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RES 87-26 CAROL KING FINDING OF FACTRevised: 10/5/87 RESOLUTION NO. 87-26 A RESOLUTIONADOPTINGTHECAROL KINGAPPLICATION FINDINGS OF FACT, CONCLUSIONS OF LAW, ~ ATIONS AND DETERvLINATION, AND DECISION ON CONDITIONAL USE PERMITS. WHEREAS, the City Council of the City of Winslow, Washington, has determined it to be in the public interest to adopt the Carol King Application Findings, Conclusions and Determination, in City Hearing Examiner File #4-27-87-1, shown as Exhibit "A" as amended below, and W]~REAS, the City Council wishes to conclude the Carol King Application so as to provide for such changes as indicated below, and Wt~RF~S, in providing for such changes, the City Council of the City of Winslow incorporates Exhibit "A" attached, NOW, THEREFORE, be it resolved by the Council of the City of Winslow, Washington, as follows: That the Findings of Fact, Conclusions of Law, Reconn~ndations and Determination and Decision in Hearing Examiner File ~4-27-87-1, in Exhibit "A" incorporated herein are adopted except as inconsistent with the following: 1. City Cour~il publicly considered this application at its regular meetings on September 3, 1987, September 17, 1987, and October 1, 1987, and a special meeting o~ September 9, 1987. 2. (hpage 15 of Exhibit "A", the findings in paragraphs XIVandXV are not adopted; to benDre consistent with its decision, City Council adopts: A public trail near the interior of the property and public access to the courtyard will help offset the public's loss of waterfront view cause~7 by construction of the two-stoz~y buildings at their location. It would also offset somew~at the nonpublic and nonwater-related activity of the general con~nercial office use proposed. The grant of conditional use permits are dependent upon the public's receiving shoreline benefit c~surate with its losses. The City is cuL~ensating Applicant for the allowed public access. The City is willing to allow Applicant use of the south half of the adjacent City property for parking stalls. The courtyard which Applicant informally proposes to share access to with the public contains 2500 square feet, but does not alone constitute an equal trade for the above use of the city land without the other public amenities grantedbelow. The proposed interior trail, bridgehead, viewing platform, or bridge, landscaping, and "toe" on the property, although not exactly equivalent in square footage to the City property to be usedby Applicant, will provide adequate public waterfront view. The foregoing exchange of uses and value between the City and the Applicant except for dedication of the "toe", which is gratis, constitute and equal, just and bonafide use of public property and constitutes full co~n~ensation for the private Applicant-property owner's permitting public access to her property. 3. The Hearing Examiner's Final Recc~mendations and Decision are not adopted. The City Council adopts the following: -1- ORDER THAT the application (SSDP #4-27-87-1) has met the criteria as set forth in the Washington Administrative Code, Chapter 173-14, Section 140 and the City of Winslow Shoreline Management Master Program, Chapter 16.12, Section 860; and The City Council grants the Shoreline Substantial Development Permit and Conditional Use Permits provided that applicant: Grant permanent public access by recorded easement for a public pedestrian trail frcm the east property line of the City owned property to connect with a foot trail, or bridge, or public viewing platform, as ultimately approved by the City Planning Agency and/or Hearing Examiner; Grant by recorded easement permanent access across Applicant's waterfront for possible future installation of the public footbridge, foot trail or public viewing platform, linking with the interior trail; ~ to the City the southwest "too" of the King parcel, to be described in size more specifically; (her ½ of the Madison Avenue waterfront street right of way nearest the water), which would be open to the public for viewing. Make parking lot landscaping in compliance with P~4C 18.56,120 and, Provide permanent parklike landscaping which shall be developed and maintained by the applicant on the unused north half of the city property (known as the city sewer facility) adjacent to her parcel, which shall be conducive to public access. Such landscaping shall permit as nccded thepublic trail to connect with the trail head, bridge or viewing platform. It shall not cover any manholes, prevent use of the lift station, or in anymannerpreclude use for utility purposes. Accept frumthe City bypermanent recorded easementtbe useby Applicant of not more than the south one-half of the city's above property abutting Appllcant's northern boundary (known as the city sewer facility.) The use shall be limited to providing Applicant-related parking spaces and establishing landscaping in ccmpliance with~4C 18.56,120. Alternatively, Applicantand the City may agree upon a lease agreeable in terms to bothparties. Agree that all easements run with the land; bind sucessors and assigns; be effective regardless of whether the waterfront trail system is established or that a bridge is installable. 