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HomeMy WebLinkAboutHorne Rezone RequestDenis Law Mayor November S, 2011 Tom Redding Department of Community and Economic Development Alex Pietsch, Administrator Encompass Engineering and Surveying 165 NE Juniper St, Ste 201 Issaquah, WA 9S027 SUBJECT: Hearing Examiner Recommendation Horne Rezone, LUAll-023, ECF, R Dear Mr. Redding: This letter is to inform you that the date of decision issuance by the City of Renton Hearing Examiner on the above-captioned project is November 1, 2011. A copy of the Hearing Examiner decision is enclosed. NOTICE of RIGHTof RECONSIDERATION "Any interested person feeling that the recommendation of .the Examiner is based on an erroneous procedure, errors· of law or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the. prior hearing may" file a request/motion for reconsideration in writing on or before 5:00 p.m., November 22, 2011. The [request/motion for reconsideration] shall set forth the specific errors relied upon. [RMC 4-8-100G41 Any request/motion for reconsideration shall be addressed to the Renton Hearing Examiner and filed with the City Clerk. See RMC 4-S-100G4and RMC 4-S-110ES for additional information andrequirements regarding reconsideration. NOTICE of RIGHT of APPEAL This recommendation becomes final and conclusive as of the fifteenth calendar day after the date of issuance of this letter unless reconsideration is timely requested. If reconsideration ,is timely .requested, the Examiner's order granting or denying reconsideration becomes the final and conclusive. recommendation for the City. The Examiner's final recommendation is subject to the right of the applicant, City, or a party of record with standing, as provided .in RMC 4-S-110Fl, to file an appeal with the City Council in accordance with the procedures of RMC 4-S-110F. Any appeal must be filed in writing on or before 5:00 p.m., November 22, 2011. See RMC 4-S-110E9 and RMC 4- S-110F for additional information and requirements regarding appeals to the City Council. Renton City Hall • 1055 South Grady Way • Renton, Washington 98057, • rentonwa~gov If you have any questions regarding this matter, ple~secall me at (425)430'7219. Sincerely, . . . ~ ... ~~ .. Roca Timmons . ASS' date Planner '. '., ' .. cc: Newfourth' LLC /Owrler Ed Horne / Applicenl Parties. of Record . File.No, LUAll-023 , Enclosure I CrTY OF RENTON NOV 03 2011 RECEIVED CITY CLERK'S OFFICE BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON Emily Terrell, Hearing Examiner Pro Tem RE: Home Rezone Request Rezone LUA 11-023, ECF FlNDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION .. INTRODUCTION The Applicant has requested a rezone to change approximately 7.3 7 acres from R-I (Residential I dwelling unit per acre) to R -4 (Residential 4 dwelling units per acre). The Examiner recommends approval of the rezone request. ORAL TESTIMONY Rocale Tinlmons, Planner for the City of Renton, described the project and presented the Staff Report. Ms. Timmons presented this application as an application for rezone . without the need for Comprehensive Plan Amendment. Ms. Tinlmons noted the rezone requests affected 12 parcels, encompassing nearly 7.4 acres. She further noted there are eight existing homes on site which will stay. To the west of the subject property is Greene Creek. North of the subject property and beyond the Stonegate subdivision is May Creek. Ms. Timmons reported the application was submitted July 2011. A SEPA DNS was issued on July 22,2011. There were no appeals. Ms. Timmons stated the property had been annexed into the City of Renton in 2009 from unincorporated King County. In 1997, the property was pre-zoned with an R-I zoning designation. When the property was annexed into the City, its pre-zoning designation remained the same. Ms. Tlinmons reported the areas north and west of the property are zoned Residential I, with one dwelling unit per acre. The area located to the east of the property in unincorporated King County is zoned rural RA5 and Rural R1OA, allowing for one dwelling unit per 5 acres and one dwelling unit per 10 acres, respectively. Properties to the south of the subject are also in unincorporated King County with an R-4 zoning designation, allowing for four dwelling units per acre to be developed. Ms. Timmons stated the City Staff recommends a denial of the rezone request for four reasons. Ms. Timmons noted the City created the R -I zone and other low density zones to offer a diversity of housing options and also to offer a transition between the city center and rural areas in King County. Ms. Timmons stated the City Staff felt the Rezone p. 1 Findings, Conclusions and Decision Applicant had failed to demonstrate compliance with the Comprehensive Plan. The curreut zone was placed on this property for resource protection, and Staff felt the Applicant failed to prove the rezone would not deteriorate environmental quality in the immediate and downstream areas. Furthermore, Ms. Timmons stated the May Creek Drainage Plan recommends keeping the zone in its current very low density ievel to prevent further downstream flooding incidents. Finally, Ms. Timmons stated the rezone is inconsistent with zoning and existing developed densities. Ms. Timmons felt that any of these four were enough singly to recommend denial of the application. The Applicant was represeuted by Duana Kolouskova of the fum Johns, Monroe, Mitsunaga, Kolouskova, PLLC. Ms. Kolouskova started by referencing a Memorandum of Authorities in support of the rezone (Exhibit 6). She explained this MOA was a compilation of her legal review of the issues surrounding the application and an expert on-site analysis. She then noted that the City's SEPA DNS was not appealed. She noted that the Applicant has provided a Level I Downstream Analysis and a critical areas review of the subject site. Ms. Kolouskova stated the Applicant felt the City Staff analysis was incorrect on all counts. She noted comment from the public that there is concern this is a spot zoning. She noted the Applicant disagreed with this assessment arguing the rezone is consistent with the current built densities in the area and is in compliance with Comprehensive Plan policies. She further stated the property's current R-l designation is inconsistent with the physical characteristics and surrounding development of the subject site. Further, she stated the 1996 pre-zoning discussion was arbitrary and could have resulted in either an R-l or R-4 zoning