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17000 TALBOT RD.pdfBEFORE THE EDMONDS CITY COUNCII. On the Application of Chester ) Johnson for a short subdivision ) No. S-95-129 and AP-96-25 and an appeal from a denial ) thereof. ) Chester Johnson has applied for approval of a three -lot subdivision. The subject site of approximately 41,543 square feet is located at 17000 Talbot Road, City of Edmonds, Washington, and is currently zoned single-family (RS-12). This matter was originally heard by the City Council on April 16, 1996. At that hearing, the Council announced preliminary approval of the subdivision. The matter was referred back to the staff and applicant to resolve certain issues relating to site conditions. The matter was again heard by the City Council on October 1, 1996, for the purpose of. developing a record regarding the modification of required street setbacks on the north side of the applicant's property. Eased upon the evidence presented at the hearings, the City Council hereby grants preliminary approval subject to the conditions set forth or incorporated herein and modification of the street setback requirements. FINDINGS 1. As a part of its findings of fact, the City Council hereby adopts the factual statements contained in the Planning Division's final review of proposed subdivision dated November 1, 1995, File No. S-95-129, Findings numbered I, A, (1)-(3); H, A-N; and IV, Exhibits A-C. 2. City Council further finds that the adoption of the Growth Management Act, the Snohomish County County -wide Planning Policies and the City's comprehensive plan amendments have substantially changed the background to purpose of and ultimately the interpretation of the City's nonconforming use ordinances when applied to a subdivision containing a nonconforming use. The need to encourage in -fill development, achieve greater housing density, and preserve existing housing stock all encourage approval of the proposal. 3. There are no significant negative impacts to the surrounding neighborhood attributable to the continuation of the nonconforming use nor from approval of the development as proposed. 4. The City Council adopts the findings and conclusions regarding the modification proposal as described in the staff report presented to the Council at the meeting of October 1, 1996, particularly the analysis set forth in the narrative as Section Nos. (1) and (2). CONCIMIONS City Council finds that the adoption of a new comprehensive plan by the City in compliance with the Growth Management Act and the provisions of the Snohomish County County -wide Planning Policies require a different interpretation than applied in the past regarding the City's nonconforming lot and structure provisions, particularly when applied to subdivision approvals. One purpose and planning goal under the new comprehensive plan is to encourage in -fill development. Any ambiguity in the code should be interpreted to provide minimum interference with the common law property rights of an owner of land. The City Council finds and concludes that a residential structure which complies with the City's code as a legal nonconforming use is in compliance with the comprehensive plan and the City zoning code. Development proposals for residential property which include a legal nonconforming structure and which do not increase the degree of nonconformity of a structure and/or would not cause the structure to lose its legal nonconforming status may be deemed in compliance with the provisions of the zoning code so long as the benefits from approval as defined in accordance with comprehensive plan policies outweigh the detrimental impacts, if any, from development. DECISION The short subdivision described in file No. 5-95-129 is approved subject to the following conditions: 1. The application is subject to the applicable requirements contained in the Edmonds Community Development Code. It shall be the responsibility of the applicant to assure compliance with the various provisions contained in these ordinances as they now exist or shall hereafter be amended, subject only to vested rights of the applicant. 2. Engineering divisions listed as "required with the building permit" pursuant to Exhibit 4 to the staff report of October 1, 1996, shall be completed prior to or as part of the building permit application. 3. Prior to recording, the applicant shall complete the following requirements: a. Engineering divisions conditions listed as "required prior to recording" pursuant to Exhibit 4 to the staff report of October 1, 1996, shall be completed prior to the recording of the proposed subdivision, provided, however, that line 2 of such conditions is hereby amended to require a 20-foot wide access easement rather than the stated 40-foot wide access easement in accordance with the modification granted. -2- V=1442%MU M.1so.1zt Findings (G) APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING of Fact HEARINGS HELD ON APRIL 16, 1996, AND OCTOBER 1, 1996, ON THE C.Johnson aP-9�-zs APPLICATION OF CHESTER JOHNSON FOR A SHORT SUBDMSION AND AN APPEAL FROM A DENIAL THEREOF. (Property Location: 17000 Talbot Road 1 File Nos. S-95-129 and A New city (H) REPORT ON BIDS FOR REPAIR OF THE NEW CITY HALL ROOF AND AWARD OF eau hoof CONTRACT TO EDMONDS ROOFING ($11,257.13, including sales tax) Pwoimse 1 (1) AUTHORIZATION TO PURCHASE FOUR (4) AIR FLOW METERS FROM MURRELL- AirMow HICKEY & ASSOCIATES ($8,613) Meters Medic 7 (J) CONSIDERATION OF AN AMENDMENT TO THE INTERLOCAL AGREEMENT FOR Agreement MEDIC 7 swearing- 3. SWEARING -IN OF CHIEF OF POLICE CF ROBIN HICKOK AND 30,TE RECEPTION in of chief of Police Mayor Fahey invited Robin Hickok, his wife, Susan, daughter, Jennifer, and son, Mark to join her at the podium. Mayor Fahey commented the City had accepted the resignation of its, Police Chief and was swearing in a new Police Chief in less than one month. She explained during the week in which she made her decision to recommend Robin Hickok as the next Police Chief, she carefully considered the matter including talking with citizens and neighboring communities as well as going on a ride -along with the night squad. Mr. Hickok is highly regarded both as a professional and an individual. The community appreciates his dedication to the City, its citizens and to his family. Mayor Fahey read the Administrative Policy - Appointment of Police Chief, thereby appointing Robin Hickok to the position of Police Chief of the City of Edmonds, effective October 23, 1996. Mayor Fahey swore in Chief Hickok, presented him with his badge and presented his wife with a corsage in appreciation of her support. Police Chief Hickok recognized family and friends in the audience and thanked everyone for coming. He stated he was not concerned about doing a good job as he had the best force behind him. Mayor Fahey recessed the meeting for a reception in Chief Hickok's honor. Library 4. ANNUAL REPORT FROM THE LIBRARY BOARD Hoard Report Peggy Olson, Chair of the Edmonds Library Board, introduced Evie Wilson-Lingbloom, Edmonds Librarian. Ms. Wilson-Lingbloom reported the Edmonds Library won the Golden Bootie Award from SEATTLE'S CHILD for being "The Best Library for Kids". She said the library will soon have two terminals with Internet access available to patrons. She recalled a recent incident where a patron was only able to obtain information he desired via the World Wide Web. The information was located, with the assistance of the Lynnwood Library, and soon will be available at the Edmonds Library. Councilmember Petruzzi suggested the Library Board consider the use of a "mystery shopper" to determine patrons' perception of the service provided by the library. Ms. Wilson-Lingbloom said she would refer this suggestion to her supervisor. Mayor Fahey thanked the members of the Library Board for their service on the board and their efforts to improve the library. She also recognized the Friends of the Library for their efforts. She encouraged the public to attend the Friends of the Library book sale on Saturday, October 26 from 9:00 a.m. to 4:00 p.m. at the Anderson Center. City Council Approved Minutes October 22,1996 Page 2 Approve Minutes Approve claim warrants Claim for Aamages Interim Water Group Minute - Taking services EDMONDS CITY COUNCIL APPROVED MINUTES The Edmonds City Council Special Work Meeting was called to order at 7:01 p.m. by Mayor Barbara Fahey in the Library Plaza Room, 650 Main Street, followed by the flag salute. E N C'r><V UENUTAL, rxrbL+ IN-r 11"AN r rtcr atr ►� >t Barbara Fahey, Mayor Michael Springer, Fire Chief Dave*Earling, Council President Robin Hickok, Police Chief Tom Petruzzi, Councilmember Paul Mar, Community Services Director John Nordquist, Councilmember Arvilla Ohlde, Parks and Recreation Manager Roger L. Myers, Councilmember Art Housler, Administrative Services Director Jim White, Councilmember Rob Chave, Planning Manager Dick Van Hollebeke, Councilmember Sandy Chase, City Clerk Gary Haakenson, Councilmember Jeannie Dines, Recorder 1. APPROVAL OF AGENDA COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER WHITE, FOR APPROVAL OF THE AGENDA AS PRESENTED. MOTION CARRIED. 2. CONSENT AGENDA ITEMS COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER MYERS, FOR APPROVAL OF THE CONSENT AGENDA. MOTION CARRIED. The agenda items passed are as follows: (A) ROLL CALL (B) APPROVAL OF MINUTES OF OCTOBER 15,1996 (C) APPROVAL OF CLAIM WARRANTS #13077 THRU #13175 FOR THE WEEK OF OCTOBER 14, 1996, IN THE AMOUNT OF $187,203.77; AND APPROVAL OF PAYROLL WARRANTS #13031 THRU #13244 FOR THE PERIOD OCTOBER 1, THRU OCTOBER 15,1996, IN THE AMOUNT OF $426,276.84 (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM WENDY SHANE ($30.00) (E) AUTHORIZATION FOR MAYOR TO SIGN INTERLOCAL AGREEMENT FOR PARTICIPATION IN THE INTERIM WATER GROUP (F) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES AGREEMENTS WITH JEANNIE DINES AND STEPHANIE GOINGS TO PROVIDE CITY COUNCIL MINUTE -TAKING SERVICES City Council Approved Minutes October 22,1996 Page i , Item #: 1 c,St pyytifr4 tS i JDlYiVDCITY COUNCIL of t�SN 11-.i ±ill t �A1 Agenda Memo Originator: Planning Division For Action: X For Information: Subject: APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING HEARINGS HELD ON APRIL 16,1996, AND OCTOBER 1,1996, ON THE APPLICATION OF CHESTER JOHNSON FOR A SHORT SUBDIVISION AN APPEAL FROM A DENIAL THEREOF (PROPERTY LOCATION: 17000 TALBOT ROAD I FILE NOS. S-95-129 AND AP-96-25) Clearances: Departmentllnitials Agenda Time: Consent Admin Svcs/Finance — Community Svcs City Attorney Engineering Agenda Date: October 22,1996 City Clerk Parks & Rec Court Planning ' Exhibits Attached: Personnel Public Works 1. City Council minutes of 10/1/96 Fire Treatment Plant Police City Council 2. Findings of Fact & Conclusions of Law Mayor Reviewed by Council Finance Committee: Community services Public Safety Approved far Consent Agenda: Recommend Review by Full Council: Expenditure Amount Appropriation Required: $ 0 Budgeted: $ 0 Required: $ 0 Funding Source: N/A Previous Council Action: The City Council originally heard this matter on April 16, 1996 and granted preliminary approval. The matter was again heard by the City Council on October 1, 1996, with approval granted for the subdivision and modification to street setback subject to the conditions specified in Exhibit 2. Narrative: On April 16, 1996, the City Council held a public hearing regarding an appeal filed by Gary Huff on behalf of Chester Johnson of a Hearing Examiner decision. The original Hearing Examiner decision was to deny an appeal (File No. AP-95-189) of the Planning Division's denial of a proposed 3-lot short. subdivision (File No. S-95-129) for the property located at 17000 Talbot Rd. expand with his own ideas. Councilmember Petruzzi said he has never heard a negative comment about Chief Hickok. Whenever he has had occasion to call Chief Hickok, he has been very patient and more than just informative --"He is an excellent man and the citizens of Edmonds will be well served by him." Councilmember Myers congratulated Chief Hickok, stating he is confident he will do a good job. He also complimented Mayor Fahey for moving on this quickly to allow continuity in the department and show the citizens of Edmonds a good 'candidate was on the staff and an expensive national search was unnecessary. Councilmember White pointed out the Police Officer's Association strongly endorses Chief Hickok as their candidate and lent their full support to his nomination and appointment. Councihriember White commented during his service as part-time judge, Chief Hickok has always had the highest regard of the judiciaries and other officers. Councilmember Van Hollebeke added his congratulations, noting he had an opportunity to work with Chief Hickok on the Community Oriented Policing Program and it has been a pleasure to get to know him. Councilmember Nordquist congratulated Chief Hickok and commented he is the sixth Police Chief in that position during his tenure on the Council —each has had their own strengths. He pointed out Chief Hickok has a great deal of history and has always been an asset to the department. Council•President Earling and Councilmember Haakenson also congratulated Mr. Hickok. Mayor Fahey proposed to have Mr. Hickok's swearing in on October 22 (third Tuesday). She pointed out Chief Miller's resignation would be effective November 1 and he has committed to working with Chief Hickok on a smooth transition. 6. HEARING._— CONTINUATI0N OF THE R M ,iC HEARING PROCESS FOR j SURD SION Heating APPROVAL OF THE SNORT UEDB SION TENTA y THE CITY Me Nos. COUNCIL ON APPEA ON APR 16___ 1996_ THE Ct1rtT4tyaTTi`yi HEARMG VAL.L CONSIED P-96- 5 A F. L�'ST TO MODIFY F LnR ,�-96.23 �'` 4� _-_l�D STREEI SE IBACK ON 3t3E NORM SIDE OF TIC APPLICANT'S PROPERTY. ropes Imflon: 17000 Talbot Road;Applicant: Chester Johnson: File Nos. S-95-129 and AP-96-254 Mayor Fahey asked if any Councilmember wished to make a disclosure. Council President Earling said he lives about 314 mile from the applicant's property. Councilmember Haakenson said he lives even closer and is well acquainted with the applicant. Councilmember Myers said he is very good friends with the applicant's son, Dave and his wife, Inga. There were no challenges to participation by any Councilmember. Associate Planner John Bissell explained this item was reviewed by the Council on April 16 as an appeal of the Hearing Examiner's decision. The Council upheld the appeal and approved the subdivision. The applicant and staff were to return to the Council to consider conditions of approval. One of the intended conditions was that the applicant obtain a variance for reduction of the setback on the north side of the property. The applicant submitted a declaration for a modification of a subdivision to reduce the setback, staff has reviewed the declaration and recommends approval of the modification and approval of the subdivision with the conditions shown in the Councils packet. City Council A Mb Exhibit 1tber,1996O Page 5 Gary Huff, representing'the Johnson family, concurred with the staff report and their recommendation. He thanked staff and Mr. Snyder, City Attorney, for the efforts to solve a number of problems: Mayor Fahey opened the public participation portion of the hearing. As there were no members of the public present to address the Council, Mayor Fahey closed the public participation portion of the hearing and remanded the matter to Council. COUNCiLMEMEER MYERS MOVED, SECONDED BY COUNCMMEMBER HAAKENSON, TO APPROVE THE RECOMMENDED ACTION. Councihnember Petruzzi commented the proposal by staff and the request by the applicant is good, common sense and makes this property work for the applicant. MOTION CARRIED. Hcackctt'a 9. APPROVAL OF BRA TT'S LANDING PARK SO= DESIGN AND ALiTii'=ZAT1.ON TO BEGIN CONSTRU-CMON DRAWINGS South Councilmember Petruzzi commended Ms. Ohlde for her perseverance noting this began with Council action in July 1992. Parks and Recreation Manager Arvilla Ohlde, described the acquisition of the property with 'the assistance of Interagency Committee for Outdoor Recreation and Conservation Futures funds for passive recreational use with funding (which required matching funds) from Interagency Committee for Outdoor Recreation for development. She explained the one acre upland area will be developed for passive use and one acre of tidelands will be left in a natural state and complimented with Beach Ranger and marine education programs in the City. She noted one of the challenges in designing the park was the intense action on the sides of the park. John Barker, Landscape Architect, Galloway + Barker, 1514 NW 52nd. Seattle, explained Brackett`s Landing South will offer open space, wildlife habitat, view protection, passive recreation, picnic areas, seating, bus shelter, a public plaza coordinated with the ferry terminal, and streetscape consistent with Edmonds downtown and waterfront. He described the series of "dunes" that will roll up from the beach into an open lawn with seating near the ferry terminal and the bus shelter and micro-chmates of open lawn in the center of the park with native plantings surrounding the park. He displayed the view of the ferry terminal from the park, noting they worked with the Ferry System to determine a compatible plan for both park and ferry users. He displayed a sketch showing the historical street lights, hanging flower baskets, rock walls to be used for benches to tie the ferry terminal and the park together, and the picnic shelter (inspired in part by the wave structure in a park in Edmonds' Sister City, Hekinan, as well as the dune -like form of the site plan). Wave/ripple pavers (inspired by the site's drainage) will be used on the loop pathway through the park. Drainage from the roof of the ferry terminal and the park will be utilized to create seasonal stream -like corridors through the park and onto the beach. This biofltration will clean the site water as well as provide wildlife habitat and irrigation for some plantings. Interpretive signs, unique to this site, will celebrate the natural and cultural history of Brackett's Landing South and Edmonds. Councihnember Myers asked the pulpos6 of the cutout on the northeast comer. Mr. Barker explained as a result of meetings with Community Transit, the Ferry System, the City's Transportation Engineer and City Council Approved Nantes October 1,1996 Page 6 BEFORE THE EDMONDS CITY COUNCIL On the Application of Chester � Johnson for a sEhort, *subdivision > No. s-99-1.39 and AP-:96-25 and an appeal from a denial a thereof. Chester sohnson has applied' for approval of a three -•lot subdivision. The subject site of approximately 41.1643.square feet is located at 17000 Talbot Road, City of Edmonds, Washington, and is =Vrently Zoned single-family (RS-12). This tatter was originally heard by the City Council on April 1.6, 1996. At that hearing, the. Council announced Preliminary approval, of the. oubdivioian. The matter was referred back to the stafZ wind applicant to resolve: certain issues relating to siteconditions. The matter was again heard by the City Council on October 1, 1996, far the purpose of developing a record regarding the modification of required street setbacks On the north aide of the•applicant,s property. Based upon the evidence presented at the hearings,,,the City Council hereby grants preliminary approval subject to the conditions set forth or incorporated herein and modification of the street setback requirements, riming 1. As a part, of its findings of fact, the City Council hereby adopts the factual Statements Contained in the planning =' uss16425b.3Y/6o0Db.�sa.�27 _ hi bit Division's final review of Proposed subdivision dated Novenber 1 19961 MG No. 5-98-129, Findings numbered I, A, (1)-(3)T 11, A-N, and IV, Exhibits A-C. 2. City Council further finds that they adoption of the Growth Management Act, the Snohomish County County -wide Planning Policies and the City's comprehensive plan amendments have substantially changed the background to purpose of and ultimately the interpretation of the City's nonconforming use ordinances when applied to a subdivision containing a nonconforming use. The need to encourage in -fill development, achieve greater housing density, and preserve existing housing stock all encourage approval of the proposal. 3. There are no significant negatives impacto to then surrounding neighborhood' attributable to the continuation of oe nonconforming use nor from approval of the development as proposed. 4. The City Council adopts the findings and conclusions regarding the modification proposal as described in the staff report presented to the council at Me meeting of October 1, 1996, particularly the analysis set forth in the narrative as section Nos. (1) and (2). CONC�,�TSItJt�� City Council finds that the adoption of a new comprehensive Plan by the City in compliance with the Growth Manageament Act and the provisions of the Snohomish County County -widen. Planning Policies require a different interpretation than applied in the past regarding the City's nonconforming lot and structure W$8144254.3X/FOW6. tso. e2r - a - provisions, particularly when applied to subdivision approvals. one purpose and planning goal under the new comprehensive plan is to encourage in -fill development. Any ambiguity in the code should be interpreted tb provide minimum interference with the common law property rights of an owner of land. The City Council finds and concludes that a residential structure which complies with the City's code as a legal nonconforming use is in compliance with the comprehensive plan and the City zoning code. Development proposals for residential property which include a -legal nonconforming structure and which do not increase the degree of nonconformity of a structure and/or would not cause the structure to lose its legal nonconforming status may be deemed in compliance with the ,provisions of the zoning code so long as the benefits.from approval as defined in accordance with comprehensive plan policies outwek4h the detrimental impacts, if any; from development. DEc—,�slc�N ' The short subdivision described in .file No. 8-95-129 is approved subject to the following conditions: I. • The application is subject to the applicable requirements contained in the'Edmands community development code. It shall be the responsibility of the applicant to assure compliance with the various provisions contained in these ordinances as they now exist or shall hereafter.be amended, subject only to vested rights of the applicant. a. Engineering divisions listed as Uresquir+ed with the building permit" pursuant to Exhibit 4 to the stef f ., .report of ..3- ass+s4asa.3xwroa06.150. 927 oobobtr -11 3.996, shall be completed) prior to or as part or 'Cite building permit application. a* prior to recording, the applicant shall complete the following requirements: a. Engineering divisions conditions listed as "required prior to recording" pursuant to Exhibit 4 to the staff report of October 1, 1996'. shall be completed prior no the recording of the proposed subdivision, provided, however, that line'2 of such conditions is hereby amended to require a 20-foot wide access easement rather than the stated 40-foot wide access easement in accordance with the modification granted. Similarly, line 3 thereof shall be amended to require 16-foot pavement width rather than 20-foot pavement width. b. The proposed lot line location batwaan lots 2 and 0 shall be altered and/or structures removed as nooeesary to comply with setback requirements for structures on proposed lot 3. This change shall not reduce the lot size of any propoctad.lot below 13,.000 square feet in area. Dated this �_ day of FACB=Lls wmmxr2m ORBZT Date Tranemitted 10/14196 Atteas6" Fax Nwnber Told It m (4W1CaM Jobn l)iasell, Associab0 Planner 771-0221 t S City of Edmonds oAaind! [ i Forwauud [ 1 Not Varwarded Semdw ft Nwnber Ph= Nmnb PhD A. Olbmchufmaz (205) 447-021S (206) 447 7000 OMW AS4oundog Nos 0006.150.127 omw Fik No.: Ut ANtlicatim of Chaster Johimn for a Short Subdivision NOTZS: Atwhed is 11na1 ve eimtt of the above-mfommed KU141E16.2X00008.150000. 10/14/90 MON 16:'00 FAX'206 447 0215 OMW"SEATME IMOOY'' - i f BEFORE THE EDXONDS CITY COUNCIL On the Application of Chaster ) i! Johnson for a short subdivision i No. S-95-129 and AP-96-25 and an appeal from a denial thereof. Chester Johnson has appliad for approval of a threa-lot subdivision. The subject site of approximately 41,543 square feet is located at 170O0 Talbot Road, city of Edmonds, Washington, and is currently zoned single-family (RS-12). This matter was originally heard by the City Council on April. 1.6,"1996. At that hearing, the Council announced preliminary approval of the subdivision. The: matter was referred back to the staff and applicant to resolve certain issues relating to site conditions. The matter Wag again heard by the City Council on October 1, 1996, for the purpose of developing a record regarding the modification of required street setbacks on the north side of the applicant's i property. Based upon the evidence presented at the hearings, the City Council hereby grants preliminary approval subject to the conditions set forth or incorporated herein and modification of the street setback requirements. FSNbzNiss 1. As a part of its findings of fact, the City Council hereby adopts the factual statements contained in the planning YSSI"254.3XJF0006.950.127 10/14/95 NON 15:00 FAX Z06 447 0215 OXW SEATTLE IM003 Division's final review of proposed subdivision dated November 1, 1995, File No. S-95-129, Findings numbered 1, A, (1)-(3)1 II, A-N; and iv, Exhibits A-C. 2. City Council further finds that the adoption of the Growth Management Act, the Snohomish County County -wide Planning Policies and the City's comprehensive plan amendments have substantially changed the background to purpose of and ultimately the interpretation of the City's nonconforming use ordinances when applied to a subdivision containing a nonconforming use. The need to encourage in -fill development, achieve greater housing density, and preserve Ami,sting housing stock all encourage approval of the proposal. 2. There are no significant negative impacts to the surrounding neighborhood attributable to the continuation of the nonconforming use nor from approval of the development as proposed. 4. The City Council adopts the findings and conclusions regarding the modification proposal as described In the staff report presented to the council at raze meeting of October 1, 1996, particularly the analysis set forth in the narrative as Section Nos. (1) and (2). CONCLUSIONS City Council finds that the adoption of a new comprehensive plan by the City in compliance with the Growth Management Act and the provisions of the Snohomish County County -wide Planning Policies require a different interpretation than applied in the past regarding the City's nonconforming lot and structure 2 - NSS144254.3X/F000b.150.127 10/14/90 NON 18:01 FAX 206 (4`4�7 0210 OMW SEA'TTLE IM004 \ C! provisions, particularly when applied to subdivision approvals. one purpose and planning goal under the new comprehensive plan in to encourage in -fill development. Any ambiguity in the cods should be interpreted to provide minimum interference with the common law property rights of an owner of land. The City Council finds and concludes that a residential structure which complies with the City's code as a legal nonconforming use is in compliance with the comprehensive plan and the City zoning code. Development proposals for residential property which include a legal nonconforming structure and which do not increase the degree of nonconformity of a structure and/or would not cause the structure to lose its legal nonconforming status may be deemed in compliance with the provisions of the zoning code so long as the benefits from approval as defined in accordance with comprehensive plan policies outweigh the detrimental impacts, it any, from development. DECISION The short subdivision described in file No. S-95-129 is approved subject to the following conditions: 1. The application is subject to the applicable requirements contained in the Edmonds community Development code. it shall be the responsibility of the applicant to assure compliance with the various provisions contained in these ordinances as they now exist or shell hereafter be amended, subject only to vested rights of the applicant. 2. Engineering divisions listed as "required with the building permit" pursuant to Exhibit 4 to the staff report of 3 - WS5144254.3X/F000b.150.127 10/14/00 MON 15:01 FAX 200 447 0215 AMW SEATTiE 0006 October 11 1996, shall be completed prior to or as part or the building permit application. 3. Prior to recording, the applicant shall complete the following requirements; a. Engineering divisions conditions listed as "required prior to recording" pursuant to Exhibit 4 to the staff report of October 1, 1996, shall be completed prior to the recording of the proposed subdivision, provided, however, that line 2 of such conditions is hereby amended to require a 20-foot wide access easement rather than the stated 40-foot wide access easement in accordance with the modification granted. Similarly, line 3 thereof shall be amended to require is -foot pavement width rather than 20-foot pavement width.. b. The proposed lot line location between lots 2 and 3 shall be altered and/or structures removed as necessary to comply with setback requirements for structures on proposed lot 3. This change shall not reduce the lot size of any proposed lot below 12,000 square feet in area. Dated this day of , 1996. Barbara S. Fahey, Mayor ATTEST; sandra S. Chase. City Clerk expand with his own ideas. Councilmember Petruzzi said he has never heard a negative comment about Chief Hickok. Whenever he has had occasion to call Chief Hickok, he has been very patient and more than just informative —"He is an excellent man and the citizens of Edmonds will be well served by him." Councilmember Myers congratulated Chief Hickok, stating he is confident he will do a good job. He also complimented Mayor Fahey for moving on this quickly to allow continuity in the department and show the citizens of Edmonds a good candidate was on the staff and an expensive national search was unnecessary. Councilmember White pointed out the Police Officer's Association strongly endorses Chief Hickok as their candidate and lent their full support to his nomination and appointment. Councilmember White commented during his service as part-time judge, Chief Hickok has always had the highest regard of the judiciaries and other officers. Councilmember Van Hollebeke added his congratulations, noting he had an opportunity to work with Chief Hickok on the Community Oriented Policing Program and it has been a pleasure to get to know him. Councilmember Nordquist congratulated Chief Hickok and commented he is the sixth Police Chief in that position during his tenure on the Council —each has had their own strengths. He pointed out Chief Hickok has a great deal of history and has always been an asset to the department. Council President Earling and Councilmember Haakenson also congratulated Mr. Hickok. Mayor Fahey proposed to have Mr. Hickoles swearing in on October 22 (third Tuesday). She pointed out Chief Millees resignation would be effective November 1 and he has committed to working with Chief Hickok on a smooth transition. 6. 13 ARRING CONTINUATION OF THE PUBLIC HEA.R.R{O PROCESS FOR SUBDIVISION C-1 (0husoo) APPROVAL OFF SHORT $YTI3D][6�ISION T]ENTAMMLY APPROVED BY THE CITY C.Joh Fite Nos. COUNCIL ON APPEAL ON APRII 16 1996 THEEr CONTINLTt♦D HEARING WILL CONSIDER AP-9do A 6-2 REQUEST '� T TO MDIFY TH ,REQM D S FFT filETBACi£ ON THE NORTU SIDE OF 6 THE APPLICANT'S PROPERTY (Rope tv Location 17000 Talbot Ronde Applicant Chester Johnson: File Nos, S-95-129 and AP-96-251 Mayor Fahey asked if any Councilmember wished to make a disclosure. Council President Earling said he lives about 3I4 mile from the applicant's property. Councilmember Haakenson said he lives even closer and is well acquainted with the applicant. Councilmember Myers said he is very good friends with the applicant's son, Dave and his wife, Inga. There were no challenges to participation by any Councilmember. Associate Planner John Bissell explained this item was reviewed by the Council on April 16 as an appeal' of the Hearing Examiner's decision. The Council upheld the appeal and approved the subdivision. The applicant and staff were to return to the Council to consider conditions of approval. One of the intended conditions was that the applicant obtain a variance for reduction of the setback on the north side of the property. The applicant submitted a declaration for a modification of a subdivision to reduce the setback; staff has reviewed the declaration and recommends approval of the modification and approval of the subdivision with the conditions shown in the Council's packet. City Council Approved Minutes October 1,1996 Page 5 Gary Huff, representing the Johnson family, concurred with the staff report and their recommendation. He thanked staff and Mr. Snyder, City Attorney, for the efforts to solve a number of problems. Mayor Fahey opened the public participation portion of the hearing. As there were no members of the public present to address the Council, Mayor Fahey closed the public participation portion of the hearing and remanded the matter to Council. COUNCILMEMBER MYERS MOVED, SECONDED BY COUNCILMEMBER HAAKENSON, TO APPROVE THE RECOMMENDED ACTION. Councilmember Petruzzi commented the proposal by staff and the request by the applicant is good, common sense and makes this property work for the applicant. MOTION CARRIED. 7. APPROVAL OF BRACKETT'S LANDING PARK SOUTH DESIGN AND AI�ORI .ATION TO Izading p� BEGIN CONSTRUCTION DRAWINGS South Councilmember Petruzzi commended Ms. Ohlde for her perseverance noting this began with Council action in July 1992. Parks and Recreation Manager Arvilla Ohide, described the acquisition of the property with'• the assistance of Interagency Committee for Outdoor Recreation and Conservation Futures funds for passive recreational use with funding (which required matching funds) from Interagency Committee for Outdoor Recreation for development. She explained the one acre upland area will be developed for passive use and one acre of tidelands will be left in a natural state and complimented with Beach Ranger and marine education programs in the City. She noted one of the challenges in designing the park was the intense action on the sides of the park. John Barker, Landscape Architect, Galloway + Barker, 1514 NW 52nd. Seattle, explained Bmckett's Landing South will offer open space, wildlife habitat, view protection, passive recreation, picnic areas, seating, bus shelter, a public plaza coordinated with the ferry terminal, and streetscape consistent with Edmonds downtown and waterfront. He described the series of "dunes" that will roll up from the beach into an open lawn with seating near the ferry terminal and the bus shelter and micro -climates of open lawn in the center of the park with native plantings surrounding the park. He displayed the view of the ferry terminal from the park, noting they worked with the Ferry System to determine a compatible plan for both park and ferry users. He displayed a sketch showing the historical street lights, hanging flower baskets, rock walls to be used for benches to tie the ferry terminal and the park together, and the picnic shelter (inspired in part by the wave structure in a park in Edmonds' Sister City, Hekinan, as well as the dune -like form of the site plan). Wave/ripple pavers (inspired by the site's drainage) will be used on the loop pathway through the park. Drainage from the roof of the ferry terminal and the park will be utilized to create seasonal stream -like corridors through the park and onto the beach. This biofiltration will clean the site water as well as provide wildlife habitat and irrigation for some plantings. Interpretive signs, unique to this site, will celebrate the natural and cultural history of Bracketes Landing South and Edmonds. Councilmember Myers asked the purpose of the cutout on the northeast comer. Mr. Barker explained as a result of meetings with Community Transit, the FerrySystem, the City's Transportation Engineer and City Council Approved Minutes October 1,1996 page 6 Item # Elil!