8. Grant public access, shared with private uses, to Applicant's courtyard as proposed, and which shall not be eliminated or substantially diminished in size in final site plans, but shall comply with the Applicant' s amended development proposal of September 15, 1987. PASSED BY THE COUNCIL of the City of Winslow, Washingten, this ~ }~ day of October, 1987. ALICE B. TAWRESEY, b~yor ~_.~LD(TO , Cler~F/Treasurer to © o. Att ROBERT O. CONOLEY, City BEFORE THE HEARING EXAMINER CITY OF WINSLOW RECEIVED JUL 16 :LEST //-JU. NC In the Matter of the Application for a Shoreline Substantial Development Permit and Conditional Use Permits Carol King, Applicant File No. 4-27-87-1 FINDINGS OF FACT, CONCLUSIONS OF LAW, RECOMMENDATION ON SHORELINE SUBSTanTIAL DEVELOPMENT PERMIT AND DECISION ON CONDITIONAL USE PERMITS Cn June 22, 1987, at 7:00 P.M. Hearing Examiner Robin Hunt conducted a Public Hearing to consider Carol King's Application for a Shoreline Substantial Development Permit and several Csnditiona! Use Permits for a commercial mixed use structure t~ be built on the Winslow waterfront at the southeast corner of Madison Avenue South and Parfitt Way. Applicant seeks conditional use permits for the following: 1] A mixed commercial use which is neither water related nor water dependent, but provides public access to the shoreline; 2) Buildings to be constructed less than 50 feet from the mean high water line; and 3)A chimney more than 35 feet high. Thirteen persons attended the hearing in addition to the Hearing Examiner, Land Use Administrator, Mike Regis, and Renee Hauge, who monitored recording of the hearing. David Miller, architect, was the primary spokesperson for Applicant, Carol King. Two other persons spoke in favor of the application, Chad A!dridge and Jim Evans. Mr. Evans, however, expressed concern that the building would essentially close off the waterfront to the public without giving to the public something in return worth more than the small waterfront road end at the foot of Madison Avenue. -!- Three persons spoke in opposition to the project, Richard Lanning, ~artha Logginham, and Bob Chapel. Mr. Lanning was nc~ opposed to the project per se but was opposed to a waterfront trail extending along a foot bridge across zhe slough between Carol King's site and the property near his and Mrs. Lcgqinham's residences. The file contains a !enter from Phil Reilly (Exhibit O), representing the condominmum residents of Shannon Drive S.E. across the slough. Mr. Rei!!y also opposes a foot bridge across the slough, which foot bridge and trail connection the neighbors fear will jeopardize their privacy and security. Speaking as a private citizen rather than a former member of the Winslow Park Commission, Bob Chapel voiced the following concerns: (1) Since the project would contain a non-water dependent use, then other amenities should off-set that use. (2) The proposed public access is not sufficient; as suggested by the Park Commission the trail should traverse the waterfront perimeter rather than cut through the parking lot. He further stressed that the public trail should be clearly marked so that the public will know they are invited. (3) He objected to using public City property for parking for the private Carol King Development, especially without an appraisal of the City property's value. Rather the Park Commission felt this City lot at the north edge of the King property would better serve as a small public park with a view of the harbor, accessible and enjoyable by the public, generally, and specifically by the many senior citizens who live in the area. (4) The proposed buildings would obstruct the public's view of Eagle Harbor from Madison Avenue. (5) The cumulative impact of other potential similar developments in the area would be detrimental. The file contains a June 21, 1987, letter of opposition from Jessie Hey, also a former Park Commission member. Mrs. Hey focuses cn the permanent loss of public access to Eagle Harbor once a ncn-water dependent, non-water related commercial building is constructed without public access to the waterfront. See