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LAW OFFICE OF SAMUEL A. RODABOUGH PLLC SAMUEL A. RODABOUGH ATTORNEY AT LAW 11820 NORTHUP WAY, STE. E200 BELLEVUE, WA 98005 (425) 440-2593 (425) 635-7799 (FAX) June 16, 2017 Via E-mail Office of the Hearing Examiner City of Redmond Attn.: Cheryl Xanthos 15670 NE 85th St. Redmond, WA 98073-9710 [EMAIL REDACTED] Re: Amended Appeal of Deviation/Modification Request Denial DEVREQ-2017-00464, Tom Short Duplex Project Per the Order Setting Pre-Hearing Document Exchange Schedule, dated June 13, 2017, Appellants hereby submit this amended appeal statement: This Firm represents appellants Thomas Short, Jr. & Andrea Short, husband and wife (collectively “Short”), and appellant Hamid Korasani, P.E. of SAZEI Design Group, LLC (“Korasani”), in this appeal. Short and Korasani are collectively referred to herein as the “Appellants.” This appeal challenges a decision of the Technical Committee to deny a deviation/modification pertaining to the undergrounding of utilities for the construction of a duplex on real property located at 13404 NE 100th St., Redmond, WA 98033 (“Subject Property”). The following letter is intended to be submitted with, and is hereby incorporated into, the accompanying City of Redmond Appeal Application Form (“Appeal Form”). The following paragraphs correspond to those set forth in the Appeal Form. A. General Information: 1. The names, addresses, email addresses, and phone numbers of Appellants are as follows: Thomas Short, Jr. & Andrea Short 540 8th Ave. SE Kirkland, WA 98033 [EMAIL REDACTED] (425) 864-2076 (Tom) (425) 864-2715 (Andrea) Contact only through legal counsel Hamid Korasani, P.E. SAZEI Design Group, LLC 6608 110th Ave. NE Kirkland, WA 98033 (425) 214-2280 [EMAIL REDACTED] Contact only through legal counsel The name, address, email address, and phone number of Appellants’ legal counsel is as follows: ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 2 of 11 Samuel A. Rodabough Law Office of Samuel A. Rodabough PLLC 11820 Northup Way, Ste. E200 Bellevue, WA 98004 [EMAIL REDACTED] (425) 440-2593 2. The name of the project and file numbers for the project that is the subject of this appeal is as follows: Tom Short Duplex, DEVREQ-2017-00464, which is related to BPLN-2015-02128 and BLDG-2015-08536. 3. The Date of the decision that is the subject of this appeal, and the appeal deadline are May 18 and June 1, 2017, respectively. A copy of the decision that is the subject of this appeal is attached hereto as Exhibit A (“Decision”). 4. Status of Appellants, RZC 21.76.060(I)(2)(b)(i). Appellants Short are the project applicants, owners of the subject property, and parties of record. See RZC 21.76.060(I)(2)(a). See also RZC 21.76.060(I)(3) (stating that the “appellant…[and] owner(s) of property subject to the application” are parties to the appeal). Appellant Korasani is also a project applicant and party of record. As explained in greater detail below, Appellants are aggrieved by the Decision, as it incorrectly applies City Code and will result in the needless expenditure of potentially more than $100,000 to underground the utilities, despite the fact that there is no demonstrable benefit to undergrounding for this project and said undergrounding may exacerbate public safety concerns. Appellants are further aggrieved for the reasons set forth in the letter to the City from the undersigned, dated May 5, 2017 (“Attorney Letter”), and the letter from Appellant Korasani to the City, dated May 4, 2017 (“Engineer Letter”), attached hereto as Exhibits B and C, respectively, and incorporated herein by reference. The Attorney letter and Engineer Letter are collectively referred to herein as the “Deviation/Modification Application.” B. Basis for Appeal 1. Facts demonstrating how Appellants are adversely affected by the Decision. See RZC 21.76.060(I)(2)(b)(i) The Appellants own the Subject Property described above, which is located within the Residential Innovative Zone (“RIN Zone”). The Property includes an existing single-family residence that is served by existing and adequate overhead utilities. The Appellants have applied to the City for the construction of a duplex thereon and have requested a deviation/modification to maintain existing overhead utilities as part of their proposed project. The City denied the deviation/modification request. The denial of the deviation/modification request adversely affects the Appellants as follows: ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 3 of 11 First, the Appellants’ project should be exempt from any requirements to underground utilities. Specifically, the subject property is located within the Residential Innovative Zone (“RIN Zone”). The express purpose of the RIN Zone is to “promot[e] diversity in the size, type, and price of new single-family homes.” RZC 21.08.070 (emphasis added). Critically, for purposes of the RIN Zone, duplexes are expressly considered single-family homes. See RZC 21.08.360(A)(2) (defining “single-family housing” in the RIN Zone to include “smaller dwelling units such as a cottage, size-limited dwelling or duplex.”)(emphasis added). Cf. RZC 21.08.070B (allowing duplexes as a permitted use in the RIN Zone). Categorizing duplexes as single-family homes in the RIN Zone is presumably for the purpose of ensuring the desired and aforementioned diversity of the type and price of housing stock available in the RIN Zone. As indicated, the undergrounding of utilities is governed by RZC 21.17.020. The City has a past pattern or practice of interpretation and application of RZC 21.17.020 that has excluded the construction of single-family residences or minor residential development from its requirements. Indeed, the City’s prior denial of the Appellants’ deviation/modification request, dated March 3, 2017, reflects the City’s longstanding interpretation of RZC 21.17.020: “Per Redmond Zoning Code 21.17.020, undergrounding overhead utilities is required except for single-family house or minor residential development.” However, as indicated above, for purposes of the zone in which the Subject Property is situated, duplexes are expressly defined as single-family residences. See RZC 21.08.360(A)(2) (defining “single-family housing” in the RIN Zone to include “smaller dwelling units such as a cottage, size-limited dwelling or duplex.”)