/IONDS CITY COUNCIL Agenda Memo Originator: Planning Division For Action: X For Information: Subject: HEARING - CONTINUATION OF THE PUBLIC HEARING PROCESS FOR SUBDIVISION APPROVAL OF THE SHORT SUBDIVISION TENTATIVELY APPROVED BY THE CITY COUNCIL ON APPEAL ON APRIL 16, 1996. THE CONTINUED HEARING WILL CONSIDER A REQUEST TO MODIFY THE REQUIRED STREET SETBACK ON THE NORTH SIDE OF THE APPLICANT'S PROPERTY. (Property Location:' 17000 Talbot Road; Applicant: Chester Johnson; idle Nos. S-95-129 and AP-96-25). Clearances: Department/initials Agenda Time: 30 Minutes Admin Svcs/Finance .,.._ Community Svcso City Attorney Engineering Agenda Date: October 1,1996 City Clerk Parks & Re Court Planning Exhibits Attached: Personnel Public W r 1. Minutes of City Council Hearing of April Fire Treatment Plant 16, 1996 Police City Cou it _ Mayo 2. Council Packet and attachments thereto Reviewed by Council Finance from the April 16, 1996 Council Meeting Committee: Community Services 3. Proposed Short Plat Public safety 4. City Engineer's Report and Requirements Approved for Consent Agenda: 5. Decisional Criteria for a Variance Recommend Review by Full Council: 6. Applicant's declarations for a modification 7. Vicinity Map Expenditure Amount Appropriation Required: $ 0 Budgeted: .$ 0 Required: $ 0 Funding Source: N/A Previous Council Action: On April 16, 1996, the City Council held a public hearing to consider an appeal of the Hearing Examiner's decision to deny the proposed subdivision. The City Council voted to uphold the appeal, thus approving the subdivision. The applicant and Staff were to return to the council to consider the conditions of approval. Page 2 of 4 AP-96-25 Chester Johnson Narrative: Chester Johnson proposed to divide one (1) existing lot with a total lot area of approximately 41,543 square feet (0.95 acres) into 3 lots (see Exhibits 3 and 7). The existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. The site is zoned single family, RS-12. If approved, the proposal would create separate lots for the apartment building, the existing single-family residence, and, a new vacant lot. The application was denied by the hearing examiner, and then approved by -the City Council on appeal. The applicant and Staff were to return to the council to consider the conditions of approval. One of the proposed conditions of approval was to be that the applicant apply for and obtain a variance for a setback reduction. The applicant has requested that this issue be resolved as part of the subdivision.. The City Attorney has advised staff that the resolution of this issue as part of the subdivision is permissible, and that the City Council is the appropriate body to hear this issue because the Subdivision is before the Council for approval on appeal. The issues for approval before the Council are as follows: 1. Approval of a modification to reduce the required setback from the access easement from the required 25 feet to the existing 10 feet to allow the existing nine -unit apartment to remain. 2. Approval of conditions of the subdivision. (1) ANALYSIS OF PROPOSED SETBACK MODIFICATION: The existing nine unit apartment building currently has a 10-foot setback from the access easement located on the north side of the proposed subdivision. The easement currently serves three lots. The approval of the subdivision will increase the use of the easement from three to four lots. ECDC section 21.90.120 defines "Street" as "the public or private right-of-way or access easement which provides vehicle access to more than three lots." Due to this definition the setback from the access easement changed from a side setback (10 feet) to a street setback (25 feet) with the approval of the subdivision. ECDC section 20.75.075 allows modifications of the requirements of the zoning code as a part of the submission. The modification may be approved only if all of the criteria set forth in ECDC section 20.85 (Variances) can be made. ECDC Section 20.85 establishes the decisional criteria for variances (see Exhibit 5). Variances may be used to modify bulk standards. The following is an analysis of the setback modification issues and criteria as presented by the applicant and City Staff (see Exhibit 6). Special Circumstances: Appellant Comment. The site contains a multiple family building which was made nonconforming by the annexation into the City of Edmonds. Strict enforcement of the setback standards would deprive the Johnsons of the rights shared by others to utilize their property. Staff Ana lysls: The proposed site has special circumstances created by the annexation of the use into the City, and therefore, not the result of an act by this or previous property owner. Special Privilege: Appellant Comment: The granting of the setback reduction will not be a grant of special privilege because the applicants will be permitted to use their property in a manner consistent with the zoning ordinance. In addition, the City has granted similar setback reductions for short subdivisions, such as 5-96-10, where a required 7.5 foot setback was reduced to 6 feet to allow in -fill development. Staff Analysis. The proposed setback reduction is not a grant of special privilege. 02 Page 3 of 4 AP-96-25 Chester Johnson Comprehensive Plan & Zoning Code Appellant Comment: The prior decision by the City Council to approve this application evidences the fact of compliance with the comprehensive plan. Both the zoning and underlying comprehensive plan contemplate single family use at this location. Approval of this request will create one new single family building lot for the Johnson's son and daughter-in-law and, as explained at the prior hearing, will significantly increase the degree of conformity of this site. In addition the comprehensive plan encourages in -fill development, and retention of existing housing stock. StaffAnalysis: The proposed setback reduction is consistent with the comprehensive plan and zoning code. Not Detrimental: Appellant Comment: As evidenced by your prior decision, this proposal is not only not detrimental, but is in fact in furtherance of the public welfare because it is in compliance with the Growth Management Act and the City's comprehensive plan which encourage in - fill development. Staff Analysis: Approval of the requested setback reduction would not be detrimental to the public health, safety or welfare, and not injurious to surrounding properties. Minimum Required: Appellant Comment: The proposed modification is the minimum necessary. More importantly, it does not allow any future construction or development which is inconsistent with City ordinances. Rather it recognizes the anomaly of the existing development, avoids an unintended trap and consequences of strict application of the standards, and provides for the construction of one new residence, every part of which will be in strict compliance with code requirements. Staff Analysts: The proposed setback reduction is the minimum variance necessary to allow the existing nine -unit apartment to remain. (2) ANALYSIS OF PROPOSED SUBDIVISION APPROVAL AND PROPOSED CONDITIONS. Zoning: The subject property is zoned RS-12 (single family residential with a minimum 12,000 square foot lot size requirement). Lot sizes: Lot 1: 14,715 net square feet, 14,715 gross square feet. Lot 2: .12,028 net square feet, 12,028 gross square feet. Lot 3: 13,525 net square feet, 14,800 gross square feet. Areas and setbacks: Lot areas meet the minimum 12,000 square foot area for the RS-12 zone district. The setbacks for lot 1 will be adequate with the approval of the proposed modification to reduce the required setback from the proposed access easement from 25 feet to the existing 10 feet. The setbacks proposed for lot 3 are also nonconforming as proposed. Due to the location of the existing buildings on lot 3. The existing buildings conform to the zoning requirements prior to the proposed subdivision, However, the proposed property line separating lot 2 and lot 3 leaves a 10- foot setback where a 25-foot setback is require from the property line to an out building, and a 22- foot setback to the existing house. Therefore the applicant's proposal does not meet the minimum 03 i Page 4 of 4 AP-96-25 Chester Johnson standards found in the ECDC for setbacks. The applicant has stated that these issues can be resolved by minor changes io the proposed property line locations, and the removal of the existing carport. Required Improvements And Dedications Engineering, drainage and street dedications: See City Engineer's Report (see Exhibit 5). Among the many issues covered by the Engineering Division Requirements is a requirement for a 30-foot dedication of right-of-way for Talbot Road in compliance with the Official Street Map, and a 40-foot access easement to be provided from the panhandle of lot 3 to Talbot Road. The 40 foot access easement was required with the assumption that the parking for the nine -unit apartment would be relocated to the west side of the existing building. This assumption was made because the proposed subdivision map indicated that the existing parking would protrude into the right -of- . way after the dedication. The dedication is required because the Official Street Map indicates that a 60 foot right-of-way is required for Talbot Road. Since no development is allowed within the proposed right-of-way lines, the parking is already nonconforming, and will not be made nonconforming by the required dedication, Therefore, the Planning and Engineering Divisions have determined that the existing parking for the nine -unit apartment is legally nonconforming and approval of the proposed subdivision would not require the relocation of the parking. Therefore, the Engineering Division ' requirement to provide a 40-foot wide access easement should be changed to require a 20-foot wide access. The applicant has shown a proposed 20 foot wide access easement. Therefore, the applicant's proposed access appears to be in compliance with the City Engineering Division ; Requirements. If the parking is relocated in the future, additional access width will be required. i Recommended Action: f Approve the proposed subdivision and modification request with the following conditions: 1. This application is subject to the applicable requirements contained in the Edmonds Community Development Code. It is the responsibility of the applicant to ensure compliance with the various provisions contained in ! these ordinances. 2. Engineering Division conditions listed as "required with a building permit"' must be completed as part of a building permit application (see Exhibit 4). 3. Prior to recording, the applicant must complete the following requirements: A. Engineering Division conditions listed as "required prior to recording" must be completed prior to recording of the proposed subdivision with the exception of line 2 which should be changed to require a 20-foot wide access easement rather than the stated 40-foot wide access easement, and line 3 which should be changed to require a 16-Foot pavement width rather than a 20-foot pavement. width. (see Exhibit 4). B. Alter the proposed lot line location between lots 2 and 3 and/or remove structures as necessary to comply with setback requirements for existing structures on the proposed lot 3. This change must not reduce the lot size of any proposed lot below 12,000 square feet in area. Council President Earling recalled the pictures of a similar tubular fence in White hock, BC, noting it is basically unobtrusive to the view and provides a safety barrier. While views in the City are a sensitive issue, in this case safety is also very important. He pointed out the concern over children climbing the fence increases when the fence is placed on the slope, closer to the tracks. Amtrak service is important to the community and the fence is an important element in retaining that service. He pointed out the WUTC's letter of January 19 discusses both Ocean and Sunset Avenues. He supported staffs recommendation, Councilmember Petruzzi explained he has seen the fence in White Rock, BC, which is very unobtrusive. While observing the fence for over two hours, he found the fence does provide a barrier, individuals access the beach at the appropriate Iocations. He felt a fence on the slope would be an "invitation to disaster"; therefore he preferred the fence be built at the top of the bluff. Councilmember Van HoIlebeke noted the eight properties overlooking the fence are set back from and elevated above the road, resulting in minimal visual impact. He recommended the residents be involved in material and color selection of the fence to reduce maintenance and vandalism. He commented there are no public beaches across the railroad tracks in this area and expressed concern that the slope installation would increase the dangerous attractiveness to young children. Councilmember White commented he initially did not see a safety issue with the fence halfway down the bluff and was satisfied the WUTC distinguished between Ocean and Sunset Avenues. After listening to the Council's comments, he felt the concern with safety seemed to outweigh the obstruction to the views. Counciimernber Myers described how power lines in the view line of property he owns on Camano Island originally were a distraction but now are not, which he felt may also occur in this situation. He noted the installation of the fence on the slope results in an increased drop if one were to climb the fence. He recommended the fence be placed on the top of the bluff. Councilmember White said he now felt the fence on the slope may be more likely to attract people down the bluff than to deter them. COUNCIL PRESIDENT EARLING MOVED, SECONDED BY COUNCILMEMBER MYERS, TO' DENY THE APPEAL AND UPHOLD THE DECISION OF THE HEARING EXAMINER MOTION CARRIED, Mayor Fahey declared a 5 minute break. COUNCILMEMBER PETRUZZI MOVED, SECONDED BY COUNCILMEMBER MYERS, TO EXTEND THE MEETING. MOTION CARRIED. a. _) :.::. a lit # � .::... � : .a � .,. ► • ► 1► .1. .01. � .:Y. / III • .•: 1 ��• �i s � � �t ��t:t � i.' �t.t �i Mayor Fahey described the hearing procedure and asked if any Councilmembers wished to make a disclosure. Councilmember Myers reported David and Inga Johnson are very good friends of his. Councilmember Haakertson advised he is a neighbor of the property and is acquainted with Jack and Jill Edmonds City CounaiI Approved Minutes prii 16,1996ow 7 Page 12 0 1 Fritz who operate the apartment building. Council President Earling advised he lives on Talbot Road, 1 approximately 314 mile from the property. Councilmember White advised he walked the property on Saturday but did not speak to anyone. City Attorney Scott Snyder asked Councilmember Haakenson his proximity to the property and whether he felt the approval or denial would have any affect on any personal or financial interest in his property. Councilmember Haakenson advised the property was approximately five houses away and would not affect his property. There were no challenges to participation by any Councilmember and Mayor Fahey announced all Councilmembers would participate in the hearing. Planning Manager Rob Chave advised this is an appeal of a staff denial of a short subdivision request, the appeal was first heard by the Hearing Examiner and that decision, agreeing with staff, has been appealed to the Council.. He referred to the sentence in staffs analysis, "Therefore the decision to deny the proposal is essentially a policy decision." He explained Mr. Snyder indicates in his memo that there are grounds to approve or deny the request; the staff position is defensible but he felt there were also merits in the appellant's argument. Mr. Chave explained the City's non-conformance provisions can be traced to 1970 when an ordinance created a 15 year moratorium targeted at commercial uses in residential zones. Thus City staff has been conservative in its interpretation of non -conformances and has viewed any increase in floor area, height, bulk, etc., as an expansion of the non -conformity which has not. been allowed. In 1994, a sliding scale provision for lot areas was adopted which allowed for development of non -conforming lots, thus indicating a shift in the policy created in 1970. In addition, recent changes to GMA have created competing policies that indicate more liberal consideration should be given to infill development. This one acre lot includes a non -conforming use, the multi -family development, as well as a single family residence. The proposal is to subdivide the lot into three building lots, two would be conforming for single family development and the third would remain non- conforming. Staff has viewed any increase in density in the overall one acre parcel as an increase in the non -conformity. Mr. Snyder noted the City's staff interpretation and the Hearing Examiner's ruling are consistent with the standard interpretation of the zoning code and that non -conforming use provisions are designed to eliminate non -conforming uses. He advised, given the changes in the Comprehensive Plan elements, it is appropriate to consider the way the code has been interpreted. Councilmember Haakenson asked, if the Council finds this is not an expansion of a non -conforming use, would staff oppose approval if the project complies with necessary setbacks or, if necessary, required variances. Mr. Chave advised staff has suggested conditions if the Council makes that decision. Gary Huff, 1201 Third Avenue Ave, Suite 2900, Seattle, representing Chet and Doris Johnson, explained the nearly one acre property is in a 12,000 square foot zoning area, so there is adequate space for three lots. The property contains a 9-unit apartment building and a single family residence which were approved while the property was in Snohomish County. Mr. Huff introduced Jack and Jill Fritz and David and Inga Johnson, the children and spouses of Chet and Doris Johnson. He explained Jack and Jill Fritz live and manage the apartment building and the third lot is desired for a residence for David and Inga Johnson to allow the family members to reside on the one acre parcel. He -noted the non- conforming use, the multi -family structure, will not be changed; two-thirds of the 41,500 square foot lot would be brought into compliance by creating the two single family lots. Neither he nor the City have Edmonds City Council Approved Minutes April 16,1996 r� Page 13 V i been able to find any case where a reduction in lot size around a non -conforming' use has been considered an expansion of that use. He pointed out this same goal could be accomplished by the death of the Johnsons as, under the short plat laws, there is an exception for lots created by a will. The goal is to provide a way for the family to stay together on these three lots. Mayor Fahey opened the public portion of the hearing. Mr. Snyder advised Dave Johnson and Jill and Jack Fritz, who signed up to testify, could not speak speak during audience participation due to their common interest in the property. Jim Dahlfenmyer indicated he is a taxpayer in Edmonds but does not reside in Edmonds. He noted a short -plat he has in process to create a single family lot on property currently developed with a duplex is a similar situation. The property is zoned 12,000 and was annexed into the City in the 1980's. He was told by the Planning Department that if he would give up his zoning, his short plat would be approved. He felt the short subdivision request by the Johnsons should be granted. " Mr. Huff submitted a copy of the letter and a petition in support of this application signed by 38 of the Johnson's neighbors. He noted the major issue is the policy decision, a number of minor issues can be easily resolved with staff. In response to Mr. Dalhfemnyer's comments, Mr. Snyder advised the City's Code was written and intended to force property owners, who had a non -conforming use, to make an economic choice —was their property worth more as a non -conforming use. Staffs interpretation of the Code may be harsh but it is not inappropriate. Mr. Huff requested, if the appeal is upheld, that the Council grant a preliminary approval and allow the applicant to work with staff on conditions prior to the next meeting. Mr. Snyder advised, if the Council wished to follow that procedure, agreed upon Findings would be submitted by Mr. Huff and reviewed by staff prior to their placement on the Consent Agenda. Mr. Chave was agreeable to this procedure. Mayor Fahey closed the public portion of the hearing and remanded the matter to Council. Councilmember White asked if the Council should direct preparation of any Findings of Fact as a policy change may be implemented by upholding the appeal. Mr. Snyder indicated the appropriate Findings would be that changes in the City's non -conforming use standards in the early 1990's and the adoption of the County -wide Planning Policy favoring infill development have provided a different Comprehensive Plan context. COUNCILMEMBER PETRUZZI MOVED, SECONDED BY COUNCILMEMBER HAAKENSON, TO UPHOLD THE APPEAL AND DIRECT STAFF AND THE CITY ATTORNEY TO WORK WITH MR. HUFF REGARDING FINDINGS. MOTION CARRIED. i� F€APir�R 20rt AREAS ORDINANCE,.�L�LfSI DEVELOP_COUE 20. HEAR Ol` 414 'DNL�sEDDIOMS AL �q "'^ ,�,,,,- CRI'I'ICAj• •�'TQ ADOPT TiiF_.� GT�'S AREAS ORDINANCE eft MAN AGEh ANT ,ACT (ARulicant• Edmonde Plating Division i File No CDC-95 B6) dgJt �ti� Ott" Planning Manager Rob 'Chave explained the Planning Board reviewed the draft of the Final Critical Areas Ordinance and unanimously recommended its approval. He recommended, following the public hearing, if the Council is comfortable with the Planning Board's recommendation, that the Council adopt Edmonds City Council Approved Minutes April 16,1996 07 Page 14 • Item #: ' EDMONDS CITY COUNCIL Agenda Memo Originator: Planning Division For Action: X For Information: Subject: DARING ON APPEAL FLED BY GARY HUFF ON BEHALF OF CHESTER JOHNSON APPEALING THE HEARING EXAMINER'S DECISION TO DENY AN APPEAL (FILE NO. AP-95-189) OF THE PLANNING DIVISION'S HEARING OFFICER'S DECISION TO DENY A PROPOSED 3 LOT SHOT SUBDIVISION UNDER FILE NO S-95-129, OF THE PROPERTY LOCATED AT 17000 TALBOT ROAD (Appellant: Gary Huff on behalf of Chester Johnson/ File No. AP-26-25). Clearances: Departmentlinitials h, Agenda Time: 30 min. Admin Svcs/Financer Community Svcs! City Attorney Engineering Agenda Date: April 16,1996 City Clerk Parks & Rec Court Planning �✓� Exhibits Attached: ' Personnel Public Works �r 1. Lettter of Appeal Fire City Council Police Mayor 2. Staff Report to the Hearing Examiner 3. Decision of the Hearing Examiner Reviewed by Council Committee. Approved for ConsentAgenda. 4. Letter from Gary Huff Recommend Approval by Full Council. 5. Comments for Scott Snyder, City Atorney 6. Vicinity Map Expenditure Amount Appropriation Required: $ 0 Budgeted: $ 0 Required: $ 0 Funding Source: N/A History And Summary Statement: Chester Johnson proposed to divide one (1) existing lot with a total lot area of approximately 41,543 square feet (0.95 acres) into 3 lots. The existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. The site is zoned single family, RS-12. If approved, the proposal would create separate lots for (1) the apartment building, (2) the existing single-family residence, and (3), a new vacant lot. The result would be three building lots with a potential for 11 dwelling units. EXHIBIT On September 22, 1995, Staff conducted a public hearing on the proposed Mot short plat. The hearing was held open for the submittal of additional information, and the decision to deny the application was issued on November 1, 1995. On November 15, 1995, Gary Huff, Attorney for the Applicant, filed an appeal of the staff decision denying the Chester Johnson 34ot short plat (see Attachment 2). That appeal was heard by the Hearing Examiner on January 18, 1996. The Hearing Examiner upheld the Staff denial of the proposed short plat. On February 28, 1996, Gary Huff, Attorney for the applicant/appellant, submitted an appeal of the Hearing Examiner's decision. In his appeal letter, Mr. Huff states that the reasons for appeal are the same as those presented in the preliminary short subdivision hearing and presented to the Hearing Examiner. Issues: Nonconformance Issue. The existing development does not conform to all RS-12 requirements in that the existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. Thus there are a total of 10 existing dwelling units on one lot in a single family RS-12 zone. The maximum number of dwelling units allowed by the RS-12 zone on a single lot is one (1). If approved, the proposal would create separate lots for (1) the apartment building, (2) the existing single-family residence, and (3), a new vacant building. The result would be three building lots with a potential for 11 dwelling units. Setback Issue: The proposed subdivision will increase the number of units being served by the access from three to five. Therefore lot 1 will change to a corner lot designation, and the setback on the north side of the lot one will change from a 10 foot required setback to a 25 foot required setback. The existing 9 unit multiple family building has a conforming 10-foot north side setback. If approved, the proposal will cause that setback to become nonconforming. The setbacks proposed for lot 3 are also nonconforming as proposed, due to the location of the existing buildings on lot 3. Therefore the applicant's proposal does not meet the minimum standards found in the ECDC for setbacks. Access Issue: The applicant has proposed to access the subdivision via a 20-foot wide access e4sement where a 40-foot wide access is required based on the number of proposed dwelling units to be served. Analysis: Nonconformance Issue: The appellant states that he believes that the proposal will not be an increase in the nonconformance of this property as the building containing the nonconforming use will not be altered or increased in size. In addition, the appellant believes that the nonconformance could be decreased because the existing apartment and single family dwellings will be on separate lots, thus decreasing the number of dwelling units on each lot. In Exhibit 5, City' Attorney Scott' Snyder responds to the letter presented by Gary Huff (Mr. Huff s letter is contained in Exhibit 4). In the response_, the City Attorney confirms that denial of the proposed subdivision based on an increase in the non -conforming density is a valid interpretation oCity f the ECDC. The Ci Attorney also concurs with Mr. Huff argument to the extent that approval could be granted for subdivisions with conforming lot sizes regardless of the number of units on the subject property. Therefore the decision to deny the proposal is essentially a policy decision. ` It has been the policy of the City to strictly interpret the sections of the ECDC which govern non- conforming lots, buildings and uses (ECDC 17.40) in order to meet the purposes of this chapter and, over time, abate non -conforming uses. In light of this policy, staff has concluded that the proposal does not comply with the density standards set forth in the RS-12 zone district. Setback Issue The applicant stated at the hearing before the Hearing Examiner that a building or buildings will be removed on lot 3, and that a minor reorientation of lot 3 will be proposed for the Final Subdivision so that the setback on lot 3 will comply with the requirements of Edmonds Community Development Code. The applicant also stated that they are willing to condition the approval contingent upon obtaining an approved variance for the setback issue for lot 1. Proposed subdivisions are routinely approved with conditions of relocating buildings, minor property line relocation, and variance requirements. However, approval of a variance cannot be assumed. If the other, issues for denial are resolved, staff would not oppose approval of the proposal so long as it can be conditioned on compliance with required setbacks, or approval of necessary variances. Access Issue: At the hearing examiner hearing, the applicant provided information which revealed that the existing parking for the, nine unit apartment will not have to be relocated. Thus the ,nine unit apartment will not need to gain access via the proposed access. Therefore a 20 foot access as proposed by the applicant will be permissible. Recommended Action: Deny the appeal of the Hearing Examiner Decision. Council Action: jjrzu1 rianumg jaepartmenc: Please accept this letter as the Notice of Appeal of Applicant Chester Johnson in the above matter. The grounds for appeal are stated in the letter of September 28, 1995 from the undersigned to John Bissell which is attached hereto. In addition, the 3ohmons appeal on the ground that decision was not timely made and must therefore be .deemed approved. The Johnson' address is 17000 Talbot Road. The parties of record are listed on pages 6 and 7 of the Examiner's Decision. Sincerely, C. Recommendation ................... :............................................................................................................... .....3 II. FINDINGS OF FACT AND CONCLUSIONS ........................................... .................3 A. Site Description ........................................... .......... ......... ......... ......3 B. Mstory................................................................. .:........: .... .................. ..,...... ........3 C. Edmonds Community Development Code (ECDC) Compliance ......, ...... ... ...... ..., ..4 III. RECONSIDERATIONS AND APPEAL ................................................. ............................6 A. Request for Reconsideration .................................... ......... ............... ... ......... .........6 B. Appeals.......................................................................:...........................................................6 IV. APPENDICES .............................................. .... ........... ....................... . ... ..6 V. PARTIES OF RECORD......................................................................................... .................7 { Chester Johnson Pile No. AP-95-I89 Page 2 of 7 j L INTRODUCTION A. Application I. ,A9903Chester Johnson (see Attachment 2). I 2. Original ApWican . Chester Johnson (see Attachment 2, and 4). 3. Sit_e Loof=: 17000 Talbot Road (see Attachment 1). 4. Request:' Appeal of the Hearing Officer's decision to deny a 3-lot short subdivision request under file number 5-95-129 (see Attachment 4). 5. Rodmy Process: Appeal of approval of a Short Subdivision, Hearing Examiner conducts public hearing and makes final decision. 6. MgJar ican4,c,• a. Compliance width Edmonds Community Development Code (ECDC) Chapter 1620.020 (RS-12 Development Standards including setbacks and density). b. Compliance width Edmonds Community Development Code (ECDC) Chapter 18.80.010 (Street and Driveway Standards). c. Compliance with Edmonds _ Community Development Code (ECDC) Chapter 20.105 (Appeals and Court Review). B. Description of Proposal Chester Johnson proposed to divide one (1) existing Iot with a total lot area of approximately 41,543 square feet (0.95 acres) into 3 lots. The existing lot is currently developed with one single- family dwelling unit and one 9-unit apartment building. The site is zoned in a single family, RS- j •12. The proposal would create a separate lot for the apartment building and for the existing single-family residence, as well as add one additional building lot for a total of three lots and potential for I 1 dwelling units. I Gary Huff, Attorney, has submitted an appeal on behalf of the applicant, Chester Johnson. In his appeal letter, W. Huff states that the reasons for appeal are the same as those presented in the preliminary short subdivision hearing. i. That the proposed subdivision should be approved because the non -conforming use would not be increased since the building containing the non -conforming use is not proposed to be altered. 2. That the 40-foot vehicle easement width should not be required for the access road to the site. The applicant has stated that the parking for the nine unit apartment building is provided on the east side (Talbot Road side) of the apartment building and therefore the nine units would not be required to use the access road, reducing the required access width from 40-feet to 20-feet. 3. Mr. Huffhas stated that the setback problems identified in the -subdivision preliminary report will be corrected by adjusting property line locations, removing existing the existing carport attached to the existing single family residence, and requesting a variance, and that the subdivision should be approved with conditions to that effect. 4. Mr. Huff states that the denial should be overturned as he believes that the decision was not issued in a timely manor (see Attachments 2 and 4). AP95189.DOCIDeeember 22,1995 /Staff Report 13 r c < Chester Johnson File No. AP-95-189 Page 3 of T C. Recommendation Based on statements of Fact, Conclusions, and Attachments in this report we recommend denial of the appeal, upholding the staff denial of the application II. FINDINGS OF FACT AND CONCLUSIONS A. Site Description I. Site Development And Zoning: a. Fes: (1) En: The total size of the subject property is approximately 41,543 square feet (0.95 acres). The size of each proposed lot is: Xg Sq. Ft. j Gross Sa. Ft Lot 1• 14,71S--i-14,715— Lot 2,----E---12,028._-- Lot 3:----r-- ------'�----____..L---_______ .. - (2) Land Use: The existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building: The site is zoned in a single family, RS-12. The proposal would create a separate lot for the apartment building and for the existing single-family residence, as well as add one additional building lot for a total of three lots and potential for l l dwelling units (see Attachment 4). (3) Zonin The subject property is zoned R5-12 (single residential family with a minimum 12,000 square foot lot size requirement) (see Attachment 1). (4) Terrain and Vegetation: The subject property slopes gently from the east to west with a steep bank along the western property line. Vegetation on the site consists of ornamental landscaping with native vegetation along the western bank. 2. Neighboring Development And Zoning: (1) The adjacent properties to t1he north, south, east, and west and are currently zoned as single-family (RS-12) (see Attachments 1). (2) The adjacent properties to the east, north, and south are currently developed with single-family homes. B. History L a. Facts: (1) The following is a chronological account of the development of the property located at 17000 Talbot Road. The purpose is to clarify the review process for this proposal, as well as outline the appeals that have taken place. (a) August 3, 1995. Chester Johnson applies for a 3-161 short plat ale No. S-95- 129) (b) September 22, 1995. Staffconducted a public hearing on the proposed 3- lot short plat (see Attachment 4). AP95189.DOC/December22,1995/Staff Report 14 Chester Johnson File No. AP 95-189 Page 4 of 7 (c) . September 29, 1995: Gary Huff Attorneyfor the Applicant submitted a briefsummarizing his testimony .('see Attachment 4, Exhibit B) (a) October 18, 1995: Scott Snyder, City Attorney submitted comments on the September 29, 1995 letter from Mr. Huff, Hearing Closed (e) November 15, 1995: Appellant files an appeal of the City of Edmonds decision denying the Chester Johnson 3-tot short plat (see Attachment 2). C. °Edmonids Community Development Code (ECDC) Compliance (1) The fundamental site development standards pertaining to Residential development in a RS-12 zone are set forth in Chapter 16.20.030. (2) The existing development conforms does not conform to all RS-12 requirements in that the existing lot is currently developed with one single-family dwelling unit and one 9-twit apartment building. * This create a total of 10 existing dwelling units on one lot in a single family zone (RS-12). The maximum number of dwelling units allowed by the RS 12 zone on a single lot is one (1). The proposal would create a Separate lot for the apartment and for the existing single family building, as well as add one additional building lot for a total of three (3) lots with 11 dwelling units. In addition, the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision. The applicant has also proposed to access the subdivision via a 20-foot wide access easement where a 40-foot wide access is required based on the number of proposed dwelling units to be served (see Attachment 4). b. Conclusion: The proposal does not comply with the development standards for the RS-12 zone as set forth in Chapter 16.20 or the street and driveway standards as required by Chapter 18.80 because the applicant is proposing a development which would allow i l dwelling units where the density allowed in the RS-12 zone would allow three (3) dwelling units. Additionally the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision, and because the proposed access easement is 20 feet wide, where a 40 foot wide access easement is required. 