Exhibit M. Based u~cn the testimony at the public hearing, the exhibits in the file, the three-dimensional model displayed by Applicant at the hearing, and an inspection of the property, the Hearing Examiner now makes and enters the following: -2- FINDINGS OF FACT The properr? in question is owned by Carol King, Applicant, and is located at the southeast corner of Madison Avenue South and Parfitt Way, Tax Lot ~262502-3-096-2004. See the legal description set forth as Exhibit A-4, incorporated heroin by reference. It was originally included in a master shoreline substantial development permit for the whole Winslow wharf area. The original series of shoreline permits expired cn September 8, 1986. The State Department of Ecology determined that a new permit would be required for the King deve!cpment. See April 16, 1987, Department of Ecology letter, Exhibit C. II The land comprises 23,040 square feet (Exhibit I). The lot is basically retangu!ar, bounded by shoreline on two abutting sides. A long narrow arm extends northeast along the slough, and a small square toe projects along the Eagle Harbor waterfront from the southwest corner of the property to the midpoint of Madison Avenue. (See page A-1 of the site plan, Exhibit A-3.) Applicant does not own most of the tidelands associated with the property, although she does own the shoreline and the tidelands in the slough. See Page A-1 of Exhibit A-3. III The !ct's shoreline is edged with steep rocky bulkhead. The tidelands are not safely accessible from the lot. IV The lot is currently vacant, covered with an assortment of grasses and wildflowers. V To the east is a tidal slough, with residences east across the slough and a dock. Immediately to the north is a strip of land owned by the City: it contains a sewer lift station, a generator shed, and a few overgrown low shrubs. To the north of the City property is the Bainbridge Dry Cleaners establishment. To the west is a restaurant, a marina, a marine store, with an architect's office on the second floor, and a coffee shop. To the south is Eagle Harbor, with the Winslow Marina docks and pleasure boats moored offshore. -3- VI Applicant plans to build a 9000 square feet complex composed cf two, two-story buildings in an L-shaped configuration, linked by a short one-story connector. The cost wculd be in excess of $400,000. See Exhibit A-!. VII The height of the buildings from the ground to the top of the highest gable would be thirty-four feet. The buildings are stepped down at the south waterfront shoreline along Eagle Harbor to prevent a high wall effect as seen from the water. The chimney would protrude above the thirty-five foot maximum height requirement. (See Exhibit A-3.) The chimney would not be so massive as to obstruct substantially views of the water. VIII Applicant proposes to construct the buildings approximately fifteen to twenty feet from the mean high water line. (See page A-1 of Exhibit A-3.) in order to enhance the view corridor down Madison Avenue, Applicant would set the buildings back ten feet from the Madison Avenue property line. IX The buildings would block two current open public views of the waterfront: 1) from the City's south Madison Avenue public plaza southeast into Eagle Harbor; and 2) from the City lot a!cng the north edge of Applicant's property south and southeast into Eagle Harbor. These public views would be less disrupted if the buildings were constructed fifty feet back from the shoreline. The second story of the buildings would be contained within a gabled roof, sloping down to the top of the first story. The exteriors of the buildings would be shingled, The windows would have many small panes. The character of the building complex would be reminiscent of the Cape Code style. See Exhibit A-3. XI The character of the proposed buildings is in character with some of the other buildings and establishments in the area, especially the Saltwater Cafe immediately adjacent to the west. The King buildings' difference in character from -4- such buildings as the "boxy" dry cleaner building to the north is a difference to be encouraged. The scale appears larger than other nearby buildings, but such design features as the gabled roofs, L-shape, and one-story connector, which breaks up the mass, minimize the difference in scale. XiI Applicant plans a courtyard for the interior of the L of the buildings, to tie into the adjacent public plaza at the waterfront fccz of Madison Avenue. The King courtyard would be open to the public as well as to the tenants cf the building. XiII Applicant plans extensive landscaping around the perimeter cf the lot as well as the parking lot and courtyard