(emphasis added). As such, the Appellants’ project should be exempt from any requirement to underground overhead utilities. In short, the Appellants are aggrieved because they are being required to comply with regulations for which their project is exempt. Second, the very purpose of the RIN Zone is to promote the construction of comparably smaller, more affordable, residential units than other sectors of the City. As documented by Mr. Korasani, the undergrounding of utilities for this project, in light of the configuration of existing overhead utilities, will cost in excess of $100,000, or approximately 20% of the entire cost of the proposed duplex. This exorbitant cost is not objectively reasonable, especially in light of the demonstrable lack of corresponding public benefit. Worse, a substantial portion of these costs are the direct result of the City’s decision in 2016 to approve a utility design for the development of the adjoining property to the south, which resulted in the installation of a new utility pole in the street frontage on the Appellants’ property—a utility pole that the Appellants are now being required to remove at their own expense. Here, requiring the undergrounding of utilities, which would be cost prohibitive (with little or no public benefit), and result in inequitable cost-shifting from one property owner to another, is not in the public interest. Moreover, the City’s attempt to target duplexes (which are permitted outright in the RIN Zone) for a higher standard of improvements than other types of housing, is contrary to the promotion of the very mix of housing that the RIN Zone was specifically designed to encourage. Here, the requirement to underground overhead utilities is contrary to applicable legislative intent in adopting the RIN Zone. In short, the Appellants are aggrieved because they are being subject to ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 4 of 11 a requirement (and associated, objectively unreasonable costs), that is contrary to the very purpose of the zone in which the Subject Property is situated. Third, because of the unique aspects of the Subject Property and the accompanying project, the requirement to underground utilities is contrary to the express legislative purposes of RZC 21.17. As confirmed by PSE, in order to underground existing overhead utilities lines, the power pole at the corner of 134th Ave. NE and NE 100th St. must be removed. Removal of this pole will require installation of three new poles at the edges of where the underground conversion will go as follows: A-One at the NW corner of the Subject Property; B- One at the SE corner of the Subject Property; and C- One on the other side of 134th Ave NE (west shoulder). Clearly, mandating the undergrounding of utilities, which would require the addition of three utilities poles for this project, is directly contradictory to the express legislative goals in RZC 21.17.020. Rather than removing safety hazards, the addition of 3 new power poles would actually decrease public safety and create new hazards. Moreover, the addition of three new utility poles would not improve the appearance and aesthetics of the public ways, but would only serve to exacerbate any real or perceived public concern regarding aesthetics. In short, the Decision requires the Appellants to exacerbate conditions of safety and aesthetics, among other concerns. Additional facts demonstrating that the Appellants are adversely affected by the Decision are set forth in Deviation/Modification Application incorporated by reference herein. To summarize, the Decision requires the Applicants to underground utilities for the construction of a duplex in contravention of the City Code and applicable legislative intent. As explained below, this project should be exempt from the requirements of 21.17 RZC by the express terms therein. Moreover, the requirement to underground utilities for this project will result in the needless expenditure of upwards of $100,000, despite the fact that there is no demonstrable benefit for undergrounding utilities for this specific project, and the RIN zone in which the Subject Property is located is intended to accommodate affordable construction methods and housing. Additionally, because of the unique aspects of this project, the undergrounding of utilities will ironically require the addition of several utility poles, which contravenes the very purpose of requiring the undergrounding of utilities under chapter 21.17 RZC. For these reasons, and as explained in greater detail below, the City should determine that the project is exempt from the requirements of 21.17 RZC by the express terms therein, or grant a deviation/modification from the requirement to underground utilities, if such a requirement exists. 2. Concise Statement Alleging Errors of Fact, Law, and/or Procedure and the Applicable Review Criteria. See RZC 21.76.060(I)(2)(b)(ii) The Technical Committee erred, and the Decision is erroneous, because they/it engaged in an unlawful procedure or failed to follow a prescribed process, erroneously interpreted the law, ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 5 of 11 reached a decision that is not supported by a preponderance of the evidence; and/or reached a clearly erroneous decision. Specifically, the Technical Committee, and the Decision erred by • Concluding that the undergrounding of utilities is required for this project under chapter 21.17 RZC. Specifically, as explained in detail above, this project should be exempt from any requirement to underground utilities under chapter 21.17 RZC as the duplex that is the subject of the application constitutes single-family housing under applicable Code provisions1 and/or minor development, or the duplex is not a “new commercial, industrial, or multifamily residential building,” among other arguments. • Concluding that the application failed to meet the requirements of RZC 21.17.030, as the proposed development does not contribute to the need for the required improvements and the requirement improvements are not roughly proportional to the impact of the development. For example, the Property is already improved with a longstanding residence that is served by the existing utilities. The replacement of that residence does not exacerbate the need for undergrounding utilities and said existing utilities are adequate for the proposed development. Likewise, the cost of the undergrounding is grossly disproportionate to the impacts, if any, of the development. Additionally, requiring the Applicants