming use, the City can require that the northern driveway area be dedicated to an NGPE and fenced off. The third step is determining whether Mr. Jurgens’ proposed addition is necessary for the reasonable use of his property, considering all uses currently available to him, including the nonconforming uses. Staff determined in its reasonable use approval that the addition is indeed necessary for reasonable use and that determination has not been appealed. Consequently, the proposed addition is taken as necessary for reasonable use. The fourth and final step in review is ensuring that all adverse impacts to the stream and wetland created by the authorized addition are fully mitigated using best available science. As outlined in FOF No. 9, neither party has presented enough evidence to establish what mitigation, if any, is necessary to mitigate wetland and stream impacts. The criteria for approval of reasonable use requests places the burden upon Mr. Jurgens to establish that impacts are fully mitigated. Consequently, a condition of approval imposed by this decision requires Mr. Jurgens to supplement his wetlands and stream report with an assessment of the need for and adequacy of mitigation2. It is conceivable, but unlikely, that the wetlands supplement may find it necessary to re-impose a buffer requirement along the northern side of the stream. The reasonable use criteria require Mr. 1 In pointing out the practical difficulties in proving intent to abandon, a Washington court recognized that the intent standard is “a silly one, putting a premium on quasi-perjury, and in effect reads the requirement [loss of nonconforming use through abandonment] out of the zoning law.” Fife v. Choi, 60 Wn. App. 458, 4 (1991). 2 One could argue that the reasonable use request should be denied because Mr. Jurgens failed to prove that his proposal is fully mitigated as required by the reasonable use criteria, for the reasons identified in FOF No. 8. It is also questionable whether such a key issue can be delegated to Mr. Jurgens’ consultant for resolution as a condition of approval. However, the remaining analysis necessary to assess and mitigate project impacts is narrow. As noted in FOF No. 8, Mr. Jurgens’ ecologist has already reached the conclusion that the addition will be built in an area that provides no functional benefit to the stream or wetland and that the addition will not adversely affect wetland 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 3 CAO VARIANCE - 3 Jurgens to mitigate all impacts of his addition, so imposing a buffer area along the stream if necessary to mitigate project impacts can be legally required even though it affects an area that qualifies as a nonconforming use. It is important to recognize that the nonconforming use status of the north side of the stream exempts that use from the buffers imposed by the critical areas ordinance, but not from the reasonable use criteria that require project impacts to be mitigated. The issue of adequacy of mitigation is complicated by the fact that most of the mitigation proposed by Mr. Jurgens is in the illegal northern driveway area. Mr. Jurgens should recognize that since the northern driveway is illegal, the City could at any time institute a code enforcement action and require him to fully restore and mitigate the impacts of the illegal construction. The City could do this even if the driveway has already been removed as part of this reasonable use application process. Consequently, it would be in Mr. Jurgens’ interest to have his wetlands report address the mitigation necessary to address both the impacts of the proposed addition and the illegal construction of the driveway. With that level of mitigation, Mr. Jurgens could then enter into a voluntary correction agreement with the City as authorized by RMC 1-3-2D that would provide him with assurance that the northern driveway issue has been fully resolved. In his appeal, Mr. Jurgens requested that the City give him exact locations for the NGPE and fencing required for his reasonable use request. As permit applicant, it is Mr. Jurgens’ responsibility to provide the City with the information it needs to set required mitigation. The City based the location of the required NGPE and required fencing on the information provided in the mitigation site plan prepared by Mr. Jurgens. If Mr. Jurgens wants surveyed locations detailed with the locations of utilities and other features that could alter the location of the fence, he needs to include that in his mitigation plan. The City can then use that additional information to provide more specificity on the location of the fencing. Testimony Note: This hearing summary is provided as a courtesy to those who would benefit from a general overview of the public testimony of the hearing referenced above. The summary is not required or necessary to the recommendation issued by the Hearing Examiner. No assurances are made as to completeness or accuracy. Nothing in this summary should be construed as a finding or legal conclusion made by the Examiner or an indication of what the Examiner found significant to his decision. Steve Jurgens, Appellant, testified he purchased the subject property in June 2018. He bought the property for the large yard and the ability to have an addition to the home, both of which were recognized by the City of Renton in his exhibit 243. He spoke to Alex Morganroth about his plans for hydrologic functions. Mr. Jurgens’ ecologist is the only qualified expert who actually addressed project impacts so his conclusions on this issue are taken as verities. The only remaining issue not addressed by Mr. Jurgens’ ecologist is whether the project will adversely affect wetland non-hydrologic functions, such as wetland habitat, or create any adverse impact so the stream. The failure to address these remaining issues may simply be poor word choice in the existing report, but either way, the report needs to clearly identify all potential impacts to the wetland and stream and any necessary mitigation. 3 Exhibits referenced as Mr. Jurgens’ exhibits throughout this decision are refere ncing the exhibit numbers on his 5/25/20 updated appeal, Ex. 6 to this decision. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 4 CAO VARIANCE - 4 the project site and was told he would likely be exempt from critical area regulations He submitted his application in January 2019. A month later the City determined his project wasn’t exempt. He was then asked to submit mitigation measures to off-set the proposed house addition. Later that month he submitted that information. A couple months later he had a critical areas report prepared by an ecologist. Several months went by with discussion with the City back and forth and by September 2019 it was determined that a reasonable use application was the only way to move forward. He submitted two mitigation plans to the city as pre-application review. The City selected “option 2” as the preferred option, his exhibit no. 5. Mr. Jurgens began preparing his reasonable use application materials in November 2019 and he submitted his application in January 2020. The application was accepted on January 30. On March 18, his application was put on hold due to some changes necessary to accommodate roadway drainage. On April 3 he requested that the application taken off hold as the roadway issues had been resolved. The decision on his application was issued on April 14 and he appealed the next day. Mr. Jurgens asserted that reasonable use is the ability to enjoy his property the same as his neighbors. His property is three times the minimum size of the 8,000 square foot minimum lot size for his zoning district. He’s asking for less buildable space than the smallest lot authorized in the R4 zone. His reasonable use request involves having the same type of road frontage enjoyed by his other neighbors. The required NGPE would encumber 75% of his street frontage and result in an unkempt appearance to his home and would make his lot appear to be in noncompliance with City requirements that prohibit grass and weeds over a foot high. Under reasonable use, he should have the same privileges as the three properties that border his property to the north. Those homes were built between 2010 and 2012 and were subject to environmental regulations in the early 2000s that involved more lenient restrictions. The buffer has more than quadrupled since this time and the quadrupled wetland buffer now encumbers his entire lot, resulting in impractical difficulties that are due relief under the reasonable use process. Mr. Jurgens asserted it’s unreasonable to terminate the legal nonconforming uses on his property due to his reasonable use application. Mr. Jurgens referenced a code section from his Ex. 15 that identifies that activities in buffers existing prior to adoption of the buffers may continue. Mr. Jurgens noted that the City takes the position