areas. See page A-1 of Exhibit A-3. It was not clear at the time of the hearing whether or not such landscaping would contitute !0 percent of the parking area. XIV Applicant intends to provide 36 parking stalls for 9000 square feet cf commercial floorspace as follows: nine stalls west across Madison Avenue in the Winslow Wharf parking lot (see agreement with Winslow Wharf, Exhibit A-5); 22 stalls on site; and five on a City-owned strip of land along the north boundary cf the property. Applicant has been negotiating with the City for use of the eastern portion of this property, the western portion of which holds a City Sewer Lift Station and generator shed. See October 3, 1985, letter from Carol King to Mayor Tawresey, Exhibit P. XV As part of the City's waterfront pedestrian trail system, the crigina! 1981 master Shoreline Development Permit included a waterfront trail from a footbridge across the sicugh along the shoreline of Applicant's property to the City's plaza at the end of Madison Avenue. The former City Park Commission also recommended that Applicant's trail be located along the waterfront and tie in with the City waterfront trail system. See Exhibit B. Applicant proposes that the trail connect the future slough footbridge west through the property, between the parking lot to the north and the buildings and courtyard to the south, over to the City plaza at the foot of Madison Avenue. It appears from page A-l, of Exhibit A-3 the April 18, 1987, Schematic Design, that some, if not all, of the "trail" would be concrete walkway. -5- App!icanz opposes the Park Ccmmissicn's recommendation that the pu~iic foot trail traverse the waterfront perimeter of the property. She is concerned about safety a!cng the waterfrcn~ bulkhead, security for the tenants, and liability. City Land Use A~T, inistrator Mike Regis also expressed concern about liability and public safety if the trail were to traverse the waterfront perimeter of the property. Public safety, security and liability concerns are caused in part by the buildings proposed proximity to the shoreline. if Applicant were to locate her buildings fifty feet or more ~ack from the shoreline as required by WMC 16.!2.670.C. 5 in the absence of a conditional use permit,. then pedestrians could walk a waterfront trail without being so close to the buildings or the bulkhead and would also be more visable from the parking lot and the City plaza. Currently there is a public walkway along the bulkhead on the marina/restaurant property to the west. There was no testimony that its location has presented safety or security problems. XVI Applicant proposes to convey to the City her one-half portion of the Madison Avenue waterfront street end for the City to deve!cp and maintain as a waterfront park or viewing station. This land at the top of the bulkhead is approximately sixteen feet by twenty feet, containing about 200 square feet cf useable area; the related shoreline from the top cf the bulkhead to the mean high water mark is about four feet wide and adds eighty square feet of essentially vertical rockery. See Exhibit A-3, page A-i. Appiicanz also agrees to the City's request for an easement across her lot to connect with a future foot bridge that the City hopes to build east across the slough to connect to the Winslow waterfront trail system. It is not clear whether cr not land cn the east side of the slough is legally available for connecting to this footbridge. The City, however, wishes to preserve this option for the future. Until such time as a footbridge is built, Applicant and the City have discussed installing a public viewing platform on App!icant's side of the slough, near where the footbridge would be built. XV!I With the exception of a narrow view corridor to the southwest, the buildings would block all public view of the water from Appiicant's proposed interior courtyard. Speaking through her architect, Mr. Miller, Applicant rejected -6- moving the courtyard to the waterfront, making it contiguous with tke City Madison road end plaza. Applicant has designed the cour~yard's interior location to be visable and inviting to the public from Madison Avenue. Applicant ccntends that if the courtyard were moved to the waterfront and the western building moved north, the building would hide the courtyard from public view and therefore wculd not be accessible to the public. Applicant expressed concern about safety and security in a public courtyard not immediately visable from Madison Avenue, especially at night. Applicant also prefers the courtyard's interior location as set forth on page A-1 of Exhibit A-3 for possible transformation into additional