Thea Foss Waterway S-8 Shoreline District
Transcription
Thea Foss Waterway S-8 Shoreline District
Thea Foss Waterway S-8 Shoreline District Regulations Proposed Amendment The proposed amendment to the Master Program for Shoreline Development is developed in compliance with the Washington State Shoreline Management Act and Growth Management Act Planning Commission Recommendation October 3, 2007 Community and Economic Development Department 747 Market Street, Room 1036 Tacoma, WA 98402-3793 253/591-5365 Equal Employment Opportunity/Americans with Disabilities Act Accommodations provided upon request Call 253/591-5365 (voice) or 253/591-5153 (TTY) City Council Bill Baarsma, Mayor Rick Talbert, Deputy Mayor Julie Anderson Bill Evans Jake Fey Connie Ladenburg Mike Lonergan Spiro Manthou Thomas Stenger Eric Anderson, City Manager Tacoma Planning Commission Thomas M. Smith, Chair David A. Boe, Vice Chair Kevin Briske Mel Curtiss Carolyn L. Davidson Robert T. de Grouchy, III Thomas W. Donovan Jeremy Doty Scott Morris Community and Economic Development Department Ryan Petty, Director Planning Division Peter Huffman, Manager Project Staff Donna Stenger, Project Lead Bart Alford Stephen Atkinson Brian Boudet Molly Harris Lihuang Wung Clara Cheeves, intern Public Works Department Bill Pugh, Director/Assistant City Manager Building and Land Use Services Division Charlie Solverson, Manager Project Staff Peter Katich, Land Use Administrator Caroline Haynes-Castro Shanta Frantz Lisa Spadoni Shirley Schultz GIS Analysis Michael Stoddard Donna Wendt Bob Wendt THEA FOSS WATERWAY S-8 SHORELINE DISTRICT REGULATIONS PLANNING COMMISSION RECOMMENDATIONS October 3, 2007 TABLE OF CONTENTS I. Planning Commission Recommendation Letter Page 1 II. Planning Commission Findings and Recommendations Page 3 Attachment A: Proposed Land Use Regulatory Code Amendments Page 23 Attachment B: Viewshed Analysis for the Thea Foss Waterway (Zone 1 South) Page 33 Attachment C: Shoreline Study Area Viewsheds Page 45 Attachment D: Comparison of Alternative Height Options for Zone 1 South Page 51 III. Issues and Staff Observations Report Page 53 IV. Minutes of Planning Commission Public Hearing Page 79 V. Written Public Testimony Page 95 VI. Additional Correspondence A. Foss Waterway Development Authority (May 22, 2007) Page 193 B. Department of Ecology (June 11, 2007) Page 195 C. Foss Waterway Development Authority (June 21, 2007) Page 201 VII. City Legal Memorandums A. Shoreline Management Act – Public Access/Residential View Provisions (January 27, 2006) Page 203 Thea Foss Waterway Height Regulations/Design Review InterRelationships (July 14, 2006) Page 209 Legal Issues Associated with View Protection in Washington (February 6, 2007) Page 215 D. Overriding Public Interest Test in RCW 90.58.320 (August 30, 2007) Page 219 E. Spot Zoning in Washington Law (August 30, 2007) Page 223 B. C. Page 1 Page 2 City of Tacoma Community and Economic Development Department Thea Foss Waterway S‐8 Shoreline District Regulations FINDINGS AND RECOMMENDATIONS TACOMA PLANNING COMMISSION OCTOBER 3, 2007 A. SUBJECT Amendment of the City’s shoreline regulations, (Tacoma Municipal Code, Chapter 13.10, a part of the Master Program for Shoreline Development), for the S-8 Thea Foss Waterway shoreline district to allow an increase in the maximum height for two development sites, reduce the height for the Municipal Dock site, modify the building envelope and other standards and reorganize various code sections. B. GENERAL DESCRIPTION OF THE PROPOSED AMENDMENT The proposed code amendment provides for an alternative development option (tower and podium building form) that would allow buildings with a maximum height of 180 feet on two development sites (Sites 10 and 11) located in the southern portion of Zone 1 on the west side of the Thea Foss Waterway. The maximum height of 180 feet can only be achieved if certain specific conditions are met. These include providing enlarged view/access corridors, maintaining an average distance of 100 feet between the tower portions of the development, and developing 50% of the podium roof as usable recreational space, of which 30% shall be landscaped. The proposed amendment also reduces the maximum height from 100 feet to 90 feet on the Municipal Dock site. In addition to the height and building form changes, the proposed amendment modifies the regulations to clarify the responsibilities of Thea Foss Waterway Development Authority (FWDA) for conducting design review on all public properties on the west side using the criteria and guidelines in the Thea Foss Waterway Design and Development Plan (Foss Plan), adds a new requirement to protect the view of Mt. Rainier from the southeast corner of Fireman’s Park, and includes changes that reorganize various sections of the S-8 Thea Foss Shoreline District regulations for clarity and ease of use. C. FINDINGS OF FACT 1. In 2004, Foss Harbor LLC submitted an application to the Tacoma Planning Commission requesting a change in the S-8 Thea Foss Waterway Shoreline District regulations for the west side of Thea Foss Waterway for the area north of the Murray Morgan Bridge (Zone 1) to increase the maximum building height from the current 100 feet maximum height to 180 feet. 2. Chapter 13.02 of the Tacoma Municipal Code sets forth a process for private parties and others to apply for amendments to the City’s Comprehensive Plan or development regulations. The application was accepted by the Planning Commission consistent with the Municipal Code’s process and included for review with other proposed amendments as a part of the annual amendment review package for 2004. (Application #2004-04) Page 3 3. Zone 1 extends from the north end of the Waterway at the South 4th Street Bridge south to the 11th Street right-of-way (this area is also referred to as the “Historic Warehouse District”). There are two remaining warehouses in the area: the Dock Building and the Puget Sound Freight Building. The primary public spaces are Thea’s Park, which is located at the far north end of the Zone, the planned esplanade and the designated view/access corridors. 4. Zone 1 also includes the Foss Waterway Marina which is the largest marina on the waterway and this water-dependent use will influence the future design and economic viability of development projects located on the adjacent uplands. 5. Zone 1 is a relatively isolated area with poor connectivity, both visual and physical, to the downtown area. Relative to the other zones on the Thea Foss, Zone 1 is adjacent to the widest section of land used by the railroad, creating a greater separation of the waterfront from the downtown area. The steep bluffs and the ramps of I-705, which block the views of downtown from the waterway sites, further separate the area. 6. Zone 1 sites are narrower (generally 120 ft) than those found on the rest of the west side of the Waterway. On the Dock Street side of the development sites, the right-of-way is narrower, placing the train tracks closer to the roadway, pedestrians and the redevelopment sites. The narrow right-of-way also eliminates any on-street parking opportunity such as that found further south on the Waterway. 7. The surrounding development in Zone 1 is a mix of uses and building styles ranging from rather modest, one and two-story structures to the two older, large warehouse structures. To the north of Zone 1 are the TEMCO grain terminals which extend to a height of approximately 245 feet. To the south is the Murray Morgan Bridge which has a height of approximately 230 feet and the Zone 2 development sites, which have a maximum height limit of 130 ft but do not currently have structures of that height. On the eastern shore are a hodgepodge of older industrial buildings and uses. To the west is the railroad mainline and switching yard, which is zoned M-2 Heavy Industrial and DCC Downtown Commercial Core, and a hillside bluff which rises approximately 96 feet. At the top of the bluff is the central portion of Tacoma’s downtown, which has a variety of buildings and uses and has a maximum height limit of 400 ft. The planned development pattern in the Comprehensive Plan calls for infill buildings of greater heights and intensity both on the waterfront and in the adjacent downtown. 8. The existing regulations for Zone 1 require a minimum height of 50 feet and have a maximum height of 100 feet and require building modulations from the edge of the view/access corridors and the esplanade at certain height intervals. The existing regulations also require reductions in site coverage for upper floors. The result is a building form that resembles a wedding cake with upper floors progressively smaller than the lower floors. 9. The application submitted in 2004 requested changes to allow increased height and a different building form that consists of slender building(s) atop a lower base that provide more light, air and space to the esplanade and view/access corridors. This building style is referred to as the tower and podium building form. 10. In 2004, the Planning Commission conducted a review of the application as part of the City’s Annual Amendment process. A draft amendment to the S-8 shoreline regulations was developed based upon the application and disseminated for public review and comment along with the other proposed annual amendments and the Commission held a public hearing on September 15, 2004. 11. The 2004 draft code changes allowed an increase in height to 180 feet if the tower and podium building form was utilized, certain conditions were met in the design of the building and additional public access was provided. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 2 of 20 Page 4 12. After conducting a public hearing and reviewing testimony, the Commission modified the draft proposal and recommended to the City Council an amendment to the S-8 regulations which provided an option to increase the height to 180 feet, subject to meeting certain requirements, and only for the southern portion of Zone 1, an area located between the view corridor south of the Puget Sound Freight Building and the Murray Morgan Bridge (Zone 1 South – comprised of Sites 10 and 11 and the Municipal Dock site). Under those proposed regulations, future development within the affected area could either develop utilizing the new option (the “tower and podium form” with a 180-foot height limit) or in the alternative, choose to develop using the existing regulations, which have a maximum height of 100 feet and require building modulations at certain intervals (the “wedding cake form”). The maximum height of 180 feet could only be achieved if the view/access corridors were increased by 25%, usable recreational space was provided on the rooftop of the podium structure and if the portions of the proposed building over 50 feet in height were restricted in width and spaced apart to minimize view impacts. 13. Subsequently, the City Council held a public hearing on all of the Comprehensive Plan and Regulatory Code amendments recommended by the Planning Commission for 2004 on October 26, 2004. After considering the public testimony, the City Council concurred with the Commission’s recommendation and adopted the proposed S-8 code changes by Substitute Ordinance No. 27296 on November 16, 2004. 14. After Council approval, the proposed S-8 code amendment was submitted to the Department of Ecology (DOE) for review and approval. DOE conducted a review and solicited public comments. After reviewing the comments and the City’s record, DOE suggested that additional analysis of the proposed amendment was warranted to address view impacts, particularly of nearby residences, and that additional opportunity for public discussion of the new view analysis be provided. 15. In November 2005, the City withdrew the proposed amendment from further review by DOE in order to conduct a new view analysis and to reevaluate the approved 2004 amendment based upon the new view analysis. This process commenced in December 2005. 16. Development of properties on the Thea Foss Waterway is guided by the Comprehensive Plan, including the Master Program for Shoreline Development; the goals and policies of which are part of the Comprehensive Plan. The Master Program also includes shoreline regulations for the City’s fourteen shoreline districts which are codified as part of the Land Use Regulatory Code, Chapter 13.10 of the Tacoma Municipal Code. In addition, an element of the Comprehensive Plan, the Thea Foss Waterway Design and Development Plan (originally adopted in 1995) was developed to provide specific policy guidance for the Thea Foss Waterway. 17. In 1996, the City established the Foss Waterway Development Authority (FWDA) to oversee marketing and development of twelve waterfront sites located on the west side of the Waterway. The FWDA is to sell or lease the properties for redevelopment that is consistent with the Foss Plan and meets certain evaluation criteria, including minimum development thresholds, provision of public benefits, economic viability of the proposed redevelopment, financial return to the FWDA and/or the City from the redevelopment, longtem economic impacts to the Waterway and the City, and compatibility of the redevelopment with adjacent developments. 18. One of the primary reasons for re-evaluating the 2004 proposed amendment is the presence of residences whose view of the shoreline may be impacted by an increase in the maximum allowable height. The Shoreline Management Act (SMA) states that “no permit shall be issued pursuant to this chapter for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 3 of 20 Page 5 considerations of the public interest will be served.” (RCW 90.58.320) When the Foss Plan was substantially revised based upon the programmatic EIS in 1995, adjoining residences were limited. Although the proposed code amendment is not a “permit” for a new building, future development applications for a permit will be based upon the revised regulations, if approved. Potential view obstruction of the adjoining residences also will need to be evaluated when a building development is proposed before a permit is granted per the above section of the SMA. 19. Tacoma's Master Program regulations permit buildings over 35 feet in height all along the Thea Foss Waterway. Tacoma's Master Program not only allows taller buildings, it requires that new buildings on the west side of the Foss Waterway have a minimum height of either 40 or 50 feet. At present, the tallest height allowed on the Foss is 130 feet in Zone 2, which is immediately south of the area affected by the proposed amendment. 20. A new viewshed analysis of the southern portion of Zone 1 of the Thea Foss Waterway was conducted by staff from the City of Tacoma’s Community and Economic Development Department using computer modeling programs which allowed interactive 3D views from any property within 4,000 feet of the affected shoreline area. 21. The viewshed analysis evaluated several building configurations with different heights and dimensions as seen from three selected observation points. The three observation points were: (1) the Perkins Building, located at 1101 A Street, a seven story building with a rooftop deck shared by all 33 condominium owners as a common open space (the rooftop deck was used as on observation point for this analysis at the request of the building residents); (2) the Fireman’s Park overlook directly east of the Totem Pole, which is located in the southeast corner of the Park; and (3) the overlook area at the northern part of Fireman’s Park. The Perkins Building observation point is representative of views from existing adjacent residences, including those from the adjacent Cliff Street Lofts. 22. For the 3D model, the proposed zoning envelopes were graphically depicted as white-sided structures with a skin using 10-foot blocks. These structures illustrated a configuration of the maximum zoning envelope for the purpose of conducting the viewshed analysis. 23. Several maximum zoning building envelope options were reviewed as a part of the viewshed analysis. Two of the options depicted zoning envelopes based on the existing regulations (“wedding cake” building form) showing buildings at 50 ft tall (the required minimum height) and at 100 ft tall (the maximum allowed height), with building modulations at certain intervals as required by the existing regulations. An additional 25 ft tall element is depicted in the computer model to represent an architectural feature or structural element, which is allowed in the existing code. In the model this additional element has been located near the center of the building, but in reality could be located anywhere on the building, which would affect the view impacts. 24. For the alternative development option (“tower and podium” building form), the model depicted five different options: (1) a maximum height of 140 feet, (2) a maximum height of 160 feet, (3) a maximum height of 180 feet, (4) a maximum height of 180 feet with a maximum tower floorplate of 12,000 sq. ft.; and (5) a maximum height of 180 feet which successively stepped down the height of the three towers on Site 11 by 20 feet. For all options the model depicted one tower on the Municipal Dock site, one tower on Site 10, and three towers on Site 11. The towers on site 10 and the Municipal Dock site were depicted at the maximum width of 125 feet and maximum floorplate of 15,000 sq ft (except for the 12,000 sq ft option). The towers depicted on Site 11 were not shown at the maximum width of 125 feet because Site 11 cannot accommodate three full-width towers and meet the spacing requirements between towers required by the proposed code. In each of the scenarios, two of the towers are 107 ft wide and one is 108 ft wide, with the exception of the 12,000 sq ft floorplate option where all of the Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 4 of 20 Page 6 towers are at 100 ft wide. Other tower configurations are possible using the alternative development option and these other options could have different view impacts associated with them. 25. The 3D computer model was viewed by the Planning Commission at numerous public meetings and presented at community meetings held on February 15, 2006 and on April 11, 2007. The model also was shown at a joint meeting of the Executive Board of the FWDA and the Urban Design Review Committee held on March 28, 2007. The FWDA Urban Design Review Committee requested a second opportunity to review the model on April 19, 2007. At this meeting they asked for the development of a new 3D model that would depict a potential feasible development project consistent with the maximum zoning envelopes that were used in the computer modeling program. 26. While viewing the 3D computer model, staff could be directed to go to any building or site in any direction surrounding Zone 1 within 4,000 feet and look at any of the height options to assess the potential view impacts. The computer model allowed the Commission to “walk”, “drive”, “fly” and to be “inside” any building to see the existing shoreline (the “before” view) and the shoreline with the various building form and height options (the “after” views). Unfortunately, the 3D programs used by the City are not capable of interactive access by the public from the internet. To address this shortfall, the City selected “screenprints” from the program and made them available for public review on its website and produced them for distribution to the public. 27. In addition to the 3D modeling, City staff used the Spatial Analyst extension of ArcGIS which is used extensively for viewshed analysis, cell tower location studies, and many other surface GIS applications. The Spatial Analyst computer program uses a terrain model of the shape of the surface being studied and an output viewshed is created showing areas of the surface that are visible from one or more vantage points. The study area for the 2D viewshed analysis includes the Thea Foss Waterway (near-shore), Commencement Bay and the port industrial waterways (mid-shore), and the shoreline area abutting Northeast Tacoma and Browns Point (far-shore). 28. A series of twenty-three 2D viewshed maps were developed showing the viewable areas in “blue” and non-viewable areas in “red” from the three observation points for each of the building form and height options described above (“blue/red maps”). 29. Two of these viewshed maps show the non-viewable (red) areas for the current zoning option and for the proposed 180-foot step-down proposal by simultaneously considering the five overlook areas located in Fireman’s Park. The purpose for using all five overlook areas simultaneously was to illustrate that much of the Thea Foss Waterway, Commencement Bay, the Port of Tacoma, and the shoreline portion of NE Tacoma could be seen by shifting between the overlooks on the eastern edge of Fireman’s Park. 30. Extensive view measurements were taken from the three observation points. Angles of existing view were measured from each of the three observation points described above and for each of the height and building form alternatives. The criteria used to determine whether a view was present was whether 50% or more of the area in the respective near-shore, mid-shore, or far-shore category was unobstructed. Views outside of the shoreline areas were not included in the measurements. 31. The results of this analysis found that from the Perkins Building rooftop vantage point, the alternative development option at all three heights creates greater view obstruction of mid-shore views than the existing development regulations, but impacts to near-shore views are reduced. Far-shore views from the Perkins rooftop were the most impacted by the alternative development option. Under the existing regulations, mid-shore and far-shore views are not impacted but near-shore views of the Foss Waterway are significantly impacted. The option that includes a stepping down of height of the multiple towers on Site 11 revealed a reduction in view impacts to mid-shore and far-shore-views compared to the view impacts of 180 ft tall towers with no reduction in height. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 5 of 20 Page 7 32. At the south Fireman’s Park vantage point, the greatest impact to near-shore views occurs with the existing regulations, as compared to any of the other alternatives, although all alternatives impacted the near-shore views at this location. As is the case for the Perkins Building rooftop view point, far-shore views were most impacted through the use of the alternative development option at any height. Midshore views were impacted similarly by both the use of the “wedding cake” and “tower and podium” building forms. 33. The viewshed analysis also revealed that from the viewpoint located at the north end of Fireman’s Park, the tower and podium option slightly reduced the impacts of near-shore views as compared to the impacts from the wedding cake building form, but increased the impacts for both mid-and far-shore views. 34. The new viewshed analysis built upon the viewshed analysis conducted in 1995. As in 1995, the analysis affirms that protecting all views from all possible vantage points is not possible and would severely limit the desired renewal and redevelopment of the Foss Waterway into a high intensity urban environment. To address the public’s interest in access to the water, including viewing the water, the Foss Plan and regulations require the set aside of property where this access can occur, which is the public esplanade, public parks and the view/access corridors. The proposed amendment enhances these requirements by creating additional opportunities through widening the view/access corridors and allowing new viewing opportunities above the podium, which are limited under the wedding cake building form. 35. The new viewshed analysis is intended to indicate the possible view impacts from one possible development scenario using the building envelopes permitted through the existing regulations and by different building envelope options. Other development scenarios are possible and the results of the view impact analysis would change. For example, the development scenarios assumed three relatively equal towers on Site 11; however, two maximum width towers could be built instead or one wide tower and two smaller towers. The viewshed analysis at the policy level is not a substitute for the view analysis that will need to occur when an actual development proposal is considered. 36. The Commission, after reviewing all public testimony, including correspondence from the FWDA and DOE, and viewing the 3D model depicting a potential feasible development project, directed staff to modify the draft proposal that was previously distributed for public review and comment (the 180-foot step-down option) to minimize view impacts and improve public access. The revised proposal limits the maximum height to 90 feet on the Municipal Dock site, requires additional modulation of the podium, requires the towers to be setback from the podium wall along the view/access corridors, and reduces the maximum floorplate of the towers above 100 feet. 37. City staff modified the 3D model, 2D viewshed maps and view angle measurements based upon the modifications to the proposal requested by the Commission. 38. The revised view analysis of the modified amendment (the October 2007 proposal) reveals that with the changes the view impairment is significantly lessened from the Perkins observation point for near, mid and far shore views. The greatest improvement is found in the far shore views which change from a 44.6% reduction from existing views to a 19.6% reduction with the modified amendment. 39. The revised view analysis also indicates that views are improved from the Fireman’s Park observation points when compared to the view impacts from the previous draft proposal. Of note, the view of Mount Rainier from the south observation point is also enhanced by the reduction in maximum height for the Municipal Dock site. 40. The modified amendment increases the viewing area at the view/access corridors at least an additional 16 feet above 50 feet due to new requirements for podium modulations and tower setbacks. These Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 6 of 20 Page 8 requirements also help to enhance the public experience at these corridors by supporting pedestrian scale design. 41. In addition to the 3D computer modeling conducted by staff, which looked at maximum building envelopes, Ron Thomas, TCF Architecture was hired by the City to conduct a view analysis and massing study. On February 15, 2006, the Planning Commission was presented with diagrams and illustrations depicting different variations of building massing which could be possible by using the proposed amendment to the regulations but are not specifically required by the proposed regulations. These variations depicted narrower towers, lower podiums and reduced building envelopes at higher elevations. The massing models more closely resembled how future buildings may appear rather than the maximum building envelope “boxes” used in the computer model and therefore were useful in helping to envision possible view impacts from potential development projects that may be built consistent with the proposed zoning amendment. 42. The Planning Commission’s role is to analyze the view impacts at a code development level and not those of a specific building that may be built. The design review process either conducted by the Urban Design Review Committee, City staff, or both, for projects being built on the west side of the Foss Waterway will be used to analyze view impacts of specific development proposals. Some of the techniques shown in the view analysis and massing study conducted by TCF may be used in building design to minimize view obstruction. Other techniques may also be employed. 43. Zone 1 has experienced relatively minor investment since the Thea Foss Plan was adopted in 1995. The decision to modify the maximum building height of future development entails several considerations, one of which is the financial feasibility of development. The City contracted with BST Associates to conduct an economic assessment of a variety of building heights and building forms to determine the likely return on investment from these development scenarios and whether the return was sufficient to attract investment. 44. The Thea Foss Waterway Height and Economic Analysis (Final Draft Report, February 20, 2007) assessed building heights ranging from 50 feet to 180 feet and included the “wedding cake” building form required by the existing regulations and the “tower and podium” building form that is possible under the proposed alternative development option. The study reviewed 50 and 100-foot tall buildings at the maximum building envelope using the existing regulations on Development Sites 10, 11 and the Municipal Dock site. For the tower and podium scenarios, the maximum building envelope was considered at heights of 140, 160 and 180 feet. For the purposes of the analysis, the tower options assumed one tower at the maximum height and maximum floorplate of 15,000 sq ft on each site except for Site 11. On Site 11 three towers were studied at the maximum height and a reduced floorplate of 12,840 sq ft. The study also included a review of the option which stepped down the maximum height of the three towers on Site 11 by 20 feet; i.e., one tower at 180 feet, one tower at 160 feet and one tower at 140 feet. Finally, the study also looked a the effect of providing 150 additional stalls of parking primarily to serve the existing marina on Site 11 which may be required if this site were to be redeveloped. All of the development scenarios assumed a mixed-use building that is predominantly residential and having some commercial uses and sufficient structured parking to serve these uses. The study looked at two possible development scenarios; mid-grade construction that would be similar to the type of development that is currently being constructed in the Tacoma market and high-grade construction which is similar to the types of buildings that are coming into the marketplace in Seattle. 45. The economic analysis assumed that a target equity Internal Rate of Return (IRR) of 20% would be required to attract investor interest. The findings of the study concluded that 50 and 100-foot tall buildings would not meet the economic feasibility target and that 160 and 180-foot tall buildings could meet the target at mid-grade construction but only 180-foot tall buildings could meet the target at highgrade construction levels. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 7 of 20 Page 9 46. The process to re-evaluate the 2004 amendment proposal included many opportunities for public involvement. Staff created a list of interested parties, which included property owners located on the Foss Waterway and adjacent to the Waterway and citizens who commented on the 2004 proposal to the Commission, City Council and/or the State DOE. The list also included members of the FWDA Board, UDRC and staff, DOE agency staff and additional people who indicated specific interest and requested to be included on the list. In total, the list includes more than 300 names. These citizens were notified, via electronic mail and/or standard mail, prior to every Planning Commission meeting when the proposed amendment to the Thea Foss regulations was an item on the agenda. 47. A community meeting was held on February 15, 2006 to explain the process to re-evaluate the 2004 proposal and to conduct additional view analysis. Staff also answered questions from the public. All citizens who attended were added to the notification list. The initial 3D computer modeling used for the viewshed analysis was presented at this meeting. 48. A presentation to the FWDA Board on the scope of review and schedule was made on January 18, 2006. The FWDA Board meetings are open to the public. 49. The Planning Commission has held numerous meetings, which are open to the public, to discuss the proposed height options, view impact analyses, economic feasibility analysis and other issues related to the proposed code amendment. Everyone on the notification list received notice of these meetings and many citizens attended. 50. Staff also made a presentation on May 10, 2006 and showed the 3D computer viewshed model to the New Tacoma Neighborhood Council, the City’s official citizen advisory group for the greater downtown area which includes the Foss Waterway. Comments from this meeting were shared with the Planning Commission. 51. An additional discussion was held with the FWDA Board on September 13, 2006 to provide a status report on the review of the amendment and the preliminary direction concerning design review and view impact analysis under consideration by the Planning Commission. 52. On August 2, 2006 the Planning Commission visited Fireman’s Park to evaluate existing shoreline views from the observation points and from other parts of the Park and to evaluate the view of Mount Rainier from various points within the Park. 53. City staff created a special page on its planning website for the Foss Waterway Height Regulation review. All reports, studies, maps, and other documents pertaining to the review of the proposed amendment were posted on this website. 54. The Commission authorized distribution of the proposed code amendment to allow an alternative development option for the tower and podium building form with a maximum height of 180 feet with a reduction in height by 20 feet for each successive tower on sites with more than one tower (the 180 feet step-down proposal) for public review and comment on March 21, 2007 and set the public hearing date for April 18, 2007. 55. Pursuant to the State of Environmental Policy Act (SEPA), the 1995 Draft and Final Environmental Impact Statement (EIS) for the Thea Foss Waterway Development Alternatives Plan was adopted and an addendum to the EIS was prepared. The EIS was prepared to provide a programmatic evaluation of the anticipated environmental impacts of several redevelopment alternatives for properties on the west side of the Thea Foss Waterway. The EIS evaluated buildings up to 180 feet in height under the High Intensity Alternative. The addendum provides additional environmental information that describes potential visual impacts based on the results from an updated viewshed analysis. The addendum was issued in accordance with WAC 197-11-625 and WAC 197-11-630 and was sent to all recipients of the previously issued Draft and Final EIS. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 8 of 20 Page 10 56. Proper written notice of the public hearing was distributed between March 28-30, 2007. The notice included general information regarding the time and place of the public hearing, a description of the purpose of the public hearing, a summary of the proposed amendment and where additional information could be obtained. The notice also included information pertaining to the environmental determination. The public notice was sent to interested stakeholders, Neighborhood Council representatives, business and community organizations, City departments, State and federal agencies, adjacent jurisdictions, other governmental agencies, the Puyallup Tribe, large institutions, environmental organizations and others. Notice was also mailed to taxpayers of record for properties on the Thea Foss waterway and within 400 feet of these properties and to all individuals on the notification list created for this review. In total, the public hearing notice was sent to more than 1,600 addresses. 57. Applications for amendments to the Comprehensive Plan and Land Use Regulatory Code, including the Shoreline Code which is a part of the Master Program for Shoreline Development, are subject to review based upon the adoption and amendment procedures and the review criteria contained in Tacoma Municipal Code (TMC) 13.02.045.G. Proposed amendments are required to meet at least one of the eleven review criteria to be considered by the Planning Commission. 58. A public review document was developed which included a copy of the public hearing notice and a 44 page staff report. The staff report, produced by the Community and Economic Development Department, provided an overview of the proposed amendment, description of the affected area, a history of past planning for the Thea Foss Waterway including the Thea Foss Waterway Design and Development Plan, an element of the Comprehensive Plan and Master Program for Shoreline Development. The report also described and summarized the view shed analysis and economic feasibility analysis and public involvement efforts conducted in the development of the proposed amendment. The report analyzed the provisions of both the Growth Management Act and Shoreline Management Act related to the proposed amendment as well as provisions of the City’s Comprehensive Plan and development regulations. Finally, the report provided an analysis of the amendment based upon eleven criteria as required by the TMC, Chapter 13.02.045.G. 59. The public review document also included the draft revisions to Chapter 13.10.110--S-8 Shoreline District-Thea Foss Waterway which showed the proposed revisions to development standards, height regulations, illustrations of the building forms, requirements for using the alternative development option and other changes. A map of the affected sites also was included. In addition, the public review document included a copy of the Thea Foss Waterway Height and Economic Analysis, (Final Draft Report, February 20, 2007); the Addendum and Adoption of Existing Environmental Impact Statement (SEPA File Number SEP2007-40000092078, March 27, 2007) which included as attachments the Viewshed Analysis for the Thea Foss Waterway showing screen prints from the 3D model and 2D maps, the view angle measurements from the three observation points (Comparison of Alternative Height Options for Zone 1 South, revised March 2007) and maps depicting the zoning envelope dimensions for each of the alternatives. Finally the public review document included a copy of the view and massing study prepared by TCF Architecture and a list of all documents pertaining to the proposed amendment in 2004 which were available for public inspection in the offices of the Community and Economic Development. 