that the pre-existing activities weren’t legally created, but that there is a plethora of evidence to the contrary. Ex. 1 shows the location of the underground electrical service line that serves the home. If the northern driveway did not exist at the time the line was run it would not have made sense to run the line this way. The southern driveway would have been the path of least resistance. Ex. 2, a photo from 2013, clearly shows a manicured grass yard in the area between the creek and driveway. Ex. 3 is a collection of aerial images between 2002 and 2013. The images are not entirely clear, but generally speaking the yards look to be entirely manicured given the varying shades of green. Armoring can be seen along the stream channel. Ex. 4 is Google street view imagery for 2011 and 2018. Armoring can be seen along the creek channel in both images. Ex. 7 is the 2005 short plat to the lot to the north. The area between the creek and Jones Avenue in this picture shows low vegetation, which is re-occurring through other images. This shows that the lawn area. Ex. 8 is the 1984 as built record for the sanitary sewer system that serves Jones Ave NE. It would make little sense to place a sewer stub there if the area between the creek and roadway was natural growth area. If the driveway and manicured lawn had not existed, the stub would logically have been placed between the southern driveway and the creek. Ex. 22 is a 2004 plat map sheet from a subdivision across Jones Ave. It shows an existing northern driveway entrance and a culvert for the roadway drainage ditch. Ex. 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 5 CAO VARIANCE - 5 is a Google street view image that compares the growth rate of the natural growth area across Jones Ave NE to the wetland north of his property Mr. Jones believed it was unreasonable to require the NGPEs when they were not required for projects LUA150000761 and LUA16000307, both at 2816 Kennewick, which is approximately a half-mile north of his property along a similar type Ns stream. Ex. 13 and 14 show the conditions placed on these projects. These projects serve as precedent that an NGPE should not be required for his property either. His yard has a similar type Ns stream. Ex. 11 shows that the NGPEs increase the mitigation area by approximately 57%. That is unreasonable given that he’s already restoring vegetation at a ratio exceeding 1:1. His biologist, DOE and the ERC committee did not make NGPEs part of their recommended mitigation. Their recommendations are shown in Ex. 9, 10 and 18. Renton doesn’t have an ecologist on staff and therefore should be relying upon the review bodies that specialize in environmental sciences. The RMC does not require the discontinuance of adjoining nonconforming uses upon the addition to a residential structure. The City is using this as a grab-all attempt to bring his property into compliance with newly adopted critical are regulations. Mr. Morganroth inquired whether Mr. Jurgens’ reasonable use was limited to the addition or whether it included requests for yard space in the wetland and stream buffers. Mr. Jurgens noted that his application was just for the addition because he wasn’t aware that the yard space had to be expressly included. Referencing Ex. 24, he understood the City to be on the same page as he that he wanted to use as much of his property as he could. He purchased the property for the ability to keep the yard and expand. Mr. Jurgens acknowledged that his wetlands consultant didn’t address the need for the NGPE. He pointed out that for two other projects along Kennydale Creek, the same ecologist reviewing his project had recommended NGPEs. He interprets the absence of such a recommendation for his project as implying that no such NGPE is recommended. In response to Examiner questions, Mr. Morganroth noted that although Mr. Jurgens didn’t explicitly include maximum yard space in his reasonable use request, he understood that Mr. Jurgens did want to use all his yard space. In his testimony, Mr. Morganroth, City of Renton planner, summarized Mr. Jurgens’ reasonable use application, the reasonable use criteria and the conditions of approval. Mr. Morganroth stated that staff is receptive to removing the condition requiring removal of stream armoring, since from the aerial photographs it’s unclear how long the armoring has been there. Mr. Morganroth further noted that the NGPE is a code requirement. The environmental review committee is looking to mitigate impacts that are outside the protections of the code and does not identify all requirements inside the code. Mr. Morganroth stated that the reasonable use process involves a balancing of the property owner’s interest against the City’s interest. Mr. Jurgens needs his addition and the City needs to protect the critical areas as intended by the critical area regulations. Staff finds that its recommendations provide for the correct balance by authorizing a fairly large addition and continued use of yard space while at the same time protecting the stream and wetlands. Mr. Jurgens asked Mr. Morganroth if the critical areas ordinance always requires NGPEs. Mr. Morganroth responded that not every reasonable use variance necessitates an NGPE. However, even when an NGPE isn’t expressly required, the critical areas ordinance still gives staff the discretion to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 6 CAO VARIANCE - 6 impose it when necessary to protect critical areas. Mr. Jurgens also asked why the projects identified in his Ex. 13 and 14 were not required to have NGPEs despite being located along a similar Ns stream. Mr. Morganroth noted that the RMC has changed since those projects. Further, staff looks at the NGPE requirement on a case by case basis. Mr. Jurgens’ project is different because the wetland is hydrologically connected to the stream. The critical area regulations were made more stringent in 2017. Mr. Jurgens inquired how staff evaluated the nonconforming use status of the improvements on his property. Mr. Morganroth responded that staff evaluated the aerial photographs. The picture quality of the aerials was poor, but it was very clear there was no driveway constructed prior to adoption of the stream buffers. The addition itself is subject to current standards, including current critical area standards. Staff did consider some of the improvements as legal nonconforming uses, which is why the yard space not subject to the NGPA was allowed in staff’s reasonable use decision. If staff hadn’t recognized the majority of yard space as a legal nonconforming use, Mr. Jurgens would have been unable to use almost all of it, since almost the entire lot is encumbered with the wetland buffer. Mr. Jurgens inquired whether staff had considered the fact that he’s not proposing an entire new development, but rather adding to an existing development. Mr. Morganroth responded that development subject to the critical areas ordinance is defined by code to be anything that intensifies a use or intensifies a structure or increases its square footage on property. The Examiner inquired as to when the code requires an NGPE, citing as a hypothetical a 30-acre parcel with a proposed garage on one end and a stream on the other end several thousand feet away. Mr. Morganroth stated the requirement is evaluated on a case by case basis. In this case the NGPE was required in trying to reach the balance of meeting the intent of the critical area regulations while accommodating Mr. Jurgens’ property interest. One of the factors in the balancing of interests for the Jurgens property was impacts from prior buffer encroachments, such as the driveway and the armoring. Also, there is a connection between the proposal and the stream buffer, because the house is encroaching into the wetland buffer and the wetland in turn is hydrologically connected to the stream and the stream has already been impacted. In further response to Examiner questions, Mr. Morganroth stated that the staff recommended conditions sought to mitigate the impacts of the currently proposed development and were not designed to mitigate impacts of past stream and wetland buffer encroachments. Mr. Jurgens inquired as to why he is required to mitigate impacts to the stream when he is building outside of the stream buffer. Mr. Morganroth responded that the impacts to the wetlands cannot be separated from the impacts to the stream when the wetland feeds into the stream. In response to an examiner question, Mr. Morganroth responded that if the addition did not encroach into a wetland or stream buffer but was just built close to those buffers, no NGPA would be typically required by staff. However, the code does give staff the discretion to require one if it found there was “merit” in doing so. Mr. Morganroth did not know how often staff has required an NGPE under such conditions in the past. Exhibits 1. 