designation. She also noted it is possible to both rezone the property and meet the May Creek Basin Action Plan recommendations. The Applicant, Ed Home, provided a PowerPoint presentation (Exhibit 8). Mr. Home has lived in the area for 27 years. He is a licensed professional engineer working in research and development at Boeing. Mr. Home stated approximately 113 of the rezone area was already developed at the equivalent to R -4 densities. He also noted the rezone request did not include the Stonegate utilities easement which bisects the requested rezone area. Mr. Home stated the rezone would be in the public interest by providing sidewalks, lowering crime, increasing the tax base, removing blight, providing short term jobs, increasing property values in the nearby area, and providing connections to the public sewer system. Mr. Home also noted the new surface water regulations require treatment to better than existing conditions and, in fact, to pre-developed forested conditions. He also noted the rezone would protect critical areas. Mr. Home stated that May Creek is separated from the rezone area by an existing development. There is a small Class III wetland and an associated Class IV stream and the southeast comer of the proposed rezone area. The stream, Greene Creek, has a buffer set in 1997. Mr. Home stated Greene Creek was ditched and piped prior to the development of the Stonegate subdivision in 1997. When Stonegate was constructed, the creek was moved back to Rezone p.2 Findings, Conclusions and Decision its original bed, which alleviated flooding Issues that had been caused by the alteration of its flow. Mr. Home stated Stonegate was platted to a build-out density equivalent to R-5, with the realized density ofR-2 or R-3. He noted development to the south of the rezone area is also at a build-out equivalent to R4. There is also a nearby Urban Separator district which was desigoated in 2001. The Urban Separator desigoation does not cover the proposed rezone area. Mr. Horne stated the properties along the Nile Avenue are already developed to a build-out density equivalent to R4, and therefore the issue of whether the rezone area makes an effective transition zone between the city and the more rural densities in unincorporated King County across Nile Avenue is moot. Finally, Mr. Horne stated the R-l zoning was overlaid on the properties when they had already been substantially built out to an R-4 equivalent density. Chad Allen, a licensed stormwater engineer from Encompass Eugineering and Surveying, testified his firm prepared the application, site plan, and a Level I Downstream Drainage Analysis (Exhibit 6). Mr. Allen stated the developed densities surrounding the rezone area are more consistent with an RA zoning, than an R-J zoning. He further stated, the Greene Creek buffer is wider than what would currently be required by the critical areas ordinance. Mr. Allen stated he felt the application was in compliance with the City's Comprehensive Plan policies. John Altman, a wetland ecologist with Altman, Oliver Associates, LLC., stated his firm had prepared a September 2011 on-site reconnaissance and had submitted letters to the file (Exhibit 9). He noted there are a Class III wetland and a Class IV stream at the southwest comer of the site. He stated there are very few critical areas on-site. He further noted the site is not separated by critical areas and is not limited by critical areas in tenus of access to the property or development continuity. Mr. Altman further stated May Creek is off-site and separated by a major roadway and several houses from the proposed rezone area He stated there would be no impact on the . creek or its buffers from the proposed rezone. In tenus of Greene Creek, Mr. Altman stated the wetland buffer would intrude less than 10 feet into the proposed rezone area. Bill Kombol has an ownership interest in the proposed rezone area He spoke in support of the application, noting the property is more closely suited to the defmition of an R A rather than an R -1 zone. He noted the potential benefits from a large subdivision stonnwater system rather than through piecemeal deVelopment He also stated he felt the application was in compliance with Comprehensive Plan policies LU-I47, LU-I5I, LU-I46 and LU-I53: Steve Beck is the manager of NewfOlnth, LLC. The company has an ownership interest in properties within the rezone. Mr. Beck is a real estate agent. He spoke in support of the application. He noted the potential for improved safety, stormwater detention and treatment, and sidewalks. Rezone p.3 Findings, Conclusions and Decision Bob Wilson also spoke in support ofthe application. Madonna Messina owns property abutting Greene Creek. She spoke in opposition to the rezone, stating she liked the rural nature of the area. She also stated concerns regarding safety, stonnwater management and environmental protection. Deborah Rogers of the Stonegate subdivision stated the Stonegate subdivision plat was originally proposed for twice as many homes as are currently there. She expressed concerns about protection of the creeks and stormwater management. Bruce Christopherson noted all but one home in the rezone area already has access to the public sewer line. He expressed coucerns about fish and wildlife habitat. He stated he felt this was not an appropriate transition zone. He noted that Stonegate is built to a density of 1.38 dulac. The Applicant had stated that Stonegate was built to a density closer to 2-3 dulac, but the Applicant failed to account for open space requirements within the Stonegate plat. Dan Larkin stated he opposed the application because he likes the rural nature of the area and is concerned about protection of the ecosystem surrounding the creeks. Richard Wilson is an attorney with the firm Hillis, Clark, Martin and Peterson, PS. Mr. Wilson was retained by the Stonegate Homeowners Association. Mr. Wilson referenced a letter he submitted to the record (Exhibit 3G). Mr. Wilson stated he felt the application represented an illegal spot zone. He noted without the inclusion of Tract I in the rezone application, the effect of the rezone would be to create two islands ofR-4 zoning surrounded by R-I zoning. He stated the use was very different from existing uses and not in accordance with the Comprehensive Plan. Mr. Wilson stated the decision to put this area in the'R-J zone was not arbitrary. The Council chose to retain the pre-zoning designation in 2009 when they annexed the property. He