to pay to remove a utility pole that the City just recently allowed an adjoining property owner to install on the frontage of the Property is per se disproportionate to any impacts of the Applicants’ project. For each of the above same reasons, the requirement to underground these utilities constitutes an unlawful condition would likewise, in addition to RZC 21.17.030 violate the U.S. Constitution, Washington State Constitution, and RCW 82.02.020, as set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Dolan v. City of Tigard, 512 U.S. 374 (1994), and their progeny. • Failing to adopt adequate “findings and conclusions” as required by RZC 21.17.030. Specifically, to the extent that the Decision contains any findings or conclusions, they fail to penetrate beyond ultimate conclusions in this matter and are, therefore, inadequate. • Failing to consider, let alone address in its analysis, the facts and arguments raised in the Deviation/Modification Application, including but not limited to those facts that demonstrate that the purposes of undergrounding utilities, as set forth in RZC 21.17.020, would be thwarted if undergrounding is required for this project. Specifically, because of the unique circumstances of this project, undergrounding of utilities will actually result in a substantial net increase in the number of utility poles in the immediate vicinity. As such, the undergrounding of utilities will not “[r]emove utility poles which are a 1 See e.g., RZC 21.08.360(A)(2) (defining “single-family housing” in the Residential Innovative Zone to include “smaller dwelling units such as a cottage, size-limited dwelling or duplex.”). Cf. RZC 21.08.070 (stating that the purpose of the RIN Zone is to “promote single-family housing” & RZC 21.08.070B (allowing duplexes as a permitted use in the RIN zone). ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 6 of 11 hazard along streets,” or “[i]mprove the appearance and aesthetics of public ways.” See RZC 21.17.020. Moreover, as a result of the substantial net increase of utility poles it is the undergrounding of utilities for this project will not “[e]liminate safety issues caused by damaged overhead lines,” or “[r]educe the number of service interruptions caused by storms.” Id. • Failing to consider, let alone address in its analysis, any applicable deviation/modification approval criteria that City Staff expressly asked the Applicants to address in their application. In short, the Decision only addresses chapter 21.17 RZC, including the threshold issue of whether the undergrounding of utilities is required thereby. However, in the event that the Appellants’ project is not exempt from the requirements of chapter 21.17 RZC, the very purpose of requesting a deviation/modification from those requirements is to have the application considered under the applicable criteria for the granting of a deviation/modification. Simply citing to the alleged standard that is the subject of the deviation/modification request, without addressing the deviation/modification criteria is clear error and circular reasoning. • After erroneously concluding that the undergrounding of utilities is required by chapter 21.17 RZC, the Decision contains no reference to, or any analysis regarding, whether the project merits the approval of a deviation/modification under the very criteria that City Staff expressly asked the Applicants to address in their application, other than to observe that other projects in the vicinity are scheduled to have underground utilities. This latter observation fails to account for the unique aspects of the Subject Property and the project itself, as set forth in the Deviation/Modification Application, including the presence of a corner lot, the need for additional utility poles to underground the utilities, among others. • The Decision omits any reference whatsoever to any applicable deviation decision criteria that City Staff expressly asked the Applicants to address in their application. The proposal meets those criteria for the reasons set forth in the Deviation/Modification Application and fails to justify its denial by explaining why it doesn’t meet any applicable decision criteria. In the event that the City has no criteria for granting deviation requests, but the City nonetheless allows the filing, payment for, and processing of, said applications, the application should be approved as no criteria exist to justify a denial. Although it does not appear that the decision criteria that City Staff expressly asked the Applicants to address in their application, are codified in City Code, the City does have a permitting bulletin on its website that references certain decision criteria for a deviation, namely the following: • The deviation produces a comparable or improved result, which is in the public interest; ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 7 of 11 • The deviation meets requirements for safety, public health, function, fire protection, transit needs, appearance, maintainability, and any other criteria deemed relevant by the city; • The deviation provides substantially equivalent (or improved) environmental protection as would be provided if the standard requirements were met; • The deviation needs to reflect sound engineering practices; • The deviation needs to avoid damage to other properties in the vicinity of and of the proposal; • Any deviation from the Standards that does not meet the Fire Code will require concurrence by the City Fire Marshal. • As applicable for Overlake and Downtown RZC 21.76.070C Administrative Design Flexibility. It is unclear if the above decision criteria apply to the requested deviation. Nor is it clear that the above criteria are codified anywhere in City Code. As such, Appellants reserve the right to assert their inapplicability to this matter. Nonetheless, out of the abundance of caution, Appellants address these criteria. As indicated, this project should be exempt from any requirement to underground overhead utilities. However, in the event that the City concludes that the project is not exempt, a deviation should be granted that allows existing utilities to remain in their current location. a. The deviation produces a comparable or improved result, which is in the public interest. Granting the Appellants’ deviation request will not produce a mere “comparable” result to the undergrounding of overhead utilities, but will actually produce an improved