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HomeMy WebLinkAboutHEX Amended Decision Cypress Lane Decision Upon Rehearing1 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 PRELIMINARY PLAT - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: Cyprus Lane Preliminary Plat Preliminary Plat and Street Modification LUA21-000287, PP, MOD ) ) ) ) ) ) ) ) ) FINDINGS OF FACT, CONCLUSINS OF LAW AND FINAL DECISION UPON REHEARING SUMMARY The Final Decision of the above-captioned matter issued on November 23, 2022 is re- adopted and remains unchanged, except as supplemented with the information provided in this Final Decision Upon Rehearing. A rehearing was held on January 18, 2022 due to defects in the public notice of hearing for the original hearing held on the plat application on November 23, 2021. The additional testimony provided at the rehearing was primarily focused upon public requests for additional information on the project. The hearing transcript, Appendix A, provides a good outline of the information exchanged at the hearing. In addition to the information requested at the hearing, neighboring property owners also requested that Pasco Ave NE just north of the project site be fully developed as an alternative connection point to the plat. Neighbors also requested that the sewer mains be installed at sufficient depth to avoid the need for grinder pumps for homes to the north. As outlined in the Conclusions of Law below, some accommodation for sewer main depth can be made during the civil review of the project so long as the depth is a proportionate response to the needs created by the proposal. As further outlined in the Conclusions of Law, the City is statutorily and constitutionally barred from requiring the Applicant to make off-site improvements to Pasco Ave NE. 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 PRELIMINARY PLAT - 2 Exhibits Exhibits 1-19 identified in the exhibit list presented by City staff at the rehearing were admitted into the record. The following documents were also admitted during the rehearing: Exhibit 20: Public rehearing notice. Exhibit 21: November 23, 2021 Final Decision Exhibit 22: Recording of November 23, 2021 hearing. Testimony A computer-generated transcript of the hearing has been prepared to provide an overview of the hearing testimony. The transcript is provided for informational purposes only as Appendix A. Findings of Fact 1. Findings Adopted by Reference. Findings of Fact No. 1-5 of the November 23, 2021 Final Decision are adopted by reference as if set forth in full. 2. Setting of Rehearing. A rehearing was held on the subject preliminary plat application on January 18, 2022. The rehearing was ordered by the hearing examiner by email order dated December 15, 2021 due to a defect in the hearing notice for the November 23, 2021 hearing. Ex. 17. Specifically, the City’s address program erroneously only provided addresses for properties within 30 feet of the project site as opposed to 300 feet. Id. The November 23, 2021 Final Decision was also vacated in the same email order. Id. 3. Rehearing Testimony. As outlined in the Summary section of this Final Decision Upon Rehearing, comments made at the rehearing were primarily focused upon inquiries about road connectivity, availability of sewer connections and tree protection. Requests were limited to ensuring that the proposed sewer main extensions were deep enough to facilitate gravity flow to properties north of the project site and also for exterior extension of Pasco Ave NE to connect to the plat’s interior road network. 4. Sewer Main Depth. In setting the required depth for sewer mains, City public works staff consider a multitude of factors that involves a balancing of the expense to the developer and the benefits to the public. Those factors were outlined in the following exchange between the Hearing Examiner and Mr. Janders (Renton public works) during the rehearing: Hearing Examiner: Okay. And Mr. Janders, a question I have for you then, I mean, do the city's engineering standards specify how you evaluate required depth? Is there anything specific or is it one of those things that's left to engineering judgment? 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 PRELIMINARY PLAT - 3 Mr. Janders: So our side sewers and sewer stubs do have requirements for depth. I believe it's three feet minimum at property lines. The sewer main, I would have to go take a look back. I don't have that off the top of my head. It is pretty typical for standard. It is gravity main, but individual grinder pumps are a necessity on a lot of lots when depth becomes too... It's just not attainable. Hearing Examiner: How's the decision made if you go deeper then? Are you weighing the cost of goin g deeper versus the cost of grinder pumps? Is that the kind of analysis that goes into it or I mean, what are the factors that are considered there? Mr. Janders: That would be one that could be considered. Maintainability of systems as well needs to be considered for maintenance crews to be able to access service and maintain the lines as well as material, ensuring that the materials are suitable for various depths. So I think what is being questioned is an individual lot where full engineering has not been done. The proposal does not take into account the elevations of all properties to the north at this point, is this a one off property? Is it the entirety of the block? Mr. Janders: And the ability to use grinder pumps though is also considered. And grinder pumps, like I have said, are used and it is standard practice to use them where necessary at individual lots when gravity cannot be achieved. I think further assessment with the developer would be something to look into as to what would the depth be th at is being requested. 