2/24/20 Staff Report with attachments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 7 CAO VARIANCE - 7 2. 4/14/20 Admin Decision 3. 6/5/20 CED Appeal Response 4. 6/10/20 Jurgens Appeal Response4 5. 5/29/20 prehearing order 6. 5/25/20 updated appeal w/attachments 7. 5/22/20 Scheduling Letter 8. Jurgens/Examiner/City Email Correspondence Findings of Fact Procedural: 1. Appellant. Steve Jurgens, 2301 Jones Ave NE, Renton, WA. 2. Hearing. A virtual hearing on the appeal was held via the Zoom application on June 16, 2020, Zoom Meeting ID: 840 8564 8094. 3. Appeal Description. Mr. Jurgens has appealed the conditions imposed by a City staff decision to approve a reasonable use request to encroach 855 feet into a 100-foot wetlands buffer of a Category II wetland with an addition to a single-family home located at 2301 Jones Ave NE, Renton, WA 98056. The wetland is located off-site and the existing residence already encroaches into it. The Appellant contests seven conditions of approval. The conditions require Mr. Jurgens to place his proposed wetland mitigation area and a portion of an adjacent stream buffer into native growth protection areas (“NGPA”). The contested conditions further require the NGPAs to be fenced off from the used portion of the property. A contested condition also requires that armoring along the stream be removed. Mr. Jurgens’ lot is currently developed with a 1,824 square-foot two story home that is served by two driveways – one on the south side of the lot and another on the north side. As part of his wetland mitigation, prepared by a wetland biologist, Mr. Jurgens proposes to remove the northern driveway and replace it with native vegetation. He also proposes to replace a culvert located under the northern driveway with a larger culvert to facilitate fish passage. The lot, at 21,190 sq. ft., is significantly larger than the surrounding R-4 lots that range from approximately 5,400 sq. ft. to 12,000 sq. ft. The stream buffer attaches to Kennydale Creek, an intermittent, non-fish bearing stream that runs through the northeastern corner of the property. The property is bordered by Jones Ave. NE to the west and an adjoining residential parcel to the north. The conditions of approval for the stream buffer require the fence to be placed along the southern side of Kennydale Creek and the NGPE to take up the 4 Ex. 4 and 6 have been corrected since submission into the record during the appeal hearing, as 4 and 6 as originally admitted did not reflect the most current versions of exhibits presented by Mr. Jurgenson. 5 85 feet is the total encroachment of the existing home plus its addition. The addition is 44 feet in length. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 8 CAO VARIANCE - 8 area north of the fence, such that it takes up the area from the southern portion of the stream to the Jones Ave. NE right of way and the adjoining residential parcel to the north. Condition 2 of the reasonable use approval decision notes that the NGPA and fencing for the wetland is for 1,100 square feet of a wetland mitigation area proposed by Mr. Jurgens’ proposed wetland mitigation area along the northern side of the property. Condition 3 requires fencing along the southern portion of this mitigation area. The NGPAs and fencing only cover a portion of the stream and wetland buffer areas that encroach onto Mr. Jurgens’ property. Staff has not required the remaining buffer areas to be protected because staff considers those areas to be necessary for reasonable use of the property as lawn area and because evidence also suggests that these remaining portions to be exempt as nonconforming uses, i.e. they were lawfully established as residential lawn area prior to adoption of stream and wetland buffers6. Use of the on-site stream and wetland buffers outside of the staff recommended NGPEs should be considered as approved by the City as part of Mr. Jurgen’s reasonable use application. The approval of those areas for reasonable use and/or nonconforming use was not appealed by Mr. Jurgens and are outside the scope of this appeal. 4. Northern Stream Buffer Area Nonconforming Yard Area. Mr. Jurgens has established by a preponderance of evidence that the area north of the stream was improved with lawn area or at least maintained in a cleared state as far back as 2002. Google street view photographs submitted by staff, staff’s Ex. 12, show a manicured lawn area in 2019 and an area overgrown with vegetation reaching heights up to two and a half feet in 2012. A 2015 aerial map provided in staff’s Ex. 13 appears to show the area north of the stream as overgrown, but it is too unclear to arrive at any compelling conclusion on that issue. Mr. Jurgen’s Ex. 4 Google street view images show maintained lawn on 6/2018 that is overgrown with vegetation reaching heights of up to two and a half feet on 8/2011. His aerial photographs from his Ex. 3 from 2002 through 2013 show the area with vegetation likely to still be less than two and a half feet, given the absence of any trees or other types of shrubs that would reach taller heights in those photographs. The 2002 and 2005 aerial photographs show the area as brown in color, consistent with sparse short or cleared area, as shown in Mr. Jurgens’ Ex. 2 2013 ground level picture of the area. The 2.5-foot vegetation depicted in the Google street view images in 2011 and 2012 is not consistent with the type of vegetation that one would expect to see as the result of uninterrupted growth for a period of several years. Mr. Jurgens’ Ex. 7 and 23 shows vegetation growing along Jones Avenue adjacent to or across the street from the subject lot reaching well over fifteen feet in height. It is fairly clear that the area between Jones Avenue and the stream buffer was cleared at least intermittently every few years. From the evidence presented, Mr. Jurgens has established that more likely than not the area between the area between the stream and Jones Avenue NE was cleared in 2002 or some prior year. He also established that this area was at least intermittently re-cleared or maintained at least every few 6 During the hearing Mr. Morganroth stated at different times that the yard areas outside the staff req uired NGPAs were authorized either as necessary reasonable uses or nonconforming uses. It’s unclear if Mr. Morganroth mis-spoke or if staff found that the authorized areas qualified as authorized yard space under both reasonable use and nonconforming use. The evidence in the record supports both conclusions. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 9 CAO VARIANCE - 9 years since the initial clearing. The City has not established any intent to abandon the maintenance of this area in a cleared and/or lawn condition. 5. Northern Driveway Constructed After 2005. Mr. Jurgens did not succeed in establishing that the northern driveway was constructed prior to 2015. The earliest that any of the aerial and Google street view photographs submitted by the City or Mr. Jurgens show a driveway is 2015. Street view photographs in staff’s Ex. 12 clearly show that a driveway was not in place in 2012 but was there by 2019. A 2015 aerial in staff’s Ex. 137 shows that the northern driveway was not in place yet as of 2015. Mr. Jurgen’s Ex. 4 aerial photographs from 2002 through 2013 also don’t show any northern driveway. There is no basis to conclude that more likely than not the northern driveway was constructed prior to 1992. Mr. Jurgens presents some evidence beyond the aerial and street view photographs in support of his position that the northern driveway was constructed early enough to qualify as a nonconforming use, but none of this evidence is particularly compelling. The strongest piece of evidence is a 2004 civil plan for a short plat across Jones Avenue NE that depicts what appears to be a curb cut at the entrance to the northern driveway, along with what Mr. Jurgens states is a stormwater line running from that area. The curb cut shows some intent to provide for an access point at that portion of the lot, but doesn’t establish when the driveway was installed. Given that Mr. Jurgen’s lot is large enough to be subdivide into two lots, the second curb cut could have simply been installed in anticipation of a future subdivision. Mr. Jurgens asserts that the location of a sewer stub and on-site underground power lines establishes the long-term existence of the northern driveway and manicured stream lawn because such facilities would not been placed in unimproved areas. The reasons for the placement of sewer and power lines are too speculative to serve as evidence supporting Mr. Jurgens’ nonconforming use position. If ease of maintenance and installation were the only considerations, it would appear that the logical place for the utilities would have been along the southern driveway, as the utilities there would not have to cross the stream. The northern driveway may have crossed the stream with a culvert, but presumably even with the culvert it would still be easier to place a utility line along the southern driveway without having to deal with a culvert. It is also noticeable that along the large lots on the eastern side of Jones Avenue, as depicted in Mr. Jurgens’ Ex. 8, the sewer stubs are spaced fairly evenly, suggesting that engineering or planning considerations (i.e. anticipating future subdivision of lots) intentionally guided such even spacing as opposed to the site constraints on Mr. Jurgens lot. Without the testimony of someone who is knowledgeable about what factors come into play in siting lateral sewer and power lines, the location of these utilities says little about when the northern driveway was constructed. 