COMMUNITY DEVELOPMENT DEPARTMENT STAFF REPORT - …cityofferndale.org/wp-content/uploads/2017/04/HE-SR... · 2017-05-23 · Malloy Heights Planned Unit Development (16001-PUD) Revised

Malloy Heights Planned Unit Development (16001-PUD)

Revised May 23, 2017

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COMMUNITY

DEVELOPMENT

DEPARTMENT

STAFF REPORT

HEARING BODY: Hearing Examiner

HEARING DATES: May 4, May 16, & May 24, 2017

STAFF REPORT DATE: Revised May 23, 2017

PROJECT NAME: Malloy Heights Planned Unit Development (PUD)

TYPE OF APPLICATION: Preliminary Plat, Planned Unit Development, Plat

Variance

DESCRIPTION: The applicant proposes to subdivide two adjacent

parcels totaling 38.78 acres in size into up to 192 single

family detached lots. One variance request is included

in the proposal for a reduced front setback reduction

on all lots.

PROJECT FILE

NUMBER(S): 16001-PUD, 16002-VAR, and 16018-SE



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LOCATION: The Malloy Heights project is located on two legal lots

of record (Tax Parcel No. 390219504236 and

390218504171), making up the Northwest quarter of

the Southeast Quarter of Section 18, Township 39

North, Range 2 East. The property is located in the

6200 block of Malloy Avenue, west of Malloy Avenue,

north of Thornton Street. The property has potential

access points from the Plat of Vista Ridge to the west,

Glacierview Division 2 to the south and Malloy Avenue

to the east.

APPLICANT: MD General, LLC

APPLICANT’S AGENT: Craig Parkinson, Cascade Engineering Group

STAFF REPORT EXHIBITS/ATTACHMENTS

Exhibits

1 Staff Report

2 Planned Unit Development (PUD) Application

Attachments

1 PUD Maps

2 Aerial Photo Map

3 Comprehensive Plan Map

4 Zoning Map

5 SEPA MDNS April 17, 2017

6 SEPA Comment #1

7 SEPA Comment #2

8 SEPA Comment #3

9 SEPA Comment #4

10 SEPA Comment #5

11 Applicant SEPA Comment Response

12 Wetland Delineation Study – July 16, 2016

13 Wetland Stream Buffer Average 5-11-17

14 Wetland and Buffer Mitigation Strategy

15 Stream Buffer Strategy – November 23, 2016

16 Housing Examples

17 CC&R’s for Malloy Heights PUD



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18 Preliminary Storm Report

19 Preliminary Storm Review Letter

20 Temporary Concurrency Certificate

21 Landscape Plan

22 Street Lighting Plan

23 Neighborhood Meeting Information

24 Variance Application

25 Street Width Exhibit

26 Notices and Affidavits

27 Latecomer Agreement

28 Public Comment # 1





33 Combined NOA & Intent to Issue an MDNS

34 Public Comment #6




















54 Project Narrative Addendum May 12, 2017



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55 Project Narrative Second Addendum May 16, 2017

56 Project Narrative Third Addendum May 17, 2017

57 Postal box location map and email from Post Master



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OVERVIEW

The applicant proposes a Preliminary Plat, Residential Planned Unit Development (PUD) to

subdivide two parcels totaling 38.77-acres, zoned RS 81 (Residential 8 Single Family) into

up to 192 single-family residential lots. Ferndale City Staff have reviewed the proposal

and have sought modifications, the majority of which are reflected in the attached

exhibits. This staff report reflects all modifications that the applicant has proposed in

response to questions posed by the Hearing Examiner. This staff report and the

attachments shall supersede all previous staff reports.

Staff have also attached a series of conditions to ensure that the development meets City

regulations and environmental requirements. The Hearing Examiner is tasked with

making a recommendation (approval or denial, with conditions) to the Ferndale City

Council. If the Preliminary Plat is approved by the City Council, the applicant will have five

years (subject to a one-time extension) to complete the infrastructure work necessary to

support the project. Once the infrastructure is complete (in one or more phases), the

property owner would be able to request that the City Council approve the Final Plat,

which would then formally create individual lots. The Hearing Examiner public hearing is

the last opportunity to make comment at an open record public hearing on this issue.

The Malloy Heights applicant proposes residential development on a 38.77-acre site (see

Attachment 1). The applicant has identified 192 single-family lots comprising a total of

20.97 acres. Single-family lot sizes will range from 4,000 (smallest) to 8,973 (largest)

square feet (sf). The average lot size will be approximately 4,758 sf. The proposed density

and layout is consistent with the density range identified within the Planned Unit

Development regulations, with the anticipated total density for the project achieving

approximately 4.95 dwelling units per gross acre2. All lots are planned for single family

detached structures. See Attachments 1 & 2 for maps of the area.

The subdivision includes single family lots, open space tracts, road rights-of-way, a

stormwater pond and associated infrastructure, privately owned and maintained trails

open to the public, utilities and critical areas.

1 The single family residential zoning was amended in March 2017. RS 8 zoning is now referred to as RS

Medium. The density range remains the same – the main difference is that lot size averaging requirements

have been eliminated. It is unlikely that the zoning change would have measurably impacted the proposed

development or its design. As the proposed subdivision vested to the zoning in place at the time of

application, this staff report will refer to the then-current zoning designation. 2 Per Ferndale Municipal Code 18.68.050 D, the density range allowed is 3-7 residential units per gross acre.



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Of the 38.77 acres being developed, 20.97 acres will comprise lot area, 9.01 acres will be

dedicated as public right-of-way, and 1.69 acres will be established as a stormwater tract.

The remaining 7.09 acres is proposed as eight open space tracts, with approximately 4.8

of these acres (or 22.9% of the total lot area) considered “useable” open space.3

As proposed, the project will be phased over a period of up to five years unless an

extension is requested and granted extending this period to seven years per FMC

17.20.090. The first phase is anticipated to begin Summer 2017, contingent on City

Council approval of the preliminary plat and administrative approval of civil infrastructure.

A phasing plan showing six distinct development areas is provided on page 4 of 19 in

(Attachment 1). The applicant intends to progress in a clockwise direction starting with

the “blue phase”, though phasing may shift depending on market conditions, and the

applicant may elect to develop the project in one phase, provided that City approval is

granted.

The proposal is subject one variance request, to partially reduce the front yard setback

throughout the development discussed later in the staff report. The City recommends

APPROVAL of the variance request, subject to certain conditions as discussed in this Staff

Report as well as past precedent.

BACKGROUND

The site is currently undeveloped, with one house constructed in 1968 and scattered

outbuildings on the property. No previous development proposals have been submitted

for this site.

SETTING

Site Description

The site is zoned RS 8 – Single Family Dwelling and designated as Low Density in the

Comprehensive Plan. Vegetation on the site is a mix of scrubland, trees, fields and

blackberries. The property has rolling topography with a variety of undulations

throughout, but generally slopes downward from the southwest to the northeast, and

contains a number of small, delineated wetland areas scattered across the site (see

Attachments 1-4 for aerial map, comprehensive plan map, zoning map and plat maps).

3 Per FMC 18.68.050 H (Table I), a residential subdivision with total lot area exceeding 6.01 acres must

include at least 20% Usable Open Space. The total lot area of the proposed subdivision is 20.97 acres.



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Surrounding Area

North:

Directly north is an unnamed creek and associated ravine which acts as a tributary of

Whiskey Creek. The north property line of the project site delineates the City limits.

Properties to the north are within the City’s Urban Growth Area (UGA) and are zoned UR4

Urban Residential – 4 units per acre per County zoning.

West:

The Vista Ridge residential subdivision to the west contains ~104 single family residential

lots on approximately 31.4 acres.

East:

The site is bound by Malloy Avenue to the east. Further east lies the Malloy Village PUD

subdivision with ~155 single family and single family attached lots on approximately forty

acres. The fourth phase of the PUD is currently under construction.

South:

To the south is the Glacierview residential subdivision which consists of 89 residential

single family lots on approximately thirty-five acres.

ANALYSIS

Process and Procedure

As with other preliminary subdivisions, the City does not require or anticipate that

fully-engineered, construction-ready civil plans will be developed prior to

receiving certainty from the City through the preliminary plat process. As such,

the applicant has acknowledged that there is some risk that the full review of civil

drawings will require changes that must be made to the preliminary plat, potentially

requiring re-review by the Hearings Examiner. In order to reduce this risk, the Ferndale

Public Works Department has reviewed schematic civil plans for the project. No

fundamental flaws have been identified that would prevent the City from approving the

civil plans – but the approval of a preliminary plat does not constitute approval of any

construction documents and a revised stormwater report must be submitted as part of

the submittal of civil plans. A condition has been added to this effect.



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Future Actions

The Hearings Examiner’s record has been established through this staff report as well as

hearings held on May 4, May 16, and 24th. Following the closure of these public hearings,

the Hearing Examiner will transmit his recommendation to the City Council. The City

Council will consider the Hearing Examiner’s written recommended conclusions, findings

of fact, and any proposed conditions of approval of the Hearing Examiner, together with a

full record of testimony. The Hearing Examiner is tasked with establishing the record for

this proposal. The Council will make a final decision on the Preliminary Plat, subject to

appeal to Whatcom County Superior Court. Should the preliminary plat be approved, the

applicant will be required to submit fully engineered civil drawings to the Ferndale Public

Works Department for review prior to the issuance of a land disturbance permit

authorizing the construction and installation of infrastructure. Should the review of civil

drawings identify inconsistencies with the Ferndale Development Standards in place at the

time of submittal or the approved preliminary plat, re-review by the Hearing Examiner

may be required. Conditions to this effect have been added to this staff report.

Comprehensive Plan, Zoning, and Density

The Comprehensive Plan designates the subject property at Low Density Residential with

a density range per net acre of 3-7 units with an assumed average of 4 units per acre. The

underlying zoning designation is RS 8 Single Family requires a density of 4-7 units per net

acre. The PUD ordinance lists density ranges as “gross,” allowing 4-7 units per gross acre.

The applicant proposes 4.95 units per gross acre. The density is consistent with the PUD

ordinance requirements.4

SEPA – STATE ENVIRONMENTAL POLICY ACT (FMC 16.04)

A SEPA Mitigated Determination of Non-Significance (MDNS) was issued April

17, 2017 (Attachment 5) following a fourteen-day comment period. Six written comments

were received during the SEPA comment period (Attachments 6,7,8,9,10). A summary of

each comment (categorized into type of impacts) and staff’s response to each impact

4 Staff notes that FMC 18.68.010 (Purpose) states that the PUD regulations allow a development to “in effect

replace the underlying zoning….” and further states that the chapter is “not intended to establish densities

that are less than would normally be anticipated within the underlying zone (emphasis added).” The PUD

chapter does not prohibit densities in excess of the underlying zone, provided that the achieved densities

are within the density range identified in the PUD ordinance.



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category are provided below. Staff has determined that the modifications made by the

applicant since the MDNS was released are likely to either generate the same or less

impacts than the original proposal, and that no modification to the MDNS or SEPA

Checklist are required:

1. STORMWATER:

The Carey Brothers, LLC (owners of Malloy Village PUD to the east) formally oppose

the development (Attachment 7). Tim Carey states in the letter that the flow of water

from the site appears to be subterranean and exits the surface to the east of the

protected wetlands at Malloy Village PUD. The concern is any development on the

subject site will further change the hydrology of both properties (Malloy Heights PUD

and Malloy Village PUD). As Malloy Village nears completion, the liability of continued

mitigation of the water drainage from the project site will fall on the Malloy Village

Home Owner’s Association, according to Mr. Carey.

City staff forwarded the comment letter to the applicant and requested the applicant

to address this comment. A letter submitted by the applicant in response to this

comment is attached as (Attachment 11).

Staff Response: The City of Ferndale will require the applicant to provide a storm

analysis, consistent with the Department of Ecology (Ecology) stormwater manual

prepared by a licensed engineer. The applicant submitted a complete application on

October 4, 2016, which allows the project to design in accordance with the 2005

Department of Ecology Stormwater Management Manual. However, substantial changes

to the project, or if construction has not started by January 1, 2022, will require applying

the current Stormwater Management Manual.