60. As required by RCW 36.70A.106 and RCW 90.58.130, the public review document was provided to the Department of Community, Trade and Economic Development, Department of Ecology and other state agencies reviewing development regulations on March 28, 2007 fulfilling the requirement of providing notice at least 60 days prior to adoption of proposed amendments. 61. The public review document was available in the offices of the Community and Economic Development, all branches of the Tacoma Public Library and was posted on the City’s website. The document also was available on compact disk. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 9 of 20 Page 11 62. Public notice signs which described the proposed amendment and affected area and where additional information could be obtained were posted on properties on the Thea Foss Waterway. 63. In addition, a legal notice for the public hearing and an advertisement of the public hearing was published in The News Tribune on April 4, 2007 and a copy of the public hearing notice was posted on the City’s website. 64. A legal notice of the adoption of the 1995 Draft and Final EIS for the Thea Foss Waterway Development Alternatives Plan and availability of the addendum was published in the Tacoma Daily Index on March 27, 2007. 65. An informational session was held on April 11, 2007 where staff provided a detailed explanation of the proposed code amendments, showed the 3D model, distributed copies of the public review document and answered questions. Notice of this community meeting was provided on the public hearing notice. A separate notice of this meeting was provided to all recipients of the Planning Commission agenda (approximately 350 individuals) and posted on the website. 66. The public hearing was conducted on April 18, 2007. Seventeen people testified. The public comment period closed on April 27, 2007. In addition to the oral testimony, 35 individuals submitted written comments or e-mails. A copy of all written testimony was provided to the Commission. 67. The FWDA requested in a letter dated May 22, 2007 that the Planning Commission provide the FWDA Board of Directors additional time to complete their review of the proposed amendment and provide comment. The Board needed additional time to allow the Urban Design Review Committee (URDC) an opportunity to review a new 3D model showing a potential feasible development consistent with the proposed amendment and to provide their recommendation to the Board. 68. The URDC reviewed on June 13, 2007 a new 3D model depicting a potential feasible development project based upon the proposed maximum building envelope with the stepped down height, as they had requested. 69. The Planning Commission reviewed this version of the computer model on September 5, 2007. 70. The FWDA submitted their comments and recommendations in a letter dated June 21, 2007. 71. DOE provided comments on the draft public review document in a letter dated June 11, 2007. 72. After considering all testimony and correspondence, including comments from the FWDA and DOE, the Planning Commission directed staff to develop a revised 3D model that incorporated the recommendations of the FWDA and to recalculate view impacts based upon the revised building envelopes. The Commission was presented the revised viewshed analysis on September 19, 2007. 73. The proposed amendment was further modified by the Planning Commission on September 19, 2007 to remove the requirement that a proposed project wishing to use the alternative development option have the majority of the building in residential uses based upon comments received from DOE. 74. The modified proposed code amendment (October 2007 proposal) includes the following: • Allows only one building up to 180 feet on Site 10 or Site 11 with the use of an alternative development option. No additional height is allowed for structural elements, architectural features, etc. • Projects incorporating more than one tower must reduce the height of each successive tower by 20 feet. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 10 of 20 Page 12 • The maximum height of the podium is 50 feet; however, an additional 10 feet is allowed for mechanical equipment and amenities associated with the use of the podium roof for recreational space. • An average spacing of at least 100 feet is required between tower portions of the building. • The maximum width of the towers is 125 feet. The maximum tower floorplate is 15,000 sq. ft up to an elevation of 100 feet and thereafter is reduced to a maximum of 12,000 sq. ft. • The towers must be set back from the podium wall along the view/access corridors. • Fifty percent of the podium roof must be developed as usable recreation space, of which 30% must be landscaped. • Fifty percent of the podium wall along the view/access corridors must be setback above a height of 35 feet. • The buildings must be setback 10 feet from the view/access corridor and the setback area shall be developed as an extension of the view/access corridor. • The maximum height on the Municipal Dock site is reduced to 90 feet and an additional 10-foot setback is required from the north view/access corridor. 75. The proposed code amendment also incorporates components related to design review that have been adopted in the Foss Plan. The amendment affirms that design review of proposed development projects must consider, in accordance with SMA, the shoreline view impacts to a substantial number of residences adjacent to the shoreline. Findings of the FWDA design review are to be referenced in a shoreline permit and given substantial weight in determining whether a proposed project is consistent with the Foss Plan and its design requirements. The amendment also clarifies that City staff will conduct design review on private properties, including view obstruction, as part of the review of shoreline permit applications. Applicants on private properties can voluntarily use FWDA design review and are strongly encouraged to do so to maintain continuity of design considerations. 76. All development on the west side of the Thea Foss is required to provide public access to the shoreline in a variety of ways including the development of the esplanade and view/access corridors. The proposed amendment includes specific provisions to increase public access as a requirement to utilize the alternative development option and greater height limit. To use the alternative development option, new buildings must be set back a minimum of 10 feet from the edge of the view/access corridor, thus increasing the width of the corridor by 25% or from a width of 80 feet to 100 feet. The setback area must also be developed as an extension of the view/access corridors creating a larger public space for pedestrians to access the shoreline from Dock Street and an expanded shoreline viewing area. The tower portions of the building are to be spaced apart an average of 100 feet, which will provide additional public access shoreline viewing opportunities above an elevation of 50 feet. 77. Private investment is acting as a catalyst for building and maintaining permanent public improvements. The FWDA requires upland property owners to pay an assessment for routine maintenance and security of the public esplanade. 78. The proposed code amendment would affect only the portion of Zone 1 south of the Puget Sound Freight Building, which includes Development Sites 10 and 11 and the site of the former Municipal Dock Building. There is over 1,300 linear feet of affected shoreline. 79. The proposed amendment provides protection of the locally significant view of Mount Rainier, behind the Murray Morgan Bridge, as seen from the southeast overlook in Fireman’s Park and will maintain an unobstructed view of the mountain from this public vantage point. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 11 of 20 Page 13 80. The "overriding considerations of the public interest" test in RCW 90.58.320 requires a decision maker to identify the general public interest of the community in shoreline structures over 35 feet in height under the specific facts and circumstances of the community and property site at issue. Thereafter, the decision maker must balance the identified public interest against the interests of any affected residents in retaining a view of the shoreline unobstructed by structures over 35 feet in height to determine whether the general public interest of the community overrides, by any margin, the interests of the affected residents. The public interests that will be served by taller buildings that may impair views of residences must be determined on a case-by-case basis, i.e., at the time of permit application. However, through adoption or amendment of the Master Program, the City can set its own policy for development regarding views and shorelines within the parameters of the SMA. 81. RCW 90.58.020 finds that “coordinated planning is necessary in order to protect the public interest associated with the shorelines of the state…” Coordinated planning has been occurring on the Foss Waterway since the early 1970’s, and this amendment is consistent with the Foss Plan, an element of the City’s Shoreline Master Program and Comprehensive Plan. Further, RCW 90.58.020 states that “it is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses….” This amendment does plan for a reasonable and appropriate use of the shoreline, consistent with the City’s vision of a place where people live, work, and play. Further, the 16-plus years of waterway and adjacent lands cleanup undertaken because of the City’s leadership paved the way for protection of human health and the environment. Any development proposed will continue to protect against “adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life” (RCW 90.58.020). 82. Having been altered many years ago through industrial use, development, and contamination, the Foss Waterway is not a natural shoreline. RCW 90.58.020 states that, “Alterations of the natural condition of the shorelines of the state, in those limited instances when authorized, shall be given priority for single family residences and their appurtenant structures, ports, shoreline recreational uses including but not limited to parks, marinas, piers, and other improvements facilitating public access to shorelines of the state, industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state and other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines of the state.” 83. The SMA’s general policy section, (RCW 90.58.020) provides guidance for issues of view access and view obstruction. This section of SMA states that the public’s opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally. The public’s use of the water includes viewing the shoreline. 84. Shoreline Guidelines, specifically WAC 173-26-221(4)(d), require that the Master Program include provisions to protect the public’s opportunity to enjoy the physical and aesthetic qualities of the shoreline and to minimize the impacts to views from public property and from a substantial number of residences. 85. The proposed amendment therefore includes measures to minimize view obstruction based upon the viewshed analysis and provisions to increase public access by increasing the view/access corridors by 25% and requiring usable recreation space on the rooftop of the podium. 86. The proposed amendment would allow taller structures while providing increased public access. Taller buildings are envisioned and contemplated by the Thea Foss Plan, which states that “. . . the intent is to establish appropriate building heights relative to the scale of buildings in the downtown area and the topographic break adjacent to the waterfront.” The proposed amendment could result in taller buildings that are compatible in scale with existing buildings by requiring a maximum height of 50 ft for the podium Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 12 of 20 Page 14 portion and are compatible with the larger scale buildings envisioned farther south on the waterfront and in the adjacent downtown area. 87. TMC Chapter 13.10.175 requires all proposed developments on the shoreline to provide public access consistent with RCW 90.58. Public access requirements for the S-8 Foss district are further articulated in the code to include the continuous, unobstructed public esplanade at the water’s edge and pedestrian linkages from the street right-of-way to the esplanade. Public access elements may include exercise and play structures; parks or plazas; beach areas; piers, docks, wharves, floats or other water access features; transient moorage; trails; picnic areas; viewpoints; or interpretive displays. The proposed amendment does not alter these existing requirements but complements them by requiring additional area for public access through the expansion of the view/access corridors. 88. The City has been planning since the early 1970’s for redevelopment of the Foss waterfront into a mixeduse area where people could live, work, and play, but no redevelopment was occurring. In 1991, to reclaim the waterfront and realize the vision, the City of Tacoma purchased 27 acres of contaminated property on the Foss and took the lead in cleanup of the Superfund-listed waterway that once held the dubious distinction of being one of the nation’s most contaminated. The City began cleaning up the sites through an environmental master plan which formed the basis of a 1994 consent decree with DOE. Under an agreement with the U.S. Environmental Protection Agency, the City began a $95 million Superfund cleanup. With this significant investment of public funds, the City’s plan was to recoup this investment through private redevelopment of the waterway in the form of a combination of commercial uses and public amenities. 89. The Thea Foss Plan calls for an intensely redeveloped waterfront with a mix of uses and activities and the generous provision of public access and amenities. Redevelopment in the north end of the Waterway has not occurred as envisioned. The redevelopment concept for Zone 1 states in part that: “Infill development will occur between the existing warehouses. Minimum height limits for the district are established at the same height as the warehouse buildings. Greater heights may be allowed to achieve more innovative building profiles and greater use of open space.” 90. Downtown Tacoma, which encompasses the shoreline area affected by the proposed amendment, is designated as one of 27 regional growth centers in Vision 2020 (the multi-county planning policies). VISION 2020’s central goal is to foster a regional growth pattern for Pierce, King, Snohomish and Kitsap counties that focuses development in urban growth areas, and increases the portion of regional jobs and housing growth that occurs in regional growth centers. These regional growth centers are not intended to capture the majority of the region’s growth, but rather to be easily accessible areas of focused growth offering a wide variety of jobs, services, and important civic and cultural resources. The proposed amendment is consistent with Downtown Tacoma’s regional designation. 91. The S-8 Thea Foss Waterway shoreline district is located within an area designated as “High Intensity” on the Generalized Land Use Plan Map in the Comprehensive Plan. The Map depicts the intended future land use pattern through the geographic designation of three levels of intensities. The Map is the official land use map of the City as required by GMA. Areas designated as High Intensity areas have commercial and industrial development usually of regional scale. High intensity residential development is intended to have densities in excess of 45 units per acre with typical site development densities exceeding 80 units per acre. 92. On the west side of the Foss Waterway, along with the view/access corridors, a continuous, unobstructed, publicly accessible esplanade or boardwalk fronting directly on the shoreline edge is planned and is a requirement for future development permits. The esplanade or boardwalk must be a minimum of 20 feet wide. Site amenities, such as benches, lights, and landscaping, will be included as part of the esplanade or boardwalk construction. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 13 of 20 Page 15 93. The designated view/access corridors in the southern area of Zone 1 are situated at parcel boundaries. These are, starting from the north: south of the Puget Sound Freight Building, the alignment of South 9th Street; and north of the Municipal Dock site. All of the designated view/access corridors in Zone 1 are “secondary”, i.e., they can be moved from their designated locations to accommodate development proposals subject to meeting certain criteria found in the shoreline regulations. (TMC 13.10.110). 94. Without viable development, these view/access corridors, together with their required public access, may never be realized. Realizing these opportunities for public access will further the Shoreline Master Program’s vision to establish a system of public access—the goal of which is to eventually connect Tacoma’s public shorelines. 95. The City Attorney’s Office has advised the Commission on the four findings that are necessary to constitute a “spot zone,” according to Washington State case law. All four must be present. They are: 1) the zoning decision must single out an area within a larger area or district to be specially zoned for a “use classification;” 2) the use classification at issue must be different from, and be inconsistent with, that of surrounding properties in the larger area or district; 3) the use classification at issue must not be in general accordance with the applicable comprehensive plan; and 4) the use classification must bear no substantial relationship to the general welfare of the affected community. 96. Tacoma has over 42 miles of shoreline and 14 separate shoreline districts. The proposed amendments apply to one shoreline district of approximately 4 miles and the amendments affect only a portion of this shoreline district; the majority of the Foss shoreline district is unaffected by the amendments. 97. The Tacoma Shoreline Master Program contains development regulations for 21 separate types of uses, and the proposed amendment does not propose changes to any use regulation. The proposed amendment only changes the building envelope standards for a small segment of one of the 14 shoreline districts. 98. The proposed amendment does not change the allowable uses permitted by the regulations for the S-8 shoreline district. Developments are required to provide pedestrian-oriented uses and activities, which are directly accessible from adjacent public uses. Residential uses in this portion of the S-8 shoreline district are only permitted in upland locations or within overwater structures that existed on January 1, 1996. 99. The proposed amendment does not change the zoning (S-8) or the environment designation for the area (urban). As stated in the Tacoma Shoreline Master Program, the objective of the urban environment is “to ensure optimum utilization of shorelines within urbanized areas by providing for intensive public use and by managing development so that it enhances and maintains shorelines for a multiplicity of urban uses. The urban environment is an area of high-intensity land-use including residential, commercial, and industrial development. The environment does not necessarily include all shorelines within an incorporated city, but is particularly suitable to those areas presently subjected to extremely intensive use pressures, as well as areas planned to accommodate urban expansion.” D. CONCLUSIONS 1. The proposed revisions to the Tacoma Shoreline Master Program are in the public interest. For years the Waterway had been unused and uninviting to the public due to industrial use and contamination. The City continues its longstanding desire for the redevelopment of the Thea Foss shoreline into a vibrant, thriving neighborhood with a mix of uses and public amenities adjacent to a cleaner waterway. Achievement of this desire is dependent on private investment to construct and maintain the amenities and to recoup the costs of cleanup of past environmental contamination and ongoing costs of monitoring and further clean-up, as warranted. City staff estimates the costs for clean-up work led by the City of Tacoma from 1994 through 2006, as well as some monitoring afterward, totals more than $90 million. The proposed amendment will support the redevelopment of this portion of the Waterway, which has seen little new investment. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 14 of 20 Page 16 2. Ten years after the formation of the FWDA, the revitalization vision for the Foss Waterway is coming to fruition, as can be evidenced by the mix of cultural, park, marina, and residential uses, combined with special events such as the Tall Ships Festival and the annual Maritime Fest. The waterfront is becoming the place City leaders have envisioned since the early 1970’s. In order to continue the vision for a completely redeveloped waterfront and recoup the public investment, changes are needed to accommodate private investment. 3. Several factors make the south end of Zone 1 appropriate for a different approach to massing, scale and building height, including the narrow depth of the sites (120 feet, as opposed to the 200 feet and greater depth found in areas to the south). The narrow depth of the sites affects the ability to provide open spaces or active uses at ground level and still provide efficient parking layouts as the 120 ft. depth is the minimum width necessary to accommodate standard double-aisle parking (two drive aisle ways with parking on either side). The narrow depth also means that new buildings will need to be at the property line at both the Dock Street and esplanade façades without setbacks. Due to the width of the Dock Street right-of-way, no on-street parking can be accommodated on Dock Street, meaning that all parking must be provided on-site. A high water table and the location of two storm drainage pipes, which are located six to seven feet below street level, limit the depth of excavation that can occur for below-grade parking. Because the sites in Zone 1 are actually two to three feet above the street grade, only one level of “belowgrade” parking can be built. The result is that providing adequate parking on these sites will require more above-ground area within the buildings dedicated to parking. The grade difference between the sites and Dock Street also affects the ingress and egress from Dock Street and the ramps needed for structured parking. The layout of buildings will become more linear to avoid a loss of parking stalls that would be required to accommodate ramps from Dock Street to the structured parking. 4. The growth and development as envisioned in the Thea Foss Plan and Comprehensive Plan has not materialized in Zone 1. The lack of redevelopment can be attributed to many factors, but the many constraints in Zone 1 inhibit development. These constraints are not insurmountable but they do affect the feasibility of projects. The constraints include the narrowness of the sites, proximity to rail switching activities, the lack of opportunity to develop on-street parking, and the relative isolation of the area from other downtown activities and attractions. 5. The economic feasibility analysis conducted as a part of the review of alternative heights and building forms bore this out and found that the financial feasibility of projects was not sufficient to attract investors for most development scenarios. The analysis did find that increasing the height affected the financial performance and may result in redevelopment projects that could achieve the vision of the Thea Foss Plan. 6. The proposed amendment, by allowing an alternative development option, can be considered a design solution that attempts to balance the community goals for redevelopment of the Waterway with public use and aesthetics. New parking on the Waterway is required to be in structures. The high water table and sewer infrastructure limit excavation; therefore, parking will be mostly above ground. The cost of building both underground and above-ground structured parking exceeds what can be recaptured from lease revenue and must be recaptured in the revenue from usable floor area, which requires that there be sufficient floor area to generate the required revenue to make a project economically feasible. The proposed amendment, by allowing a development style with greater height, provides “sufficient intensity” to support development that is economically feasible while the additional requirements imposed to achieve the greater height, e.g. expanded view/access corridors, address the public use and aesthetic components. 7. The proposed amendment is consistent with the redevelopment concept for Zone 1. The amendment imposes a maximum height of 50 feet for the podium structure consistent with approximate height of the remaining warehouses and allows taller buildings if certain conditions are met. The economic feasibility analysis indicated that taller buildings may be financially feasible and therefore attract interest in Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 15 of 20 Page 17 developing the affected sites to fulfill the Foss Plan’s objective of a redeveloped and revitalized waterfront. 8. The proposed amendment will increase the width of the view/access corridors by 25% for projects that utilize the alternative development option, which will encourage greater use of these spaces by the public. At least 6,000 sq ft of additional public space could be created. The amendment also provides for usable space and landscaping on the rooftops of the podium, an amenity not required by the existing regulations. 9. The concept of a “green roof” is promoted by the proposed amendment by the requirement to provide landscaping on the podium roof. The use of native vegetation is encouraged. 10. The policy direction in the Thea Foss Plan is that taller buildings are acceptable if the buildings get narrower as height increases, public access is improved and the heights match the adjacent downtown development pattern. All of the zones on the west side of the Waterway allow taller buildings to maximize the development potential. Forty to fifty feet is set as a minimum height, depending on the zone. 11. While the proposed amendment applies only to a small area of Zone 1, the proposed height and development standards for this area are not inconsistent with the height and development standards of surrounding properties to the south, where a maximum height of 130 feet is allowed, or to the west, where buildings are allowed to a maximum height of 100 or 400 feet. The proposed amendment does not represent a significant modification to Tacoma’s shoreline management practices; rather, the amendments are a modification to regulations that implement an already well-developed plan (the Thea Foss Plan was originally adopted in 1992 and significantly modified in 1994, 1995 and 1998, with the idea that it would be updated as conditions change and as development occurs). In addition, the proposed amendment does not modify any shoreline environment designation boundary. Finally, the proposed amendment does not significantly add, change or delete use regulations. Thus, the proposed amendment represents a limited amendment affecting a small portion of one district of the many districts that constitute Tacoma’s shoreline areas. 12. The revitalization of the Foss Waterway to a vibrant people place with an abundance of amenities and public access to the shoreline is dependent on the investment of the private sector. New developments are required, as part of their development proposals, to construct and maintain the public esplanade and onehalf of the abutting view/access corridors. Without development, these amenities would not be built and the shoreline area will continue in its underutilized and uninviting state. 13. The proposed amendment is consistent with several elements of the Comprehensive Plan, including the City’s overall growth strategy as expressed in its mixed-use center concept and policies. The amendment also fulfills the land use element vision for the Downtown Mixed Use Center, the Master Program policies and the Foss Waterway Plan vision of sufficient development intensity to encourage revitalization of this underutilized area of the Waterway. 14. The proposed amendment is consistent with the GMA goal to encourage development in urban areas to reduce sprawl. 15. The proposed amendment is consistent with the zoning and the urban environment designation of the Thea Foss Waterway. 16. The proposed amendment provides an economically feasible alternative that will support a unique tower and podium development form that is not found in Tacoma presently but is found in other waterfront cities such as Portland, OR and Vancouver, BC. The option of additional height will encourage narrow towers, allowing for expanded view/access corridors, enhanced views of the Waterway, and a stronger visual connection between the Waterway and Downtown. The amendment provides flexibility for development while allowing for design alternatives to benefit public access, e.g., a plaza is possible and the exact Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 16 of 20 Page 18 location of towers will be determined during project design review taking into consideration view impacts to adjacent residences. 17. The proposed amendment is consistent with the vision for the Foss Waterway which calls for the waterfront to be developed with integrated recreational, commercial, marine-industrial and residential activities in “a wide variety of physical settings and open spaces.” The combination of site and existing zoning constraints have adversely affected the feasibility and desirability of development sites in Zone 1 and are preventing the area from redeveloping into a viable mixed-use neighborhood as envisioned in the Plan and as desired by the community. 18. The requirement to expand the width of the view/access corridors and the required spacing between the tower portions of the building will increase light and air to the esplanade. 19. The required reduction in height for multiple towers on a single site will help to minimize view impacts to a substantial number of residences. This reduction may also impact the economic feasibility of future development projects. 20. The proposed maximum podium height of 50 feet creates an architectural reference to the existing warehouses. Under the existing regulations buildings are required to be a minimum of 50 feet in height. The proposed amendment does not have a minimum height requirement, which will provide the developer design flexibility which could potentially result in a lower podium as part of a future building design. 21. The required spaces between the towers will offer new viewing opportunities of the Foss Waterway that are not possible for buildings built using the existing regulations, which could be nine or ten stories of continuous building with no breaks. The spacing between towers was shown, through the viewshed analysis, to provide improved views of the Foss Waterway from Firemen’s Park, maintaining the connection of the public park with the Waterway located below. The spacing also minimizes view impacts of a substantial number of residences of the Foss Waterway shoreline when compared to the existing regulations. 22. The maximum size of the floorplate of the towers is reduced above 100 feet in elevation to maintain consistency with the Foss Plan’s guidance that as height increases, buildings become narrower. The slender towers would be set atop a podium structure of mixed uses and parking. 23. Restricting rooftop equipment on the tower portions assures that additional view blockage is not possible above the maximum building height. No variance can be granted for this requirement. In effect, the habitable portion of the building is reduced by at least 10 feet to allow space for necessary building equipment. 24. The proposed amendment promotes mixed-use development within economically viable parameters; the maximum floorplates imposed by the proposed regulations will work for commercial/office as well as residential uses. 25. The proposed amendment benefits views of the Waterway from the public gathering spaces of Fireman’s Park. The reduction of the maximum allowable height on the Municipal Dock site to 90 feet, with no allowance for appurtenances or architectural features above this limit, will enhance views of the shoreline and Mount Rainier and keep future development of this site more consistent with the former warehouse building that occupied the site. 26. The proposed amendment achieves better design variety overall on the waterfront. A variety of building heights along the mile and one-half of waterfront will create a diverse appearance and is consistent with the policy direction of the Foss Plan Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 17 of 20 Page 19 27. A thorough and exhaustive study of zoning height alternatives was conducted. The three formats of output, (3D views, 2D viewshed maps, and the view angle measurements), provided a comprehensive and comparable look at view impacts of various zoning envelope proposals. 28. The public interest in shorelines of the state, as set forth in RCW 90.58.020, is being promoted or enhanced by this proposal due to the cleanup and redevelopment of the Waterway and adjacent lands through a combination of public and private investment. Without private investment, the City cannot recoup the significant public investment it has made over the last 30 years through planning efforts, and over the last 16 years in property acquisition, cleanup, legal fees, and marketing. Further, without private investment, the City cannot realize the vision of the waterfront as a place for people to live, work, and play. 29. The statewide interest in shoreline areas is far reaching and is being served through the redevelopment of the Waterway and adjacent lands, and through the protection of the public’s interest by private investment in order to recoup public expenditures. The natural character of the Foss shoreline was changed many years ago, but insofar as is practicable is being preserved. Long-term, the proposed amendment will benefit the public because the private investment that will occur will include redevelopment and maintenance of the public areas and amenities. With redevelopment, the public will have increased opportunities to enjoy the aesthetic qualities of the shoreline—though creating an inviting place to enjoy the shoreline and through the development of widened view corridors and other public amenities. 30. The statewide interest is also served because, through strict development standards, further pollution of the waterway will also be controlled and prevented. 31. The proposed amendment may result in impaired views of a substantial number of residences; however, the amendment has been modified to minimize the impacts to existing views from public property and a substantial number of residences and to preserve the public’s opportunity to enjoy the physical and aesthetic qualities of the Thea Foss shoreline to the greatest extent feasible, consistent with RCW 90.58.020 and WAC 173-26-221(4)(d). 