6. Proximity to Wetland and Stream. From the scale presented in the site plan in staff’s Ex. 10, a stream buffer of 50 or 35 feet would completely encumber the area subject to the staff recommended NGPA north of the stream. From the “Critical Areas Map” attached to Mr. Jurgens’ wetland report, attached as Ex. 5 to COR No. 1, the northern driveway and proposed addition will both be located 7 Ex. 13 contains another aerial photograph that is undated, so that photo is of no use in assessing historical use of the property. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 10 CAO VARIANCE - 10 within 100 feet of the off-site Category II wetland, as well as everything else on Mr. Jurgens’ lot except for a small portion of the southwest corner of the lot. 7. Critical Area Constraints/Available Yard Space. The total amount of land that is restricted from use and development under the staff recommendations is 5,981 square feet, leaving 10,453 square feet for unencumbered yard space. This figure is based upon 3,481 square feet for steep slope buffers, 1,400 square feet for the staff recommended stream NGPE and 1,100 square feet for the wetland NGPE. The steep slope figure was taken from Mr. Jurgens’ Ex. 5. The NGPE figures were taken from Conditions 2 and 5 of the reasonable use approval. Mr. Jurgens’ Ex. 5 also identifies that the total area of his home after the proposed addition is 2,481 square feet and the southern driveway takes up 2,275 square feet. Deducting the critical area restricted space (5,981), southern driveway (2,275) and structures (2,481) from the 21,190 square foot lot size, this leaves 10,453 square feet for yard space. With elimination of the stream NGPE, Mr. Jurgens is left with 11,853 square feet of yard space. 8. Condition No. 2 Includes Grass Area of Mitigation Plan in Required NGPE. Staff’s reasonable use decision erroneously sets the NGPE boundary for the wetland buffer. Condition 2 of the staff’s reasonable use decision requires that the area designated “New Native Trees and Shrubs” in staff Ex. 10 to be designated an NGPE. Rather than being limited to the “New Native Trees And Shrubs” area, it is apparent that staff intended the NGPE to encompass both the “New Native Trees And Shrubs” area and the “New Grass” area located to the north of it in the required NGPE. A review of the evolution of the of the NGPE reveals that staff couldn’t have intended the NGPE to be limited to the “New Native Trees and Shrubs” area. If the NGPE were limited to this area, it would create an isolated rectangular NGPE island with a 7-foot gap serving no purpose between its northern edge and the wetland it is designed to protect. Further, this seven-foot gap, which is designated for “New Grass” in the wetland mitigation plan, is required by the SEPA mitigation measures to be composed of new native trees and shrubs. It appears that staff overlooked the “New Grass” designation on the Ex. 10 site plan and mistakenly believed it to be part of the “New Native Trees and Shrubs” area. The area composed of the “New Native Trees And Shrubs” (1,100 square feet) and “New Grass” (1,150 square feet) areas depicted in staff’s exhibit 10 originated as the Applicant’s proposed 2,250 square feet mitigation area limited to new grass. See Staff Ex. 5, p. 17. The Department of Ecology commented that “[a]s a mitigation measure, the applicant proposes removing an unauthorized driveway through the wetland/stream buffer and over the stream and replacing it with grass lawn, which is not a significant improvement in buffer function. Replacing the existing driveway with a buffer consisting of native shrubs and/or trees would provide a clear ecological lift, as compared with a maintained grass lawn. ” See Staff Ex. 8. As a result, the sole SEPA mitigation measure imposed for the project requires Mr. Jurgens to “submit a revised buffer enhancement plan that includes the planting of native shrubs and/or trees along the north of the site as recommend by the Department of Ecology …” prior to building permit application. See Staff Ex. 1, p. 4. Staff’s Ex. 10 mitigation plan clearly fails to meet the SEPA mitigation condition staff itself imposed upon the project. The SEPA mitigation measure requires the area designated “New Grass” in staff Ex. 10 to be “New Native Trees and Shrubs,” making it indistinguishable from the existing “New Native Trees and Shrubs” are depicted in Ex. 10. Yet Condition 2 only designates 1,100 square feet of this 2,250-foot square area as NGPE, leaving a 7-foot gap between this NGPE area and the wetland it intends to protect. There is no rhyme or reason for such a partial designation. Mr. Jurgens himself understood Condition 2 to encompass the “New Grass” area, since part of his reasonable use request 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 11 CAO VARIANCE - 11 includes removing the NGPE designation along the back of his proposed addition. If the staff required wetlands NGPE did not encompass the “New Grass” area as written in Condition No. 2, there would be no NGPE area along the back of his requested addition and hence no need for that portion of his reasonable use request. 9. Need for Buffer Mitigation Not Established. The record contains no conclusive evidence on the need for buffer mitigation caused by Mr. Jurgen’s addition. The most compelling evidence addressing buffer mitigation is Mr. Jurgen’s wetlands report. John Altman, an ecologist, authored the wetlands report. Mr. Altman observes in his report that the location of the proposed addition is comprised of existing gravel parking and no significant vegetation would be removed. He concludes that the “buffer area associated with your proposed expansion does not currently provide any functional benefit to the wetland and stream” and that since “there should be no increase in pollution generating surface associated with the project, there are no anticipated hydrologic impacts to the wetland.” Mr. Altman’s conclusions give the impression that no mitigation is necessary, since the proposal does not reduce any buffer functions and does not contribute to any adverse hydrologic impacts to the wetland. However, as listed at page 2 of his wetlands report, wetlands provide numerous ecological functions and not all are hydrologic. Most notably, they also serve a habitat function, which could conceivably be adversely affected by the presence, noise and shading effects of Mr. Jurgens’ house addition. Mr. Altman also did not mention what impacts, if any, the proposed addition would have on the stream. Further, Mr. Altman’s analysis was premised on the understanding that Mr. Jurgens proposed to plant a variety of native trees and shrubs in the wetland and stream buffers. It’s unclear if Mr. Altman’s conclusions on the impacts of the buffer encroachment were at least partially based upon this mitigation. Mr. Altman did ultimately recommend that mitigation composed of native tree a nd shrubs be installed, but this was based upon the assumption that Mr. Jurgens would apply for a buffer alteration as opposed to reasonable use approval. Mr. Altman also stated in his report that buffer alteration standards require mitigation that enhances ecological function, when in fact RMC 4-3- 050G9dii(b) only requires that the mitigation achieve equivalent ecological function. Staff’s requirement for the installation of native vegetation originates in the sole SEPA mitigation measure imposed for the project. The origin of that mitigation measure, as detailed at p. 3 of the ERC report, is a comment letter from the Washington State Department of Ecology (“DOE”), which the ERC committee regarded as “an agency with significant experience evaluating wetlands enhancement plans.” However, DOE did not state that its recommended mitigation was necessary to mitigate project impacts. DOE expressed no opinion on whether Mr. Jurgens’ proposal would adversely affect the wetlands. It simply opined that installation of native trees and grass would more effectively enhance wetland function than the grass proposed by Mr. Jurgens. Given the evidence on mitigation outlined above, there is insufficient evidence to determine whether the proposed addition will create any significant impacts to the wetland or stream and whether the mitigation imposed by this decision is sufficient to mitigate those impacts. Mr. Jurgens’ wetland and stream report needs to be supplemented with additional analysis identifying all significant wetland and stream impacts and how those impacts, if any, should be mitigated. Since Mr. Altman is the only 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 12 CAO VARIANCE - 12 qualified expert who has provided an assessment of wetland and stream impacts in the record, his conclusions in the currently existing wetland and stream study are taken as incomplete but accurate. 