further stated he believed the application did not meet the public interest. Mr. Wilson quoted section 3.30 of the May Creek Basin Plan and stated he felt any up-zoning in this area would be detrimental based on the history of flooding downstream. Mr. Wilson stated the Stonegate Homeowners Association felt the existing zoning is appropriate. He further stated the Hearing Examiner must give deference to the Staff opinion, especially with respect to the Comprehensive Plan. Finally, Mr. Wilson noted there is no GMA requirement for further density in this area. In rebuttal, Ms. Tinunons stated the Applicant hasn't demonstrated the rezone serves the public interest. She reiterated the Staff opinion that the rezone does not meet the goals and policies of the Comprehensive Plan. She also stated there had been no , material change in circumstance since the last area-wide rezone. She again stated she felt the application created a spot zone. She also stated the rezone area does make an adequate transition zone going from east to west and lower to higher densities. Rezone p.4 Findings, Conclusions and Decision Ms. Timmons entered Exhibit 13 which is the City of Renton Resolution 3506 adopting the May Creek Basin Plan's reconunendations and creating an interlocal agreement for its execution. Upon questioning from the Heariug Examiner, Ms. Timmous stated she was concerned about impacts to critical areas even given the new stonnwater standards. She further stated the interlocal agreement is still current and needed. Ms. Timmons entered Exhibit 14, Renton Ordinance 4667 for the May Valley rezone in 1997. In reference to how the zoning designation was created, she noted the Ordinance is the regulatory mechanism setting the zoning for the area notwithstanding any discussion that led to its adoption. Ms. Timmons also entered Exhibit 15 into the record. Exhibit 15 is the staff report to the Planning Conunission on an area-wide Comprehensive Plan land use review in 2005. This land use review was prompted by a Growth Management Hearing's Board decision related to minimum residential densities, the so-called nb~ight line". Therefore, this area was considered in the last area-wide rezone review. The Planning Commission did not choose to recommend a change from the R -I zoning in this area to the City Council. Also upon rebuttal, Mr. Allen stated there had been a change in circumstance since the last area-wide zone review in the fonn of new stormwater standards. The 2009 standards are far superior to the 1999 standards that were in place at the time of the 2001 May Creek drainage plan. Mr. Allen stated he felt stonnwater impacts could be fully mitigated under the new stonnwater codes. EXillBITS All exhibits listed in the Exhibit List on Page 2 of the staff report, dated September 13, 2011, are admitted. In the addition, the following exhibits were admitted during the hearing on this matter: Exhibit 5A-H: Exhibit 6: Exhibit 7: Exhibit 8: Exhibit 9; Exhibit 10; Rezone Public Comment Letters A; Prellwitz B; Schwartzenberger C: Williams and Schwartzenberger D: Taylor E;Kombol F; Mackay G; Wilson H;KomboJ Memorandum of Authorities in Support of Rezone, October 17, 2011 Application Narrative, January 18, 2011 Plat Description and Application Summary for Home Rezone Request, Ed Home Letter from Jobn Altman, September 13, 2011 Letter from Robert Wilson, undated p.5 Findings, Conclusions and Decision Exhibit 11: Exhibit 12: Exhibit 13: Exhibit 14: Exhibit 15: Procedural: Map showing Rezone Area and Stonegate Plat Open Space Phoenix Development v. City a/Woodinville decision, June 2011 City of Renton, Washington Resolution 3506 and Renton City Council meeting minutes, May 21, 2001 City of Renton, Washington Ordinance 4667, June 2,1997 Planning Commission rezone analysis discussion, September 7, 2005. FINDINGS OF FACT 1. Applicant. The Applicant is Newfourth, LLC. 2. Hearing. The Hearing Examiner conducted a hearing on the application at 1 :00 p.m. at Renton City Hall in the Council Chambers on October 18,2011. Substantive: 3. SiteIProoosal Description. The Applicant has requested a rezone to change approximately 7.37 acres from R-1 Residential to R-4 Residential at the intersection of 148th Ave. SE (Nile Avenue) and NE 26th St. in the City of Renton. The Comprehensive Plan designation is Residential Low Density. The R-4 zoning designation is consistent with the uses contemplated in the Comprehensive Plan's Residential Low Density use designation. The rezone area comprises 12 subject parcels with eight existing homes. The remaining four parcels are vacant. The proposed rezone area was a part of a larger 74 acre pre-zone. The May Valley pre-zone Phase 1 in 1996 (adopted by Ordinance 4667 in 1997), pre-zoned the property Residential Idulac. The subject parcels were annexed into the City in May of 2009 and maintained their pre-zoned R-1 designation. 4. Characteristics of the Area. Properties surrounding the rezone area are either vacant or developed single family residences. Properties to the north and west are located within the City and are zoned R-1. Properties the south are located within unincorporated King County and are zoned R-4. However these properties are pre- zoned R-1 by the City should they annex. Properties to the east are located opposite the Urban Growth Boundary and are currently zoned RA5 with one residential unit per five acres or RAlO with one residential unit per 10 acres in the unincorporated County. There are no critical areas on-site. There is a Class N stream (Greene Creek) and an associated Class III wetland off-site proximal to the southeast corner of the site. May Creek is located to the north of the site beyond existing residential development and open space. The property is located within the May Creek Drainage Basin. Rezone p.6 Findings, Conclusions and Decision 5. Adverse Impacts. Members of the public testified they were concerned that their properties would suffer material damage from the rezone in the fonn of a loss of the existing peaceful and bucolic natural surroundings, potential stonnwater and environmental impacts, potentially higher crime, potentially lower property values, and the potential for more traffic. Given the size of the rezone at less than 8 acres and the surrounding development density, the proportion of increased traffic related to the rezone is relatively minor. Expert testimony suggests potential stonnwater and environmental impacts can be fully mitigated. As no specific development project is currently proposed, issues related to future development including the type of homes, income range of potential new residents, or any other information related to new development cannot be assessed at this time and there is nothing in the record to suggest that the City's permitting review processes would not be able to fully mitigate all project specific impacts. There are no material adverse impacts discernable from the record. Additionally, the SEPA DNS issued on July 18, 201 I was not appealed. The Examiner concludes, as evidenced by the DNS, there are no potential adverse impacts if the proposed rezone is granted. 