32. The proposed amendment to the Thea Foss Waterway regulations are warranted and are in the overall interest of the public because it supports the goals of the GMA, is consistent with the requirements of the SMA, and implements the policies in the City’s Comprehensive Plan including the Master Program for Shoreline Development and the Thea Foss Waterway Design and Development Plan. 33. The Commission finds that although some views may be impaired, the overriding interests of the public will be served by providing an alternative development option that: a. provides a design solution for an area that has development constraints and is not redeveloping as planned; b. increases public access to the Foss shoreline; c. improves views of the Thea Foss from Fireman’s Park; d. protects the locally significant view of Mount Rainier from the southeast viewpoint in Fireman’s Park; e. supports economically-viable redevelopment; f. helps to ensure a financial return to the FWDA and/or the City of Tacoma; g. is consistent with GMA goals and the City’s Comprehensive Plan growth strategy; h. is consistent with the public policy objective to redevelop the Thea Foss waterfront with development projects that are consistent with the policies in the Thea Foss Waterway Design and Development Plan; Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 18 of 20 Page 20 i. preserves the Municipal Dock site for redevelopment consistent with its past use as a warehouse and helps to preserve the site for potential reuse as a ferry terminal; j. supports the possibility of pedestrian access from the Murray Morgan Bridge to a future redevelopment project on the Municipal Dock site, which may include a public rooftop space; k. provides for architectural diversity; and l. enhances the pedestrian experience along the waterfront. E. RECOMMENDATION The Planning Commission recommends that the City Council adopt the amendments to the S-8 Thea Foss Waterway Shoreline District regulations (TMC 13.10.110), which is a part of the Master Program for Shoreline Development, as approved by the Commission on October 3, 2007, summarized below and attached hereto. SUMMARY OF RECOMMENDED AMENDMENTS 1. Allows buildings up to 180 ft. on Sites 10 and 11 under an alternative development option (“tower/podium” building form) if: a. For projects incorporating multiple towers, only one of the towers can be 180 ft. tall (and this should be the southernmost tower). Each additional tower shall be progressively shorter by 20 feet. b. The podium height is no greater than 50 ft. (except for mechanical equipment and amenities associated with the use of the podium roof as recreational space, which can be no higher than 60 ft.) c. 100 ft. average distance is maintained between towers (in no case closer than 80 ft.) d. Maximum width of towers is 125 ft. e. Maximum floorplate of towers is 15,000 sq ft., which is reduced to 12,000 sq ft above 100 feet in height f. Buildings are set back 10 ft. from view/access corridor, increasing public access g. The tower must be set back from podium wall along the view/access corridors h. The podium wall along the view/access corridor must be modulated i. 50% of the podium roof is usable recreational space, of which 30% is landscaped j. No additional height on the tower is allowed for structural elements, architectural features, mechanical equipment etc. 2. Retains the existing development option for Sites 10 and 11, with a maximum height of 100 ft. (“wedding cake” building form). 3. Reduces the maximum height limit for the Municipal Dock site to 90 feet. No additional height is allowed for structural elements, architectural features, mechanical equipment, etc. 4. Requires an additional 10-foot setback from the view/access corridor on the north side of the Municipal Dock site, increasing public access 5. Clarifies that the FWDA is to conduct design review on all public properties on the west side using the criteria and guidelines in the Thea Foss Waterway Design and Development Plan. The findings of the FWDA design review are to be referenced in the shoreline permit. Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 19 of 20 Page 21 6. Clarifies that City staff will conduct design review on private properties as part of the shoreline permit. Applicants can voluntarily use FWDA design review on private properties. 7. Design review must consider (per SMA) the shoreline view impacts to a substantial number of residences. 8. Requires that the view of Mt. Rainier from the southeast corner of Fireman’s Park be considered as part of the view impact analysis and protected. 9. Reorganizes and reformats this section of the code to make it more user-friendly and adds diagrams and illustrations to clarify certain requirements. ATTACHMENTS: A. S-8 Shoreline District -Thea Foss Waterway, Proposed Land Use Regulatory Code Amendments, Planning Commission Recommendation, October 3, 2007 B. Viewshed Analysis for the Thea Foss Waterway, Zone 1 South (North of the Murray Morgan Bridge), October 3, 2007 C. Shoreline Study Area Viewsheds, October 2007 D. Comparison of Alternative Height Options for Zone 1 South, October 3, 2007 Planning Commission Findings and Recommendations S-8 Shoreline District Regulations October 3, 2007 Page 20 of 20 Page 22 S‐8 Shoreline District – Thea Foss Waterway Proposed Land Use Regulatory Code Amendments OCTOBER 3, 2007 SUMMARY OF REVISIONS: • • • • • • • • • Allows buildings up to 180 ft. on Sites 10 and 11 under an alternative development option (“tower/podium” form): o For projects incorporating multiple towers, only one of the towers can be 180 ft. tall (and this should be the southernmost tower). Each additional tower shall be progressively shorter by 20 feet o Podium height is no higher than 50 ft. (mechanical equipment and amenities associated with the use of the podium roof as recreational space no higher than 60 ft.) o 100 ft average distance is maintained between towers (in no case closer than 80 ft.) o Maximum width of tower is 125 ft. o Maximum tower floorplate is 15,000 sq ft., reduced to 12,000 sq. ft. above 100 feet in height o Buildings are set back 10 ft. from view/access corridors, expanding them by 25% o The tower must be setback from podium wall along the view/access corridors o The podium wall along the view/access corridors must be modulated o 50% of the podium roof is usable recreational space, of which 30% is landscaped o No additional height is allowed for structural elements, architectural features, mechanical equipment etc. Retains existing development option for Sites 10 and 11, with a maximum height of 100 ft. (“wedding cake” form) Reduces the height limit for the Municipal Dock site from 100 feet to 90 feet. Requires an additional 10 ft. setback from the view/access corridor on the north side of the Municipal Dock site Clarifies that the FWDA is to conduct design review on all public properties on the west side using the criteria and guidelines in the Thea Foss Waterway Design and Development Plan. The findings of the FWDA design review are to be referenced in a shoreline permit Clarifies that City staff will conduct design review on private properties as part of the shoreline permit. Applicants can voluntarily use FWDA design review on private properties Design review must consider (per SMA) the shoreline view impacts to a substantial number of residences Requires that the view of Mt. Rainier from the southeast corner of Fireman’s Park be considered as part of the view impact analysis Reorganizes and reformats this section of the code to make it more user-friendly and adds diagrams and illustrations to clarify certain requirements S-8 Shoreline District Draft Code Amendments (10-3-07) Page 1 of 10 Page 23 *Note – This document represents the draft changes to the S-8 Shoreline District regulations related to the proposed alternative development option (the “tower/podium” form). The new sections and language are highlighted in the document. In addition to these changes, the document also reflects a reorganization of this section of the code. This reorganization is intended to make this section easier to read, follow and understand. The changes that are associated with the reorganization have not been highlighted, as they generally do not modify the affect of the regulations (this includes numerous portions that have not been modified but have been relocated). 13.10.110 S-8 Shoreline District – Thea Foss Waterway. A. Intent. The intent of the “S-8” Shoreline District is to improve the environmental quality of Thea Foss Waterway; provide continuous public access to the Waterway; encourage the reuse and redevelopment of the area for mixed-use pedestrian-oriented development, cultural facilities, marinas and related facilities, water-oriented commercial uses, maritime activities, water-oriented public parks and public facilities, residential development, and waterborne transportation; and to encourage existing industrial and terminal uses to continue their current operations and leases to industrial tenants. B. Description. The “S-8” Shoreline District is hereby described as an area, including all of Thea Foss Waterway, and Wheeler Osgood Waterway between the west line of Dock Street, and the east line of “D” Street, and 200 feet landward of the ordinary high water mark of said Waterways. For the purposes of this section, the west side of the waterway begins at the northwestern corner of the waterway and extends to the southerly end adjacent to the “twin 96-inch” storm drains. C. Environmental Designation. The “S-8” Shoreline District is hereby designated as an “urban” environment, as summarily defined in Section 13.10.030 of this chapter, and as further defined within those elements of the Shoreline Master Program which are adopted by resolution. D. Substantial Development/Permitted Uses and Development Activities. The following uses and development activities shall be permitted, subject to the issuance of a Substantial Development Permit, if required: 1. Bulkheads. 2. Commercial, non-water-oriented, over water, only within structures which existed on January 1, 1996. 3. Commercial, water-oriented, upland, or over water. 4. Dredging, maintenance, and for environmental remediation and habitat improvement projects. 5. Educational, historical, cultural, and archaeological areas. 6. Environmental remediation. 7. Habitat improvement. 8. Hotels/motels on the west side and on the east side only, south of the East 11th Street right-of-way. 9. Industrial uses which existed on January 1, 1996, on the east side of the Waterway. (Said industrial uses may continue current operations, and owners of property and structures currently let for industrial purposes may replace existing industrial tenants. Such uses may be expanded, adapted, repaired, replaced or otherwise modified, including changes necessitated by technological advancements; provided, however, that the uses may not be expanded beyond property boundaries owned, leased, or operated by the industrial user on January 1, 1996.) 10. New industrial uses, water-dependent or water related, in the area on the east side of the waterway, and north of the centerline of East 15th Street, in conformance with the regulations set forth in Section 13.10.175.B.15 of this chapter. S-8 Shoreline District Draft Code Amendments (10-3-07) Page 2 of 10 Page 24 11. Landfill above the OHWM in conjunction with a specific use or landfill below the OHWM for environmental remediation or habitat improvement. 12. Marinas and boat launch facilities, except as set forth in “F” below. 13. Piers, wharves, docks, and floats. 14. Recreation, water-oriented. 15. Residential; upland location only or within over water structures which existed on January 1, 1996, on the west side of the waterway and on the east side only, south of the East 11th Street right-of-way. 16. Roads, railroad and bridge construction. 17. Utilities, underground. 18. Normal maintenance and repair of existing structures or developments, including damage by accident, fire, or elements. E. Substantial Development/Conditional Uses and Development Activities. The following uses and development activities shall be permitted subject to the issuance of a Substantial Development/Conditional Use Permit, if required; provided, that the applicant can demonstrate that any such use activity conforms with the criteria set forth in Section 13.10.180 of this chapter, and subject to approval of the Department of Ecology as set forth in Section 13.10.180 of this chapter: 1. Breakwaters. 2. Commercial, non-water-oriented, upland location only. 3. Dredging, non-maintenance. 4. New industrial uses, non-water-dependent or non-water related, in the area on the easterly side of the Waterway and north of the centerline of East 15th Street in conformance with the regulations set forth in Section 13.10.175.B.15. 5. Landfill below the OHWM in conjunction with a specific use other than environmental remediation or habitat improvement. F. Prohibited Use Activities. Boat launch facilities, which are not part of a marina facility, shall be prohibited within Thea Foss Waterway. Car-top facilities are permitted. G. Development Standards. The development standards section is divided into three separate subsections. The first subsection is applicable to the west side of the Waterway; the second subsection is applicable to the east side of the Waterway; and the third subsection is applicable to both sides of the Waterway. 1. West Side of the Waterway. The following regulations apply to the west side of the Waterway. Any new building, structure or portion thereof erected on the west side shall be subject to the following standards. a. Area Regulations (1) Due to the significant public ownership on the west side of the Waterway, the areas bounded by Dock Street, designated view/access corridors between Dock Street and the Waterway, and shoreline edge areas designated for public use and access, are termed “development sites.” Twelve specific development sites are established per the Thea Foss Waterway Design and Development Plan (Foss Plan). The term “development site,” when utilized in this section, refers to the areas described herein and in the Foss Plan. (2) The Foss Waterway Public Development Authority (FWDA) shall administer development of publicly-owned properties and shall conduct design review of projects on public property on the west side of the Waterway. Developers of private property are encouraged, but not required, to participate in the design review process conducted by the FWDA. If the FWDA design review process is not utilized for development on private property, City staff shall conduct the design review as part of the shoreline permit process and shall solicit comments from the FWDA. The required design review shall utilize the design guidelines and other requirements found in the Foss Plan and shall include consideration of view impacts (as further described below). The findings and/or comments of S-8 Shoreline District Draft Code Amendments (10-3-07) Page 3 of 10 Page 25 the FWDA’s design review shall be referenced in shoreline permit decisions and given substantial weight in determining whether a proposed project is consistent with the Foss Plan and its design requirements. (3) View Impact Analysis. Project proponents shall conduct a view impact analysis for all new development that exceeds 35 feet in height. The purposes of the view analysis are to assist in addressing the requirements of the Shoreline Management Act, including RCW 90.58.320, and protecting a locally significant public view. The analysis shall be submitted to the City as a part of the shoreline permit application. In addition, for projects utilizing the FWDA design review process, the analysis shall be submitted to and reviewed as part of their design review process. (a) The view analysis shall identify potential impacts to public access to the shorelines of the State and the view obstruction of a substantial number of residences on areas adjoining the west side of the Waterway. (b) The view analysis shall also identify potential impacts to the locally significant public view of Mount Rainier, behind the Murray Morgan Bridge, as seen from the northern end of the southernmost viewpoint projection in Fireman’s Park. (c) In addition to the requirements found in the Shoreline Management Act, including RCW 90.58.320, shoreline permits shall not be approved for any new or expanded building or structure of more than fifty feet in height that will obstruct the locally significant public view of Mount Rainier, as described above. (4) Any new building adjacent to Dock Street, view/access corridors, or the esplanade must provide pedestrianoriented uses and activities which are directly accessible from adjacent public spaces. These pedestrian-oriented uses or activities include retail sales, eating and drinking establishments, or interior public art displays that can be viewed from the public space. (a) A minimum of 50 percent of the pedestrian level building frontage along the esplanade shall contain this type of use. (b) A minimum of 20 percent of the building frontage along the view/access corridors and Dock Street shall contain this type of use. (c) These uses shall be located at or near the corners where possible. (d) Pedestrian access to ground-level uses shall be provided directly from adjacent walkways. Pedestrian entrances shall be located no more than three feet above or below adjacent sidewalk grade. (e) The Puget Sound Freight Building is exempt from the application of this requirement if this building is renovated. (5) Blank walls (walls that do not contain doors, windows, or ventilation structures) between two feet and eight feet above the adjacent sidewalk shall be no longer than 20 feet in length. b. View/Access Corridors. (1) Fourteen view/access corridors are located adjacent to the development sites and are defined below. By specifically designating these areas for public use and access, setbacks are not required on the front (Dock Street), side and rear edges of the development sites (except as specifically required below); provided, that the required public access areas, amenities and area-wide design features are provided. (2) Fourteen 80-foot wide view/access corridors between Dock Street and the inner harbor line and generally aligned with the extension of the urban street grid are hereby established. Three primary view/access corridors are established at the alignment with South 13th, 15th, and 17th Streets. Eleven secondary view/access corridors are established immediately south of the “Dock” Building, north and south of the Puget Sound Freight Building, north of the Municipal Dock Building, and at the alignment of South 9th, 11th, 12th, 14th, 16th, 18th, and 20th Streets. (3) View/access corridors shall be developed concurrent with improvements on adjacent development sites. These corridors shall be designed and constructed in coordination with the FWDA. All developments abutting a view/access corridor(s) shall be required to develop one-half of all view/access corridors abutting their development site(s). (4) Buildings are not allowed in any designated waterfront esplanade, boardwalk, or view/access corridor, except that weather protection features, public art, or areas provided primarily for public access, such as viewing towers S-8 Shoreline District Draft Code Amendments (10-3-07) Page 4 of 10 Page 26 and pedestrian bridges, may be located in or over these areas, consistent with the Foss Plan. Pedestrian bridges over secondary view/access corridors between development sites are allowed, provided they are a maximum of 10 feet in width and 12 feet in height, and with a minimum clearance of 25 feet from the ground to the underside of the structure. (5) Primary view/access corridors may not be reduced in width and are generally fixed in location, but may be moved up to 25 feet in either direction to accommodate site development. Secondary view/access corridors may be moved to accommodate site development, although the total corridor width must not be reduced. To move view/access corridors, the applicant must demonstrate the following: (a) The movement is necessary to facilitate site design and would not compromise future development on remaining development sites. (b) The new view/access corridors created provide the same or greater public use value. (c) Building design reflects the original view/access corridor by reducing building height in this area or by providing additional public access and viewing opportunities. (6) If the distance between any two view/access corridors is greater than 500 lineal feet, an additional public access between Dock Street and the esplanade must be provided. This public access must be a minimum of 20 feet in width, signed for public access, open to the public, and may be either outdoors or within a structure. (7) Development over view/access corridors established at the alignment of South 16th and 18th Streets may occur; provided, the structure meets the following conditions: (a) The height to the underside of the structure is a minimum of 25 feet. (b) The height does not exceed 50 feet. (c) The structure is set back a minimum of 20 feet from the Dock Street facade of adjacent development sites. (d) The total depth does not exceed 80 feet. (8) Municipal Dock Site. Buildings on the Municipal Dock site shall be setback at least 10 ft. from the edge of the view/access corridor between the Municipal Dock site and Development Site 10. This additional setback area shall be designed and developed to facilitate additional public access and function as an extension of the abutting view/access corridor. This setback requirement is not subject to variance. S-8 Shoreline District Draft Code Amendments (10-3-07) Page 5 of 10 Page 27 c. Building Envelope Standards Table North end of Waterway to center of secondary view/access corridor between Development Site 11 and the Puget Sound Freight Building Center of the secondary view/access corridor between Development Site 11 and the Puget Sound Freight Building to center of the secondary view/access corridor between Development Site 10 and Municipal Dock site Center of 11th Street to center of 15th Street, extended Center of 15th Street, extended, to center of 18th Street, extended Center of 18th Street, extended, to south end of Waterway None Alternative 1 Alt. 2 1 None None None None 50 50 none 50 50 40 40 Maximum Height 100 100 180 90 130 100 65 Modulation Required – from edge of view/ access corridors2 8 feet in at a height of 50 feet and between 50100 feet 8 feet in at a height of 50 feet and between 50100 feet 8 feet in at a height of 50 feet and between 50100 feet 8 feet in at two locations, one between a height of 25 and 50 feet and one between 50 and 75 feet 8 feet in at two locations, one between a height of 25 and 50 feet and one between 50 and 75 feet 8 feet in at two locations between a height of 25 and 50 feet Modulation Required – from edge of esplanade 3 8 feet in at two locations, one between a height of 25 and 50 feet and one between 50 and 75 feet 8 feet in at two locations, one between a height of 25 and 50 feet and one between 50 and 75 feet 8 feet in at two locations, one between a height of 25 and 50 feet and one between 50 and 75 feet 8 feet in at two locations, one between a height of 25 and 50 feet and one between 50 and 75 feet 8 feet in at two locations, one between a height of 25 and 50 feet and one between 50 and 75 feet 8 feet in at two locations between a height of 25 feet and 50 feet Alternatives Minimum Height 1 See Section 13.10.110.G.1.g, below, for additional standards for Alternative 2 Center of the secondary view/access corridor between Development Site 10 and Municipal Dock site to center of 11th Street Footnotes: 1. All new buildings must meet the minimum height limit for 50 percent of the structure footprint. This requirement does not apply to buildings which existed as of January 1, 1996, structures in parks, the view/access corridors, the esplanade, or temporary uses or maintenance structures. 2. Where a specific height is indicated, the actual modulation may occur at the floor elevation closest to the identified height. 3. Required building modulation at 25 feet in height adjacent to esplanade is not required if actual building height at this location is less than 40 feet. d. Site Coverage Restrictions. The following site coverage restrictions are imposed to reduce building profile and bulk as buildings increase in height. These restrictions do not apply to developments along the westside of the Waterway that utilize the Alternative 2 development option in Section 13.10.110.G.1.g. (1) From grade to 50 feet in height: 100 percent coverage of development site allowed (subsurface parking may extend under adjacent view/access corridors if conforming to Section 13.10.110.G.3.b(h) and/or beyond development sites north of 11th Street where the esplanade is several feet higher in elevation than Dock Street.) (2) From 50 feet to 100 feet: 70 percent coverage of the at-grade area is available for development, inclusive of required modulations. (3) Above 100 feet: 50 percent coverage of the at-grade area is available for development, inclusive of required modulations. S-8 Shoreline District Draft Code Amendments (10-3-07) Page 6 of 10 Page 28 e. Any new building must extend to the site edge for a minimum of 60 percent of the site perimeter. This provision does not apply to developments along the west side of the Waterway that utilize the Alternative 2 development option in Section 13.10.110.G.1.g. f. Reduction of the required modulations and/or increased height limits on the western side of Waterway to accommodate structural elements may be authorized in conjunction with the issuance of a Shoreline Substantial Development Permit or Shoreline Conditional Use Permit when all of the following are satisfied. This provision does not apply to developments along the west side of the Waterway that utilize the Alternative 2 development option in Section 13.10.110.G.1.g. (1) That portion of the structure exceeding the underlying height limit or contained within the required modulation: (a) Is designed primarily as an architectural or artistic feature and does not include signage or exterior mechanical equipment; (b) Does not provide habitable floor space; (c) Does not exceed the underlying height limit by more than 25 feet; (d) Has a cumulative width of 15 percent or less of the development site’s Dock Street frontage; (e) Does not extend waterward of ordinary high water; and (f) Is designed to minimize view impacts from neighboring properties through the use of location, materials, and orientation. (2) The reduction of the required modulations and/or the increased height will not adversely affect the intended character of the shoreline district and will secure for neighboring properties substantially the same protection that a literal application of the regulation would have provided. (3) The reduction of the required modulations and/or the increased height will not be contrary to the intent of the Shoreline Management Act and will be consistent with the policies of the Foss Plan. g. Alternative 2 Development Option. As noted in the building envelope standards table in Subsection G.1.c, above, within the area between the center of the view/access corridor between Development Site 11 and the Puget Sound Freight Building and the center of the secondary view/access corridor between Development Site 10 and Municipal Dock site, there are two basic development alternatives. Alternative 1 represents a mid-rise block form of building design. The basic development standards associated with Alternative 1 are mostly provided in the table and subsections above. Alternative 2 represents a tower and podium form of building design, which utilizes a combination of a low-rise block form with one or more tower elements that project up from the base (see Figure 2). Most of the development standards associated with Alternative 2 do not fit within the format of the above table and subsections and, therefore, are provided below. For projects utilizing Alternative 2, the following additional development standards shall apply: (1) Podium Height. The height of the podium shall be no greater than 50 ft. Mechanical equipment and parapet walls, as well as railings, planters, seating, shelters, and other similar amenities associated with the use of the podium roof as recreational space, shall be allowed up to a maximum height of 60 ft. S-8 Shoreline District Draft Code Amendments (10-3-07) Page 7 of 10 Page 29 Figure 2: Alternative 1 – Mid-rise block form Alternative 2 – Tower and podium form (2) Tower Height. The maximum height for any tower shall be 180 feet. Any portion of a building extending above the maximum height of the podium shall be considered a part of a tower. For projects with multiple towers on a single development site, only one of the towers shall be allowed to the maximum height limit. The maximum allowable height for each additional tower on that development site shall be progressively reduced by at least 20 feet. For example, a project with three towers could have one tower up to 180 feet tall, one tower up to 160 feet tall and one tower up to 140 feet tall (see Figure 3). Additionally, the tallest tower on each development site shall be the southernmost tower and additional towers shall step down in elevation as they progress to the north; provided, an alternative tower arrangement can be allowed if it is found to provide improved public access and reduced view impacts. This height limit is not subject to variance. Figure 3: Tower Height – Progressive maximum height reduction Figure 4: Tower Spacing – Averaging In this example, the building’s two tower separations (80 and 120 feet) provide the required average separation of 100 feet (3) Tower Spacing. For buildings that incorporate multiple towers, the minimum spacing between towers shall be an average of 100 feet, with no less than 80 feet between any portions of any two towers (see Figure 4). For single projects with multiple buildings and multiple towers, the average spacing between towers may be calculated based on all of the towers contained in that project. (4) Tower Width. The maximum width of any tower shall be 125 feet. For purposes of this requirement, the width shall be measured in a north-south direction, parallel to Dock Street. (5) Tower Floorplate. The maximum floorplate area per floor for the portion of any tower above 50 feet in height shall be 15,000 sq. ft. The maximum floorplate area per floor for the portion of any tower above 100 feet in height shall be 12,000 sq. ft. (6) Podium Setback. The podium portion of any building shall be setback at least 10 ft. from the edge of any view/access corridor. This additional setback area shall be designed and developed to facilitate additional public access and function as an extension of the abutting view/access corridor. This setback requirement is not subject to variance. (7) Tower Setback. Along the view/access corridors, the tower portion(s) of any building shall be setback at least eight feet from the primary exterior face of the podium wall along the view/access corridors. (8) Podium Modulation. For the portion of the exterior wall along the view/access corridors that is above 35 feet in height, at least 50% of the length of the podium wall shall be setback a minimum of 8 feet (see Figure 5). S-8 Shoreline District Draft Code Amendments (10-3-07) Page 8 of 10 Page 30 (9) Podium Roof. At least 50% of the podium roof shall be improved as recreational space for use by the tenants and/or public. At least 30% of this improved recreational space on the podium roof shall be landscaped. The use of native vegetation is encouraged. Figure 5: Podium Modulation (along View/Access Corridors) 2. East Side of the Waterway. The following regulations apply to the east side of the Waterway: a. Building Height. Any building, structure, or portion thereof hereafter erected shall not exceed a height of Please Note: This drawing is only intended 100 feet on the east side of the to demonstrate the components Waterway, except for the area north of of this requirement. This is not the East 15th Street, where an additional only method for meeting this requirement four feet of additional height is allowed for every one foot a structure is set back on all sides. b. Side Yard/View Corridor – same as required in the “S-1” Western Slope South Shoreline District Area Regulations, Section 13.10.040.H.1, except for industrial uses which existed on January 1, 1996. Such side yard/view corridor shall include the pedestrian circulation link required by Section 13.10.175.A of this chapter. c. Front Yard Setback (street or road) – same as required in the “S-1” Western Slope South Shoreline District Area Regulations, Section 13.10.040.H.1, except for industrial uses which existed on January 1, 1996. d. Rear Yard Setback – same as required in the “S-1” Western Slope South Shoreline District Area Regulations, Section 13.10.040.H.1, except for industrial uses which existed on January 1, 1996. e. Lot Area – same as required in the “S-1” Western Slope South Shoreline District. 3. Additional Development Standards. These additional development standards apply to the entire “S-8” Shoreline District. a. The following structures are allowed above the height limit: television antennas, chimneys, and similar building appurtenances, except where such appurtenances obstruct the view of the shoreline of a substantial number of residences on areas adjoining the shoreline, and then only provided they meet structural requirements of the City of Tacoma and provide no usable floor space above the height limitations. This provision does not apply to the tower height limit for developments along the west side of the Waterway that utilize the Alternative 2 development option (Section 13.10.110.G.1.g(2)) or to the portion of the west side of the Waterway from the center of the secondary view/access corridor between Development Site 10 and the Municipal Dock site to the center of 11th Street. b. Parking and Loading Regulations. The following parking and loading regulations shall apply to the “S-8” Thea Foss Waterway Shoreline District: (1) Parking is not required for any use located in the “S-8” Thea Foss Waterway Shoreline District. (2) Parking which is developed shall conform to the parking and loading regulations set forth in Section 13.10.175 of this chapter. All parking provided on the east side of the Waterway shall not exceed the amount which would have been required by Section 13.10.175 of this chapter. (3) Angled street parking, where it conflicts with public transportation use, shall be prohibited. (4) The following standards shall additionally apply to all parking provided on the west side of the Waterway: (a) All new parking provided within the “S-8” Shoreline District must be located within a structure, except as provided for in subsection (c) below and except for parking for sites developed as public parks (excluding view/access corridors), any parking necessary to meet the requirements of the Americans with Disabilities Act, loading and unloading areas and within the Dock Street right-of-way. Structured parking facilities may accommodate parking for surrounding uses; provided, that the principal use of a structure may not be a parking S-8 Shoreline District Draft Code Amendments (10-3-07) Page 9 of 10 Page 31 facility. For-pay parking is allowed. Twenty percent of stalls in all new parking areas shall be set aside for public use; provided, that one parking space per new residential unit is exempt from this requirement. (b) Legally permitted surface parking areas as of January 1, 1996, may continue to serve existing uses. (c) New surface parking may be provided as an interim principal use for a length of time not to exceed 15 years, and requiring shoreline permit review every five years. Such surface parking may be allowed following demonstration that the parking is landscaped and screened in accordance with the Foss Plan and the requirements of Section 13.10.175, including the requirements for public access. (d) Landscaping and/or building surface treatment consistent with the Foss Plan shall be provided on the sides oriented toward Dock Street and designated view/access corridors. The waterward side of any building may not be developed with above-grade structured parking. (e) Access to structured parking may be provided in designated view/access corridors; provided, that the applicant can demonstrate that access across the development site is not reasonably available, that public access along Dock Street and through the view/access corridor is unimpeded, and that the minimum area necessary to provide said access is used. (f) Above-grade structured parking shall not be allowed as a visible use on the waterward side of any building, and landscaping and/or building surface treatment consistent with the Foss Plan shall be provided on the sides oriented toward Dock Street and designated view/access corridors. Parking uses visible from the building exterior shall be screened or shall incorporate design measures to provide an appearance comparable to the rest of the building not used for parking, utilizing landscaping and building surface treatment. (g) Structured parking shall be designed to a minimum allowable height. (h) Subsurface parking is allowed under view/access corridors, provided the structure is designed to a minimum allowable height to optimize public access and views to the esplanade from Dock Street. Public access over subsurface parking structures shall be designed to minimize grade discontinuation and meet the requirements for ADA accessibility. c. Use and Development and Sign Regulations. Use and development and sign regulations are set forth in Section 13.10.175 of this chapter entitled “Regulations”. d. Developments within the “S-8” Thea Foss Waterway Shoreline District shall also comply with the goals and intent of the Foss Plan and shall incorporate unifying design elements as specified in said Plan. S-8 Shoreline District Draft Code Amendments (10-3-07) Page 10 of 10 Page 32 Viewshed Analysis for the Thea Foss Waterway Zone 1 South (North of the Murray Morgan Bridge) October 3, 2007 The following images created in a 3D GIS model illustrate existing views and possible view impairment from a maximum zoning build-out scenario at different heights. The “buildings” are not supposed to look like buildings; rather, they are boxes filling up the maximum zoning envelopes. In reality, a constructed building could be smaller than the maximum zoning envelope, and it would certainly be more attractive. Also, there could be more “buildings” and they could be sited at different locations than as depicted. The purpose of this analysis is to provide a comparison of heights under one possible scenario. Each block in a zoning envelope box is 10 feet square. Additionally, “measuring sticks” have been placed to show the height of the zoning envelope boxes. Three viewpoints are depicted and shown below. The Perkins Building contains 33 condominiums and all units share a roof garden. At the request of the residents, the selected viewpoint is located in the roof garden area. Another viewpoint is located at the Fireman’s Park overlook directly east of the Totem Pole, which is located towards the southeast corner of the Park. The third viewpoint is located at the overlook area at