2. The following is a review of the appellants issues, comments of the City Staff and City Attorney a. (1) Appellant Issue: That the proposed subdivision should be approved because the non -conforming use would not be increased since the building containing the non- conforming use is not proposed to be altered. (2) Staff Analysis: (a) f& Alt ay Comments: In Exhibit C of Attachment 4 City Attorney Scott Snyder responded to the letter presented by Gary Huff, found as Exhibit E of Attachment 4. In the response the City Attorney concurred that recommending denial based on an increase in the non -conforming density, is a valid interpretation of the ECDC. The City Attorney also concurred with Mr. Huff to the extent that approval could be granted for subdivisions with conforming lot sizes regardless of the number of units on the subject property. 'Therefore the decision to deny the proposal must be based on City Policy (b) U ff• Comments: It has been the policy of the City to strictly interpret the sections of the ECDC which govern non -conforming lots, buildings and uses AP9S189.DOC tDecember22.1995 t Staff Report 0 i' A" chesierlohnson4 , File No. AP-95.189 Page 5 of 9 (ECDC 17AO) in order to effectuate the purposes of this chapter and overtime, abate non -conforming uses. (3) Conclusion: The proposal is not consistent with the City of Edmonds Comprehensive Plan and Zoning Ordinance related to density, and is not consistent with the City Policy and Code Requirements related to non -conforming uses. b. (1) Appellant Issue: • The 40-foot vehicle easement width should not be required for the access road to the site. The applicant has stated that the parking for the nine unit apartment building is provided on the east side (Talbot Road side) of the apartment building and therefore the nine units would not be required to use the access road, reducing the required access width from 40-feet to 20-feet. (2) Staff Analysis: The official Street Map shows a 60-foot wide right-of-way required for Talbot Road adjacent to the subject property. The Engineering Division requirements (see Attachment 4 of Exhibit A of Attachment 4) state that the dedication is complete. Since the surveyor has provided information showing that the dedication is not complete, the applicant will be required to dedicate 30-feet from the center line west. The existing parking lot provides nine (9) parking stalls where eighteen (18) stalls would be required. Any existing stalls that would be removed by a street dedication - would be required to be replaced. The required right-of-way dedication would result in the existing parking lot being part of the dedication. Therefore, upon dedication the existing parking will no longer be on the subject site, and thus, will not comply with the off-street parking requirements. In order to comply with the off-street parking standards, the applicant will be required to replace the nine (9) parking stalls lost in the dedication. The new stalls will be installed on the west side of the existing apartment building. This will result in the nine unit apartment building using the required access, and thus a 40-foot access would be required based on the number of units using the access easement. (3) Conclusion: The applicant will be required to dedicate 30-feet of right-of-way of Talbot Road to the City. The nine unit apartment building will be required to provide access from the proposed access easement, and therefore, the proposed access easement must be 40- feet wide. (1) Appellant`Issue: i4ir. Huff has stated that the setback problems identified in the subdivision preliminary report will be corrected by adjusting property line locations, removing existing buildings and requesting a variance, and that the subdivision should be approved with conditions to that effect. (2) Staff Analysis: Proposed subdivisions are routinely approved with conditions of relocating buildings, minor property line relocation, and variance requirements. However, approval of a variance cannot be assumed. (3) Conclusion: If the other issues for denial were to,be resolved, staff would not oppose the approval of the proposal with conditions of compliance with required setbacks, or approval of necessary variances. (1) Applicant Issue: Mr. Huff states that the denial should be overturned as he • believes that the decision was not issued in a timely manor. (see Attachments 2 and 4). (2) Staff Analysis: AP95189MOC/De=berA 199S /StaffReport Chester Johnson He'No. AP-95,-189 Page 6 of 7 (a) &at'eror„rr,ents: Regarding the appeal on the ground that the decision was Inot issued in a timely manner, the Hearing Officer stated at the hearing that the hearing would be held open for the purpose of receiving the testimony of Mr. Huff in the form of a brief, and that that brief would be reviewed by the City Attorney. The brief from the Applicant's Attorney was received on September 29,1995, the Comments from the City Attorney were received on October 18, 1995, and the decision was issued ten (10) working days after the City Attorney Comments, on November 1, 1995. (b) City A=mU Comments: In the event that the stated closing date of the hearing was not clearly made at the time of the hearing, the City attorney was asked to comment on the validity of approval of a subdivision application in the event that the decision is not timely. City Attorney Phil Olbrechts commented "since there still has not been any decision or statute in this state that mandates approval for a city's failure to comply with applicable decision making deadlines, there is currently no immediate right of approval for your short subdivision applicant."(see Attachment 3) (3) Conclusion: The decision was issued in a timely manner, and other -wise, the timeliness of a decision is not grounds for over turning a decision M. RECONSIDERATIONS AND APPEAL The following is a summary of the deadlines and procedures for filing a request for reconsideration of the Hearing Examiner's recommendation. Any person wishing to file or respond to a recommendation should contact the Planning Department for further procedural information. A. Request for Reconsideration Section 20.100.010.E allows for the Hearing Examiner to reconsider his decision or recommendation if a written request is filed within ten (10) working days of the date of the initial decision by any person who attends the public hearing and signs the attendance register and/or presents testimony or by any person holding an ownership interest in a tract of land which is the subject of such decision or recommendation. The reconsideration request must cite specific references to the findings and/or the criteria contained in the ordinances governing the type of application being reviewed. B. Appeals Section 20.105.020A & B describe how appeals of a Hearing Examiner decision or recommendation shall be made. The appeal shall be made in writing, and shall include the decision being appealed along with the name of the project and the date of the decision, the name of the individual or group appealing the decision, their interest in the matter, and reasons why the appellant believes the decision to be wrong. The appeal must be filed with the Community Development Director within ten (10) working days after the date of the decision being appealed. IV. APPENDICES Attachments i through 4 are attached. 1. Vicinity / Zoning Map 2. Letter of Appeal submitted by Gary Huff on behalf of Chester Johnson 3. Memorandum dated December 13, 1995 from Phil Olbrechts, City Attorney 4. Final Review of Proposed Short Subdivision File No. S-95-129, including Eexhbit A, Preliminary Review of Proposed Short Subdivision File No. S-95-129 AP95189.DOClDecember 27,19951StaffReport ry Please accept this letter as the. Notice of Appeal of Chester Johnson .in the aoove matter:. The grounds for appeal are stated in the letter of September 28, 1995 from the undersigned to John Bissell which is included in the derision hereby I appealed as E)di bit B thereto. In addition, the Johnsons appeal on the ground that decision was not timely made and must therefore be deemed approved. Sincerely, ATTORNEYS" AT LAW 2100 Wasttdne L`tntoe TCwar • i6A3 fittL;Awnoo • $aattl0. WAli01.1686 • (20S}Ail 7dOC • Fie (106) 44T-1)235 NMORANDUM DATE: December 13, 1995 M. John Bissell. Associate Plattner, City of Edmonds FRML-- Phil A. 01brochts RE: AIJ'ft3MATiCAPPRO3l'AI, OF SHORT SLTBDMSION A:l UCA71ON UPON EXPIRATION OF DEMION MAIMG DEADLINE You lava✓ a4wd if a short subdivision application IS automatically approved if staff fails to issue a derision within tea days of a staff hearing on a prelitntery short piss, pursuant to Section 20.95.060(B) of the Edmonds Community Development Code. The existence of such a remedy (automatic approval) would have to have been created either by statute or by some court opinion. There is no statute in the State of Washington that .requires such a remedy. Further, theta is no .court opinion -in this state that maadatcs such a samcdy and I .have also been unable to ftd. any court opinion in any other state that provides for such a remedy, except for situations where a "statute or ordinance provides for automatic approval if a decision is not rendered within a requisite time period. S= 83 Am tux 2d, Zoning and Planning 6817. The closest to which this issue has been considered in this state is in .Norco Construction u. King County, 29 Wash. App. 179, 627 P.2d-988 (1981), moNfiied by, Norco Cbnsmscdon, Dw. v.:iCing County, 97 Wn.2d 680, 649 P.2d 103 (1982). in Norco$ Wng County failed to prove, disprove or return to the applicant for modification a preliminary plat within ninety (90) days from the date of Ming pursuant to the requirements of 9CW 58.17.140. In analyzing the rights of the applicant that arose from the Wure of the county to timely consider its preliminary plat application, the court determined that "ltihe right which vests in the preliminary plat applicant is not the right to prelimuary plat approval. What vests is the applicant's right to have the preliminary plat application considered under the zoning ordinances and procedures existing at the time of the application should have been enacted upon." 29 Wash, App. at 191. The force of the .Norco decision was somewhat undmmuied by subsequent review in the State Supreme Court under Norco Construction, Inc. v..i ng C'ouruy, 97 Wn.2d 680, 649,. P.2d 103 (1982). In tho State supreme Court Norw decision, the court stated that the Court of -Appeals had overstated to nature of Norco's right by finding that the pm.litninary plat applicant had a vested right in having its application determined by the land use regulations in effect at the expiration of the ninety (90) day decision time line pursuant to RCW 58.17.140 and that the preliminary plat applicant simply had the right to have a decision based upon relevant factors made within ninety (90) days after. ATTACHMENT 8 Fife No. AP-95-189 VaUW= 0jjW • One South Md= Suect • P.O. Box M • Wacatdtaa. WAW07 21 DATE: NOVEMBFP. 1, 1995 FILES S-95-129 FABLE OF GOB 3MT Secflos I. INTRODUCTION. . I A. APPLICATION ...... :............................ ..... ......................................... B. PUBLIC HEARING .......... .. . .......:..:.. , .. 2 C. DECISION......................................... .... 2 U. FINDINGS OF FACT .. .......... .,. .2 III. CONCLUSION .............................:..................................... .......:....................3 IV. EXHIBITS ........ V. PARTIES OF RECORD ..............................................................., 3 I. j1�T$C?DUCTION A. APPLICATION 1 • Amligant: Chester Johnson: 2, Slte Location: 17140 Talbot Road(see Attachment I of Exhibit A). 3 &mess: To divide one (1) existing lot with a total lot area of approximately 41,543 square feet (0.95 acres) into 3 lots. The existing lot is currently developed with one single fancily dwelling unit and one 9-unit apartment building in a single family zone. The.proposal would Create a separate lot for the apartment and for the existing single family, as well as add one additional building lot for a total of three lots with 11 dwelling units. Lot Area.of each proposed lot: Net a,T Qrdss Sq. Ft. Lot 1: 14,715 14,715 Lot 2:• 12,028 12,028 Lot 3. 13,525 14,800 4. Review Process: Hearing Officer conducts public hearing %nd makes decision. 5. Maior issues• a. Compliance with Edmonds Community Development Code (ECDC) Section I6.20,030, site development standards for the RS-8 zone. b. Compliance with Edmonds Community Development Code (ECDC) Section 20.75, subdivision requirements. c, Compliance with Edmonds Community Development Code (ECDC) Section 20.95, staff review requirements. d, Compliance with Edmonds Community Development Code (ECDC) Section 17.40, non-conforiiiing uses and buildings. ATTACHMENT 4 � � 'File No. AP-95-189 • fi .' �' ' lohnzon S-95.129 B. PUBLIC HEARING The Planning Division Hearing Officer conducted a public hearing on this application on Sotember 22.1995. at.14:00 a.m. John Bissell, Associate Planner, acted as the Hearing Officer. C. DECISION Based upon the Findings of Fact and Conclusions; Attachments, Exhibits and the Testimony and Evidence submitted at the public hearing of June 9, 1995; upon the impressions of the Hearing Officer after making a site inspection of the subject property, the following is the decision of the Hearing Officer for the City of Edmonds Planning Division: tSubdivislorr Denied: The applicant has proposed a 3-lot short subdivision which does not comply with several sections of the Edmonds Community Development Code. The applicant has proposed to place new property lines which cannot comply with the setbacks of existing buildings. The applicant has proposed a density which is not allowed by zoning code or by the Comprehensive Plan, The applicant has also proposed to access the subdivision via a 20-foot wide access easement where a 40-foot wide access is required, based on the number of proposed dwelling units to be served, II. F'TNTD' INGS OF FACT A. The Findings of Fact on pages 1 through 5 of the Planning Division Staff Report (Exhibit A) are found by the Hearing Officer to be supported by the evidence presented during the hearing, and by this reference are adopted as the Planning Division's Findings of Fact. A copy of said report is attached hereto as Exhibit A. B. The preliminary staff report identified and attached as Exhibit A recommended denial of the application because the proposed access easement did not comply with the minimum requirements to serve I 1 dwelling units. Additionally, the applicant had proposed to increase the number of total dwelling units on the subject property from 10 to I I (the site currently contains one single- family residence and one 9-unit apartment building), where the zoning density would allow three dwelling units. The applicant had also submitted•a site plan and lot layout which would require an increased setback for the north side of the existing apartment building, which could not be met by the proposed site configuration; furthermore, the proposed property lines would not conform to minimum required setbacks. C. Gary Huff testified that he is, an attorney and that he is representing the Applicant at this hearing. Mr. Huff gave a great deal of testimony which is summarized in Exhibit B. Mr. Huff testified that the proposed subdivision should be approved because the non -conforming use would not be increased since the building is not proposed to be altered. Mr. Huff continued with further teAtimony. D. Gary Huff testified that the proposed setbacks on lot 3 does not comply with the code requirements, but could be resolved by altering a lot line -location or by removing the existing carport. Mr. Huff further testified that the applicant would apply for a variance for relief from the north setback requirement for the apartment building located on lot 1. E. Vern Bower, the applicant's surveyor testified that recorded legal descriptions and title reports revealed that the right-of-way of Talbot Road adjacent to the subject property, had never been dedicated to the City by the property owner. F. The Official Street Map shows a 60-foot right-of-way required for Talbot Road adjacent to the subject property. The Engineering Division requirements (see Attachment 4 of Exhibit A) state that the dedication is complete. Since the surveyor has provided information showing that the dedication is not complete, the applicant will be required to dedicate 30-feet from the center line west. G, Mr. Bower requested that since the street right-of-way dedication was never recorded, the on -site parking lot located to the east of the apartment building is therefore not located in City right -of - Page 2 of 4 24 Johnson S-93.129 way as was previously assumed. Therefore, the requirement to relocate the parking to the west side ofibe apartment building should be removed. 1' H. Mr. Bower also requested that the Engineering Division modify the turn -around requirement so that the required turn -around would not be located on lot 3. I• The Engineering Division clarified the turnaround requirement, to be a hammerhead turn -around which is required to be located at the east end of the access panhandle for lot 3: This requirement will reduce the lot area of lot 2. Therefore some lot line alterations may be required, 7• The required right-of-way dedication would result in the existing parking lot being off -site. The existing parking lot meets the current off-street parking requirements. Therefore, upon dedication the existing parking will no longer be on the subject site, and therefore, will not comply with the off-street parking requirements. In order to comply with the current off-street parking standards, the applicant will be required to install 9 parking spaces on the west side of the existing apartment building. K. After the conclusion of all the testimony, the Hearing Officer requested that Mr. Huff present his lengthy testimony in the form of a written brief. The hearing officer stated he would hold open the hearing for Mr, bluff to submit his testimony form of a written brief so that the City Attorney could review and respond. Mr. Huff agreed to the request. L. A written brief was received from Mr. Huff via fax on September 28, 1995 (see Exhibit B) and was forwarded to the City Attorney for review. On October 16, 1995, the Hearing Officer received a written response from the City Attorney which is identified and attached as Exhibit C. M. The City Attorney concurred that recommending denial based on an increase in the non- conforming density, is a valid interpretation of the ECDC. The City Attorney also concurred with Mr. Huff to the extent that approval could be granted for subdivisions with conforming lot sizes irregardless of the number of units on the subject property. N. h has been the policy of the City to strictly interpret the sections of the ECDC which govern non- conforming lots, buildings and uses (ECDC 17.40) in order to effectuate the purposes of this chapter and over time abate non -conforming uses, III. cONh$ A. In order for the 9-unit apartment building to comply with the parking requirements should the application receive approval, 9 additional parking spaces will be required on site. The remaining 9 stalls not provided are legal non -conforming. B The proposal is not consistent with policy regarding non -conforming uses. C. The requirements of the Engineering Division found in Attachment 4 of Exhibit A should be altered to require the dedication of the 30-feet of right-of-way of Talbot Road adjacent to the subject lot at the time of approval of this subdivision. D. The applicant has not presented arguments which alter the recommendations, facts and conclusion presented in the Preliminary Staff Report (Exhibit A), IV. EXHI Exhibits "A" through "C are attached. A - Planning Division Preliminary Staff Advisory Report B - Summary of Testimony as a brief from Gary Huff C - Comments from City Attorney Scott Snyder V. PARTIES OF R ORb Applicant Planning Division Engineering Division Page 3 of 4 25 l I. APPLICATION: A. File No. S-95-129 EXHIBIT 4 13. Site Address: 17140 Talbot Road FILE N0. 1� �" -- C. APPLICANT: Chester Johnson D. ANALYSIS OF DESIGN: 1• Zoning: The subject property is zoned RS-12 (single family residential with.a minimum 12,000 square foot lot size requirement), 2. Lot sizes and dimensions: a) Pro�_9a,_al: To divide one (1) existing lot with a total lot area of approximately 41,543 square feet (0,95 acres) into 3 lots. The exisiing lot is currently developed with one single family dweling unit and one nine unit apartment building where in a single family zone. The proposal would create a separate lot fpr the apartment and for the exisiing single family, as well as add one, addtionai building lot for a total of three lots with 11 dwelling units, (1) Lot 1: 14,715 net square,feet, 14,715 gross square feet. (2) Lot 2: 12,028 net square feet, 12,028 gross. square feet. (3) Lot 3: 13,525 net square feet, 14,800 gross square feet. c) Arms _a_nd setback Lot areas meet the minimum 12,000 square foot area for the RS-12 zone district. The setbacks for lot I are inadequate as proposal will change the required setback for the north side. Section 21,90.120 of the Edmonds Community Development Code (ECDC) defines a street as "the public or private right-of-way of access easement which provides vehicle access to more than three lots," Currently the vehicle access located on the north side of the proposed subdivision provides access to three lots. The proposed subdivision will increase that number to five, and therefore change the setback on the north side of the proposed lot 1 from a side setback of I0-feet to a street setback of 254eet. The existing 9 unit multiple family building has a conforming 10-foot north side setback. The proposal will cause that setback to become nonconforming, 1 The setbacks proposed for lot 3 are also nonconforming as proposed. Due to the location of the existing buildings on lot 3, the setback orientation requires a ten foot side setback along the north property line and a 25-foot setback along the eastern Property line, The existing buildings conform to these requirements prior to the 89512gP.DQC _ 27 EXHIBIT proposed subdivision. However, -the proposed property line separating lot 2 and lot 3 leaves a 10400t setback where a 25-foot setback is require from the property line to an out building, and a 22-foot setback to the existing house. Therefore the applicant's proposal does not meet the minimum standards found in the ECDC for setbacks. The setback orientations will be as follows: Lot 1 Lot 1 is a corner lot. Street Setbacks: From the east and north property line. Side Setbacks: From the south and west property lines. Rear Setback: N/A. Lot 2 Street Setbacks: From the north property line. Side Setbacks: From the east and west property lines. Rear Setback: From the south property line. Lot 3 Street Setbacks: From the east property line. Side Setbacks: From the north and south property lines. Rear Setback: From the west property line. 3. Lot arrangement to topography: Satisfactory. 4. Lot Cove agtof Exitn& B3jilding on Pro oscd loots: 35% maximum lot coverage is allowed a) Lot 1: The existing house on proposed lot 1 covers approximately 17% of the proposed lot. b) Lot 2: There are no existing buildings located on lot 2. c) Lot 3: The existing buildings on proposed lot 3 cover approximately 25% of the proposed lot. 5. Oon is 11t_c a h The =oges,of TheZoning.Ordinance? Proposed lot 3, of the proposaed short plat contains a nine unit apartment building and a single family house. The zoning of the site allows one single family dwelling unit on separate lots per each 12,000 square feet of lot area. Multiple family dwellings are not permitted in the RS- zone district. In addition, the density allowed by the zone district would only allow a maximum density of three dwelling units. The site currently contains ten dwelling units. Section 17.40.01 O(B) of the ECDC states "A nonconforming use may continue —but it may not be expanded in any way, including additional floor area.." Since the proposal is to allow an additional building lot, the applicant is proposing to expand the nonconforming use of excess dwelling units by adding additional dwelling units and floor area. Therefore the applicant's proposal does not meet the, minimum standards found in the Edmonds Community Development Code for density and expansion of a nonconforming use. E-1 CONFORMANCE TO COMPREHENSIVE PLAN 1. Conforms tothe nolicies Qf the Co=rehensive Plan? The City ofEdmonds Comprehensive Plan designates the subject property for Single Family Development. The existing site is developed with a multiple family development, with the applicant $95129P.00C 2 t� "g wishes to expand with a new single family residence. Therefore the proposal is not consistent with the intent of the comprehensive plan. F. ENVIRONMENTAL ASSESSMENT 1. Is this cite id n ifed on the Citv'c Envimnmentally Sen i iY9 Areas hdgp? No. 2. Is an Envirimental Checklist ,ir fa .fhi g 1p lication? Yes. A determination of nonsignificance was issued on September 11,1995. G. 'CRITICAL .AREAS REVIEW: 1. Critical Areass- view number: CA-95-115 . 2. Results Critical Areag Reviec: A study was required to identify the location of the steep banks on the west side'of the property. The applicant has not completed this. requirement. This requirement must be completed prior to the issuance of any permits or the recording of any subdivision approvals, H. REQUIRED IMPROVEMENTS AND DEDICATIONS 1. Ftigi srin , drajnage and street dedications. See City Engineer's Report (see Attachment 4). a) E= Among the many issues covered by the Engineering Division Requirements is a requirement for a 40-foot access easement to be provided from the panhandle o f lot 3 to Talbot Road. The applicant has shown that a 10-foot access easement is provided, and an additional 10400t easement is located adjacent to the proposed ten foot easement, The applicant has shown no evidence that the adjacent 10-foot easement can legally by utilized, and the total width of the two easements is 20-feet where 40-feet is required, Therefore, the applicant's proposal for a l0-foot easement with the possibility of a 20-foot easement does not meet the minimum requirement of a 40-foot easement. b) C'onclusion• The proposed right of way in addtion to the right of way with, might be available for this proposal is insuficient to support the proposed and existing number of dwelling units. 2. Parks or other faeili , c? None. II, PRELIMINARY RECOMMENDATION: enial The applicant has proposed a 3 Iot short subdivision which does not comply with several sections of the Edmonds Community Development Code. The applicant has proposed to place new property lines which cannot comply with the setbacks of existing buildings. The applicant has proposed a density which is not allowed 'by zoning code or by the Comprehensive flan. The applicant has also proposed to access the subdivision by way of an access easement which is half as wide as required by the Community Development Code for the number of dwelling units. NOTE: THE CONDITIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT ARE SUBJECT TO REVISION BASED UPON TESTIMONY AND EVIDENCE PRESENTED AT THE SCHEDULED PUBLIC HEARING ON THIS PROPOSED SUBDIVISION. 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L•'�,+�.:r,...51 .,,. _.,.� Yq .0 ry, . j> { }& 5ir;•.n . (. �(l,� .� +. ,~rt :o-sr/5�... t+�f .�J '�'F�� 'r�ttS, -. Sa' ri. ^r i�"` zT k Mk. �' . a �*•..� c �''� .... .. �t�: ri, ".u'.b� f` .r°'4�. _ ,•uJ+•a. ,�. rq1.: ��.. z � gz.'^{�I ���ak ��".�k 5,."5,�1 ,y.��. �,}��,, •a�. 1.� d"��e.,,•',b( �1 .r� 'hti, ,'��.1.. .?- aj' , �' ;��i ,'^� ,,... :.'. City I of edmonus land use application ARCHITFECTURAL DESIGN BOARD COMP PLAN CHANGE .5 -Z CONDITIONAL USE PERMIT 1 -IZ9FILE#, ZONE FORMAL SUBDIVISION DATE REO'D BY HOME OCCUPATION _ FA LOT LINE ADJUSTMENT IS RECEIPT _: E _(P OFFICIAL STREET MAP AMEND ATE PLANNED RESIDENTIAL DEVELOP. El HE 1p-41AFF 'd P13' 13 ADB. 13 CC REZONE SETBACK ADJUSTMENT SHORELINE PERMIT ACTION TAKEN: SHORT SUBDIVISION 13APPROVED 171 DENIED 13 APPEALED STREET VACATION - — -, - APOEAL# VARIANCE RESUBMIltAL FILE Applicant -4'gv-`-17-54' - ­W Phone Address -;=",7* -OV-d. Property Addressor Lobation —MM" AAMI I Property Owner Phone, Address Agent _Z�_7eMOeMoM649 z Aale-e- Phone o4fl 7?,:92 40x' IVAL ,414 2 Address 2 /2 Tax Acc # -4?Z, .4�z' — Sec...Z: Twp.,,-;7 R n g. 4'1 Legal Description 0 e t a I I s* of P r ol e o t or Proposed Use A,,lo WOW 7_10 CPC 6. A9. 00. 10/0 E, C, 01 01 VZ:_-_—_=Z: L.)MVO,44,0� 710 4iZdW 7-IY--- .40P1r1dWAe_ Ze'r_ 7A, 4n-_e_45 av'� nrhla &-wo;-14 The undersigned aFpllcant and his/her/its heirs, and assigns, in cozideration of the processing of the application I agrees to re'?,daso, Indemnify, defend and -hold the City of Edmonds armless from any and all damages, Including reasonable attorney's fees, arising from any action or Infraction based In whole or In part upon false, misleading, Inaccurate or Incomplete Information furnished by the applicant, his/her/Its agents or employees. The undersigned applicant grants his/her/Its permissl for public officials and the staff of the City of Edmonds to enter the subject property for the purpose of 4nspedtion Is I ostin hic aDpiloation. -% 32 ATT. SIGNATURE OF APPUGANT/OWNERIAGENT ,mil �'•- • ..,..I,SG/�1? �dD F » ' - '' i.i:: .. '. ems. fi'si �•� '•..w . yd`EG,iI r�f�.A�P/PIlDrt/ �i% � `, �j}fi • ,,,,, -„ �.��' 4"� " q, s •,'•' _ a. 417E Gl� 1-7 V6 L- as ........dd «-• ter, 92 s' � , •�Q L o 7~ .,3 as• A A.!.�f�re� G,rewEt .�seri�.lr�rd•,r� ? 9/ . �\.y Nei °ra•�.�,a�•;e► •� 0 a.tls'_.,���'�IdA.t',Ddl�/,•Yl �� lY.�.P�1rNPr'' 1> . � e '• �f�ri � �y 33 .CrrY OF EDMOND5 250 5T11 AVENUE NORT[i, ED MiONDS, WA 98020 (206) 771.3202 RCW 197-11-970 Determination of Nonslgnificance (DNS) DETERMYNATION t3F NONSIGNIFXCANCE Description of proposal: Three tot short subdivision in an RS-12 zone on a lot which currently has one single family dwelling unit and one nine unit multiple family dwelling building. (File No. 5-95-129) Proponent: Chester and Doris Johnson, 17000 Talbot Road, Edmonds, WA 98026. Location of proposal, Including street address if any: 17000 and 17140 Talbot Road. Lead agency: •CITY OF EDMONDIa The lead agency for this proposal has determined that it does not have a probable significant adverse impact on the environment. An environmental Impact statement is not required under RCW 4321.030(2)(c), This decision was made after review of a completed environmental checklist and.other information on file with the lead agency. This information Is available to the public on request. ._XX.... There is no comment period for this DNS. i . �.� This DNS is Issued under 197-11.340(2); the lead agency will not act on this proposal for 15 days from the date below. Comments must be submitted by Responsible official: Jeffrey S. Wilson Position/Title: Current Planning Supervisor, Department of Community Services • Planning Division Phone: 771-0220 +. Address: City of Edmonds, 250 Sth Avenue North, I~dm WA 98020 Date: 1� � Signature. • ff XX. You may appeal this determination to Rob Chave, Planning Manager, at 250 Sth Avenue North, Edmonds, WA 98020, no later than Z4 1995, by filing a written appeal citing the reasons. You should be prepared to.make specific factual objections. Contact JeffbeY S. Wilson to read or ask about the procedures for SEPA appeals. XX._ Posted on q 11 . 1991 at the Edmonds Public Library, Edmonds Community Services Bui1 ing, and the Edmonds Post Office. _ XXDistribute to "Checked" Agencies on the reverse side of this form, along with a copy of the Checklist. Mailed to the following along with the Environmental Checklist: XX Department of Ecology __XX_._ Chester Johnson Environmental Review Section 17000 Talbot Road P.O. Box 47703 Edmonds, WA 98026 j< Olympia, WA 98504-7703 X ,! Vern Bower P.O. Box 1486 E Snohomiosh, WA 98291-1486 Attachments tt pc: File No. S-95-129 SEPA Notebook Paul Mar, Community Services Director Robert Chave, Planning Manger now MEMORANDUM Crry OF EDMONDS PLANNING DIVISION 250 5TH AYME NORTH, EDMONDS, WASHINGTON 98020 TO: FILE NO. S-29-129 )FROM.- Cahn Biscpll As;�q is .�j nn P DATE: SEPTEMBER 7,1995 SUBJECT: ENVIRONMENTAL DETERMINATION FOR THREE LOT SHORT SUBDIVISION IN AN RS-12 ZONE ON A LOT WHICH CURRENTLY HAS ONE SINGLE FAMILY DWELLING UNIT AND ONE NINE UNIT MULTIPLB FAMILY DWELLING BUILDING, FILE NO. S. 9-95 I have had the opportunity to visit the site, review the environmental checklist, and subdivision Plan, a copy of which are filed in the official• file for this peril#. The site is developed with a nine unit multiple family dwelling building, and a single family dwelling, where the zoning would allow three units, Though this density is substantially higher than, allowed by code it aPpesrs that the proposal will not generate any new impacts which are not mitigated by the Edmonds Community Development Code. Drainage will be addressed by the City of Edmonds Community Development Code, section 18, which requires detention and water quality, and traffic will be assessed by the City of Edmonds street standard requirements. Issues of density in a single family zone will be addressed in the subdivision process, Based on my review of all available Wormation and adopted policies of the City, I recommend that a determination of non ign'fcanc be issued, Review by Responsible Official: I concur _ I do not concur Comments: C:::; t ef&ey S. Wilson, AICP Date Attachments Responsible Official PC: FILE NO. S-95-129 Robert Chave, Plannn ing Manager ~ -3'7 1 f . c woffl.r KARR4TUTTLE,CAMP BELL , 4aendrd1901 � Ityy �. i d1ltefirwxarssrriaCagrcrattoa SEpZ " 1201 ThW Aveawg suiUUW, Badtt1*, WA OU 931014025 99. Telephone OQO) M-19191 F+wiao 1200} $82.7100 PLAIViVisDep ^ Portland Office r 1108 S6derdp1m.1100 S.W. Sbnh Avenno, Portland, Oregon 97204.1085 Telephone (808) 248.1800, Fea¢mite 0So8) 222.4429 Please reply to Seattlo Office Gary D. Huff (aoo) zza-saza September 28, 1995 VIA FACSIMILE �j(Ir118iT Mr. John Bissell FILE NO .. - +Community. Services Department City of Edmonds 250 5th Avenue North Edmonds, WA 98020 RE: Chester Johnson Short Plat Application Dear Mr. Bissell: This letter is written in response to your request that we put into writing a synopsis of the legal arguments presented at last Friday's hearing on the above application. We are Pleased to do so in the hope that further review will lead to a favorable decision in this matter. We understand that it is your intention to have at least some of these issues reviewed by your city attorney. We would be amenable to either an in -person or telephonic Meeting if further discussion would be of assistance in resolving these issues. 1) The parking, for the artment structure was established under Snohomish County coded, r=ain5 legal =d nQ=Qnforming under ;jV ordinances, As established ' at the hearing, the apartment building was permitted and constructed under Snohomish County code provisions prior to the annexation of this area into Edmonds. The parking requirement under the than applicable codes was one space per unit. The parking for the' nine unit building was satisfied by the nine spaces along Talbot Road. This fact is important in determining whether additional parking behind the apartment is necessary to satisfy parking requirements: Only if additional parking is so required would the number of ' units needing parking in the rear be considered users of the access* drive, ..As you know, the . 0042681.01 { EXHIBIT ' 38 Mr. John Bissell September 28, 1995 Page 2 number of users of that drive determines its required width. If the apartment parking is satisfied along Talbot, then the current access drive is sufficiently wide to accommodate the three,lot short plat without•the necessity of a reduction in road standards. Section 17.40.010(A) of your code defines a nonconforming use as follows: A nonconforming use is one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of this zoning ordinance and where applicable its predecessor: The apartment was legal under Snohomish County ordinances when constructed. Annexation into Edmonds and the concurrent application of city zoning cannot change that fact. Section 17.40.010(B) provides that "(a) nonconforming use may continue..... but it may not be expanded in any way...." Thus, the nine spaces continue to be legally sufficient for this building. Further, any attempt on the part of the city to require additional parking would itself violate, your code since it would copsti the expansion of a legal nonconfoGiven the above, no apartment residents should or can be considered as users of the access drive. The prospective users would then be the remaining two lots to be established by this application and the two other residents who have a legal right to utilize the northerly 10 feet of the access drive but who have no legal right to drive onto any part of the Johnson property. Section 18.18.010 then requires only a 20 foot easement width and 16 feet of paving for drives utilized by 3 or 4 users. The current drive either satisfies that requirement or could easily be made to do so with very minor improvements. 