result that is more consistent with the intent of RZC 21.17.020. As documented by Mr. Korasani in the Deviation Application, and as confirmed by PSE therein, as a result of the configuration of the existing overhead utilities, the successful undergrounding of said utilities would actually require the installation of three additional utility poles—a result directly contrary to the intent of RZC 21.17.020. Specifically, per RZC 21.17.020, the purposes of requiring the placement of utilities underground, include “[r]emov[ing] utility poles which are a hazard along streets,” and “[i]mprov[ing] the appearance and aesthetics of the public ways.” Clearly, mandating the undergrounding of utilities, which would require the addition of three utilities poles for this project, is directly contradictory to each of the above goals. Rather than removing safety hazards, such a project would actually decrease public safety and create new hazards. Moreover, the addition of three new utility poles would not improve the appearance and aesthetics of the public ways, but would only serve to exacerbate any real or perceived public concern regarding aesthetics. In short, the granting of the Deviation Application is in the public interest. ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 8 of 11 Additionally, allowing existing overhead utilities to remain is consistent with the intent of the zone in which the Subject Property is located, specifically the RIN Zone. As indicated above, the very purpose of the RIN Zone is to promote the construction of comparably smaller, more affordable, residential units than other sectors of the City. Such housing stock is desperately a needed commodity in light of the torrid pace of housing costs in Redmond. As documented by Mr. Korasani, undergrounding utilities for this project, in light of the configuration of existing overhead utilities, will cost in excess of $100,000, or approximately 20% of the entire cost of the proposed duplex. This exorbitant cost is not objectively reasonable, especially in light of the demonstrable lack of corresponding benefit. Worse, a substantial portion of these costs are the direct result of the City’s decision in 2016 to approve a utility design for the development of the adjoining property to the south, which resulted in the installation of a new utility pole in the street frontage on the Appellants’ property—a utility pole that the Appellants are now being required to remove at their own expense. Here, requiring the undergrounding of utilities, which would be cost prohibitive (with little or no public benefit), and result in inequitable cost-shifting from one property owner to another, is not in the public interest. b. The deviation meets requirements for safety, public health, function, fire protection, transit needs, appearance, maintainability, and any other criteria deemed relevant by the City. The deviation also meets the requirements for safety, public health, function, fire protection, transit needs, appearance, maintainability, and any other criteria deemed relevant by the City.2 First, as indicated above, as a result of the configuration of the existing overhead utilities, the successful undergrounding of utilities at this site would actually require the installation of three additional utility poles—a result that actually poses a greater risk to public safety. As indicated, one of the express purposes of requiring the undergrounding of utilities is to “[r]emove utility poles which are a hazard along streets.” See RZC 21.17.020. By definition, the addition of utility poles, which would be required to successfully underground utilities at this site, would exacerbate concerns regarding safety and public health. In short, granting the deviation request would undoubtedly meet requirements for safety and public health. Second, allowing the existing overhead utilities to remain will not compromise their intended function, which is to supply electricity and communications to the proposed duplex. Third, it does not appear that the deviation request has any known or significant impact to fire protection or transit needs. 2 To the extent that this criterion is construed to allow the City to arbitrarily add any other approval criteria it deems relevant, it would clearly violate the Appellants’ state and federal constitutional rights of due process and rudimentary notions of fundamental fairness. ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 9 of 11 Next, granting the deviation request would meet requirements for appearance. Again, the addition of three utility poles would be contrary to the express purposes of requiring the undergrounding of utilities, specifically to “[i]mprove the appearance and aesthetics of the public ways.” See RZC 21.17.020. Accordingly, granting the deviation request is prefereable for purposes of appearance. Finally, the granting of the variance will presumably facilitate better maintenance of the utilities. In particular, in those rare events when maintaining or repairing utilities is necessary, overhead utilities are much more convenient, accessible, and less expensive to maintain than comparable utilities located underground. In summary, the Deviation Application meets the requirements for safety, public health, function, fire protection, transit needs, appearance, and maintainability. c. The deviation provides substantially equivalent (or improved) environmental protection as would be provided if the standard requirements were met. The granting of the Deviation Application will also provide substantially equivalent, and presumably greater, environmental protection. Again, as a result of the configuration of the existing overhead utilities, the successful undergrounding of said utilities would actually require the installation of three additional utility poles―poles that have associated environmental impacts.3 As the City is aware, utility poles are treated with preservatives to protect them from insects, fungi, and fires. The most common type of utility pole preservatives are chromate copper arsenate (CCA) and creosote, both of which pollute our waters. It’s estimated that of the 135 million poles in service today in the United States, 80% are treated with CCA and 17% with creosote. CCA consists of the oxides or salts of copper, chromium, and arsenic. The arsenic and copper are poisonous to insects and fungi that prey on wood. It is produced using aluminum chloride