parking in the event that lease of the City land for five parking stalls fails. XVIiI The current City plaza at the foot of Madison Avenue is clearly visible to the public as a pedestrian extension of Madison Avenue South. If Applicant's courtyard were !oca~ed cn the waterfront, abutting the City plaza, then the public would either see it from the Madison/Parfitt intersection or flow naturally to it from the existing City plaza. Signs could also be posted giving notice and inviting the public in. XIX On April !6, 1987, Barry Wenger of the State Department of Ecology wrote a letter to City Land Use Administrator Mike Regis expressing concerns about the King proposal. Mr. Wenger stressed especially the stringent criteria contained in WAC Ch. 173-14-140, governing review of conditional uses, especially the cumulative impact provision. The cumulative impact of additional "like" actions in the area wculd appear pertinent in addressing public access, traffic patterns, parking, view corridors, and future availability of shoreline site for water-dependent and water-related uses. The State Department cf Ecology reviews any shoreline substantial development permit granted by the City and must also grant approval before work can commence. XX On June 6, 1987, the Planning Agency recommended apprcva! of the Shoreline Substantial Development Permit with the following conditions: -7- (A) A Conditional Use Permit for non-water related ccmmercia! use which promotes public access; (B) A Conditional Use Permit for the chimney above the ccmmercia! height limit, if required; (C) Apprcva! cf the use of public property for parking stalls as negotiated by the City Council; (D) Granting by the Applicant of a quit claim deed or easement for a bridge/trail upon the Applicant's tidelands; (E) Dedication of the southwest toe of King parcel south cf the lower Madison Avenue right-a-way. See Exhibit L. XXI The Planning Agency deferred review of the landscaping plans until the construction plans are presented at a later time. See page A-1 of Exhibit A-3, the Schematic Design dated 29, April 1987, which presents a general idea of the landscaping plan. XXII The Planning Agency requested the Hearing Examiner to expicre opportunities for "some type of agreement to lease some portion cf the ground floor to those kinds of business that would be open to general public as customers (ie, retail shops cr fccd and beverage services rather than private offices)" See Exhibit L. XXIII Other than general commercial, applicant has not specified the uses planned for the buildings. At the public hearing cn June 22, she stated that she did not know whether her realty office would be moved there. However, a large sign is posted cn the property announcing it as the future site for the real estate office of King and Associates, as well as announcing the availability of office space to lease. She further testified at the hearing that she has been approached by yacht brokers, yacht designers, and stock brokers. The interiors of the buildings have not been divided into cubicles but instead have been left open sc that the spaces can be tailored to the tenants' specific needs. XIV Applicant guessed that sixteen or more people would work in the buildings, which would generate the "normal commercial activity." See Exhibit A-2. There was no specific testimony concerning traffic impact. The area already is used for commercial purposes. Available parking is heavily used. Street parking would -8- beccme somewhat more concentrated when nine vehicles from the larger Wins!cw Wharf lot are displaced by King tenants or c~stcmers. XXV Applicant intends to install a sprinkler system in the buildings. XXVI A Threshold Determination of Nonsignificance to the environment was made by City Land Use Administrator Mike Regis on May 26, 1987. Exhibit E-1 XXVII Notice cf the Public Hearing was published for two consecutive weeks in the Bainbridge Review on June 4th and June 10th, 1987. Notice was visibly posted on the property. CONCLUSIONS OF LAW Legal notice of the public hearing was properly given. II The property is in a commercial zone and designated as an "urban environment" by the City's Shoreline Management Master Program. WMC 16.12.570 sets forth the purpose and uses of shoreline "urban environment" as follows: A. "Urban enviroP~ent" is an area of intense modification cf the natural systems caused by human activity with residential, commercial and industrial uses. The purpose of placing an area in an urban envirc~_ment is to insure the utilization of the area to be multiplicity of intense human uses. B. The use policies are as follows: 1. Any shoreline use, subject to specific use regulations concerning them should be permitted. 