2) Approval of this application would not _ reuresent a arohibited expansion of a This property is zoned for single family residential purposes. Under the city's view, the =tirg property is considered nonconforming. Thus, under this view, the Johnson are unable to even build a deck on their home because of the legal existence of an apartment structure several hundred feet away. This unusual interpretation stems from a very literal reading of Section 21.60.050 which defines the term =`multiple dwelling." W42681.o1 39 Mr. John Bissell September 28, 1995 Page 3 Multiple dwelling means a building or group of buildings on the same site containing two or more separate dwelling units. This definition clearly contemplates a multiple building apartment project. We are unable to make the logical leap necessary to use this language to include a single family residence which was constructed prior to the apartment and which is totally separate therefrom, within the multiple dwelling definition; particularly • when the result thereof has such wide ranging consequences. The apartment is a multiple dwelling. The single family residence is a conforming single family residence. The Johnson property houses two separate uses., multi -family and single family. The nonconformity involves the existence of the multi- family use in a single family zone. Our discussions have made clear your interpretation that creation of separate conforming lots for the existing and an additional single family residence represents an expansion of a nonconforming use, In support of your position, you point to the language of Section 1'7.40.010(B) which states that a nonconforming use "may not be expanded in, any way, including additional lot area....." You have told me that no purpose is served by the inclusion of this language in this section. Rather, you are of the opinion that the intent of this language must have been to preclude a reduction in lot area of a nonconforming use such as is proposed here. As we expressed at the hearing, we can contemplate several situations where the questioned language would be applicable. We suggested that a nonconforming car dealership, rental yard or other business with outdoor display areas may wish to expand by adding lot area. We believe these are exactly the type of situations meant to be addressed by this language. We further believe that the language must be read for what it says; not for what one might wish it said. Rather than representing an expansion, we believe the Johnson application contemplates a reduction in nonconformity. Under your interpretation, the entire Johnson property is nonconforming. If a three lot short plat is approved, then 2t3 of the site is brought into conformity with existing single family zoning. The nonconforming portion of the property is redumd from 41,000 to 14,000 square feet. The o3ly manner in which approval of this application results in an increase is in the ratio of units to lot area for proposed Lot 1 (the apartment). However, that increase also occurs with the two lot short plat the city has twice offered to approve. There, too, the ratio for the apartment lot is increased. As we noted at the hearing, we have consulted with Professor William Stoebuck of the University of Washington Law School. In addition to being one of the nation's recognized experts on property law, Professor Stoebuck has just published a two volume treatise on Washington real property law. Included at Section 4.21 thereof is a discussion of Washington OU2681.41 40 { Mr. John Bissell September 28, 1995 Page 4 law concerningnonconforming uses. Professor Stoebuck is willing to confirm in writing if necessary his opinion that so long as the apartment building is structurally left unchanged, then the reduction in its lot area arising from approval of this application. would not constitute an expansion of a nonconforming use. In his exhaustive research for this treatise, he found not a single case, which would support the city position. 3) The city's setbaek requirements are met or -can be met Approval of the T Inson application rgn be, conditioned on satisfaction of such requirements. The staff report relies on the definition of a street contained in Section 21.90.120 in arguing that approval of the Johnson application would cause the setback for the existing. apartment to violated. That section defines' a street as follows: Street means the public or private right-of-way or access easement which provides vehicle access to more than three lots. Assuming that the drive would, on approval, come within that definition, then the city considers Lot 1 to come within the definition of a corner lot. A corner lot is defined at Section 21.15.100: Corner lot meanss a lot which has frontage on two or more streets where the streets meet. The minimum street setback is established at 25 feet in Section 16.20.030. The 20 foot access along the northerly edge of the subject property. is made up of two equal parts. The northerly 10 feet thereof is comprised of an access easement across the land of the adjoining property owner. That easement is reflected at paragraph 17 of the subdivision certificate offered in evidence at the public hearing. The southerly 10 feet, from which the setback must be measured, legally serves only the Johnson properties. While the Johnsons have the right to utilize their neighbors' access, the converse is not true. Eyen i Lot 1 was considered a user thereof, there are only 3 lots utilizing that portion of the drive from which the setback is measured. Therefore, even with approval of a 3 lot short plat; the setback would not qualify as a street and the setback therefrom would remain at 10 feet. In the event the city chooses not to accept the above argument, then we request that the application nonetheless ,be approved subject to favorable action on an application for a variance from this setback requirement. oaaa�si.oi { 4 1 Raw W. John Bissell September 28, 1995 Page 5 Testimony at the public hearing we believe established the fact that the setback requirement for the existing single farm ly residence on proposed Lot 3 is satisfied. Assuming a street setback requirement of 25 feet, then the existing 26.7 foot setback is sufficient. The only remaining Lot 3 setback issue concerns the outbuilding at the southerly boundary thereof, The staff 'report attempts to impose a 25 foot setback froth the proposed easterly boundary of Lot 3. That requirement assumes that this boundary is a street lot line as defined in Section 21.90.130: Street Lot Line means the line or lines along the edgestf a ,trees or accesa right of w,ay_ or easement. . (emphasis added). By that definition, a boundary is considered a street lot line only so long as it is adjacent to a street or access easement. Thus, on Lot 3 a street lot line occurs only along the access way on the northerly side of the property. The lot lane nearest the outbuilding which forms the basis of the alleged setback violation is at. least• 60 feet away from the accoa easement. The line adjacent to the outbuilding thus cannot qualify as a street lot line. The setback would be only the existing 10 feet. We find it instructive that the city's prior planner, Wendy Schulenburg, came to the same conclusion. In her letter dated April 26, 1993, in Which she notes that the contents thereof reflect the thinking of herself and the city attorney, she states on page 2 that "....(S)ince proposed Lot 2 is not developed and the easement would terminate at Lot 3, there would not appear to be an encroachment problem on either of these lots." Regardless of the efficacy of this argument, the Lot 3 setback is not a serious problem. Should the city not accept our interpretation, then an approval could again be conditioned on approval of a variance setback. Easier still would be a requirement that the subject lot line be adjusted. 15 feet to the east adjacent to the outbuilding and slightly to the west next to the carport. If necessary to maintain 12,000 square feet in Lot 2, the easterly lot line thereof could be moved slightly eastward without negatively impacting Lot 1. We trust that this letter serves the intended purpose and will be helpful in resolving this matter. Hopefully we have demonstrated a legal and legitimate justification for approval of .M4;MI.Oi 4 8gd_l99- DATE: TO: FROM: RB: l CITY OF EDMOi` DS CIVIC CENTER + EDMONOS. WA 96020 * .(206) 776.2525 EEXHO IT _�4f- October 16, 1995 John Bissell, Associate Planner W. Scott Snyder, office of the City Attorney Chester Johnson Short Plat - Letter of Gary Huff (AURA M. HAIL MAYOR MEMORANDUM You have asked for my review and response to Mr. Huffs letter of September 28, 1995, Generally, I am responding to the issue of whether or not subdivision of. an existing nonconforming lot containing a nine -unit apartment building and a • single-family dwelling constitute expansion of a legal nonconforming use. The lots are zoned single family (RS-12) and designated single family on the Comprehensive Plan. As is noted in this memo, the more difficult issue is satisfaction of the review criteria of the subdivision code, specifically Section 20.75.080(b) and (c} These two provisions require all subdivisions to be consistent with the provisions of the Edmonds Comprehensive Plan and Zoning Ordinance. The issue as I see it is whether a newly created lot containing an existing nonconforming use complies with the zoning code and comprehensive plan. At the present time, a nonconforming, nine -unit apartment building and a single-family home are located on a large lot of approximately 44,000 square feet zoned single family (R-S). This lot is proposed to be subdivided into three lots. At issue is not the square footage necessary to subdivide the lots but rather the continuation of the apartment building as a nonconforming use after subdivision of the property, and indeed whether the subdivision can be approved. Chapter 17.40 of the Edmonds Community Development Code deals with nonconforming uses. The chapter distinguishes nonconforming .uses, buildings and lots. In this situation, the apartment building is a nonconforming use and building but not,. given the limited restrictive language of Sections 17.40.020 and 17.40.030, a nonconforming lot. The language of these specific sections is critical. Under Washington law, in the event of ambiguity, problems of interpretation should be resolved in favor of the common law right of a property owner to utilize his property. Mall Inc. Y. City of Seattle, 739 P.2d 668, 108 Wash. 2d 369 (1987). Nonconforming uses are not favored under Washington law, and abatement is reviewed in strict conformity with the language of the City ordinance. ]Keller v. Bellingham, 92 Wash. 29 726, Incorporated August I1, 1890 0 Sister Cities International •-- Hekinan, Japan 600 P.2d 1276 (1979). The purpose of ordinances restricting nonconforming uses is to bring about their eventual abatement and extinguishment of the nonconforming use,. A nonconforming use is: ' one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of the zoning ordinance and, where applicable, it predecessor. ECDC 17.40.010(a).' A nonconforming use may continue unless required to be abated "... but it may not be expanded in any way, including additional lot area, floor area, height, number of employees, equipment, or hours .of operation.". I note in Mr. ;Muffs letter some discussion of the language regarding lot area. As normally applied, this language refers, for example, to a business's attempt to utilize additional lot or floor area for a use not previously in the. nonconforming use. In other words, a business which had a nonconforming outside storage could not expand the storage use to occupy additional new lot area. In my experience and reading, the lot area description does not anticipate a lot lane adjustment to add square footage to a lot upon which a nonconforming use is in .operation. Remember, we ,are discussing a nonconforming use, not a nonconforming lot. The provisions of 17.40.020 and 17.40.030 both appear limited on their terms to bulb zoning and site development standards. 17,40.020(a) defines a nonconforming building as: . . . one which once met bulk zoning standards and site dev llopment stances applicable to its construction, which no. longer conforms to such standards.... Emphasis added. It is my understanding that the existing lot does not have existing setback problems. Rather, there are three areas of nonconformity: 1. Multi -family dwellings are not a permitted use for the zone. ECDC 16.20.010(a)(1). 2. The density violates the table of lot development standards. ECDC 16.20.030. The zone is not as clear as the site development standards set forth for the multi -family zones in ECDC 16.30.030, [16.20.030 refers to "minimum lot area (sq. ft.)" while 16.30.030(a) refers to "minimum lot area per dwelling unit (sq. ft.)."] Read together, however, the two sections seem clear that a minimum of 12,000 square feet per dwelling unit is required in' an RS-12 zone. 45 Memorandum to John Bissell October 16, 1995 Page 3 3. If approved, additional parldng is required for the use if multi -family zone standards are applicable. See later discussion. This case presents a difficult call both legally and in terms of policy considerations. In the past the staff has strictly construed the nonconforming lot provisions in order to effectuate the purpose of the chapter. and over time abat,u-, noncoufornzing uses. As* you are'aware, the nonconforming use provisions have been changed in recent years to provide more flexibility regarding lot size. Similarly, the adoption of the countywide planning policies and population growth encourage the City to accept additional growth. At the center of any interpretation of the current code provisions is a determination of whether the subdivision proposal is consistent with the letter and purpose of the City's comprehensive plan and zoning code. There are two maximums of judicial interpretation applicable to the subdivision and zoning code at this point, and their application yields different results. The two general approaches are as follows: .... 9II� 1. �GNSTRUCTTOld ABATROM.- BEM ,rM-THEMIRPOSE DE THE C This approach would -construe the .code in order to effectuate its purpose. Feller, =. The purpose' of a nonconforming limitations is to eventually abate the nonconformity. As noted, this lot has three potential areas of nonconformity and approving the subdivision would permit perpetuation of the existing nonconforming use. The. nonconforming use is at odds with the comprehensive plan designation and the zoning designation for the lot, and the lot therefore fails to meet RS Cite Development standards. This interpretation would require you to incorporate cite development standards applicable to RM zoning in the RS zone .even though not specifically spelled out. In other words, the RS zone does not anticipate the creation of perpetuation of a multiple dwelling nonconforming use, and therefore does not specifically reference panting density limitations. In order for a subdivision to be approved, it must meet all -of the criteria and general findings of Section 20.75.080. Subsection C of this section requires a new lot to comply with the zoning code and therefore cite development standards. In summary, a subdivision of the lot creating three new lots must comply with the comprehensive plan and zoning code. If you disapprove this subdivision your finding should: 46 multi -family dwelling would not comply with the provisions of the required findings of Section 20.75.080(c) in that it does not meet the cite development standards of the RM zone incorporated by IMO-gWiQ into the RS zone, While this interpretation runs counter to the general preposition that zoning code should be strictly construed due to the common law property rights of land owners, it does best effectuate the purpose of the code and avoids the anomaly of having a nonconforming use in an RS zone without site development standards applicable to less restrictive RM zoning. 2. LIBERAL COIF: TRUCTxON AND EMPHASIS OF ROLE OF CHAPTER 17,40. If you determine it appropriate to approve the subdivision for policy reasons, your findings would stress that the existence of Chapter 17.40 approves nonconforming uses. Therefore their continuation in accordance with the provisions of the chapter are in compliance with the comprehensive plan and zoning code, meet the criteria of Chapter 20.75.080(b)(c). Your findings would also cite the maxim of interpretation regarding strict construction in order to permit full use of the property in accordance with the common law of property rights of the owner rather than the "liberal interpretation to effectuate the purpose of the zoning code" maximum. See eiler, supra, VARiAN'CE- I note that Mr. Huff in his letter discusses the use of a variance. The variance criteria of Section 20.75.075 requires that in order for a variance to be granted all of the criteria must be met. Section 20,75.b10(A)(2) require that a variance not be granted where the special circumstances finding is predicated upon "a fact or person of the owner..., extra expense which i CITY OF ED.MONDS LAURAM.HALL 2S0 - STH AVE. N. • EDMONOS. WA 98020 • (208) 771.0220 . FAX (208) 771-0221 MAYOR HEARING EXAMINER p890.10© FM";DINGSq CONCLUSIONS AND DECISION OF THE HEA UNG EXA.NIINEit CITY' OF EDMONDS APPELLANT: Chester Johnson (see Exhibit A, Attachment 2) ORIGINAL APPLICANT: Chester Johnson (see Exhibit A, Attachments 2 and 4) CASE NW S-95-129 LOCATION: 17000 Talbot Road (see Exhibit A, Attachment 1) REQUEST: Appeal of Hearing Officer's decision to deny a 3-lot short subdivision request under file number S-95-129. REVIEW PROCESS: Appeal of approval of a Short Subdivision, Hearing Examiner conducts public hearing and makes final. decision. MAJORISSUES: 1. Compliance width Edmonds Community Development Code (ECDC) Chapter 16.20.020 (RS-12 Development Standards. including setbacks and density). 2. Compliance width Edmonds Community Development Code (ECDC) Chapter 18.80.010 (Street and Driveway Standards). 3. Compliance with Edmonds Community Development Code (ECDC) Chapter 20.105 (Appeals and Court'Review). DESCRIPTION OF PROPOSAL: Chester Johnson proposed to divide one (1) existing lot with a total lot area of approximately 41;543 square feet (0.95 acres) into 3 lots. The existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. The site is zoned in a single family, RS-12. The proposal would create a separate lot for the apartment building and for the existing single-family residence, as well as add one additional building lot for a total of three lots and potential for 11 dwelling - ' units. • Incorporated August 1I, 1890 +•. r 9 ' Sister Cities International' — Hekinan, Japan i b i ` _ , Staff Recommendation: Deny Hearing Examiner Decision: Deny PUBLIC HEARING: After reviewing the official file which included the Planning Division Staff Advisory Report; and after visiting the site, the Bearing Examiner conducted a public hearing on the application. The hearing on the Johnson application was opened at 9:14 a.m., January 18,1996, in the Plaza Room, Edmonds Library, Edmonds, Washington, and closed at 10:18 am. The record was held open until February 1, 1996 to obtain additional information from the City regarding interpretations of street setbacks on flag lots and from the applicant on applicable Snohomish County regulations for multiple family at the time of the construction of the apartments and more specific dimensions related to the location of the parking relative to the proposed right-of- way. Participants at the public hearing and the exhibits offered and entered are listed in this report. A verbatim recording of the hearing is available in. the Planning Division. HEARING COMMENTS: The following is a summary of the comments offered at the public hearing. From the City: John Bissell, Project Planner, summarized the staff report and presented the staff recommendation to deny the appeal. He summarized the four items in the .appeal, as follows: 1. In the issue of non-conformance of use, a valid argument for either side could be made based on City policy; 2. At the hearing on the short plat it was determined that the City did not have the right of way adjacent to this lot and therefore it appeared that the parking would be partially on City right of way when dedicated; therefore, a 40' wide easement (not 20') would be required to serve the site; 3. indicated that existing setback issues could be resolved by demolition, variance or lot - line adjustments; and 4. Clarified that the decision was issued in a timely manner since the hearing was held open. From the Applicant: . Gary D. Huff, representing the Johnson, explained that they want to provide a lot for their children to build on. He noted that the 9 unit apartment was built in 1959 in Snohomish County with a parking requirement of 1 space per unit which were provided adjacent to the street. He discussed the issues of the appeal, noting that the subdivision did not change the 50 Hearing Examiner Decision Case No. AP-95-189 Page 3 non -conforming apartment use and would reduce the non -conformity of the existing single family home which by City definition is also considered a multiple unit. He noted that there is a 20' wide easement and that a subdivision could be approved subject to receiving a variance from the 40' wide easement requirement. He also stated that the setback issues could be resolved through adjustments to the proposed lot lines in the subdivision. He noted that the staff -had stated they would agree to a 2 lot subdivision since the density remains the same. He also argued that the single family home should not be considered it multiple family - that the intent was multiple building multiple family projects. From the Community: John Hjort, who lives across the street, stated that the apartments did not cause a problem and that the construction of a new house wouldn't really be seen due to the topography. He saw this as a technical issue which should be resolved since it wouldn't hurt the neighborhood. wRl*rTEN CONeV ENTS: } None received. FINDINGS OF FACT AND CONCLUSIONS A. Site Description 1. Site Development and Zoning: a. Facts: (1) Size: The total size of the subject property is approximately 41,543 square feet (0.95 acres). The size of each proposed lot is: N_t t__So.Ft. i Cass S _ Fi Lot 1: a 14,715 -1 14,715 _Lot 2: 112,028 _Lot 3: _i 13,525 __-i 14,800 (2) Land Use: The existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. The site is zoned in a single family, RS-12. The proposal would create a separate lot for the apartment building and for the existing single-family residence, as well as add one additional building lot for a total of three lots and potential for 11 dwelling units (see Exhibit A, Attachment 4). (3) Zoning% The subject property is zoned RS-12 (single residential family with a minimum. 12,000 square foot lot size requirement) (see Exhibit A, Attachment 1). (3) Terrain and Vegetation: The subject property slopes gently from the east to west with a steep bank along the western property line. Vegetation on the site consists of ornamental landscaping with native vegetation along the western bank. (4) Development of Apartment in Snohomish County: It was noted in the testimony that the apartments were built in 1959 while the property was under the jurisdiction of Snohomish County. it has been determined that the parking requirement was one space for each unit. That amount of parking is located 51 directly off the street and the furthest point of the parking area is 43'. from the assumed centerline of the R.O.W. - The applicant was not able to determine with complete certainty what the applicable zoning regulations relative to lot area requirements were at the time of construction; however, the information provided (Exhibit D) would indicate that it is likely that a 9 unit apartment would require a 26,500 square foot lot (7 -10 units requiring 22,000 square feet plus 2 units over 7 at 2250 each or 4,500 square feet). b. Conclusion: In the applicant's response, (Exhibit D) it was noted that the best course "... is to assume that the apartment was constructed as permitted and in compliance with then effective zoning regulations." Although it is not absolutely certain:, it appears that this is correct in that the entire parcel is 41,543 square feet. If the gross square footage for the existing single family house is assumed at the 14,800 square feet as proposed for lot 3; this leaves 26,743 square feet which is essentially the same as the 26,500 square feet which is assumed to be required for a 9 unit apartment. Therefore, it is concluded that the current development was consistent with then effective zoning regulations and the addition of a third property would increase the non -conformity. 2. Neighboring Development and Zoning: a. Facts: (1) The adjacent properties to the north, south, east, and west are currently zoned as single-family (RS-12) (see Exhibit A, Attachment 1). (2) The adjacent properties to the east, north, and south are currently developed with single-family homes. B. History 1. Facts: The following is a chronological account of the development of the property located at 17000 Talbot Road. The purpose is to clarify the review process for this proposal, as well as outline the appeals that have taken place. a. August 3,1995: Chester Johnson applies for a 3-lot short plat. (file No. 5-95-129) b. September 22, 1995: Staff conducted a public hearing on the proposed 3-lot short plat (see Exhibit A, Attachment 4). 1 c. September 29,1995: Gary Huff, Attorney for the Applicant submitted a brief summarizing his testimony (see Exhibit A, Attachment 4) d. October 18, i995: Scott Snyder, City Attorney submitted comments on the September 29,1995 letter from Mr. Huff, Hearing Closed. e. November 15,1995: Appellant files an appeal of the City of Edmonds decision denying the Chester Johnson 31ot short plat (see Exhibit A, Attachment 2). 2. Conclusion: The decision of the City of Edmonds was issued in a timely manner. 52 Hearing Examiner Decision Case No. AP-95-189 Page 5 C. Edmonds Community Development Code (ECDC) Compliance 1. Facts: The fundamental site development standards pertaining to Residential development in a RS-12 zone are set forth in Chapter 16.20.030. The existing development does not conform to all RS-12 requirements in that the existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment • , building. This create a total of 10 existing dwelling units on one lot in a single family zone (RS-12). The maximum number of dwelling units allowed by the RS 12 zone on a single lot is one (1). The proposal would create a separate lot for the apartment and for the existing single family building, as well as add one additional building lot for a total of three (3) lots with 11 dwelling units. In addition, the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision. The applicant has also proposed to access the subdivision via a 20-foot wide access easement where a 40-foot wide access is required based on the number of proposed dwelling units to be served (see Exhibit A, Attachment 4). 1 2. Conclusion: The proposal does not comply with the development standards for the RS- 12 zone as set forth in Chapter 16.20 or the street and driveway standards as required by Chapter 18.80 because the applicant is proposing a development which would allow 11 dwelling units where the density allowed in the RS-12 zone would allow three (3) dwelling units. Additionally the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision, and because the proposed access easement is 20 feet wide, where a 40 foot wide access easement is required. DECISION Based upon the foregoing findings and conclusions, the appeal by Chester Johnson is denied. Entered this 15th day of February, 1996, pursuant to the authority granted the Hearing Examiner under Chapter 20.100 of the Community Development Code of the City of Edmonds. Robert Glftrke Hearing Examiner Pro Tem RECONSIDERATION AND APPEALS: The following is a summary of the deadlines and procedures for filing reconsiderations and appeals. Any person wishing to file or respond to a recommendation or appeal should contact the Planning Department for further procedural information. 53 ' t t Hearing Examiner Decision Case No. AP-95489 Page 6 A. REQUEST FOR RECONSIDERATION: ,Section 20.100.010.0 allows for the Hearing Examiner to reconsider his decision or recommendation if a written request is filed within ten (10) working days of the date of the initial decision by any person who attends the public hearing and signs the attendance register and/or presents testimariy, or by any person holding an ownership interest in a tract of land which is the subject of such decision or recommendation. The reconsideration request must cite specific references to the findings and/or the criteria contained in the ordinances governing the type of application being reviewed B. APPEALS: Section 20.105.020.A & B describe how appeals of a Hearing Examiner decision or recommendation shall be made. The appeal shall be made in writing, and shall include the decision being appealed along the name of the project and the date of the decision, the name of the individual or group appealing the decision, their interest in the matter, and reasons why the appellant believes the decision to be wrong. The appeal must. be filed with the Community Development Director within. ten (10) working days -after the date of the decision being appealed. EXI111BITS: The following exhibits were offered and entered into the record. A. Planning Division Advisory Report with five attachments B. Large, mounted Engineering drawing of proposed short plat C. Interpretation File 91-5 regarding setbacks for "Flag Lots" D. Letter from Gary D. Huff, dated February 1, 1996, regarding location of parking area and information on applicable zoning requirements in Snohomish County PARTIES off' RECORD: John L. Hjort Chester Johnson 17121 Talbot Road 17000 Talbot Road Edmonds, WA 98026 Edmonds, WA 98026 Gary D. Huff Inge Johnson 1201 Third Avenue, #2900 David Johnson Seattle, WA 98101 21221 Cypress Way Lynnwood, WA 98036 Jack Fritz Ann Landberg Jill Fritz 16900 Talbot Road 17140 Talbot Road, #9 Edmonds, WA 98026 Edmonds, WA 98026 Low Offim KARR-TUTTLE, CAMPB ELL A Pm&kxdS-W= C070106- 2201 Third Avenue, Suits 2000, Seat" Wadatt'n 0e101.3025 Telephone (200) 223-1818, Facstinfle two) 082.7100 Fordandoffift im stondwanaze, 1100 S.W. SLX& Avenue, Putland, Oxegon 97204-1085 Telephone (508) 248-1880. FICAWIS (503) 2224U9 plem reply to Seattle 0SIN Gary D. Huff (206) 224-8024 VIA FACSIMILE Mr. John Bissell Community Services Department City of Edmonds 250 5th Avenue North Edmonds, WA 98020 September 28, 1995 RE: Chester Johnson Short Plat Application Dear Mr, Bissell: SEP 2 9 1995 p4mvj, This letter is written in response to your request that we put into writing a synopsis of the legal arguments presented at last Friday's hearing on the above application. We are pleased to do so in the hope that further review Will lead to a favorable decision in this matter. We understand that it is your intention to have at least some of these issues reviewed by your city attorney.' We would be amenable to either an in -person or telephonic meeting if father discussion would be of assistance in resolving these issues. 9, As established at the hearing, the apartment building was permitted and constructed under Snohomish County code provisions prior to the annexation of this area into Edmonds. The parking requirement under the then applicable codes was one space per unit. The parking for the nine unit building was satisfied by the nine spaces along Talbot Road. This.fact is important in, determining whether additional parking behind the apartment is necessary to satisfy parking requirements. Only if additional parking is so required would the number of, units needing parking in the rear be considered users of the access drive. As you know, the 56 ;042681.0t ' Mr. John Bissell September 28, 1995 Page 2 number of users of that drive determines its required width. If the apartment parking is satisfied along Talbot, then the current access drive is sufficiently wide to accommodate the three lot short plat without the necessity of a reduction in road standards. Section 17.40.010(A) of your code defines a nonconforming use as follows: A nonconforming use is one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of this zoning ordinance and where applicable its predecessor. The apartment was legal under Snohomish County ordinances when constructed. Annexation into Edmonds and the concurrent application of city .zoning cannot change that fact. Section 17.40.010(B) provides that "(a) nonconforming use may continue..... but it 5 may not be expanded in any way...." t Thus, the nine spaces continue to be legally sufficient for this building. Further, any attempt on the part of the city to require additional parking would itself violate your code since it. would constitute the expansion of a_%gal nonconforming use Given the above, no apartment residents should or can be considered as users of the access drive. The prospective users would then be the remaining two lots to be established by this application and the two other residents who have a legal right to utilize the northerly 10 feet of the access drive but who have no legal right to drive onto any part of the Johnson property. Section 18.18.010 then requires only a 20 foot easement width and 16 feet of paving for drives utilized by 3 or 4 users. The current drive either satisfies that requirement or could easily be made to do so 'with very minor improvements: 2) AppMal of his application would not represent a prohibited expansion of a nonconforming use. This property is zoned for single family residential purposes. Under the city's view, the =Iim property is considered nonconforming. Thus, under this view, the Johnsons are unable to even build a deck on their home because of the legal existence of an apartment structure several hundred feet away. This unusual interpretation stems from a very literal reading of Section 21.60.050 which defines the term "multiple dwelling." 