2011-01-05 HEX# 10-008 Exhibit FCITY OF
Federal flay
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November 23, 2005
Brian Gary
1918 47" Avenue SW
Seattle, WA 98116
CITY HALL
33325 8th Avenue South • PO Box 9718
Federal Way, WA 98063-9718
(253) 835-7000
www.cityoffederalway.com
!.! NOV 2 9 2005.
UY of r'ederal -Nay
RE: TERRY JENSEN CONSTRUCTION LOT COVERAGE' VARIANCE REQUEST
FEDERAL WAY FILE NO. 05-103397-00-UP
Dear Applicant:
Enclosed please find the Report and Decision of the City of Federal Way Hearing Examiner
relating to the above -entitled case.
Very truly yours
HEN K. CAUSSEAUX, JR.
HEARING EXAMINER
SKC/ca
cc: All parties of record
City of Federal Way
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CITY OF FEDERAL WAY
OFFICE OF THE HEARING EXAMINER
IN THE MATTER OF:
FWHE# 05-10339-00-UP
TERRY JENSEN CONSTRUCTION
LOT COVERAGE VARIANCE REQUEST
I. SUMMARY OF APPLICATION
The applicant is requesting a zoning variance in order to exceed the 10% maximum lot
coverage requirement in the Suburban Estate (SE) zoning district.
lI. PROCEDURAL INFORMATION
Hearing Date: November 21, 2005
Decision Date: November 23, 2005
At the hearing the following presented testimony and evidence-
1 , Jim Harris, Senior Planner, City of Federal Way
2. Brian Gary, applicant, 1918 47`h Avenue SW, Seattle, WA 98116
3. Terry Jensen, owner, P.O. Box 1326, Issaquah, WA 98027
At the hearing the following exhibits were admitted as part of the official record of these
proceedings:
1. Staff Report with all attachments
2. Power Point Presentation
3. Packet of information
4. Zoning Map
5. Excerpts from King County Code
6. King County Zoning Map
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Ill. FINDINGS
The Hearing Examiner has heard testimony, admitted documentary evidence into
the record, and taken this matter under advisement.
2. The Community Development Staff Report sets forth general findings, applicable
policies and provisions in this matter and is hereby marked as Exhibit "1" with
attachments and hereby incorporated in its entirety by this reference.
3- All appropriate notices were delivered in accordance with the requirements of the
Federal Way City Code (FWCC).
4 The applicant has a possessory ownership interest in a rectangular, 47,044
square foot lot located at 4338 SW 307'' St. within the City of Federal Way. The
parcel extends between the north side of SW 307" St. to the shoreline of Puget
Sound, north and east of Dumas Bay. The shoreline area consists of a steep
bluff descending from a flat area at the top of the slope. The applicant proposes
to construct a single family residential dwelling with a 3,823 square foot footprint,
a concrete driveway and parking area consisting of 2,815 square feet, and a
concrete patio on the shoreline side of the house consisting of 187 square feet.
The total impervious coverage measures 6,825 square feet.
5. The site and parcels to the east and west along the shoreline are located in the
Suburban Estates (SE) zone classification of the Federal Way City Code
(FWCC), and parcels to the south are located within the RS-15,000 zone
classification. Section 22-596 FWCC requires a minimum lot size of five acres in
the SE classification and also limits "lot coverage" to 10% of the lot area. The
Department of Community Development Services staff has interpreted "lot
coverage" as meaning impervious surfaces to include the single family
residential dwelling. The applicant proposes 6,825 square feet of impervious
surface which calculates to 14.5% of the lot area, and therefore requests a
variance to the lot coverage requirements of the SE zone classification.
6. A zoning history of the site and area is as follows:
A. The lots were likely created either during or before the 1950s when the
area was located within unincorporated King County and the RS 9,600
zone classification which allowed minimum 9,600 square foot lot sizes.
This zoning allowed four dwelling units per acre and 55% lot coverage.
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B. In 1986 King County changed the zoning to Suburban Estates (SE) which
required a minimum lot size of 35,000 square feet and allowed 35% lot
coverage. Much, if not all, development in the area occurred during the
time the parcels were located in either the IRS 9,600 zone or the SE
classification.
C. Upon incorporation of the City, the lots were placed in the SE
classification with the same requirements as today.
7 The applicant acquired the parcel in 2004 and no improvements existed on the
lot on said date.
8. The applicant asserts that the lot size itself satisfies all requirements for a lot
coverage variance as set forth in Section 22-198 FWCC. The City agrees that
the variance will not constitute a grant of special privilege inconsistent with
limitations on other properties in the vicinity because several are improved with
impervious surfaces which meet or exceed the 10,000 square foot limitation. The
City also agrees that granting the variance will not be materially detrimental to
the public welfare or injurious to property or improvements in the vicinity.