the northern part of Fireman’s Park. …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 33 Page 1 of 11 Viewshed Analysis from the Perkins Building Roof Garden View from the Perkins Building Roof Garden Existing Conditions, View to the North View from the Perkins Building Roof Garden 100 Foot Zoning Envelope, 125 Foot Structural Element (Current Zoning), View to the North …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 34 Page 2 of 11 View from the Perkins Building Roof Garden April 2007 Proposal, View to the North View from the Perkins Building Roof Garden October 2007 Proposal, View to the North …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 35 Page 3 of 11 Viewshed Analysis from Fireman’s Park East of the Totem Pole (South View) View from Fireman’s Park East of the Totem Pole Existing Conditions, View to the South View from Fireman’s Park East of the Totem Pole (Current Zoning) 100 Foot Zoning Envelope, 125 Foot Structural Element, View to the South …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 36 Page 4 of 11 View from Fireman’s Park East of the Totem Pole April 2007 Proposal, View to the South View from Fireman’s Park East of the Totem Pole October 2007 Proposal, View to the South …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 37 Page 5 of 11 Viewshed Analysis from Fireman’s Park East of the Totem Pole (East View) View from Fireman’s Park East of the Totem Pole Existing Conditions, View to the East View from Fireman’s Park East of the Totem Pole (Current Zoning) 100 Foot Zoning Envelope, 125 Foot Structural Element, View to the East …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 38 Page 6 of 11 View from Fireman’s Park East of the Totem Pole April 2007 Proposal, View to the East View from Fireman’s Park East of the Totem Pole October 2007 Proposal, View to the East …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 39 Page 7 of 11 Viewshed Analysis from Fireman’s Park East of the Totem Pole (North View) View from Fireman’s Park East of the Totem Pole Existing Conditions, View to the North View from Fireman’s Park East of the Totem Pole (Current Zoning) 100 Foot Zoning Envelope, 125 Foot Structural Element, View to the North …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 40 Page 8 of 11 View from Fireman’s Park East of the Totem Pole April 2007 Proposal, View to the North View from Fireman’s Park East of the Totem Pole October 2007 Proposal, View to the North …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 41 Page 9 of 11 Viewshed Analysis from the Northern Viewpoint in Fireman’s Park View from the Northern Viewpoint in Fireman’s Park Existing Conditions View from the Northern Viewpoint in Fireman’s Park 100 Foot Zoning Envelope, 125 Foot Structural Element (Existing Zoning) …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 42 Page 10 of 11 View from the Northern Viewpoint in Fireman’s Park April 2007 Proposal View from the Northern Viewpoint in Fireman’s Park October 2007 Proposal …R2007Y:\R378\Attachment_A_Viewshed_Analysis_Oct32007.doc Page 43 Page 11 of 11 Page 44 Shoreline Study Area Viewsheds Blue areas on maps are visible from the viewpoint | Red areas on maps are not visible from the viewpoint Fireman’s Park viewpoint Existing conditions Current zoning …R2007\R378\viewshed_calculations\ Attachment_B_Viewshed_Analysis_Graphic_Illustrations_Oct32007.doc Page 45 Page 1 of 6 Fireman’s Park viewpoint April 2007 proposal October 2007 proposal Blue: Visible | Red: Not Visible …R2007\R378\viewshed_calculations\ Attachment_B_Viewshed_Analysis_Graphic_Illustrations_Oct32007.doc Page 46 Page 2 of 6 Fireman’s Park north viewpoint Existing conditions Current zoning Blue: Visible | Red: Not Visible …R2007\R378\viewshed_calculations\ Attachment_B_Viewshed_Analysis_Graphic_Illustrations_Oct32007.doc Page 47 Page 3 of 6 Fireman’s Park north viewpoint April 2007 proposal October 2007 proposal Blue: Visible | Red: Not Visible …R2007\R378\viewshed_calculations\ Attachment_B_Viewshed_Analysis_Graphic_Illustrations_Oct32007.doc Page 48 Page 4 of 6 Perkins Building roof viewpoint Existing conditions Current zoning Blue: Visible | Red: Not Visible …R2007\R378\viewshed_calculations\ Attachment_B_Viewshed_Analysis_Graphic_Illustrations_Oct32007.doc Page 49 Page 5 of 6 Perkins Building roof viewpoint April 2007 proposal October 2007 proposal Blue: Visible | Red: Not Visible …R2007\R378\viewshed_calculations\ Attachment_B_Viewshed_Analysis_Graphic_Illustrations_Oct32007.doc Page 50 Page 6 of 6 Comparison of Alternative Height Options for Zone 1 South October 3, 2007 Existing Regulations April 2007 Proposal October 2007 Proposal 100 Ft. Wedding Cake Form Hybrid % reduction from existing degrees of view Fireman’s Park (Totem Pole) Existing degrees of view % reduction from existing degrees of view 180 Ft. Tower & Podium Form, with stepdown % reduction from existing degrees of view Near shore views (181°) Mid shore views (175°) Far shore views ( 95°) Fireman’s Park (North) Existing degrees of view 76.2% 54.3% 24.2% % reduction from existing degrees of view 68.0% 61.1% 74.7% % reduction from existing degrees of view 71.3% 60.6% 73.7% % reduction from existing degrees of view Near shore views (180°) Mid shore views (180°) Far shore views ( 96°) Perkins Building (Rooftop) Existing degrees of view 47.8% 28.9% 0% % reduction from existing degrees of view 44.4% 44.4% 27.1% % reduction from existing degrees of view 43.9% 43.9% 26.0% % reduction from existing degrees of view Near shore views (171°) Mid shore views (171°) Far shore views ( 92°)) 39.2% 0% 0% 80 feet 29.8% 26.9% 44.6% 100/90/80 feet 16.4% 13.5% 19.6% 100/90/80 feet 96 ft wide at 50 ft, expanding to 112 ft wide between 50 and 100 ft high at view/access corridor 100 ft wide at view/access corridor and above No additional corridors Additional view corridors between towers (min. 100 ft. avg. width above 50 ft.) 1,552,272 sq. ft. 1,079 linear ft. of bldg. View/access Corridors Width (at grade) “Viewing” Corridors Width At View/Access Corridors Additional Corridors Maximum Buildout Building Frontage for Area Site Coverage Building Modulation From View/Access Corridors 1,369,088 sq ft 1,139 linear ft. of bldg. 100% at grade to 50 ft 70% from 50 ft to 100 ft Not required 8 ft at 50 ft and between 50 ft and 100 ft Not required Municipal Dock 96/116 ft wide at 50 ft, expanding to 112/124 ft wide between 50 and 100 ft high at view/access corridor Sites 10 & 11 100 ft wide at grade, expanding to 116 ft wide above 50 ft at view/access corridors Additional view corridors between towers (min. 100 ft. avg. width above 50 ft.) 1,409,078 sq. ft. 1,089 linear ft. of bldg. Sites 10 & 11 Municipal Dock 100% at grade to 50 ft Not Required 70% from 50 ft to 90 ft No additional corridors Municipal Dock 8 ft at 50 ft and between 50 ft and 100 ft Sites 10 & 11 8 ft at 50 ft high and 8 ft at 35 ft high for 50% of corridor From Esplanade 8 ft between 25 ft and None 8 ft between 25 ft and 50 Not required 50 ft and between 50 ft ft and between 50 ft and and 75 ft 75 ft *Near shore views are generally of the Thea Foss waterway and its shoreline; mid shore views are of Commencement Bay and the shoreline and waterways of the tideflats and far shore views are of the shoreline areas abutting Northeast Tacoma I:\GM\LRANGE\AMEND\2004 Annual Amendment\State Shoreline Review\2006 Review\PC Recommendation\Comparison of Alternative Height Options (10-3-07).doc Page 51 Page 52 City of Tacoma Community and Economic Development Department Thea Foss Waterway S-8 Shoreline District Regulations ISSUES AND STAFF OBSERVATIONS REPORT SEPTEMBER 19, 2007 The following report summarizes the oral testimony received at the public hearing on the proposed amendments to the S-8 shoreline regulations held on April 18, 2007and written comments received prior to the comment deadline and provides a staff response to the comments, as warranted. Comment 1. Support proposed height amendment 2. Oppose proposed height amendment Source(s) Bjornson, Campbell, Crooke, Simon/Johnson, Johnson, Toth, Lynn, Meyer Wheeler, Sarner, Burkey, Lorenz, Gray, Shaw, Cummings (2), Johnson (2), Glick, Dzivak, Lambert Jacobs, Handmacher, Barline, Beery, Cohn, Furlong, Furlong, Fayth, Roberts, Rowley, Malone, Zacek, Vincenzo, Purcell, Tinnin, Casey, Caraher, Cummings, Rieber, Bennett, Eakins, Gross Response Support noted. Opposition noted. Page 53 Comment Source(s) 3. Keep 100 foot limit. Lambert, Beery 4. The proposed 180 foot building height would affect the view of Foss Waterway and Mount Rainier from residences at Cliff Street Lofts. Wheeler, Sarner, Tinnin 5. The proposed 180 foot building height would affect the view of residences at A Street. Wheeler, Johnson (2) 6. The proposed 180 foot building height would affect the views of Thea Foss, Commencement Bay and Mount Rainier from Fireman’s Park. Wheeler, Sarner, Jacobs, Handmacher, Barline, Furlong, Furlong, Larsen, Davenport, Rieber, Vincenzo 7. The residents living downtown have no legitimate expectation of an unobstructed view of the water. Bjornson 8. The change in the height restriction will change the view from street level which is a loss to all citizens. The Commission should find a more equitable way to encourage development without removing views for Lorenz, Davenport, Gross, Casey Response The proposed amendment retains the existing regulations which have a maximum height limit of 100 feet as an option within the affected area. The 3D view impact analysis conducted as a part of the review of the proposed alternative development option shows that the view of the Thea Foss Waterway looking north from the Cliff Street residences would be impacted; however; specific view impacts will be evaluated at the time of permit application and a more specific view analysis will be prepared and evaluated. The proposed alternative development option would not impact views of the Foss Waterway looking east at this location as the development sites located on the Foss Waterway are not affected by the proposed amendment. The view of Mount Rainier would not be affected at this location as the mountain is located to the south and east of the residences and the area of the Thea Foss Waterway that is affected by the proposed amendment. The 3D view analysis indicates that the existing height limit of 100 feet and the proposed option to allow 180 feet in a podium and tower configuration affect the views of residences. Near shore views would be affected at almost any height while mid-shore views are impacted at heights above 140 feet and far-shore views are impacted at heights above 160 feet (when viewed from the rooftop of the Perkins Building). Residential views from lower floors would vary in their impacts. Specific view impacts will be evaluated at the time of permit application and a specific view analysis will be prepared and evaluated. The proposed amendment prevents the obstruction of the view of Mount Rainier for the southeast overlook located in the park from any future development on the west side of the Waterway. The view of the mountain is identified as a locally important view in the proposed regulations. The current code does not protect this view. Also, the view of Commencement Bay from the three northernmost overlooks located in Fireman’s Park will not be impacted by the proposed amendment. The tower/podium form opens up additional view corridors between the park and the waterway, substantially improving the view. The Shoreline Management Act does confer some protection to views from residences adjacent to shorelines. Outside of the shoreline areas and adjacent lands, Washington state does not provide protection of private views. There is also very little view of the Foss Waterway at street level in the downtown. The Thea Foss Plan and shoreline regulations require view/access corridors and a continuous esplanade to provide viewing opportunities for the public. In addition several parks are also located on or are planned for the Waterway. As part of this proposal, the required view/access corridors will be expanded by Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 2 of 26 Page 54 Comment Source(s) Tacoma residents. 9. The current regulations, with a 100-foot height limit, are unacceptable because of the view impacts. The height limit should be reduced, not raised. The viewshed analysis indicates that the allowable height should be reduced. 10. Leave the view for all of us, no just for those who can afford expensive, tax-subsidized condos. Scenic resources belong to everyone. 11. Buildings deteriorate; vistas that make Tacoma what it is will not. The code change will stultify growth and Tacoma’s reputation as a jewel of the Northwest. Construction of the towers will virtually eliminate views of Commencement Bay for the residents of the Perkins Building. 12. Handmacher, Johnson (2), Gray, Barline, Dzivak, Cummings Gray, Shaw, Dzivak, Glick Lambert, Larsen, Roberts, Malone, Johnson (2), Casey, Beery, Dzivak, Barline Glick, Beery, Fayth Cummings (2), Handmacher, Stebich, Zacek, Bennett, Eakins, Lorenz Response 25%. In addition, 50% of the podium roofs are to be usable for recreational space by the building tenants and/or public. The Planning Commission directed staff to develop a revised proposal which lowers the maximum height for the Municipal Dock site to 90’. The economic analysis conducted as part of this project revealed that development at a height of less than 100 feet was not economically viable and that additional height was necessary to attract investment. The viewshed analysis indicates that the nearshore views from Fireman’s Park are impacted more by the existing regulations than the proposed regulations; however, the midshore views are impacted more by the proposed than the existing regulations. From the Perkins building observation point, the nearshore view impacts are greater with the existing than the proposed regulations. The Foss Plan recognizes that view impacts will occur as redevelopment occurs. The Thea Foss Design and Development Plan (Foss Plan) and shoreline regulations require view/access corridors and a continuous esplanade to provide viewing opportunities for the public. As part of this proposal, the required view/access corridors will be expanded by 25%. As previously noted, park areas also provide opportunities for the public’s enjoyment of the waterway. The Foss Plan identifies primary and secondary view/access corridors and includes policies that protect views at a variety of scale and locations. Also, please see the response to comments #6, #7, #8 and #80. The view analysis calculations of the proposal indicates that near-, mid-, and far shore views will be reduced by between 26.9% and 44.6% from the rooftop of the Perkins Building if buildings are built to the maximum zoning envelopes in the exact configuration as shown in the 3D model. The actual view impact may be less or more depending on any future project design. It is noted that views from the Perkins Building will be impacted, but the residents will still retain other views. In addition, residents have the opportunity to view Commencement Bay from many public vantage points as does any other resident of the city. The Planning Commission directed staff to develop a revised proposal which eliminates the alternative development option for the Municipal Dock site and limits the height to a maximum height of 90 ft for this site, reduces the Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 3 of 26 Page 55 Comment Source(s) 13. If the city prevails and adopts this height amendment, it will set a precedent for the shoreline south of the 11th Street Bridge Cummings (2), Zacek, Sarner 14. The decisions from the Shorelines Hearings Board regarding permits for building in excess of 35 feet have clearly stated the SMA does not bar such development; it only places the burden on the applicant to show that proposed height meets “overriding considerations of the public interest.” There have been several cases concerning view impacts considered by the Shorelines Hearings Board including: Tacoma, Olympia, Seattle, Vancouver and Kirkland. Handmacher, Cooke 15. The Shoreline Management Act has specific provisions to protect views from residences located in areas adjacent to the shorelines. RCW 90.58.320 prohibits buildings over 35 feet where views of residences are blocked unless there are overriding considerations of the public interest. There is no overriding consideration of the public interest being served by the proposed amendment. Handmacher, Cummings (2), Davenport, Zacek, Barline, Rowley Response floorplate above 100 ft and requires that the tower portions of a building be setback from the view/access corridors. These changes will modify the view impacts from the Perkins Building. The areas of the Foss Waterway North and South of the Murray Morgan Bridge are planned for different levels of development and distinct policies regarding their future use. Allowing a height amendment now, to the area North of the Murray Morgan (11th Street) Bridge does not mean that another height amendment is planned or if another height amendment were to be proposed in the future that it will be guaranteed. Any other proposal to change the height limits will be analyzed on its own merits and according to the policies of the Shoreline Management Act, the City of Tacoma Comprehensive Plan, the Shoreline Master Program and the Foss Plan. City staff has reviewed Shoreline Hearings Board decisions concerning the impact of proposed development on views. The Shoreline Hearings Board’s function is to determine a project’s consistency with the Shoreline Management Act (SMA) and with the jurisdiction’s Shoreline Master Program (SMP). Each local jurisdiction has the primary responsibility for implementing the SMA through the adoption of an SMP. The Shoreline Hearings Board refers to two provisions of the SMA when considering the issues of view access and view obstruction. They are the general policy section, RCW 90.58.020, and a specific provision, which deals with structures in the shoreline district exceeding 35 feet in height, RCW 90.58.320. The Board looks to the local SMP and the policies contained therein, so a local jurisdiction does have authority to determine what it values. RCW 90.58.320 provides guidance concerning the views from adjacent residential property but also provides an exception to this protection when the SMP provides for buildings higher than 35’ when the "overriding considerations of the public interests" are served. The statute does not provide a definition of "overriding considerations of the public interest" and does not articulate any specific test or analysis to be applied in determining whether or not the standard is met. Factors which may be considered in determining the public interest in shoreline structures in excess of 35 feet may include, but are not limited to, prior planning of the local government for the region and property at issue, including land use plans contemplating and allowing shoreline structures in excess of 35 feet; the level of investment of public funds in the region and property at issue, with the expectation of the development of shoreline structures in excess of 35 feet; public benefits and amenities associated with the development of shoreline structures in excess of 35 feet; Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 4 of 26 Page 56 Comment 16. Guidelines adopted by the Department of Ecology in 2004 require the shoreline master program to protect public views as well as residential views WAC 173-26-221(4) (d). Source(s) Handmacher Response and the economic viability of shoreline structures in excess of 35 feet, as it relates to achieving governmental objectives for the region and property at issue, providing return for the public investment, and developing public benefits and amenities. Please also see the response to comment #22. The City of Tacoma has incorporated public access and protection of public views into the Shoreline Master Program and the Thea Foss Waterway Design and Development Plan. Entire sections of the Foss Plan are devoted to addressing circulation and public access. Please see pages 11-18, and 36-46. In addition, the Plan discusses view considerations and sets forth specific policies and guidelines to be followed. Please see the Foss Plan’s Development PolicyShoreline Use #1 g (page 19) to maximize views while protecting those of surrounding uses, the Urban Design Development Policy #8, page 2, which protects public views from downtown and building orientation guidelines found on page 53. Also the City’s shoreline regulations require that all proposed development shall be designed to maximize the public view and public access to and along the shoreline. In addition there are public access requirements specifically for the S-8 shoreline district, the most notable being the continuous, unobstructed esplanade. The City is currently updating its Shoreline Master Program according to the 2004 Department of Ecology guidelines. This update is required to be completed for the Master Program by 2011; however, prior to the completion of the update, proposed limited amendments to the Master Program must be in accord with the appropriate 2004 WAC guidelines. The WAC 173-26-221(4) (d).defines public access as the ability of the general public to reach, touch and enjoy the water’s edge, to travel on the waters of the state and to view the water from adjacent locations. Public access is one of the primary objectives of the Foss Plan and its implementing regulations. The Foss Plan is based on five goals; the first of which is to “create a public access system with a continuous esplanade along the shoreline”. This goal ensures that the public will always have direct access to “reach, touch and enjoy the water’s edge”. The third goal speaks to managing the shoreline to “optimize public access” while the fourth goal is to “provide opportunities for public access and recreation”. Finally, the fifth goal is to enhance the waterway to support marine and boating activities. The Plan is replete with policies, objectives and intent statements to carry out these public access related goals. The Thea Foss Waterway is intended to be a highly accessible waterfront. The proposed amendment furthers these goals by increasing the width of the designated view/access corridors which are the primary means by which a Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 5 of 26 Page 57 Comment Source(s) Response pedestrian can access the water’s edge and the esplanade. Further, the enlarged view/access corridors are required to be designed and developed to facilitate additional public access by the proposed amendment. The enlarged corridors also expand the public’s ability to view the Foss consistent with the WAC guideline. The Commission has directed staff to prepare a revised proposal which will further increase the width of the corridors above the 50 ft elevation by 16 feet. 17. The Haub properties (Columbia Bank Center and their north lot at 12th and A Street) would lose well over 50% of their views of Commencement Bay. Barline, Casey 18. Tacoma has a strong connection to its working waterfront but increased density and the loss of views will jeopardize this connection. Beery, Burkey, Gross 19. These towers will substantially impact the views from the Russell building. The towers will totally block all the views from the lower three floors of the Russell Building and substantially impact the views from the upper floors. There are no significant defenders of the general public’s right to enjoy the waterfront views and the view of The Mountain, even when there is a significant civic heritage and ancient Native American history involved. Davenport, Roberts, Casey, Rowley 20. Larsen The proposed amendment does not alter the public access goals or requirements of the Foss Plan or its implementing regulations except to increase the public access by enlarging the view/access corridors. It is intended that the proposed amendment will be used in conjunction with the extensive existing public access requirements. It is recognized that some view impacts will occur both to residential views and public views with the proposed amendment; however, other viewing opportunities will be enhanced especially for the pedestrian. The view analysis considered the view impacts from Fireman’s Park at two locations to address the public view impacts. Staff has not conducted a view impact analysis at this specific location to determine the exact degree of impact; however, the property is included in the 3D model. Once the revised alternative as requested by the Commission is completed, staff can calculate the view impact from this location. The proposed amendment will serve to strengthen the pedestrian access on the waterfront by increasing view corridors by 25% and by providing increased opportunities for walking along the waterfront through the development of a public esplanade. In addition, further access will be made with the requirement that 50% of the podium roofs be used for recreational space by the building tenants and/or public. The revised proposal as requested by the Planning Commission will eliminate the option to build a tower and limit the maximum height of the Municipal Dock site to 90 feet, lessening the impacts on the Russell Building. Once the revised alternative is completed, staff can review the view impacts at this location. The Shoreline Management Act (SMA), specifically RCW 90.58.020 and 90.58.320, does provide protection of the views of shorelines of the state for the public and from adjoining residential property. The Department of Ecology reviews local Shoreline Master Programs (SMP) and proposed amendments for consistency with the policies of the SMA. The City of Tacoma’s SMP implements the SMA and has identified primary and secondary view/access Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 6 of 26 Page 58 Comment 21. Source(s) The New Tacoma Neighborhood Council is now in favor of allowing the 180 foot height zoning change providing that view corridors are provided similar to what was shown in the computer animation. RCW 90.58.320 expressly allows a structure in excess of thirty-five feet that blocks a substantial number of residential views when two conditions are met: (1) the master program does not prohibit structures over 35 feet; and (2) when overriding considerations of the public interest will be served. Campbell 23. City should analyze the view impacts to the larger downtown area, identifying buildings with view impacts and the uses of these buildings, particularly those buildings with residential units that were developed or occupied since 2004. Vanzwalenburg, Casey 24. Are the proposed view impacts consistent with the Waterway Plan’s Development Policy-Shoreline Use #1 g (page 19) to maximize views while protecting those of surrounding uses? Vanzwalenburg, Gross, Casey 22. Response corridors and contains policies for the protection of views of the waterfront from adjoining properties and the downtown. The Shoreline Hearings Board has also provided strong support for the protection of views in numerous challenges. Please also see the response to comments #14 and #16. The proposal also provides additional protections of the view of Mt. Rainier from Fireman’s Park. Comment noted. Lynn, Cooke The “overriding considerations of the public interests” test in RCW 90.58.320 requires a decision maker to first identify the general public interest of the community in shoreline structures greater than 35 feet in height under the specific facts and circumstances of the community and property at issue. Thereafter, the decision maker must balance the identified public interest against the private interests of residents in retaining a view of the shoreline unobstructed by structures over 35 feet in height to determine whether the general public interest of the community overrides by any margin, however slight, the competing private interests. The City created a 3D model of the surrounding area including all property within 4,000 feet of the proposed amendment area in order to conduct its viewshed analysis. The interactive computer model allows one to “see” the view impacts of the proposed amendment at any location within the study area at street level and at any elevation of an existing building. Although the view impact analysis was refined to analyze in greater detail the impacts from three vantage points, (the rooftop of the Perkins Building which is the nearest residential building impacted by the proposed amendment and two locations in Fireman’s Park to address impacts to public views) the viewshed model allowed a visual depiction of the impacts of different building and height scenarios from any location in the downtown area within the 4,000 foot radius. It is important to note that this policy contains two parts. The first part concerns maximizing views of new development from the Thea Foss Waterway. New development along the Foss Waterway should be designed to maximize the view opportunities through design, orientation, scale, and bulk. The policy also recognizes the implicit trade-offs involved, that view impacts are not always negative and new development does not only amount to a subtraction of views, but rather, as is the case with the proposed alternative development option, will create additional views from the Waterway. Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 7 of 26 Page 59 Comment Source(s) Response The second part of the policy concerns the protection of other adjacent views. The City feels that the view analysis, together with the accompanying computer modeling, does give ample information to analyze and minimize view impacts. The important views to be protected are those near shore, mid shore, and far shore views as seen from the view/access corridors identified in the Foss Plan. These view/access corridors will be widened as part of the proposed development. The other important view to protect is that of Mt. Rainier as seen from Fireman’s Park. The near shore, mid shore, and far shore views have been equally weighted in importance. The original proposal called for all towers to be 180 feet in height. During the Planning Commission’s review, changes were made to this proposal. The maximum height of 180 feet can only be achieved if certain conditions are met. Projects are also required to maintain an average of 100 feet between the towers and the towers are restricted in width. As part of the alternative development option, projects are also required to provide enlarged view/access corridors. The proposal also requires that all rooftop mechanical and other appurtenances must fall within the maximum height limit for the tower, which effectively lowers the usable building height by at least 10 feet. No variance to this requirement is allowed. The maximum height of the podium portion is set at 50 feet although a 10 foot allowance is provided for mechanical equipment and amenities associated with the use of the podium rooftop for recreation activities by the tenants and/or public. Such amenities may include railings, seating and planters. The proposal also provides that for projects incorporating multiple towers, only one of the towers can be 180 ft. tall (and this should be the southernmost tower). Each additional tower shall be progressively shorter by at least 20 feet. 25. Are important public views of the waterway from downtown protected as required by the Waterway Plan (Urban Design Development Policy #8, page 23)? Vanzwalenburg, Barline, Gross, Casey The Commission has requested a revised proposal which will reduce the floorplates of the towers above 100 feet and limit the building height on the Municipal Dock site to 90 feet. After the revised alternative is completed, the view impacts will be re-evaluated. The Foss Plan does not identify the locations of the important downtown public views of the Waterway. The Foss Waterway can be viewed from a variety of public spaces including Fireman’s Park, Pugnetti Park (21st and Pacific), the Chihuly Bridge and public rights-of-way. For the purposes of the viewshed analysis, two locations were chosen in Fireman’s’ Park, the closest downtown public space to the area affected by the proposed amendment. The Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 8 of 26 Page 60 Comment Source(s) 26. How much view impact is too much? Vanzwalenburg 27. Foss Harbor’s goals are to preserve and enhance view and access corridors via slender building massing, enhance pedestrian connections and open space, provide visual interest with a variety of scales, expand the linear nature of the esplanade with new green space and integrated pedestrian areas, reinforce both visual and physical connections to the waterfront, orient the buildings to take advantage of the views and light, develop a transit-oriented program, enhance the Tacoma waterfront skyline by creating a gateway at the north end of the waterway, and activate the streetscape and provide a safe neighborhood. The towers to be placed on the podium should be offset from the podium along the at-grade view corridor. This prevents a straight vertical plane of 180’ along the at-grade view corridor. The at-grade view corridor should remain at a minimum of 100’ in width. The floor plate of the tower above 100’ (from grade) should be reduced by 20%. This would provide for a Johnson 28. 29. Response scope of the Foss Plan does not extend into the downtown area. The Downtown Plan and zoning code do not provide any requirements or protections for views of the waterway from any downtown location. Requiring such protection would be an amendment to the Downtown Plan which is outside the jurisdiction of the shoreline and the scope of the proposed amendment. This is a matter of balancing short-term versus long-term benefit. In the longterm, new development can become part of the view and a defining characteristic of both urban form and image of the city – the city’s identity. In this sense, view impact is not necessarily negative and often the protection of current views can be short sighted and inhibit long-term benefits. The assumption behind this question is that views are the primary way residents are connected to the waterfront which is not the case. Pedestrian connections exist and will be strengthened through the development of the public esplanade. Many buildings whose views may be impacted are outside the shoreline district and are within the Downtown Commercial Core Zoning District which allows buildings up to 400 feet in height. New buildings built within the adjacent downtown area consistent with the maximum height allowed or even at lesser heights could impact views of the waterway from existing buildings. Comment noted. Meyer, Jacobs The Planning Commission concurred with this recommendation at their September 5th meeting and directed staff to prepare a revised proposal incorporating this change. Meyer The Planning Commission concurred with this recommendation at their September 5th meeting and directed staff to prepare a revised proposal Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 9 of 26 Page 61 Comment 30. narrowing of the tower above the bluff line and enhance views. Remove the Municipal Dock site from consideration of any height above 100 ft. Planning over many years has envisioned that parcel as public space to be used for a water transportation hub, potential farmer’s market, tour boat embarkation pier or similar uses. Source(s) Response incorporating this change. Jacobs 31. The allowable height should step down to a maximum of 90’ on the Municipal Dock site. Meyer 32. The 180 foot tower on the west side of the Thea Foss Waterway would be inconsistent with the scale of the neighborhood and would also be taller than nearly every building in Tacoma. Rowley 33. It is unclear how this proposal meets the redevelopment concept or the urban design development policy for the Municipal Dock site. Specifically, page 29 of the Waterway Plan and Design Development Policy #4 on page 23. Vanzwalenburg, Gross The Municipal Dock site is owned by the City and according to the City Charter cannot be sold. The site can be leased however. The proposed amendment does not preclude any of the suggested uses from developing on the property. However, the Planning Commission at their September 5th meeting directed staff to prepare a revised proposal which would limit the height on the Municipal Dock site to 90 feet. The Planning Commission concurred with this recommendation at their September 5th meeting and directed staff to prepare a revised proposal incorporating this change. While the plan for the west side of the Thea Foss Waterway includes policies relating to consistency of character, it also does not preclude heights greater than the existing warehouses. In fact, The “Redevelopment Concept” for the Warehouse District of the Foss Waterway, where the proposal is located, states that “Minimum height limits for the district are established at the same height as the warehouse buildings. Greater heights may be allowed to achieve more innovative building profiles and greater use of open space.” The Municipal Dock site has specific policies attached that distinguish it from the other proposed sites. The Redevelopment Concept states an intent that “the main warehouse structures be preserved or be replaced by similar structures, continue with current uses or be rehabilitated with new adaptive uses (pg. 29).” Furthermore, “Any redevelopment of the Municipal Dock building should not preclude the opportunity for its use as a passenger ferry terminal as identified in the study.” Enlarging the building envelopes does not necessarily preclude a project from meeting these criteria and may provide more flexibility to balance community goals, adequate infrastructure, and economic feasibility. Likewise, the maximum height of 50’ for the podium as a part of the alternative development option is consistent with the height of the historic warehouse structures. It is important to note that the policies for the Historic Warehouse District and the Municipal Dock Site anticipated many of these issues: “Residential infill development will occur between the existing warehouses. Minimum height limits for the district are established at the same height as the warehouse buildings. Greater heights may be allowed to achieve more innovative building profiles and greater use of open space. Typical uses in the district will be residential, retail commercial, office, cultural facilities, and marina village Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 10 of 26 Page 62 Comment Source(s) Response (29).” For this area, the minimum height is 50’ with the use of the existing regulations and the Plan clearly anticipates greater height allowances. 