0=681.01 1 57 181r. John Bissell September 28, 1995 Page 3 Multiple dwelling means a building or group of buildings On the same site containing two or more separate dwelling units. This definition clearly contemplates a multiple building apartment project. We are unable to make the logical leap necessary to use this language to include a single family residence which was constructed prior * to the apartment and which is totally separate therefrom, within the multiple dwelling . definition; Particularly when the result thereof has such wide ranging consequences. The, apartment is a multiple dwelling. The single family residence is a conforming single family residence. The Johnson property houses two separate uses: multi -family and single family. The nonconformity involves the existence of the multi- family use in a single family zone. Our discussions have made clear your interpretation that creation of separate conforming lots for the existing and an additional single family residence represents an expansion of a nonconforming use. In support of your position, you point to the language of Section 17.40.016(B) which states that a nonconforming use "may not be expanded in any way, including additional lot area ..... " You have told me that no purpose is served by the inclusion of this language in this section. Rather, you are of the opinion that the intent of this language must have been to preclude a reduction in lot area of a nonconforming use such as is proposed here. As we expressed at the hearing, we can contemplate several situations where the questioned language would be applicable. We suggested that a nonconforming car dealership, rental yard or other business with outdoor display areas may, wish to expand by adding lot area. We believe these are exactly the type of situations meant to be addressed by this language. We further believe that the language must be read for what it says; not for what one might wish it said. Rather than representing an expansion, we believe the Johnson application contemplates a reduction in nonconformity. Und.,-r your interpretation, the =i= Johnson property is nonconforming. If a three lot short plat is approved, then.213 of the site is brought 1= conformity with existing single family zoning. The nonconforming portion of the property is reduced from 41,000 to 14,000 square feet. The Omly manne.r. in which approval of this application results in an ivapm is in the ratio of units to lot area for proposed Lot 1 (the apartment). However, that increase also occurs with the two lot short plat the city has twice offered to approve. There, too, the ratio for the apartment lot is increased. As we noted at the hearing, we have consulted with Professor William Stoebuck of the University of Washington Law School. In addition to being one of the nation's recognized experts on property law, Professor Stoebuck has just published a two volume treatise on Washington real property law. Included at Section 4.21 thereof is a discussion of Washington 0042681.01 58 r Mr. John Bissell September 28, 1995 Page 4 law concerning nonconforming uses. Professor Stoebuck is willing •to confirm in writing if necessary his opinion that, so long as the apartment building is structurally left unchanged, then the reduction in its lot area arising from approval of this application would not constitute an expansion of a nonconforming use. In his exhaustive research for this treatise, he found not a single case which would support the city position, 3) The cijy's setback requirements are met or can .be met . Approval of the-- Jolinson application can be conditioned an satisfaction of such requirements. The staff report relies on the definition of a street contained in Section 21.90.120 in arguing that approval of the Johnson application would cause the setback for the existing apartment to violated. That section defines a street as follows: Street means the public or private right-of-way or access easement which provides vehicle access to more than three lots. Assuming that the drive would, on approval, come within that definition, then the city considers Lot 1 to come within the definition of a corner lot. A comer lot is defined at Section 21.15.100: I Comer lot means a •lot which has frontage on two or more streets where the streets meet. I The minimum street setback is established at 25 feet in Section 16.20.030. i The 20 foot access along the northerly edge of the subject property is made up of two equal parts. The northerly 10 feet thereof is comprised of an access easement across the, land of ,he adjoining property owner. That easement is reflected at paragraph 17 of the subdivision certificate offered in evidence at the public hearing. The southerly 10 feet, from which the setback must be measured, legally serves only tie Johnson •Drone 'efi. While the Johnsons have the right to utilize their neighbors' access, the converse is not true. en Lot 1 was considered a user thereof, there are only 3 lots utilizing that portion of the drive from which the setback is measured. Therefore, even with approval of a 3 lot short plat, the setback would not qualify as a street and the setback therefrom would remain at 10 feet. In the event the city chooses not to accept the above argument, then we request that the application nonetheless be approved subject to favorable action on an application for a variance from this setback requirement. i j 0042681.01 59 W. John Bissell September 28, 1995. Page 5 Testimony at the public hearing we believe established the fact that the setback requirement for the existing single family residence on proposed Lot 3 is satisfied. Assuming a street setback requirement of 25 feet, then the existing 26.7 foot setback is sufficient. The only remaining Lot 3 setback issue concerns the Outbuilding at the southerly boundary thereof. The staff report attempts to impose a 25 foot setback from the proposed easterly boundary of Lot 3. That requirement assumes that this boundary is a street lot line as defined in Section 21.90.130. Street lot Line means the line or lines access right - of -way or eacmnrient......(emphasis added). By that definition, a boundary is considered a street lot line only so long as it is adjacent to a street or access easement. Thus, on Lot 3 a street lot line occurs only along the access way on the northerly side of the property. The lot line nearest the outbuilding which forms the basis of the alleged setback violation is fi 1paSt 60 feP�w y from the access easement, The line adjacent to the outbuilding thus cannot qualify as a street lot line. The setback would be only the existing 10 feet. We fund it instructive that the city's prior planner, Wendy Schuienburg, came to the same conclusion. In her letter dated April 26, 1993, in which she notes that the contents thereof reflect the thinking of herself and the city attorney, she states on page 2 that "....(S)ince proposed Lot 2 is not developed and the easement would terminate at Lot 3, there would not appear to be an encroachment problem on either of these lots." Regardless of the efficacy of this argument, the Lot 3 setback is not a serious problem. Should the city not accept our interpretation, then an approval could again be conditioned on approval of a variance setback. Easier still would be a requirement that the subject lot line be adjusted 15 feet to the. east adjacent to the o�lutbuilding and slightly to the west next to the carport. If necessary to maintain 12.000 square feet in Lot 2,. the easterly lot line thereof could be moved slightly eastward without negatively impacting Lot 1. We trust that this letter serves the intended purpose and will be helpful in resolving this matter. Hopefully we have demonstrated a legal and legitimate justification for approval of 004=1.0n CITY OF EDMONDS CIVIC CENTER • EDMONDS, WA 90020 • i208i 775-2525 8.0.1gy DATE: October 16, 1995 To: John Bissell, Associate Planner FROM: W. Scott Snyder, Office of the City Attorney RE: Chester Johnson Short Plat - Letter of Gary Huff LAURA M. HALL MAYOR You have asked for my review and response to Mr. Huffs letter of September 28, .1995. Generally, I am responding to the issue of whether or not subdivision of an existing nonconforming lot containing a nine -unit apartment building and a single-family dwelling constitute expansion of a legal nonconforming use. The lots are zoned single family (RS-12) and designated single family on the Comprehensive Plan. As is noted in this memo, the more difficult issue is satisfaction of the review criteria of the subdivision code, specifically Section 20.75.080(b) and (c). These two provisions require all subdivisions to be consistent with the provisions of the Edmonds Comprehensive Plan and Zoning Ordinance. The issue as I see it is whether a newly created lot containing an existing nonconforming use complies with the zoning code and comprehensive plan. At the present time, a nonconforming, nine -unit apartment building and a single-family home are located on.a large lot of approximately 44,000 square feet zoned single family (R-S). This lot is proposed to be subdivided into three lots. At issue is not the square footage necessary to subdivide the lots but rather the continuation of the apartment building as a nonconforming use after subdivision of the property, and indeed whether the subdivision can be approved. Chapter 17.40 of the Edmonds Community Development Code deals with nonconforming uses. The chapter distinguishes nonconforming uses, buildings and lots. In this situation, the apartment building is a nonconforming use and building but not, given the limited restrictive language of Sections 17.40.020 and 17.40.030, a nonconforming lot. The language of these specific sections is critical. Under Washington law, in the event of ambiguity, problems of interpretation should be resolved in favor of the common law right of a property owner to utilize his property. Man Inc V. - City of Seattle, 739 P.2d 668, 108 Wash. 2d 369 (1987). Nonconforming uses are not favored under Washington law, and abatement is reviewed in strict conformity with the language of the City ordinance. Keller v Bell' am, 92 Wash- 29 726, 19 incorporated August 11, 1890 * - 1 i Sister Cities International -- Hekinan, Japan j Memorandum to John Bissell October 16, 1995 Page 2 600 P.2d 1276 (1979). The purpose of ordinances restricting nonconforming uses is to bring about their eventual abatement and extinguishment of the nonconforming use. Ibid. . A nonconforming use is: . one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of the zoning ordinance and, where applicable, it predecessor. iyy ECDC 17.40.010(a)• A nonconforming use may continue unless required to be abated "... but I it may not be expanded in any way, including additional lot area, floor area, height, number of employees, equipment, or hours of operation." I note in Mr. Huff s letter some discussion of the language regarding lot area. As normally applied, this language refers, for example, to a business's attempt to utilize additional lot or floor area fora use not previously in the nonconforming use. In other words, a business which had a nonconforming outside storage could not expand the storage use to occupy additional new lot area. In my experience and reading, the lot area description does not anticipate a lot line adjustment to add square footage to a lot upon which a nonconforming use is in operation. Remember, we are discussing a nonconforming use, not a nonconforming lot. i The provisions of 17.40.020 and 17.40.030 both appear limited on their terms to bulk zoning I and site development standards. 17,.40.020(a) defines a nonconforming building as: . one which once met bulk zoning standards and site develwme t andards applicable to its construction, which no longer conforms to such standards.... Emphasis added. It is my understanding that the existing lot does not have existing setback problems. Rather, there are three' areas of nonconformity: 1. Multi -family dwellings are not a permitted use for the zone. ECDC 16.20.010(a)(1). 2. The density violates the table of lot development standards. ECDC 16.20.030. The zone is not as clear as the site development standards set forth for the multi -family zones m ECDC 16.30.030. [16.20.030 refers to "minimum lot area (sq. ft.)" while 16.30.030(a) refers to "minimum lot area per dwelling unit (sq. ft.). "] Read together, however, the two sections seem clear that a minimum of 12,000 square feet per dwelling unit is required in an RS-12 zone. M 1 Memorandum to John Bissell . October 16, 1995 Page 3 3. if approved, additional parking is required for the use if multi -family zone standards are applicable. See later discussion. This case presents a difficult call both legally and in terms of policy considerations. In the past the staff has strictly construed the nonconforming lot provisions in order to effectuate the purpose of the chapter and over time abate, nonconforming uses. As- you are aware, the nonconforming use provisions have been changed in recent years to provide more flexibility regarding lot size. Similarly, the adoption of the county -wide planning policies and population growth encourage the City to accept additional growth. At the center of any interpretation of the current code provisions is a determination of whether the subdivision proposal is consistent with the letter and purpose of the City's comprehensive plan and zoning code. There are two maximums of judicial interpretation applicable to the subdivision and zoning code at this point, and their application yields different results. The two general approaches are as follows: 1. S LCT CONSTRUCTION AR ENT - EFFECTUAPURPOSE OF 'i'HE, _CODE. This approach would construe the code in order to effectuate its purpose. Ke ler, supra.. The purpose, of a nonconforming limitations is to eventually abate the nonconformity. As noted, this lot has three potential areas of nonconformity and approving the subdivision would permit perpetuation of the existing nonconforming use. The nonconforming use is at odds with the comprehensive plan designation and the zoning designation for -'the lot, and the lot therefore fails to meet RS Cite Development standards. This interpretation would require you to incorporate cite development standards applicable to RM zoning in the RS.zone even though not specifically spelled out. In .other words, the RS zone does not anticipate the creation of perpetuation of a multiple dwelling nonconforming use, and therefore does not specifically reference parldng density limitations. In order for a subdivision to be approved, it must meet all of the criteria and general findings of Section 20.75.080. Subsection C of this section requires' a new lot to comply with the zoning code and therefore cite development standards. In summary, a subdivision of the lot creating three new lots must comply with the comprehensive plan and zoning code. If you disapprove this subdivision your finding should: ,A 4 Memorandum to John Bissell October 16, 1995 Page 4 a. Find that the newly created lot would violate the comprehensive plan single family residential designation and therefore it cannot make required finding Section 20.75.080(b). b. Find that the new subdivision lot containing the multi -family dwelling would not comply with the provisions of the required findings of Section 20.75.050(c) in that it does not meet the cite development standards of the RM zone incorporated by e► jOflon into 'the RS zone. While this interpretation runs counter to the general proposition that zoning code should be strictly construed due to the common law property rights of land owners, it does best effectuate the purpose of the code and avoids the anomaly of having a nonconforming use in an RS zone without site development standards applicable to less restrictive RM zoning. I`� �_� _. 2. LIBERAL COMTRUCMN AND HMYtiA� t,��r �! �i� � •, ;. 1, ,-,�. If you determine it appropriate to approve the subdivision for policy reasons, your findings would stress that the existence of Chapter 17.40 approves nonconforming uses. Therefore their continuation in accordance with the provisions of the chapter are in compliance with the comprehensive plan and zoning code, meet the criteria of Chapter 20.75.080(b)(c). Your findings would also cite the maxim of interpretation regarding strict construction in order to Permit full use of the property in accordance with the common law of property rights of the owner rather than the "liberal interpretation to effectuate the purpose of the zoning code° maximum. See Keller, suvra. VAPJA_NCE: I note that Mr. Buff in his letter discusses the use of a variance. The variance criteria. of Section 20.75.075 requires that in order for a variance to be granted all of the criteria must be met. Section 20.75.010(A)(2) require that a variance not be granted where the special. circumstances finding is predicated upon "a fact or person of the owner..., extra expense which t Memorandum to Sohn Bissell Gciober 16, 1995 Page 5 maybe necessary to comply with the zoning :ordinance,..: nor, any factor resulting from the action of the owner or any. past owner of.the same property" This section has frequently been applied by the City Council to deny. a variance where the problem was created by a predecessor _= in title.. This may be a Harsh result, but strict application of variance requirements has long been upheld by the washington courts in similar situations. See I pwisV. Citvof Medina, 535 P.2d -,{ 150, 13: Wash. App. 501, affirmed 548 P.2d 1093, 87 Wash. 2d 19 (1975). w35113W7.iM11=.72V M. is OUNTY VICINITY MAP + .,_ ,., J •fir. , ze IVIZ ?.rwa __rddm✓Er..dil T.2.71V . .6'� �--- ,tYir. q ,�-o.4s� /!� �,,•�� .�PfU/.S/OILS zdE . �. A t1i?lrvrarEG,rorE1 �,rr�:rar2-W1991 � Jr(� --, � � '�'�c ti �,�,.. � 2. �'t//,?sip' , ,lk�anrPA+� •�''z•3'%�. •�•9�- �^-.,�, �`�i- "�' 1',i1YJT. LdSPiiI.PT.T17,.�E''.�.t2ass"�!� o Q /M:t'...f.'jk -f aolWPLINfsAa � r .�� 2D:�dfEiYlfiff' 68 IT . ,�w�� ,,,�, _.-- ... -r••- it , � �rl%1R•[�.�:fG�,.L�/fi/,-�.f+/�%�%•.�r�,/,f Xfl�%a' �� �/.�• !�'.,�" ''' _ ..._ was j p11iENSl1$. Ere a r �3 1 + Chapter 20.85 VARIANCES Sections: 20.85.000 Scope. 20.85.010 Findings. 20.85.020. General requirements. 20.85.000 Scope. A variance to any requirement of the zoning ordinance (ECDC Titles 16 and 17) except use and procedural requirements may be approved when the findings required by this chapter can be made. 20.85.010 Findings. 'No variance may be approved unless all of the findings in this section can be made. A. Special Circumstances. That, because of special circumstances relating to the property, the strict enforcement of the zoning ordinance would deprive the owner of use rights and privileges permitted to other properties in the vicinity with the same zoning. 1. Special circumstances include the size, shape, topography, location or surround- ings of the property, public necessity as of pub- lic structures and uses as set forth in ECDC 17.00.030 and environmental factors such as vegetation, streams, ponds and wildlife habi- tats. 2. Special circumstances should not be predicated upon any factor personal to the owner such as age or disability, extra expense which may be necessary to comply with the zoning ordinance, the ability to secure a scenic view, the ability to make more profitable use of the property, nor any factor resulting from the action of the owner or any past owner of the same property; B. Special Privilege. That the approval of the variance would not be a grant of special privilege to the property in comparison with the limitations upon other properties in the vicinity with the same zoning; Edmonds Community Development Code C. Comprehensive Plan. That the approval of the variance will be consistent with the com- prehensive plan; D. Zoning Ordinance. That the approval of the variance will be consistent with the pur- poses of the zoning ordinance and the zone dis- trict in which the property is located; E. Not Detrimental. That the variance as approved or conditionally approved will not be significantly detrimental to the public health, safety and welfare or injurious to the property or improvements in the vicinity and same zone; .F. Minimum Variance. That the approved variance is the minimum necessary to allow the owner the rights enjoyed by other proper- ' ties in the vicinity with the same zoning. 20.85.020 General requirements. A. Review. The hearing examiner shall review variances as provided in ECDC 20.100.010. B. Appeals. Any person may appeal a hear- ing examiner decision to the city council as provided in Chapter 20.105 ECDC. C. Time Limit. The approved variance must be acted on by the owner within one year from the date of approval or the variance shall expire and be null and void, unless the owner files an application for an extension of time before the expiration and the city approves the application. D. Review of Extension Application. An application for an extension of time shall be reviewed by the community development director as provided in ECDC 20.95.050. E. Location. A variance applies only to the property for which it has been approved and may not be transferred to any other property. 71 Dear Councilor: The long and tortured history of the Chester Johnson short plat application is hopefully before you for the last time. You will recall that you approved the Johnson'a request for a three lot short plat last April. At that tune, we agreed with staff to work together on language which would set forth certain conditions to that approval. While that offort has taken longer than anticipated, we now return in an effort to close the book on this application. Our discussions with staff since our prior hearing have centered on two main issues. The first involves correcting the record by dedicating an easement for Talbot Road. During project discussions it was discovered that the Talbot right of way adjacent to the Johnson was never dedicated. The consequences of making that dedication at this point made for some interesting discussions which, fortunately, have now become academic. Staff has concluded that the existing parking constitutes a legal nonconforming use. Therefore, the dedication of a thirty foot right of way and its consequences is no longer an September 24, 1996 Page 2 issue. The Johnsons will correct the record by making the dedication so as to complete city ownership thereof. The second and only remaining topic of discussion involves the appropriate setback between the existing apartment building and the access drive to the Johnson home. Staff has requested that we provide a written justification for modification of the subdivision standards. This request arises as a result of the fact that the apartment has a setback of tan feet from the existing access drive, This ten foot setback is. less than could be required if the access drive meets the code definition of a "street." A "street" is defined as an access drive which serves more than three lots. We dispute staff s assumption that approval of this application causes the drive to meet that definition. If the drive qualifies as a street, then a setback of 25 feet could be required. Since the existing building anddrive make compliance with such a setback impossible, our options are to: 1) convince you that the drive does not qualify as a street and that only a 10 foot side yard setback is required; or 2) that a modification to the subdivision standards is appropriate under these circumstances. Our argument centers on the fact that this access drive is, in reality, comprised of two separate side -by -side components. The Johnson own a 10 foot access easement across their neighbor's property which forms the northern portion of the drive. However, the neighbors do not have a similar easement across the southerly portion of the drive which rests entirely on the Johnson property. Thus, the Johnsons have the right to use the entire drive. However, other users are legally entitled to utilize only the northerly ten feet. The southerly portion of the drive will, on approval, legally serve only the two Johnson lots. Thus, that part of the drive (the part from which the setback would be measured) does not qualify as a street, and only a side yard setback should thereforc be required. Regardless of the persuasiveness of our argument, we believe that a modification to the subdivision standards is appropriate in this circumstance for the following reasons. This discussion follows in order the required criteria for a modification: 1) Special circumstances. The circumstances surround this property and its history are unusual in several ways. These include the existence of a multifamily structure in this location and the fact that annexation into Edmonds brought about its current nonconforming nature. In addition, the fact that adjacent owners have legal access over only the northern half of the drive brings into play potential consequences which were never contemplated by either the owners or the governmental jurisdictions who have issued permits. IqE John !!1ffiffiell ' 11gAfi• UaeY mutt 3 U-L9-10 MOD P. 9 at 1t September 24, 1996 Page 3 Strict enforcement of the standards would deprive the Johnson of the right shared by all others to utilize their property for the purpose and to the extent otherwise . allowed by the zoning code.. The Johnson' property is sufficiently large to be divided into three lots, each of which complies with minimum size requirements. Failure to finally approve this request means that a valuable and otherwise buildable parcel will remain unusable. 2) Special privilege. No grant of a special privilege is involved if the Johnaons are allowed to subdivide their property in conformity with existing zoning. Approval of this request merely places them on the same footing as other property owners and grants them no right to which they are not otherwise entitled. Similar requests by others have previously been approved. The most recent example is found in file 5-10- 96, in which the code requirement of a 71/2 foot setback was reduced to 6 feet for the purpose of preserving existing housing stock in accordance with the goals and policies of the comprehensive plan. 3) Comprehensive plan. The prior decision of the Council to approve this application evidences the fact of compliance with the comprehensive plan. Both the comp plan and underlying zoning contemplate single family use at this location. Approval of this request will create one new single family building lot for the Johnsons' son and daughter-in-law and, as explained at the prior hearing, will significantly increase the degree of conformity of this site. This request is in conformity with comp plan policies which encourage in -fill development and the preservation of existing housing stock. 4) Zoning ordinance. For the same reasons as stated above, this request is consistent with underlying zoning district and ordinance and with its purposes. 5) Request is not significantly detrimental to public health, safety and welfare. As evidenced by your prior decision, this proposal is not only not detrimental but is in fact in furtherance of the public welfare. The proposal evidences compliance with GMA-dictated policies concerning the efficient use of land and of in -fill development. On a personal level. it allows for parents to live near and help provide for their adult children who at the same time can help provide for their parents. 6) Minimum modification necessary. This modification is the minimum necessary. More importantly, it does not allow any future construction or development which is inconsistent with city ordinances. Rather, it recognizes the anomaly of the existing development, avoids an unintended trap and consequences of strict application of the standards, and provides for the construction of one new residence, every part of which will be in strict compliance with code requirements. 0091905.01 74 I too DUN TY EXHIBIT 7 io: Jonn bisae1l rrom: bary Hutt 8-t4-so swpn P. t of y ' Lowoft" KARR-TUTTLE•CAMPB'ELL - A Pmf-)-d$-kaCagram#x _ 1201 Third A-•, Suits 2300, S•abki•, W.6.ub.n 08101.3020 TelePhaaa (24M 223.1313, Facsimile (208) 882•7100 . Partkod Offs• - - ,� 1106 Standard Plena; 1100 S.W. Sfath Awnuo. Portl•d. Oregon 07204.1036- " Talaphone (603) 240.1830, Fa Wnll6 (SOS) 222.4420 PI... —ply to 8uttL Off • . . Gary D. HufP (208) 22"024 ghufPktdeattmail.oam September 24, 1996 City Council City of Edmonds 250 5th Avenue North Edmonds, WA 98020 RE: Chester Johnson Short Plat/Modification Request Dear Councilor: The long and tortured history of the Chester Johnson short plat application is hopefully before you for the last time. You will recall that you approved the Johnson's request for a three lot short plat last April. At that time, we agreed with staff to work together on language which would set forth certain conditions to that approval. While that effort has taken longer than anticipated, we now return in an effort to close the book on this application. Our discussions with staff since our prior hearing have centered on two main issues. The first involves correcting the record by dedicating an easement for Talbot Road. During project discussions it was discovered that the Talbot right of way adjacent to the Johnsons was never dedicated. The consequences of making that dedication at this point made for some interesting discussions which, fortunately, have now become academic. Staff has concluded that the existing parking constitutes a legal nonconforming use. Therefore, the dedication of a thirty foot right of way and its consequences is no longer an '. to: damn nissali trams nary mutt x-Zq—ya dwipm P. y at 's September 24, 1996 Page 2 issue. The Johnsons will correct the record by making the dedication so as to complete city ownership thereof. The second and only remaining topic of discussion involves the appropriate setback between the existing apartment building and the access drive to the Johnson home. Staff has requested that we provide a written justification for modification of the subdivision standards. This request arises as a result of the fact that the apartment has a setback of ten feet from the existing access drive. This ten foot setback is less than could be required if the access drive meets the code definition of a "street." A "street" is defined as an access drive which serves more than three lots. We dispute stafi's assumption that approval of this application causes the drive to meet that definition. If the drive qualifies as a street, then a setback of 25 feet could be required. Since the existing building and drive make compliance with such a setback impossible, our options are to: 1) convince you that the drive does not qualify as a street and that only a 10 foot side yard setback is required; or 2) that a modification to the subdivision standards is appropriate under these circumstances. Our argument centers on the fact that this access drive is, in reality, comprised of two separate side -by -side components. The Johnson own a 10 foot access easement across their neighbor's property which forms the northern portion of the drive. However, the neighbors do not have a similar easement across the southerly portion of the drive which rests entirely on the Johnson property. Thus, the Johnsons have the right to use the entire drive. However, other users are legally entitled to utilize only the northerly ten feet. The southerly portion of the drive will, on approval, legally serve only the two Johnson lots. Thus, that part of the drive (the part from which the setback would be measured) does not qualify as a street, and only a side yard setback should therefore be required. Regardless of the persuasiveness of our argument, we believe that a modification to the subdivision standards is appropriate in this circumstance for the following reasons. This discussion follows in order the required criteria for a modification: 1) Special circumstances. The circumstances surround this property and its history are unusual in several ways. 'These include the existence of a multifamily structure in this location and the fact that annexation into Edmonds brought about its current nonconforming nature. In addition, the fact that adjacent owners have legal access over only the northern half of the drive brings into play potential consequences which were never contemplated by either the owners or the governmental jurisdictions who have issued permits. 0091905.01 10: JOnn MENU tromi Mary Hutt 9 G4-90 d:Olpm P. 4 Ot V September 24, 1996 Page 3 Strict enforcement of the standards would deprive the Johnsons of the right shared by all others to utilize their property for the purpose and to the extent otherwise allowed by the zoning code. The Johnson' property is sufficiently large to be divided into three lots, each of which complies with minimum size requirements. Failure to finally approve this request mean that a valuable and otherwise buildable parcel will remain unusable. 2) Special privilege. No grant of a special privilege is involved if the Johnson are allowed to subdivide their property in conformity with existing zoning. Approval of this request merely places them on the same footing as other property owners and grants them no right to which they are not otherwise entitled. Similar requests by others have previously been approved. The most recent example is found in file S-10- 96, in which the code requirement of a 7 1/2 foot setback was reduced to 6 feet for the purpose of preserving existing housing stock in accordance with the goals and policies of the comprehensive plan. 3) Comprehensive plan. The prior decision of the Council to approve this application evidences the fact of compliance with the comprehensive plan. Both the comp plan and underlying zoning contemplate single family use at this location. Approval of this request will create one new single family building lot for the Johnsons' son and daughter-in-law and, as explained at the prior hearing, will significantly increase the degree of conformity of this site. This request is in conformity with comp plan policies which encourage in -fill development and the preservation of existing housing stock. 4) Zoning ordinance. For the same reasons as stated above, this request is consistent with underlying zoning district and ordinance and with its purposes. 5) Request is not significantly detrimental to public health, safety and welfare. As evidenced by your prior decision, this proposal is not only not detrimental but is in fart in furtherance of the public welfare. The proposal evidences compliance with GMA-dictated policies concerning the efficient use of land and of in -fill development. On a personal level, it allows for parents to live near and help provide for their adult children who at the same time can help provide for their parents. 6) Minimum modification necessary. This modification is the minimum necessary. More importantly, it does not allow any future construction or development which is inconsistent with city ordinances. Rather, it recognizes the anomaly of the existing development, avoids an unintended trap and consequences of strict application of the standards, and provides for the construction of one new residence, every part of which will be in strict compliance with code requirements. 0091905.01 j P',L.L,C. ATTORNEYS. AT LAW Seattle Office. 2100WoWake Center Tower, 1601 Fifth Avenue, Sell®, WA 98101.1680 (206) "7-7000 PAX, (2061 "7-0,215 FACSIMILE TRAN Mi rT L SHEET° Date' Transmitted 06109196 Attention Fax Number 'total Pages giAl?/Cover Pago) John Blesell, Assiociate Planner 771-0221 2 City of Edmonds t7rlednel! f i Forwarded 11 Not Forwarded lendoor Fox Number Phone Number Gloria Zak (206) 447-021.5 (206) "7-7000 OMW Accounting No.: 0006.90000 ®MW mite No,: 1RE: Johnson Subdivision - Retention of Jurisdiction II NOTES: of CCNFICIGNTIALITY NOTS The documentls) aoerompsnying this facsimile transmission contains information from the Law Firm of Ogden Murphy Wallace which is confidential or privileged. The information Is Intended to be for the use of the Individual or entity named on this transmittal sheet. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contor�ta of this transmitted informatlon Is prohibited. If you have received this facsimile in error, please notify us by telephone immediately so that we can arrange for the retrieval of the original doeumants at no cost to you. 08/09/96 FRI 14:32 FAX 200 4_47 0215 01W 9t;ATME P.L.L.C. ATTORNEYSAT LAW k100 Mukka Center Tent • t601 FM Aveano • Scathe, OVA 98101-1656 • (200) 447.7000 • Fax PM) 447.0215 MEMORMDUM DATE: August 7, 1996 TO! John Bissell, Associate planner City of Edmonds FROK W. Scott Snyd RE: Johnson Subdivision - Retention of Jurisdiction You have inqui=d regarding my opinion of the Chester Johnson short plat and a modification of the right-of-way standard. It is my opinion that so long as the City Council retains jurisdiction, it may, in its discretion, resolve the modification issue, deny the subdivision application because it fails to meet current standards or remand the issue to the hearing examiner for further proceedings. Given the fact that the statutory 90-day time period for approval of the subdivision has long since passed, and the fact that the Council has jurisdiction over the matter now, I suggest that it promed to determine the modification issue. As I understand it, the modification is of the required right-of-way and not street width. This is an issue on which the City Council approved modification in the Manchett subdivision of recent, if not fond, memory. My opinion is based on two legal issues. First, the City Council currently has jurisdiction over the matter. As a quasiludicial body, it is therefore in their discretion to decide the matter or remand it. Secondly, the City Council approves the subdivision on the recommendation of the hearing examiner. In other words, this is not a matter where original jurisdiction is vested in another entity. Rather that the City Council is authorized by state law to determine the issue. I recognize that the staff, for consistency, may wish to have the hearing examiner review and approve all subdivisions. As I have noted, in order to provide full notice to the public that the matter must be noticed for a full hearing which includes a description of the modification issue. If you have any questions, phase feel free to ask. The staff may wish to matte a recommendation to the City Council regarding the exercise of their discretion to decide or remand this matter. WSSlgjz Cc: Jeff Wilson, Planning Supervisor Rob• Chave, Community Services Dept. Manager W88139B6L tSM/P0D06.90000N80006. Wenaicnae 0Mce • one SoWai Chew Street • P.O. Box IM6 Waeattho, WA 96607 - (509) 662.1954 • Fax (509) 663.1353 NO REMOTE STATION I.D. START TIME DURATION #PAGES COMMENT 1 206 447 0215 9- 5-96 3:03PM 1'36" 2 TOTAL 0:01'36" " cI i E. C)F. EE. MC>WE S - - "' - BARBARA PAMBY " 220 6TM AYMNUa NORTH • aOMONOY, wA ia020 • /200l 771-CS20 PAR 4200) 771.02a1 MAYOR OOMMUN1'TV ganvICHB DBPART'MBN1r ot. 3B Pubilo. Works a Planning a Parka anci Recreation • Engineering '�Et_ECOPlrrSR COMER PA437E 0ATETRAN8M1'i'tEt_1 "r0; i'rasCftq- r4UMGr=Ft OF PAQES' •.