2. Public access should be encouraged. Where practical, various access points ought to be linked to non-motorized transportation routes, such as bicycle and hiking paths. -9- 3. P.U.D. s should be encouraged within the skzre!ine area.** 4. Floating homes shall be permitted in this environment. III WMC !6.12.670 C. provides general regulations for commercial shoreline developments as follows: 1. Cc~.ercia! developments which are dependent or re!a~ed to the shoreline are allowed. 2. Cc~T. ercial facilities should provide public access to shoreline areas when feasible, taking in~ consideration public safety, public health, and security. 3. Uses which are not shoreline dependent or related hut which provide an opportunity for the community to have access to the shoreline shall be encouraged. These uses require a conditional use permit. 4. Uses that are not shoreline dependent or related and which do not provide an opportunity for the ccr~.unity to have access to the shoreline may be a!!cwed on a case-by-case basis subject to the general gca!s and policies for environments. These uses will require a conditional use permit. 5. Uses other than water dependent and water related t~ ~e located less then fifty feet from the ordinary high water mark shall require a conditional use permit. Because ~he use proposed is neither shoreline dependent nor related, c~nditiona! use permits will be required both to a!lcw the prDpcsed ccmmercia! use and to build less than fifty feet from the ordinary high water mark. IV If Applicant is allowed to develop her proposal, the public will have little access to the shoreline: 1. The przpcsed foot bridge across the slough, connecting Appiicant's property to the Winslow trail system to the east, is not certain, especially in light cf staunch opposition by landowners and residents on the east side of the slough. **Although the project is not being submitted as a P.U.D. it meets many cf the P.U.D. criteria such as excellence of design, creative use of space, aesthetically pleasing appearance, and provision of public open space in the interior courtyard. It does deviate, however, from the original Winslow Wharf master plan for the entire area. -10- 2. The public would have shoreline access along the east slough edge cf the parking lot, but the public would he excluded from the bulk cf the skcre!ine perimeter cf Applicant's property. Applicant plans a shoreline perimeter trail for use by tenants and their patrons. Although she would not barricade the trail, she would not invite the public onto the trail. Rather she proposes allowing the public to use an inland walkway cutting through her property a!cng the south edge of the parking lot. The buildings to the south would block the waterfront from zhis walkway. 3. Applicant proposes to convey to the City her twenty feet toe of waterfront at the foot of Madison Avenue. This would provide public access to the shoreline from the City's present streetend plaza. WMC 16.12.670 B. provides polices for commercial deve!cpmen~s along the shoreline area as follows: !. Ccmmerciai development should be compatible in design and scale to the area in which it is located. 2. Parking facilities should be placed inland away from the immediate water's edge and recreational beaches. 3. Ccrnerzial developments should be designed and maintained and existing ones improved and maintained in such a way as to minimize disruption cf scenic views. VI These policies for commercial development apply to Applicant's prcposa! as follows: 1. The deve!cpment proposed is compatible in design and scale zo the area in which it is located. See Finding cf Fact XI. 2. ~!Cst parking would be placed away from the water's edge, hut eight stalls would be located along the shcreiine of the slough. The lot does not border cn any usable recreational beaches, although it does front on a marina docks offshore to the south. 3. The kui!dings proposal for this site would significantly disrupt the scenic view of Eagle Harbor from the southern foot of Madison Avenue and the City !ct a!cng the north edge of the property. See Finding of Fact IX. -!1- VII W?IC 16.12.930 B. outlines what Applicant must demonstrate in an app!isazicn for a conditional use permit: !. That the proposed use will be consistent with the policies of the Master Program; 2. That the proposed use will not interfere with the normal public use of public shorelines; 3. That the proposed use of the site and design of the project will be ccmpatib!e with other permitted uses within the area; a. T~ the proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is to be located; · ~ t 5 ~.,a the public interest suffers no substantial detrimental effect. State law similarly stresses that all five criteria must be met in order for a conditional use permit to issue. WAC 173-14-140 (I). Viii The conditional use criteria apply to the instant application as follows: 1. As set forth in Conclusion of Law VI, the proposed use is not fully consistent with the policies of the Master Program. Although the proposed development is compatible in design and scale to the area in wkic.h it is !ccated, a) eight parking stalls would be placed along the ir~ediate water's edge, and b) the buildings would disrupt the public's scenic view cf Eagle Harbor. 