10. Stream Armoring Condition Removed. Condition 6 of staff’s reasonable use decision required Mr. Jurgens to remove the armoring of the Ns stream on his property. Mr. Jurgens contested this condition in his administrative appeal. At the appeal hearing staff consented to removing the armoring requirement, agreeing that it likely qualified as a nonconforming use. Mr. Jurgens’ photographs corroborate his position that the armoring has been in place since 2005. Condition No. 6 will be removed as agreed to by staff. Conclusions of Law 1. Authority. RMC 4-9-250(B)(1)(c)(iv)(d) classifies reasonable use variances for Category II wetlands as administrative variances. RMC 4-8-080G classifies administrative variances as Type II decisions subject to appeal to the hearing examiner, which in turn is subject to closed record appeal to the City Council. 2. Buffers. Mr. Jurgen’s property is encumbered by the buffer of an off-site Category II wetland with a habitat score of 4 that is 100-foot wide with an additional 15-foot building setback, pursuant to RMC 4-3-050.G. His property is also encumbered the buffer of an Ns stream, Kennydale Creek, that is 50-feet wide with an additional 15-foot building setback, pursuant to RMC 4-3-050G2. Kennydale Creek runs through the northeast side of the property. The stream is an intermittent, non-fish bearing stream and thus qualifies as an Ns Stream under RMC 4-3-050G(7)(a). 3. Buffer Legislative History. Stream buffers first went into effect in the City of Renton on May 4, 2005. Category II wetlands have had at least 50-foot buffers since April 19, 1992. The first stream buffers were adopted by Renton Ordinance No. 5137, which went into effect on May 4, 2005. In that ordinance, intermittent, non-fish bearing streams were classified as Class 4 streams subject to a 35-foot buffer. Ordinance 5757, which went into effect on July 5, 2015, reclassified Class 4 streams to Type Ns streams and increased their buffer from 35 feet to 50 feet. Wetland buffers appear to have been first adopted by Ordinance No. 4346, which went into effect on April 19, 1992. Ordinance 4346 imposed a 50-foot buffer for what qualified as Class II buffers at the time. Ordinance 4835, effective April 30, 2000, amended the City’s wetland standards but still imposed a 50-foot buffer for Class II wetlands. The buffer for Class II wetlands was increased to 100-175 feet by Ordinance 5757, which went into effect July 5, 2015. 4. Noncompliance with Current Stream and Wetland Buffers. As determined in Finding of Fact No. 6, the northern driveway and the entirety of the proposed addition will be located within 100 feet of the Category II wetland to the north, which places it violation of the 100-foot buffer imposed by RMC 4-3-050.G unless it is exempt from buffer requirements. As further determined in Finding of Fact No. 6, the currently existing lawn area between the stream and Jones Ave NE is located within 50 feet of the OHWM of the Kennydale Stream and is in violation of the 50-foot buffer imposed by RMC 4-3-050G2 unless it is exempt from buffer requirements. 5. Northern Stream Buffer Clearing/Lawn Area is Nonconforming Use. Mr. Jurgens successfully established that the clearing/lawn area between the stream and Jones Avenue NE qualifies as a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 13 CAO VARIANCE - 13 nonconforming use that is exempt from stream buffer requirements, including NGPE dedication and associated fencing. RMC 4-10-090 governs nonconforming uses. It provides that lawfully created uses may continue despite subsequently adopted critical area regulations. It further provides that if the nonconforming use is discontinued pursuant to RMC 4-10-060, any resumption of the activity shall conform to current stream buffer standards. RCW 4-10-060, in turn, provides that a use is deemed discontinued if it is abandoned. The initial burden of proving the existence of a non-conforming use is on the land user making the assertion. Miller v. City of Sammamish, Mun. Corp., 447 P.3d 593, 601 (2019). According to Miller, Mr. Jurgens has the burden of establishing that the lawn area between the stream and Jones Avenue was lawfully established prior to the adoption of critical area buffer requirements that prohibited them. If Mr. Jurgens successfully establishes that the lawn area is a nonconforming use, then the burden shifts to the City to prove that it has been abandoned. See McMilian v. King County, 161 Wn. App. 581, 591-92 (2011). The lawn area was installed before the adoption of stream buffers and thus is exempt from stream buffer requirements as a protected nonconforming use. As determined in COL No. 3, a 35-foot buffer for Kennydale Creek went into effect on May 28, 2005 and this buffer was expanded to 50-feet on July 5, 2015. As determined in FOF No. 4, the area between the stream and Jones Avenue was cleared by 2002 or earlier, which is before adoption of the City’s first stream buffer. As such, the clearing was lawfully instituted. As further determined in FOF No. 4, the stream area was intermittently cleared or maintained every few years. The City did not establish any intent to abandon this cleared state. The potential length of time between the intermittent clearing is not enough by itself to establish intent to abandon, given that it doesn’t appear the vegetation ever reached heights greater than 2.5 feet. It’s not clear if the initial clearing and first few years of maintenance kept the stream area improved with a lawn or simply low-cut vegetation. That distinction for purposes of nonconforming use status is immaterial. There is no functional or environmental difference between low cut (i.e. several inches) native vegetation or lawn area in the stream buffer area and for that reason either type of vegetation would perpetuate nonconforming use status. 6. Northern Driveway Not a Nonconforming Use. Mr. Jurgens did not meet his burden of proof in establishing that the northern driveway qualifies as a nonconforming use exempt from critical area requirements. The northern driveway was constructed after the adoption of wetland buffers and thus is not protected as a nonconforming use. As determined in Conclusion of Law No. 3, the 100-foot buffer for the off-site wetland was adopted on July 15, 2015 and a 50-foot buffer was in place as early as 1992. As determined in Finding of Fact No. 4, the driveway wasn’t installed until sometime between 2015 and 2019. The evidence does not establish that the driveway was constructed prior to the adoption of the 100-foot buffer and certainly not before the adoption of the initial 50-foot buffer. 7. Wetland NGPE Required for Project. NGPEs for the project are required for buffer areas that are not exempt nonconforming use areas. The City may require an NGPE whenever necessary to protect a Category II wetland or its buffer. RMC 4-3-050G3a requires that a “native growth protection area shall be instituted to protect a critical area from any proposed development.” Beyond this, the RMC does not provide any guidance as to when such NGPAs must be found to protect a critical area from development. Mr. Jurgens asserts that since his development does not encroach into the stream buffer, the City shouldn’t be requiring an 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 14 CAO VARIANCE - 14 NGPA for the stream buffer8. While such an interpretation would certainly remove any ambiguity as to when NGPAs should be required, it would also serve to significantly undermine the purpose of NGPAs. Under Mr. Jurgen’s interpretation, a home encroaching a foot into a stream buffer would trigger an NGPA requirement while a home located a foot outside the buffer would not. The need for an NGPA in both instances would be the same. If the City Council had intended to limit NGPA requirements just for buffer encroachments, it would have done so. Instead, the requirement is more expansive than that, requiring NGPAs to “protect” a critical area. From this language, it is reasonable to ascertain that an NGPA should be required when necessary to “protect” a critical area. Such an interpretation is consistent with the statutory and due process constitutional requirement that development can only be made to mitigate impacts that it creates. See RCW 82.02.020; Burton v. Clark County, 91 Wn. App. 