Staff believes compliance with the manual will mitigate the impacts of the changes

proposed by the development. The Intent to Issue MDNS was not revised as a result of

this comment.

2. NOISE:

Two comments were received by surrounding property owners related to the

proposed working hours of 7AM to 10PM, which is consistent with the City Nuisance

Ordinance 8.08.020 and WAC 173-60-040. An adjacent property owner notes the

proposed project is scheduled for period of up to five years and requests that

proposed construction hours be limited to 7AM to 5PM and limit days of



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construction to the standard work week of Monday through Friday with no

construction on the weekend. The property owner states that extending construction

hours beyond 5PM or on the weekends is unreasonable and will negatively impact

their quality of life. Another property owner adjacent to the project noted similar

concerns and requests the construction hours be limited to 8AM to 6PM.

Staff Response: FMC 8.08.020 regulates noise levels within various zones and

establishes a timeframe of 10PM to 7AM for reduced levels of noise. FMC 8.08.020.I.2

states sounds originating from temporary construction sites are exempt. Due to the

project duration (five or more years when building construction is included) staff

believes the project is not “exempt” from noise regulations and should follow the 10PM

to 7AM timeframe as proposed in the Intent to Issue MDNS. There is no doubt that

noise will be generated as a result of the development but does not believe the

development should be limited to the hours suggested by the adjacent property

owners. Staff proposes to leave the noise hours as-is, consistent with the noise hours

established for the construction of the surrounding developments and consistent with

City-wide rules. The Intent to Issue MDNS was not revised as a result of these

comments.

3. TRAFFIC:

Multiple comments were received related to traffic.

A neighboring property owner requests that the City require construction traffic to

use the major arterials of Malloy and Vista as much as possible, minimizing

construction traffic through the existing neighborhoods for safety and noise

concerns.

Another comment stated concerns of additional traffic will be generated as a result

of the development.

Staff Response: The applicant is required to mitigate traffic impacts with payment of

traffic impact fees, frontage improvements and compliance with City traffic

concurrency requirements. The site is zoned for a development of this size and

additional traffic on Malloy Avenue is anticipated as new developments are

constructed. The Intent to Issue MDNS was modified to include language related to

haul routes. A condition was added to the MDNS to read: Construction haul routes and

staging areas should avoid travel through existing neighborhoods to the greatest

extent possible.



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4. WETLANDS/CRITICAL AREAS:

Multiple comments were received related to wetlands and critical areas:

A comment received objected to any off-site wetland mitigation, stating

any impacts that are unavoidable should be mitigated on the project site.

A comment received requested the fence be located along the north stream

to keep children from falling into the creek.

A comment received raised concerns over the wildlife (specifically deer)

being forced to relocate as a result of the development.

Staff Response: The applicant is required to avoid or mitigate impacts per the City’s

Critical Area Ordinance (CAO) (FMC 16.08). Off-site mitigation is allowed per the CAO.

Further, the area is not identified as a habitat of local importance to the Ferndale

community. The applicant prepared a Wetland Delineation and Wildlife Assessment in

accordance with City standards (Attachments 13). The City did not address the fence

request (to provide a barrier between the trail and the stream) through SEPA. The Intent

to Issue MDNS was not revised as a result of these comments. This issue is addressed

later on in the staff report.

5. UTILITIES:

Water/Sewer/Run off capacity – a comment was made that Ferndale may not be able to

provide water to the subdivision.

Staff Response: City water is available to the project site and the City has the capacity

to serve the development. The Intent to Issue MDNS was not revised as a result of these

comments.

6. ARCHAEOLOGICAL RESOURCES:

Based on review of the proposal by Lummi Nation, an archaeological assessment of

the project area is not recommended at this time. However, the Lummi Nation

recommended that the following Inadvertent Discovery Protocol (shown below in

MDNS conditions) be on-site during all project activities to ensure that a clear

protocol is available should archaeological resources or human remains be

encountered.



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Staff response:

The MDNS was revised to include the inadvertent discovery language as

recommended by Lummi Nation.

The City proposes to adopt the following MDNS conditions as a condition of approval of

the PUD:

EARTH:

Preparation of a Storm Water Pollution Prevention Plan and adherence to the State

water quality guidelines in accordance with the latest adopted Stormwater Ecology

Manual. Construction will be sequenced, and take place during the dry weather to the

extent practical.

Should phased mass grading or development be proposed, prior to the initiation of

each phase the applicant shall provide the City with sufficient documentation that each

phase has established appropriate environmental protections or mitigation measures

and/or relies on previous environmental protections or mitigation measures

established through previous phases.

AIR:

Limits idling of heavy equipment during construction, watering soils if dust becomes a

problem. Installation of code compliant residential HVAC systems.



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WATER:

Stormwater:

Applicant will install or preserve measures necessary to comply with the Ecology

guidelines and the National Pollution Discharge Elimination System permit.

The applicant will prepare a Stormwater Pollution Prevention Plan in accordance to

State guidelines.

The applicant submitted a complete application on October 4, 2016, which allows the

project to be designed in accordance with the 2005 Department of Ecology Stormwater

Management Manual. However, substantial changes to the project, or if construction

has not started by January 1, 2022, will require applying the current Stormwater

Management Manual.

Establishment of a Homeowner’s Association, with responsibilities to maintain storm

facilities and critical areas.

Wetlands:

Project shall seek to avoid wetland and critical area impacts to the extent practical and

shall mitigate for wetland impacts on-or off-site in accordance with City, state and

federal regulations. If the wetland mitigation is proposed off-site, the applicants shall

first consider off-site mitigation within the City of Ferndale, if practical.

PLANTS:

Ornamental landscaping typical of new home construction will be predominant in

developed areas. Plantings may be proposed as mitigation for any buffer impacts, and

will likely be from native vegetation.

AESTHETICS:

Establishment of a Homeowner’s Association, with responsibilities to maintain

landscaping and shared common spaces, including trail spaces accessible to the

general public, will mitigate aesthetic impacts.

NOISE:

Working hours will be limited to 7AM to 10PM during construction.



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TRAFFIC:

The project will comply with concurrency requirements. Traffic impact fees will be owed

for each lot.

PUBLIC SERVICES:

Water, sewer, and stormwater infrastructure (as necessary) will be constructed to city

standards; payment of water and sewer connection fees; payment of storm sewer

mitigation fees.

During construction of the civil improvements, the contractor will coordinate with

Public Works.

Construction haul routes and staging areas should avoid travel through existing

neighborhoods to the greatest extent possible.

PUBLIC SAFETY:

Provision of fire protection infrastructure per Fire District requirements; traffic control

during construction shall be coordinated between the applicant, Ferndale Public Works

Department, and the Ferndale Police Department.

RECREATION:

Several trail segments will be constructed allowing pedestrian access to nearby natural

areas as well as providing pedestrian connectivity within this and adjacent property

developments.



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Inadvertent Discovery of Archaeological Resources:

Should archaeological resources (e.g. shell midden, animal remains, stone tools) be

observed during project activities, all work in the immediate vicinity should stop, and

the area should be secured. The Washington State Department of Archaeology and

Historic Preservation (Gretchen Kaehler, Local Government Archaeologist 360-586-

3088) and the Lummi Nation Tribal Historic Preservation Office (Lena Tso, THPO 360-

312-2257; Tamela Smart, Deputy THPO 360-312-2253) should be contacted

immediately in order to help assess the situation and to determine how to preserve the

resource(s). Compliance with all applicable laws pertaining to archaeological resources

is required.

Inadvertent Discovery of Human Skeletal Remains on Non-Federal and Non-Tribal Land

in the State of Washington (RCWs 68.50.645, 27.44.055, and 68.60.055)

"If ground disturbing activities encounter human skeletal remains during the course of

construction, then all activity will cease that may cause further disturbance to those

remains. The area of the find will be secured and protected from further disturbance.

The finding of human skeletal remains will be reported to the county medical

examiner/coroner and local law enforcement in the most expeditious manner possible.

The remains will not be touched, moved, or further disturbed. The county medical

examiner/coroner will assume jurisdiction over the human skeletal remains and make a

determination of whether those remains are forensic or non-forensic. If the county

medical examiner/coroner determines the remains are non-forensic, then they will

report that finding to the Department of Archaeology and Historic Preservation (DAHP)

who will then take jurisdiction over the remains. The DAHP will notify any appropriate

cemeteries and all affected tribes of the find. The State Physical Anthropologist will

make a determination of whether the remains are Indian or Non-Indian and report that

finding to any appropriate cemeteries and the affected tribes. The DAHP will then

handle all consultation with the affected parties as to the future preservation,

excavation, and disposition of the remains" (DAHP).

Critical Areas – (Ferndale Municipal Code 16.08)

The City of Ferndale amended its Critical Areas Ordinance on March 27, 2017. The

applicant submitted a complete application prior to this adoption date and therefore is

subject to regulations in the previous Critical Areas Ordinance.

Critical Area Identification:



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The applicant provided a Wetland Delineation and Wildlife Assessment report dated July

16, 2016, prepared by Cantrell & Associates (Attachment 12). The purpose of the study

was to determine the existence, extent, and regulatory status of any wetlands within the

subject property and to determine the known or likely presence of any habitat

conservation area (HCAs), priority habitats or species within or in the vicinity of the study

area.

Wetlands:

Cantrell & Associates observed 11 palustrine wetlands on the subject parcels

(Attachment 12). The majority of the wetlands (10) were identified as Category IV

wetlands, requiring a minimum buffer of 25 feet in width. One wetland was identified as

a Category III wetland, requiring a 50-foot buffer.

Streams:

Cantrell & Associates also observed three streams located on and adjacent to the site.

Two Type NS5 streams requiring a 25-foot buffer are located on site, and one off-site

Type F stream requiring a 100-foot buffer from the Ordinary High Water Mark (OHWM)

and 25-foot buffer from the top of the bank (whichever is greater. A diagram showing

this buffer width regulation is provided as Attachment 13.

Critical Area Mitigation Strategy

The applicant provided a preliminary Wetland/Stream mitigation strategy (Attachment 14

for wetland and Attachment 15 for streams) for the proposed impacts to the wetlands

and stream buffers. A final mitigation report in compliance with FMC 16.08.270 is

required prior to issuance of the land disturbance permit.

Wetlands:

Under the proposed approach, nine small, on-site Category IV emergent wetlands

comprising a total of 21,697 square feet are proposed for filling under the plan. The

applicant states that the wetland fills are necessary to accommodate an efficient

residential site design and that the wetlands identified for fill are small, scattered, and

have low diversity. In contrast, the applicants have pointed out that the large streams

and largest on-site wetland that feeds the on-site stream will be preserved and

protected.

Streams:

5 Streams are classified using various criteria as listed in WAC 22-16-030. Wetlands are rated based on

Categories, Category 1 being the highest function and Category 4 being the lowest.



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Two streams are identified on site and referred to as “North Stream” and “East Stream” in

the mitigation report. The east stream segment is identified as a Type 5 waterway,

subject to a 25-foot buffer. The north stream, identified as a Type 3 waterway is subject

to a 100-foot buffer from ordinary high water mark and a 25 five-foot buffer from the

top of bank on areas with a slope of 20 percent or greater. In this instance, the more

restrictive buffer is applied. The applicant has provided a diagram showing the required

buffer setbacks for each stream and the proposal to average the buffer widths.

(Attachment 13).

Buffer averaging with a net increase in buffer area is proposed for impacts to stream

buffers on site and for the creation of pedestrian trails.

The applicant has thus far provided a preliminary mitigation strategy which staff has

determined to be sufficient for the preliminary plat review stage (Attachments 14 and

15). A final mitigation plan in accordance with all items specified in FMC 16.08.270 and

Article XI. Appendix A of the CAO must be submitted for review and approval prior to

issuance of land disturbance permit.

The applicant is required to identify mitigation measures to critical areas that the trail

may cause in accordance with the City’s Critical Areas Ordinance prior to issuance of the

land disturbance permit. Conditions have been added to this effect.