2. Aside from the view disruption, the proposed use would not interfere with the normal public use of public shorelines. Applicant owns the inner slough tidelands and the shoreline above the mean highwater mark. The public tidelands below the mean high water mark are not easily accessible from the private shoreline. The water offshore to the south is accessible to the public by way of the adjacent marina, App!icant's proposal to deed her southwest toe cf waterfront tc the City would add to the public shcre!ine and, therefore,increase the public use of public shorelines. 3. The proposed design of the project is compatible with other permitted uses within the area. The proposa!'s mixed private commercial use is not compatible with such publicly accessible shoreline uses as the adjacent Winslow Wharf Marina and Saltwater Cafe, which allow the public to use and/or view Eagle -12- Harbor. It is compatible with the dry cleaning esz~iisl%r~ent to the north, but which is inland from the shoreline. The TrcTcsed use would cause no unreasonably adverse effects zo the shoreline environment. The Tu~iic interest wcu!d suffer substantial adverse detriment in the permanent loss to the public of the potential for a shoreline related use use of one of the !asz remaining pieces of commercial waterfront in Winslow. IX WMC 16.12.930. D. and WAC 173-14-140 (4) provide that. In the granting of all conditional use permits, consideration will be given to the cumulative impact of additional requests for like actions in the area .... As pointed cut by architect Jim Cutler at the public hearing, there is very little commercial waterfront left in winsicw and, therefore, very little waterfront available for water related cr dependent uses, especially of the type which the public ccu!d enjoy. Since the use proposed is one that neither includes nor invites significant public waterfront access, another like development in the area could have the effect of further precluding the public from the water and shoreline cf Eagle Harbor. X WAC 173-14-140 provides that in authorizing a conditional use, lcca! gcverT~ents may attach special conditions to prevent undesirable effects of the proposed use. The Hearing Examiner, however, does not feel it legally appropriate or wise for the City to dictate to Applicant the businesses to which she must lease the space, as suggested by the Planning Agency. XI There is nc need to consider a conditional use permit for the chimney, which height would be above thirty-five feet. WMC 18.12.270 defines height of a structure as the vertical distance above the grade to the average height of the gable of a pitched roof. Moreover, WAC 173-14-030 (9) specifically excludes chimneys, such as the one proposed, which do not substantially obstruct views. For this reason no conditional use permit is needed for the chimney. -13- XIi At the hearing, concern was raised about the effect of a recent U.S. Supreme Court land use case on Mrs. King's application and cn the City's desire for public access to the waterfrcnt within a private property development. First English Evangelical Church of Glendale v County of Los Angeles, 55 US Law Week 4781 (june 9, 1987), appears to require a gcvermnent to compensate a private land owner for ,,taken ,, ~ g property only where the government restriction effectively precludes all use of the property by the owner. The Supreme Court specifically does not deal with the question cf ncrma! delay in obtaining building permits, changes in zoning, ordinances and normal governmental zoning related requirements. Although it is often difficult to strike an appropriate balance between public and private rights, it dces not appear that this case will have any effect cn this proposal before the City at this time. XIII Since the public hearing, the United States Supreme Court has handed down a new land use case dealing with shoreline public access across private property, Nollan v California Coastal Commission, 55 LW 5145 (June 26, 1987). in essence the ccurt's ruling applies to the King proposal as fci!cws: The City cannct condition grant the development permit upon conveyance of a public access easement across the property without some form of compensation unless there is essential nexus between the condition imposed and a valid governmental objection with which the development would interfere. withcut compensation, the City could, condition the permit upon King's provision of a viewing spot for the public with whose sighting of the harbor the buildings would interfere, height or width limitations, or a ban on fensos 55 LW at 5147. Applicant's proposal to convey to the City her 200 plus square feet toe of waterfront protruding from the southwes~ corner of the property and her proposal to open the interior courtyard to the public does not offset the waterfront view losses to the City and the public described in Finding cf Fact IX. Moreover, the private mixed commercial use proposal is contrary to the clearly expressed City and State policies of encouraging water dependent or related activities along the shoreline, or at least businesses like restaurants, which invite public access. Nothing can completely offset diminishing the availability of scarce commercial waterfront to non-water related or dependent uses. -14- XIV A wazerfrcn= trail along the perimeter of the property, open to the puklic, or the shifting of the courtyard from the interior cf the site to a waterfront location would help offset the City's and public's loss of waterfront view caused by the two-story buildings hugging the waterfront. It would also offset somewhat the nonpublic and nonwater related activity cf the general commercial office use proposed. The grant of conditional use permits in this case is dependent upon the pubiic's receiving public shoreline benefit commensurate with its losses. For these reasons, compensation tc Applicant for public access is not required by Not!an. XV However, the City is prepared to compensate Applicant for the shoreline public access across her property. The City is willing to allow Applicant use of some 2875 square feet of City property for parking stalls along the north edge of her property. Without the space for these five additional stalls, Applicant must reduce the size of her buildings from their present 9000 square feet. The King courtyard, which Applicant proposes to share with the public, contains 2500 square feet, but does not constitute an equal trade for use of the City land, unless located cn the waterfront; the public would then be able to view the harbor as it now can from the City properties but as it otherwise would not be able if the buildings are constructed. The City lot available to Applicant is some 375 square feet larger than App!icant's courtyard, which would not be so!ely for public use but shared by the public with the building tenants. This surplus value offered by the City ccutd be considered compensation for the easement over Applican~'s slough. A waterfront trail around the perimeter of the property, although not equivalent in square footage to the City property to be used by Applicant, could provide an equivalent waterfront view if linked with a proposed footbridge across Applicant's sicugh. -15- RECOMMENDATIONS AND DECISIONS For the foregoing reasons the Hearing Examiner recommends approval of the Shoreline Substantial Development Permit and grants ccndizicna! use permits for a non-water related ccmmercia! use which promotes public access and for a building located less than fifty feet from the shoreline, on the fol!cwing conditions: t. Permanent public access to the waterfront by way of a trail along the waterfront perimeter of the property or movement of the interior courtyard to the waterfront side of the property, accessible by public trail cr walkway from Madison Avenue and the future slough foot trail or such other equivalent public access as approved by the City Planning Agency and Hearing Examiner; 2. Grant of an easement across Appiicant's slough tide!ands for possible future installation of a footbridge, which is integral to the use of Applicant's waterfront trail or waterfront courtyard, to which the footbridge should link by foot trail; and; 3. Dedication to the City of the southwest toe of the King parcel, if the value of the City's land to be used by Applicant for parking proportionately exceeds the value of other public waterfront access given by Applicant in an amount equal to the value cf App!icant's southwest toe of waterfront. 4. Parking lot landscaping in compliance with WMC 18.56.120. Dated this day of July, 1987, J. Robin Hunt Hearing Examiner -16-