505 (1998). RMC 4-3-050G3a(iv) expressly identifies Category II wetlands and their buffers as subject to NGPEs when necessary to protect them. The NGPEs recommended by staff are necessary to protect the wetland and stream buffers from future encroachment. There’s no question that the NGPEs could be required if Mr. Jurgens was proposing the first home to be built upon the subject property. As pointed out by staff during the hearing, the illegal construction of the northern driveway and the illegal installment of the lawn on the north side of the stream demonstrate precisely why such an easement is necessary. An NGPE serves as permanent notice to property owners of critical area ordinance limitations of which they may not otherwise be aware (especially subsequent purchasers of the property). The need for the NGPE as the result of a house addition as opposed to the house itself is not so immediately apparent. However, it is reasonable to conclude that the addition of the home will increase the potential for both wetland and stream encroachments. The house addition decreases the amount of space available on the lot for outdoor use, thus increasing demand on the buffer areas. The added space may also make the home more attractive to larger families in future sales of the home, further adding to the potential for buffer encroachment. Finally, the addition increases the overall value of the property, placing additional incentive to at least landscape the buffer areas to make the property even more attractive to potential buyers. Although the added incentive/pressure to encroach into the buffers may be modest as a result of the development, so is the added burden to the property owner. When assessing the due process constitutionality of a development requirement, the public necessity for the regulation is weighed against the burden on the property owner. See, e.g., Yim v. City of Seattle, No. 95813-1 (Wash. Nov. 14, 2019). In this case, the burden is minor. The property owner is already prohibited from encroaching into the stream and wetland buffers. The added burden to the property owner is limited to recording an NGPE and building a fence. Cast in that light, the requirement is amply justified. 8. Fencing Required for NGPEs. Mr. Jurgens appeals the need for NGPE fencing. RMC 4-3- 050G3g requires fencing for NGPEs unless studies document to the satisfaction of the reviewing official that such fencing will adversely impact habitat connectivity. No such showing has been made 8 The issue of whether an NGPE is required for the stream buffer is ultimately rendered moot because all of the stream buffer area on Mr. Jurgens’ property qualifies as nonconforming yard use. However, the validity of an NGPE requirement if that were not the case may prove useful should either party request reconside ration. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 15 CAO VARIANCE - 15 in the case. The fencing is required by RMC 4-3-050G3g and there is no basis to deviate from this requirement. 9. Staff Recommended NGPA Areas Not Necessary for Reasonable Use. Mr. Jurgens asserts that the staff recommended NGPA areas deprive him of reasonable use of his property. The NGPA areas are clearly not necessary for reasonable use of the property under the reasonable use standards adopted by the City. In order to succeed in such an argument, Mr. Jurgens would have to establish that with the NGPA areas he is left with little or no yard space or that the wetland and stream regulations as applied to his property have devalued it by more than at least 85%. No such showing can be made on the evidence presented in this appeal. In arguing that he needs the NGPA space to have reasonable use of his property, Mr. Jurgens is presumably relying upon RMC 4-9-250, a reasonable use criterion that specifically requires that “[t]here is no reasonable use of the property left if the requested variance is not granted.” The purpose of the reasonable use term, at least in critical area reasonable use provisions, is to serve as a constitutional safety valve to protect cities and counties from takings liability. See § 100.4(3), “Critical Areas”, Washington Real Property Deskbook, Volume VI (3rd Ed.). The state legislature required all cities and counties in 1990 to adopt critical area regulations to protect wetlands, streams and other environmentally sensitive areas. This mandate unavoidably left cities in the position where critical areas and their buffers would render some land completely undevelopable, thereby making the cities and counties liable to the property owner for the resulting regulatory taking under the state and federal constitution. The reasonable use waiver process was designed to avoid that takings liability by enabling cities and counties to waive critical area regulations to the extent necessary to avoid takings liability. This purpose is borne out in Renton’s definition of “reasonable use,” which according to RMC 4-11- 180 is “[a] legal concept that has been articulated by federal and state courts in regulatory takings issues.” Since the purpose of a reasonable use waiver is to avoid takings liability, case law on takings liability is pertinent to assessing reasonable use claims such as the one made by Mr. Jurgens. There is surprisingly little case law directly addressing stream and wetland regulations. However, the courts are fairly clear that to reach the level of compensable taking the restrictions must be extreme, reducing property values by at least 85%. In the context of regulatory takings caused by stream and buffer regulation, a taking will most often occur under either a Lucas analysis where the property owner is deprived of all reasonable economical use or a Penn Central analysis where the burden on the property owner is weighed against the public need and benefit of the regulations in question. The Lucas analysis comes from the US Supreme Court Case, Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 (1992). That case set the precedent for “categorical takings”, where no balancing of public verses private interests is required to determine if a property owner is entitl ed to compensation under the takings clause. The U.S. Supreme Court in Lucas ruled that when regulations deprive a property owner of all economically viable use, a categorical takings has occurred and compensation is due unless the regulations fall into s ome very limited exceptions. A footnote in Lucas explained that the categorical rule would not apply if the diminution in value were 95% instead of 100%. The court acknowledged that anything more than a total loss would require a Penn Central takings analysis. The meaning of “all economically viable use” was put to the test in Palazzolo v. Rhode Island, 533 U.S. 606 (2001). In that case Mr. Palazzolo owned an 18-acre subdivision containing 74 lots. The subdivision was undeveloped and covered with wetla nds with an indeterminate area of uplands. The only way to develop the lots located in wetlands was to fill them. Subsequent to the subdivision of the 18 -acre 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 16 CAO VARIANCE - 16 parcel the Rhode Island Legislature adopted regulations that prevent ed Mr. Palazzolo from filling the wetlands. Prior to adoption of the wetland regulations, Mr. Palazzolo’s could have developed a subdivision worth about $3.1 million. After adoption of the regulations Mr. Palazzolo could only fill the upland portions of his parcel, which would only enable a development worth about $200,000. The U.S. Supreme Court ruled that the remaining $200,000 qualified as economically viable use and, therefore, no Lucas categorical takings had occurred. In short, Mr. Palazollo was left with less than 10% of the development potential of his property and no categorical takings had occurred. In the absence of a categorical takings, the remaining way to establish a regulatory takings is through a Penn Central analysis. Penn Central is a United States Supreme Court case that created the concept of regulatory takings, where just compensation under the federal constitution 5th Amendment takings clause can be required by over-regulation of property without any physical appropriation such as in a typical road condemnation case. See Penn Central v. New York City, 438 U.S. 104 (1978) The Court ruled that whether a regulatory action that diminishes the value of a claimant's property constitutes a "taking" of that property depends on several factors, including the economic impact of the regulation on the claimant, particularly the extent to which the regulation has interfered with distinct investment-backed expectations, as well as the character of the governmental action. There have been very few cases that have applied 5th Amendment takings claims to wetland and/or stream buffer regulation. None have assessed Penn Central takings claims in the State of Washington to wetland regulations9. One case outside