34. Is the cumulative impact of allowing build out under this proposal consistent with the Waterway Plan and policies of RCW 90.58.020 given the development that has already occurred on the Foss? Vanzwalenburg 35. Has the development along the Foss Waterway met the mixed-use goals and policies of Tacoma’s shoreline master program or is the development becoming too weighted toward one type of use? Vanzwalenburg The FWDA also expressed concern about the Municipal Dock site and requested a maximum height limit of 90 feet for this site which would lower the existing allowed height by 10 feet. The Commission directed staff to develop a revised proposal incorporating the 90 foot height limit and eliminating the alternative development option as a choice for this site. The cumulative build out under this proposal remains consistent with the Waterway Plan and the 1995 DEIS prepared for the Foss Waterway Development Alternatives Plan. The DEIS evaluated buildings up to 180 feet in height under the High Intensity Alternative. In addition, an addendum was recently prepared that provides additional environmental information describing potential visual impacts based on the results from an updated viewshed analysis. The Commission has requested a revised proposal which eliminates the alternative development option on the Municipal Dock site and restricts the height on this site to 90 feet. The revised proposal also reduces the maximum size of tower floorplates above 100 feet to 12,000 sq ft. The revised proposal also requires a setback of the towers along the view/ access corridors and a reduction in the height of the podium for 50% of the edge adjacent to the view/access corridors. All of these revisions will reduce the maximum build out for projects using the alternative development option and for future development of the Municipal Dock site. The Shoreline Plan Concept of the City of Tacoma Shoreline Master Program for the S-8 District states that: “The greatest reuse and redevelopment potential of Thea Foss Waterway is for mixed use development, including cultural facilities, residential, marinas, water-oriented commercial, water-oriented public park and public facilities development, and waterborne transportation (pg 56).” Although a quantitative analysis has not been performed, a cursory inventory of uses indicates that cultural facilities, residential, marina, and water-oriented parks are all becoming established on the Foss Waterway. Currently, the FWDA is in the design stage for a new water-oriented recreation park site on the South end of the Foss Waterway. The City is also engaged in a pilot ferry program that will transport pedestrian passengers from Des Moines to the Municipal Dock site for the 2008 Tall Ship festival. While all the mixed-use goals of the Foss plan have not been met, largely due to market constraints and limitations, the Foss has made substantial progress towards this vision. Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 11 of 26 Page 63 Comment Source(s) 36. Is the City or the Foss Waterway Development Authority assessing the percentages of uses that are occurring on the development sites to ensure the cumulative effect remains consistent with the Waterway Plan and the Shoreline Management Act? Vanzwalenburg 37. How has the public interest in shorelines of the state, as set forth in RCW 90.58.020, been promoted or enhanced by this proposal? Vanzwalenburg 38. How is this proposal consistent with the Shoreline Guidelines WAC 90.58.020 and WAC 173-26-221 (4) (d)? Vanzwalenburg Response Though the City has not assessed the percentage of uses that are occurring on the Foss Waterway, the City’s control of 12 development sites has afforded a unique opportunity to implement the vision for the Foss that is outlined in the Shoreline Master Program and the Thea Foss Waterway Design and Development Plan, ensuring consistency with these policies and the SMA. Further, the City does not believe it necessary or required to assess a percentage of uses—neither is outlined in the Foss Plan or the Shoreline Management Act. The waterway is currently developed with a wide mix of uses and will continue to be as development occurs. The west side of the Thea Foss Waterway is located within a designated Regional Growth Center, an area that is expected to accommodate the highest intensity development in the City of Tacoma, and is designated as an “Urban Environment” in the City’s Shoreline Master Program, which assumes that the highest intensity residential, commercial, and industrial uses. This proposal clearly fulfills the vision of these local and regional designations by providing a high-intensity mixed-use development that maximizes the use of the shoreline while enhancing public access and creating additional viewing opportunities. The highest preference for Shorelines of the State, as set forth in RCW 90.58.020 is for uses that protect the statewide interest over the local interest. In this case, the development of the Thea Foss into higher density mixed-uses, upholds the state interest in growth management and the goals of the GMA as set forth in RCW 36.70A.020, as well as the goals and policies of the Vision 2020 and forthcoming Vision 2040 regional planning documents. Likewise, this proposal supports the development of public access via the esplanade; is directly connected to the largest marina on the waterway and this use clearly influences the design concept and economic viability of the entire project; the proposal will create improved overall design quality, as well as contribute to a safer, expanded environment for public use of the waterfront. In response to WAC 90.58.020, please see the response to comment #37. WAC 173-26-221 (a) Applicability, states that “Public access includes the ability of the general public to reach, touch, and enjoy the water’s edge, to travel on the waters of the state, and to view the water and the shoreline from adjacent locations.” Section (4) (d) identifies the standards that local shoreline master programs must follow in implementing public access on shorelines of the state. These standards pertain to the shoreline master program as a whole. The City of Tacoma’s Shoreline Master Program is consistent with the Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 12 of 26 Page 64 Comment 39. 40. 41. 42. There is no single policy in the comprehensive plan that prohibits buildings of 180 feet along the waterfront. Instead, there are policies that speak how best to accommodate growth while preserving open spaces and other natural qualities that make this area an enjoyable place to live. The greater good is not directed at the Tacoma community but, rather, the primary benefit will be to those lucky enough to afford to buy or sell million dollar condos. The Foss Waterway is defined as part of the City’s urban center in the Comprehensive Plan as well as in the four-county effort that led to the Vision 2020 Plan which encourages residential growth and employment in centers. The City identified the Thea Foss Waterway as being within the City’s downtown mixed-use center – the center among all centers – and the focal point for the City’s development and growth. This encourages high-rise apartments, clustered housing, and intense urban development that would foster transit, pedestrian activity, and result in a livable urban community. The Foss Waterway is a part of the downtown mixed use center and fostering high density is appropriate to meet Growth Management Act compliance. Source(s) Response standards of WAC 173-26-221 (4) (d) and includes numerous policies and requirements that seek to maximize public access to the shoreline to the greatest extent feasible. The proposed building envelopes uphold the policies of the SMP by providing greater protection of views than the current building envelopes provide while also increasing the opportunities for the public to “reach, touch, and enjoy the water’s edge.” Furthermore, there will be no net loss of ecological function. The City of Tacoma has taken numerous measures to minimize the view impacts of this proposal; and public access will be provided via the esplanade and roof access on the podium. Also see comment #16. Policies in the Comprehensive Plan and the shoreline regulations in the Tacoma Municipal Code for the Thea Foss Waterway promote a variety of heights. Cooke Davenport, Eakins, Barline, Fayth Lynn Bjornson, Lynn RCW 90.58.320 provides guidance where issues of building height are concerned, by requiring a test of the “overriding considerations of the public interest.” The redevelopment of the waterfront into an active, vibrant, safe, and publicly accessible place will benefit the entire Tacoma community and encourage the active enjoyment of the Waterway. Comment noted. The City of Tacoma Shoreline Master Program also characterizes the Foss Waterway as an “Urban Environment.” The Comprehensive Plan places a High Intensity designation on the affected area on the land use map. This designation assumes densities greater than 80 dwelling units per acre will be achieved and that buildings will be regional in scale. The downtown mixed use center is not only a local designation but is designated as a growth center in Vision 2020, the central Puget Sound region’s growth, transportation and economic development strategy. As such, the downtown center is expected to absorb a greater share of population and employment growth for the city, county and the four-county region. Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 13 of 26 Page 65 Comment 43. 44. When given only the “either-or” option of the existing 100-foot building box or the new 180-foot version, the taller but spaced buildings seems a logical choice. The existing 100-foot zoning is poorly conceived and not in the spirit of the Shoreline Management Act. The 1990 EIS weighed the impact of development of this scale, in this location. No new impacts are expected beyond those already considered by the EIS. Source(s) Cummings, Barline, Dzivak Simon/Johnson 45. The City did not take into account the tax credits when calculating the return on investment for the developer. Davenport, Handmacher 46. Tax exemption benefits and incentives do not rest with the developer, rather with the buyer of the condominium unit. Simon/Johnson 47. Taxpayer dollars should not be spent catering to the whims of a private developer in the matter of impact studies and sought after changes in height restrictions. Roberts, Casey, Cummings(2) Response The existing 100 foot zoning has been reviewed and approved by the Department of Ecology for consistency with the Shoreline Management Act. The Thea Foss Waterway has a variety of height limits on the west side depending on the location on the waterway and range from 65 to 130 feet with provisions for an additional 25 feet for architectural features. The 1995 EIS considered a High Intensity alternative that assumed 180’ tall buildings for the entire area of Zone 1. The alternative development option affects only 3 sites and allows a tower and podium building form that is significantly different than the development scenario studied in the EIS which assumed much wider buildings. Also, the proposed amendment limits the number of buildings that can be 180’ to one tower per site. The Commission has requested a revised proposal to limit the application of the alternative development option to two sites which will further reduce the impacts. The economic analysis was conducted looking at maximum zoning envelopes under different maximum heights. It is recognized that the multifamily tax incentive could provide some benefit if a proposed project includes apartments. The development scenario assumed for the purposes of the analysis was that the residential units would be condominiums. The developer does not receive financial benefit as the tax exemption benefits the buyer of the condo unit. However, the availability of the tax incentive could attract additional buyers of the units that would not otherwise be present and therefore the developer may indirectly benefit. The City’s Multifamily Tax Incentive which exempts property taxes for new multifamily housing in designated areas benefits the owner of the property. For condominiums, the buyer of each unit will receive the benefit. For an apartment development, the owner of the apartment building will receive the benefit which can be passed on to renters through lowered monthly rents. The developer benefits indirectly from the program by being provided with a marketing tool for “for sale” or rental properties. One of the primary duties of the Planning Commission is to consider amendments to the Comprehensive Plan or Regulatory Code. The Tacoma Municipal Code spells out the process by which private parties can request an amendment and the criteria by which the amendment will be reviewed. The proposed amendment was originally submitted by the applicants in 2004 and was considered with other application requests received that year. It is not unusual and, in fact, it is more common that the Commission as a part of its annual review considers applications that have been submitted by outside parties. For example, the Commission, as part of the 2007 Amendment cycle, Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 14 of 26 Page 66 Comment 48. 49. 50. 51. The developer has met full compliance with the Development Agreement through completing required improvements to the marina, in a timely fashion and exceeding the mandated investment of 1 million dollars. The goals and guidelines set forth in the Foss Plan depends on development and infrastructure – both public and private – to create and embody the vision of the Foss Waterway in the public interest as an asset and an amenity. From a pedestrian standpoint, this area has poor connectivity to downtown and what exists is limited and inconvenient. Source(s) Simon/Johnson Simon/Johnson The Foss Waterway Design and Development Plan recognizes that both public and private resources and development will be necessary for the revitalization of the waterfront. Lynn, Casey, Johnson Due to topography and the presence of the mainline railroad tracks, physical access is difficult to achieve. However there are multiple points to access the waterfront from the downtown area, including 4th Street, 11th Street, 15th Street, and the Bridge of Glass. The Foss plan calls for improving the connectivity over time as funding permits. All new parking within the S-8 Shoreline District is required to be structured, with only a few exceptions. Surface parking is only allowed as an interim use. For more details, please review TMC 13.10.110 (I). Dock Street is not available for on-street parking because it is narrow and cannot be expanded; therefore, any parking to attract retail shoppers will need to be off-street. An increase in the number of residents will result in more eyes on the street and make the area safer. Lynn, Johnson, Casey 53. Tacoma has an open inviting waterfront (unlike Seattle). Please keep it that way and not make it a crowded, condo-ridden and hidden view of the waterfront. Shaw, Glick, Zacek, Beery, Fayth 54. The Esplanade is too narrow to encourage public use through this section of the Foss and the condo development will discourage a sense of public ownership of the waterfront. Beery, Davenport, Gross 52. Response is considering four requests by private applicants. Staff from CED conducts the necessary analysis of each of the application requests which may involve specialized studies conducted by others. Comment noted. Bjornson It is intended that the Waterway be redeveloped with a variety of activities and uses that will attract users to waterfront in an attractive, comfortable and safe setting. The Thea Foss plan calls for a mix of uses and activities. Twelve sites on the west side are identified that are intended to redevelop. The Foss Waterway Development Authority was created to market these sites for private redevelopment projects. The Plan also calls for public spaces and parks and these sites are also identified. The primary park will be the esplanade which will run the entire length of the water’s edge. Policies for the Foss Waterway seek to create a mixed-use waterfront that will invite greater shoreline activity and enjoyment for the public. Residential development is viewed as a component of this mixed-use waterfront that will help stimulate other forms of commercial, marine, and public facilities. The sites, in this part of the Waterway, are narrower that those found in the south and therefore the esplanade is narrower not only for the 3 affected properties but for all properties in Zone 1. The required minimum width of the esplanade Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 15 of 26 Page 67 Comment Source(s) 55. It prohibits an open plaza. Lower the maximum podium height to 40 feet or less. Also, increase the proposed setback from 10 feet to 20 feet, to provide relief from the canyon effect. Jacobs 56. Forget events like the Tall Ships as this type of development would hamper large “public” gatherings. Davenport 57. The Esplanade will be a compilation of public and private development requiring an active lease on site 10. In this way the goal of having the Esplanade run the length of the Foss Waterway’s west side will be fully realized. We need nice open areas such as that along the Schuster Parkway that can be enjoyed by many. The large individual buildings also create a microclimate on the shadow side where the public is not enticed to go. The proposed towers will significantly increase shading of the Thea Foss Waterway and proposed esplanade. Simon/Johnson 58. 59. Caraher Handmacher, Gross Response on the west side of the Waterway is 20 feet according to the City’s shoreline code. The proposed amendment does not prohibit an open plaza. In fact it requires that the view/access corridor be expanded to 100 feet in width which will create an open area of at least 12,000 sq ft that can be developed as a plaza. The minimum setback is 10 feet and could be greater if the project designer wants to incorporate a plaza. Also, the proposal has been modified at the request of the Commission so that at least 50% of the podium must be reduced from 50’ to 35’along the view/access corridor façade. There is nothing in the proposed amendment that would prevent future public events from occurring on the Waterway. As is the case in any area, public gatherings occur on public spaces and on private property only with consent of the owner. Of the three affected sites, one is publicly-owned and is intended to remain in public ownership. Of the other 2 sites, one is privately owned and the other site is planned to be transferred from public ownership to private ownership. The public areas of the waterway including parks, esplanade and the view/access corridors will all be available for events and festivals. This section of the esplanade is in a state of disrepair. The City has received a grant for the partial rebuilding of the esplanade but private investment will be required to ensure permanent public improvements. Upland property owners must pay an assessment for routine maintenance and security in public spaces and the remainder of the esplanade will be funded by the developers. The esplanade will provide for public access and enjoyment, as well as views of the immediate waterfront. Due to the site constraints of this area, the esplanade will only be 20 feet wide through the Warehouse District, however, large open areas are available at Thea’s Park, located just north of the affected area. The shading analyzing conducted in the EIS shows that shading of the esplanade will occur with buildings that are greater than 12.5 feet in height. The draft EIS notes that when the sun reaches 15 degrees altitude (which occurs at different times depending on the season) existing structures and the adjacent hillside will begin to cast shadows to the water’s edge. The view/access corridors are intended to limit the shading impacts. The EIS analysis of the High Intensity alternative considered 180 ft tall building that occupied 69% of the shoreline frontage of the Zone 1 area. The proposed alternative development option breaks up the shadows not only by widening the view/access corridors but by the required spacing between the tower portions of the building where the maximum height is set at 50 feet. Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 16 of 26 Page 68 Comment Source(s) 60. A 50 foot high podium height creates a canyon wall effect along Dock Street and the view and access corridors. Barline, Jacobs 61. Pertaining to the at-grade view corridors only – the 50’ maximum height of the podium should be reduced to 35’ or less for a minimum of 50% of the view corridor façade. Is there a minimum square footage needed for a viable project? Meyer 62. 63. Increased height is needed for success of Foss Waterway redevelopment. There are a limited number of development sites which need to support sufficient population and activity to support businesses and to be economically viable. Vanzwalenburg Bjornson Response In the revision to the draft proposal requested by the Commission, the lineal feet of shoreline frontage combined for sites 10 and 11 including the view/access corridors is approximately 1,023 feet of which 240 feet would be view/access corridors and another 336 would be limited to the maximum height of 50 feet thus significantly reducing the shading impacts identified in the 1995 EIS. The purpose of the required view/access corridors is to provide spacing between buildings. As more buildings are constructed on the waterway, Dock Street will be lined with buildings of varying heights and widths, most of which will be greater than 50 feet. However, on September 5th, the Planning Commission directed staff to revise the proposal based upon a recommendation by the Foss Waterway Development Authority to reduce the height of the podium to 35’ for a minimum of 50% along the view/access corridor façade. The Planning Commission, on September 5t h, directed staff to develop a revised proposal to incorporate this recommendation. There is a minimum square footage needed for a viable project but that varies depending on the type of use, the economic market, and timing. The proposal is for shoreline regulatory changes that would allow a development to occur based on the market conditions at that time. Please see comment #64. All developments are subject to shoreline permit approval and will go through a separate review as part of the shoreline substantial development permit process. The Height and Economic Analysis conducted by BST Associates found that increased height was needed to attract private investment. Without investment, increased density and activity will not occur. The alternative development option, as proposed for public comment, provides for an increase in the maximum square footage that can be built which could result in more residential units and businesses. The Thea Foss Plan supports the redevelopment of the waterfront at a sufficient intensity to achieve the revitalization and to recoup public investment in the acquisition, clean-up and improvement of public spaces along the Waterway. The Commission has requested a revise proposal which restricts the height on the Municipal Dock site, modifies the dimensions of the podium and reduces the floorplates of the towers which will reduce the maximum build out of the affected development Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 17 of 26 Page 69 Comment Source(s) Response 64. The height amendment is not necessary for economic feasibility. Handmacher, Furlong, Casey 65. The proposed 180 foot building height would negatively impact property values. Wheeler, Sarner 66. Well-designed higher-density development, properly integrated into an existing community, can become a significant community asset that adds to the quality of life and property values for existing residents while addressing the needs of a growing and changing population. While a limited number of units may lose a view corridor resulting from taller buildings; their overall value should not be negatively impacted as the area’s property values will increase with the Thea Foss Waterway and Downtown Tacoma redevelopment. The City is converting publicly owned land to the exclusive use of private developers. The 20 foot public sidewalk, dwarfed by skyscrapers, is a poor trade-off for a long term lease of public lands. Gardner Johnson sites. The economic analysis conducted as part of this project revealed that development at a height of less than 100 feet was not economically viable and that additional height was necessary to attract investment. According to the Pierce County Assessor’s office, the primary determinant of property values is the selling price of properties occurring in the area. The Assessor’s office indicated that to support a claim of a value loss, an appraisal of the property would need to show that the property would sell for less than the purchase price. Comment noted. Gardner Johnson Please see the response to comment #65. Davenport, Fayth The Municipal Dock site will remain in public ownership but can be leased for 50 years for development. The other 2 sites are intended to be privately owned and developed. The narrow width of the development sites in this area of the waterway limits the ability to have both a wider esplanade and feasible private development. In addition to the esplanade, the view/access corridors are to be developed with public amenities and provide for the public’s enjoyment of the water. Comment noted. 67. 68. 69. 100 ft. is bad enough. Allowing an additional 80 ft. does not serve the public. It only serves the developer. Don’t change the zoning for a developer’s profitability. 70. The Foss Waterway Development Authority advocates for private developers, shirking its responsibility to protect publicly owned property and provide a long term vision for this precious inlet. Burkey, Johnson (2), Dzivak, Cummings, Lambert, Jacobs, Barline, Fayth Cummings The Development Authority is an independent legal entity created to assist and implement redevelopment consistent with the adopted Thea Foss Waterway Design and Development Plan. To accomplish their mandate, they have brought investors from inside and outside the community who have invested over $300 million on sites designated in the adopted Plan as mixed use development sites to protect and gain a return on City investment. In addition, Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 18 of 26 Page 70 Comment 71. 72. 73. The City identified the area as the single greatest opportunity for Tacoma’s economic revival. They invested $7,000,000 and bought 27 acres of contaminated properties and began the process of cleaning them up. The City invested $90,000,000 to clean up the waterway. They created and funded the FWDA to oversee the marketing and development of the area. They then invested another $45,000,000 in infrastructure (marinas and the esplanade) with the aim of creating a center piece of a dense urban area. The public can recoup its investment by being able to SEE the working waterfront framed by the foothills of the Cascade and Olympic mountains in the background and the muddy rush of the Puyallup river as it mixes with the Bay in the foreground. By being able to EXPERIENCE it, the public will recoup OUR investment. This is a “spot zoning” change for one developer. A more comprehensive look at the complete Thea zoning should be undertaken. Source(s) Response they have acquired 3.69 additional acres on the Foss for park purposes to ensure and protect public access to the waterway and approximately 1,500 lineal feet of new transient moorage is being installed at the mouth of the Foss for the public’s use. The Authority has obtained approximately $4 million in public and private dollars to restore the publicly-owned Balfour Dock Building for the Maritime Center. Long term planning and vision responsibility for the Foss Waterway still lies with the City and the Tacoma City Council and not with the Development Authority. There has been considerable public investment in the Thea Foss Waterway in an attempt to transform the formerly blighted industrial waterfront into a showplace for the city. Public investment is expected to continue but the fruition of the Foss potential is also dependent on private investment. Lynn Burkey Davenport, Jacobs, Barline, Gross The City Council, when it made the decision to purchase properties along the Thea Foss Waterway and to take the lead in environmental clean-up, did so with the intent that the majority of the properties would be resold for development purposes. Twelve development sites have been identified on the western shore. The proposed amendment affects two of these sites and a third parcel owned by the City, the former Municipal Dock Building site. This site cannot be sold due to a charter provision. It can however be redeveloped by either the City or leased to a private party for a period of 50 years and redeveloped by the private party. The public’s opportunity to see and experience the waterfront is provided at designated public spaces and parks, including the esplanade which is a linear park that will eventually run the entire perimeter of the waterfront, and other public parks interspersed among the development sites. Public access to the waterfront is also provided at 14 designated view/access corridors. These corridors are proposed to be expanded by 25% in the proposed amendment. The City Attorney has advised the Commission on the four findings that are necessary to constitute a spot zone according to Washington State case law. All four must be present. They are: 1) The zoning decision must single out an area within a larger area or district to be specially zoned for a “use classification,” 2) the use classification at issue must be different from, and be Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 19 of 26 Page 71 Comment 74. 75. 76. 77. 78. 79. Source(s) Recommend that there are advantages to addressing the Thea Foss Waterway in a more comprehensive manner rather than proceeding with the height amendment independent of the comprehensive update, including: • Promoting physical and visual connectivity to downtown • Assessing the cumulative impact of current development • Assessing the economic factors driving development • Addressing view impacts comprehensively This proposed amendment began in 2004, and is still in progress. As such, there is a need to complete this application in a timely fashion – separate from the aspects completing the Shoreline Comprehensive Review. The 180-foot height is the same as what was proposed a few years ago and is still a great idea. Van Zwalenburg, Handmacher, Jacobs, Barline Gross Proposed height increase is consistent with what other cities are doing; e.g., Seattle and Bellingham. Retaining businesses important to our community, like the Russell Investment Group, is far more vital to the City than speculative new development. Bjornson No traffic study has been conducted by the city regarding this development. The existing right-of-way is substandard for vehicles and pedestrians. Davenport, Casey, Beery Response inconsistent with, that of surrounding properties in the larger area or district, 3) the use classification at issue must not be in general accordance with the applicable comprehensive plan, 4) the use classification must bear no substantial relationship to the general welfare of the affected community. The City is currently performing a comprehensive update of the Shoreline Master Program, according to the new 2004 guidelines from the Department of Ecology. However, this amendment was originally submitted in 2004, prior to the initiation of the comprehensive update. The issue of height in the proposed amendment will not be changed during the update process. Furthermore, while the update is in process, all limited amendments must be in accord with the 2004 WAC guidelines. Simon/Johnson Comment noted. Toth Although the maximum height of 180 feet has been retained in the draft proposal, there are significant differences from what was proposed in 2004 including limiting the number of towers that can reach 180 feet and stepping down the height of the towers where more than one tower is proposed on a development site. Comment noted. Staff and the Planning Commission also reviewed the allowable heights for waterfront areas in Portland and Vancouver, BC. Local businesses will not be displaced by this proposal. A more vibrant and diverse waterfront may in fact attract more businesses and a skilled labor force that wish to locate near the unique public amenities and lifestyle that the waterfront offers. The Planning Commission is not reviewing a development project but modifying the development regulations for a small area of the waterfront. Any future development project proposed for the waterway will need to address its traffic impacts and mitigate those impacts as may be required by the City. Depending on the project, a traffic study may be required and will be determined at the project development stage. Handmacher, Barline, Stebich, Davenport Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 20 of 26 Page 72 Comment Source(s) Response 80. Changing the height disregards the risk that many of the first homebuyers took in moving to downtown Tacoma and sill discourage others from taking the same risk. Bennett, Gross, Barline, Casey 81. This is a short term decision that only benefits a few. The public’s interest is not being served by the proposed amendment. Burkey, Barline, Fayth, Beery 82. These towers do not fit the criteria for “waterdependent uses” as defined in the Shoreline Management Act. Cummings (2), Barline 83. Residential is not a preferred use under the SMA and this proposal requires 51% of the building to be for residential use. Vanzwalenburg, Barline, Gross 84. We have enough condos. Gray 85. The demand for higher density homes – by renters and owners – is expected to increase in the future. For generations, married couples with children dominated our housing markets and led to an exodus to the suburbs but today those households make up less that 25 percent of American households, and they will be less than 20 percent by 2020. The developer bought this property knowing the existing height limit. They have designed a building consistent with the existing regulations and promised Gardner Johnson Downtown continues to be a desirable place to live. The north end of the waterway has experienced little investment and is not very inviting. Private investment that may occur because of the proposed amendment could bring new and enhanced public amenities which would be an attractant for more housing. The decision making process is guided by the long range comprehensive plans for the shoreline and Foss Waterway. The Shoreline Master Program and the Thea Foss Waterway Design and Development Plan provide long term vision and values for how the shoreline should be used. Please also see the responses to comments #15 and #22. In TMC 13.10.030, the classification of a water-dependent use is defined as “a use or a portion of a use which requires direct contact with the water and cannot exist at a non-water location due to the intrinsic nature of its operation”. The SMA also allows uses that are water-related and for water-enjoyment. The sites included in this proposal incorporate the largest marina on the waterway and upland locations are directly integrated with this water-dependent use. Any redevelopment will include upland facilities for the marina. Per the SMA, preferred shoreline uses are classified as water-dependent uses, public access, and natural functions. Residential uses are not considered waterdependent and are therefore not a “preferred use.” Staff is recommending that the requirement for 51% of the building to be in residential use in order to use the alternative development option be deleted from the proposed amendment. The requirement for residential use is not essential for the proposed height amendment. Future development projects may still include residential uses but they also will need to include water dependent, water related or water enjoyment uses in the project. The proposed amendment does not require condos to be built. Please also see the response to comment #83. Comment noted. Gardner Johnson Comment noted. Handmacher, Barline, Larsen, Roberts Foss Harbor LLC submitted their application to increase the height in 2004. The previous conceptual plans submitted to the FWDA were developed in 2000. The existing regulations remain in effect. There is no requirement for the 86. 87. Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 21 of 26 Page 73 Comment 88. 89. 90. the FWDA to build in accordance with the height limit. Now that they have some control over the sites they are saying that they can not build within the existing regulations. The proposal is inconsistent with the policies of the Comprehensive Plan, including policies of the Foss Plan that encourage maintaining the historic waterfront and maritime character and the policies of the Downtown Plan that talk about preserving views from downtown to the waterfront. It is important to residents, businesses and developers to maintain consistency over time in the policies and regulations. Continuing to change the policies and regulations reduces this consistency and improperly affects existing residents, businesses and developers who have made decisions based on the existing regulations. The FWDA Urban Design Review Committee (URDC) is now being charged with requiring view analysis studies not previously considered by the Committee. The Committee has limited authority and is advisory only. Source(s) Gross Gross, Casey Jacobs Response alternative development option to be used by project proponents. The FWDA through its agreements can require either option. The FWDA has expressed support for the proposed amendment, as a means to encourage redevelopment of this portion of the Waterway. The redevelopment concept for this area of the Foss calls for the preservation of remaining warehouse structures or replacement with similar structures. While the Foss Plan includes policies relating to consistency of character, it also does not preclude heights greater than the existing warehouses. In fact, the redevelopment concept states that “Minimum height limits for the district are established at the same height as the warehouse buildings. Greater heights may be allowed to achieve more innovative building profiles and greater use of open space.” See also response to comments #30, #32 and #33. The Downtown Plan and zoning code do not provide any requirements or protections for views of the waterway from any downtown location. Requiring such protection would be an amendment to the Downtown Plan which is outside the jurisdiction of the shoreline and the scope of the proposed amendment. See also response to comments #16, #23 and #25. While it is certainly desirable to provide predictability in plans and regulations, there is also a need to have a process to respond to changing conditions and circumstances. Amending the shoreline regulations requires following specific state and locally-adopted procedures, which include substantial opportunities for public involvement and comment. It is unrealistic to expect public policy to remain unchanged once adopted. If that were the case, the Foss Waterway would remain an area reserved for heavy industry and shipping. The FWDA receives its authority from the first operating agreement between the City and the FWDA. The FWDA has three primary components when working with project proponents: the Purchase and Sale Agreement, Development Agreement and Environmental Agreement. The Development Agreement requires the developer to go through four phases of design review. As part of the FWDA review process, the UDRC conducts a detailed review of projects for consistency with the goals, policies, and guidelines of the Foss Plan. The existing policies and guidelines include guidance that view impacts should be reviewed and minimized (see pages 52-53 of the Foss Plan). The recommendations of the UDRC are incorporated in the above-cited agreements and also given substantial weight in the City’s permitting process. The proposed amendment does not add any new responsibilities to the UDRC. The intent is to clarify that the UDRC is to consider view impacts using the Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 22 of 26 Page 74 Comment 91. The economic analysis is inaccurate. The report states that an internal rate of return (IRR) must be 20%. Lenders are willing to finance projects with an IRR of 17%. Source(s) Casey 92. The economic report lists the value of Site 10 at $38 per sq. ft., which is greater than the sales price of this site listed in the Option to Purchase agreement. Casey 93. The economic report includes the cost of developing the esplanade as a developer cost but the City is paying for the construction of the esplanade. The economic report includes development costs that are too high as compared to other condo projects being built. Casey The views from individual units in the Perkins Building have been ignored. The views from lower floors will be impacted to a greater extent than the view from the roof deck. Handmacher 94. 95. Casey Response guidance of the Foss Plan and to help ensure that the view analysis reviewed by the UDRC is the same as the view analysis reviewed by the City during the permit process. IRR is commonly used to evaluate the financial performance of development projects. The purpose of the economic study is not to provide a developer’s pro forma but is instead a guide to see if developers might be interested in these sites. The study presents an economic assessment of the feasibility of constructing several building sizes and building forms on the three parcels. The target equity of 20% is being used as an indicator of overall project feasibility. IRRs significantly below the target would likely not result in a project. A developer or lender could choose to proceed at IRRs below the 20% target. In response to this comment, and the comments below regarding the economic analysis, the Commission asked the consultant to respond to these issues. On June 20, 2007 the City’s consultant presented additional information to the Commission regarding the methodology used in the analysis. The economic analysis used the most recent appraisal as a basis for determining the land costs for all three parcels. Using the lower dollar amount suggested by Mr. Casey would result in a project cost difference of 0.5% to 0.74%. This change is too small to significantly affect the model results. The esplanade costs used in the model already accounted for the portion of the esplanade that is being funded from grant dollars. The model includes the cost to build the remaining portions of the esplanade as developer costs. The economic consultant contacted numerous developers and a contractor to develop a representative cost estimate of development costs. The cost of construction has risen sharply recently due to a sharp increase in material prices and a strong economy, which has decreased the number of bidders submitting on projects and increased margins to participate. The rooftop view was used in the viewshed analyses to represent a view that is shared by all residents of the Perkins Building. This viewpoint was also chosen in response to comments received from residents of the Perkins Building at the community meeting held on February 15, 2006. Views from individual units may vary greatly depending on where the unit is located in the building. The interactive 3D model allowed the Commission to pick any floor to see the view impacts from that location, which they did on several occasions when the 3D model was presented. Commission members also visited the Perkins Building and entered individual units. The viewshed analysis indicates that view impacts from other locations may be different than those that are depicted in Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 23 of 26 Page 75 Comment Source(s) 96. The screenprint images in the document and the 2D images (“the blue-red maps”) that look down on the area from above appear to be inconsistent, showing different levels of view blockage. The 2D maps understate the view impacts. Handmacher 97. The 2D maps are also misleading in that they include territorial views across the tideflats where little water is visible. The chart that compares the view impacts of the height alternatives demonstrates that by including these territorial views the actual view impacts are distorted. Handmacher 98. The proposed alternative development option will allow substantially more development than is possible under the existing regulations. Jacobs 99. The Russell Investment Group makes all business decisions, including office space needs and long-tern growth plans, on the basis of a number of factors and the best available information. Statements made by third parties regarding our intentions do not reflect the view of Russell. Walkey Response the screenprints. The methodology used for creating the 2D images is described on pages 4-6 of the SEPA Addendum. In order to provide a comprehensive view analysis for this project, staff utilized three primary tools, a 3D model (which was displayed in interactive presentations and in hardcopy screen prints), 2D maps demonstrating areas that would be visible and areas that would not be visible, and a chart providing calculations of relative view impact. The 3D model and 2D maps utilize different computer software but utilize the same observation points and analyze the same height options. Spatial Analyst, the program used to create the 2D maps, utilizes a terrain model to create a map of areas that are not visible from the various vantage points (similar to a cast shadow). The 2D maps do not reflect an overhead view; they reflect the view from the individual viewpoints. The two methods are consistent and demonstrate the same levels of impact. The methodology used to calculate view impacts is explained on page 6 of the SEPA Addendum and notes that the criterion used to determine if a view was present was based on the ability to see 50% or more of the area in the respective nearshore, midshore and farshore categories. Shoreline views include not only the water but the adjacent uplands. The Foss Waterway area is described as a nearshore view, Commencement Bay and the port area are the midshore views and the farshore views are the areas adjacent to Northeast Tacoma and Browns Point. The Commission asked that the proposal be modified to require building modulations and to decrease the height on the Municipal Dock site, which has further reduced the maximum build-out potential. With these changes, the difference in the maximum build-out between the existing regulations and the proposed regulations is less than 40,000 sq ft., a relatively small difference (approx. 3%) considering the maximum built-out under either scenario is around 1,400,000 sq. ft. Comment noted. Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 24 of 26 Page 76 Source Key: Oral Testimony from Public Hearing (April 18, 2007) Johnson, Ted – Simon Johnson, 1019 Pacific Ave, #1119, Tacoma, WA 98402 Lynn, Bill – Gordon, Thomas, Honeywell, P.O. Box 1157, Tacoma WA 98401 Malone, Diane – 1120 Cliff Ave., #404,Tacoma, WA 98402 Toth, Richard – 525 Broadway, Tacoma, WA 98402 Zacek, Sandra – Rancho de Manana, LLC, 401 Fawcett Ave. Suite 203, Tacoma, WA 98402 Beery, Kathi – 1120 Cliff Ave. #301, Tacoma, WA 98402 Handmacher, Jim – Morton McGoldrick, PO Box 1533, Tacoma, WA 98401 (representing the Perkins Building) Casey, Paul – 1101 A St. #503, Tacoma, WA 98402 Cummings, Pat – 1101 A St., #503, Tacoma, WA 98402 Jacobs, Frank – 1202 N. Tacoma Ave., Tacoma, WA 98403 Rieber, Gayle – Gayle Rieber Photography, 1121 A St., Tacoma, WA 98402 Davenport, Tom – 1101 A St. #804, Tacoma, WA 98402 Gross, Steve – 1101 A Street, Unit 803, Tacoma WA 98402 Caraher, Kathy – 1120 N. 27th St., Tacoma, WA 98403 Tinnin, Chris – Cliff Street Loft Purcell, Sondra – 204 Tacoma Ave. S., #24, Tacoma, WA 98402 Vincenzo, Joe – 1120 Cliff St., Tacoma, WA 98402 Written Testimony (received on or before April 27, 2007) Barline, John – 1301 A Street, Suite 900, Tacoma, WA 98402-4299 – letter, dated April 19, 2007 Beery, Kathi – e-mail, dated April 16, 2007 Beery, Kathi – letter, dated April 20, 2007 Bennett, Peter – 1101 A Street #807, Tacoma, WA 98402 – e-mail, dated April 27, 2007 Bjornson, Eric – 711 Court A, Suite 114, Tacoma WA 98402 – email, dated April 9, 2007 Burkey, Milissa – e-mail, dated April 14, 2007 Campbell, Marty, New Tacoma Neighborhood Council – letter, dated April 27, 2007 Casey, Paul J. – e-mail dated April 27, 2007 Cooke, John – 1201 Pacific Ave, Suite 2100, P.O. Box 1157, Tacoma , WA 98401-1157 – letter, dated April 27, 2007 Cohn, Jill – 711 S Lawrence St, Tacoma WA – e-mail, dated April 12, 2007 Cummings, Paula – 1101 A Street, Unit 801, Tacoma, WA 98402 – e-mail, dated April 17, 2007 Cummings (2), Pat – 1101 A Street, Unit 801, Tacoma, WA 98402 – e-mail, dated April 17, 2007 Davenport, Tom – 1101 A Street Suite 806, Tacoma, WA 98402-5007 – letter, dated April 22, 2007 Dzivak, Nalana – 1730 Point Woodworth Dr. N.E., Tacoma, WA 98422 – e-mail, dated April 13, 2007 Eakins, Shannon and Marc Dombrosky – e-mail, dated April 25, 2007. Fayth, Jon – 1113 A Street #207, Tacoma, WA 98402 – letter, received April 23, 2007 Furlong, Ralph – e-mail, dated April 12, 2007 Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 25 of 26 Page 77 Furlong, Sheila – e-mail, dated April 12, 2007 Glick, Sara – e-mail, dated April 16, 2007 Gardner Johnson – 119, 1st Ave S, Suite 410, Seattle, WA 98104 – letter dated April 26, 2007 Gray, Colleen – 3818 South 9th Street, Tacoma WA 98402 – e-mail, dated April 18, 2007 Gross, Steve – 1101 A Street, Unit 803, Tacoma WA 98402 – letter dated April 25, 2007 Handmacher, James – 820 “A” Street, Suite 600, P.O. Box 1533, Tacoma, WA 98401 – letter, dated April 13, 2007 Jacobs, Frank – 1202 No. Tacoma Avenue, Tacoma, WA 98403 – letter, dated April 18, 2007 Johnson (2), Opal – e-mail, dated April 16, 2007 Lambert, David – 2915 N. 10th, Tacoma, WA 98406 – e-mail, dated April 16, 2007 Larsen, Charles – 2111 7th St SE, Puyallup, WA 98372 – e-mail dated April 19, 2007 Lorenz, Joan and Frederick – e-mail, dated April 16, 2007 Meyer, Don – 535 E Dock St, Suite 204, Tacoma WA 98402 – letter, dated June 21, 2007. Roberts, Dave – 922 N Stadium Way, Tacoma, WA 98403 – e-mail, dated April 27, 2007 Rowley, Mark A. – 1191 2nd Ave, Seattle, WA 98101-2939 – letter, dated April 27, 2007 Sarner, Robin M.D. – 1120 Cliff Avenue, #401, Tacoma WA 98402, – e-mail, dated April 7, 2007 Sarner, Robin M.D. – 1120 Cliff Avenue, #401, Tacoma WA 98402, – letter, dated April 20, 2007 Shaw, Stan – e-mail, dated April 18, 2007 Simon, Herb and Johnson, Ted – letter, dated April 27, 2007 Stebich, Stephanie – 1101 A Street, Unit 704, Tacoma, WA 98402 – e-mail, dated April 17,2007 Walkey, Deedra S. US General Counsel – e-mail dated April 26, 2007 Wheeler, Jack – 1120 Cliff Avenue, #201, Tacoma, WA 98402 – e-mail, dated April 5, 2007 Zacek, Sandra – Rancho de Manana, LCC, 401 Fawcett Ave Suite 203, Tacoma, WA 98402 – letter, dated April 21, 2007 Other Information Meyer, Don – Foss Waterway Development Authority, 535 E Dock St, Suite 204, Tacoma WA 98402 – letter, dated June 21, 2007 Vanzwalenburg, Kim – Washington Department of Ecology, PO Box 47774, Olympia, WA 98504 – letter, dated June 11, 2007 Issues and Observations Report Thea Foss Waterway, S-8 Shoreline District Regulations Page 26 of 26 Page 78 Members Thomas M. Smith, Chair David A. Boe, Vice-Chair Kevin Briske Melody Curtiss Carolyn L. Davidson Robert T. de Grouchy, III Thomas W. Donovan Jeremy C. Doty Scott Morris Minutes Community and Economic Development Department Ryan Petty, Director Peter Huffman, Planning Division Manager Tacoma Planning Commission Public Works Department Charles Solverson, P.E., Building Official Tacoma Public Utilities Heather Pennington, Water Representative Cathy Leone-Woods, Power Transmission & Distribution Assistant Manager 747 Market Street, Room 1036, Tacoma, WA 98402-3793 Phone (253) 591-5365; FAX (253) 591-2002 www.cityoftacoma.org/planning MEETING: Regular Meeting and Public Hearing TIME: Wednesday, April 18, 2007, 4:00 p.m. /Public Hearing at 5 p.m. PLACE: Tacoma Municipal Building, City Council Chambers First Floor, 747 Market Street, Tacoma, WA Members Present: Thomas Smith (Chair), David Boe (Vice-Chair), Kevin Briske, Carolyn Davidson, Robert de Grouchy III, Thomas Donovan, Jeremy Doty, Scott Morris, Melody Curtiss (arrived at 4:33 p.m.) Staff Present: Peter Huffman, Donna Stenger, Brian Boudet, Molly Harris, Lihuang Wung (Community & Economic Development); Caroline Haynes-Castro, Shanta Frantz, Shirley Schultz, Lisa Spadoni (Public Works); Steve Victor (Legal Department); Heather Pennington (Tacoma Water) Others Present: (As listed in the “Public Hearing Testimony” section) Excerpt PUBLIC HEARING 1. Thea Foss Waterway Zone 1 Height Regulations Chair Smith called the public hearing to order at 5:07 p.m. He stated the subject and the procedures for the hearing, and announced that, in addition to oral testimony, written comments may be submitted through 5:00 p.m., Friday, April 27, 2007. Chair Smith called on staff to make a brief presentation. Ms. Donna Stenger stated that the subject of the public hearing is the proposed amendment to the City’s shoreline regulations particularly related to the Tacoma Municipal Code (TMC), Ë The Community and Economic Development Department does not discriminate on the basis of handicap in any of its programs and services. Upon request, accommodations can be provided within five (5) business days. Contact (253) 591-5365 (voice) or (253) 591-5153 (TTY). Page 79 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 2 Chapter 13.10, which is part of the Master Program for Shoreline Development. The amendment applies to S-8 Thea Foss Waterway Shoreline District. The proposed amendment would allow an increase in the maximum height to 180 feet on three development sites, modify the building envelope and other standards, clarify the responsibilities of Thea Foss Waterway Development Authority for conducting design review, and add a new requirement to protect the view of Mt. Rainier from the view overlook located near the southeast corner of Fireman’s Park. Ms. Stenger mentioned that copies of the staff report summarizing the proposal are available in the back of the room. Also available are CDs containing appropriate background information and support studies. All of this information is also available on the City’s website. Ms. Stenger reviewed the background of the proposed amendment. In 2004, Foss Harbor LLC submitted an application to the Planning Commission requesting a change in the S-8 Thea Foss Waterway Shoreline District regulations for the west side of Thea Foss Waterway for the area north of the Murray Morgan Bridge (Zone 1) to increase the maximum building height from the current 100 feet maximum height to 180 feet. The application was accepted by the Commission consistent with the process set forth in TMC 13.02 and included for review with other proposed amendments as a part of the annual amendment review package for 2004. After conducting a public hearing on September 15, 2004 and reviewing testimony, the Commission modified the draft proposal and recommended to the City Council an amendment to the S-8 regulations which provided an option to increase the height to 180 feet, subject to meeting certain requirements, and only for the southern portion of Zone 1, an area located south of the Puget Sound Freight Building. The Council held a public hearing on October 26, 2004, and subsequently concurred with the Commission’s recommendation and adopted the proposed S-8 code changes by Substitute Ordinance No. 27296 on November 16, 2004. After Council approval, the proposed code amendment was submitted to the Department of Ecology (DOE) for review and approval, pursuant to the Shoreline Management Act (SMA) requirements. DOE conducted a review and solicited public comments. After reviewing the testimony and the City’s record, DOE suggested that additional analysis of the proposed amendment was warranted to address view impacts, particularly of nearby residences, and that additional opportunity for public discussion of the new view analysis be provided. In November 2005, the City withdrew the proposed amendment from further review by DOE in order to conduct a new view analysis and to reevaluate the 2004 approved amendment based upon the new view analysis. This process commenced in December 2005. One of the most significant aspects of the reevaluation was the view impact analysis. Staff used computer modeling programs which allowed interactive 3D views from different locations, at different heights, with different building forms, and within 4,000 feet of the affected shoreline area. Ultimately, three vantages points were selected: the Perkins Building roof deck, and the overlook areas at the southeast corner and the northern end of Fireman’s Park. In addition to using the computer modeling, the City hired TCF Architecture to conduct a view analysis and massing study. TCF presented diagrams depicting different variations of building massing which could be possible but are not specifically required by the proposed regulations. The architectural renderings were overlaid over actual photographs looking at different view points from the same vantage points used in the 3D modeling. Unlike the 3D models which used the maximum zoning envelopes, the TCF renderings were more schematic building designs and modulations, thus Page 80 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 3 providing a different perspective for the Commission. Staff also conducted a 2D viewshed analysis to calculate the viewable areas (where 50% or more of views are unobstructed) and determine the degree of view impact from the same vantage points. Various development scenarios were examined in the 3D models, the TCF architectural renderings and the viewshed analysis. The “wedding cake” form showed buildings at 50 feet (the minimum height) and 100 feet (the maximum height) with building modulations at certain heights as required by the existing code. The “tower-and-podium” form depicted maximum building envelopes at heights of 140, 160 and 180 feet using the tower and podium building form in several configurations, including towers at a maximum floorplate of 15,000 and 12,000 square feet. For the tower option, the Municipal Dock site and Site 10 each had one tower depicted; and on Site 11, three towers are depicted, with a stepping down of height of the towers northward. An economic feasibility analysis was also conducted to determine the likely return on investment from these development scenarios and whether the return was sufficient to attract investment. Ms. Stenger continued to report on the public involvement process. A community meeting was held early in the process in February 2006 to explain the review process and to answer questions from the public. Staff created a stakeholders list and notified everyone on the list of every meeting the Planning Commission held when this item was on the agenda. Several citizens have participated throughout the entire process. Staff attended a joint meeting of the Foss Waterway Development Authority (FWDA) Board and its Urban Design Review Committee in March 2007 and presented the 3D computer model as well as other relevant information. Staff also held a community meeting on April 4, 2007 to provide an opportunity for interested parties to learn more about the proposed amendment and ask questions. For the record, the notice for tonight’s public hearing was sent to interested stakeholders, Neighborhood Council representatives, business and community organizations, City departments, State agencies, adjacent jurisdictions, other governmental agencies, the Puyallup Tribe, large institutions, environmental organizations and others. Notice was also mailed to taxpayers of record for properties on the Thea Foss waterway and within 400 feet of these properties. In total, the notice was sent to more than 1,600 addresses. Public notice signs were posted on the affected properties on the Thea Foss Waterway. In addition, a legal notice and advertisement of the public hearing was published in The News Tribune on April 4, 2007 and a copy of the notice was posted on the City’s internet website. An addendum to the 1995 Draft and Final Environmental Impact Statement for the Thea Foss Waterway Development Alternatives Plan was prepared. The addendum provided additional environmental information describing potential visual impacts based on the results from the updated viewshed analyses. Ms. Stenger went on to provide a more detailed description of the proposed code amendment. The proposed amendment provides for an alternative development option (tower and podium building form) on three development sites (Municipal Dock site, Site 10 and Site 11) located in the southern portion of Zone 1. A maximum building height of 180 feet would be allowed only if the majority of the building’s use is residential. No additional height or variance to the 180-foot limit is allowed; all rooftop mechanical and other appurtenances must fall within the envelope. Maximum floorplate for the tower portion exceeding the podium is no more than 15,000 square feet. Page 81 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 4 For projects incorporating multiple towers, only one of the towers on each site can be 180-foot tall (and this should be the southernmost tower). Each additional tower shall be progressively shorter by at least 20 feet. Towers have to be spaced apart an average of 100 feet and no closer than 80 feet. The towers are restricted in width to 125 feet, as measured from and parallel to Dock Street. The maximum height of the podium portion is set at 50 feet, although a 10-foot allowance is provided for mechanical equipment and amenities associated with the use of the podium rooftop for recreation activities by the tenants and/or public. Such amenities may include railings, seating and planters. 50% of the podium roof has to be usable for recreational space, of which 30% has to be landscaped. The podium needs to have a setback of 10 feet from the access/view corridor, which would expand the existing width of the view/access corridor from 80 to 100 feet, with a 10-foot setback on each side, which needs to be developed with pedestrian amenities and landscaping. As in 2004, the proposed amendment retains the existing building envelope regulations as a development option, with a maximum height limit of 100 feet and required building modulations at certain intervals (“wedding cake” building form). The proposed amendment clarifies the responsibilities of FWDA for conducting design review on all public properties on the west side using the criteria and guidelines in the Thea Foss Waterway Design and Development Plan. The design review must consider the shoreline view impacts to a substantial number of residences adjacent to the shoreline. The amendment also clarifies that City staff will conduct design review on private properties including view obstruction as part of the review of shoreline permit applications. The revised amendment adds a new, significant requirement to protect the view of Mt. Rainier from the view overlook located near the southeast corner of Fireman’s Park. No development can obstruct that view. The view of Mt. Rainier from this viewpoint is identified as a locally important view. This is the first time the City has put in the code the protection of the view of the Mountain that also affords some protection to shoreline views. Finally, the proposed amendment includes changes that represent a reorganization of the S-8 Thea Foss Shoreline District regulations. These changes include the addition of diagrams and illustrations as well as some explanatory text to help differentiate those portions of the code that apply to all development on the Thea Foss Waterway from regulations that apply only to the east or west sides of the Waterway. The reorganization is intended to make this section of the shoreline code easier to read, follow and understand. Upon conclusion of Ms. Stenger’s presentation, Chair Smith called for oral testimony. (1) Ted Johnson – Simon Johnson, 1019 Pacific Ave., #1119, Tacoma, WA 98402 Mr. Johnson is a partner with Foss Harbor, LLC, which owns development site 11 and has a lease option agreement with the Foss Waterway Development Authority (FWDA) for site 10, which are two of the parcels affected by the proposed amendment. Mr. Johnson began with a PowerPoint presentation to summarize their proposal. He said that the long, horizontal facades on Thea’s Landing prompted them to explore other alternatives. The Page 82 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 5 “wall” created by the Thea’s Landing project is about seven stories tall and approximately 350 feet long. He showed pictures taken at Coal Harbour, Vancouver, BC that better express what Foss Harbor hopes to accomplish on their site(s); that being waterfront with esplanades, people-access places, and towers on top of podiums. Foss Harbor’s goals are to preserve and enhance view and access corridors via slender building massing, enhance pedestrian connections and open space, provide visual interest with a variety of scales, expand the linear nature of the esplanade with new green space and integrated pedestrian areas, reinforce both visual and physical connections to the waterfront, orient the buildings to take advantage of the views and light, develop a transit-oriented program, enhance the Tacoma waterfront skyline by creating a gateway at the north end of the waterway, and activate the streetscape and provide a safe neighborhood. Zone 1 has constraints in that the sites are narrow, there is a roadway that cannot be moved, and there are railroad tracks as well as an adjacent bluff. The dimensions of the Zone 1 relevant sites are 620 feet and 400 feet in length and 120 feet wide. In comparison, the dimensions of the sites in the Thea’s Landing area are approximately 380 feet long and 200 feet wide. The height of the bluff is between 90 and 96 feet above uplands. In comparison, the bluff in zone 2 is 60 to 70 feet above the uplands. The current zoning requirement for a structure in that area is 130 feet. Schuster Parkway and Interstate 705 also separate the sites in Zone 1. From a pedestrian standpoint, Mr. Johnson stated, there is a definite lack of connectivity to downtown. The esplanade will be only 20 feet wide in Zone 1. The current Plan calls for substantial density in this area. Mr. Johnson showed a schematic concept of future tower development. It begins to open up views of the water and the skyline. With their proposal, it will begin to resemble Vancouver, B.C. and Portland waterways. Mr. Johnson continued explaining the renderings in his PowerPoint presentation. He stated that their vision is to provide a 130- to 150-foot wide open area designed to accommodate retail. Dock Street is not available for on-street parking because it is narrow and cannot be expanded; therefore, any parking to attract retail shoppers will need to be off-street. They also want to create a gathering place in the center of the esplanade, possibly with a water feature; as well as expand the marina’s convenience store and possibly add a boutique store. (2) Bill Lynn – Gordon, Thomas, Honeywell, P.O. Box 1157, Tacoma, WA 98401 Mr. Lynn also represented the Foss Harbor, LLC. He stated that views will be impacted from erecting tall buildings. There will also be some view enhancements and improvements; however, view impacts are fully permissible under the applicable law. When the Planning Commission, as well as the City Council recommended approval of the proposed amendment a few years ago, they fully understood that the Thea Foss Waterway was to be intensely developed with urban uses. They understood that this proposal would have some view impacts and made a conscious decision that the overriding public interest was the public interest of the public-at-large, and not the interest of a few people whose views may be impacted. Mr. Lynn said that when this matter went to the Department of Ecology (DOE), they indicated that they wanted a better job of articulating the public interest that warranted the view impacts. It is legal to impair views according to the Shoreline Management Act Page 83 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 6 (SMA), but only when it is demonstrated that there is an overriding public interest – not an overwhelming public interest. The City does not need to guess what the public interest is because of the volumes of plans and policies, as well as a long history of City actions that help us define what the public interest is. Whenever the leaders of the City have had an opportunity to decide what the public interest is with respect to the Foss Waterway, they have decided that the public would be served by an intensely-developed urban shoreline in this area. Under the Growth Management Act (GMA), once the policies and plans have been adopted it is required that they are implemented. Prior to the GMA, the Shoreline code was separate from the City’s Comprehensive Plan and zoning code. The GMA now states that plans and policies have to be integrated and work together. The Foss Waterway is defined as part of the City’s urban center in the Comprehensive Plan as well as in the fourcounty effort that led to the Vision 2020 Plan which encourages residential growth and employment in centers. The City’s Plan identifies the site as a High Intensity area where residential density should exceed eighty dwelling units per acre. The City went beyond that and identified the Thea Foss Waterway as being within the City’s downtown mixeduse center – the center among all centers – and the focal point for the City’s development and growth. This encourages high-rise apartments, clustered housing, and intense urban development that would foster transit, pedestrian activity, and result in a livable urban community. The City’s Shoreline Master Program identifies the waterway as an urban area, the highest classification, which encourages residential, marine and commercial uses, as well as mixed-uses. The City has a history of investment in the Thea Foss Waterway with the expectation of a certain type of private development to follow, Mr. Lynn stated. The area had suffered from 100 years of industrial development, after which there were empty buildings and contaminated properties (three hot spots were identified by the EPA). Leaders of the City identified the area as the single greatest opportunity for Tacoma’s economic revival. They invested $7,000,000 and bought 27 acres of contaminated properties and began the process of cleaning them up. The City invested $90,000,000 to clean up the waterway. They created and funded the FWDA to oversee the marketing and development of the area. They then invested another $45,000,000 in infrastructure (marinas and the esplanade) with the aim of creating a center piece of a dense urban area. The City also adopted and subsequently amended the Thea Foss Waterway Development Plan, which was the product of 40 public meetings involving 900 people, over a period of years. That Plan became a little more specific; stating that the waterway is to be a very active area, a focal point, a mixture of uses with the esplanade, pedestrian-friendly activities, and transit. The “public interest” has been articulated in City Plans and actions. We know that the City expects the area not to remain as it is today with a few run-down buildings on the north end and some marinas. Rather, the City expects more, as they have invested a lot of money with the expectation that they will get more private development. We acknowledge these Plans do not dictate a particular building form. There are probably a number of ways in which to achieve the goals. According to the City’s regulations, one of the ways to achieve the goals is by the kind of buildings that are presently permitted under the development regulations, as previously explained by Ms. Stenger and Mr. Johnson. The existing regulations have been approved by the DOE and implement the City’s vision. There also may be other ways to accomplish the vision; however, we must pay attention to what is feasible and what is practical. In 2004, City leaders decided Page 84 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 7 that it was necessary to go taller, in order to make it an economically practical vision for the City to achieve. The decision was made to gather more verification through this review. Staff engaged BST to prepare a report which takes into account all of the practical considerations that Mr. Johnson described; the limitations on the property, the high groundwater table, construction costs, market rents, etc. The conclusion of that report was, in order to have a practical and feasible development of the type that the City said it wants on the waterway through its Plan documents, the City should allow taller buildings. Mr. Lynn stated that there is a public interest that warrants some view impacts. He encouraged the Planning Commission to ask the people opposing the amendment: Is the kind of development that they envision along the waterway consistent with the vision that the City has articulated? If so, is it practical and feasible? (3) Diane Malone – 1120 Cliff Ave., #404,Tacoma, WA 98402 When I relocated to Tacoma from Seattle in 1992, I quickly realized that the downtown core was a very undesirable area. A decade later, the downtown core has become revitalized and a very inviting area. But growth always comes with controversy and concerns. The tower proposal offers a great threat and would rob all of us of what we have come to love – the view of the waterway. The waterway belongs to all who live, work, play and visit here. (4) Richard Toth – 525 Broadway, Tacoma, WA 98402 The 180-foot height is the same as what was proposed a few years ago and is still a great idea. (5) Sandra Zacek – Rancho de Manana, LLC, 401 Fawcett Ave., Suite 