or ferric chloride as for the chlorination of phenols. Arsenic is a heavy metal that can contaminate air and water with very low concentrations. Creosote is produced by the high temperature carbonization of coal and consists principally of aromatic hydrocarbons plus some tar acids and bases. Just as efforts to remove creosote pilings are essential to restoring the Puget Sound and associated waterways, creosote from upland sources, such as utility poles, can also leach and eventually enter our stormwater systems and pollute our waterways. The EPA has labeled creosote a potential carcinogen and sharply limited its use. 3 See, e.g., Anders Wood, et al., The Environmental Impact of Utility Poles, ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 10 of 11 There can be little doubt that granting the deviation, which will avoid the installation of three new utility poles, will better protect the environment by saving the timber for the poles themselves and avoiding the unnecessary use of CCA or creosote which can pollute or waters. Allowing the utilities to remain overhead will also lessen the amount of grading within the right of way, and the associated risks of stormwater runoff during construction, among other obvious environmental benefits. d. The deviation needs to reflect sound engineering practices. The granting of a deviation reflects sounds engineering practices. Although this criterion is inherently subjective, as documented by Mr. Korasani, the proposal to maintain existing overhead utilities is based upon solid reasoning and logic, thorough knowledge and experience, and technically correct premises. The fact that this deviation reflects sound engineering practices is best evidenced by the fact that PSE approved the configuration of, and installed, the existing utilities. Any requirement to add additional power poles in an unprotected and undeveloped sidewalk area across 134th Ave NE, which would be necessary to underground the existing overhead utilities, would not meet the intent of the sound engineering practices. Moreover, the final outcome of a sound engineering design should include an analysis of public safety, which strongly militates in favor of avoiding the addition of more utility poles in the vicinity. e. The deviation needs to avoid damage to other properties in the vicinity of and of the proposal. Granting the deviation will also avoid damage to other properties in the vicinity of the Subject Property. First, as indicated above, avoiding the installation of three new utility poles will avoid adverse impacts to neighborhood aesthetics, character, and property values. Maintaining existing overhead utilities will limit construction within the right of way and presumably reduce any inconvenience to owners of properties in the vicinity and impairment of the public streets and rights of way during construction. In summary, by allowing the Appellants to maintain the status quo with respect to the overhead utilities, the granting of the deviation will necessarily avoid damage to existing properties in the vicinity. f. Any deviation from the standards that does not meet the Fire Code will require concurrence by the City Fire Marshal. It does not appear that the deviation request has any known or significant impact to fire protection or would otherwise fail to meet Fire Code. ---PAGE BREAK--- Office of the City Clerk/Hearing Examiner June 16, 2017 Page 11 of 11 g. As applicable for Overlake and Downtown RZC 21.76.070C Administrative Design Flexibility. It does not appear that regulations in the Overlake or Downtown Zones would apply to the Deviation Application. 3. Relief Requested. See RZC 21.76.060(I)(2)(b)(iii) The Appellants respectfully request that the Hearing Examiner grant the appeal, and/or grant the appeal with modifications. See RZC 21.76.060(I)(4)(stating the scope of Hearing Examiner’s authority to grant relief in an appeal). Specifically, the Appellants request that the Examiner conclude that the project is exempt from any requirement to underground utilities under RZC 21.17, or, if not exempt, grant a deviation allowing the utilities to remain overhead. 4. Any Other Information Reasonably Necessary to Make a Decision on the Appeal. See RZC 21.76.060(I)(2)(b)(iv) Appellants have no additional information at this time, but reserve the right to supplement their appeal as warranted by the circumstance. Sincerely, LAW OFFICE OF SAMUEL A. RODABOUGH PLLC Samuel A. Rodabough [EMAIL REDACTED] ---PAGE BREAK--- Exhibit A ---PAGE BREAK--- Planning Department • [PHONE REDACTED] City Hall 15670 NE 85th Street • PO Box 97010 • Redmond, WA 98073-9710 May 18th, 2017 Hamid Korasani Sazei Design Group, LLC 6608 110th Ave Ne Kirkland, WA 98033 Via Email: [EMAIL REDACTED] Subject: Response to undergrounding overhead utilities Deviation Request (DEVREQ- 2017-00464) for the for the Tom Short Duplex on Parcel No. [PHONE REDACTED] Dear Mr. Korasani: The City of Redmond received your letter dated May 4, 2017 requesting a deviation on undergrounding overhead utilities as required for your duplex project. The City of Redmond Technical Committee considered the deviation request and has decided to deny your request. Per Redmond Zoning Code 21.17.020, undergrounding overhead utilities is required except for single-family house or minor residential development. The project is not a single-family house, nor a minor residential development, which is defined as remodeling or addition development. In addition, almost all the overhead utilities on 134th Ave NE have or scheduled to be underground except for your lot and the one to the North. Based on the above city code requirement and justification, the Technical Committee is requiring you to underground the overhead utilities along NE 100th Street and along 134th Avenue NE. Please work with Puget Sound Energy to have this work done. The PSE plans will need to be submitted to the City as a part of your frontage improvements plans for civil review. In reviewing your request, the Technical Committee considered the requirements of Redmond Zoning Code 21.17.030. The development contributes to the need for the required improvements. The proposed project triggers undergrounding of overhead utilities per 21.17.020 and does not meet the exemption as it is not a single family home or minor residential development. The project will have vehicular access along both frontages of the lot. The project is only being required