--- - '- (Including cover Page) Recipients TebBooplor Numbara s'AC8lM1LE BQtJiF+ME.NT: , AutcmetiO caroup it . (2.3 mineGLroula fit FRCIM: �sa `i= t q e(ryryy�_ it users are any prc :P1oms Pt t�Jav_ document are9roceW®d 1 I co Into;0011 1 Oi 2mesa® 20 and ask trar 0"ncter'e'reloc2p1or Numbor: (200) 771-022 t . - Film :/�AcS��Q`� t,% .,=zw& Am crt�rScirZew-4•oae+ �+Crrnwnca-sn�ys+�e�s.a. aC.`. c_= L� i. �•�.... G�ILR LF'RRPJP."�6 � C"r.�.�4,L �A ��r..C, ECC` elm �:\p,\Waraaala\FVIMO.rrt• - - - a, Incorporated August 22. 2890 a Sister Cities International -- Mokirmn, Japan TRANSMISSION REPORT THIS DOCUMENT (REDUCED SAMPLE ABOVE) COULD NOT BE BENT *** SEND *** NO REMOTE STATION I.Q. START TIME DURATION #PAGES COMMENT 1 94470215 9- 5-96 11:00AM 0'50" 0 OP66/ OK TOTAL 0:00'50" 0 XEROX TELECOPIER 7020 Sender's Telecopier Number: (206) 771-0221 RE: l�ra { ca rt4 tcr o.�►�e�-use_-fir tc j t C C �trcP (roe oa-- ca.C{ c Ori`►it�c�h�— r, } s DEN Rk J�4 ���j P.L.L.C. ATTO R N BYS AT LAW { L MAC r 2100 Westlake Center Tower • 1601 Fifth Avenue • Seattle; WA 98101-1686 - (206) 447-7000 • Fax (206) 447-0215 E n MEMORANDUM iio_8f ts DATE: August 7, 1996'� TO: John Bissell, Associate Planner City of Edmonds is FROM: W. Scott Snyde RE: Johnson Subdivision - Retention of Jurisdiction You have inquired regarding my opinion of the Chester Johnson short plat and a modification of the right-of-way standard. it is my opinion that so long as the City Council retains jurisdiction, it may, in its discretion, resolve the modification issue, deny the subdivision:! application because it fails to meet current standards or remand the issue to the hearing examiner for further proceedings. Given the fact that the statutory 90-day time period for approval of the subdivision has long since passed, and the fact that the Council has jurisdiction over the matter now, I suggest that it proceed to determine the modification issue. As I understand it, the modification is of the required right-of-way and not street width. This is an issue on which the City Council approved modification in the Iianchett subdivision of recent, if not fond, memory. My opinion is based on two legal issues. First, the City Council currently has jurisdiction over the matter. As a quasi-judicial body, it is therefore in their discretion to decide the matter or remand it. Secondly, the City Council approves the subdivision on the recommendation of the hearing examiner. In other words, this is not a matter where original jurisdiction is vested in r another entity. Rather that the City Council is authorized by state law to determine the issue. if I recognize that the staff, for consistency, may wish to have the hearing examiner review and approve all subdivisions. As I have noted, in order to provide full notice to the public that the matter must be noticed for a full hearing which includes a description of the modification issue. If you have any questions, please feel free to ask. The staff may wish to make a recommendation to the City Council regarding the exercise of their discretion to decide or remand this matter. s WSS/gjz cc: Jeff Wilson, Planning Supervisor Rob Chave, Community Services Dept. Manager wsS139861.1SNUF0006.9000001BOW6. Wenatchee Office • One South Chelan Street • P.O. Box 1606 • Wenatchee, WA 98807 (509) 662-1954 - Fax (509) 663-1553 Council President Earling recalled the pictures of a similar tubular fence in White Rock, BC, noting it is basically unobtrusive to the view and provides a safety barrier. While views in the City are a sensitive issue, in this case safety is also very important. He pointed out the concern over children climbing the fence increases when the fence is placed on the slope, closer to the tracks. Amtrak service is important to the community and the fence is an important element in retaining that service. He pointed out the WUTC's letter of January 19 discusses both Ocean and Sunset Avenues. He supported staffs recommendation. Councilmember Petruzzi explained he has seen the fence in White Rock, BC, which is very unobtrusive. While observing the fence for over two hours, he found the fence does provide a barrier, individuals access the beach at the appropriate locations. He felt a fence on the slope would be an "invitation to disaster'; therefore he preferred the fence be built at the top of the bluff. Councilmember Van Hollebeke noted the eight properties overlooking the fence are set back from and elevated above the road, resulting in minimal visual impact. He recommended the residents be involved in material and color selection of the fence to reduce maintenance and vandalism. He commented there are no public beaches across the railroad tracks in this area and expressed concern that the slope installation would increase the dangerous attractiveness to young children. Councilmember White commented he initially did not see a safety issue with the fence halfway down the bluff and was satisfied the WUTC distinguished between Ocean and Sunset Avenues. After listening to the Council's comments, he felt the concern with safety seemed to outweigh the obstruction to the views. Councilmember Myers described how power lines in the view line of property he owns on Camano Island originally were a distraction but now are not, which he felt may also occur in this situation. He noted the installation of the fence on the slope results in an increased drop if one were to climb the fence. He recommended the fence be placed on the top of the bluff. Councilmember White said he now felt the fence on the slope may be more likely to attract people down the bluff than to deter them. COUNCIL PRESIDENT EARLING MOVED, SECONDED BY COUNCILMEMBER MYERS, TO DENY THE APPEAL AND UPHOLD THE DECISION OF THE HEARING EXAMINE& MOTION CARRIED. Mayor Fahey declared a 5 minute break. COUNCILMEMBER PETRUZZI MOVED, SECONDED BY COUNCILMEMBER MYERS, TO EXTEND THE MEETING. MOTION CARRIED. ' ,1 4 :c..l1. • �, ,. ' ' . ;:. (�,�..:. :r _' :, : .a J.I. 4 a � ..:. -. -{ sl.._ .�, ':. • e,Fa '.' '{ Z4 fats WMA.01.10 01 V492.1i DLGJ {a { r ►G; i► ;l W,W DY41,994'41_ a• :' `' ;. ..•.'{._.! _ �.� .:{. 'J�►:►l. �a Jai:r F_: at 4 Y.1 .*•..:.Y • :, r 11 I ,• '{ :, b. ;. t c 1 ?'r. :.'t. 1 o F g' 1 a 1 a 1 1. ] 1 .F Mayor Fahey described the hearing procedure and asked if any Councilmembers wished to make a disclosure. Councilmember Myers reported David and Inga Johnson are very good friends of his. Councilmember Haakenson advised he is a neighbor of the property and is acquainted with Jack and Jill Edmonds City Council Approved Minutes April 16,1996 Page 12 } Fritz who operate the apartment building. Council President Earling advised he lives on Talbot Road, approximately 3/4 mile from the property. Councilmember White -advised he walked the property on Saturday but did not speak to anyone. City Attorney Scott Snyder asked Councilmember Haakenson his proximity to the property and whether he felt the approval or denial would have any affect on any personal or financial interest in his property. Councilmember Haakenson advised the property was approximately five houses away and would not affect his property. There were no challenges to participation by any Councilmember and Mayor Fahey announced all Councilmembers would participate in the hearing. Planning b'i anager Rob Chave advised this is an appeal of a staff denial of a short subdivision request; the appeal was first heard by the Hearing Examiner and that decision, agreeing with staff, has been appealed to the Council. He referred to the sentence in staffs analysis, "Therefore the decision to deny the proposal is essentially a policy decision." He explained Mr. Snyder indicates in his memo that there are grounds to approve or deny the request; the staff position is defensible but he felt there were also merits in the appellant's argument. Mr. Chave explained the City's non-conformance provisions can be traced to 1970 when an ordinance created a 15 year moratorium targeted at commercial uses in residential zones. Thus City staff has been conservative in its interpretation of non -conformances and has viewed any increase in floor area, height, bulk, etc., as an expansion of the non -conformity which has not been allowed. In 1994, a sliding scale provision for lot areas was adopted which allowed for development of non -conforming lots, thus indicating a shift in the policy created in 1970. In addition, recent changes to GMA have created competing policies that indicate more liberal consideration should be given to infill development. This one acre lot includes a non -conforming use, the multi -family development, as well as a single family residence. The proposal is to subdivide the lot into three building lots, two would be conforming for single family development and the third would remain non- conforming. Staff has viewed any increase in density in the overall one acre parcel as an increase in the non -conformity. Mr. Snyder noted the City's staff interpretation and the Hearing Examiner's ruling are consistent with the standard interpretation of the zoning code and that non -conforming use provisions are designed to eliminate non -conforming uses. He advised, given the changes in the Comprehensive Plan elements, it is appropriate to consider the way the code has been interpreted. Councilmember Haakenson asked, if the Council finds this is not an expansion of a non -conforming use, would staff oppose approval if the project complies with necessary setbacks or, if necessary, required variances. Mr. Chave advised staff has suggested conditions if the Council makes that decision. Gary )Fluff, 1201 Third Avenue Ave, Suite 2900, Seattle, representing Chet and Doris Johnson, explained the nearly one acre property is in a 12,000 square foot zoning area, so there is adequate space for three lots. The property contains a 9-unit apartment building and a single family residence which were approved while the property was in Snohomish County. Mr. Huff introduced Jack and Jill Fritz and David and Inga Johnson, the children and spouses of Chet and Doris Johnson. He explained Jack and Jill Fritz live and manage the apartment building and the third lot is desired for a residence for David and Inga Johnson to allow the family members to reside on the one acre parcel. He -noted the non- conforming use, the multi -family structure, will not be changed; two-thirds of the 41,500 square foot lot would be brought into compliance by creating the two single family lots. Neither he nor the City have Edmonds City Council Approved Minutes April16,1996 Page 13 been able to find any case where a reduction in lot size around a non -conforming' use has been considered an expansion of that use. He pointed out this same goal could be accomplished by the death of the Johnson as, under the short plat laws, there is an exception for lots created by a will. The goal is to provide a way for the family to stay together on these three lots. Mayor Fahey opened the public portion of the hearing. Mr. Snyder advised Dave Johnson and Jill and Jack Fritz, who signed up to testify, could not speak speak during audience participation due to their common interest in the property. Jim Dahlfenmyer indicated he is a taxpayer in Edmonds but does not reside in Edmonds. He noted a short -plat he has in process to create a single family lot on property currently developed with a duplex is a similar situation. The property is zoned 12,000 and was annexed into the City in the 1980's. He was told by the Planning Department that if he would give up his zoning, his short plat would be approved. He felt the short subdivision request by the Johnson should be granted. Mr. Huff submitted a copy of the letter and a petition in support of this application signed by 38 of the Johnson's neighbors. He noted the major issue is the policy decision, a number of minor issues can be easily resolved with staff: In response to Mr. Dalhfenmyer's comments, Mr. Snyder advised the City's Code was written and intended to force property owners, who had a non -conforming use, to make an economic choice —was their property worth more as a non -conforming use. Staffs interpretation of the Code may be harsh but it is not inappropriate. Mr. Huff requested, if the appeal is upheld, that the Council grant a preliminary approval and allow the applicant to work with staff on conditions prior to the next meeting. Mr. Snyder advised, if the Council wished to follow that procedure, agreed upon Findings would be submitted by Mr. Huff and reviewed by staff prior to their placement on the Consent Agenda. Mr. Chave was agreeable to this procedure. Mayor Fahey closed the public portion of the hearing and remanded the matter to Council. Councilmember White asked if the Council should direct preparation of any Findings of Fact as a policy change may be implemented by upholding the appeal. Mr. Snyder indicated the appropriate Findings would be that changes in the City's non -conforming use standards in the early 1990's and the adoption of the County -wide Planning Policy favoring infill development have provided a different Comprehensive Plan context. COUNCILMEMBER PETRUZZI MOVED, SECONDED BY COUNCILMEMBER HAAKENSON, TO UPHOLD THE APPEAL AND DIRECT STAFF AND THE CITY ATTORNEY TO WORK WITH MR. HUFF REGARDING FINDINGS. MOTION CARRIED. 10. HEARING ON AMENDMENTS TO EDMONDS COMMUNITY DEVELOPMENT -CM (t{pd�r� CHAPTER 2015B CRITICAL AREAS ORDINANCE.IN ORDER TO ATIt�PT 'd'1�E CITY'S FINAL CRITICAL AREAS ORMANCE" AS REQMED By THE STATE G Y 11 M 1 N A !•.rTE�RI'j R� ACT /E (Applicant: Edmonds Pi nning Division / File No. CDC-95-26) fiR►' � Rye • p N Planning Manager Rob Chave explained the Planning Board reviewed the draft of the Final Critical Areas Ordinance and unanimously recommended its approval. He recommended, following the public hearing, if the Council is comfortable with the Planning Board's recommendation, that the Council adopt Edmonds City Council Approved Minutes April 16,1996 { Page 14 APRIL 16, 1999 PLEASE INDICATE BELOW IF YOU WISH TO SPEAK ON THE ABOVE ITEM: NAME (PLEASE PRINT CLEARLY) ADDRESS V &jl S't70j t/ 1t v : GLJ6/114eml W eL N- M EXHIBIT 1 City Council Hearing 4/16/96 r' Presented by Gary Huff taan oet File AP-96-25 KARR-TUTTLE•CAMPBELL Tbun&d1904 - A PMftstionalStrvice Capemtion 1201 Third Avenue, Suite 2900, Seattle. Washington 98101.3028... " Telephone (206) 223-1313. Facsimile (206) 682-7100 Portland Office . 1106 Standard Plaza. 1100 S.W. Sixth Avenue, Portland, Oregon 97204.1086 " Telephone (603) 248-1330. Facsimile (503) 222.4429 - - Please reply to Seattle Office Gary D. Buff (206) 224-8024 ghuffktc@attmail.com April 12 1996 Hon. John Nordquist City of Edmonds City Council 505 Bell Street Edmonds, WA 98020 RE: Chester Johnson Short Plat Appeal Dear Councilor Nordquest: This office has worked with the Johnson family for several years in an effort to help effectuate their long-time goal. Chet and Doris have lived at 17000 Talbot Road longer than their property has been part of the city of Edmonds. The Johnsons' daughter Jill and her husband Jack Fritz reside in and operate the apartment building constructed adjacent to Talbot Road. Both the Johnson home and the apartment building are shown in the photographs which are included herein as exhibits. Those photos also clearly depict the large expanse of property between the two structures. It has been the long time goal of the Johnson to create within that large open and unused area a home site for their son Dave and his wife Inge. Our goal, then, is to obtain approval of a three lot short subdivision so that each of the existing structures and a home site for Dave and Inge will be legally established. A map of the proposed short plat is included in the exhibit section following this letter. There is no dispute concerning the fact that there is sufficient area in the .95 acre lot (41,543 square feet) to accommodate three structures under the existing RS-12 zoning with its minimum lot size of 12,000 square feet. The Johnson' goal of creating three lots is one to which the ever -changing city staff has not objected so long as the appropriate mechanism could be found within the literal 0069496.01 April 12, 1996 Page 2 language of your city codes. The basic disagreement with staff has centered on the fact that staff has viewed this request as a technical expansion of a nonconforming use. This position is based on the fact that the apartment structure, which was approved and constructed while the property was still part of Snohomish County, creates a density in excess of that which would be allowed today. The addition of one dwelling unit to the property is seen as a prohibited expansion of that nonconforming use. We have argued that this application does not in any way eu a nonconforming use since the nonconforming use is the multi -family use and neither that use nor the apartment structure is being affected in any way. Rather, we see this application as bringing two thirds of the property it1tS2 compliance with existing zoning since. two of the three lots will then comply with the underlying zoning. At present, none of the property so complies. We have argued to staff and to the hearing examiner that merely reducing the lot area around a nonconforming structure cannot legally be viewed as an apansion of a nonconforming use. Neither side has been able to uncover any case law which speaks directly to this issue, although Professor William Stoebuck of the University of Washington Law School favors our view. Staff has agreed that if creating three lots is not viewed by the Council as expanding a nonconforming use, then the remaining relatively minor issues can be rather easily solved. In response to our arguments, city staff consulted with your city attorney who concluded, in effect, that both sides were right. His analysis is included in the "Legal Arguments" supplement which follows and essentially concludes that there is a legal basis for whichever result the Council might reach. Both sides have long known, consistent with this interpretation, that approval or denial of this request is essentially a policy issue, as opposed to a legal matter, which would ultimately be decided at the Council level. We believe that policy considerations favor the Johnsons. First, approval would allow the Johnsons to fulfill their goal of having their children live in close proximity. Second, the home site has sat fallow and unused for years. While Edmonds may already have sufficient density that it meets Growth Management population goals, the policy of promoting in -fill development is still sound and is intended to apply to this exact type of situation. Third, as is evidenced by the petition to be submitted at Tuesday's Council meeting, the Johnson application has wide -spread neighborhood support. Finally, creation of the third lot will not create a burden on municipal services and will not create a precedent, since it is highly unlikely that the city will again be faced with facts such as these. Assuming the staff presentation follows the same course as in previous hearings, you will likely hear a complicated discussion about parking requirements for the apartment and how that impacts the required width of the access drive past the apartment structure and to the existing Johnson residence. When constructed under Snohomish County codes, the apartment 0069496.01 We Took forward to the opportunity to present our case to you Tuesday night. Hopefully we can demonstrate how the size and lay -out of the land make the accommodation of one more residence an obviously appropriate result. We invite you to drive by the property to see for yourself how much sense this proposal makes. We ask that you favorably respond to the Johnson's appeal. There are many strong and valid reasons for taking such action; and very few, if any, in opposition. We doubt very much if staff would object to that outcome since we believe that their sympathies have been with us but that they have felt constrained by the need for the Council to make such policy determinations. If, for some unfathomable reason, you are interested in pursuing the subsidiary legal and technical issues involved herein, we have included our analysis in the "Legal Arguments" section which follows. While we do not shy away from those issues, we urge you to view this as a policy matter. Those policy issues are best addressed in this letter. Sincerely, caa�iar , KARR•TUTTLE•CAMPBELL APiofeniendSmkaCaepviarime a VArt) 1201Third Avenue.Suite2900.SaaWe.Waabiagon99101.30" Sep 2 9 ,�5�` - Telepboae (209) 223-1313. Faraimile 12M 662.7100 ALA_ IVIWe�a y Portland MCI - ! 1105 Standard Plan. 1100 S.W. Mob Avenue. Pardand. Oteaan 97204.1066 Telephone (603) 246•1330. Farsimib (503) 222•4e29 . Pleta mly to Seawe o9iae Gary D. huff (206)22"024 September 28, 1995 VIA FACSIMILE Mr. John Bissell Community Services Department City of Edmonds 250 Sth Avenue North { Edmonds, WA 98020 RE: Chester Johnson Short Plat Application Dear Mr. Bissell: FILE �o•= This letter is written in response to your request that we put into writing a synopsis of the legal arguments presented at last Friday's hearing on the above application. We are pleased to do so in the hope that further review will lead to a favorable decision in this matter. We understand that it is your intention to have at least some of these issues reviewed by your city attorney. We would be amenable to either an in -person or telephonic meeting if further discussion would be of assistance in resolving these issues. e' 1 e 11Mi 1 NUL14W.W.1 1/ Note) 1 i 1 I ks)Mil I lli!A!1/ e {1 IWIS(0144 As established at the hearing, the apartment building was permitted and constructed under Snohomish County code provisions prior to the annexation of this area into Edmonds. The parking requirement under the then applicable codes was one space per unit. The parking for the nine unit building was satisfied by the nine spaces along Talbot Road. This fact is important in determining whether additional parking behind the apartment is necessary to satisfy parking requirements. Only if additional parking is so required would the number of units needing parking in the rear be considered users of the access drive. .As you know, the 0%2681,01 1 EXHIBIT i Mr. John Bissell September 28, 1995 Page 2 number of users of that drive determines its required width. if the apartment parking is satisfied along Talbot, then the current access drive is sufficiently wide to accommodate the three lot short plat without the necessity of a reduction in road standards. Section 17.40.010(A) ofyour code defines a nonconforming use as follows. A nonconforming use is one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of this zoning ordinance and where applicable its predecessor. The apartment was legal under Snohomish County ordinances when constructed. Annexation into Edmonds and the concurrent application of city zoning cannot change that fact. Section 17.40.0I0(B) rovides that, "(a) nonconforming use may continue..... but it may not be 'expatided ia'any war....'"? Thus, the nine spaces continue to be legally sufficient for this building. Further, any attempt on the part of the city to require additional parking wo old itself violate y_our code sine it would constitute the eananeion of a legal nonconforming use Given the above, no apartment residents should or ccIxn be considered as users of the access drive. The prospective users would then be the remaining two lots to be established by this application and the two other residents who have a legal right to utilize the northerly 10 feet of the access drive but who have no legal right to drive onto any part of the Johnson property. Section 18.18.010 then requires only a 20 foot easement width and 16 feet of paving for drives utilized by 3 or 4 users. The current drive either satisfies that requirement or could easily be made to do so with very minor improvements. 2) Approval of this anplica ion would _ not represent a prohibiter+ exn nci� of a nonconforming use. This property is zoned for single family residential purposes. Linder the city's view, the cndm property is considered nonconforming. Thus, under this view, the Johnson are unable to even build a deck on their home because of the legal existence of an apartment structure several hundred feet .way. This unusual interpretation stems from a very literal reading of Section 21.60.050 which defines the term "multiple dwelling." QU42681.01 < Mr. John Bissell September 28, 1995 Page 3 Multiple dwellang ;means` a building or group of buiYdings on the same sire coauailung'two or more'separate dwelling ug .ts. This definition' clearly ' contemplates a multiple building apartment prdjecfQ I, We are unable to make the logical leap necessary to use this lang uage to include a single family residence which was constructed prior to the apartment and which is totally separate therefrom, within the multiple dwelling definition; particularly when the result thereof has such wide ranging consequences. The apartment is a multiple dwelling. The single family residence is a conforming single family residence. The Johnson property houses two separate uses: multi -family and single family. The nonconformity involves the existence of the multi- family use in a single family zone. Our discussions have made clear your interpretation that creation of separate conforming lots for the existing and an additional single family residence represents an expansion of a nonconforming use. In support of your position, you point to the language of Section 17.40.010(B) which states that a nonconforming use "may not be expanded in any- way, including additional lot area.....» You have told me that no purpose is served by the inclusion of this language in this section. Rather, you are of the opinion that the intent of this language must have been to preclude a reduction in lot area of a nonconforming use such as is proposed here. As we expressed at the hearing, we can contemplate several situations where the questioned language would be applicable. We suggested that a nonconforming car dealership, rental yard or other business with outdoor display areas may wish to expand by adding lot area. We believe these are exactly the type of situations meant to be addressed by this language. We further believe that the language must be read for what it says; not for what one might wish it said. Rather than representing an expansion, we believe the Johnson application contemplates a reduction in nonconformity. Under your interpretation., the c irc Johnson property is nonconforming. If a three lot short plat is approved, then 213 of the site is brought i= conformity with existing single family zoning. The nonconforming portion of the property is reduod from 41,000 to 14,000 square feet. The QDiX manner in which approval of this application results in an in== is in the ratio of units to lot area for proposed Lot 1 (the apartment). however, that increase also occurs with the two lot short plat the city has twice offered to approve. There, too, the ratio for the apartment lot is increased. As we noted at the hearing, we have consulted with Professor William Stoebuck of the University of Washington Law School. In addition to being one of the nation's recognized experts on property law, Professor Stoebuck has just published a two volume treatise on Washington real property law. Included at Section 4.21 thereof is a discussion of Washington 0042681.01 Mr. John Bissell September 28, 1995 ._. Page 4 law concerning nonconforming uses. Professor Stoebuck is willing to confirm in writing if necessary his opinion that so long as the apartment building is structurally left unchanged, then the reduction in its lot area arising from approval of this application would not constitute an expansion of a nonconforming use. In his exhaustive research for this treatise, he found not a single case which would support the city position. 3) The city's setbackk requirements are mtr or can be met. ApprovaA f rho To nat}n.=lication canheconditioned on satisfaction of s�ch rer ti.�m .n c The staff report relies on the definition of a street contained in Section 21.90.120 in arguing that approval of the Johnson application would cause the setback for the existing apartment to violated. That section defines a street as follows: Street means the public or private right-of-way or access easemerif wrhici provides vehicle access to more than three Ibis. Assuming that the drive would, on approval, come within that definition, then the city _ considers tot 1 to come within the definition of a corner lot. A corner lot is defined at Section 21.15.100: Corner lot means a lot which has frontage on two or more streets where the streets meet. The minimum street setback is established at 25 feet in Section 16.20.030.E The 20 foot access along the northerly edge of the subject property is made up of two equal parts. The northerly 10 feet thereof is comprised of an access easement across the land of the adjoining property owner. 11=t easement is reflected at paragraph 17 of the subdivision certificate offered in evidence at the public hearing. The southerly 10 feet, from which ft setback must be measured, legally. serves only the loth con 1M ,,7,, While the Johnson have the right to utilize their neighbors' access, the converse is not true. Even i Lot 1 was considered a user thereof, there are only 3 lots utilizing that portion of the drive from which the setback is measured. Therefore, even with approval of a 3 lot short plat, the setback would not qualify as a street and the setback therefrom would remain at 10 feet. In the event the city chooses not to accept the above argument, then we request that the application nonetheless be approved subject to favorable action on an application for a variance from this setback requirement. 0042681.01 Mr. John Bissell, September 28, 1995 Page 5 Testimony at the, public hearing we believe established the fact that the setback requirement for the existing single family residence on proposed Lot 3 is satisfied. Assuming a street setback requirement of 25 feet, then the existing 26.7 foot setback is sufficient. The only remaining Lot 3 setback issue concerns the outbuilding at the southerly boundary thereof. The staff report attempts to impose a 25 foot setback from the proposed Pam► easterly boundary of Lot 3. That requirement assumes that this boundary is a street lot line as defined in Section 21.90.130: Street tot Line means; the line or lines: akg t do of a street or ^ •,.� rY •,;ems. er e�cement _(�mphasis..asidedi,'t , _ . By that definition, a boundary is' -considers a street lot line only so; long' as it, im, adjacent to a street or access�easeme Thus, on Lot 3 a street lot'line`ooiurs otily along the' 4 access Way an tite northerly side of the property. The lot line nearest the outbuilding which forms the basis of the alleged setback violation is at =feast &feet aysray jm <�he a "mic. The line adjacent to the outbuilding thus cannot qualify as a street Iot line The setback would be only the existing 10 feet. We find it instructive that the city's prior planner, t Windy Scltuienbtarg, came to ..the same coricluston Ia her lett�rr dated Apni 2ti, 19�3, ,1�flllicll • S11�' no�.Rt19�t�41't�:Ct31it@llt�..tlii�r�etF.t�1t t0��titiad�lkintar,.rb� 3swa�mlfs,un, eheti",..i..`:ass Regardless of the efficacy of this argument, the Lot 3 setback is not a serious problem. Should the city not accept our interpretation, then an approval could again be conditioned on approval of a variance setback. Easier still would be a requirement that the subject lot line be adjusted 15 feet to the east adjacent to the outbuilding and slightly to the west next to the carport. If necessary to maintain 12,000 square feet in Lot 2, the easterly lot line thereof could be moved slightly eastward without negatively impacting Lot 1. ,� Mr JolEs� Bissell CITY OF EDMONDS CIVIC CENTER . EDMONDS. WA 98020 . (2081TT5-2525 890.lgg- 1 i\tU IA tT /� DATE: October 16, 1995 To: John Bissell, Associate Planner Fxorvr: W. Scott Snyder, Office of the City Attorney RE: Chester Johnson Short Plat - Letter of Gary Huff LAURA M. HALL MAYOR You have asked for my review and response to Mr. Huffs letter of September 28, 1995. Generally, I am responding to the issue of whether or not subdivision of an existing nonconforming lot containing a nine -unit apartment building and a single-family dwelling constitute expansion of a legal nonconforming use. The lots are zoned single family (RS-12) and designated single family on the Comprehensive Plan. As is noted in this memo, the more difficult issue is satisfaction of the review criteria of the subdivision code, specifically Section 20.75.080(b) and (c). These two provisions require all subdivisions to be consistent with the provisions of the Edmonds Comprehensive Plan and Zoning Ordinance. The issue as I see it is whether a newly created lot containing an existing nonconforming use complies with the zoning code and comprehensive plan. At the present time, a nonconforming, nine -unit apartment building and a single-family home are located on a large lot of approximately 44,000 square feet zoned single family (R S). This lot is proposed to be subdivided into three lots. At issue is not the square footage necessary to subdivide the lots but rather the continuation of the apartment building as a nonconforming use after subdivision of the property, and indeed whether the subdivision can be approved. Chapter 17.40 of the Edmonds Community Development Code deals with nonconforming uses. 'Me chapter distinguishes nonconforming uses, buildings and lots. In this situation, the apartment building is a nonconforming use and building but not, given the limited restrictive language of Sections 17.40.020 and 17.40.030, a nonconforming lot. The language of these specific sections is critical. Under Washington law, in the event of ambiguity, problems of interpretation should be resolved in favor of the common law right of a property owner to utilize his property. Mall Inc, v. Citv_of Seattle, 739 P.2d 668, 108 Wash. 2d 369 (1987). Nonconforming uses are not favored under Washington law, and abatement is reviewed in strict conformity with the language of the City ordinance. Keller v. Bellingham, 92 Wash. 29 726, . IT e Incorporated August 11, 1890 • Sister Cities International -- Hekinan, Japan Memorandum to John Bissell October 16, 1995 Page 2 600 P.2d 1276 (19'79). The purpose of ordinances restricting nonconforming uses is to bring about their eventual abatement and extinguishment of the nonconforming use. Imo. A nonconforming use is: . . . one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of the zoning ordinance and, where applicable, it predecessor. ECDC 17..40.010(a). A nonconforming use may continue unless required to be abated "... but it may not be expanded in any way, including additional lot area, floor any, height, number of employees, equipment, or hours of operation." I note in Mr. Huffs letter some discussion of the language regarding lot area. As normally applied, this language refers, for example, to a business's attempt to utilize additional Iot or floor area for a use not previously in the nonconforming use. In other words, a business which had a nonconforming outside storage could not expand the storage use to occupy additional new lot area. in my experience and reading, the lot area description does not anticipate a lot fine adjustment to grid square footage to a lot upon which a nonconforming use is in operation. Remember, we are discussing a nonconforming use, not a nonconforming lot. The provisions of 17.40.020 and 17.40.030 both appear limited on their terms to bulk zoning and site development standards. 