203, Tacoma, WA 98402 Allowing the maximum height of 180 feet would substantially impact the views from the Perkins Building and downtown Tacoma and would set a precedence for future development in other areas of the Waterway. The Shoreline Management Act protects residential waterfront views and a height variance would be allowed only if overriding considerations of the public interest were served. The proposal is not serving the public interest. Tacoma is first and foremost a waterfront city and the waterfront should be preserved for residents of not only the waterfront, but the entire city and the county. Keeping the waterfront intact and people-friendly and protecting the view provides substantial benefits to the city, in that (1) it makes the city a great place to live, work and play; (2) it gives potential condo buyers more reasons to buy condos thereby helping all developers, not just one; and (3) it allows the City to present an impressive waterfront destination to attract tourists. People come to see tall ships, not tall buildings. The shortterm money the city will recoup on the towers would be greatly diminished by the longterm gains of protecting our waterfront now. San Francisco’s waterfront around the Bay Bridge has undergone a renaissance in the past few years after the 1989 earthquake destroyed the bridge. We have an opportunity to become a waterfront community. We should achieve a vision that does not repeat the mistake of other cities; or like San Francisco, Tacoma would have to wait for an earthquake to regain our waterfront. Do not allow the 180-ft towers to dwarf our waterfront. These towers will be viewed with sadness and disgust for the treasured assets that they Page 85 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 8 have destroyed. Please safeguard our irreplaceable waterfront and protect the rights of all residents of Tacoma. (6) Kathi Beery – 1120 Cliff Ave., #301, Tacoma, WA 98402 I am for high density development but taking away waterfront from the city is a bad move. On Seattle’s waterfront, the Harbor Steps condo development makes the walkway feel very private. The Thea Foss esplanade is so much narrower; it will not feel like a public place and we will not have a sense of the community with these towers in front of the waterfront. The developer is not bringing in the amenities that we need in downtown such as grocery stores and schools. Seattle is trying to reconnect with their warfront. We are at the point to save our waterfront and should avoid the path Seattle has taken. (7) Jim Handmacher – Morton McGoldrick for Perkins Building, P.O. Box 1533, Tacoma, WA 98401 I represent residents of the Perkins Building and the Perkins Building Owner’s Association. I also have my own stake in this, as our law office is located on the sixth floor of the Bank of America building which is right across the street from Firemen’s Park. These towers would be taller than the Bank of America building which is a seven-story building. I delivered a letter to the Planning Commission last Friday, and hopefully, you all have had time to review it. I would like to highlight some critical issues from that letter. The most important is that you are dealing with an amendment to the City’s Master Shoreline Program. DOE has adopted regulations that govern what must be in the Master Program. The one that is relevant here is WAC 173.26.221, which says that the Shoreline Master Program must adopt provisions such as maximum height limits to minimize impacts to existing views from public property or substantial number of residents. That is a regulation that has not really been discussed much in your meetings but is directly on point. It goes on to say, “where there are irreconcilable conflicts between views in either waterdependent shoreline uses or physical public access, the views must give way”. But this project does not include either a water-dependent shoreline use or a physical public access. This project is simply residential condominiums and the views do not give way to that type of a use. That means the DOE regulations require the City to set a maximum height limit that protects views, not only from the Perkins Building, but also the public views from Firemen’s Park. It’s not an option, it’s not discretion, and it is something that has not been adequately brought to your attention prior to now. Secondly, Shoreline Management Act, Section RCW 90.58.320 prohibits the issuance of a permit for a building more than 35 feet in height that will obstruct a view from a substantial number of residences. That statute will not come into play directly on this matter because you are not being asked to issue a permit. The Shoreline Hearings Board has repeatedly rejected much smaller projects than what you are being asked to consider here. They have never approved a permit that I am aware of, for a structure anywhere near the size of the project that you are being asked to review here. Since a permit cannot be granted for a project of 180 feet on the shoreline that impacts views from a substantial number of residences, which this clearly does, why are you considering changing the code to allow maximum heights of 180 feet? The only effect is the chilling effect it will have on development in the uphill areas, because of the threat of the impact on those views, not because in reality they can never be built. The proper action, under the SMA, is not to raise the height to 180 feet, but to lower the height below 100 feet. The views from the Perkins Building could be protected probably at Page 86 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 9 100 feet. The views from Firemen’s Park will be severely impacted at 100 feet and that’s a public park. It is the only public viewing area in all of downtown Tacoma. Because its elevation is less than 100 feet as we have now found out through these view studies, it cannot be protected at a 100-foot height. You are going to be doing a complete review of the entire Shoreline Master Program in the next year. This is an inappropriate time to consider changing the height along a portion of the Foss Waterway. Is 100 feet appropriate when it is going to impact Firemen’s Park? Is 130 feet south of the 11th Street Bridge appropriate when the Perkins Building is at an elevation of less than 100 feet? Those are issues that need to be addressed in the upcoming review. Those views need to be protected and are required to be protected. Economic feasibility has really been a major red herring. First of all, the economic feasibility study is flawed because it does not take into account the property tax exemption that this project would receive. According to the information that we were given at the public meeting last week, if you take the tax exemption into account, you can build at 50 feet and still be economically feasible. The developers bought this property in 2001 knowing the height limit and telling the FWDA; in fact, promising in writing, to build in accordance with the height limit. They drew up a beautiful set of conceptual plans, which I have provided you, that shows a very attractive development that they were going to build on these properties if the FWDA sold them the land. The FWDA in reliance upon those promises sold them the land. They now own site 11 and they have a right to own site 10. Yet now they are backing away and saying we don’t want to build in accordance with what we told you. There was a financial feasibility plan that was given to the FWDA by these developers. It’s a classic bait and switch. After they get control of the property, they say they can’t build in accordance with rules. I say, “Hold their feet to what they promised to do.” If they’re not willing to build under the existing rules, they should sell it back to the FWDA and let somebody else do it in accordance with what they originally said could be done. The last thing I want to speak about is whether this is good public policy. This is what you are hearing from many of the people who are opposed to this. Because that is really what your job is. It is not to make this a more attractive investment for two individuals in this city. It’s to say what is best for the City as a whole? And what is best for the revitalization of downtown? Is it to create a wall between downtown and its waterfront; to create a wall to prevent people from seeing Commencement Bay? Is it to block the views from the only public viewpoint in downtown and the place where people congregate for things like the Tall Ships Festival? You are damaging those businesses and those residents who have made an investment in downtown solely for a speculative profit for somebody else. And that’s really what is wrong with this project. This project will significantly impact the views of the occupants of the Russell Building. It is important to the City that the Russell Company stays in town. It is important to the City to not give them an excuse to leave town. And that is true of all of the other businesses that have located in that area and the residents that have bought into the Perkins Building. I would ask you to very seriously consider what you are doing to the City by going along with the proposal that has been offered. I would ask you to reject this proposal at this time and take a look at all of the height limits as part of your overall shoreline review that is coming up over the next year. Chair Smith acknowledged receipt of Mr. Handmacher’s letter and noted that it is part of the public record. Page 87 Minutes of Regular Meeting and Public Hearing of April 18, 2007 (8) Page 10 Paul Casey – Perkins Owner, 1101 A St., #503, Tacoma, WA 98402 I am an architect and have had an ongoing architectural practice in the Tacoma area for over 20 years. I am also a resident in the Perkins Building in a 5th floor unit. The view from my unit is the computer view that all of you have seen multiple times. The amount of work that I have seen completed by City staff in promoting this amendment is literally unprecedented. There are volumes of work – all very good work and a lot of good effort. As you know, the 1995 Draft Environmental Impact Statement (DEIS) considered a variety of heights depending on the intensity of the use. The 2000 zoning rules set the height at 140 feet; in 2003 they were set at 100 feet, and now we’re going back to 180 feet. So, over the last 12 years since the EIS, we’ve had three changes – or one change in height every four years. That amount of change in zoning requirements is also unprecedented. Those changes were apparently (looking through the old record) based on civic perceptions and needs at that time and also economic needs by the various individuals looking at various lots. I want to address three issues that I think have been overlooked in all this process. One is access to the area. By the City’s own report, this area has poor connectivity and what exists is limited and inconvenient. But staff also underplayed some of the facts in relationship to those statements. The right-of-way for Dock Street is 40 feet wide and it is limited by the adjacent railway. That allows, according to the earlier Foss Waterway Plan, two 11-foot traffic lanes, which are of substandard width; two 5-foot bike lanes; and a sidewalk on one side. As already been pointed out by Mr. Johnson, there is no parking on-street. So, essentially on-street parking, which is free in other areas on Dock Street, will be missing in this area. Public parking is going to be in parking lots. If you look at Thea’s Landing and the Museum of Glass parking, it is all “pay me” parking, pay the developer, pay the building owner parking. I have been to most of the sessions regarding this amendment and I have not seen any mention of an updated traffic impact analysis for this area, or for Dock Street, at all. I might be mistaken; I just haven’t seen one presented. My calls to City Engineering have gone unanswered, so I don’t know if they’ve done anything or not. Going back to the original DEIS, which was based on 1990 data, they showed two ways to get off of Dock Street in this area – one at 15th and the other at 4th and Schuster. The existing Levels of Service (LOS) of A and B (which are good) went down to LOS E and F based on any of these developments. By approving a higher intensity development you are just making bad traffic worse. That is like adding insult to injury if the City hasn’t evaluated the traffic impacts with updated numbers. I would think, under the normal course of business, that the City would have evaluated the traffic impacts before considering a height increase that increases the allowable building area of the projects that can be built. The City has a minimum standard of LOS D. Anything that goes on in this area is going to be below the minimum standard from the get-go. I have only done a cursory review of the economic analysis by BST Associates. One of the things that I find interesting is that the basis of their evaluation was an internal rate of return for the developer of a minimum of 20 percent before you can attract development in this area. My research with bankers and other developers indicate that it is really about 17 percent before banks will consider lending money. That is a small decrease but still significant. The report also lists the land costs for site 10 as having a value of $38 per square foot in the economic analysis. Based on the square footage, that yields a value of $1,719,000. Page 88 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 11 Last Friday, I got a copy of the lease agreement and the purchase and sale agreement on site 10 that Mr. Johnson had talked about. The agreement talks about a purchase value of about one million dollars, and another quarter million in other compensation to the City, for a total of about $1.25 million. That’s one-half million dollars less than what the economic analysis used as a basis for their evaluation. Of course, that cost is used to show how the lower-rise projects aren’t profitable. The report also lists that the developer is responsible for the cost of developing the esplanade at about $4,000 per linear foot. Based on the property length, that’s $1.5 million dollars. Based upon staff reports and everything I’ve read, this esplanade, which is supposed to be 20 feet wide, is going to be built in front of site 10. I looked at the same purchase and sale agreement, paragraph 4.2, which has provisions for an extension of the lease (meaning Simon & Johnson have to actually extend the lease) and has several requirements. The second requirement says that the City, before they will extend, has fully funded construction of that portion of the esplanade fronting the premises. That’s another $1.5 million dollars that the City is picking up, and I may be wrong – maybe the lease agreement that I have is out-of-date, but according to FWDA staff, this was the latest version. Then I looked at the report in terms of construction costs. I was looking at the 100-foot option. That is something that I’m acquainted with in terms of my own practice. The economic analysis reports in 2005 dollars that this type of construction would on average cost $394 per square foot. On another project with a developer that I am working with, they have an average cost in 2007 of $285 per square foot. So, assuming 10 percent inflation over the last two years, I backed out two years of inflation from the current $285 cost down to $231 per square foot. Their value is 70 percent higher than a comparable building that is being built elsewhere in Tacoma. I’m sure we can argue all day long about what the City has done during this process. They have done a wonderful job in analyzing the view impacts; however, I think in their zealousness to address the DOE requirements to look at the residential views, they have completely ignored the original Foss Development Plan. City staff, by their own comments, said that one of their goals is to be consistent with that development plan; however, they are not. On page 19, under shoreline use development policies, item G states: “Maximize view opportunities, while protecting views of surrounding uses“. Not just residential uses, but all uses, which could mean the Russell Building. Under urban design, page 23, development policies, item 8: “Important public views of the waterway from the downtown should be protected”. The third point that the Plan brings up is under public and private building development sites, page 52. It reads: “The building height limits and view/access corridors established in the regulatory process were intended to mitigate view impacts to surrounding uses. Each new development should consider a variety of views, including its own orientation to maximize views, and the impact to surrounding views, including view from other sites on the waterway, views from surrounding locations to the waterway and views available to surrounding properties that may be affected by the development of the waterway”. The Foss Development Plan is very clear that views from downtown are critical in the determination of what should be done down on the Foss Waterway. The latest staff reports have completely ignored those impacts. In closing, I am a recent purchaser in the Perkins Building, at the end of 2005. However, there were several owners that bought their units in 2003/2004. I know those owners were essentially trailblazers coming downtown. Trailblazer are the people that come first, Page 89 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 12 get all the accolades, and get all the kudos from everybody for being there first. However, if this 180-foot view adjustment is passed, the views from the Perkins will definitely be harmed without possibility of repair. Instead of being viewed as trailblazers, I think the Perkins owners that bought earlier, are going to be remembered as scouts – those are the guys that came back to camp with arrows in their back. (9) Pat Cummings – Perkins Owner, 1101 A St., #503, Tacoma, WA 98402 I once sent you a DVD to describe what impacts your decision will have on many residents living in downtown. Many of you have a view from your home. Imagine if the county decides, for the sake of the public at large, to destroy the view you enjoy from your home. Many of us purchased the property with the desire to enhance our quality of life with a beautiful view. Your decision could be supporting a very obstructive view curtain for the Foss Waterway, which is a very precious resource. How do we define the “public at large”? Enabling this type of development on this small footprint with this obstructive view impact to residents and businesses is said to be a way of developing the waterfront and helping the public at large – I can’t help to believe the “public at large” that would be served by this zoning change are those lucky people who can afford the 180-degree unobstructed view of the water and the mountains. The “public at large” also would be defined as those who want to broker arrangements in order to enhance purchases they made for development; that’s the smaller “public at large” to be benefited. This is an important decision; when the bell is rung, it is rung. (10) Frank Jacobs – 1202 N. Tacoma Ave., Tacoma, WA 98403 I will submit a letter of comments and would like to highlight three points in the letter. First, the City of Tacoma has initiated a complete review of all existing shoreline regulations including height regulations. It will take several years to complete the review. Perhaps it would be wise to simply wait the completion of the comprehensive review of the entire west shoreline segment, rather than act on isolated small redevelopment parcels. Secondly, the applicant only owns one site in the study area, i.e., site 11. They lease site 10 from the Foss Waterway Development Authority and for a time had an option to purchase it, but it appears that option is no longer in effect. The Municipal Dock site is owned by the City and managed by the FWDA. With one site in ownership, it could easily be construed as a spot zoning or a conditional use application without a specific project for review. Third, if the changes are approved, the developer would be allowed to build substantially more rentable square feet by using the tower option, but would offer very little to the public in trade for this huge increase in value. A 10-ft widening of view corridors is being considered, however, there would be an increase in building square footage of 200,000 square feet. It is substantially beneficial to the developer, not the public. It is not right. I would like to request that the article by Peter Callaghan, published in The News Tribune on April 12, 2007, be included in the public record. The first paragraph of the article reads: “When it comes to a proposal to increase the allowable building heights on three pieces of land on Tacoma’s Foss Waterway, seeing is disbelieving. That is, once you see computergenerated displays of what taller buildings will look like from the Foss and from downtown, you won’t believe that anyone would think this is a good idea.” The last paragraph is equally interesting and it reads: “Tacoma shouldn’t sell its birth right – views of the mountain and the water – to the highest bidder. These views won’t disappear following Page 90 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 13 construction. They will only be transferred to those who can afford to live in taxpayersubsidized condos that are well out of reach for the average resident.” Our job, yours and mine, is to protect the public interest of over 200,000 people who live here, not the rights of a development company. (11) Gayle Rieber – Gayle Rieber Photography, 1121 A St., Tacoma, WA 98402 I’m grateful of the meeting and public hearing notices concerning this issue that have been sent to people in the immediate area of my business. I wish all the residents in Tacoma and Pierce County had received such notices. You would be overwhelmed by the number of people that suddenly realize what is at stake here. The view is there for all to enjoy at all times. We have paid tax dollars to clean up the waterway and we expect it to be there always. Expecting me to have to walk on the esplanade to see the waterway or go to a particular spot in Fireman’s Park to be able to look and see the mountain is unrealistic. (12) Tom Davenport – 1101 A St., #804, Tacoma, WA 98402 I own a unit in the Perkins Building which does not have the view of Commencement Bay, but I enjoy the water view from the rooftop. I also walk and ride my bicycle on a daily basis, frequenting such areas as the Glass Museum, the waterfront, Fireman’s Park, Spanish Steps, Wright Park and Broadway business area. Closing off the waterway to residential high-end development is not in the best interest of any citizen except for those who purchase property on the waterfront. If this project was Class A office space bringing a Fortune 500 company to Tacoma, with appropriate connection to downtown, I may support it. The 20-ft esplanade is not enough to handle the crowd for such events as the Tall Ships. It is a heritage to be able to stand in any part of the Fireman’s Park to get a substantial view of the water and the mountain. It is a huge mistake to make the decision now because maybe someday the project could be feasible with a 100-foot height limit. (13) Steve Gross – Perkins Building I need to make two disclaimers: (1) I am a recent resident of Perkins Building and I bought it with full knowledge of the proposed project and the rezone in S-8 district; and (2) I have been a City of Tacoma employee for 6 months, but have never spoken with City staff or elected/appointed officials about this project. My knowledge of the project has been obtained from reviewing the public record and attending meetings. I am testifying as a citizen and as a staff who has worked in local governments for 15 years, in Lynwood, Seattle, Pierce County and Tacoma. I would like to address the policy formulation aspect of what you are being asked to do, which is to modify the City’s policy based upon a specific development. The zoning and height limits have been changed 4 or 5 times over the last few years. The proposed amendment also is internally inconsistent with the City’s Comprehensive Plan. The Foss Waterway Design and Development Plan, an element of the Comprehensive Plan, allows for residential uses, but encourages maintaining the historic waterfront and maritime character along the waterfront. The Downtown Plan also talks about preserving views from downtown to the waterfront and from the waterfront to downtown. The City Council has revised their thinking about how the waterfront should be developed. A few years ago, the east side the Thea Foss Waterway was available for residential development. The Council changed the policy to prohibit residential uses north of the 11th Page 91 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 14 Street Bridge. The same thing goes here. The policy does not make sense in the context of overall downtown development to allow a segregation of the waterfront. The available public walkway is going to be in shadow most times of the day, starting approximately at 2:00 p.m. and is not going to be pedestrian friendly and not subject to amenable public uses and access. One of the things residents, businesses and developers are looking for is consistency in land use policies and regulations. Continuing to change these policies and regulations defeats the purpose of informing them what could be developed on the property when they bought the property. In this case, the developed knew what they could build when they bought the property. The City has been striving to attract people to come to downtown with such strategies as tax incentives, transit investment, and parking improvement. Consistency in policy has been an attraction to developers and residents. To do a small redevelopment while the City is pursuing a comprehensive review of shoreline development rules is not the best policy. There is a perception which could become a reality. Last fall, the City threw an urban pioneer celebration party to thank everyone who has come to live downtown. The perception is that we’ve made downtown vibrant, economically feasible and a good place to be, but now we are being punished. What’s the best thing to do in the waterfront? Is it to encourage residential or to encourage traditional maritime activities? We need to ensure the internal consistency, i.e., to make sure the Downtown Plan, the Foss Waterway Plan for both sides of the waterway, and other elements of the Comprehensive Plan are consistent with each other. We need to provide predictability for developers and for people who live here and those who want to come and live here. (14) Kathy Caraher – 1120 N. 27th St., Tacoma, WA 98403 I am a flight attendant and have been in a lot of cities all over the world. I have found that the most vibrant cities are those that have a waterfront with adequate public access and a lot of water-related events and performances. Baltimore’s harbor area is a good example of what Tacoma should strive for. We need nice open areas such as that along the Schuster Parkway that can be enjoyed by many. The large individual buildings also create a microclimate on the shadow side where the public is not enticed to go. (15) Chris Tinnin – Cliff Street Loft I am 32 years old and have lived in Tacoma my whole life. I have purchased a unit in the Cliff Street Lofts. Being a part of Tacoma’s revitalization means a lot to me. Seeing some development for more people to live in downtown is a good idea, but high-rise condos concern me. There are a lot of “me’s” in the city that don’t know about this, but would feel the same. Please remember the public not just the developers. (16) Sondra Purcell – 204 Tacoma Ave. S., #24, Tacoma, WA 98402 The City Council in 1999 presented me an award for helping to save Albers Mill. The building was not ready for occupation until 2005. There was a time span from saving the building to its actual use. We have to look long term. This is waterfront. We want waterrelated activities, but what we really want is authenticity, which is really hard to get in new buildings in Tacoma. Tacoma is not Kirkland, not Bellevue. We need to think about authenticity and scale. The Foss Waterway Development Authority has been working very Page 92 Minutes of Regular Meeting and Public Hearing of April 18, 2007 Page 15 hard to develop water-related projects but such projects don’t always pencil. Tacoma is a great town and let’s keep it that way. (17) Joe Vincenzo – 1120 Cliff St., Tacoma, WA 98402 I use the Fireman’s Park frequently. The view is what I would like you to protect. Do not allow the lift of the height limit to go through. Chair Smith closed the public hearing at 6:52 p.m. He reiterated that written comments would be accepted until 5:00 p.m., Friday, April 27, 2007, and all of the oral and written testimony would be reviewed by the Planning Commission at the next regular meeting scheduled for May 2, 2007. Page 93 Page 94 Page 95 Page 96 Page 97 Page 98 Page 99 Page 100 Page 101 Page 102 Page 103 Page 104 Page 105 Page 106 Page 107 Page 108 Page 109 Page 110 Page 111 Page 112 Page 113 Page 114 Page 115 Page 116 Page 117 Page 118 Page 119 Page 120 Page 121 Page 122 Page 123 Page 124 Page 125 Page 126 Page 127 Page 128 Page 129 Page 130 Page 131 Page 132 Page 133 Page 134 Page 135 Page 136 Page 137 Page 138 Page 139 Page 140 Page 141 Page 142 Page 143 Page 144 Page 145 Page 146 Page 147 Page 148 Page 149 Page 150 Page 151 Page 152 Page 153 Page 154 Page 155 Page 156 Page 157 Page 158 Page 159 Page 160 Page 161 Page 162 Page 163 Page 164 Page 165 Page 166 Page 167 Page 168 Page 169 Page 170 Page 171 Page 172 Page 173 Page 174 Page 175 Page 176 Page 177 Page 178 Page 179 Page 180 Page 181 Page 182 Page 183 Page 184 Page 185 Page 186 Page 187 Page 188 Page 189 Page 190 Page 191 Page 192 Page 193 Page 194 Page 195 Page 196 Page 197 Page 198 Page 199 Page 200 Page 201 Page 202 CITY OF TACOMA INTERDEPARTMENTAL COMMUNICATION TO: Peter Huffman, TEDD Division Manager FROM: Kyle J. Crews, Assistant City Attorney DATE: January 27, 2006 SUBJECT: Shoreline Management Act Public Access/Residential View Provisions The Planning Commission has asked for a legal opinion regarding the Shoreline Management Act (“SMA”) jurisdiction over the protection of residential shoreline views from adjoining residential properties versus the SMA jurisdiction for the protection of shoreline views from commercial properties. As a preliminary matter, in Washington State there are no cases or statutory laws that grant property owners a right to a view. See Pierce v. Sewer and Water Districts, 123 Wn.2d 550 (1994), and Collinson v. John L. Scott, Inc., 55 Wn. App. 481 (1989). Indeed, without a private contract or easement, private citizens have no right to views. Washington does not adhere to the “doctrine of ancient lights” by which a property owner has a right to an easement for light air over the property of another. In the Pierce case, the Water District erected a tower that blocked a property owner’s view of Mount Rainier and the Cascades. The owner then sued the Water District for an inverse condemnation “taking.” The Courts stated: “Clearly, there has been no specific declaration by our legislature of an intention to pay compensation for nonexistent property rights; i.e., access, air, view and light; furthermore, absent such rights, the condemnation proceedings herein do not violate Art. I, § 16, of our state constitution, which requires the payment of just compensation for the taking or damaging of property rights.” In Collinson, the Court ruled that the mere building of a structure which blocks an adjacent land owner’s view is not a nuisance. A different analysis of the right to views exists under the SMA, RCW Chapter 90.58. Specifically, RCW 90.58.320—Height Limitation Respecting Permits states: No permit shall be issued pursuant to this chapter for any new or expanded building or structure of more than thirty-five feet above KJC/Memo/Huffman Shoreline Mgmt Act 1-27-06.doc Page 203 Peter Huffman 2 January 27, 2006 average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served. (emphasis added). The City is controlled by the above SMA provisions, and adopted the relevant administrative code regulations governing the SMA, WAC 173-27, through Tacoma Municipal Code (“TMC”) Chapter 13.10. The above language in RCW 90.58.320 indicates that commercial properties are not addressed in that statute, i.e. “the view of a substantial number of residences on areas adjoining such shorelines.” The term residence is not defined in either the SMA provisions in RCW 90.58, or the provisions under WAC 173. However, in TMC 13.10.030.48 “Residential uses” are defined as: “Residential uses” means one-family dwellings, apartments, and condominiums. Hotels, motels, and boatels are considered to be commercial, not residential, uses. Further, under statutory interpretation, the term residence must be given its ordinary meaning, which is defined as “the act or fact of abiding or dwelling in a place for some time, an act of making one’s home in a place.” Webster’s Third New Int’l Dictionary, 1968 Edition. It is clear then that a condominium would be classified as a residential structure and be afforded the view protection granted under RCW 90.58.320 even without Tacoma’s definition above. Since Tacoma has its own Shoreline Master Program, the public access and view provisions of WAC 173-26 (see WAC 173-26-221(4)) can be illustrative of what type of regulations could be adopted to prevent or modify view blockage within shoreline districts. They are not, however, controlling in presently adopted City regulations, but are used in the adoption of any new Tacoma shoreline laws. When it comes to the issue of residential versus commercial shoreline view blockage under Tacoma’s program, one must first look to the general regulations of TMC 13.10.175, and the specific shoreline district regulations. For example, for residential uses in the “S-3” Shoreline District, TMC 13.10.175.17.b (2) states: (c) The expansion of single-family dwellings waterward of their present location shall be allowed; provided significant view blockage to neighboring properties does not occur. Page 204 Peter Huffman 3 January 27, 2006 Contrast that regulation with the language of TMC 13.10.175.17.b: (4) “S-8” Shoreline District – Thea Foss Waterway: Residential development shall be permitted in upland locations and shall be designed for multiple-family development only, excluding duplex and/or triplex development. where nothing is mentioned about view protection. The individual districts also have specific regulations, and using the S-8 District again as an example, in TMC 13.10.110, upland residential structures are presently limited to 65 to 130 feet in height. In addition, TMC 13.10.110.G.3 grants reductions of the required modulations for structures on the western side of Thea Foss when all specifically listed requirements are listed including TMC 13.10.110.G.3.a: (6) Is designed to minimize view impacts from neighboring properties through the use of location, materials, and orientation. It is once again noted that no protection for views is granted to “commercial properties.” As you have noted in your report to the Planning Commission, in the most recent case coming from the Shoreline Hearing’s Board on the subject of view, Alexander v. Port Angeles SHB No. 02-027 and No. 02-2-028 (2003), the Board enunciated four principals regarding view blockage in shoreline districts as follows: 1. That a building or structure must not obstruct the view of a substantial number of residences. 2. That residences must be on or in an area adjoining the project area. 3. The building must exceed 35 feet in height. 4. There must be an actual obstruction of view. It is clear from the Board’s decision that there must be a meaningful consideration of residential views; the Board was silent on commercial views being impacted. In over turning the City of Seattle’s decision to grant a permit for a tower in Allegra Development Co. v. Seattle, SHB 99-08 and 09, (1999), the Board strongly suggested that there be a survey of residences in the area impacted by the development to assess the potential affect that the proposed development would have on residential views. See also Portage Bay v. Shoreline Hearings Board, 92 Wn.2d 1 (1979), [a denial of a permit for a Page 205 Peter Huffman 4 January 27, 2006 shoreline development on aesthetic grounds must be based on specific aesthetic standards in the SMA, or in a refined master program]. In my opinion, the Shoreline Board’s focus on a Tacoma development would be on the negative impacts on residential views only, and not on commercial structures. Additionally, given the City’s current regulations and RCW 90.58.320, if the structure is a mixed residential-commercial development, then it would most likely be considered a residential structure for an analysis of the blockage under the SMA. In addition to the question relating to the residential versus commercial view blockage, there is the protection of views afforded to all property owners of shoreline districts and the public based on the more general public access provisions of the SMA. As previously stated, the current regulations of Tacoma are controlled by RCW Chapter 90.58 and our own Shoreline Master Program. However, any new developmental guidelines are adopted pursuant to WAC 173-26-010 and WAC 173-26-171. First, RCW 90.58.100(2) requires local master programs to include: (b) A public access element making provision for public access to publicly owned areas; (f) A conservation element for the preservation of natural resources, including but not limited to scenic vistas, aesthetics, and vital estuarine areas for fisheries and wildlife protection. TMC 13.10.030.45 defines “Public access area as follows: “Public access area” means an area, pathway, road, or structure open to use by the general public and affording contact with or views of public waters. TMC 13.10.030.46 defines “Public use/public access” as follows: “Public use/public access” means the protection of the public’s right to use navigable waters and the provision of both physical and view access to and along the public waters. Taking once again the specific regulations for S-8 Shoreline District as an example, TMC 13.10.110.A states that the intent of the regulations are: . . . to provide continuous public access to the Waterway. . .