However, the City asserts that no special circumstances exist to support the
variance, and that the special circumstances asserted by the applicant are
created by the applicant in proposing more than the authorized amount of
impervious surfaces.
9. The applicant asserts that the existence of improvements on abutting and nearby
lots exceed the 10% limitation and therefore the variance does not constitute a
special privilege. However, the applicant and the City acknowledge that
improvements on other lots likely occurred prior to the City's incorporation under
more liberal zone classifications. Said lot coverages are essentially
nonconforming. The Washington Court of Appeals in Jefferson County v. Seattle
Yacht Club, 73 Wn. 576 (1994), held that nonconforming uses cannot serve as
precedent for other uses:
...Because nonconforming uses are disfavored, and because
the public policy of this state is to restrict such uses so that they
may ultimately be phased out —we believe that nonconforming
uses are not precedent for other uses. That is, a finding of
compatibility cannot, in our view, be substantially based on the
existence of a nonconforming use in the area in question. 73
Wn. App 576 at 591.
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Likewise a variance cannot be based upon nonconforming uses or lots in an
area. See also SORE v. Snohomish County, 99 Wn. 2d 363 (1983), wherein
the Washington Supreme Court addressed the implementation of new zoning
requirements.
10. In Ling v. Board of Adjustment, 21 Wn. App 497 (1978), the applicant for a
variance argued that he was entitled to a variance based upon "a substantial
number of properties in the zoned area have been developed as multi -family
dwellings". The Court ruled:
In the absence of any assertion by Ling to the contrary, we
assume that any multi -family housing in the area predates the
zoning.
Ling points to no evidence to negate the Board's finding that:
[t]here are no special circumstances applicable to
[Ling's] property or to the intended use that have not
applied generally to other property and class of use in
the same vicinity and zone since the S-2 zoning was
adopted in 1973.
If Ling's applications for a variance were to be granted, it would
appear that the Board would have no basis for denying
subsequent variance applications by other owners. The single-
family zoning benefits enjoyed by the area would be effectively
lost. 21 Wn. App 497 at 500.
The SE zone classification has applied to the applicant's parcel and surrounding
parcels since 1990. The applicant acquired the parcel in 2004,s 14 years after
the City imposed the SE zone. In St. Clair v. Skagit County, 43 Wn. App 122
(1986), the Court of Appeals wrote:
In addition, granting variances based upon the proximity of
similar, but nonconforming uses could prove destructive to the
County's zoning objectives....
If Meamber were granted a variance because substandard
properties near hers are developed, the Board would be bereft, it
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seems, of valid grounds upon which to deny such applications in
the future....43 Wn. App 122 at 127, 128.
Thus, the presence of nonconforming development on nearby lots and an
undersized lot in an of itself does not provide the substantial circumstances
necessary to support a variance.
11 The applicant testified that he located the house at the top of a steep grade
ascending from SW 307'h to take advantage of the view afforded by the lot. The
applicant located the on -site septic drainfield and reserve area between the
house and SW 307`h Street away from the top of the bluff. A long, steep driveway
is necessary to allow the applicant to make use of a view parcel and to provide a
safe location for an on -site septic drainfield. The steep topography and the 15%
slope of the driveway requires paving, especially considering emergency vehicle
access. Therefore, the applicant has established that the lot contains special
circumstances to support the paving of the driveway. However, the applicant has
provided no testimony nor evidence supporting the need to eliminate the
grasscrete parking area or the grasscrete patio. The City considers decks as
pervious coverage and an alternative for the patio is a ground level deck. The
applicant may also explore the possibility of using pervious asphalt in place of
grasscrete.
12. Prior to obtaining a lot coverage variance the applicant must establish that the
request satisfies the criteria set forth in Section 22-198 FWCC. Findings on each
criteria are hereby made as follows:
A. The variance for a paved driveway does not constitute a grant of special
privilege inconsistent with limitations upon uses of other properties in the
vicinity. The applicant has proposed a reasonably sized, single family
residential dwelling on a view lot which meets all yard setback
requirements and setbacks from steep slopes descending to Puget
Sound. Allowing additional pervious coverage for a 15% sloped driveway
does not grant a special privilege that would be unavailable to other lots.
Such paving is required to provide reasonable access for both residents
and the Fire Department. However, impervious surfaces for a patio and
parking area are unnecessary and would therefore constitute a special
privilege.
B. The variance to allow the paving of the driveway is necessary because of
special circumstances relating to the topography of the subject property
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and to. provide it with use rights and privileges allowed to other properties
in the vicinity; namely, reasonable access. Additional special
circumstances which in and of themselves would not justify the variance
requested by the applicant include the size of the parcel in relation to the
minimum lot size requirement for new lots in the SE classification. The
applicant knew or should have known when he purchased the property of
the lot coverage restrictions of the SE zone classification which has been
in place for 14 years and applies to all substandard lots within the SE
classification. Granting a variance based solely on lot size considerations
could very well serve as precedent for variances for all other substandard
lots in the SE classification and thus prove destructive to the City's zoning
code.