17.40.020(a) defines a nonconforming building as: . . , one which once met bulk zoning standards and ft devejgm n ,standarAis applicable to its construction, which no longer conforms to such standards.... Emphasis added. It is my understanding that the existing lot does not have existing setback problems. Rather, there are three areas of nonconformity: 1. Multi -family dwellings are not a permitted use for the zone. ECDC 16.20.010(a)(1). Memorandum to John Bissell October 16, 1995 Pe 3 - 3. If approved, additional parking is required for the use if multi -family zone standards are applicable. See later discussion. nffl POSSDtL-F RL_STI.TS _ -STAFF PQLTCI' � This case presents a difficult call both legally and in terms of policy considerations. In the past the staff has strictly construed the nonconforming lot provisions in order to effectuate the purpose of the chapter- and over time abate nonconforming uses. As- you are -aware, the nonconforming use provisions have been changed in recent years to provide mote flexibility regarding lot size. Similarly, the adoption of the countywide planning policies and population growth encourage the City to accept additional growth. At the center of any interpretation of the current code provisions is a determination of whether the subdivision proposal is consistent with the letter and purpose of the City's comprehensive plan and zoning code. There are two maximums of judicial interpretation applicable to the subdivision and zoning code at this point, and their application yields different results. The two general approaches are as follows: 1. OF THE CODE. This approach would construe the code in order to effectuate its purpose. Keller, sum The purpose of a nonconforming limitations is to eventually abate the nonconformity. As noted, this lot has three potential antes of nonconformity and approving the subdivision would permit perpetuation of the existing nonconforming use. The nonconforming use is at odds with the comprehensive plan designation and the zoning designation for the lot, and the lot therefore fails to meet RS Cite Development standards. This interpretation would require you to incorporate cite development standards applicable to RM zoning in the RS zone even though not specifically spelled out. In other words, the RS zone does not anticipate the creation of perpetuation of a multiple dwelling nonconforming use, and therefore does not specifically reference parking density limitations. In order for a subdivision to be approved, it must meet all of the criteria and general findings of Section 20.75.080. Subsection C of this section requires a new lot to comply with the zoning code and -therefore cite development standards. 2. LMERALrOHMICTION AM E WHXRIS OF ROSE OE CHAP"M 17 - f If you determine it appropriate to approve the subdivision for policy reasons, your findings would stress that the existence of Chapter 17.40 approves nonconforming uses. Therefore their continuation in accordance with the provisions of the chapter are in compliance with the comprehensive plan and zoning code, meet the criteria of Chapter 20.75.080(b)(c). Your findings would also cite the maxim of interpretation regarding strict construction in order to permit full use of the property in accordance with the common law of property rights of the owner rather than the "liberal interpretation to effectuate the purpose of the zoning code" maximum. See Keller, supra. VARIANCIE: I note that Mr. Huff in his letter discusses the use of a variance. The variance criteria of Section 20.75.075 requires that in order for a variance to be granted all of the criteria must be met. Section 20.75.010(A)(2) require that a variance not be granted where the special circumstances finding is predicated upon "a fact or person of the owner..., extra expense which 3 1 ssairn t�'--•- -- �a"'"'" - 1 'OP/ a `\ OTtY 176 4%4Vc.� 7 BL1it1 y �y Ap e• L-9OJ fill 1w, 1Ji'�.tY3�rJ,Gr,,.RJ.f PD/'1, T `• :,,.ti d,�S 72"'PJ"- , ,Q/ Ay1fd,�/ls�.tP�9 •� W o ifil'1JD/X�P`llfia"" o%�.�!iJi' �� l�pl.FL6'lv7/ o�AG7iY,oT�►'a'A'u?f 13'�ii'p.711/.f'.T � ,� F'�•Fd-�'" PSc?'t5'dNA�" Cr.�SYIE.,�'' � " 1- ,� �,, � c-� /66•lJ�'•?lOi':�i"J,Y,ik�i'7.r�./O.�•1.7.1b7'JjIGY/1.r" •J y � 4 � �+y�, `-- �jd!%• Av•_..T aV 0 'Z' .F.O -j R� •f fXa' Na No ✓3�.s'M;7, or (/� a•- _— j �8 — _ rwr_p,`�r.,., a w,n, _ = O9 IV ..ram ir•�'4,11.=�.� ;r._—.. __�. — flft•�'-d'�lt/d�'.Tf!1.t©JYNrl1JN/7.�'/!�'=__ '""�- ==='== = =:- EXHIBIT 2 City Council. Hearing 4/16/96 Presented by Gary Huff File AP-96-25 PETITION IN SUPPORT OF SHORT -PLAT APPLICATION APPLICANT: CHESTER JOHNSON CASE NO.: S-95-129 LOCATION: 17000 TALBOT ROAD, EDMONDS TO THE CITY OF EDMONDS: BY SIGNATURE BELOW, I WISH TO INFORM THE EDMONDS CITY COUNCIL THAT I AM AWARE OF AND FULLY SUPPORT CHESTER JOHNSON'S APPLICATION FOR A 3-LOT SHORT SUBDIVISION OF THE PROPERTY LOCATED AT 17000 TALBOT ROAD. I RESIDE IN THE VICINITY OF THE SUBJECT PROPERTY, AS INDICATED BY MY ADDRESS BELOW, AND BELIEVE THAT THE CREATION OF ONE ADDITIONAL BUILDING LOT FOR A SINGLE-FAMILY DWELLING ON THE PROPERTY WOULD BE BENEFICIAL TO THE CITY OF EDMONDS (TAX BASE) AND THE NEIGHBORHOOD, AS WELL AS TO THE JOHNSON FAMILY. SIGNATURE & DATE PRINTED NAME AND ADDRESS /{ (Date) C (Date) C1f1�2i1 ill. ��'i�rtr �— (D te) _, ,,� (Date) TO THE CITY OF EDMONDS: BY SIGNATURE BELOW, I WISH TO INFORM THE EDMONDS CITY COUNCIL THAT I AM AWARE OF AND FULLY SUPPORT CHESTER JOHNSON'S APPLICATION FOR A 3-LOT SHORT SUBDIVISION OF THE PROPERTY LOCATED AT 17000 TALBOT ROAD. I RESIDE IN THE VICINITY OF THE SUBJECT PROPERTY, AS INDICATED BY MY ADDRESS BELOW, AND BELIEVE THAT THE CREATION OF ONE ADDITIONAL BUILDING LOT FOR A SINGLE-FAMILY DWELLING ON THE PROPERTY WOULD BE BENEFICIAL TO THE CITY OF EDMONDS (TAX BASE) AND THE NEIGHBORHOOD, AS WELL AS TO THE JOHNSON FAMILY. (Date) (Date) t ?C' 2.e —"of 6 9-v ? k'b . /%ivy /_ • G"Qlr." (Date) 14�bO 7a1�' lr ,�ss.P6,a14Q .fi�'<a m « , ?ua 11 ,[?10-, v t ct f-- LtR[t, �C . /, �:� . w ate cl41 '; PETITION IN SUPPORT OF SHORT -PLAT APPLICATION APPLICANT: CHESTER JOHNSON CASE NO.: S-95-129 LOCATION: 17000 TALBOT ROAD, EDMONDS ---------------------------------------------------------------------------------------------------------------------- TO THE CITY OF EDMONDS: BY SIGNATURE BELOW, I WISH TO INFORM THE EDMONDS CITY COUNCIL THAT I AM AWARE OF AND FULLY SUPPORT CHESTER JOHNSON'S APPLICATION FOR A 3-LOT SHORT SUBDIVISION OF THE PROPERTY LOCATED AT 17000 TALBOT ROAD. I RESIDE IN THE VICINITY OF THE SUBJECT PROPERTY, AS INDICATED BY MY ADDRESS BELOW, AND BELIEVE THAT THE CREATION OF ONE ADDITIONAL BUILDING LOT FOR A SINGLE-FAMILY DWELLING ON THE PROPERTY WOULD BE BENEFICIAL TO THE CITY OF EDMONDS (TAX BASE) AND THE NEIGHBORHOOD, AS WELL AS TO THE JOHNSON FAMILY. _.3-1 �t��OR, ri-I' �,� (Date) G� 0�?AA D 6, 4X u (Date) ( ate �! 9to (Date) PETITION IN SUPPORT OF SHORT -PLAT APPLICATION APPLICANT: CHESTER JOHNSON CASE NO.: S-95-129 LOCATION 17000 TALBOT ROAD, EDMONDS ----- --------------------------------------------------------------- ------------------------------------------------ TO THE CITY OF EDMONDS BY SIGNATURE BELOW, I WISH TO INFORM THE EDMONDS CITY COUNCIL THAT I AM AWARE OF AND FULLY SUPPORT CHESTER JOHNSON'S APPLICATION FOR A 3-LOT SHORT SUBDIVISION OF THE PROPERTY LOCATED AT 17000 TALBOT ROAD. I RESIDE IN THE VICINITY OF THE SUBJECT PROPERTY, AS INDICATED BY MY ADDRESS BELOW, AND BELIEVE THAT THE CREATION OF ONE ADDITIONAL BUILDING LOT FOR A SINGLE-FAMILY DWELLING ON THE PROPERTY WOULD BE BENEFICIAL TO THE CITY OF EDMONDS (TAX BASE) AND THE NEIGHBORHOOD, AS WELL AS TO THE JOHNSON FAMILY. T A qrURE& DATE PRINTED NAME AND ADDRESS r= r r (D e) ;. k ' / —me r } te)y- 4d (DateJS ' a ) ?o it oa-: (-0 %3 hs� >r %� • Ko T.� � (Date)pal Q .� (Date) (Date) TTO 2 -jam, ` `► r 2 C at 0 - Y PETITION IN SUPPORT OF SHORT -PLAT APPLICATION i 7/ y© -Mlftr Aleo (Date) PETITION IN SUPPORT OF SHORT -PLAT APPLICATION APPLICANT: CHESTER JOHNSON CASE NO.: S-95-129 LOCATION: 17000 TALBOT ROAD, EDMONDS ---------------------------------------------------------------------------------------------------------------------- TO THE CITY OF EDMONDS: BY SIGNATURE BELOW, I WISH TO INFORM THE EDMONDS CITY COUNCIL THAT I AM AWARE OF AND FULLY SUPPORT CHESTER JOHNSON'S APPLICATION FOR A 3-LOT SHORT SUBDIVISION OF THE PROPERTY LOCATED AT 17000 TALBOT ROAD. I RESIDE IN THE VICINITY OF THE SUBJECT PROPERTY, AS INDICATED BY MY ADDRESS BELOW, AND BELIEVE THAT THE CREATION OF ONE ADDITIONAL BUILDING LOT FOR A SINGLE-FAMILY DWELLING ON THE PROPERTY WOULD BE BENEFICIAL TO THE CITY OF EDMONDS (TAX (BASE) AND THE NEIGHBORHOOD, AS WELL AS TO THE JOHNSON FAMILY. (Date) (Date) I'7104, 726901-9a11© '' w 4 1 rd - (Date) F, t4'l . e t+AlzA'sd AJ PETITION IN SUPPORT OF SHORT -PLAT APPLICATION PETITION IN `SUPPORT OF SHORT -PLAT APPLICATION Item. #: EI MONDS CITY COUNCIL ,E Agenda Memo t Originator: Planning Division For Action: X For Information: Subject: HEARING ON APPEAL FLED BY GARY HUFF ON BEHALF OF CHESTER JOHNSON APPEALING THE HEARING EXAMINER'S DECISION TO DENY AN APPEAL (FILE NO. AP-95-189) OF THE PLANNING DIVISION'S HEARING OFFICER'S DECISION TO DENY A PROPOSED 3 LOT SHOT SUBDIVISION UNDER FILE NO S-95-129, OF THE PROPERTY LOCATED AT 17000 TALBOT ROAD (Appellant: Gary Huff on behalf of Chester Johnson/ File No. AP-26-25). Clearances: Departmenttinitials Agenda Time: 30 min. Admin Svcs/Finance— Community Svcs 02- City Attorney Engineering Agenda Date: April 16,1996 City Clerk Parks & Rec Court Planning _✓' Exhibits Attached: Personnel Public Works 1. Lettter of Appeal Fire City Council Police Mayor 2. Staff Report to the Hearing Examiner 3. Decision of the Hearing Examiner Reviewed by Council Committee: Approved for Consent Agenda: 4. Letter from Gary Huff Recommend Approval by Full Council. S. Comments for Scott Snyder, City Atorney 6. Vicinity Map Expenditure Amount Appropriation Required: $ 0 Budgeted: $ 0 Required: $ 0 Funding Source: NIA History And Summary Statement: Chester Johnson proposed to divide one (1) existing lot with a total lot area of approximately 41,543 square feet (095 acres) into 3 lots. The existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. The site is zoned single family, RS-12. if approved, the proposal would create separate lots for (1) the apartment building, (2) the existing single-family residence, and (3), a new vacant lot. The result would be three building lots with a potential for 11 dwelling units. On September 22, 1995, Staff conducted a public hearing on the proposed 3-lot short plat. The hearing was held open for the submittal of additional information, and the decision to deny the application was issued on November 1, 1995. On November 15, 1995, Gary Huff, Attorney for the Applicant, filed an appeal of the staff decision denying the Chester Johnson Mot short plat (see Attachment 2). That appeal was heard by the Hearing Examiner on January 18,1996. The Hearing Examiner upheld the Staff denial of the proposed short plat. On February 28, 1996, Gary Huff, Attorney for the applicantlappellant, submitted an appeal of the Hearing Examiner's decision. In his appeal letter, Mr. Huff states that the reasons for appeal are the same as those presented in the preliminary short subdivision hearing and presented to the Hearing Examiner. Issues: Nonconformance Issue. The existing development does not conform to all RS-12 requirements in that the existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. Thus there are a total of 10 existing dwelling units on one lot in a single family RS-12 zone. The maximum number of dwelling units allowed by the RS-12 zone on a single lot is one (1). If approved, the proposal would create separate lots for (1) the apartment building, (2) the existing single-family residence, and (3), a new vacant building. The result would be three building lots with a potential for 11 dwelling units. Setback Issue: The proposed subdivision will increase the number of units being served by the access from three to five. Therefore lot 1 will change to a corner lot designation, and the setback on the north side of the lot one will change from a 10 foot required setback to a 25 foot required setback. The existing 9 unit multiple family building has a conforming 10-foot north side setback. If approved, the proposal will cause that setback to become nonconforming. The setbacks proposed for lot 3 are also nonconforming as proposed, due to the location of the existing buildings on lot 3. Therefore the applicant's proposal does not meet the minimum standards found in the ECDC for setbacks. Access Issue: The applicant has proposed to access the subdivision via a 20-foot wide access easement where a 40-foot wide access is required based on the number of proposed dwelling units to be served. Analysis: Nonconformance Issue: The appellant states that he believes that the proposal will not be an increase in the nonconformance of this property as the building containing the nonconforming use will not be altered or increased in size. In addition, the appellant believes that the nonconformance could be decreased because the existing apartment and single family dwellings will be on separate lots, thus decreasing the number of dwelling units on each lot. In Exhibit 5, City Attorney Scott Snyder responds . to the, letter presented by Gary Huff (Mr. Huffs letter is contained in Exhibit 4). In the response, the City Attomey confirms that denial of the proposed subdivision based on an increase, in the non -conforming density is a valid interpretation of the ECDC. The City Attorney also concurs with Mr. Huff s argument to the extent that approval could be granted for subdivisions with conforming lot sizes regardless of the number of -units on the subject" property. Therefore the decision to deny the proposal is essentially a policy decision. It has been the policy of the City to strictly interpret the sections of the ECDC which govern non- conforming lots, buildings and uses (ECDC 17.40) in order to meet the purposes of this chapter and, over. time, abate non -conforming uses. In light of this policy, staff has concluded that the proposal does not comply. with the density standards set forth in the RS-12 zone district. Setback Issue: The applicant stated at the hearing before the Hearing Examiner that a building or buildings will be removed on lot 3, and that a minor reorientation of lot 3 will be proposed for the Final Subdivision so that the setback on lot 3 will comply with the "requirements of Edmonds Community Development Code. The applicant also stated that they are willing to condition the approval contingent upon obtaining an approved variance for the setback issue for lot 1. Proposed subdivisions are routinely approved with conditions of relocating buildings, minor property line relocation, and variance requirements. However, approval of a variance cannot be assumed. If the other issues for denial are resolved, staff would not oppose approval of the proposal so long as it can be conditioned on compliance with required setbacks, or approval of necessary variances. Access Issue: At the hearing examiner hearing, the applicant provided information which revealed that the existing parking for the nine unit apartment will not have to be relocated. Thus the nine unit apartment will not need to gain access via the proposed access. Therefore a 20 foot access as proposed by the applicant will be permissible. Recommended Action: Deny the appeal of the Hearing Examiner Decision: Council Action: Dear Planning Department: Please accept this letter as the Notice of Appeal of Applicant Chester Johnson in the above matter. The grounds for appeal are stated in the letter of September 28,1995 from the undersigned to John Bissell which is attached hereto. In addition, the Johnson appeal on the ;ground that decision was not timely made and must therefore be .deemed approved. The Johnsons' address is 17000 Talbot Road. The parties of record are listed on pages 6 and 7 of the Examiner's Decision. Sincerely, Chester Johnson Fite No. AP-95-189 Page 2 of 7 I. INTRODUCTION A. Application 1. AMWIW: Chester Johnson (see Attachment 2): 2. Original ppicant: Chester Johnson (see Attachment 2, and 4). 3 Site Location: 17000 Talbot Road (see Attachment 1). 4. Request:' Appeal of the Hearing Officer's decision to deny a 3-lot short subdivision request under file number S-95-129 (see Attachment 4): 5. Review Process: Appeal of approval of a Short Subdivision, Hearing Examiner conducts public hearing and makes final decision. 6. MMWor Issues: a. Compliance width Edmonds Community Development Code (ECDC) Chapter 16.20.020 (RS-12 Development Standards including setbacks and density). b. Compliance width Edmonds Community Development Code (ECDC) Chapter 18.80.010 (Street and Driveway Standards). c. Compliance with Edmonds Community Development Code (ECDC)Chapter 20.105 (Appeals and Court Review). B. Description of Proposal Chester Johnson proposed to divide one (1) existing lot with a total lot area of approximately 41,543 square feet (0.95 acres) into 3 lots. The existing lot is currently developed with one single- family dwelling unit and one 9-unit apartment building. The site is zoned in a single family, RS- 12. The proposal would create a separate lot for the apartment building and for the existing single-family residence, as well as add one additional building lot for a total of three lots and potential for 1 I dwelling units. Gary Huff, Attorney, has submitted an appeal on behalf of the applicant, Chester Johnson. In his appeal letter, Mr. Huff states that the reasons for appeal are the same as those presented in the preliminary short subdivision hearing. I- That the proposed subdivision should be approved because the non -conforming use would not be increased since the building containing the non -conforming use is not proposed to be altered. 2. That the 40-foot vehicle easement width should not be required for the access road to the site. The applicant has stated that the parking for the nine unit apartment building is provided on the east side (Talbot Road side) of the apartment building and therefore the nine units would not be required to use the access road, reducing the required access width from 40-feet to 20-feet. 3. Mr. Huff has stated that the setback problems identified in the -subdivision preliminary report will be corrected by adjusting property line locations, removing existing the existing carport attached to the existing single family residence, and requesting a variance, and that the subdivision should be approved with conditions to that effect, 4. W. Huff states that the denial should be overturned as he believes that the decision was not issued in a timely manor (see Attachments 2 and 4). AP95189.DOC / December 22,1995 / StaffReport ` Chester Johnson File No, AP-95-189 Page 3 of 9 C. Recommendation Based on statements of Fact, Conclusions, and Attachments in this report we recommend denial of the appeal, upholding the staff denial of the application. H. FINDINGS OF FACT AND CONCLUSIONS A. Site Description Y. Site Development And Zoning: a. Facts: _ (1) Sim: The total size of the subject property is approximately 41,543 square feet (0.95 acres). The size of each proposed lot is: Gross So. Ft. r-------- }---- — — — — — — Lot 1: i 14,715 t 14,715 Lott----�-- — — — —+ — 12,t— — — — — — —_e --- ---'-------- -- (2) Land Use: The existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building: The site is zoned in a single family, RS-12. The proposal would create a separate lot for the apartment building and for the existing single-family residence, as well as add one additional building lot for a total of three lots and potential for l 1 dwelling units (see Attachment 4). (3) nine: The subject property is zoned RS-12 (single residential family with a minimum 12,000 square foot lot size requirement) (see Attachment 1). (4) Terrain_ and Vegetation: The subject property slopes gently from the east to west with a steep bank along the western property line. Vegetation on the site consists of ornamental landscaping with native vegetation along the western bank. 2. Neighboring Development And Zoning: a. Facts: (1) The adjacent properties to the north, south, east, and west and are currently zoned as single-family (RS-12) (see Attachments 1). (2) The adjacent properties to the east, north, and south are currently developed with single-family homes. B. History 1. a. Facts: (1) The following is a chronological account of the development of the property located at 17000 Talbot Road. The purpose is to clarify the review process for this proposal, as well as outline the appeals that have taken place. (a) August 3, 1995: Chester Johnson applies for a Mot short plat. ale No. S-95- 129) (b) September 22,1995: Staff conducted a public hearing on the proposed 3- lot short plat (see Attachment 4). AP95189.DOC ! December 22,19951 Staff Report zJ :>' s Chester 3ohnson File No. AP-95-189 Page 4 of 7 (c) September 29, 1995. Gary Huff, , Attorney for the Applicant submitted a brief summarizing his testimony (see Attachment 4, Exhibit B) (d) October 18, 1995: Scott Snyder, City Attorney submitted comments on the September 29, 1995 letter from Mr. Huff, Hearing Closed (e) November 15, 1993: Appellant files an appeal of the City of Edmonds decision denying the Chester Johnson 3-Tot short plat (see Attachment 2). C. Edmonds Community development Code (ECDC) Compliance 1. (1) The fundamental site development standards pertaining to Residential development in a RS-12 zone are set forth in Chapter 16.20.030. (2) The existing development conforms does not conform to all RS-12 requirements in that the existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. This create a total of 10 existing dwelling units on one lot in a single family zone (RS-12). The maximum number of dwelling units allowed by the RS 12 zone on a single lot is one (1). The proposal would create a separate lot for the apartment and for the existing single family building, as well as add one additional building lot for a total of three (3) lots with 11 dwelling units. In addition, the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision. The applicant has also proposed to access the subdivision via a 20-foot wide access easement where a 40-foot wide access is required based on the number of proposed dwelling units to be served (see Attachment 4). b:ondusion: The proposal does not comply with the development standards for the RS-12 zone as set forth in Chapter 16.20 or the street and driveway standards as required by Chapter 18.80 because the applicant is proposing a development which would allow 11 dwelling units where the density allowed in the RS-12 zone would allow three (3) dwelling units. Additionally the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision, and because the proposed access easement is 20 feet wide, where a 40 foot wide access easement is required. 2. The following is a review of the appellants issues, comments of the City Staff and City Attorney a. (1) Appellant Issue: That the proposed subdivision should be approved because the non -conforming use would not be increased since the building containing the non- conforming use is not proposed to be altered. (2) Staff Analysis: (a) City Attorney Comments: In Exhibit C of Attachment 4 City Attorney Scott Snyder responded to the letter presented by Gary Huff, found as Exhibit B of Attachment 4. In the response the City Attorney concurred that recommending denial based on an increase in the non -conforming density, is a valid interpretation of the ECDC. The City Attorney also concurred with Mr. Huff to the extent that approval could be granted far subdivisions with conforming lot sizes regardless of the number of units on the subject property. Therefore the decision to deny the proposal must be based on City Policy (b) Staff Comments: It has been the policy of the City to strictly interpret the sections of the ECDC which govern non -conforming lots, buildings and uses AP95189.DOC 1 December 22,19951 Staff Report Chester Johnson Fite No. AP-95-189 Page 5 of 7 (ECDC 17.40) in order to effectuate the purposes of this chapter and over time abate non -conforming uses. (3) Conclusion: The proposal is not consistent with the City of Edmonds Comprehensive Plan and Zoning Ordinance related to density, and is not consistent with the City Policy and Code Requirements related to non -conforming uses. b. (1) Appellant Issue: The 40-foot vehicle easement width should not be required for the access road to the site. The applicant has stated that the parking for the nine unit apartment building is provided on the east side (Talbot Road side) of the apartment building and therefore the nine units would not be required to use the access road, reducing the required access width from 40-feet to 20-feet. .(2) Staff Analysis: The Official Street Map shows a 60-foot wide right-of-way required for Talbot Road adjacent to the subject property. The Engineering Division requirements (see Attachment 4 of Exhibit A of Attachment 4) state that the dedication is complete. Since the surveyor has provided information showing that the dedication is not complete, the applicant will be required to dedicate 30-feet from the center line west. The existing parking lot provides nine (9) parking stalls where eighteen (18) stalls would be required. Any existing stalls that would be removed by a street dedication would be required to be replaced. The required right-of-way dedication would result in the existing parking lot being part of the dedication. Therefore, upon dedication the existing parking will no longer be on the subject site, and thus, will not comply with the off-street parking requirements. In order to comply with the off-street parking standards, the applicant will be required to replace the nine (9) parking stalls lost in the dedication. The new stalls will be installed on the west side of the existing apartment building. This will result in the nine unit apartment building using the required access, and thus a 40-foot access would be required based on the number of units using the access easement. (3) Conclusion: The applicant will be required to dedicate 30-feet of right-of-way of Talbot Road to the City. The nine unit apartment building will be required to provide access from the proposed access easement, and therefore, the proposed access easement must be 40- feet wide. C. (1) Appellant'Issue: Mr. Huff has stated that the setback problems identified in the subdivision preliminary report will be corrected by adjusting property line locations, removing existing buildings and requesting a variance, and that the subdivision should be approved with conditions to that effect. (2) Staff Analysis: Proposed subdivisions are routinely approved with conditions of relocating buildings, minor property line relocation, and variance requirements. However, approval of a variance cannot be assumed. (3) Conclusion: If the other issues for denial were to *be resolved, staff would not oppose the approval of the proposal with conditions of compliance with required setbacks, or approval of necessary variances. C. (1) Applicant Issue: Mr. Huff states that the denial should be overturned as he believes that the decision was not issued in a timely manor. (see Attachments 2 and 4). (2) Staff Analysis: AP95189.DOC / December 22,1995 J StafReport . ti...%" Chester Johnson Fife No. AP-95-189 Page 6 of 7 (a) Staff Comments: Regarding the appeal on the ground that the decision was not issued in a timely manner, the Hearing Officer stated at the hearing that the hearing would be held open for the purpose of receiving the testimony of Mr. Huff in the form of a brief, and that that brief would be reviewed by the City Attorney. The brief from the Applicant's Attorney was received on September 29,1995, the Continents from the City Attorney were received on October 18, 1995, and the decision was issued ten (10) working days after the City Attorney Comments, on November 1, 1995. ,(b) C y Attorrigy-Comments: 1n the event that the stated closing date of the hearing was not clearly made at the time of the hearing, the City attorney was asked to comment on the validity of approval of a subdivision application in the event that the decision is not timely. City Attorney Phil Olbrechts commented "since there still has not been any decision or statute in this state that mandates approval for a city's failure to comply with applicable decision making deadlines, there is currently no immediate right of approval for your short subdivision applicant "(see Attachment 3) (3) Conclusion: The decision was issued in a timely manner, and other -wise, the timeliness of a decision is not grounds for over turning a decision M. RECONSIDERATIONS AND APPEAL The following is a summary of the deadlines and procedures for filing a request for reconsideration of the Hearing Examiner's recommendation. Any person wishing to file or respond to a recommendation should contact the Planning Department for further procedural information. A. Request for Reconsideration Section 20.100.010.E allows for the Hearing Examiner to reconsider his decision or recommendation if a written request is filed within ten (10) working days of the date of the initial decision by any person who attends the public hearing and signs the attendance register and/or presents testimony or by any person holding an ownership interest in a tract of land which is the subject of such decision or recommendation. The reconsideration request must cite specific references to the findings and/or the criteria contained in the ordinances governing the type of application being reviewed. B. Appeals Section 20.105.020.A & B describe how appeals of a Hearing Examiner decision or recommendation shall be made. The appeal shall be made in writing, and shall include the decision being appealed along with the name of the project and the date of the decision, the name of the individual or group appealing the decision, their interest in the matter, and reasons why the appellant believes the decision to be wrong. The appeal must be filed with the Community Development Director within ten (10) working days after the date of the decision being appealed. IV. APPENDICES Attachments 1 through 4 are attached. 1. Vicinity / Zoning Map 2. Letter of Appeal submitted by Gary Huff on behalf of Chester Johnson 3. Memorandum dated December 13,1995 from Phil Olbrechts, City Attorney 4. Final Review of Proposed Short Subdivision File No. 5-95-129, including Eexhibit A, Preliminary Review of Proposed Short Subdivision File No. 5-95-129 AP95189.D0C ! December 22,1995 / Staff Report ATTORNEYS AT LAW 5. 2140 WcAlab Carnet Tb%vr • 1601 Fitch Avanua • Ssatde. WA 98101.1686 • (206) 447.7000 • Fax (206) 447-MIS g MEMORANDUM ;;: DATE: December 13, 1995 TO: John :Bissell, Associate Planner, City of Edmonds FROM: Wd A. OlbreChta l ]B: AUTOMATIC -APPROVAL OP SHORT SUBDIVISION APPLICATION UPON EXPIRATION OF DECISION MATONG DEADLINE You have asked if a short subdivision application is automatically approved if staff fails to issue a decision within ten days of a staff hearing on a preliminary short plat, pursuant to Section 20.95.060(B) of the Edmonds Community Development Code. The existence of such a remedy (automatic approval) would have to have been created either by statute or by some court opinion. f There is no statute in the State of Washington that requires such a remedy. Further, there is no <` court opinion in this state that mandates such a =mcdy and I have also been unable to find any court opinion in any other state that provides for such a remedy, kept for situations where a statute or ordinance provides for automatic approval if a decision is not rendered within a requisite time period. S= 83 Am iur 2d, Zoning and Planning §817. The closest to which this issue has been considered in this state is in Norco Consul don z. Ring Ccaun% 29 Wash. App, 179, 627 P.2d 988 (1981), modiified by, Norco Construction, Inc. v. King County, 97 Wn.2d 680, 649 P.2d 103 (1982). In Norco, King County failed to prove, disprove or return to the 1 applicant for modification a preliminary plat within ninety (90) days from the date of z>F'littg pursuant to the requirements of RCW 58.17.140. 7n analysing the rights of the applicant that arose from the failure of the County to timely consider its preliminary plat application, the court determined that "[t)he right which vests in the preliminary plat applicant is not the right to prclinAnary plat approval. What vests is the applicant's right to have the preliminary plat application considered under the zoning ordinances and procedures existing at the time of the application should have been enacted upon." 29 Wash. App. at 191. The force of the Norco decision was somewhat undermined by subsequent review in the State Supreme Court under Norco Construction, Inc. v. Kng C'owq, 97 Wn.2d 680, 649, P.2d 103 (1982). In the State Supreme Court Norco decision, the court stated that the Court of -Appeals had overstated the nature of Norco's right by finding that the preliminary plat applicant had a vestals right in having its application determined by the land use regulations in effect at the expiration of the ninety (90) day decision time line pursuant to RCW 58.17.140 and that the preliminary plat applicant simply had the right to have a decision based upon relevant factors made within ninety (90) days after ATTACHMENT 3 File No. AP-95-139 %Wutd=OERce • One Soudt chtien Sluct • F.o.Box 16M • Wen, Whw, WA98807 - 5� TY OF E DMONDS PLANNING DIETON FINAL RF E3Y OF ROPQ ION . aaawo�i iaaaas•�i a�aaaaaanasra�aaaaaao•rna ;��� .. DATE: NOVEMBER 1,1995 FILE: S-95-129 . TABLE OF ONTENTS 1. INTRODUCTION...... ...:......... ............................. .:....:,::;..,...........:... ` ......r.:...:;....., 2 A. APPLICATION ....:...... .................:.....::.......................... B. ' PUBLIC HEARING . 2 C. DECISION .. : :...2 IL FINDINGS OF FACT ... .. 2 III. CONCLUSION iv. EXHIBITS....... .:...:.:........: .......:.:....: •• 3 V, PARTIES OF RECORD.. .. ... ... .3 I. INTRODUCTION A. APPLICATION 1. A&Rlican Chester Johnson. 2. Site Location, 17140 Talbot Road(see Attachment 1 of Exhibit A). 3. Rgques To divide one (1) existing lot with a total lot area of approximately 41,543 square feet (0,95 acres) into 3 lots. The existing lot is currently developed with one single family dwelling unit and one 9-unit apartment building in a single family zone. The proposal would create a separate lot for the apartment and for the existing single family, as well as add one additional building lot for a total of three lots with 2 2 dwelling units. Lot Area of each proposed lot: N A.5Sh & Gross, Sq._Ft. Lot 1: 14,715 14,715 Lot 2:• 12,028 12,028 Lot 3: 13,525 14,800 4. Review Process: Hearing Officer conducts public hearing Wnd makes decision. 5. Maior issues: a. Compliance with Edmonds Community Development Code (ECDC) Section 16.20,030, site development standards for the RS-8 zone. b. Compliance with Edmonds Community Development Code (ECDC) Section 20.75, subdivision requirements. C. Compliance with Edmonds Community Development Code (ECDC) Section 20.95, staff review requirements. d. Compliance with Edmonds Community Development Code (ECDC) Section 17,40, non -conforming uses and buildings. ATTACHMENT 4 File No. AP-95-189 _. Johnson y S-95.129 PUBLIC HEARING The Planning Division Hearing Officer conducted a public hearing on this application on September 22. 