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2011-01-05 HEX# 10-008 Exhibit FCITY OF Federal flay Page - l 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 PAGE-L-'OF ti l Page - 2 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 Page - 3 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. :.; Page - 4 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. EXPINT--L�- PAGE-L-OF-�- Page - 5 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 EXPIP.7 Page - 6 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 EX RA I'�....��--- PAGE Page - 7 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. EXF!PJT PAGE 0r� Page - 8 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. PAGE�_G�«- Page - 9 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 PAGE-��� Page - 10 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 PAGE ...........-- -n . l. Page - 11 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. EXHIPIT-L� PACE ` CF I L