On-site Wetlands and Enhancement Areas:

For all remaining identified critical areas and mitigation areas (after on-site mitigation),

the applicant is required to place a deed restriction on all remaining on-site wildlife

corridors, buffer, and mitigation areas that protect the critical area from future

development, and to place signage consistent with City of Ferndale requirements to

identify these protected areas. A condition has been added to this effect.

Performance and Maintenance Securities for on-site critical areas and buffers:

Prior to construction activity, the applicant is required to post a performance surety for

all critical area work in conformance with 16.08.240 and Development Standards Chapter

5, section 503 Performance Securities and Section 504, maintenance securities.

Construction activities shall not impact protected wetlands, streams or buffer areas. The

final mitigation plan shall propose methods to protect critical areas, buffers and

enhancement areas during construction of the plat. A maintenance bond in the amount

of 150% of the approved estimate of the total cost of work within the subject areas is

required for all mitigation/maintained activities associated with the critical areas. Portions



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of the maintenance bond will be released after each annual inspection or inspection

timeline proposed by the critical areas professional. Conditions have been added to this

effect.

Lot Design, Setbacks and House Design

Preliminary Plats (FMC 17.20), Design Requirements (FMC 17.28) and

Required Improvements (17.32)

The Malloy Heights subdivision is considered a Preliminary Plat/ Planned Unit

Development. This means that the proposal combines the various design elements of

a conventional subdivision (as described in FMC 17.20, 17.28 and17.32) with

additional flexibility in terms of lot configuration, size, and a variety of other elements

(as described in FMC 18.68). When additional flexibility is not sought, the

requirements of Title 17 are assumed by default.

The applicant responds to the conventional subdivision requirements of FMC

17.28 (Design Requirements) in most respects, with the following exceptions:

FMC 17.28.030 Blocks and Lots

B (2) b: The easement or handle portion of a panhandle lot shall be a minimum of 24

feet in width.

There are several lots within the proposed Malloy Heights subdivision (13, 16, 33, 34, 45,

46, 47, 55, 56 & 57) that contain panhandles. The City will require combining the

panhandle access points of multiple lots that adjoin one another into shared access

easements, at least 24-feet wide. While the individual lots may not include a panhandle of

24 feet individually, the shared access easement will be at least 24 feet in each case (a

condition has been added to this effect).

Staff has determined that flexibility on panhandle width can be provided through the PUD

ordinance, without a variance. The proposed reductions do not diminish access for first

responders, nor do they diminish the functionality of the driveway(s). The City will require

a condition be added to each lot stating that no vehicular parking may occur on the

shared access easement, and no waste receptacles or other personal belongings shall be



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left on the shared easement in a manner that would prevent access for one or more

properties. A condition has been added to this effect.

B (2) d: All proposed lots shall meet the minimum lot area requirements for the zone,

exclusive of the easement area or area included in the handle portion of a panhandle

lot. And;

B (3): Lots fronting on cul de sac roadways shall be at least 40 feet wide at the edge

of the right of way and at least 70 feet wide at the building line, and;

B (4): Lots for residence purpose shall be at least…50 feet wide in the RS 8 zone

The City’s Planned Unit Development (PUD) standards provide additional flexibility

on these elements, generally requiring that life-safety issues are addressed but

allowing lot dimensions to be reduced to require a minimum 40’x40’ building area,

not including required setbacks or easements, or single- family attached dwelling

lots. Each lot within the proposal meets these requirements, and no lot is less than

the 4,000 square foot minimum lot size authorized by the PUD chapter. Conditions

have been added to this effect.

Building Setback Requirements

In order to determine that a 40’ x 40’ building area exists, the City must first determine

the required setbacks for each lot. Typically, conventional subdivisions rely upon the

zoning requirements in place at the time a complete building permit application is

submitted to determine setback requirements. This approach allows the City’s

requirements to change over the life of a subdivision. Planned Unit Developments are

somewhat different, in that the PUD standards “in effect replace the underlying zoning

subject to specific guidelines and restrictions.”

This means that it is appropriate to identify setback requirements and incorporate those

setbacks into the recorded plat document.

Front Setback:

The applicant has requested reduced front yard setbacks of 15 feet to the front building

façade while maintaining a 20-foot long driveway in front of garages (see variance

request section beginning on Page 46 of this staff report).



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As is discussed below, City Staff have determined that the building setbacks proposed

would require a variance from the PUD standards, consistent with other PUD’s that have

previously been approved. The applicant has demonstrated conditions similar to what

has allowed such variances to be approved in other PUD’s, and Staff recommends that

the variance be approved in this case as well.

PUD Perimeter Building Setback:

The applicant proposes to eliminate the 30-foot PUD perimeter setback (required under

FMC 18.68.050.E) for the development. The perimeter setback elimination discussion is

combined with the landscape buffer proposal on page 31 of the staff report.

City Staff has determined that the PUD meets the provisions of 18.68.050 E (1), allowing

flexibility for perimeter buffer and setbacks requirements.

House Design

The applicant does not anticipate acting as the primary building contractor within this

development. Instead the applicant will likely sell all lots or lots individually or in groups

to individuals or construction companies. At the request of the City, the proponent has

submitted several pictures showing typical construction types (Attachment 16), but it

should be noted that these pictures are intended for illustrative purposes only and do

not represent a specific housing design. The lots will be single-family detached, and will

likely follow typical construction processes. The private Covenants Codes and

Restrictions address design review for the development (draft versions are found in

Attachment 17), and are not enforced by the City.

The applicant proposes to construct single-family detached units. Proposals to establish

duplexes or other attached units will be considered a substantive change and will require

additional review. A condition has been added to this effect.

Landscape Island Entrance:

The applicant proposes a landscaped island to delineate the front entrance from Malloy

Avenue, within the public right of way. This landscape island will serve to create a

distinctive entrance to the subdivision and will separate inbound and outbound

movements. Whatcom County Fire District 7 and the City of Ferndale have indicated

that such a monument can be approved, but must verify that there is a sufficient radius

for turning movements. The proponent will be required to submit a diagram and

calculations for this purpose. A condition has been added to this effect.



Page 21 of 61

Infrastructure Design

As is typical, the City has not yet reviewed detailed, engineered civil drawings for this

project. As a result, civil conditions associated with the subdivision are general in nature.

If significant modifications to the preliminary plat are identified during the course of civil

review, the Hearing Examiner may be required to re-review the proposal. A condition has

been added to this effect.

17.28.060 Utility Requirements

Adequate water capacity is not available at Malloy Avenue to accommodate the

project site. Fire flow levels are currently inadequate to service the proposal, due to

Malloy Avenue’s location below the majority of lots within the subdivision. Water main

connections from adjacent upland developments will be necessary to bring fire flow to

the development.

Sanitary sewer service available in the area are currently at capacity. The sanitary sewer

system requires an upgrade prior to allowing the project to hook up to sanitary sewer

services.

No regional stormwater pond exists, so the development will be required to treat and

detain stormwater onsite per Ecology guidelines.

Sanitary Sewer

Sanitary sewer capacity within the project area is over capacity, requiring an upgrade to

the sanitary sewer conveyance system in this area of the City. The City estimates the

sanitary sewer system upgrade project will begin Summer of 2017. While the sewer

capacity project is fully funded and in the final design stages, the timing for construction

is subject to change based on weather, bid prices, and more. This sanitary sewer

extension project will install a new sanitary sewer gravity main on Thornton Street

beginning east of Malloy Avenue and will extend to Portal Way, via a bore under the

Burlington Northern Santa Fe (BNSF) railroad tracks. The project is expected to provide

adequate capacity to service the Malloy Heights development and was identified as a

need prior to the submittal of the Malloy Heights development.

As noted, the City has budgeted for the Thornton Street Sanitary Sewer project and the

design phase of the project is underway. The City anticipates the project will be

completed concurrent with or prior to the first phase of construction. Verification of this



Page 22 of 61

completion should be made at the time of Final Plat. The City informed the applicant of

the need for this project during the technical review committee meeting.

As noted, while the City’s sewer project is on schedule for completion in Summer 2017,

the City cannot anticipate future Council actions to approve design or bid documents.

Therefore, in order to better-regulate the timing of when sewer capacity can serve the

development, the applicant may wish to construct the Thornton sewer extension and

seek repayment from the City, and the City would be open to considering such an

approach. The City believes that the applicant is aware of the need for this sewer

extension project in order to serve the new development, and that the applicant is aware

that the City is proceeding with that project through the required public process.

Sewer service to each lot will be required. Sewer services will be installed as necessary, to

be determined during the review of civil plans. A condition has been added to this effect.

Water

Water service to each lot as well as water service necessary for required irrigation of

landscaping will be required. Water services will be installed as necessary, to be

determined during the review of civil plans. A condition has been added to this effect.

Fire Flow:

Adequate fire flow is required to service each phase of the development to the

satisfaction of the Public Works Department.

The City anticipates that fire flow will be determined based upon civil drawings submitted

with each phase of development.

Adequate fire flow must be provided for each phase of the development to the

satisfaction of the City and the Fire District prior to recording the mylars. A condition has


Fire hydrant locations will be analyzed and identified as part of the coordinated review of

civil drawings in conjunction with the Fire District. Conditions have been added to this

effect.



Page 23 of 61

Stormwater

The applicant submitted a complete application on October 4, 2016, which allows the

project to design in accordance with the 2005 Department of Ecology Stormwater

Management Manual. However, substantial changes to the project, or if construction has

not started by January 1, 2022, will require applying the current Stormwater Management

Manual. Staff has determined that the modifications proposed in May 2017 are not

substantial, and the project remains vested to the 2005 Department of Ecology

Stormwater Management Manual.

A 1.69-acre stormwater tract has been reserved for the proposed stormwater pond. A

preliminary stormwater report (Attachment 18) has been submitted with the application,

along with a preliminary review conducted by the City (Attachment 19). The applicant

has indicated that the stormwater pond may not utilize the full 1.69 acre stormwater

tract, although the specific size of the pond will be determined through the civil review

process.

Lot drainage design for individual lots shall comply with the City development standards.

In order to maintain the private stormwater facility, a minimum 20-foot wide access

easement, providing access to all stormwater structures, and a minimum 14-foot wide

roadway to support a 70,000 pound or greater vactor truck is required. A condition has


17.28.050 Street Requirements

The development of the Vista Ridge and Glacierview subdivisions anticipated the

future extension of Lancaster Avenue and North Beulah streets when the subject

properties were proposed for development. The Malloy Heights development has

been designed to continue those roadways through the subdivision.

The applicant has proposed to vary from the City development standards to reduce

the roadway width in portions of the project. The Ferndale Development Standards

vest the Public Works Director with the authority to approve or deny variances from

or design modifications to the Development Standards. The Public Works has

approved reduction of roadway width in portions of the project. With the exception

of this approved variance request, the public streets within the proposed subdivision

shall meet the minimum dimensional requirements of the City of Ferndale. A full set of

civil plans that reflect the proposed changes have not been submitted and will be



Page 24 of 61

reviewed by Public Works staff for compliance with the City’s Development Standards

prior to issuing a land disturbance permit. A condition has been added to this effect.

All public streets within the subdivision will be fully constructed to City standards (with

the exception of any approved variances) and the applicant shall be required to work with

Puget Sound Energy, Whatcom County Fire District Seven, and other agencies or utilities as

part of the review of civil drawings in order to ensure compliance with all applicable

regulations. A condition has been added to this effect.

Frontage Improvements:

The project will also be required to construct full ¾ street frontage improvements along

Malloy Avenue per City of Ferndale Development Standards.

All frontage along Malloy Avenue from the main entrance to the south along the property

line shall be substantially complete per City standards, prior to recording final plat. A

condition has been added to this effect.

The remaining frontage along Malloy Avenue north of the main entrance along the

property line shall be substantially complete per City standards, prior to issuance of the

51st single family structure. A condition has been added to this effect.

Latecomer’s Agreement:

The project is subject to terms listed within the latecomer’s agreement referred to as “The

City of Ferndale Utility Improvement Recovery Agreement related to water and sewer

main extension – Malloy Village, LLC, Auditors File Number 2090302422 (Attachment 27).”

A condition has been added to this effect.