6. Impacts to Critical Areas. As noted on page 4 of the Staff Report, there are no critical areas on-site. There are off-site critical areas. Expert testimony stated approximately 10 feet of the off-site critical area buffer would impact the subject site. The 200 I May Creek Basin Action Plan provides recommendations for protection of the May Creek Drainage Basin. These recommendations relate to development density and also to how stormwater management is treated. Specifically, the Basin Plan (page 3~29) states, "in areas of the basin draining to May Creek or any of its tributaries upstream of the Coal Creek Parkway bridge, existing zoning densities (including adopted pre-zoning for unincorporated areas to be annexed) should not be increased unless a qualified hydrologic analysis demonstrates that stormwater runoff peaks and volumes can be fully mitigated to pre-developed conditions," (Exhibit 4). Since the adoption of the Action Plan, stormwater regulations have changed considerably. The Action Plan was created when the 1999 King County Surface Water regulations were in place. In 2009, King County adopted new stormwater regulations that require, amongst other things, stormwater treatment and management to pre-developed forested conditions. In expert testimony, Chad Allen stated his company had performed the hydraulic analysis contemplated in the Action Plan and determined that stormwater runoff peaks and volumes could be fully mitigated to pre- developed conditions using the Level 2 flow control criteria in the 2009 King County Surface Water Design Manual (Exhibit 6). The City's Critical AreiJS Ordinance ("CAO") prescribes buffers for critical areas, including streams and wetlands. As required by the Growth Management Act, the buffers and other CAO protective measures are based upon best available science to fully protect critical areas from the adverse impacts of development. Prior to adoption of the 2009 stormwater regulations, the May Creek Basin Action Plan provided compelling evidence that the CAO is in fact not adeqnate to protect against the impacts of stormwater runoff. For the reasons identified in the preceding paragraph, the adoption of the 2009 Rezone p. 7 Findings, Conclusions and Decision stonnwater regulations negates the evidentiary valne of that study. Application of the City's Critical Areas Ordinance in conjnnction with the 2009 King County Surface Water regulations will provide adequate protection to both the off-site critical areas and the larger May Creek Drainage Basin. It is recognized that the precedent set by this decision could be used to question all of the City's R -I zoning. However, it should be noted that this decision is based upon the evidence of this record. The Applicant was able to provide compelling expert testimony that the 2009 stormwater regulations were adequate to protect critical areas. There was no evidence to the contrary_Clearly, in futore rezone requests if the City or other parties are able to produce evidence that lower densities are still necessary to protect critical areas, the resulting recommendation could well change. CONCLUSIONS OF LAW Procedural: 1. Authority of Hearing Examiner. RMC 4-9-1 SOD provides that the Hearing Examiner shall make recommendations on rezones that do not require a comprehensive plan amendment. The proposed rezone is consistent with the Comprehensive Plan Land Use Map and as further concluded below the project is otherwise consistent with the City of Renton Comprehensive Plan. Substantive: 2. Zoning Designation. The property is currently zoned R -I Residential. Permit Review Criteria RMC 4-9-180F Decision Criteria for Change of Zone Classification. RMC 4-9-180F(1}. Criteria for Rezones Requiring a Comprehensive Plan Amendment: The followingfindings shall be made: The proposed amendment meets the review criteria in RMC 4-9-020; 3. 020F. RMC 4-9-1 80F requires rezone applications to conform to RMC 4-9- RMC 4-9-020F(2). All applications must meet at least one of the following criteria: a. The request supports the vision embodied in the Comprehensive Plan; or Rezone p.8 Findings, Conclusions and Decision b. The request supports the adopted business plan goals established by the City Council; or c. The request eliminates conflicts with existing elements or policies; or d. The request amends the Comprehensive Plan to accommodate new policy directives of the City Council. 4. RMC 4-9-020F(2) requires applications to support the vision embodied in the Comprehensive Plan, support the adopted business plan goals established by the City Council, eliminate conflicts with existing elements or policies, and/or amend the Comprehensive Plan to accommodate new policy directives of the City CounciL Of these, the only applicable criterion is the support for the vision embodied in the Comprehensive Plan. RCM 4-9-180F(2). Criteria for Rezones Not Requiring Comprehensive Plan Amendment: The Reviewing Official shall make the following findings: d. The rezone meets the review criteria in subsection F 1 of this Section. 5. RMC 4-9-IS0F(2)(d) requires the rezone to meet to review criteria in subsection RMC 4-9-IS0F( 1). RMC 4-9-180F(1)(a). Is consistent with the policies setforth in the Comprehensive Plan; 6. The analysis of specific Comprehensive Plan policies and objectives below will discuss how the application meets the Comprehensive Plan policies and vISIOn. RCM 4-9-180F(1)(b). At least one of the following circumstances applies: i. The property subject to rezone was not specifically considered at the time of the last area land use analysis and area zoning; or if. Since the most recent land use analysis or the area zoning of the subject property, authorized public improvements, permitted private development or other circumstances affecting the subject property have undergone significant and material change. 