C. Granting the variance will not be materially detrimental to the public
welfare or injurious to property or improvements in the vicinity. Paving the
driveway may benefit the public welfare by allowing better emergency
vehicle access to the applicant's house in the event of a fire or other
emergency.
D. Special circumstances of the subject property as related to paving of the
driveway are not the result of the actions of the owner for the reasons set
forth above.
13. Prior to obtaining a variance the applicant must establish that the request
satisfies the criteria set forth in Section 22-445(c) FWCC. Findings on each
criteria are hereby made as follows:
A. The Federal Way Comprehensive Plan does not address individual lots or
variances. However, Policy HG1 encourages the preservation and
protection of the quality of existing residential neighborhoods and that
new development be of a scale and design compatible therewith. The
applicant's exclusive dwelling will raise the quality of the neighborhood,
and the size is not out of scale with development along shorelines., The
additional impervious coverage will not adversely affect the
comprehensive plan unless it serves as a precedent for variances for
other substandard lots within the SE classification.
B. The variance is consistent with all other applicable provisions of the
FWCC.
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C. The variance is consistent with the public health, safety, and welfare,
especially considering emergency vehicle access to the residence.
However, paving of the parking area and patio has no relationship to the
public health, safety, and welfare.
D. The streets and utilities in the area of the parcel are adequate to serve the
anticipated demand.
E. The proposed access to the parcel is at the optimal location for access.
IV. CONCLUSIONS
From the foregoing findings the Hearing Examiner makes the following conclusions:
The Hearing Examiner has jurisdiction to consider and decide the issues presented
by this request.
2. The applicant has established that special circumstances apply to the lot to justify
paving of the driveway with concrete from the intersection of SW 307' to the parking
area adjacent to the garage and residence. However, the applicant has not shown
special circumstances justifying the concrete paving of the parking area or ground
level patio on the north side of the residence. No special circumstances exists to
support such variance.
3. The applicant has shown that the request for a variance to pave the driveway
satisfies all criteria set forth in Sections 22-198 and 22-445(c) FWCC. Therefore, a
variance to the requirements of the 10% coverage limitation of the SE classification
should be granted to allow paving of the driveway. The request for a variance to
allow paving of the parking area and patio should be denied.
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DECISION.
The request for a variance to the 10% lot coverage limitations of the SE zone classification
is hereby granted to allow installation of a concrete driveway between the north side of SW
307' Street to the parking area of the home located adjacent to the garage and residence
at a site located at 4338 SW 3071h Street. The request for a variance to allow installation
of a concrete parking area and concrete patio is hereby denied.
DATED THIS 23`d DAY OF
STK�WN K.t AUbSEA
Hearing Examiner
TRANSMITTED THIS 23`d DAY OF November, 2005, to the following:
APPLICANT: Brian Gary
1918 47" Avenue SW
Seattle, WA 98116
OWNER: Terry Jensen Construction
P.O. Box 1326
Issaquah, WA 98027
OTHERS:
Dr. Michael Veiling
30625 43`d Avenue SW
Federal Way, WA 98023
John and Sandy Cassinerio
4325 SW 307'h Street
Federal Way, WA 98023
Robert H. Spaulding
4316 SW 3071h Street
Federal Way, WA 98023
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Carl Jonasson
4346 SW 307th Street
Federal Way, WA 98023
Neil Turney
P.O. Box 1302
Tacoma, WA 98401
City. of Federal Way
c/o Laura Hathaway
P.O. Box 9718
Federal Way, WA 98063-9718
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PROCESS IV
Rights to Appeal
Decisions of the hearing Examiner may be appealed by any person who is to receive a
copy of that decision under FWCC Section 22-443.
The appeal, in the form of a letter of appeal, must be delivered to the Department of
Community Development Services within fourteen (14) calendar days after the issuance
of the Hearing Examiner's decision. The letter of appeal must contain:
2. A statement identifying the decision being appealed, along with a copy of
the decision;
3. A statement of the alleged errors in the Hearing Examiner's decision,
including specific factual finds and conclusions of the Hearing Examiner
disputed by the person filing the appeal; and
4. The appellant's name, address, telephone number and fax number, and
any other information to facilitate communications with the appellant.
The person filing the appeal shall include, with the letter of appeal, the fee established
by the City of the costs of preparing a written transcript of the hearing (or in the
alternative, the appellant may prepare the transcript at his or her sole costs from tapes
of the hearing provided by the City).The appeal will not be accepted unless it is
accompanied by the required fee and cost (or agreement of the appellant to prepare the
transcript).
Appeals from the decision of the Hearing Examiner will be heard by The City Council.
The decision of City Council is the final decision of the City.
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