to provide undergrounding for the frontages of the lot, in rough proportion to the overall undergrounding of utilities in the neighborhood. Other measures listed in 21.17.030 will leave a gap in the neighborhood undergrounding that is ---PAGE BREAK--- Planning Department • [PHONE REDACTED] City Hall 15670 NE 85th Street • PO Box 97010 • Redmond, WA 98073-9710 taking place (described in the previous paragraph) and shift the burden of undergrounding to the City or PSE, which is not in the public interest. The Technical Committee’s decision may be appealed to the Hearing Examiner by filing an appeal with the Planning and Community Development Department within fourteen (14) calendar days of the date of the reconsideration decision. Appeal forms are available on-line at www.redmond.gov. A completed appeal form must be submitted by 5:00 p.m. on the last day of the appeal period. Please do not hesitate to contact me if you have any questions. Sincerely, Lisa Rigg, P.E. Development Engineering Manager Cc: Rob Crittenden, P.E., Traffic Operations Manager, Public Works Don Cairns, P.E., Transportation Planning Manager Min Luo, P.E., PTOE, PTP, Senior Transportation Engineer Andy Chow, P.E., Senior Transportation Engineer Colin Sherrill, Associate Engineer Brittany Wise, Administrative Specialist ---PAGE BREAK--- Exhibit B ---PAGE BREAK--- LAW OFFICE OF SAMUEL A. RODABOUGH PLLC SAMUEL A. RODABOUGH ATTORNEY AT LAW 11820 NORTHUP WAY, STE. E200 BELLEVUE, WA 98005 (425) 440-2593 (425) 635-7799 (FAX) May 5, 2017 Via Hand Delivery & E-Mail Steven Fischer, Planning Manager Planning and Community Development City of Redmond 15670 NE 85th St. Redmond, WA 98073 [EMAIL REDACTED] Cameron Zapata, Planner Planning and Community Development City of Redmond 15670 NE 85th St. Redmond, WA 98073 [EMAIL REDACTED] Paulette Norman, Engineering Manager Planning and Community Development City of Redmond 15670 NE 85th St. Redmond, WA 98073 [EMAIL REDACTED] Lisa Rigg, Engineering Manager Planning and Community Development City of Redmond 15670 NE 85th St. Redmond, WA 98073 [EMAIL REDACTED] Re: Deviation Request, DEVREQ 2017-00148 Tom Short Duplex To whom it may concern, This Firm represents Thomas Short, Jr. & Andrea Short, husband and wife (collectively “Short”), the owners of residential real property located at 13404 NE 100th St., Redmond, WA 98033, also known as King County Tax Parcel No. [PHONE REDACTED] (“Subject Property”). This letter supplements a revised application on behalf of my clients for a deviation request submitted by Hamid Korasani, P.E. of SAZEI Design Group, LLC, dated May 5, 2017. The deviation request seeks relief from the requirement to underground certain utilities for the above project. The primary purpose of this letter is to address the deviation criteria set forth in the permit bulletin on the City’s website.1 1 See City of Redmond, Procedures for Requesting and Approving Engineering Deviation Requests, located at http://www.redmond.gov/common/pages/UserFile.aspx?fileId=206032 (revised December 14, 2016). The undersigned was instructed to address these uncodified criteria in phone conversations with City employees Paulette Norman, P.E., Engineering Manager and Steven Fischer, Planning Manager, on March 23 and April 17, 2017, respectively. My clients reserve the right to assert any defense to the legality of these uncodified criteria or their applicability to my clients’ project or deviation request. ---PAGE BREAK--- Planning and Community Development, City of Redmond May 5, 2017 Page 2 of 7 A. My Clients’ Project is Exempt from the Requirement to Underground Utilities. As an initial matter, my clients’ project should not require a deviation, as it is exempt from the requirement to underground utilities under RZC 21.17.020. The City’s attempt to impose such a requirement here contravenes applicable City Code. Specifically, the subject property is located within the Residential Innovative Zone (“RIN Zone”). The express purpose of the RIN Zone is to “promot[e] diversity in the size, type, and price of new single-family homes.” RZC 21.08.070 (emphasis added). Critically, for purposes of the RIN Zone, duplexes are expressly considered single-family homes. See RZC 21.08.360(A)(2) (defining “single-family housing” in the RIN Zone to include “smaller dwelling units such as a cottage, size-limited dwelling or duplex.”)(emphasis added). Cf. RZC 21.08.070B (allowing duplexes as a permitted use in the RIN Zone). Categorizing duplexes as single-family homes in the RIN Zone is presumably for the purpose of ensuring the desired and aforementioned diversity of the type and price of housing stock available in the RIN Zone. As indicated, the undergrounding of utilities is governed by RZC 21.17.020. The City has a past pattern or practice of interpretation and application of RZC 21.17.020 that has excluded the construction of single-family residences or minor residential development from its requirements. Indeed, the City’s prior denial2 of my clients’ deviation request, dated March 3, 2017, reflects the City’s longstanding interpretation of RZC 21.17.020: “Per Redmond Zoning Code 21.17.020, undergrounding overhead utilities is required except for single-family house or minor residential development.” However, as indicated above, for purposes of the zone in which the Subject Property is situated, duplexes are expressly defined as single-family residences. See RZC 21.08.360(A)(2) (defining “single-family housing” in the RIN Zone to include “smaller dwelling units such as a cottage, size-limited dwelling or duplex.”)(emphasis added). As such, my clients’ project should be exempt from any requirement to underground overhead utilities. Alternatively, if the City concludes that the project is not exempt from the requirement to underground overhead utilities in RZC 21.17.020, my clients respectfully request that the City grant a deviation from any such requirement. The criteria for granting a deviation request are as follows:3 • The deviation produces a comparable or improved result, which is in the public interest. • The deviation meets requirements for safety, public health, function, fire protection, transit needs, appearance, maintainability, and any other criteria deemed relevant by the City. 2 In a letter, dated April 15, 2017, the City “rescinded” its prior denial of the deviation request. 