7. RMC 4-9-IS0F(l)(b) requires one of two circumstances to apply; the first is that the property subject to the rezone was not specifically considered at the time the last area land use analysis and area zoning. The second requirement is that since the most recent land use analysis for the area zoning of the subject property, authorized public improvements, permitted private development or other circumstances affecting the subject property have undergone significant and material change. The first of these criterions is not met because the subject property was Rezone p.9 Findings, Conclusions and Decision considered during the 2005 area-wide land use review in response to the Growth Management Hearings Board decision on minimum residential densities. Development in the area immediately surrounding the subject property has materially changed since the pre-zoning was set in 1997 including the construction of the 53- home Stonegate subdivision to the subject's west and north and the construction of Windstone, a 76-home development located to the south of the subject property which was built out at a realized density of approximately 4 dwelling units per acre. Since the last area-wide zoning review in 2005, there have also been significant improvements to public infrastructure in the form of a sewer line and sewer lift station adjacent to the subject propelty as well as the provision of natural gas lines along the northern border the subject property. Also, in 2009, King County adopted a new stormwater management manual that requires stormwater to be managed to pre- developed, forested conditions. The new stormwater regulations represent a significant change to the way stormwater is managed and treated from the regulations in place at the time of the last area-wide zoning review. RCM 4-9-180F(2). Criteria for Rezones Not Reqniring Comprehensive Plan Amendment: The Reviewing Official shall make the foZlowingjindings: a. The rezone is in the public interest, s. RMC 4-9-ISOF(2)(a) requires the Official to fmd the rezone is in the public interest. Page 4 of the Staff Report states, "the Applicant asserts that the proposed density would only further the existing development densities in the area, which are also in compliance with the Growth Management Act (GMA) ... while the surrounding properties might be developed with a density range comparable to the R- 4 zoning designation, this would not constitute a public interest to further expand the R-4 designation and/or development potential in the additional area," (emphasis added). The Applicant testified the rezone implements the Comprehensive Plan and serves the public interest by promoting urban densities in the Urban Growth Area in accordance with the Growth Management Act. The Applicant also demonstrated the build-out densities in the area aiready approach 4 dwelling units per acre. The Staff Report further stated, "The property will still be surrounded by the City's R- I zoning designation and the properties to the south would are [sic] pre-zoned R-l should they annexed into the city. The subject parcels would also continue to be bisected by an R-J tract." As noted both in the above italicized text, and in the Applicant's response, build-out densities surrounding the subject property are closer to 4 dulac than I dulac in the areas immediately south of the subject properties as well as within 1,000 feet of the subject properties to the west. Though the properties to the subject'S south are pre-zoned R-I, these lots are predominantly build-out at higher Rezone p.l0 Findings, Conclusions and Decision densities. When these properties annex into the City, the majority of them will not meet the R-I pre-zoning designation. The Stonegate development was built at an overall density of 1.38 dulac because of the need to preserve critical areas and open space. However, the lot sizes for home sites within Stonegate average around 15,OOOsf per lot, a realized build-out density of approximately 3 dwelling units per acre for the portions of the plat with developed lots. The Comprehensive Plan views both the R-I and R-4 districts as Low Density Residential. The public interest is not undermined by incompatible adjoining land use designations as asserted in the Staff Report because the zoning designations are highly similar and the realized densities are in fact more comparable with R-4. An issue associated with the public interest criterion is whether the proposed rezOne constitutes an illegal spot zone. The Staff Repolt references the judicial standard for illegal spot zoning from Narrowsview Preservation Association v. City of Tacoma, 84 Wn.2d 416 (1974), in which the court ruled: "We have recently stated that illegal spot zoning is arbitrary and unreasonable zoning action by which a smaller area is singled out of a larger area or district and specially zone for use classification totally different from and inconsistent with the classification of the surrounding land, not in accordance with the comprehensive plan. " The proposed rezone is not arbitrary or unreasonable and it is not inconsistent with the classification of surrounding land. As to consistency of classifications, the R-4 classification is different from the surrounding R -I classification, but its differences are consistent with the Comprehensive Plan. The Renton Comprehensive Plan defines both the R-I Residential zone and the R-4 Residential zone as Residential Low Density Land Use designations. The purpose statement encompassing both zones states this designation is, "appropriate for a range of low intensity residential and employment where land is either constrained by sensitive areas or the City has the opportunity to add larger lot housing stock, at urban densities of four dwelliug units per net acre, to its inventory ... Lands that either do not have significant sensitive areas, or can be adequately protected by the critical areas ordinance, are zoned Residential 4." As determined in Finding of Fact No.6, the Critical Areas Ordinance provides adequate protection to May Creek and the off-site critical areas in conjunction with the 2009 King County Surface Water manuaL Consequently, a rezone to R-4 would be consistent with the Comprehensive Plan. Further, as previously discussed, the R-4 designation would not be incompatible with the surrounding R-I classification given that the actual densities of the surrounding properties are similar to those of the proposal. Given these factors the proposed rezone cannot be considered "totally different" from the