Transportation Elements

The proposed plat meets all Transportation Concurrency requirements, and has been

issued a Temporary Certificate of Concurrency (Attachment 20). This means that the

projected full build-out of the subdivision would not reduce the City’s street Level of

Service below what has been adopted by the City Council.

As discussed previously, the development will be required to extend public roads to the

boundaries of the property to the west (to Lancaster Avenue) and south (to N Beulah

Avenue) in order to connect to existing streets in those subdivisions.



Page 25 of 61

The Institute of Traffic Engineers (ITE) provides estimates for trip generation for a variety

of uses, including both single-family detached units and single-family attached units, or

townhouses. The trip calculations are shown below, and the PM peak hour trips are the

basis for the City’s Traffic Impact Fees, which will be paid half at plat recording and half

associated with building permit. A condition has been added to this effect.

Traffic Generation Table

Condition

Zoning or Use

(Area)

Source

Daily Trip

Rate

Daily

Trips

P.M. Peak

Hour Trip

Rate

P.M. Peak

Hour Trips

Existing

Zoning &

Use

RS 8

(1 SFR DU)

ITE

(210)

9.57

VTE/DU

9.57

1.01

VTE/DU

1.01

Proposed

Use

Single-Family

PUD

(192 SFR DU)

ITE

(210)

9.57

VTE/DU

1,847.01

1.01

VTE/DU

193.92

Increase in Trips as Compared to Existing Use

1,847.01

193.92

Notes: VTE = Vehicle trip ends DU = Dwelling unit

ITE = Institute of Transportation Engineers (Land Use No.)

International Residential Code (IRC)

The City of Ferndale currently requires compliance with the 2015 IRC for single family

structures. The City will adopt the new 2018 IRC on July 1, 2019. Building permit

applications submitted on or after the above date will be subject to the 2018 IRC.

Public Services

Fire and Emergency Services

Fire protection and emergency medical services for the area will be provided by Whatcom

County Fire District #7 (WCFD7). The civil plans must be acceptable to the Fire District

prior to issuance of the Land Disturbance Permit. The Fire District has not identified

significant obstacles in providing these services based on the conceptual layout that has

been provided to the City. A condition has been added to this effect.



Page 26 of 61

Schools

Impacts to the Ferndale School District resulting from the proposed development will be

mitigated by the payment of school impact fees to be determined by the District. The

school district was provided plans for the development and a SEPA notice. No comments

were received from the school district related to this proposal.

Parks, Recreation and Trails Requirements

The City’s Parks, Recreation and Trails Master Plan has adopted Level of Service requiring

that 75% of all residential properties in Ferndale be within a ten-minute walk (1/4 mile)

of a public park or school playground, to be accessed via trails and sidewalks.

The project site is located between a number of public parks and ranges from less than

1/4-mile to 1/2-mile distance from the surrounding park areas.

The applicant proposes a series of trails within community open space tracts for

residents within the Malloy Heights subdivision and the general public, utilizing a

combination of trails and sidewalks (Sheet 19 of Attachment 1). The trails will provide

connectivity within the development and to neighboring developments and may

ultimately provide more-direct connectivity between this subdivision, Malloy Village, and

nearby schools.

A northern creek corridor trail will be provided within Tract A, also a trail connector

within Tract E along the southern margin of the property which will include a connection

between the Vista Ridge and Glacerview subdivisions; Tract D, will include a 10-foot path

leading to a terraced community garden, Tract F, located in the western portion of the

project, will provide a trail connection to the Vista Ridge pedestrian access easement6,

and in Tract G located in the west portion of the project will provide a connection from

north to south up to Tract A.

6 The Vista Ridge pedestrian and utility access easement (adjacent/west of proposed Malloy Heights PUD) is

generally accessible north of the proposed Tract F, providing a pedestrian connection up to Lincoln Drive.

The Vista Ridge homes (with access easement within backyards) to south of the Tract F connection have

fenced in/encroached on portions of the pedestrian easement preventing access south to Vista Drive as

originally intended. This issue will ultimately be between the City and private property owners through

enforcement of conditions which authorized the establishment of the Vista Ridge subdivision; this issue is

separate and distinct from this PUD approval.



Page 27 of 61

The northern creek corridor runs along the top of a steep bank. The City requests that

the applicant propose a method to protect residents from the steep slope with split

railing fencing, warning signage or another acceptable method approved by the City,

prior to establishing the trail. A condition has been added to this effect.

The trails are required to be open to the public and maintained by the Home Owner’s

association in order to receive credits against park and trail impact fees. Trail easements

shall be established on the plat map prior to recording. In exchange for the trail system,

the City will calculate the equivalent value of the trails as per the Parks, Recreation and

Trails Master Plan. This value will be credited against Park Impact Fees, which are due half

at plat recording, and half associated with the building permit. Conditions have been

added to this effect.

Home Owners Association & Covenants, Codes and Restrictions (CC&Rs)

“Per FMC 18.68.060, the applicant must submit and record bylaws for an owner’s

association and, prior to final plat approval, the applicant shall convey by deed all private

walkways and trails lying outside of the public right-of-way, together with common areas

and open space areas, to an owner’s association.”

The City shall be provided with easements necessary to serve and maintain all property

and utilities owned and/or maintained by the City. The owner’s association shall be

empowered to collect dues and assessments and to enforce covenants, conditions, and

restrictions and any rules and regulations deemed necessary for the governing of

development and use of each lot and common areas within the PUD. A condition has been


The applicant is requested to complete a study to determine the appropriate funding for

a reserve account necessary to sustain the owner’s association’s maintenance obligations

as per RCW 64.38.065.

The CC&Rs contain general provisions related to the maintenance and upkeep of the

homes within the PUD. Per FMC 18.68.070, the applicant is required to incorporate

architectural control standards to create a unified architectural concept for the homes into

the CC&Rs. Prior to final plat approval, the CC&Rs shall be revised to reflect this

requirement and all requirements listed in 18.68.070 A-C. A condition has been added to

this effect.



Page 28 of 61

Preliminary CC&Rs are attached as Attachment 17.

Open Space

Ferndale Municipal Code 18.68.060 (H – Table I) requires a minimum of 20% of lot area, or

4.19 acres, be dedicated and used as Usable Open Space.

The applicant proposes a total of 7.09-acres of open space and 4.80 acres of usable open

space (12.3% of the site, and 22.9% of the lot area) as summarized in the table below:

Open

Space

Tracts

Usable

Open

Space

Location Purpose

A 55,447 sf* Located along the

northern perimeter

of project

Includes the northern creek corridor and

pedestrian path with interpretive

viewpoints

B 73,797 sf Stormwater Tract Landscaped, unfenced low impact storm

pond with pedestrian access along the

north and east margin.

C 38,617 sf* Centrally located Pedestrian path with nature interpretive

areas

D 21,531 sf Located in the

southeastern

portion of the

project

Terraced open space area to be used for

community gardens accessible from the

cul-de-sac via a 10-foot wide trail.

E 14,103 sf Along the southern

margin of the

property

Will include a pedestrian path along the

southern perimeter of the project.

F 1,306 sf Western portion of

the project

Will provide a trail connection to the

Vista Ridge Plat

G 4,077 sf Located in the

western portion of

the project

Will provide a trail connection from north

to south

H none Located near the

entry road

Will contain a stream remnant and buffer

I none Runs along the east

portion of the south

boundary

Will provide five-foot full buffer screen

Total 208, 878 sf

(4.80-acres)



Page 29 of 61

*Only some portions of open space tracts A & C include “usable open space”

Tract A and Tract C contain critical areas and critical area buffers. Per FMC 18.68.030.K.,

usable open space may not include critical areas and their associated buffers. The

applicant proposes to utilize portions of these tracts as usable open space that are

accessible by trails located within critical area buffers. Staff believes the intent of the

code is met for open space within these tracts, and that the open space provisions are

proportionate to the impact. The establishment of a linear trail through or along these

areas allows pedestrians to experience these various natural features, which is the intent

of the code.

Tract B is a stormwater and tract and also included as usable open space. Per FMC

18.68.030.J., states usable open space may include unfenced detention ponds. The City

accepts this tract as usable open space with the following conditions:

The stormwater facility will be designed as a low impact stormwater pond. A licensed

stormwater professional will demonstrate active use and landscaping screening in and

around the stormwater infrastructure will not diminish its effectiveness. Further, the

applicant shall seek to provide access to the tract via a trail where feasible. The

applicant shall work with the Ferndale Public Works Department to consider

modifications to the frontage improvements in the northeast portion adjacent to the

storm pond, to determine the effectiveness of a meandering sidewalk located within

close proximity of the storm pond.

Tracts D currently exhibits steep slopes and is proposed to be terraced and used for

community gardens with trail access from the cul-de-sac. To qualify as usable open

space, the applicant is required to grade the tract to 15% or less. A condition has been


In addition, the CC&R’s shall be amended to reflect Tract D’s status as a community

garden with trail access, and a water service to the tract may be shown on proposed

civil drawings, in order to provide irrigation water to the tract. A condition has been


The remaining tracts, E, F, and G contain open space areas and trails. According to FMC

18.68.030.J., usable open space may include wooded areas accessible by path system

and pedestrian paths.



Page 30 of 61

Staff believes that the required Open Space provisions have been met, as the open

space provisions within this plat provide the same range of open space activities that

have been afforded to other PUD’s in the City of Ferndale and the overall Open

Space areas exceed the minimum standards identified by the PUD ordinance.

LANDSCAPING

A landscape and lighting plan identifying the type, size, spacing, and maintenance

schedule for all landscaping (including lighting elements) proposed within the required

buffer areas, open space areas, and other common areas is required to be submitted and

approved by the City prior to plat recording. A condition has been added this effect. See

Attachment 22 for the proposed lighting plan for the development.

Landscaping will be required along all public rights of way. In addition, permanent

fencing or vegetative hedges will be required to delineate trail access and protected

areas.7 Root barriers are required to be installed for all street trees, a condition

has been added to this effect.

Public rights of way: the applicant shall propose a landscaping (“street tree”) plan to the

Ferndale Public Works Department as part of the review of full civil plans. Maintenance of

trees along the public right of way is the responsibility of the property owners8 and must

follow City conventions. The City will require that landscaping along the street be located

behind the sidewalk and outside of the 10-foot dry utility easement as shown in the cross

section (Attachment 1, Page 17) Conditions have been added to this effect.

The applicant requests street tree plantings be delayed until after final plat approval in

order to accommodate individual lot development. The City typically requires all street

trees be planted prior to final plat approval. Alternatively, the applicant could post a

performance surety in the amount of 150% of the landscaping costs including (plantings,

installation and materials) with the City. The City would require street tree plantings to be

installed within one year of the plat recording or after the first 50 lots receive occupancy

whichever occurs first. When plantings are installed, the applicant is required to post a

maintenance surety for a period of three years in the amount of 10% of the total cost of

the plantings to ensure survival of the trees. Conditions have been added to this effect.

The PUD CC&Rs shall outline Home Owner’s Association responsibilities to maintain

landscaping including landscaping proposed within the Malloy Avenue right of way and

7 Wetland mitigation plantings are not considered landscaping, and are administered separately.



Page 31 of 61

landscaping throughout the development. A separate, metered, irrigation line shall be

installed in appropriate areas for landscaping that is not directly adjacent to homes that

require watering. The City shall require that the HOA prohibit the removal of healthy trees

in these areas, and that the HOA be required to replace or remove dead, or significantly

damaged trees within three years.

Landscaping within the Malloy Avenue right of way shall be consistent with landscaping

used for Malloy Village PUD and shall be drought tolerant, low maintenance plantings.

Conditions have been added to this effect.

Trail Access and Protected Areas: Prior to final plat approval, the applicant shall

propose and install fences, vegetative barriers, signage, or other devices to limit user

access to protected wetlands and stormwater facilities.

The stream channel and associated ravine to the north of the site will be in close

proximity to the major east-west trail within the subdivision. The ravine has significant

slopes which, when combined with existing vegetation at the top of the ravine will likely

reduce casual encroachment into the wetland and the ravine itself. However, the City

recommends that the applicant place signage and consider placing fencing at those

locations where there is lack of vegetation and the risk of fall is more pronounced. A

condition has been added to this effect.