of Washington provides some insight as to how the regulation should be applied. See Friedenburg v. New York State Dept. of Environmental Conservation, 3 A.D.3d 86 (2003). In Friedenburg the property owner was denied a permit to fill wetlands in order to build a single-family home on a 2.5-acre waterfront parcel. The only use remaining use the property owner had with the denial of the wetlands permit was access rights to the shoreline. The denial of the permit devalued the property from $665,000 to $31,500. The value of the property would have been $50,000 if additional use rights alleged by the government defendant applied, such as the construction of a catwalk or moorage for a houseboat. The New York Supreme Court applied federal constitutional takings case law and ruled that a takings occurred whether the property was valued at $50,000 or $35,000. The Court reasoned that the property owner experienced either a 95% or 92.5% reduction in value and that in either case the reduction was significant. The Court found that the public benefit conferred by wetlands protection did not justify the taking of public property. It noted that if there are no direct reciprocal benefits to the property owner, the property owner should not bear the burden of providing those benefits to the general public. Due to the significant loss in value and the lack of reciprocity in the benefits of wetland protection, the Court found a takings. Other opinions have reached similar results. In Baycrest Manor, Inc. v. City of N.Y. (In re New Creek Bluebelt, Phase 3), 2017 N.Y. Slip Op. 7994 (N.Y. App. Div. 2017), the court found it “likely” in assessing the value of property in a condemnation action that a property owner would have prevailed in a takings claim solely due to the fact that wetlands regulations reduced the value of the property by 88%. The court made this finding even though the takings claim was based upon an owner who would have purchased the property after adoption of the wetland regulations instead of before (i.e. the owner would have purchased the property knowing that wetland regulations severely limited development potential). The Friedenburg case certainly clarifies that a takings claim based upon wetland and stream buffers regulations is possible, but case law on the subject establishes that it’s very unlikely that Mr. Jurgens’ property has 9 In Presbytery of Seattle v. King County, 114 Wn.2d 320, 331, 787 P.2d 907 (1990) the court outlined the factors involved in a Penn Central analysis for a wetlands takings claim, but then declined to apply them because the applicant had not exhausted his administrative remedies prior to filing suit. The Presbytery case has since been “disavowed” along with dozens of other takings and substantive due process cases by Yim v. City of Seattle, No. 95813-1 (Wash. Nov. 14, 2019). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 17 CAO VARIANCE - 17 been devalued anywhere near what it takes to reach the level of a compensable takings. As summarized in another New York case, taking claims generally involve losses of value exceeding 90% to be successful: “While the United States Supreme Court has eschewed any set formula for determining whether a regulation constitutes a Penn Central taking ( see Tahoe-Sierra Preservation Council, Inc. v Tahoe Regional Planning Agency, 535 US 302, 326; Palazzolo v Rhode Island, 533 US 606, 617), it has also indicated that such a taking requires a diminution in value which is "one step short of complete," citing as an example a 95% diminution in value ( Lucas v South Carolina Coastal Council, 505 US 1003, 1019 n 8 [1992]). The Court has further held that "a mere diminution in the value of property, however serious, is insufficient to demonstrate a taking" ( Concrete Pipe Products of Cal., Inc. v Construction Laborers Pension Trust for Southern Cal, 508 US 602, 645). In making this statement, the Court cited cases in which a significant diminution in value was insufficient to support a Penn Central taking ( see Village of Euclid v Ambler Realty Co., 272 US 365 [approximately 75% diminution in value]; Hadacheck v Sebastian, 239 US 394 [92.5% diminution]). Lower federal courts have likewise rejected Penn Central claims where the diminution in value caused by a regulation approached or exceeded 90% of the pre-regulation value ( see Rith Energy, Inc. v U.S., 270 F3d 1347, 1352, cert denied 536 US 958; Pompa Constr. Corp. v City of Saratoga Springs, 706 F2d 418, 425; William C. Haas Co., Inc. v City County of San Francisco, Cal., 605 F2d 1117, 1120, cert denied 445 US 928, reh denied 446 US 929; cf. Loveladies Harbor, Inc. v U.S., 28 F3d 1171 [ Penn Central taking found for 99.5% loss]). In an opinion adopted by the Federal Circuit, the Federal Court of Claims recently stated: "while courts have struggled with the dichotomy between compensable `partial takings' and noncompensable `mere diminutions,' searching for a threshold beyond which diminution would be indicative of a taking, several Supreme Court decisions suggest that diminutions in value approaching 85 to 90 percent do not necessarily dictate the existence of a taking. This court likewise has generally relied on diminutions well in excess of 85 percent before finding a regulatory taking" ( Brace v United States, 72 Fed CI 337, 357 [2006], affd on op below 250 Fed Appx 359 [Fed Cir 2007]).” Noghrey v. Brookhaven, 48 A.D.3d 529, 531-32 (N.Y. App. Div. 2008). Although takings law in Washington state courts has undergone decades of evolution, there has been only one court opinion that has construed the term “reasonable use” in the context of local development standards. The case on point is Buechel v. Dept. of Ecology, 125 Wn.2d 196, 884 P.2d 910 (1994). In applying the “reasonable use” term, the Buechel court largely used the same factors employed by the US Supreme Court in its Penn Central analysis. In the Buechel case, the applicant requested a shoreline variance to build a home within a shoreline setback along Hood Canal. The Mason County shoreline variance criteria at the time required the applicant to establish that if he complied with shoreline regulations, “….he cannot make any reasonable use of his property.” Without the variance there was no space for a single-family home. The subject lot only had 1,000 square feet of developable space because the rest of the property was submerged. The property was zoned for residential use. The County denied the variance request. The State Supreme Court sustained the County’s denial on the basis that the property could be used for recreational use, such as for a dock or boathouse. In assessing whether recreational use qualified as a reasonable use, the Buechel court noted that “[t]he size, location, and physical attributes of a piece of property are relevant when deciding what is a reasonable use of a particular parcel of land .” 125 Wn.2d at 208. Other factors the Buechel court found relevant was investment backed expectations, including the zoning of the property at the time of purchase. Id. In the Buechel case the size of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 18 CAO VARIANCE - 18 developable portion of the property was small, the property had significant regulatory and physical constraints at the time of purchase and the use of many surrounding waterfront properties was limited to recreational use. For all these reasons, the Court determined that recreational use was a reasonable use of the property and, therefore, the applicant was not denied all reasona ble use because he wasn’t allowed to build a home. Applying the reasonable use factors outlined above, there is no basis to conclude that the NGPE tracts recommended by staff would deprive Mr. Jurgens of all reasonable use of his property. As outlined in Finding of Fact No. 5, the NGPE tracts recommended by staff restrict use and development of 5,981 square feet of Mr. Jurgens’ lot, which is 28% of his lot area. Based upon a pro-rata assessment of the market value impact on Mr. Jurgen’s as an unimproved lot, the impact of the critical area regulations reduces property value by less than a third, which is nowhere near the 85-90% devaluation typically associated with a takings. Of course, as an improved lot the reduction in market value is even less. In terms of market value impact, the NGPE tracts do not deprive Mr. Jurgens of all reasonable use of his property. Applying the Buechel factors in more detail leads to the same conclusion. As determined in Finding of Fact No. 5, Mr. Jurgens has 10,453 square feet of space on his lot available for usable yard space. As shown in the aerial photograph on the first page of the reasonable use decision, Ex. 2, this amount of yard space is larger than the size of most of the lots that surround him and is certainly enough space for outdoor activities associated with single-family lots. In terms of investment-backed expectations, as previously noted the market value impact of the critical area buffers is moderate and Mr. Jurgens purchased his lot in 2018, well after his lot was encumbered by the buffers. The countervailing public interest in protecting the critical areas is well documented. The City adopted its critical area buffers in response to the mandate from the Washington State Growth Management Act, Chapter 36.70A RCW. The critical area buffers were required to be based upon “best available science,” which is based upon extensive and highly credible scientific studies assessing what measures must be taken to protect critical areas. See 36.70A.172; Part Nine, WAC 365-195. A comparison of the buffers adopted by the City of Renton to those adopted in other jurisdictions reveals that the buffers are consistent with what most local jurisdictions have found necessary to protect critical areas. On balance, there is a well- documented and state mandated need for protection of critical areas and the impacts of that protection upon Mr. Jurgens use of his property and investment backed expectations is moderate at worst. For these reasons, the NGPE tracts and associated fencing required by staff are not found to deprive Mr. Jurgens of all reasonable use of his property. 