surrounding R-I zones and it is certainly not incompatible. While it is true the proposed rezone would be bisected by a lower density zone, the area of Rezone p.ll Findings, Conclusions and Decision the bisection is a 30 foot utility easement which may not be developed in any case. Its presence does not constitute an illegal spot zone. As to whether the rezone could be characterized as arbitrary or unreasonable, the Applicant has amply demonstrated that new stOl111water regulations eliminate the uoderlying rationale for the R-l designation in this area, i.e. protecting critical areas from stOl111water ruo--off. The Applicant has provided a souod policy justification for the rezone and there is nothing in the record that suggests that the rezone would create any corresponding public detriment City Staff stated the Actiou Plan recommendations related to zoning densities must be enforced because the interlocal agreement adopting these recommendations is still in place and therefore must still be needed. Enforcement of the iuterlocal agreement is outside of the jurisdiction of the Hearing Examiner and is not relevant to the rezone criteria. RCM 4-9-180F(2). Criteria for Rezones Not Requiring Comprehensive Plan Amendment: The Reviewing Official shall make the followingfindings: b. The rezone tends to further the preservation and enjoyment of any substantial property rights of the petitioner 9. RMC 4-9-180F(2)(b) requires the Official to determine if the rezone tends to further the preservation and enjoyment of any substantial property rights of the petitioner. Both the Staff and Applicant agree granting the rezone would further the preservation and enjoyment of substantial property rights of the petitioner by increasing the allowable zoning in the area and thereby increasing the development potential of the property. RCM 4-9-180F(2). Criteria for Rezones Not Requiring Comprehensive Plan Amendment: The Reviewing Official shall make the followingfindings: c. The rezone is not materially detrimental to the public welfare of the properties of other persons located in·the vicinity thereof 10. RMC 4-9-I 80F(2)( c) requires the Official to determine if the proposal is materially detrimental to the public welfare of the properties of other persons located in the vicinity of the subject property. Staff argued the proposal would be materially detrimental to the public based on the potential for increased flooding and damage to critical areas in the May Creek Drainage Basin. As discussed above, Staff did not provide conclusive evidence to demonstrate the Applicant's expert testimony is fulse and that the recommendations of the Action Plan cannot be met. Additionally, if the property is rezoned and eventually platted, the City will have the ability to review and Rezone p.12 Findings, Conclusions and Decision approve or deny any site plan for this property based on impacts to critical areas, storrnwater, or any other development regulation within the City code. Concerns related to material damage from the rezone in the form of a loss of the existing peaceful and bucolic natural surroundings, potential stormwater and environmental impacts, potentially higher crime, potentially lower property values, and the potential for more traffic have not been substantiated. Traffic impacts will be relatively minor in proportion to existing traffic. Expert testimony suggests potential storrnwater and environmental impacts can be fully mitigated. As no site plan is currently proposed, issues related to future development including the type of homes, income range of potential new residents, or any other information related to new development cannot be assessed at this time. No substantial evidence was provided to prove the rezone would provide material damage the surrounding property owners. Additionally, the SEPA DNS issued on July 18,2011 was not appealed. Consistency with the Comprehensive Plan. II. Several Comprehensive Plan policies are relevant to the rezone application. City Staff provided an up/down analysis of four Comprehensive Plan policies including LV-51, LV-147, LU-151, and EN-I. In each case, City Staff felt the application had failed consistency requirement with the applicable Comprehensive Plan policy. In their analysis of Comprehensive Plan consistency, Staff referred to their discussions in relation to the rezone criteria. The Applicant discussed Comprehensive Plan consistency for LV-lI, LU-FF, LV-147, LV-148, LU- HH, LV-15l, LV-153, LV-II and LV-157. Each of these policies is discussed in detail below. Comprehensive Plan Policy LU-ll: Minimum density requirements shall be established to ensure that land development practices resulted in average development density in each land use designation sufficient to meet adopted growth targets and create greater efficiency in the provision of urban services. 12. City Staff noted in the Hearing the City of Renton is on track to meet its Buildable Lands requirements under the Growth Management Act. As no further density is required to meet GMA requirements, no action is required related to this Comprehensive Plan Policy. Comprehensive Plan Policy LU-SJ: Zoning should be applied areas for purposes of resource protection, when appropriate, during the annexation process. 13. City Staff stated in the Staff Report (page 6) this Comprehensive Plan objective has not been met. However, this property was annexed with an existing pre- zoning. As stated by Staff in both the Staff Report and the Hearing, the R-l designation was applied, in part, to preserve the existing critical ateas in the May Creek Drainage Basin. The pre-zoning designation was applied to the properties when annexed in May 2009. The question at issue here is not the zoning applied during the Rezone p.13 Findings, Conclusions and Decision annexation process, but whether or not an alternative zoning designation may be applied to the property going forward. The intent of the policy is to provide resource protection, when appropriate. As discussed earlier, the Applicant has provided reasonable evidence that resources may be protected through the application of the City's existing critical areas ordinance and the 2009 King County Surface Water Design Manual in accordance with the recommendations of the 2001 May Creek Basin Action Plan. Comprehensive Plan Policy LU-FF: Manage and planfor high-quality residential growth in Renton and the Potential Annexation Area that supports transit by providing urban densities, promotes efficient land use utilization, and create stable neighborhoods incorporating built-in amenities and natural features. 