PUD LANDSCAPE BUFFER & PERIMETER BUILDING SETBACKS

FMC 18.68.050.E., states, “Buffer Requirements. Unless exempted below, landscaping and

other screening features such as berms and/or fencing shall be established within the

required buffer area(s) to provide a solid screen separating the development site from

adjoining properties. Building setbacks within the residential planned unit development

shall be a minimum of 30 feet from any exterior property boundary. A minimum 20-foot-

wide landscaped buffer shall be established around the entire perimeter of any residential

planned unit development. Trails and other pedestrian connectivity may be used to

replace buffer requirements in certain locations.

1. The City may grant flexibility from some or all perimeter buffering and

external building setback requirements based on the following:

a. The average lot size within the proposed PUD is no less than 80

percent of the conventional minimum lot size within the underlying zone.

b. The proposed PUD is adjacent to an existing residential planned unit

development or residential subdivision with average lot sizes not less than



Page 32 of 61

80 percent or more than 120 percent of the average lot size within the

proposed PUD.

c. Building construction types and uses are similar in nature between the

proposed PUD and adjacent developments.”

The applicant proposes to eliminate the building perimeter setback and reduce and/or

eliminate the PUD landscape buffer in the following circumstances followed by Staff

Analysis (refer to Attachment 1 for specific locations):

1. Location: The southern perimeter of the project in the area west of Beulah Avenue

(Lots 35, and from Lot 45 to Lot 56). Reduction: Maintain the 20-foot landscape buffer but eliminate the 30-foot building setback. The applicant proposes to build a trail in this location. Analysis: Staff agrees with the applicant’s assertion that relief is appropriate under Section E (“Trails and other pedestrian connectivity may be used to replace buffer requirements in certain locations”). Moreover, the application meets the criteria under Section E.1(a) (the applicant’s average lot size is 4,758sf and the minimum lot size for the underlying zone is 3,500sf) and Section E.1(c) (the proposed PUD has building structures and uses similar to the adjacent developments).

2. Location: The western perimeter of the project from the applicant’s proposed Lot 56 to Lot 65.

Reduction: Eliminate both the 20-foot landscape buffer and the 30-foot building setback along the western perimeter of the project from the applicant’s proposed Lot 56 to Lot 65 Analysis: Staff agrees with the applicant’s arguments that this section of the PUD is adjacent to a section of the Vista Ridge PUD which contains an easement for a pedestrian trail that is dedicated to the public. The applicant contends that relief from the buffer and setback requirements is provided by Section E (“Trails and other pedestrian connectivity may be used to replace buffer requirements in certain locations”). The applicant further points out that the homes in Vista Ridge in this location are already setback far from the perimeter of the proposed PUD and built at significantly higher elevations, and that the need or effectiveness of a buffer and building setback are therefore reduced. Finally, the application meets the criteria under Section E.1(a) (the applicant’s average lot size is 4,758 and the minimum lot size for the underlying zone is 3,500sf) and Section E.1(c) (the proposed PUD has building structures and uses similar to the adjacent developments).



Page 33 of 61

3. Location: Western perimeter of the project between applicant’s proposed Lot 91 and

from Lot 164 to Lot 167 Reduction: Maintain the 20-foot landscape buffer but eliminate the 30-foot building setback along the western perimeter of the project between applicant’s proposed Lot 91 and from Lot 164 to Lot 167. The applicant proposes to build a trail within the landscape buffer in this location. Analysis: Staff agrees with the applicant’s argument that relief from the buffer and setback requirements is provided by Section E (“Trails and other pedestrian connectivity may be used to replace buffer requirements in certain locations”). Moreover, on the adjacent property to the west of this location is the storm pond for Vista Ridge, which does not require a buffer. Finally, the application meets the criteria under subsection E.1(a) (the applicant’s average lot size is 4,758 sf and the minimum lot size for the underlying zone is 3,500sf) and Section E.1(c) (the proposed PUD has building structures and uses similar to the adjacent developments).

4. Location: Eastern perimeter of the project from applicant’s proposed Lot 1 to Lot 13

Reduction: Eliminate the 20-foot landscape buffer and 30-foot building setback

Analysis: Staff agree with the applicant’s argument that per the proposed landscape plan, the applicant will be planting a landscape buffer in the right of way of Malloy Avenue in this location; this landscape buffer will be maintained by the homeowner’s association. Moreover, the area to the east of this location is the Malloy Avenue right of way, which does not require a buffer. The applicant will be installing a sidewalk along the Malloy Avenue right of way in this location; this sidewalk constitutes a pedestrian trial. Therefore, relief from the buffer is appropriate under Section E (“Trails and other pedestrian connectivity may be used to replace buffer requirements in certain locations”). Moreover, relief is appropriate under subsection E.1(a) (the applicant’s average lot size is 4,758 sf and the minimum lot size for the underlying zone is 3,500sf); subsection E.1(b) (the average size of the lots in the proposed Malloy Heights subdivision is not less than 80 percent or more than 120 percent of the average lot size of the Malloy Village PUD), and subsection E.1(c) (the proposed PUD has building structures and uses similar to the adjacent developments).

5. Location: The southern perimeter of the subdivision along applicant’s proposed Lots

13, 14, 15, 16, and 34. Reduction: Reduce the 20-foot landscape along the southern perimeter to five feet and eliminate the 30-foot building setback.



Page 34 of 61

Analysis: Staff agrees with the applicant’s argument that the reduction of the buffer and elimination of the building setbacks is permitted because the applicant meets the criteria described in subsection E.1(a) (the applicant’s average lot size is 4,758 sf and the minimum lot size for the underlying zone is 3,500sf) and subsection E.1(c) (the proposed PUD has building structures and uses similar to the adjacent developments). However, due to the close proximity of the proposed development and the existing residences immediately to the south, Staff believes the applicant should be required to propose and install a five-foot-wide landscape buffer consistent with the City’s L-3 (High Screen) Landscaping requirements as described in FMC 18.74. A condition has been added to this effect.

FMC 18.68.050.E gives the city flexibility to reduce or eliminate both the landscape buffer and the 30-foot building setback requirements along the perimeter of the proposed PUD when appropriate. A review of staff reports and minutes from 2012 (when buffer flexibility language was put in place) reveals that the Planning Commission and City Council initially considered eliminating the large buffer and setback requirements entirely, except in those circumstances when Staff or the public felt that they were essential. However, it was ultimately decided that the City would be in a better position if it were able to allow reductions to a default requirement, rather than establishing what would be perceived as an “additional” requirement. Staff believes in cases where buffer is reduced or eliminated, the PUD code allows for flexibility if the intent of the buffer is met. Staff believes that the proposed development achieves the intent of the code, and retains buffers or setbacks in those areas where they are appropriate. Conditions requiring specific landscaping plantings and subsequent maintenance by the HOA are recommended. Conditions to this effect have been added to this staff report.

Malloy Avenue Frontage

The City has determined that a full 20’ PUD buffer along Malloy Avenue south of the primary entrance is not warranted beyond the establishment of street frontage landscaping that will be maintained by the HOA (see Page L4 of the draft Landscaping Plan [Attachment 21] dated 3-24-17). As described by FMC 18.68.030 B (Definition of Terms – Buffer Area), the buffer area is intended to “separate the planned unit development from adjoining land uses which are incompatible with the uses within the planned unit development.” The sixty foot Malloy Avenue right of way provides the required separation, and the proposed landscaping provides the required visual screening. Finally, the uses within the Malloy Village subdivision are also single family residential, and are not considered incompatible with the uses within the Malloy Heights subdivision.



Page 35 of 61

Neighborhood Meeting

Per FMC 18.68.120.B.2, the applicant is required to hold a neighborhood meeting (Attachment 23). The applicant provided proper noticing to the surrounding neighbors and held a public meeting on July 19, 2016 (prior to submitting a formal application to the City). The following comments, questions and/or concerns were discussed at the meeting:

1. Will there be a playground?

Applicant Response: No playground is proposed, but a trail network would be provided.

City Response: The applicant is required to build and maintain trails available to the

public. Park impact fees will be owed for the difference. The applicant is not required to

add amenities such as tot lots or playgrounds. The City’s 2013 Parks, Recreation and

Trails Master Plan recognized that the construction of a looped trail system connected to

all City parks would be a better, more-efficient use of City and private funding sources

than requirements that all subdivisions establish private tot lots or parks. A future

neighborhood park is planned north of the Malloy Heights subdivision, within the

unincorporated Urban Growth Area of the City of Ferndale.

2. Traffic on Beulah and within Vista Ridge was voiced as a concern. People do not wish

to see additional traffic on the neighboring streets.

Applicant Answer: No response provided

City Response: Additional traffic will result from this development. The applicant is

required to comply with traffic concurrency requirements and pay traffic impact fees.

3. Speed of traffic was voiced as a concern

Applicant Response: No response.

City Response: Speed of traffic is enforced by the Ferndale Police Department.

4. Comment received that the person would oppose any development until Thornton

Road went through to I5?

Applicant Response: No response.

City Response: Noted.



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5. Comment received that the schools are full, no room for more students, applicant was

asked what they were going to do about that.

Applicant Response: School impact fees would likely be paid.

City Response: The school district has been notified of this development through the

SEPA Notice. School impact fees are owed for each lot within the development. The type

and scale of use are consistent with long-range projections of both the City of Ferndale

and the Ferndale School District.

6. Question about sidewalks on Malloy Avenue.

Applicant Response: Expected that the City will require frontage improvements on Malloy

and that sidewalk would likely be installed along the frontage.

City Response: Frontage improvements are required to be installed along Malloy Avenue

(including sidewalks) per City Standard.

7. Vista Ridge – question regarding pedestrian trail behind homes on boundary line.

Applicant Response: City has this trail connection on the City trail plan.

City Response: an existing pedestrian easement exists on along the east boundary line of

the Vista Ridge subdivision; that subdivision was approved in expectation that a trail

would be established from Vista Drive through Lot 22 of Vista Ridge. Conditions

requiring that this trail be established and maintained were placed on the Vista Ridge

plat. Over the last two decades since that subdivision was established, many of the

property owners have encroached on the easement with fences, gardens, etc.

8. Question about where development will start?

Applicant Response: Stated that this was currently being discussed, and could occur

either near the west (top) end, or more likely near Malloy Avenue.

City Response: Based upon the applicant’s phasing plan, the first phase would include

properties along Malloy Avenue as well as the stormwater tract. In order for utilities to

be extended from Vista Ridge, it is likely that the Lancaster roadway will be extended as



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part of an earlier phase, although it is unclear whether this phase would necessarily

include adjacent lot improvements or not.

9. Truck traffic during construction was raised as a concern. People would like the truck

traffic to not use the neighborhood streets if possible.

Applicant Response: No response provided.

City Response: The applicant is required to coordinate with the Public Works Department

prior to construction to establish an appropriate haul route. The applicant shall seek to

establish routes that minimize impacts to surrounding neighborhoods. A condition has


10. Question regarding the proposed widths of the roads.

Applicant Response: Stated that a reduction from 36 feet to 28 feet would be requested.

It was also discussed that parking would be allowed on both sides of the street and the

applicant’s opinion is that it is sufficient for neighborhood streets.

City Response: See variance section beginning on Page 36 of this staff report related to

road width discussions.

11. Traffic was raised as an issue several times.

Applicant Response: Applicant relayed information they had from the City regarding the

timing of the Thornton Street improvements. Based on the information obtained by the

City, the traffic along Malloy near the project would about double, however once the

traffic reached Washington Street this increase would be about 15%. Once Thornton

extends east to I-5, traffic is expected to be reduced at Malloy/Vista.

City Response: The development will maintain the appropriate level of service as

required by the City. Traffic impacts fees are required for each lot within the

development. The development approval will not depend on Thornton Street

improvements.

12. Comment made that it would be nice to keep existing trees to the extent possible.

Applicant Response: No response provided.



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City Response: The applicant is required to provide landscaping and landscape buffering

throughout the development. See attached landscape plan, attachment 21.

Public Comments

The City received multiple comments as of the date of this staff report was finalized (April,

20th). Any other comments received after April 20th, 2017, will be entered into the record

as attachments to the staff report at the hearing examiner meeting.