10. Building Setback Necessary for Reasonable Use. A building setback along the north side of Mr. Jurgens’ home is necessary for reasonable use of his property. In his appeal, Mr. Jurgens identifies that the wetland NGPE with its associated fencing would directly abut the north side of his proposed addition, preventing him from exterior access to the northern exterior of his home. As determined in Conclusion of Law No. 9 above, the wetlands NGPE would have only modest impact on the fair market value of Mr. Jurgens’ property. However, depriving Mr. Jurgens of the basic right to access the exterior of his home for maintenance and repairs would not be consistent with the use rights enjoyed by his neighbors. As shown in the dimensions depicted in Ex. 5 to Mr. Jurgens’ appeal, his addition will only be 6’ 7” from the northern property line. The area between the addition and the north property line totals only 223 feet, which is about 20% of the area within the staff recommended wetlands NGPE and a much smaller fraction of the entire buffer 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 19 CAO VARIANCE - 19 (including off-site) protecting the wetland. Historical imagery, notably the aerial photograph attached to Mr. Jurgens’ wetlands study, shows the area as largely cleared of any vegetation so impacts to wetland functions would be marginal if Mr. Jurgens is allowed access to this area. Further, it would only be a building setback, so no structures could be built in this area, thereby reducing the potential for any significant wetland impacts. Given the minor nature of the impacts associated with authorizing a building setback as requested by Mr. Jurgens and the relatively significant impact on his usage rights if this access is denied, it is determined that the wetland NGPE tract along the northern side of Mr. Jurgens’ proposed addition would deny him the reasonable use of his property. To avoid fragmentation of the NGPE, which would unreasonably interfere with daily use of the property, the western edge of the NGPE tract should terminate along the eastern side of the proposed addition. This will remove roughly another 100 square feet of NGPE tract located west of the proposed addition, but for reasons previously identified, this is still a small reduction compared to the total buffer area protecting the wetland. The aerial photograph attached to the wetlands study show that a small portion of the wetland itself as opposed to its buffer may encroach onto the area between the addition and the northern property line on the eastern side. The wetlands NGPE and associated fencing should cover this area. 11. Mitigation Analysis Required. As outlined in Finding of Fact No. 9, there is insufficient evidence in the record to conclude that wetland and stream mitigation, if any, is necessary to mitigate impacts of the proposal. In order to acquire approval of this reasonable use request, Mr. Jurgens must establish that the granting of his request “will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which subject property is situated” and that “the proposed variance is based on consideration of the best available science as described in WAC 365-195-905; or where there is an absence of valid scientific information, the steps in RMC 4-9- 250.F are followed.” See RMC 4-9-250.B.5a and e. In the absence of any direct opinion from a qualified expert addressing either of these reasonable use criteria, it cannot be concluded that they have been met. As noted in Finding of Fact No. 9, given Mr. Altman’s conclusions about wetland and stream impacts, it doesn’t appear that any significant mitigation is necessary, if any at all. To assure compliance with See RMC 4-9-250.B.5a and e, Mr. Jurgens will be required to supplement his report with a direct application of RMC 4-9-250.B.5a and e to evaluate the adequacy of mitigation required by this decision. Any additional mitigation involving restoration and/or installation of vegetation shall be protected by a fenced NGPE. DECISION Mr. Jurgen’s appeal is sustained in part. The conditions of approval for his reasonable use approval are modified as follows: 1. The applicant shall comply with the mitigation measure issued as part of the Determination of Non- Significance – Mitigated threshold decision, dated February 25, 2020. 2. The applicant shall establish a Native Growth Protection Easement that encompasses the entire wetland mitigation area (approx. 1,100 SF) identified as “New Grass” and “New Native Trees and Shrubs” on the Wetlands Mitigation Site Plan (Exhibit 10) located to the east of the proposed addition, in addition to the small amount of wetland encroaching onto the subject property on the northeast side of the addition. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Reasonable Use - 20 CAO VARIANCE - 20 3. The applicant shall install a standard split rail fence with City of Renton standard wetlands signage along the southern edge of the Native Growth Protection Easement in order to protect the proposed new native trees and shrubs. The location of the split rail fence shall be reviewed and approved by the Current Planning Project Manager prior to installation. 4. The applicant shall demonstrate compliance with both the Native Growth Protection Easement and split fence requirement for the wetlands prior to issuance of a Certificate of Occupancy for the addition. The applicant shall establish a Native Growth Protection Easement that encompasses the area including the stream and area east of the stream between the public ROW and stream (apprx. 1,400 SF) identified as “stream mitigation area” on the staff prepared site plan (Exhibit 11). The applicant shall restore the stream to a native state including the removal of any manmade armoring or fill from the stream channel. The restoration shall occur prior the issuance of a Certificate of Occupancy for the add The applicant shall install a standard split rail fence with City of Renton standard stream signage along the perimeter of the Native Growth Protection Easement in order to protect the stream and stream buffer. The location of the split rail fence shall b e reviewed and approved by the Currently Planning Project Manager prior to install. The applicant shall demonstrate compliance with both the Native Growth Protection Easement and split fence requirement for the stream prior to issuance of a Certificate of Occupancy for the addition. 5. The applicant shall supplement his wetlands study with an assessment of the adequacy of the mitigation required by this decision, using best available science to determine whether the required mitigation will ensure that approval of the proposal will result in no net loss in wetland functions and values. Any additional mitigation found necessary to meet this criterion shall be placed within a native growth protection area that complies NGPE fencing standards. The location of the split rail fence shall be reviewed and approved by the Current Planning Project Manager prior to installation. The supplement to the wetlands report shall be written by Mr. Altman or another qualified wetlands expert. DATED this 29th day of June 2020. City of Renton Hearing Examiner Appeal Right and Valuation Notices RMC 4-8-080(G) subject this open-record appeal decision to closed record appeal to the City of Renton City Council. Appeals of the hearing examiner’s decision must be filed with the Renton City Clerk within fourteen (14) calendar days from the issuance of the decision as outlined in RMC 4-8- 110C2. All appeals must be received by the City Clerk’s Office by this deadline and be accompanied by the applicable appeal fee. Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.