14. The City of Renton has many zones and development standards that promote the implementation of this policy, This policy is related to citywide issues and is not necessarily applicable to individual lots. As discussed above, the City is meeting its GMA requirements for population growth. No further action is required related to this Comprehensive Plan Policy. Comprehensive Plan Policy LU-147: Adopt urban density of at least four (4) dwelling units per net acre for residential uses except in areas with identified and documented sensitive areas and are areas identified as urban separators. 15. City Staff contend this area should not be rezoned to four dwelling units per net acre because this increased development density would conflict with the recommendations of the May Creek Basin Action Plan. The Applicant noted there are no critical areas on the subject site. The Applicant also notes the property is not included within a designated Urban Separator. The Action Plan allows for the contemplation of increased residential densities in circumstances where a qualified hydrologic analysis demonstrates that stonnwater can be treated and managed to pre- developed conditions. The 2009 King County Surface Water Design Manual requires any stormwater treatment facility to treat stonnwater to pre-developed, forested conditions. The Applicant's expert testimony suggests all potential stormwater and environmental impacts can be fully mitigated. The site does not contain critical areas, impacts to stormwater and critical areas can be fully mitigated, and the area is not a designated urban separator, therefore rezoning the property to allow for four dwelling units per net acre for residential uses is appropriate. This Comprehensive Plan Policy is met. Comprehensive Plan Policy LU-148: Encourage larger lot single-Jamily development in areas providing a transition to the Urban Growth Boundary and King County Rural Designation. The City should discourage more intensive platting patterns in these areas. 16. The Urban Growth Boundary is located along Nile Avenue on the subject property's eastern boundary. ill testimony, City Staff stated the rezone area is an Rezone p.14 Findings, Conclusions and Decision adequate transition zone going from east to west and lower to higher densities at its present zoning classification. However, both the R-l and R-4 districts are classified in the Comprehensive Plan as Residential Low Density Land Use districts. RMC 4-2- ·020D states, "The R-4 designation serves as a transition between rural designation zones and higher density residential zones. It is intended as an intermediate lower density residential zone." RMC 4-2-020C states, the R-I zone is "intended to protect critical areas, provide separation between neighboring jurisdictions through designation of urban separators as adopted by the Countywide Policies, and prohibit the development of incompatible uses that may be detrimental to the residential or naturaI environment." As noted above, there are no critical areas on the subject site and it is not part of the designated Urban Separator. Therefore, the R -4 zoning designation meets the intent of the Comprehensive Plan Policy by providing a transition to the Urban Growth Boundary and the King County Rural Designation. Comprehensive Plan Policy LU-HH: Provide for a range of lifostyles and appropriate uses adjacent to and compatible with urban development in areas of the City and Potential Annexation Area constrained by extensive natural features, providing urban separators, and/or providing a transition to Rural Designations within King County. 17. As noted above for Policy LU-14S, the subject site is not constrained by extensive natural features and is not designated as an urban separator. It does provide an adequate transition to Rural Designations within King County. As both the R-l and R -4 zones are designated Low Density Residential districts in the Comprehensive Plan, either zoning designation will meet the criteria of compatibility with this Comprehensive Plan Policy. Comprehensive Plan Policy LU-151: Base development density should range from one home per 10 acres to one home per acre on Residential Low Density (RLD) designated land with significant environmental constraints, including but not limited to: . steep slopes, erosion hazard [sic], floodplains, and wetlands or where the area is in a designated Urban Separator. Density should be a maximum of 4 dulnet acre on portions of the Residential Low Density land where these constraints are not extensive and urban densities are appropriate except as provided in Policy LU-134a. IS. The subject property does not contain critical areas and is not in a designated Urban Separator. It is designated as Residential Low Density land in the Comprehensive Plan. Since 2004, there has been no Comprehensive Plan Policy LU- 134a. The Policy specifically states that density should be a maximum of four dwelling units per net acre. Either the R -lor the R -4 zone would meet the intent this Comprehensive Plan policy. Comprehensive Plan Policy LU-153: For the purposes of mapping, the prevalence of significant environmental constraints should be intelpreted to mean critical areas encumber a significant percentage of the gross area; developable R"zone p. 15 Findings, Conclusions and Decision areas are separated from one another by pervasive critical areas or occur on isolated portions of the site and access limitations exist; the location of the sensitive areas result in a noncontiguous development pattern; the area is a designated urban separator; or application of the Critical Areas Ordinance setbackslbuffirs and/or net density definition would create a situation where the allowable density could not be accommodated on the remaining net developable area witlwut modifications or variances to other standards. 19. This policy does not apply to the subject property as there are no critical areas on site. Comprehensive Plan Policy LU-]J: Designate Residential 4 du/acre zoning in those portions of the RLD designation appropriate for urban levels of development by providing suitable e11Vironments for suburban and/or estate style, single-family residenti'al dwellings. 