Multiple comments received relate to apparent existing water flow issues occurring on the

adjacent subdivision to the east, Malloy Village PUD. Staff believes the water over-flow

issue is addressed with Conditions 3, 4 and 5, requiring compliance with adopted

stormwater regulations.

City recognizes that some comments may be general complaints or questions related to

existing conditions of the property or nearby properties: staff anticipates investigating

these issues separately from the proposed development. City staff have noted where we

believe the comments result in additional or modified conditions or additional analysis.

The comments received to date are summarized below, followed by staff comments:

1. Stoel Rives, LLP letter, received on April 18, 2017 (attachment 28). A summary of

the letter is as follows: The purpose of the letter is to request that the public

hearing scheduled for May 4, 2017 to a date at least 90 days thereafter or to some

other future date to be reasonably determined by the Community Development

Department. Malloy Village, LLC is the owner of the development located east of

Malloy Heights. Malloy Village believes its parcels are currently being inundated by

water draining from the Malloy Heights project and lands that lie uphill from the

parcel. A records request related to this issue was filed by Malloy Village, LLC and

the City indicated a response would be provided on this matter by May 5th, a day

after the public hearing. The letter states “the protection of the environment,

general compatibility with adjacent land uses, adequacy of wetland and stormwater

facilities, and the protection of the public health, safety, and welfare are all served

by a continuance.”

City Comment: Staff has established several recommended conditions in the staff

report, that will ensure that the stormwater systems within the Malloy Heights



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subdivision meet adopted City and State regulations. These conditions would be

adhered to as part of the review of fully engineered civil plans associated with the

Malloy Heights subdivision, the installation of infrastructure consistent with approved

plans, and the perpetual maintenance of those systems by the developer or Home

Owner’s Association.

2. Malloy Village LLC, received on April 19, 2017 (attachment 29). A summary of the

letter is as follows:

Malloy Village, LLC provided a letter addressed the City Mayor summarizing the

situation/letter presented in section 1 above, requesting the Mayor consider an

extension to the May 4th Hearing. Malloy Village, LLC, pointed out the Ferndale City

Attorney advised Stoel Rives, LLP that the City opposes any delay of the hearing

and asks the Mayor to consider the request.

City Comment: see City response provided for #1 above. In addition, the City notes

that the Hearing Examiner may choose to extend or delay the public hearing, and

that the burden is on the proponent of the delay to make their case to the Hearing

Examiner.

3. Malloy Village, LLC, email received April 14, 2017, requested information related to

variances for the Malloy Heights project (Attachment 30).

City Comment: the project narrative, dated, April 11, 2017 was provided per the

request.

4. Malloy Village, LLC, email received on April 19, 2017, stating, “Thank you. Brad

Oxford (the property where Malloy Heights plans to discharge their water) posed an

interesting question to me this morning. He asked if the City had taken into account

the flow of water from the new development through the small culvert under the

railroad tracks.” (Attachment 31)

In its haste to shove through the Malloy Heights project through the Hearing

Examiner on May 4th, has the City taken into account all of the downstream water

runoff issues? And the liability the City could face as a result of its actions?



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City Comment: No response provided at this time. City staff have also discussed the

project with Mr. Oxford and anticipate that Mr. Oxford will submit a comment letter

for review.

5. Lee DeLorme, email received on April 19, 2017 (Attachment 32) requesting a delay

of hearing because as stated by the sender,” During the last two winters the

wetlands have overflowed in to my back yard on several occasions. I feel there should

be an investigation into why this is happening. This is not a natural occurrence.”

City Comment: The City notes that the Hearing Examiner may choose to extend or

delay the public hearing, and that the burden is on the proponent of the delay to

make their case to the Hearing Examiner. While an investigation into unusual

wetland changes may be warranted, it is unlikely they are the result of the current

proposal.

6. Tim Carey email dated April 19, 2017. Issues raised: water discharge at Malloy

Village PUD, wetland overflow, runoff, lack of communication from Malloy Heights

PUD applicant.

City Comment:

Staff has established several recommended conditions in the staff report that will

ensure that the stormwater systems within the Malloy Heights subdivision meet

adopted City and State regulations. These conditions would be adhered to as part of

the review of fully engineered civil plans associated with the Malloy Heights

subdivision, the installation of infrastructure consistent with approved plans, and the

perpetual maintenance of those systems by the developer or Home Owner’s

Association.

Stormwater is addressed under the Water, Earth, and Public Services sections of the

SEPA MDNS issued on April 17, 2017, Condition 5, 25, & 37, and on pages 9, 10, 21

and 22 of the staff report.

No conditions were modified as a result of this comment.

7. Tim Carey letter, dated April 19, 2017, to the attention of the City Council Member

Cathy Watson. Issues raised: water discharge at Malloy Village PUD, wetland

overflow, runoff, City’s opposition to delaying the May 4th Hearing, request to delay

the May 4th Hearing date.



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City Comment: This is considered ex parte communication with City Council

Members who are tasked with reviewing the plat after a record is established by the

Hearing Examiner. This letter should be disregarded by City Council Members, and

City Council Members have been reminded that all ex parte communication should

be disclosed.


8. City Attorney Dannon Traxler letter, dated April 20, 2017 to the Hearing Examiner.

Issues raised, The City opposes the request to delay the May 4th Public Hearing.

City comment: The City opposes the request to delay the public hearing.


9. Tim Carey email dated April 20, 2017. Issues raised: public records request timing,

offsite water discharge to Malloy Village PUD, City’s opposition to delay of public

hearing.

City comment: See City comment A1 above related to water discharge.


10. Community Development Director Jori Burnett, email dated, April 20, 2017

(response to A4 email above).

City comment: N/A

11. Public Works Director Kevin Renz email dated April 20, 2017 (in response to A4 &

A5 emails above).

City comment: N/A

12. City Attorney Dannon Traxler email dated April 20, 2017, addressed to the Hearing

Examiner, providing the letter dated, April 18, 2017, prepared by Aric. H. Jarrett

requesting a hearing extension.

City comment: N/A



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13. Tom Bennett, Bennett Engineering, LCC., emailed dated April 25, 2017. Issues

raised: apparent drainage problem area in southwest corner of Malloy Village,

apparent runoff problems, Malloy Heights drainage analysis, Malloy Heights

drainage mitigation measures, capacity of the existing drainage ditch and box

culvert.

City comment: see comments above related to drainage issues. The culvert capacity

will be reviewed as part of the storm report during civil plan review. The culvert

overpass isn’t expected to receive large amounts of traffic as a result of the Malloy

Heights development. Traffic concurrency analysis shows the majority of traffic

leaving the Malloy Heights development to the south.

14. Tim Carey email dated April 25, 2017. Issues raised: apparent water sources

entering Malloy Village PUD, apparent discharge from City storm system, apparent

wetland overflow on Malloy Village PUD property, apparent discharge from the

creek, box culvert capacity, water flow, and request for delay of hearing.

City comment: see City comment A4 above related to water overflow and delay of

hearing issues. The capacity of the culvert to handle storm water will be reviewed

during civil plan review.

15. Edward King email dated April 24, 2017. Issues raised: excess uphill water to Malloy

Village PUD, request for delay of May 4th hearing.

16. Philip Rose email dated April 23, 2017. Issues raised: water drainage to Malloy

Village PUD, request to delay the May 4th hearing.

17. Paula Zellner email dated April 25, 2017. Issues raised: water drainage to Malloy

Village PUD, request to delay the May 4th hearing.

18. Paul Latham email dated April 26, 2017. Issues raised: water flow issues, request to

delay the hearing.

19. Suzanne Domino email dated May 1, 2017. Issue raised: request to delay the

hearing.

20. Rich Warriner email dated May 2, 2017. Issue raised: water flow issues, request to

delay the hearing.



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City Comment (for A10-A15 above): See City comment A1 above related to water

discharge. The City opposes the request to delay the public hearing.


21. MD General response letter dated April 26, 2017. Issues raised: opposition to

request for delay of public hearing, opposition to apparent adverse water drainage

issues caused by Malloy Heights development, water issues from Glacier View Park

subdivision.

City Comment: No comment.


22. Cascade Engineering Group, P.S., Inc. letter dated April 26, 2017. Issues raised:

opposition to concerns raised over drainage problems resulting from the Malloy

Heights project.

City Comment: The City stormwater engineer shall review this letter and the

applicant’s engineer’s approach to storm during civil plan review. The applicant is

required to comply with City and State stormwater requirements.


23. Brad Oxford email dated April 30, 2017. Issues raised: Malloy Heights storm

proposal, repairs to Malloy Avenue culvert of Whiskey Creek crossing, culvert

capacity to handle storm water, truck traffic deteriorating roadway, increased flows

through Whiskey and Cedar Creek to the BNSF railroad through a 4-foot box

culvert east of the Oxford property (6061 Malloy Avenue).

City Comment: see comments above related to drainage issues. The culvert capacity

will be reviewed as part of the storm report during civil plan review. The culvert

overpass isn’t expected to receive large amounts of traffic as a result of the Malloy



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Heights development. Traffic concurrency analysis shows the majority of traffic

leaving the Malloy Heights development to the south.


24. Yvonne Pullar letter dated May 1, 2017. Issues raised: opposed to PUD landscape

buffer reduction request that borders 6201 Malloy Avenue.

City Comment: 6201 Malloy Avenue, (Lot 1 of the Des Rochers Short Plat) is adjacent

to the proposed reduced buffer width shown as Tract I on the sheet 3 of 19 of

Attachment 1 of the original staff report. The applicant proposes to reduce the PUD

buffer from 20 feet to 5 feet along this section of the PUD. The five-foot buffer would

provide a full screen to the five properties adjacent to the buffer to the south. The

applicant was informed of this issue and may consider proposing additional

landscape easements within the south portion of the lots within the Malloy Heights

subdivision to create an increased width to the full screen.

No conditions were modified or added as a result of this comment.

25. Susan Schuitema email dated May 1, 2017. Issues raised: oppose street width

reduction, traffic increase, questions Malloy Avenue capacity to handle additional

traffic, questions water & sewer capacity, PUD buffer setbacks, safety with steep

slope to creek, advocates for noise hours limited to 5PM, no construction on

weekends.

City Comment:

Street width –

The applicant seeks to vary from the Ferndale Development Standards to reduce the

roadway width from 36-feet to 28-feet on internal circulators within in the

subdivision. As authorized within the Ferndale Development Standards, the Public

Works Director has approved this request.


Traffic –

The applicant is required to mitigate traffic impacts with payment of traffic impact

fees, frontage improvements and compliance with City traffic concurrency



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requirements. The site is zoned for a development of this size and additional traffic

on Malloy Avenue is anticipated as new developments are constructed. Staff believes,

conditions 11, 33 in the staff report, and the traffic condition on the MDNS dated

April 17, 2017, cover this issue. No conditions were modified as a result of this

comment.

Water & Sewer -

Water, sewer, and stormwater infrastructure (as necessary) will be constructed to city

standards; payment of water and sewer connection fees; payment of storm sewer

mitigation fees. Staff believes the Public Services Condition shown on the MDNS,

dated April 17, 2017, pages 20-22 of the original staff report and conditions 3, 4, 6,

and 7 cover this issue. No conditions were modified as a result of this comment.

Include natural setbacks around the perimeter –

A PUD Landscaped buffer is required around portions of the Malloy Heights PUD.

Condition 27, and pages 28-30 cover this issue. Variance request #3 on pages 42-46

discuss the PUD buffer proposal, including buffer reduction in some areas where the

screening intent can still be met. No conditions were modified as a result of this

comment.

Safety with steep slope to creek –

Condition 18 in the staff report requires the applicant install split rail fencing or other

protective measures. As stated on page 26 of the staff report, the City requests that

the applicant propose a method to protect residents from the steep slope with split

railing fencing, warning signage or another acceptable method approved by the City,

prior to establishing the trail. Condition 18 will be modified at the Hearing Examiner

meeting to include this language.

Noise –

Staff has addressed this issue on page 10 of the staff report, and under the Noise

Condition as shown on the MDNS dated April, 17, 2017. No conditions were modified

as a result of this comment.