3 See footnote 1 above. ---PAGE BREAK--- Planning and Community Development, City of Redmond May 5, 2017 Page 3 of 7 • The deviation provides substantially equivalent (or improved) environmental protection as would be provided if the standard requirements were met. • The deviation needs to reflect sound engineering practices. • The deviation needs to avoid damage to other properties in the vicinity of and of the proposal. • Any deviation from the standards that does not meet the Fire Code will require concurrence by the City Fire Marshal. • As applicable for Overlake and Downtown RZC 21.76.070C Administrative Design Flexibility. As explained in greater detail herein, my clients’ deviation request meets each of these criteria. B. If the Project is Not Exempt from the Requirement to Underground Overhead Utilities, a Deviation Should Be Granted Allowing Existing Overhead Utilities to Remain. As indicated, this project should be exempt from any requirement to underground overhead utilities. However, in the event that the City concludes that the project is not exempt, a deviation should be granted that allows existing utilities to remain in their current location. 1. The deviation produces a comparable or improved result, which is in the public interest. Granting my clients’ deviation request will not produce a mere “comparable” result to the undergrounding of overhead utilities, but will actually produce an improved result that is more consistent with the intent of RZC 21.17.020. As documented by Mr. Korasani in the revised deviation request, and as confirmed by Puget Sound Energy therein, as a result of the configuration of the existing overhead utilities, the successful undergrounding of said utilities would actually require the installation of three additional utility poles—a result directly contrary to the intent of RZC 21.17.020. Specifically, per RZC 21.17.020, the purposes of requiring the placement of utilities underground, include “[r]emov[ing] utility poles which are a hazard along streets,” and “[i]mprov[ing] the appearance and aesthetics of the public ways.” Clearly, mandating the undergrounding of utilities, which would require the addition of three utilities poles for this project, is directly contradictory to each of the above goals. Rather than removing safety hazards, such a project would actually decrease public safety and create new hazards. Moreover, the addition of three new utility poles would not improve the appearance and aesthetics of the public ways, but would only serve to exacerbate any real or perceived public concern regarding aesthetics. In short, the granting of my clients’ deviation request is in the public interest. ---PAGE BREAK--- Planning and Community Development, City of Redmond May 5, 2017 Page 4 of 7 Additionally, allowing existing overhead utilities to remain is consistent with the intent of the zone in which the Subject Property is located, specifically the RIN Zone. As indicated above, the very purpose of the RIN Zone is to promote the construction of comparably smaller, more affordable, residential units than other sectors of the City. Such housing stock is desperately a needed commodity in light of the torrid pace of housing costs in Redmond. As documented by my clients’ engineer, Mr. Korasani, undergrounding utilities for this project, in light of the configuration of existing overhead utilities, will cost in excess of $100,000, or approximately 20% of the entire cost of the proposed duplex. This absorbent cost is not objectively reasonable, especially in light of the demonstrable lack of corresponding benefit. Worse, a substantial portion of these costs are the direct result of the City’s decision in 2016 to approve a utility design for the development of the adjoining property to the south, which resulted in the installation of a new utility pole in the street frontage on my clients’ property—a utility pole that my clients are now being required to remove at their own expense. Here, requiring the undergrounding of utilities, which would be cost prohibitive (with little or no public benefit), and result in inequitable cost-shifting from one property owner to another, is not in the public interest. 2. The deviation meets requirements for safety, public health, function, fire protection, transit needs, appearance, maintainability, and any other criteria deemed relevant by the City. The deviation also meets the requirements for safety, public health, function, fire protection, transit needs, appearance, maintainability, and any other criteria deemed relevant by the City.4 First, as indicated above, as a result of the configuration of the existing overhead utilities, the successful undergrounding of utilities at this site would actually require the installation of three additional utility poles—a result that actually poses a greater risk to public safety. As indicated, one of the express purposes of requiring the undergrounding of utilities is to “[r]emove utility poles which are a hazard along streets.” See RZC 21.17.020. By definition, the addition of utility poles, which would be required to successfully underground utilities at this site, would exacerbate concerns regarding safety and public health. In short, granting the deviation request would undoubtedly meet requirements for safety and public health. Second, allowing the existing overhead utilities to remain will not compromise their intended function, which is to supply electricity and communications to the proposed duplex. Third, it does not appear that the deviation request has any known or significant impact to fire protection or transit needs. However, in the event that the City concludes otherwise, my clients 4 To the extent that this criterion is construed to allow the City to arbitrarily add any other approval criteria it deems relevant, it would clearly violate my clients’ state and federal constitutional rights of due process and rudimentary notions of fundamental fairness. ---PAGE BREAK--- Planning and Community Development, City of Redmond May 5, 2017 Page 5 of 7 respectfully request the opportunity to address those issues and respond to the City’s feedback prior to the rendering of any deviation on their deviation request. Next, granting the deviation request would meet requirements for appearance. Again, the addition of three utility poles would be contrary to the express purposes of requiring the undergrounding of utilities, specifically to “[i]mprove the appearance and aesthetics of the public ways.” See RZC 21.17.020. Accordingly, granting the deviation request is prefereable for purposes of appearance. Finally, the granting of the variance will presumably facilitate better maintenance of the utilities. In particular, in those rare events when maintaining or repairing utilities is necessary, overhead utilities are much more convenient, accessible, and less expensive to maintain than comparable utilities located underground. In summary, my clients’ deviation request also meets the requirements for safety, public health, function, fire protection, transit needs, appearance, and maintainability. 