20. The Applicant argues the subject property is a suitable environment for suburban and/or estate style single-family residential dwellings. As there are no critical areas on-site, and there is sufficient acreage to support suburban and/or estate style single-family residential dwellings, an R-4 designation in this area would meet the criteria of this Comprehensive Plan Policy. Comprehensive Plan Policy LU-I57: Within the Residential 4 du/acre zoned area allow a maximum density of four units per net acre to encourage larger lot development and increase the supply of upper income housing consistent with the City's Housing Element. 21. The subject site is not currently zoned R-4. The R-4 zoning designation already allows a maximum density of four units per net acre. There is no site plan application currently before the Examiner; therefore, there is no way to ascertain what style of housing at what income level might be constructed on any lot, with any zoning. This Comprehensive Plan Policy does not apply. Comprehensive Plan Policy EN-I: Manage water resources for multiple uses including recreation, fish and wildlife, flood protection, erosion control, water supply, energy production, and open space. 22. On page 6 of the Staff Report, Policy EN-l is presented as, "Prevent development on lands where development would create hazards to life, property, or environmental quality." The Staff version appears to have been superseded in 2009. Comprehensive Plan Policy EN-l in the currently adopted Comprehensive Plan is presented above. As currently adopted, this Comprehensive Plan Policy does not apply. Rezone p. 16 Findings, Conclusions and Decision Consistency with the Zoning Classification. 23. On page 7 of the Staff Report, Staffstate, "The R-I zone is established to provide and protect suitable environments for residential development of lands characterized by pervasive critical areas were limited residential development will not compromise critical areas. It is intended to implement the RLD Comprehensive Plan designation. The zone provides for suburban estate single-family and clustered single-family residential dwellings, at a maximum density of one dwelling unit per net acre, and allows for small-scale fanning associated with residential use. While the site is not directly encumbered by critical areas it is adjacent to a stream and drains into a large drainage basin that has been described as having moderate and extensive flooding which is exacerbated by increases in development. Moreover, the proposal would not be consistent with the R-4 designation in that it would be considered a spot zone and would not offer a transition between rural and higher density residential zones. Based on the analysis above the subject property is most properly zoned R-l and a rezone to R-4 is not supported." With respect to the City's zoning code, the Applicant stated the subject properties are more appropriately zoned R-4 based on the City's zoning description and intents. The Applicant noted the zoning code statement of purpose for both the R-l and R-4 zones. The applicable section for each zone is stated below (emphasis added). RMC 4-2-020C Residential-l DU/Acre (R-1): The Residential-l Dwelling Unit Per Net Acre Zone (R -I) is established to provide and protect suitable environments for residential development of lands characterized by pervasive critical areas where limited residential development will not compromise critical areas. It is intended to implement the Low Density Residential Comprehensive Plan designation. The zone provides for suburban estate single family and clustered single family residential dwellings, at a maximum density of one dwelling unit per net acre, and allows for small scale farming associated with residential use. Density bonus provisions, of up to eighteen (18) dwelling units· per acre, are intended to allow assisted living to develop with higher densities within the zone. It is forther intended to protect critical areas, provide separation between neighboring jurisdictions through designation of urban separators as adopted by the Countywide Policies, and prohibit the development of incompatible uses that may be detrimental, to the residential or natural environment. No minimum density is required. (Ord. 5590, 2-28-2011). RMC 4-2-020D Residential-4 DU/Acre (R-4): The Residential-4 Dwelling Units Per Net Acre Zone (R-4) is established to promote urban single family residential neighborhoods serviceable by urban utilities and containing amenity open spaces. Rezone p.17 Findings, Conclusions and Decision It is intended to implement the Residential Low Density Comprehensive Plan designation. The Residential-4 Dwelling Units Per Net Acre Zone (R-4) will allow a maximum density of four (4) dwelling units per net acre. The R-4 designation serves as a transition between rural designation zones and higher density residential zones. It is intended as an intermediate lower density residential zone. Larger lot subdivisions are preferred; however, "small lot clusters" are allowed on sites where open space amenities are created. Resulting development is intended to be superior in design and siting than that which would normally otherwise occur. Small Jot clusters may also meet objectives such as the provision of efficient sewer services. (OnL 5355, 2-25-2008). As noted above, the property is not characterized by the presence of pervasive critical areas. It is also not designated as an Urban Separator. The Applicant has demonstrated through expect testimony that stormwater and environmental impacts may be fully mitigated through application of the City's existing Critical Areas Ordinance and development codes and in accordance with the 2009 King County Surface Water Design Manual. Additionally, the City will have the opportunity to provide development and environmental review for any pertnits for future development in the rezone area. Both the R-I and R-4 zones are designated Low Density Residential districts in-the Comprehensive Plan. Both zones provide an effective transition between higher density residential development to the west and rural development in the unincorporated County to the east The R -4 zone is, in fact, intended to be a transition zone. Furthermore, the rezone site is serviceable by urban utilities including natural gas, public sewer, and public water. The buffer along Greene Creek may be used to provide amenity open spaces. For these reasons, the rezone to R -4 is supported. DECISION The Hearing Examiner recommends approval of the rezone request. Rezone Dated this 1st day of November, 2011. p. 18 EmiiYTf'JTcli) City of Renton Hearing Examiner Pro Tern Findings, Conclusions and Decision