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VARIANCE REQUEST

See (attachment 56) for front building setback variance narrative/request, provided by the

applicant.

Building Setbacks – Variance to FMC 18.32.080 – Setbacks Zoning requires a 20-foot

front yard setback. It is requested that this setback be reduced to 15-feet for those

portions of a structure that do not contain a street-fronting garage.

Staff recommends approval, with conditions

The zoning requires a 20-foot front yard setback from the front property line. It is

requested that the front setback be reduced to 15 feet to the front portions of the

structure that does not contain a street-facing garage. This will better ensure that

sufficient space exists on-lot to park in front of the garage, but will provide

additional opportunity to articulate the front of the house toward the street without

requiring additional lot depth. This will provide the builder with additional

opportunity to establish a more aesthetically pleasing streetscape. The City has

allowed similar setback reductions for other subdivisions within the City limits.

The Hearings Examiner may grant a variance application only if he finds that the

applicant has demonstrated the following facts:

1. The variance is consistent with the spirit and intent of this title.

Staff Response: It is the purpose of the PUD regulation to allow departure from the

standard zoning requirements to accommodate a more varied development than may

otherwise be permitted. This variance will provide additional opportunity to do so.

2. The notice of public hearing has been duly published;

Staff Response: The Notice of public hearing was published in the Ferndale Record on

April 12, 2017, and properly distributed (Attachment 26).



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3. The variance, either as applied for or with appropriate conditions imposed,

will not have significant adverse effects on the environment or on other uses,

or the variance as applied for or with appropriate conditions imposed will

mitigate to the greatest extent practicable all significant adverse effects on

the environment;

Staff Response: Approval of this variance will have no adverse impact on the

environment.

4. The variance will not constitute a grant of special privilege inconsistent

with the limitation upon uses of other properties in the vicinity and zone in

which the property on behalf of which the application was filed is located;

Staff Response: The variance would not grant a special privilege. Other long plats

in Ferndale (such as West Cedar Park PUD, The Meadows PUD, Malloy Village

PUD and Deer Park Plat) have been granted similar front setback reduction

variances.

5. The variance is necessary because of special circumstances relating to the

size, shape, topography, location or surroundings of the subject property to

provide it with rights and privileges permitted to other properties in the

vicinity and in the zone in which the subject property is located;

Staff Response: The variance is necessary to take full advantage of lot size/shape

modifications allowed within the PUD. This particular project proposes lot sizes that

are smaller than have typically been developed in the past in Ferndale, and this

reduction in the front yard setback will aid in providing flexibility in siting homes on

the lots.

6. The granting of the variance will not be materially detrimental to the

public welfare or injurious to the property or improvements in the vicinity

and zone in which the subject property is situated;



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Staff Response: The granting of the variance will not be materially detrimental to

the public welfare or injurious to the property or improvements in the vicinity and

zone in which the subject property is situated

7. Denial of the variance would result in unnecessary and undue hardship to

the applicant; and

Staff Response: The preservation of standard front setbacks for the proposed lots will

mean that the size of the structures, the size of the backyard, or both, could be

reduced. If the variance were to be denied, the applicant would be required to meet

all requirements of larger lots within a substantially constrained space.

8. Such a variance would be properly granted to any applicant upon an identical

showing of special circumstance relating to the subject property and the property

or improvements in the vicinity in which the subject property is situated.

Staff Response: The City believes a variance would be granted in identical situations, and has

been granted for other subdivisions.

PLANNED UNIT DEVELOPMENT REQUIREMENTS (FMC 18.68)

The PUD chapter includes a number of goals, ranging from the promotion of infill to the

provision of open space areas, encouragement of innovative and affordable housing,

allowances for cluster developments and the ability to require appropriate buffers

between dissimilar land uses (18.68.010 – Purpose).

The proposed project largely accomplishes each of these goals, in a variety of ways.

This section is intended to review the requirements of the PUD chapter, and compare

those requirements to the proposed development project.

Planned Unit Development Approval Criteria

The Hearing Examiner, as established by FMC 14.05.030, “may attach any reasonable

conditions found necessary to make such project compatible with its environment and to



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carry out the goals and policies” of the City. It is not the responsibility of the Hearing

Examiner to review each subsequent document (land disturbance permit, civil plans,

building permits), provided that he and the public have the reasonable belief that these

subsequent reviews will also adhere to the relevant regulations as well as the preliminary

plat, and that substantive deviations from these regulations will require re-review by the

Hearing Examiner through an amended plat or a variance. In order for this to be

approved, the conclusions of law and findings of fact contained in the Preliminary Plat

chapter criteria must be demonstrated.

Staff has determined that the proposed Planned Unit Development meets the hearing

requirements as specified by Municipal Code sections 18.68.130 A-H. Ferndale Municipal

Code 18.68.130 includes criteria for approval a planned unit development, as follows:

A The applicant has consulted with surrounding property owners prior to submittal

of the application.

Staff Comment: As required by FMC 18.69.120, the applicant held an informal

neighborhood meeting. Invitations were mailed to property owners within 300 feet,

a notice was posted at least 10 days before the meeting, a meeting was held and a

report summarizing the meeting was provided to the City.

The applicant discussed the project in detail to the neighbors. Concerns were raised

about parking, added traffic, mail box placement, townhomes being used as rentals,

phasing and buffer requirements. The applicant addressed these concerns (see

meeting minutes for more details).

A neighborhood meeting was conducted prior to review by the City of Ferndale, and

a meeting summary is attached as Attachment 23.

B The applicant has filed a proper application and followed the procedural steps

required by this chapter and other applicable chapters of the Ferndale Municipal

Code.

Staff Comment: The applicant filed a proper application and followed the proper

noticing procedure (see Attachment 27 for Public Notices and Affidavits)

C The density of the proposed PUD is consistent with that of the underlying zone (as

modified by this chapter) and the Comprehensive Plan.

http://www.codepublishing.com/WA/Ferndale/cgi/defs.pl?def=18.08.510

http://www.codepublishing.com/WA/Ferndale/cgi/defs.pl?def=18.08.370



Page 50 of 61

Staff comment:

The proposed development achieves 4.95 units per gross acre as required by the

PUD code. The underlying zone (RS 8) provides a density range of 4-7 units per

net acre, the PUD ordinance provides a density range of 3-7 units per gross acre.

The development (proposed as a PUD) meets both density criteria.

D The proposed PUD will not result in a significant adverse impact on the

environment, as evidenced by an appropriate threshold determination under

SEPA, and the project will incorporate in its design any mitigation measures

identified during the SEPA review. Projects that are subject to a planned action

may be exempted from additional SEPA review; provided, that the City determines

the scope of work proposed has been addressed through the planned action EIS

and ordinance.

Staff Comment: The project has made the appropriate provisions for open spaces,

drainage, streets and public ways, transit stops (existing), sidewalk (existing), water

supplies, sanitary wastes, parks, and schools. As conditioned, environmental

impacts will be avoided or properly mitigated.

Overall, environmentally sensitive areas will be expanded and enhanced.

Individual wetlands are proposed to be filled in compliance with City of Ferndale,

Department of Ecology and Army Corps of Engineers requirements.

Stream and stream buffer impacts will be in compliance with the City of

Ferndale, Department of Ecology and Washington State Department of Fish and

Wildlife requirements.

E The project will result in the protection, preservation, or enhancement of

environmentally sensitive areas that may exist on the property.

Staff Comment: The proposed development will increase opportunities for housing

within the community (192 lots proposed) and as designed and conditioned, will

serve the public interest, health, safety, and general welfare.

F. The project design includes buffers where necessary and development patterns

adjacent to established developments consistent with the requirements of this

chapter.



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Staff Comment: The staff report, together with accompanying materials and

recommended conditions, includes adequate information for the Hearing Examiner

to reasonably consider the application. Written comments (if any) are included in

the agenda package, and this public hearing will provide citizens with an

opportunity to express their views on the proposed project to the Hearing Examiner

prior to a decision/recommendation.

G The project design includes usable open space in an amount that meets the

requirements of this chapter, and which includes particular elements appropriate

to the size and character of the anticipated population of the PUD.

Staff comment: The applicant proposes an acceptable amount of open space to

service the size and character of the development.

H The applicant has proposed and demonstrated that there will be sufficient legal

mechanisms put in place to guarantee the continued operation and/or

maintenance of all commonly owned elements of the PUD in perpetuity.

Staff comment: The applicant has proposed to utilize sufficient legal mechanisms

(CC&Rs, Maintenance Plans, Inspection schedules) to guarantee continued

operation and maintenance of common areas in the PUD in perpetuity.

RECOMMENDATION

The Hearing Examiner’s task is to review the applicant’s proposed Planned Unit

Development request and make a recommendation to the City Council, including any

suggested modifications or conditions to the project. In formulating a recommendation,

the Hearing Examiner should consider any information provided by the applicant, any

public comment received, and the criteria for approval of a Preliminary Plat/Planned Unit

Development, which is stated in FMC 18.68.130 of the FMC (see above).

Based on the analysis contained in this report, the Planned United Development Approval

Criteria, and the Findings of Fact noted below, staff recommends that Malloy Heights

Planned Unit Development be APPROVED. Staff further recommends that any such

approval be subject to the Conditions of Approval listed at the end of this report.



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FINDINGS OF FACT

1. The Preliminary Plat PUD application was submitted and processed in accordance

with the requirements of the Ferndale Municipal Code.

2. Environmental review was conducted in accordance with the Ferndale Municipal

Code. A SEPA checklist was submitted on July 21, 2016 and a Mitigated

Determination of Non-Significance was issued, dated April 17, 2017 (Attachment

5). As determined by the SEPA Administrator, the project is generally consistent

with the original project and MDNS, and no additional SEPA review was required

for this PUD application.

3. As conditioned, the proposed project will not have an adverse impact on the

natural environment.

4. As conditioned, the proposed project will not have an adverse impact on public

facilities and services.

5. As conditioned, and per city code, the proposed project is consistent with the

approval criteria for a Preliminary Plat.

6. The proposed project is consistent with the City of Ferndale Comprehensive Plan

and Zoning Code.

CONDITIONS OF APPROVAL

1. Once action on the Preliminary Plat is taken by the City Council, the Plat

map shall be revised to include any revisions or additions imposed by

Council or noted in the Conditions of Approval. Four copies of the revised

Preliminary Plat shall be submitted to the City for approval. One stamped

copy of the approved Preliminary Plat will be returned to the applicant.

2. The approved Preliminary Plat does not authorize any construction.

Construction plans must be submitted and approved by the City as required

in the City Development Standards. Should the preliminary plat be

approved, the applicant will be required to submit fully engineered civil

drawings to the Ferndale Public Works Department for review prior to the

issuance of a land disturbance permit authorizing the construction and

installation of infrastructure. Should the review of civil drawings identify

inconsistencies with the Ferndale Development Standards or the approved



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preliminary plat, re-review by the Hearing Examiner may be required.

3. Any earthwork, drainage, utilities, or other construction must be designed

and carried out in accordance with city standards, to the satisfaction of the

Public Works Director, and in accordance with Department of Ecology

guidelines (where applicable).

4. A complete set of engineered construction drawings shall be submitted with

a Land Disturbance Permit Application and approved for the development

prior to start of any construction of infrastructure improvements. The initial

submittal shall include a final comprehensive stormwater management plan

and an erosion and sediment control plan.

5. A full review of the stormwater report will be conducted following submittal

of full civil drawings. The project drainage system is to be designed to

comply with the adopted Ecology stormwater standards, and must be

approved by the Public Works Department.

The applicant submitted a complete application on October 4, 2016, which

allows the project to design in accordance with the 2005 Department of

Ecology Stormwater Management Manual. However, substantial changes to

the project, or if construction has not started by January 1, 2022, will require

applying the current Stormwater Management Manual.

The storm pond shall be adequately screened from the Malloy Avenue right

of way to the satisfaction of the City.

Lot drainage design for individual lots shall comply with the City

development standards.

A minimum 20-foot wide access, including access to all structures, and a

minimum 14-foot wide roadway to support a minimum 70,000 pound vactor

truck in order to maintain the private stormwater facility is required.