5. Pasco Ave NE: According to the uncontested testimony of Jill Ding at rehearing, Pasco Ave is unimproved along the frontage of two adjoining lots that collectively adjoin the north property line of the project site. Conclusions of Law 1. Conclusions adopted by reference. Conclusions of Law No. 1-29 of the November 23, 2021 Final Decision are adopted by reference as if set forth in full. 2. Sewer Main Depth. The depth required by the City for the proposed sewer main will be appropriately ascertained during civil review of the proposal by balancing the factors identified in Finding of Fact No. 4. As noted in Finding of Fact No. 3, concerns were expressed at the hearing about ensuring that the sewer main be installed at a depth sufficient to facilitate gravity flow from neighboring properties. 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 PRELIMINARY PLAT - 4 Unfortunately, the City likely cannot make the developer incur significant additional costs solely for the benefit of other property owners. There is no direct case law on this issue for utility lines, but the principle is clearly laid out in road circulation cases. As a matter of constitutional due process and takings law, developers cannot be required to dedicate land to create road connections solely for the benefit of pre-existing landlocked properties since the developer has not created and therefore is not responsible for that condition. See, e.g., Luxembourg Group v. Snohomish County, 76 Wn. App. 502, review denied, 127 Wn.2d 1005 (1995). Similarly, the Applicant cannot be made to bear substantial added expense in increasing sewer main depth solely for the benefit of other property owners. As noted in the case law above, the road connections cannot be required “solely” for the benefit of land locked parcels. Road connections can often be justified on the basis that th e developer also benefits from the road connection by improved road connectivity and emergency access. Arguably, some reciprocity is also inherent in sewer main connection improvements directed at facilitating connections with neighboring properties. Oversizing mains and increased depth requirements can be justified on the basis that the developer benefits from these requirements being previously imposed upon other property owners upstream from the project. However, case law also imposes a proportionality requirement on project mitigation. A city is barred by the takings clause from requiring a developer to mitigate more than its own proportionate share of impacts. See Dolan v. City of Tigard, 512 US 374 (1987); RCW 82.02.020. Consequently, a developer could not be required to incur an exorbitant amount of extra expense to help neighbors avoid the cost of grinder pumps. The factors the City uses to consider required depth during civil review, as described in Finding of Fact No. 4, adequately address the proportionality requirements that likely apply to mainline depth requirements. No specific requirements for depth can be imposed by this decision because the record is not developed enough to make that determination1. 3. Pasco Avenue Connection. There is no basis for requiring off-site street improvements to Pasco Ave NE. At the rehearing, one neighbor requested that off-site improvements be used to connect Pasco Ave NE to the north side of the project in the unimproved road area identified in Finding of Fact No. 5. As determined in the November 23, 2021 decision, the plat meets all plat design requirements as they apply to the preliminary plat conceptual stage of development review. The plat already includes two access points. There is nothing in the record that establishes that an additional access point is necessary or warranted for the project. In the absence of any evidence establishing a need for the third road connection, no such additional connection can be required. See, e.g., Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685, 49 P .3d 860 (2002)(record must contain 1 The City has the burden of proof in supporting the need for mitigation of development impacts. See Isla Verde Int'l Holdings, Inc. v. City of Camas , 146 Wash.2d 740, 761 (2002); RCW 82.02.020. The City has not presented any set of facts supporting a requirement for a sewer main depth, since the City conducts that analysis during the civil review of the preliminary plat. 761 (2002). 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 PRELIMINARY PLAT - 5 substantial evidence that subdivision will increase traffic along adjoining road within no direct access to require frontage improvements). DECISION The Final Decision of the above-captioned matter issued November 23, 2022 is re-adopted and remains unchanged, except as supplemented with the information provided in this Final Decision Upon Rehearing. DATED this 10th day of February, 20222. City of Renton Hearing Examiner Appeal Right and Valuation Notices RMC 4-8-080(G) classifies the application(s) subject to this decision as Type III applications subject to closed record appeal to the City of Renton City Council. Appeals of the hearing examiner’s decision must be filed within fourteen (14) calendar days from the date of the decision. A request for reconsideration to the hearing examiner may also be filed within this 14-day appeal period. Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation. 2 The Decision has been revised to correct a minor scrivener’s error in Conclusion of Law No. 2. The first sentence of the second paragraph of that conclusion has been revised as follows: As noted in Finding of Fact No. 3, concerns were expressed at the hearing about ensuring that the sewer water main be installed at a depth sufficient to facilitate gravity flow from to neighboring properties. Since this correction does not materially change the substance of the decision it should not be construed as changing the original issuance date of this decision for purposes of appeal.