(Thea Foss) Page 206 Peter Huffman 5 January 27, 2006 The City’s general shoreline regulations under TMC 13.10.175.A read: ... 1. Public Access Criteria. a. All proposed developments shall be designed to maximize the public view and public access to and along the shoreline where appropriate. Public access shall be required for all shoreline development and uses, except for single-family residences or residential projects containing fewer than four dwelling units. . . (emphasis added). There are exemption criteria further provided in this section for this rule concerning public access, but the broad sweep of the rule and the City’s own public access definitions clearly justifies an analysis above and beyond the mere impact on residential views as provided in RCW 90.58.320, in my opinion. Finally, pursuant to WAC 173-26-221(4)(a) any new adoption of guidelines must meet the public access requirements which includes the public ability to . . .”reach, touch, and enjoy the water's edge . . . and to view the water and the shoreline from adjacent locations. . . This language is in keeping with the present public access definition of the Tacoma’s Shoreline Master Program. Clearly, the state guidelines further direct cities to look beyond residential properties in any analysis of potential view blockage and focus on the impact on the public as a whole. If you have any additional questions on this matter, please advise. Page 207 Page 208 CITY OF TACOMA INTERDEPARTMENTAL COMMUNICATION TO: Peter Huffman, CEDD Division Manager FROM: Kyle J. Crews, Assistant City Attorney DATE: July 14, 2006 SUBJECT: Thea Foss Waterway Height Regulations/Design Review Inter-Relationships ISSUE The Planning Commission, at its meeting of June 21, 2006, requested information about the Foss Waterway Development Authority (“FWDA”) regarding its responsibilities and the scope of its authority and practices concerning the review of shoreline projects to be constructed on the Foss Waterway. SHORT ANSWER The FWDA has limited authority in the actual conditioning of shoreline development applications in the City’s current procedural permit process for the Foss Waterway. However, the recommendations of the FWDA are given substantial consideration by the Land Use Administrator during permit review. BACKGROUND The request was in the context of a discussion between the Commission Members and staff regarding the proposed amendment to raise the maximum allowable height of a portion of the Western S-8 Thea Foss Shoreline to allow tower development. It was suggested that the FWDA Design Review Committee (“DRC”) could review future development proposals through its design review process to determine the best placement of towers, orientation, modulation, etc., to minimize the view impairment by structures over 35 feet in height to a substantial number of residences. This would be accomplished by adding to the Tacoma Municipal Code (“TMC”) a requirement that a view analysis be conducted by the applicant and by adding further criteria to evaluate development proposals which would be used in the design review process, thereby deferring decisions on the specifics of the building design for minimizing view impacts to the design review process rather than trying to set out specifically the “thousand variations” in the TMC 13.10.110 regulations. KJC/Memo/Huffman Thea Foss 7-13-06.doc Page 209 Peter Huffman -2- July 14, 2006 Any analysis of the contemplated additional authority to be delegated to the FWDA DRC must be premised with a review of the inter-relationship between the State Shoreline Management Act, the legal authority of the FWDA, the Tacoma Master Program Shoreline regulations (TMC 13.10.110), the Thea Foss Waterway Design and Development Plan (“TFWDDP”), and finally, the authority of the Land Use Administrator and the Hearing Examiner in their review of shoreline permit applications for the Foss. Currently, the DRC has limited authority in the ultimate design review decision made by the Land Use Administrator under TMC 13.05 and TMC 13.10 for projects affecting the shoreline views of a substantial number of residences. Those issues concerning aesthetics and view impacts are presently addressed through SEPA and the shoreline permitting process under TMC 13.10, TMC 13.12, and RCW 90.58. On the other hand, an argument can be made that prior to the permit review process by City staff, a project can be reviewed by the DRC because within the TFWDDP, which is an element of the City’s Shoreline Master Program, there are design goals, policy statements, and guidelines relating to the design review by both the FWDA and the City, and which address building design and view considerations. Under TMC 13.10.110.J, Foss shoreline uses and developments are subject to compliance with the TFWDDP. The FWDA is charged with incorporating into their review of potential projects on Foss Waterway property the relevant elements of the TFWDDP. This process serves as a sort of a “triage” before the permit process, and could require a view impact analysis of a project, including specific conditions to minimize view impacts, that then could be contained within an agreement prior to the sale or lease to a private developer. Of course, properties not located in areas controlled by the FWDA would not be subject to this prior review, but would be subject to any view impact analysis required through SEPA and RCW 90.58.320, along with a review of those guidelines contained in the FWDDP. With these issues in mind, the following analysis is provided. POWERS AND AUTHORITY OF THE FWDA The power to establish a public authority corporation like the FWDA comes from state law, RCW 35.21. Specifically, RCW 35.21.745 allows the City to create a public authority corporation, and that statute allows the authority to own and sell real and personal property; to contract with individuals, associations, corporations, the state, and the United States; to sue and be sued; to loan and borrow funds and issue bonds and other instruments evidencing indebtedness; to transfer any funds, real or personal property, property interests, or services; to do anything a natural person may do; and to perform all manner and type of community services. The authority is restricted, however, from having the power of eminent domain. The Charter of the FWDA was established by the City on October 1, 1996. The Charter reiterates the powers confirmed by RCW 35.21.745 and RCW 35.21.747. The powers of the FWDA likewise are confirmed under TMC 1.60, “Public Corporations.” Under Article X of its Charter the FWDA has the power to create committees such as the DRC. Under Article VI 1(e) of its Charter, the FWDA: . . . has the power to sell assets for consideration determined by the Authority to be in the best interest consistent with the purpose, Page 210 Peter Huffman -3- July 14, 2006 including consideration greater than the reasonable market value or acquisition costs, or charge for services determined by the Authority to be in the best interests consistent with the purpose . . . On January 1, 2000, the Second Operating Agreement with the Thea Foss Waterway Development Authority was adopted. The City and FWDA desired to provide for the anticipated transfers of certain development uplands owned by the City to the FWDA, together with trust properties held by the Metropolitan Park District. The expectation was that the FWDA would, subject to easement or boundary line adjustments for a public esplanade, lease or sell certain of those properties for redevelopment purposes to developers selected through the procedures set forth within the agreement, starting on page 3. Under the title of “Role and Responsibilities,” the criteria for evaluating redevelopment proposals for each site was set forth to be consistent with the TFWDDP. Specifically, the agreement states on page 4: The Board shall establish criteria for evaluating the potential development alternatives proposed for each site. The FWDA and the City agree that sale of the development property, rather than leasing, is the preferred approach to redevelopment subject to the criteria established by the Board. At a minimum, the evaluation criteria shall include the following: whether the proposed redevelopment is consistent with the Master Redevelopment Strategy and the Foss Plan (Foss Waterway Design and Development Plan); whether the proposed redevelopment meets minimum development thresholds established by the FWDA; the public benefit associated with the proposed redevelopment; the economic viability of the proposal; the experience of the development team; whether the team includes local participation; the financial return that the proposed redevelopment will provide to the FWDA and/or the City; the long-term economic impacts to the Waterway and the City; and whether the proposed redevelopment complements and enhances the adjacent developments. In evaluating competing redevelopment plans, the Board should consider the projected timeline for commencement and completion of the redevelopment. The Board may expand the evaluation criteria to include additional, more specific criteria for each site. (Emphasis added.) The second agreement also speaks to “the Proposed Development Agreements, Purchase/Sale Agreements or Development and Lease Agreement.” On page 6, the agreement further states: Upon selecting the developer(s), the FWDA will negotiate a Development and Purchase/Sale or Development and Lease Agreements that are consistent with the Foss Plan and the Master Redevelopment Strategy, to provide for conveyance of a fee simple or leasehold interest in the site(s) within the Development Uplands to a developer, and the development of Page 211 Peter Huffman -4- July 14, 2006 such sites. The specific terms and conditions of any Development Agreements, Purchase/Sale Agreements, or Development and Lease Agreements must be reviewed and approved by the Tacoma City Attorney. Any sale of property to a developer shall be at the fair market value of the property as determined by MAI Appraiser or other appropriate valuation technique . . . Any transfer of site(s) [by sale or lease] pursuant to a Development and Purchase/Sale or Development and Lease agreements is contingent upon the developer initiating full or partial redevelopment within a specified time frame as provided in such Agreements, in order to ensure that implementation of the overall Foss Plan and the Master Redevelopment Strategy proceeds in a timely and orderly manner. (Emphasis added.) In the second Agreement, it is also noted on page 7 that the FWDA must comply with all applicable law: Notwithstanding any other provisions herein, FWDA property disposition procedures shall comply with applicable State law and City ordinances as generally designated in Exhibit “A” hereto, and the Trust Agreement. Finally, on page 10 of the second agreement it is stated: In submitting a recommended site development on any property, whether City owned, held in trust by the FWDA, or owned by the FWDA, the FWDA shall confirm to the Council that it believes such proposal is consistent with the Foss Plan. The Council shall accept or reject the FWDA’s recommended proposed Development and Purchase/Sale or Development and Lease Agreements by an affirmative vote of five members of the Council. As noted above, the FWDA is under a legal obligation to comply with the state laws and City ordinances. This would include, of course, the State’s Shoreline Management Act and specifically RCW 90.58.320, which provides: No permit shall be issued pursuant to this chapter for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served. (Emphasis added.) In reviewing the issue of when RCW 90.58.320 comes into play, the State Shorelines Hearings Board in their decision of Richard P. Grill and Annette T. Tamm v. Baraka, LLC and City of Anacortes, SHB No. 02-001 (2002), stated on page 10: Page 212 Peter Huffman -5- July 14, 2006 The wording of the statute strongly suggests the determination of whether a proposed project meets the requirements of RCW 90.58.320, is to be based on an analysis of an individual permit. This suggestion is based first upon the introductory words of the statute; i.e. “[n]o permit.” Secondly it is based upon the later language, which provides an exception to the general rule of the statute. That exception reads: “except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served.” (Emphasis added.) It is clear that state statutes control over conflicting City ordinances and ordinances control over conflicting provisions of any comprehensive plans. Under the Growth Management Act, RCW 36.70B.030 (2) it is stated, in part, that: During project review, a local government or any subsequent reviewing body shall determine whether the items listed in this subsection are defined in the development regulations applicable to the proposed project or, in the absence of applicable regulations the adopted comprehensive plan. At a minimum, such applicable regulations or plans shall be determinative of the: (a) Type of land use permitted at the site, including uses that may be allowed under certain circumstances, such as planned unit developments and conditional and special uses, if the criteria for their approval have been satisfied; . . . (Emphasis added) After the Shoreline Management Act, the general shoreline regulations under TMC 13.10.175A regarding public access and views, and the specific regulations under the S-8 Shorelines District Regulations, TMC 13.10.110, are the primary regulating authority. In Mountain Associates v. King County, 111 Wn.2d 742 (1986), the Board ruled that if the regulation and comprehensive plan elements can be harmonized, then they both can be used to regulate the project development. However, if there is a conflict, then the regulations control. Lund v. Dept. of Ecology, 93 Wn. App. 329 (1998). TMC 13.10.110(J) provides, in part: . . . Developments within the “S-8” Thea Foss Waterway Shoreline District shall also comply with the goals and intent of the Thea Foss Waterway Design and Development Plan and shall incorporate unifying design elements as specified in said Plan. Page 213 Peter Huffman -6- July 14, 2006 CONCLUSION 1 The TFWDDP imposes on the DRC a process found in pages 141-142 of the appendix to the Plan. However, at this time, the DRC’s decision can only be given as much weight in the actual permit review process as the law allows. By practice, considerable deference is given to the DRC in the permit review as long as there is no conflict with state laws or City codes in their recommendations. While it is not prohibited that the DRC look at design issues affecting view blockage, the authority of the DRC does not extend to reviewing projects for potential environmental impacts, nor is it a substitute for the review required under SEPA and the shoreline permit process. As noted previously in the case of Grill v. City of Anacortes, the analysis under RCW 90.58.320 as to view blockage for a substantial number of residences comes with the review of an individual permit using the process now in place under TMC 13.05 for the authority of the Land Use Administrator, and the authority of the SEPA Responsible Official under TMC 13.12, and upon appeal under the authority of the City Hearings Examiner. (See TMC 1.23.050 B.2 and .10). The DRC process to analyze view impacts, per SMA and SEPA, is not an official one under the authority granted to the FWDA under the relevant state (RCW 35.21) and City (TMC 1.60) codes, the Charter of the FWDA, and the current operating agreements. Current City of Tacoma Shoreline regulations would have to be amended, in my opinion, to allow the DRC to have the actual substantive authority that some may ascribe to it now. The DRC decision now acts first as a condition precedent (if approved by the City Council) for the sale of land, much like a legal covenant running with the parcel to control its use, and secondly, the decision serves as additional factual input into the Land Use Administrator’s analysis of the shoreline permit application under his current role as authorized by TMC Chapter 13.05 and TMC 13.10, and specifically TMC 13.10.110. Finally, the Planning Commission could recommend for adoption the addition of supplemental criteria and requirements for consideration by the Land Use Administrator to specifically address shoreline view impacts to a substantial number of residences as an alternate means to address the “thousand variations” of Code requirements which would be highly impractical to enforce. Please advise if you have any further questions on these issues. cc: Peter Katich Donna Stenger 1 It is noted that the issue of how far the plan elements can influence the actual use regulations is now before the Shorelines Hearings Board in the case of Valero Logistics Operations et al., v. City of Tacoma and Pioneer Cay Development, LLC, SHB No. 06-001. A decision will soon be forthcoming from the Board. Page 214 CITY OF TACOMA LEGAL MEMORANDUM TO: Peter Huffman, Planning Division Manager Community and Economic Development Department FROM: Steve Victor, Assistant City Attorney DATE: February 6, 2007 SUBJECT: Legal Issues Associated with View Protection in Washington QUESTION PRESENTED: Under current Washington State law, may the City enact zoning ordinances which are designed to protect views for solely aesthetic purposes; and, more specifically, would Washington State law support a zoning ordinance that prohibits the construction of any buildings or other structures which would obstruct the view of Mount Rainer as seen from the southeast corner of Fireman’s Park? BRIEF ANSWER: Existing Washington State law does not provide a definitive answer regarding whether a city may enact zoning ordinances which are designed to protect views for solely aesthetic purposes. However, it is clear that such legislation such as zoning that prohibits the construction of any buildings or other structures which would obstruct the view of Mount Rainer as seen from the southeast corner of Fireman’s Park could be subject to challenge on one or more of three grounds. That zoning to protect views for aesthetic purposes (1) is in excess of the city’s police powers and thus unconstitutional and/or (2) is in violation of substantive or procedural due process and thus unconstitutional and/or (3) constitutes a “taking” thus obliging the city to pay just compensation for the deprivation of property rights. LEGAL ANALYSIS: 1. Police Power. The City of Tacoma (“City”) derives its authority to enact zoning regulation from the State Constitution’s grant of police power and associated statutes: Any country, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws. Washington Constitution. Art XI, sec. 11. Page 215 Peter Huffman -2- February 7, 2007 The (City) council…may…as is deemed reasonably necessary or requisite in the interest of health, safety, morals and the general welfare... regulate and restrict the location and…the height…of buildings and other structures… RCW 35.63.080. Generally speaking, an exercise of police power must be “reasonably and properly expressed . . . (and) . . . have a substantial and reasonable relation to the promotion or protection of the public health, comfort, morals, safety and general welfare, or other purposes within the police power.” 1 In the context of land use regulations governing aesthetics, such as “view protection,” the Washington courts have allowed local governments to consider view protection when making land use law; however, they have not yet ruled that aesthetics may be the sole determinative in exercising police powers: We believe the issue of whether a community can exert control over design issues based solely on accepted community aesthetic values is far from “settled” in Washington case law…Clearly, however, aesthetic standards are an appropriate component of land use governance. 2 Instead, the courts have upheld laws and/or decisions authorizing “view protection” where there is a separate statutory basis allowing view protection, such as SEPA or SMA, and where there is additional considerations beyond aesthetics, such as adverse effect on property values, blockage of sunlight and casting shadows, and/or increased traffic and noise. 3 Therefore, enacting a zoning ordinance which, as an example, protects the view of Mount Rainier from Fireman’s Park without any other public purpose considerations or statutory support may, if challenged, be determined to be in excess of the City’s police powers. 2. Due Process. In addition to limitations on the City’s police powers, enacting zoning ordinances, which are designed to protect views for aesthetic purposes, could, under existing law, be found to violate a property owner’s constitutional right to substantive and/or procedural due process. Generally speaking, “(a) land use ordinance satisfies (substantive) due 1 2 3 See McQuillen Mun. Corp. §25.18 (3rd Ed). Anderson v. Issaquah, 70 Wn. App. 64 (1993). See Department of Ecology v. Pacesetter, 89 Wn.2d 203 (1977); Polygon v. City of Seattle, 90 Wn.2d 59 (1978). Page 216 Peter Huffman -3- February 7, 2007 process standards only if it (1) is aimed at achieving a legitimate public purpose, and (2) uses means to achieve that purpose that are reasonably necessary and not unduly oppressive upon individuals.” 4 A land use ordinance will satisfy procedural due process standards if the ordinance provides specific guidelines for the application and implementation of the law, as well as sufficient procedural safeguards to prevent the arbitrary administration or enforcement thereof. 5 In the context of view protection cases, the courts have struck down land use decisions/laws where the aesthetic standards imposed on property owners have been deemed unconstitutionally vague. 6 Yet, even if a proposed view protection ordinance and administrative procedures could be drafted in a manner which avoids unconstitutional vagueness in order to satisfy procedural due process concerns, there is little guidance from the courts on whether such a law would qualify as a legitimate public purpose and whether such a law would not be deemed unduly oppressive upon the property owners who would be affected. Thus, there is a risk that said law could be in violation of substantive due process. 3. Taking. If government regulation denies a private owner all economically beneficial or productive use of the property, a taking has occurred and the owner is entitled to receive just compensation under the Fifth Amendment. 7 If the regulation does not deprive all economically beneficial use of the property, but the regulation goes beyond preventing real harm to the public and instead imposes an affirmative public benefit, or infringes on a fundamental attribute of ownership, then a taking has occurred, unless (1) the regulation substantially advances a legitimate public interest and (2) interest outweighs the adverse impacts to the landowner. 8 Thus, if a court determines that a view protection ordinance denies a property owner all economically viable use of his or her property or that it is enacted merely to impose a public benefit that is outweighed by the adverse impacts on the property owner, then the City may liable to pay just compensation to the property owner for the diminution in value. 4 See W. Main Assocs. v. Bellevue, 106 Wn.2d 47 (1986) (citations omitted). See Anderson v. Issaquah, 70 Wn. App. 64 (1993). 6 See Anderson v. Issaquah, 70 Wn. App. 64 (1993); Western Homes v. Issaquah, 1998 Wash. App. Lexis 638 (1998). 7 See Guimont v. Seattle, 77 Wn. App. 74 (1985). 8 Id. 5 Page 217 Peter Huffman -4- February 7, 2007 CONCLUSION: Washington State law does not expressly authorize the enactment of zoning ordinances which are designed to protect views for solely aesthetic purposes, nor does it expressly prohibit such zoning. However, Washington case law appears to demand more than just an aesthetic concern in order for a City to exercise its police powers, satisfy due process, and avoid a determination that a taking has occurred, in formulating zoning which protects views. Therefore, if enacted, legislation such as zoning that prohibits the construction of any buildings or other structures which would obstruct the view of Mount Rainer as seen from the southeast corner of Fireman’s Park could be subject to challenge on one or more of three grounds. That zoning to protect views for aesthetic purposes is (1) in excess of the City’s police powers and thus unconstitutional and/or (2) in violation of substantive or procedural due process and thus unconstitutional and/or (3) constitutes a “taking” thus obliging the City to pay just compensation for the deprivation of property rights. SIV\Memo\ViewProtectionMemo.doc-lad Page 218 CITY OF TACOMA MEMORANDUM TO: Tacoma Planning Commission FROM: Steve Victor, Assistant City Attorney DATE: August 30, 2007 RE: Overriding Public Interest Test in RCW 90.58.320 This memo responds to a request for a legal opinion regarding the proper meaning and application of the "overriding considerations of the public interest" standard included in RCW 90.58.320 regarding permits for structures within the shoreline zone that exceed 35 feet in height. BRIEF ANSWER: The "overriding considerations of the public interest" test in RCW 90.58.320 requires a decision maker to first identify the general public interest of the community in shoreline structures over 35 feet in height under the specific facts and circumstances of the community and property at issue. Thereafter, the decision maker must balance the identified public interest against the private interests of residents in retaining a view of the shoreline unobstructed by structures over 35 feet in height to determine whether the general public interest of the community overrides by any margin, however slight, the competing private interests. ANALYSIS: RCW 90.58.320 states: No permit shall be issued pursuant to this chapter for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served. (Emphasis Added). Page 219 Tacoma Planning Commission -2- August 30, 2007 The statue does not provide any further definition of "overriding considerations of the public interest" and does not articulate any specific test or analysis to be applied in determining whether or not the standard is met. Nor have any reported decisions of Washington courts provided such an analysis with respect to the statute at issue. In order to provide some guidance as to how to apply the standard, it is necessary to attempt to first define what is meant by the term "considerations of the public interest" and then to determine how to measure when that interest "overrides" the private interest of any substantial number of residents in an unobstructed residential view of the shoreline. The analysis provided in this opinion assumes that a determination has already been made that development of shoreline structures in excess of 35 feet will obstruct the views 1 of a substantial number of residents 2 . 1. The "public interest" It is well-settled in Washington law that courts may look to the dictionary definition to define the meaning of terms when they are not defined in a statute. 3 Webster's New College Dictionary defines "public interest" as "the well being of the general public." The Oxford Political Dictionary provides an alternative definition of "public interest" as "the aggregation of the individual interests of the persons affected by a policy or action under consideration." In general, then a reasonable definition of the "public interest" is that it is the interest of the entire community as opposed to the interest of one or a group of individual members of the community. Placed in the context of RCW 90.58.320, the statute calls for the decision maker to consider the overall community’s interest in shoreline structures over 35-feet in height against the private interests of residents in retaining a view of the shoreline that is unobstructed by structures over 35 feet in height. What may constitute a public interest in shoreline structures over 35 feet in height is necessarily specific to the particular community, property, and underlying facts at issue in each case. While administrative decisions are not binding precedent on courts of law 4 , administrative decisions of the Shorelines Hearings Board (SHB”) 1 Shoreline Hearings Board cases, while not precedent for courts, have found as few as 12 residential views to be "substantial." See Grill v. Baraka, SHB No. 02-001 (2002) and Alexander v. Port Angeles, SHB No. 02-027 and 02-028 (2002). 2 An obstruction greater than 18% of the view may be considered obstructed for purposes of RCW 90.58.320. Alexander v. Port Angeles, SHB No. 02-027 and 02-028 (2002), citing Bachelder v. Seattle, 77 Wn. App. 154, 164, 890 P.2d 25 (1995). 3 State v. Watson, 146 Wn.2d 947, 956, 51 P.3d 66 (2002). 4 See R.D. Merrill Co., v. PCHB 137 Wn.2d 118, 142, 969 P.2d 458 (1999). Page 220 Tacoma Planning Commission -3- August 30, 2007 support the conclusion that public interest must be assessed on a fact-specific, case-by-case basis and must be clearly articulated by the decision maker. 5 Factors which may be considered in determining the public interest in shoreline structures in excess of 35 feet may include, but are not limited to, prior planning of the local government for the region and property at issue, including land use plans contemplating and allowing shoreline structures in excess of 35 feet; the level of investment of public funds in the region and property at issue, with the expectation of the development of shoreline structures in excess of 35 feet; public benefits and amenities associated with the development of shoreline structures in excess of 35 feet; and the economic viability of shoreline structures in excess of 35 feet, as it relates to achieving governmental objectives for the region and property at issue, providing return for the public investment, and developing public benefits and amenities. 2. The "overriding" test. As noted earlier, there are no decisions from Washington courts addressing when the public interest in shoreline structures in excess of 35 feet overrides private interests in unobstructed views of the shoreline. The context of the SMA, however, both judicial and administrative decisions, have considered the general question of overriding interests in nonshoreline contexts. In the most general sense, Washington courts have employed a simple balancing test when they must determine which of two competing interests "overrides" the other. 6 In applying a balancing test, courts do not require that one interest greatly outweighs another, but rather seek to determine which interest is greater by any margin, however slight. 7 Administrative decisions have also applied a simple balancing test to determine when the general public interest "overrides" other statutorily protected interests. In applying RCW 90.58.320, the SHB has not established any set of rules or guidelines for determining when the public interest, in structures over 35 feet, overrides the competing interests of residents. Rather, the SHB has evaluated the nature of the public interest on a fact-specific, case-by-case basis and then has balanced that interest against the interest of residents to a view of the shoreline unobstructed by structures over 35 feet in height. 8 5 Allegra Dev. Camp v. Wright Hotels, SHB 99-08 (1999). 6 Myers v. Boeing Co., 115 Wn.2d 123,133, 794 P.2d 1272 (1990). 7 Gardner v. Loomis Armored, 128 Wn.2d 931, 949, 913 P.2d 377 (1996). 8 See Guon v. Vancouver, SHB No. 93-53 (1994), and Grill v. Baraka, SHB No. 02-001 (2002) Page 221 Tacoma Planning Commission -4- August 30, 2007 In addition, RCW 90.54.020(3) contains language very similar to that found in RCW 90.58.320. RCW 90.54 generally prohibits human actions that will lower water levels in streams and ponds except where "overriding considerations of the public interest" will be served by such actions. As with decisions of the SHB, Decisions of the Pollution Control Hearings Board (“PCHB”) have not established any general rules for applying the test but have evaluated the public interest on fact-specific, case-by-case basis and have applied a simple balancing test to determine when the public interest overrides the general statutory prohibition. 9 CONCLUSION: In applying the "overriding considerations of the public interest" test in RCW 90.58.320, a decision maker must first identify the public interest in shoreline structures over 35 feet in height under the specific facts and circumstances of the case at issue. Thereafter, the decision maker must balance the identified public interest against the private interests of residents in retaining a view of the shoreline unobstructed by structures over 35 feet in height to determine whether the general public interest of the community overrides by any margin, however slight, the private interests. 9 See Auburn School Dist. No. 408 v. State, PCHB, No.96-91 (1996); Black Diamond Assoc. LTD. v. State, PHCB 96-90 (1996), and Postema v. PCHB, 142 Wn.2d 68,90, 11 P.3d 726 (2000). Page 222 CITY OF TACOMA MEMORANDUM TO: Tacoma Planning Commission FROM: Steve Victor, Assistant City Attorney RE: Spot Zoning in Washington Law DATE: August 30, 2007 You have requested a legal opinion regarding the issue of what is considered unlawful "spot zoning" in Washington law. ANALYSIS: The Washington Supreme Court defines an illegal spot zone as: [A] zoning action by which a smaller area is singled out of a larger area or district and specially zoned for a use classification totally different from, and inconsistent with, the classification of surrounding land and not in accordance with the comprehensive plan. The main inquiry is whether the zoning action bears a substantial relationship to the general welfare of the affected community. Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 875, 947 P.2d 1208 (1997) (citing Lutz v. City of Longview, 83 Wn.2d 556, 573-74, 520 P.2d 1374 (1974). Under the reported decisions of Washington courts, in order to constitute a spot zone, a zoning action must meet four criteria: (1) the zoning decision must single out an area within a larger area or district to be specially zoned for a “use classification"; (2) the use classification at issue must be different from, and be inconsistent with, that of surrounding properties in the larger area or district; (3) the use classification at issue must not be in general accordance with the applicable comprehensive plan 1 , and (4) the use classification must bear no substantial relationship to the general welfare of the affected community. Based on the reported cases, it appears that all four criteria must be met in order for a zoning action to be deemed an unlawful "spot zone". Other Washington Supreme Court decisions have held that even if a zoning decision meets criteria one through three above, so long as there is adequate public benefit and justification, the zoning decision will be deemed valid. In Save Our Rural Env’t v. Snohomish Cy., 99 Wn.2d 262, 368, 662 P.2d 816 (1983) (citing Anderson v. 1 Exact conformity is not required because the comprehensive plan is used “as a planning guide, not a land use decision-making tool.” Schofield v. Spokane County, 96 Wn. App. 581, 587, 980 P.2d 277 (1999). Page 223 Island Cy., 81 Wn.2d 312, 325, 501 P.2d 594 (1972), the court held that a zoning decision challenged as spot zoning would be overturned only when it: [G]rants a discriminatory benefit to one or a group of owners to the detriment of their neighbors or the community at large without adequate public advantage or justification. Similarly in Save a Neighborhood Environment v. City of Seattle, 101 Wn.2d 280, 676 P.2d 1006 (1984), the Washington Supreme Court found that a rezone decision challenged as spot zoning was valid because the rezone “provides housing for a significant segment of the community” and, therefore, bore a substantial relationship to the public welfare. The court stated: When faced with a rezone challenge, our main inquiry is whether the zoning action bears a substantial relationship to the general welfare of the affected community. SANE, 101 Wn.2d at 286. CONCLUSION: Under Washington State Law a zoning decision is unlawful spot zoning only when each of four (4) criteria are met. The zoning decision must single out an area within a larger area or district to be specially zoned for a “use classification"; the use classification at issue must be different from, and be inconsistent with, that of surrounding properties in the larger area or district; the use classification at issue must not be in general accordance with the applicable comprehensive plan, and the use classification must bear no substantial relationship to the general welfare of the affected community. Even where the decision meets the first three of the four criteria, if the zoning decision bears a substantial relationship to the general welfare of the affected community it is not unlawful spot zoning. Page 224