6. Sewer service to each lot will be required. Sewer services will be installed as

necessary, to be determined during the review of civil plans.

7. Water service to each lot and tract, as well as water service necessary for



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required irrigation of landscaping will be required. Water services will be

installed as necessary, to be determined during the review of civil plans

The applicant is required to extend necessary watermain to achieve

appropriate fire flow for each phase of the development as it is developed,

to the satisfaction of the Public Works Department.

8. With exception to approved variance requests, the public streets within the

proposed subdivision shall meet the minimum dimensional requirements of

the City of Ferndale. A full set of civil plans that reflect the proposed

changes have not been submitted and will be reviewed by Public Works

staff for compliance with the City’s Development Standards prior to issuing

a land disturbance permit.

9. Frontage Improvements:

The project will also be required to construct full ¾ street frontage

improvements per City of Ferndale Development Standards.

All frontage along Malloy Avenue from the main entrance to the south

along the property line shall be substantially complete per City standards,

prior to recording final plat.

The remaining frontage along Malloy Avenue north of the main entrance

along the property line shall be substantially complete per City standards,

prior to issuance of the 51st single family structure.

10. The project is subject to terms listed within latecomer’s agreement referred

to as “The City of Ferndale Utility Improvement Recovery Agreement related

to water and sewer main extension – Malloy Village, LLC, Auditors File

Number 2090302422. The city takes no position on the enforceability of this

latecomer’s agreement given the capacity or lack thereof of the sewer

improvements described therein.

11. Compliance with City traffic concurrency is required.

12. Guidelines for housing design shall be incorporated into the CC&Rs. Prior to

final plat approval, the CC&Rs shall be revised to reflect this requirement



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and all requirements listed in FMC 18.68.070 A-C. Staff will require these

design concepts be utilized and will confirm this is the case when a building

permit is submitted. Should the design change substantially, the City will

require an additional design review and approval prior to issuance of

building permits for the lots.

13. Per FMC 18.68.060, the applicant must submit and record bylaws for an

owner’s association and, prior to final plat approval, the applicant shall

convey by deed all private facilities including but not limited to; stormwater

drainage facilities lying outside of dedicated right-of-way, common areas,

critical areas, trails and open space areas to an owner’s association. The City

shall be provided with easements necessary to serve and maintain all

property and utilities owned and/or maintained by the City. The owner’s

association shall be empowered to collect dues and assessments and to

enforce covenants, conditions, and restrictions and any rules and

regulations deemed necessary for the governing of development and use of

each lot and common areas within the PUD.

14. The plat survey shall be tied to the City of Ferndale “Survey Monument

Network” established in June 2001. If no suitable monuments exist from the

aforementioned network then coordinates from the City of Ferndale

“Existing Monument Location Survey” shall be utilized. If no

Monumentation from either of the aforementioned surveys can be

reasonably utilized, the surveyor may use the best available information as

approved by the City. The applicant’s engineer/surveyor shall contact the

City’s GIS/Mapping Specialist to determine which monuments shall be

utilized based on the location of the project (the City-approved monument

information shall be noted on the revised preliminary plat, and if necessary,

the preliminary plat shall be revised to reflect the ties to the appropriate

monument network).

15. State and Federal approvals, as applicable, shall be evidenced by

appropriate permits or other qualifying documentation prior to issuance of

any City permit for construction including land disturbance. Responsibility

for compliance with other agency requirements shall be solely the

applicant’s.



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16. Critical Areas:

The Project shall seek to avoid wetland and critical area impacts to the

extent practical and shall mitigate for wetland impacts on-or off-site in

accordance with City, state and federal regulations. If the wetland

mitigation is proposed off-site, the applicants shall first consider off-site

mitigation within the City of Ferndale, if practical.

A final critical area mitigation plan in accordance to all items specified in

FMC 16.08.270 and Article XI. Appendix A of the CAO must be submitted for

review and approval.

All remaining identified critical areas and mitigation areas (after on-site

mitigation), the applicant is required to place a deed restriction on all

remaining on-site wildlife corridors, buffer, and mitigation area that protect

the critical area from future development.

A deed restriction shall be placed on the remaining on-site critical area

buffer that protect the critical area from future development prior to final

plat recording.

17. Prior to construction activity, the applicant is required to post a

performance surety for all critical area work in conformance to 16.08.240

and Development Standards Chapter 5, section 503 Performance Securities

and Section 504, maintenance securities. Construction activities shall not

impact protected wetlands, streams or buffer areas. The final mitigation plan

shall propose methods to protect critical areas, buffers and enhancement

areas during construction of the plat. A maintenance bond in the amount of

150% is required for all mitigation/maintained activities associated with the

critical areas. Portions of the maintenance bond will be released after each

annual inspection or inspection timeline proposed by the critical areas

professional

18. Split rail fencing or other protective measure shall be installed along the

perimeter of the wetland buffers to notify future home owners of the

sensitive areas – wetland protection area signs shall be installed in a

conspicuous place at least every 300 feet along the fence, unless otherwise

approved by the Critical Areas Administrator. Proposed fence/protective

screening locations shall be included in a revised wetland buffer report for



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review and approval. The fencing and signs shall be installed, inspected and

approved on site by planning division prior to final plat recording.

The applicant shall propose a method to protect residents from the steep

slope with split railing fencing, warning signage or another acceptable

method approved by the City, prior to establishing the trail

19. Due to the dynamic nature of wetlands and per city policy a new wetland

report will be required, should land disturbance activities be proposed after

5 years of plat approval.

20. Adequate fire protection infrastructure, of a type and location approved by

the Fire District, shall be included in the civil construction plans. All travel

ways shall provide for emergency vehicle access to the satisfaction of the

Fire District. No buildings may be constructed until adequate fire flow and

emergency access is provided

21. Fire protection and emergency medical services for the area will be provided

by Whatcom County Fire District #7 (WCFD7). The civil plans must be

acceptable to the Fire District prior to issuance of the Land Disturbance

Permit. The Fire District has not identified significant obstacles in providing

these services based on the conceptual layout that has been provided to the

City.

22. The applicant will be required to submit civil plans acceptable to WCFD7

prior to land disturbance permit approval for infrastructure construction.

Should substantial changes in grade or site design be required during civil

plan review, the Hearing Examiner may be required to re-review the

proposal.

23. SEPA mitigation measures, as identified in the project SEPA checklist and

SEPA Mitigated Determination of Non-Significance (April 17, 2017) shall be

reflected in the project design and civil construction plans, and made

conditions of this approval.

24. A geotechnical study prepared by a qualified professional shall be prepared

for building foundations prior to building permit issuance. All findings of

such study or studies shall become requirements of subsequent building



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permits.

25. Covenants, Conditions, and Restrictions (CC&R’s) shall be approved by the

City prior to approval and recording of the Final Plat. The CC&R’s shall

identify the Homeowners Association’s (HOA) responsibilities for storm

water detention and treatment facilities, drainage infrastructure, wetlands

and buffers, and other common, non-public infrastructure of the project.

The CC&R's shall contain the following:

Specific language ensuring inspection and maintenance of the

wetland consistent with the Final Mitigation Report.

A provision that ensures inspections of the wetland and buffer by a

qualified wetland professional.

A provision that the wetland professional creates a report and

provide it to the HOA and the City.

A provision that requires that should the periodic inspection identify

any detrimental impacts, the wetland professional shall identify

measures required to rectify the impact in the report prepared for the

HOA and the City.

A provision that specifies that any required repair, maintenance, or

restoration associated with wetland and buffer common areas or

facilities is the responsibility of the HOA.

26. Open space areas, buffers, or other tracts of land not suitable as building

lots, together with any associated facilities or equipment shall be privately

owned and maintained by the Homeowner's Association. A note to this

effect shall be shown on the face of the revised Preliminary Plat.

27. A landscape and lighting plan, identifying the type, size, spacing, and

maintenance schedule for all landscaping (including lighting elements)

proposed within the required buffer areas, open space areas, and other

common areas is required to be submitted and approved by the City prior

to plat recording.

Per 18.68.070.B., A maintenance bond in the amount of 125% is required for

a period of three years for all landscaping associated with the Planned Unit

Development.

Malloy Avenue landscaping within the right of way shall be consistent with



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landscaping used for Malloy Village PUD and shall be drought tolerant, low

maintenance plantings.

Prior to final plat approval, the applicant shall propose and install fences,

vegetative barriers, or other devices to limit user access to protected critical

areas and stormwater facilities.

A licensed stormwater professional will demonstrate active use and

landscaping screening in and around the stormwater infrastructure will not

diminish its effectiveness

The applicant shall propose a landscaping (“street tree”) plan to the

Ferndale Public Works Department as part of the review of full civil plans.

Maintenance of trees along the public right of way is the responsibility of

the property owners and must follow City conventions. The City will require

that landscaping along the street be located behind the sidewalk and

outside of the 10-foot dry utility easement as shown in the cross section.

Root barriers shall be utilized, when necessary, to protect infrastructure.

All street trees be planted prior to final plat approval. Alternatively, the

applicant could post a performance surety in the amount of 150% of the

landscaping costs including (plantings, installation and materials) with the

City.

28. All lots require a minimum 40’x40’ building area, not including required

setbacks or easements, and no lot shall be less than the 4,000 square foot

minimum lot size authorized by the PUD chapter.

29. Setbacks shall be as follows:

Front – 15 feet to (non-garage) façade

Front – 20 feet for driveway to garage

Rear – 5

Sides – 5 feet

30. Lighting shall be installed in the parking and driving areas. Exterior lighting

shall be so installed that the surface of the source of light shall not cast a

direct glare upon the adjacent right of ways, and shall be so arranged to

reflect light away from residential uses to the north, south and west. The



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lighting shall be energy efficient (LED Lighting) and shown on the civil plans.

31. One half of traffic mitigation fees shall be paid prior to recording of the final

mylars for each phase; the remaining half shall be paid pursuant to building

permit conditions of approval.

32. One half of park mitigation fees shall be paid prior to recording of the final

mylars for each phase; the remaining half shall be paid pursuant to building

permit conditions of approval.

A credit for one traffic trip is credited for the existing house on the project

site.

33. Water and sewer connection fees shall be paid at the time of Building

Permit issuance for each lot.

34. Impacts to the Ferndale School District resulting from the proposed

development will be mitigated by the payment of school impact fees to be

determined by the District.

35. Storm sewer mitigation fees shall be paid prior to recording of the Final Plat

for each phase.

36. Credits will be applied to trails dedicated. The remaining balance will be

owed for park impacts fees to be paid half at final plat for each phase and

half pursuant to building permit conditions of approval.

37. All open space areas, stormwater tracts, or other common areas shall be

labeled and recorded as separate tracts or lots within the plat. The revised

Preliminary Plat plan shall reflect this requirement.

38. Street names and addressing shall be approved by the City of Ferndale prior

to final plat approval.

39. The City requests that all recorded plats show the gross and achieved

densities on the face of the plat. The revised Preliminary Plat plan shall

reflect this requirement.



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40. The Final Plat for any phase, when submitted, shall be consistent with the

approved Preliminary Plat, reflect any and all conditions of approval, and be

consistent with the requirements of Chapter 18.68 and Title 17 of the

Ferndale Municipal Code, together with City Development Standards.

41. Shared driveways must be installed with plat infrastructure unless otherwise

approved by the Public Works Director.

No vehicular parking may occur on the shared access easement, and no

waste receptacles or other personal belongings shall be left on the shared

easement in a manner that would prevent access for one or more

properties.

42. Tracts D currently exhibits steep slopes and is proposed to be terraced and

used for community gardens with trail access from the cul-de-sac. To qualify

as usable open space, the applicant is required to grade the tract to 15% or

less.

43. The Preliminary Plat shall expire after a period of 5 years from the date of

approval by the City Council. Submittal of a Final Plat application must

commence within this time period. A note to this effect shall be placed on

the revised Preliminary Plat plan.

COMMUNITY DEVELOPMENT DEPARTMENT STAFF REPORT - …cityofferndale.org/wp-content/uploads/2017/04/HE-SR... · 2017-05-23 · Malloy Heights Planned Unit Development (16001-PUD) Revised

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