3. The deviation provides substantially equivalent (or improved) environmental protection as would be provided if the standard requirements were met. The granting of my clients’ deviation request will also provide substantially equivalent, and presumably greater, environmental protection. Again, as a result of the configuration of the existing overhead utilities, the successful undergrounding of said utilities would actually require the installation of three additional utility poles―poles that have associated environmental impacts.5 As the City is aware, utility poles are treated with preservatives to protect them from insects, fungi, and fires. The most common type of utility pole preservatives are chromate copper arsenate (CCA) and creosote, both of which pollute our waters. It’s estimated that of the 135 million poles in service today in the United States, 80% are treated with CCA and 17% with creosote. CCA consists of the oxides or salts of copper, chromium, and arsenic. The arsenic and copper are poisonous to insects and fungi that prey on wood. It is produced using aluminum chloride or ferric chloride as for the chlorination of phenols. Arsenic is a heavy metal that can contaminate air and water with very low concentrations. Creosote is produced by the high temperature carbonization of coal and consists principally of aromatic hydrocarbons plus some tar acids and bases. Just as efforts to remove creosote pilings are essential to restoring the Puget Sound and associated waterways, creosote from upland 5 See, e.g., Anders Wood, et al., The Environmental Impact of Utility Poles, ---PAGE BREAK--- Planning and Community Development, City of Redmond May 5, 2017 Page 6 of 7 sources, such as utility poles, can also leach and eventually enter our stormwater systems and pollute our waterways. The EPA has labeled creosote a potential carcinogen and sharply limited its use. There can be little doubt that granting the deviation, which will avoid the installation of three new utility poles, will better protect the environment by saving the timber for the poles themselves and avoiding the unnecessary use of CCA or creosote which can pollute or waters. Allowing the utilities to remain overhead will also lessen the amount of grading within the right of way, and the associated risks of stormwater runoff during construction, among other obvious environmental benefits. 4. The deviation needs to reflect sound engineering practices. The granting of a deviation reflects sounds engineering practices. Although this criterion is inherently subjective, as documented by my clients’ engineer, Mr. Korasani, the proposal to maintain existing overhead utilities is based upon solid reasoning and logic, thorough knowledge and experience, and technically correct premises. The fact that this deviation reflects sound engineering practices is best evidenced by the fact that Puget Sound Energy approved the configuration of, and installed, the existing utilities. Any requirement to add additional power poles in an unprotected and undeveloped sidewalk area across 134th Ave NE, which would be necessary to underground the existing overhead utilities, would not meet the intent of the sound engineering practices. Moreover, the final outcome of a sound engineering design should include an analysis of public safety, which strongly militates in favor of avoiding the addition of more utility poles in the vicinity. 5. The deviation needs to avoid damage to other properties in the vicinity of and of the proposal. Granting the deviation will also avoid damage to other properties in the vicinity of the Subject Property. First, as indicated above, avoiding the installation of three new utility poles will avoid adverse impacts to neighborhood aesthetics, character, and property values. Second, avoiding the requirement to underground existing utilities will limit construction within the right of way and presumably reduce any inconvenience to owners of properties in the vicinity and impairment of the public streets and rights of way during construction. In summary, by allowing my clients to maintain the status quo with respect to the overhead utilities, the granting of the deviation will necessarily avoid damage to existing properties in the vicinity. 6. Any deviation from the standards that does not meet the Fire Code will require concurrence by the City Fire Marshal. ---PAGE BREAK--- Planning and Community Development, City of Redmond May 5, 2017 Page 7 of 7 It does not appear that the deviation request has any known or significant impact to fire protection or would otherwise fail to meet Fire Code. However, in the event that the City concludes otherwise, my clients respectfully request the opportunity to address those issues and respond to the City’s feedback prior to the rendering of any deviation on their deviation request. 7. As applicable for Overlake and Downtown RZC 21.76.070C Administrative Design Flexibility. It does not appear that regulations in the Overlake or Downtown Zones would apply to my clients’ deviation request. However, in the event that the City concludes otherwise, my clients respectfully request the opportunity to address those issues and respond to the City’s feedback prior to the rendering of any deviation on their deviation request. My clients and their engineer have worked tirelessly with the City to ensure a successful project that meets applicable standards. However, the requirement to underground existing overhead utilities for this project defies common sense and is cost prohibitive. My clients’ deviation request is consistent with the applicable deviation criteria and should be granted. Please let me know if you require any further. Sincerely, LAW OFFICE OF SAMUEL A. RODABOUGH PLLC Samuel A. Rodabough [EMAIL REDACTED] ---PAGE BREAK--- Exhibit C ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---