1995, at 10,00 a m,.,, John Bissell, Associate Planner, acted as the Hearing Officer. DECISION Based upon the Findings of Fact and Conclusions; Attachments, Exhibits and the Testimony and Evidence submitted at the public hearing of June 9, 1995; upon the impressions of the Hearing Officer after making a site inspection of the subject property, the following is the decision of the Hearing Officer for the City of Edmonds Planning Division: ill divisimDenied: The applicant has proposed a 3-lot short subdivision which does not comply with several sections of the Edmonds Community Development Code. The applicant has proposed to place new property lines which cannot comply with the setbacks of existing buildings. The applicant has proposed a density which is not allowed by zoning code or by the Comprehensive Plan. The applicant has also proposed to access the subdivision via a 20-foot wide access easement where a 40-foot wide access is required, based on the number of proposed dwelling units to be served. II. FIN_TJEI`Jl;'rS OF FACT A. The Findings of Fact on pages I through 5 of the Planning Division Staff Report (Exhibit A) are . found by the Hearing Officer to be supported by the evidence presented during the hearing, and by this reference are adopted as the Planning Division's Findings of Fact. A copy of said report is attached hereto as Exhibit A. B. The preliminary staff report identified and attached as Exhibit A recommended denial of the application because the proposed access easement did not comply with the minimum requirements to serve I 1 dwelling units. Additionally, the applicant had proposed to increase the number of total dwelling units on the subject property from 10 to I I (the site currently contains one single- family residence and one 9-unit apartment building), where the zoning density would allow three dwelling units. The applicant had also submitted -a site plan and lot layout which would require an increased setback for the north side of the existing apartment building, which could not be met by the proposed site configuration; furthermore, the proposed property lines would not conform to minimum required setbacks. C. Gary Huff testified that he is an attorney and that he is representing the Applicant at this hearing. Mr. Huff gave a great deal of testimony which is summarized in Exhibit B. Mr. Huff testified that the proposed subdivision should be approved because the non -conforming use would not be increased since the building is not proposed to be altered. Mr. Huff continued with further testimony. D. Gary Huff testified that the proposed setbacks on lot 3 does not comply with the code requirements, but could be resolved by altering a lot line location or by removing the existing carport. Mr. Huff further testified that the applicant would apply for a variance for relief from the north setback requirement for the apartment building located on lot 1. E. Vern Bower, the applicant's surveyor testified that recorded legal descriptions and title reports revealed that the right-of-way of Talbot Road adjacent to the subject property, had never been dedicated to the City by the property owner. F. The Official Street Map shows a 60-foot right-of-way required for Talbot Road adjacent to the subject property. The Engineering Division requirements (see Attachment 4 of Exhibit A) state that the dedication is complete. Since the surveyor has provided information showing that the dedication is not complete, the applicant will be required to dedicate 30-feet from the center line west. G. Mr. Bower requested that since the street right-of-way dedication was never recorded, the on -site parking lot located to the east of the apartment building is therefore not located in City right -of - Page 2 of 4 1 E l; Johnson S-95-129 way as was previously assumed. Therefore, the requirement to relocate the parking to the west side of the apartment building should be removed. H. Mr. Bower also requested that the Engineering Division modify the turn -around requirement so that the required turn -around would not be located on lot 3. L The Engineering Division clarified the turnaround requirement, to be a hammerhead turn -around which is required to be located at the east end of the access panhandle for lot 3. This requirement will reduce the lot area of lot 2. Therefore some lot line alterations may be required. J, The required right-of-way dedication would result in the existing parking lot being off -site. The existing parking lot meets the current off-street parking requirements. Therefore, upon dedication the existing parking will no longer be on the subject site, and therefore, will not comply with the off-street parking requirements. In order to comply with the current off-street parking standards, the applicant will be required to install 9 parking spaces on the west side of the existing apartment building. K. After the conclusion of all the testimony, the Hearing Officer requested that Mr. Huff present his lengthy testimony in the form of a written brief. The hearing officer stated he would hold open the hearing for Mr. Huff to submit his testimony form of a written brief so that the City Attorney could review and respond. Mr. Huff agreed to the request. L. A written brief was received from Mr. Huff via fax on September 28, 1995 (see Exhibit B) and was forwarded to the City Attorney for review. On October 16, 1995, the Hearing Officer received a written response from the City Attorney which is identified and attached as Exhibit C. M. The City Attorney concurred that recommending denial based on an increase in the non- conforming density, is a valid interpretation of the ECDC. The City Attorney also concurred with Mr. Huff to the extent that approval could be granted for subdivisions with conforming lot sizes irregardless of the number of units on the subject property. N. It has been the policy of the City to strictly interpret the sections of the ECDC which govern non- conforming lots, buildings and uses (ECDC 17.40) in order to effectuate the purposes of this chapter and over time abate non -conforming uses. III. CONCr,tr�YON A. In order for the 9-unit apartment building to comply with the parking requirements should the application receive approval, 9 additional parking spaces will be required on site. The remaining 9 stalls not provided are legal non -conforming. B The proposal is not consistent with policy regarding non -conforming uses. C. The requirements of the Engineering Division found in Attachment 4 of Exhibit A should be altered to require the dedication of the 30-feet of right-of-way of Talbot Road adjacent to the subject lot at the time of approval of this subdivision. D. The applicant has not presented arguments which alter the recommendations, facts and conclusion presented in the Preliminary Staff Report (Exhibit A). IV.Iit1 Exhibits "A" through "C" are attached. A - Planning Division Preliminary Staff Advisory Report B - Summary of Testimony as a brief from Gary Huff C - Comments from City Attorney Scott Snyder V. PARTIES O,_ F R>ti�QRD Applicant Planning Division - Engineering Division } Page 3 of 4 I. APPLICATION: A. File No. S-95-129 EXHIBIT B. Site Address: 17140 Talbot Road- � C. APPLICANT: Chester Johnson FILE i`0.—L- D. ANALYSIS OF DESIGN: 1. Znnin : The subject property is zoned RS-12 (single family residential with,a minimum 12,000 square foot lot size requirement). 2. Lot sizes and dimensions: a) Proposal: To divide one (1) existing lot with a total lot area of approximately 41,543 square feet (0.95 acres) into 3 lots. The exisitng lot is currently developed with one single family dweling unit and one nine unit apartment building where in a single family zone. The proposal would create a separate lot f9r the apartment and for the exisitng single family, as well as add one addtional building lot for a total of three lots with 11 dwelling units. b) Lot sizes: (1) Lot l: 14,715 net square feet, 14,715 gross square feet, (2) Lot 2: 12,028 net square feet, 12,028 gross square feet. (3) Lot 3: 13,525 net square feet, 14,800 gross square feet. c) Areas and setbacks: Lot areas meet the minimum 12,000 square foot area for the RS-12 zone district. The setbacks for lot I are inadequate as proposal will change the required setback for the north side. Section 21.90.120 of the Edmonds Community Development Code (ECDC) defines a street as "the public Or private right-of-way of access easement which provides vehicle access to more than three lots," Currently the vehicle access located on the north side of the proposed subdivision provides access to three lots. The proposed subdivision will increase that number to five, and therefore change the setback on the north side of the proposed lot I from a side setback of 10-feet to a street setback of 25-feet. The existing 9 unit multiple family building has a conforming 10-foot north side setback. The proposal will cause that setback to become nonconforming, i The setbacks proposed for lot 3 are also nonconforming as proposed. Due to the location of the existing buildings on lot 3, the setback orientation requires a ten foot side setback along the north property line and a 25-foot setback along the eastern property line, The existing buildings conform to these requirements prior to the s9S129PMOC 1 EA"HIBIT proposed subdivision. However, the proposed property line separating lot 2 and lot 3 leaves a 10-foot setback where a 25-foot setback is require from the property line to an out building, and a 22-foot setback to the existing house. Therefore the applicant's proposal does not meet the minimum standards found in the ECDC for setbacks. The setback orientations will be as follows: Lot 1 Lot 1 is a corner lot, Street Setbacks: From the east and north property line. Side Setbacks: From the south and west property lines. Rear Setback: N/A. Lot 2 Street Setbacks: From the north property line. Side Setbacks: From the east and west property lines. Rear Setback: From the south property line. Lot 3 Street Setbacks: From the east property line. Side Setbacks: From the north and south property lines. Rear Setback: From the west property line. 3. Lot arrangement to topography: Satisfactory. 4. Lot Coverage of Existing Buiidin - P�Qposed Lots: 35% maximum lot coverage is allowed a) Lot 1: The existing house on proposed lot 1 covers approximately 17% of the proposed lot. b) Lot 2: There are no existing buildings located on lot 2. c) Lot 3: The existing buildings on proposed lot 3 cover approximately 25% of the proposed lot. 5. Consistent with the purposes of the oni Ordinance? Proposed lot 3, of the proposaed short plat contains a nine unit apartment building and a single family house. The zoning of the site allows one single family dwelling unit on separate lots per each 12,000 square feet of lot area. Multiple family dwellings are not permitted in the RS- zone district. In addition, the density allowed by the zone district would only allow a maximum density of three dwelling units. The site currently contains ten dwelling units. Section 17.40.010(B) of the ECDC states "A nonconforming use may continue ... but it may not be expanded in any way, including additional floor area..." Since the proposal is to allow an additional building lot, the applicant is proposing to expand the nonconforming use of excess dwelling units by adding additional dwelling units and floor area. Therefore the applicant's proposal does not meet the minimum standards found in the Edmonds Community Development Code for density and expansion of a nonconforming use. E.t CONFORMANCE TO COMPREHENSIVE PLAN 1. Conforms IQ t poll i s of the Comprehensive Plan' The City of Edmonds Comprehensive Plan designates the subject property for Single Family Development. The existing site is developed with a multiple family development, with the applicant $95129P.DOC 2 wishes to expand with a new single family residence. Therefore the proposal is not consistent with the intent of the comprehensive plan. F. ENVIRONMENTAL ASSESSMENT 1. Is this site identified on the Citv's Environmentally ensitive Areas M@p? No. 2. Is an Environmental Checklist Rewired fort is application? Yes. A determination of nonsignificance was issued on September 11,1995. G. CRITICAL AREAS REVIEW: 2. ResuIts sooCritical-Areas Review: A study was required to identify the location of the steep banks on the west side of the property. The applicant has not completed this requirement. This requirement must be completed prior to the issuance of any permits or the recording of any subdivision approvals. H. REQUIRED IMPROVEMENTS AND DEDICATIONS 1. Ensineerina, drainage and street -dedications: See City Engineer's Report (see Attachment 4). a) Among the many issues covered by the Engineering Division Requirements is a requirement for a 40-foot access easement to be provided from the panhandle of lot 3 to Talbot Road. The applicant has shown that a 10-foot access easement is provided, and an additional 10-foot easement is located adjacent to the proposed ten foot easement. The applicant has shown no evidence that the adjacent 10-foot easement can legally by utilized, and the total width of the two easements is 20-feet where 40-feet is required. Therefore, the applicant's proposal for a 10-foot easement with the possibility of a 20-foot easement does not meet the minimum requirement of a 40-foot easement. b) Conclusion: The proposed right of way in addtion to the right of way wich might be available for this proposal is insuficient to support the proposed and existing number of dwelling units. 2. Parks or other facilities? None. II, PRELIMINARY RECOMMENDATION: Denial The applicant has proposed a 3 lot short subdivision which does not comply with several sections of the Edmonds Community Development Code. The applicant has proposed to place new property lines which cannot comply with the setbacks of existing buildings. The applicant has proposed a density which is not allowed 'by zoning code or by the Comprehensive Plan, The applicant has also proposed to access the subdivision by way of an access easement which is half as wide as required by the Community Development Code for the number of dwelling units. a i+ mll - ;, . WRbM NOTE: THE CONDITIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT ARE SUBJECT TO REVISION BASED UPON TESTIMONY AND EVIDENCE PRESENTED AT THE SCHEDULED PUBLIC HEARING ON THIS PROPOSED SUBDIVISION. M129P.poc 3 1 city of edmonu, - land use application ARCHITECTURAL DESIGN BOARD COMP PLAN CHANGE CONDITIONAL USE PERMIT FORMAL SUBDIVISION HOME OCCUPATION LOT LINE ADJUSTMENT OFFICIAL STREET MAP AMEND PLANNED RESIDENTIAL DEVELOP. REZONE SETBACK ADJUSTMENT SHORELINE PERMIT SHORT SUBDIVISION STREET VACATION VARIANCE . RESUBMITTAL FILE # CA--qs5—I1 s" FILE# 95_1 K�f ZONE ,/? 5- 111z- � DAT 3 / • r REC'D BY� FEppE RECEIPT EARI ATE ____,��? _� ❑ HE CATAFF ❑ PB ❑ ADB CI CC ACTION TAKEN: 0 APPROVED ❑ DENIED 0 APPEALED APPEAL # Applicant �'��"T -dW Phone 7�✓ �d�PT Address ✓?©dD_ .7.Dl.�DT .�,so� .�4.�'1�Ullr: GI/O, .1d1i111 Property Address or Location - 025 �°" -d-$' _1d4ft0r Property Owner Phone. Address Agent .— /'vre'v'.sys. Phone 401 We Address_ ,Box' /4'945 , �S`�a%smiSh 9A29/- AMd Tax Acc # �'%��?D�_ /_�ZG_..OGe�� Sec. �_Twp.4'7 Rng. Legal Description Details of Project or Proposed Use ..-7" Z,�T A,1aoi,-ic.a r/oi✓ % (IEc . 18 80, O1CJ E, C, C ISTeE c ? 411ICA-o4, Ta .4[L6W rH� .�Dr>iZ�oh/,ac. GoZ 7'0 ,4cr�yy a✓�-e -M� isri�� _ _ ___. .4iE L3.,�1 t/�" rut 7-�a�' A GDE'O ,e✓tN a 2 1 ti9s>iP0 t/ts .��.tJl"� The undersiggned applicant and his/her/its heirs, and assigns, in consideration of the processing of the application agrees to release, Indemnify, defend and -hold the City of Edmonds harmless from any and all damages, including reasonable attorney's fees, arising from any action or Infraction based in whole or in part upon false, misleading, Inaccurate or incomplete information furnished by the applicant, his/her/its agents or employees. The undersigned applicant grants his/her/its permisslo for ppublic officials and the staff of the City of Edmonds to enter the subject property for the .purpose of Inspection osting a this application. SIGNATURE OF APAUCANT/OWNER/AGENT o .r. k's, 2ipz Al �� °©� •,ems ;E ---a « fr.U�PU/YGJDN.�Y0.�1.�f.PiY.('.P. -,E/v - .. �d � • ,:mow -'_�"' � ,� �,,TTr,/�y�n tea• a LD y. J• a /ri °�D . `........... 6.d `-- �wr• 9L � �a:4d d' ,,1f6 G, 0'7' ..3 -. as�e .AEU/S/UrY1°' p�CJ�� AEC/.Yl�r!/ar,� G.rvr�t-�.e�i�: �or2•,f19 9l w. led ale ... _. & d► �� % ("' :c'D .fs.!t%Y%ENl_ «f� ;e�,aa/i'i1 wD.tvv nani.., �• 1 dfd o4- •r� AM 4'`�✓r /W"'n! j _. �.. ` A. � CITY OF EDMONDS 250 STH AVENUE NORTH, EDMONDS, WA 98020 (206) 771.3202 RCW 197-11-970 Determination of Nonsignificance (DNS) DETERMINATION OF NONSIGNIFICANCE ff Description of proposal: Three lot short subdivision In an RS-12 zone on a lot which currently has one single family dwelling unit and one nine unit multiple family dwelling building. (File No. S-9S-I29) Proponent: Chester and Doris Johnson, 17000 Talbot Road, Edmonds, WA 98026. Location of proposal, Including street address If any: 17000 and 17140 Talbot Road. Lead agency: CITY OF EDMONDS The lead agency for this proposal has determined that it does not have a probable significant adverse impact on the environment. An environmental impact statement Is not required under RCW 43:21.030(2)(c), This decision was made after review of a completed environmental checklist and other information on file with the lead agency. This c information is available to the public on request. _ f —XX There is no comment period for this DNS. e This DNS is Issued under 197-11-340(2); the lead agency will not act on this proposal for IS days r from the date below. Comments must be submitted by ,199S. Responsible Official: JeffreysS. 3Milsan Position/Title: Current Planning Supervisor, Department of Community Services - Planning Division Phone: 771-0220 E. Address: City of Edmonds, 250 5th Avenue North, Edm WA 98020 Date: F Signature, %t._7. ., ,._ _ F XX You may appeal this determination to Rober Chave, Planning Manager, at 250 5th Avenue North, Edmonds, WA 98020, no later than _ _ _ _�.._1995, by filing a written appeal citing the reasons. You should be prepared to make specific factual objections. Contact Jeffrey_S. Wilson to read or ask about the procedures for SEPA appeals. XXPosted on $ // , lgg, at the Edmonds Public Library, Edmonds Community 4 , Services Buil ing, and the Edmonds Post Office. ; . s � Distribute to "Checked" Agencies on the reverse side of this form, along with a copy of the Checklist. Mailed to the following along with the Environmental Checklist: -XX_ Department of Ecology �_ Chester Johnson Environmental Review Section 17000 Talbot Road P.O. Box 47703 Edmonds, WA 98026 Olympia, WA 98504-7703 XX Vern Bower P.O. Box 1486 Snohomiosh, WA 98291-I486 Attachments pc: File No. S-95-129 SEPA Notebook - Paul Mar, Community Services Director Robert Chave, Planning Manager MEMORANDUM CITY OF JEDMONDS PLANNING DIVISION 250 STH AVENUE NORTH, EDMONDS, WASHINGTON 98020 TO: FILE NO. S 29-129 FROM: John Biss 11,-P41c�ciate_ Planner DATE: SEPTEMBER 7,1995 SUBJECT; ENVIRONMENTAL DETERMINATION FOR THREE LOT SHORT SUBDIVISION IN AN RS-12 ZONE ON A LOT WHICH CURRENTLY HAS ONE SINGLE FAMILY DWELLING UNIT AND ONE NINE UNIT MULTIPLE FAMILY DWELLING BUILDING, FILE NO. S-29:25 I have had the opportunity to visit the site, review the environmental checklist, and subdivision Plan, a copy of which are filed in the official. file for this permit. The site is developed with a nine unit multiple family dwelling building, and a single family dwelling, where the zoning would allow three units. Though this density is substantially higher than allowed by code it appears that the proposal will not generate any new impacts which are not mitigated by the Edmonds Community Development Code. Drainage will be addressed by the City of Edmonds Community Development Code, section 18, which requires detention and water quality, and traffic will be assessed by the City of Edmonds street standard requirements. Issues of density in a single family zone will be addressed in the subdivision process. Based on my review of all available information and adopted policies of the City, I recommend that a determinRtion ofn�ig'fican a be issued. ---------w-----------------------------------------------_-----------------..-- Review by Responsible I concur t / I do not concur Comments: cawo„�r., KARRrTUTTLE•CAMPBELL ?ounCa(1901�� yy, AAmfuriondsoiuCorporation 1201 Third Avenue, snite 2900, Seattle, Washington 98101.3028 SEp 2 �+ Q V19S Telephone (206) 223.1918, Faceintile (206) 682.7100 1vN1I yG �j Portland Office AE r 1105 Standard Plaza,1100 S.W. Sixth Avenue, Portland Oregon 97204.1085 Telephone %03) 248.1830, Faealmite 008) 222.4429 Please reply to Seattle Office Gary D. Huff (206) 22"024 September 28, 1995 VIA FACSMLE Mr. John Bissell Community Services Department City of Edmonds 250 5th Avenue North Edmonds, WA 98020 RE: Chester Johnson Short Plat Application Dear Mr. Bissell: E n E- This f-. #, . i' • l.g.11'./ Ar. 1. .. • i-4 f•- ..I.1•.i- i l.1, R.wm it e 1 : #. • # ! ! ! 1 • •## i ' i a ' R • • f e f . As established ' at the hearing, the apartment building was permitted and constructed under Snohomish County code provisions prior to the annexation of this area into Edmonds, The parking requirement under the then applicable codes was one space per unit. The parking for the nine unit building was satisfied by the nine spaces along Talbot Road. This fact is important in determining whether additional parking behind the apartment is necessary to satisfy parking requirements; Only if additional parking is so required would the number of units needing parking in the rear be considered users of the access drive. ,.As you know, the nn4201.01 f . EXHIBIT Mr. John Bissell September 28, 1995 Page 2 number of users of that drive determines its required width. If the apartment parking is satisfied along Talbot, then the current access drive is sufficiently wide to accommodate the three lot short plat without the necessity of a reduction in road standards. Section 17.40.010(A) of your code defines a nonconforming use as follows: A nonconforming use is one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of this zoning ordinance and where applicable its predecessor. The apartment was legal under Snohomish County ordinances when constructed. Annexation into Edmonds and the concurrent application of city zoning cannot change that fact. Section 17.40.010(B) provides that "(a) nonconforming use may continue...,. but it may not be expanded in any way...." Thus, the nine spaces continue to be legally sufficient for this building. Further, any attempt on the part of the city to require additional parking would itself violate your code since it would constitute the exoan ion of a legal nGiven the above, no apartment residents should or can be considered as users of the access drive. The prospective users would then be the remaining two lots to be established by this application and the two other residents who have a legal right to utilize the northerly 10 feet of the access drive but who have no legal right to drive onto any part of the Johnson property. Section 18.18.010 then requires only a 20 foot easement width and 16 feet of paving for drives utilized by 3 or 4 users. The current drive either satisfies that requirement or could easily be made to do so with very minor improvements. This property is zoned for single family residential purposes. Under the city's view, the mdm property is considered nonconforming. Thus, under this view, the Johnson are unable to even build a deck on their home because of the legal existence of an apartment structure several hundred feet away. This unusual interpretation stems from a very literal reading of Section 21.60.050 which defines the term "multiple dwelling." 0042681.01 4 �i Mr. John Bissell September 28, 1995 Page 3 Multiple dwelling means a building or group of buildings on the same site containing two or more separate dwelling units. This definition clearly contemplates a multiple building apartment project. We are unable to make the logical leap necessary to use this language to include a single family residence which was constructed prior to the apartment and which is totally separate therefrom, within the multiple dwelling definition; particularly when the result thereof has such wide ranging consequences. The apartment is a multiple dwelling. The single family -residence is a conforming single family residence. The Johnson property houses two separate uses: multi -family and single family. The nonconformity involves the existence of the multi- family use in a single family zone. Our discussions have made clear your interpretation that creation of separate conforming lots for the existing and an additional single family residence represents an expansion of a nonconforming use. In support of your position, you point to the language of Section 17.40.010(B) which states that a nonconforming use "may not be expanded in any way, including additional lot area....." You have told me that no purpose is served by the inclusion of this language in this section. Rather, you are of the opinion that the intent of this language must have been to preclude a reduction in lot area of a nonconforming use such as is proposed here. As we expressed at the hearing, we can contemplate several situations where the questioned language would be applicable. We suggested that a nonconforming car dealership, rental yard or other business with outdoor display areas may wish to expand by adding lot area. We believe these are exactly the type of situations meant to be addressed by this language. We further believe that the language must be read for what it says; not for what one might wish it said. Rather than representing an expansion, we believe the Johnson application contemplates a reduction in nonconformity. Under your interpretation, the =tirc Johnson property is nonconforming. If a three lot short plat is approved, then 2I3 of the site is brought into conformity with existing single family zoning. The nonconforming portion of the property is reduced from 41,000 to 14,000 square feet. The only manner in which approval of this application results in an ingrease is in the ratio of units to lot area for proposed Lot 1 (the apartment). However, that increase also occurs with the two lot short plat the city has twice offered to approve. There, too, .the ratio for the apartment lot is increased. As we noted at the hearing, we have consulted with Professor William Stoebuck of the University of Washington Law School. In addition to being one of the nation's recognized experts on property law, Professor Stoebuck has just published a two volume treatise on Washington real property law. Included at Section 4.21 thereof is a discussion of Washington 0042681.01 Mr. John Bissell September 28, 1995 Page 4 law concerning nonconforming uses. Professor Stoebuck is willing to confnm in writing if necessary his opinion that so long as the apartment building is structurally left unchanged, then the reduction in its lot area arising from approval of this application would not constitute an expansion of a nonconforming use. In his exhaustive research for this treatise, he found not a single case which would support the city position. 3) The ci Ps setback requirements are met or can be met . approval of the Johnson application can be conditioned on satisfaction of sugh requirements. The staff report relies on the definition of a street contained in Section 21.90.120 in arguing that approval of the Johnson application would cause the setback for the existing apartment to violated. That section defines a street as follows: Street means the public or private right-of-way or access easement which provides vehicle access to more than three lots. Assuming that the drive would, on approval, come within that definition, then the city considers Lot 1 to come within the definition of a corner lot. A corner lot is defined at Section 21.15.100: Canner lot means a lot which has frontage on two or more streets where the streets meet. The minimum street setback is established at 25 feet in Section 16.20.030. The 20 foot access along the northerly edge of the subject property is made up of two equal parts. The northerly 10 feet thereof is comprised of an access easement across the land of the adjoining property owner. That easement is reflected at paragraph 17 of the subdivision certificate offered in evidence at the public hearing. The southerly 10 feet, from which the setback must be measured, legally serves only _the_Johnson pmperIies. While the Johnson have the right to utilize their neighbors' access, the converse is not true. Even if Lot 1 was considered a user thereof, there are only 3 lots utilizing that portion of the drive from which the setback is measured. Therefore, even with approval of a 3 lot short plat, the setback would not qualify as a street and the setback therefrom would remain at 10 feet. In the event the city chooses not to accept the above argument, then we request that the application nonetheless be approved subject to favorable action on an application for a variance from this setback requirement. 0042681.01 { Mr. John Bissell September 28, 1995 Page 5 Testimony at the public hearing we believe established the fact that the setback requirement "for the existing single family residence on proposed Lot 3 is satisfied. Assuming a street setback requirement of 25 feet, then the existing 26.7 foot setback is sufficient. The only remaining Lot 3 setback issue concerns the outbuilding at the southerly boundary thereof. The staff report attempts to impose a 25 foot setback from the proposed easterly boundary of Lot 3. That requirement assumes that this boundary is a street lot line as defined in Section 21.90.130: Street Lot Line means the line or lines along the edo of a street oraccess rig of my or Q , m L .(emphasis added). By that definition, a boundary is considered a street lot line only so long as it is adjacent to a street or access easement. Thus, on Lot 3 a street lot line occurs only along the access way on the northerly side of the property. The lot line nearest the outbuilding which forms the basis of the alleged setback violation is at lead 60 feet away from the access easement. The line adjacent to the outbuilding thus cannot qualify as a street lot line. The setback would be only the existing 10 feet. We find it instructive that the city's prior planner, Wendy Schulenburg, came to the same conclusion. In her letter dated April 26, 1993, in which she notes that the contents thereof reflect the thinking of herself and the city attorney, she states on page 2 that "....(S)ince proposed Lot 2 is not developed and the easement 'would - terminate at Lot 3, there would not appear to be an encroachment problem on either of these lots." Regardless of the efficacy of this argument, the Lot 3 setback is not a serious problem. Should the city not accept our interpretation, then an approval could again be conditioned on approval of a variance setback. Easier still would be a requirement that the subject lot line be adjusted 15 feet to the east adjacent to the outbuilding and slightly to the west next to the carport. If necessary to maintain 12,000 square feet in Lot 2, the easterly lot line thereof could be moved slightly eastward without negatively impacting Lot 1. We trust that this letter serves the intended purpose and will be helpful in resolving this matter. Hopefully we have demonstrated a legal and legitimate justification for approval of CITY OF EDMONDS CIVIC CENTER • EDMONDS, WA 98020 - (206) 775-2625 890.19y- 'P' 00 I'{ DATE: October 16, 1995 To: John Bissell, Associate Planner FROM: W. Scott Snyder, Office of the City Attorney Apt f� �°� y LAURA M. HALL {, t r MAYOR `177 RE: Chester Johnson Short Plat- Letter of Gary Huff u_ •''_�Il u You have asked for my review and response to Mr. Huff s letter of September 28, 1995. Generally, I am responding to the issue of whether or not subdivision of . an existing nonconforming lot containing a nine -unit apartment building and a single-family dwelling constitute expansion of a legal nonconforming use. The lots are zoned single family (RS-12) and designated single family on the Comprehensive Plan. As is noted in this memo, the more difficult issue is satisfaction of the review criteria of the subdivision code, specifically Section 20.75.080(b) and (c}. These two provisions require all subdivisions to be consistent with the provisions of the Edmonds Comprehensive flan and Zoning Ordinance. The issue as I see it is whether a newly created lot containing an existing nonconforming use complies with the zoning code and comprehensive plan. At the present time, a nonconforming, nine -unit apartment building and a single-family home are located on a large lot of approximately 44,000 square feet zoned single family (R-S). This lot is proposed to be subdivided into three lots. At issue is not the square footage necessary to subdivide the lots but rather the continuation of the apartment building as a nonconforming use after subdivision of the property, and indeed whether the subdivision can be approved. Chapter 17.40 of the Edmonds Community Development Code deals with nonconforming uses. The chapter distinguishes nonconforming uses, buildings and lots. In this situation, the apartment building is a nonconforming use and building but not,. given the limited restrictive language of Sections 17.40.020 and 17.40.030, a nonconforming lot. The language of these specific sections is critical. Under Washington law, in the event of ambiguity, problems of interpretation should be resolved in favor of the common law right of a property owner to utilize his property. Mall Inc. v. City of Seattle, 739 P.2d 668, 108 Wash. 2d 369 (1987). Nonconforming uses are not favored under Washington law, and abatement is reviewed in strict conformity with the language of the City ordinance. Keller v. Bellingham, 92 Wash. 29 726, 11 : 1 4 Incorporated August 11, 1890 0 Sister Cities International .-. Hekinan, Japan Memorandum to John Bissell, October 16, 1995 Page 2 600 P.2d 1276 (1979). The purpose of ordinances restricting nonconforming uses is to bring about their eventual abatement and extinguishment of the nonconforming use. Ibid. A nonconforming use is: . . . one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of the zoning ordinance and, where applicable, it predecessor. ECDC 17.40.010(a). A nonconforming use may continue unless required to be abated "... but it may not be expanded in any way, including additional lot area, floor area, height, number of employees, equipment, or hours .of operation." I note in Mr —Huffs letter some discussion of the language regarding lot area. As normally applied, this language refers, for example, to a business's attempt to utilize additional lot or floor area for a use not previously in the nonconforming use. In other words, a business which had a nonconforming outside storage could not expand the storage use to occupy additional new lot area. In my experience and reading, the lot area description does not anticipate a lot line adjustment to add square footage to a lot upon which a nonconforming use is in operation. Remember, we are discussing a nonconforming use, not a nonconforming lot. The provisions of 17.40.020 and 17.40.030 both appear limited on their terms to bulk zoning and site development standards. 17.40.020(a) defines a nonconforming building as: . . . one which once met bulk zoning standards and site dev%1gUment standards applicable to its construction, which no longer conforms to such standards.... Emphasis added. It is my understanding that the existing lot does not have existing setback problems. Rather, there are three areas of nonconformity: 1. Multi -family dwellings are not a permitted use for the zone. ECDC 16.20.010(a)(1). 2. The density violates the table of lot development standards. ECDC 16.20.030. The zone is not as clear as the site development standards set forth for the multi -family zones in ECDC 16.30.030. [16.20.030 refers to "minimum lot area (sq. ft.)" while 16.30.030(a) refers to "minimum lot area per dwelling unit (sq. ft.). "] Read together, however, the two sections seem clear that a minimum of 12,000 square feet per dwelling unit is required in an RS-12 zone. Memorandum to John Bissell October 16, 1995 Page 3 3. If approved, additional parking is required for the use if multi -family zone standards are applicable. See later discussion. !1► ��WMI V411 01 .� This case presents a difficult call both legally and in terms of policy considerations. In the past the staff has strictly construed the nonconforming lot provisions in order to effectuate the purpose of the chapter• and over time abate nonconforming uses. As- you are • aware, the nonconforming use provisions have been changed in recent years to provide more flexibility regarding lot size. Similarly, the adoption of the county -wide planning policies and population growth encourage the City to accept additional growth. At the center of any interpretation of the current code provisions is a determination of whether the subdivision proposal is consistent with the letter and purpose of the City's comprehensive plan and zoning code. There are two maximums of judicial interpretation applicable to the subdivision and zoning code at this point, and their application yields different results. The two general approaches are as follows: APPRO- VAU 1. STRICT CONSTRUCTION - ,ABATEMENT - EF1E=_A T-E THE Pj RPO E OF nM CODE. This approach would construe the code in order to effectuate its purpose. Keller, supra. The purpose- of a nonconforming limitations is to eventually abate the nonconformity. As noted, this lot has three potential areas of nonconformity and approving the subdivision would permit perpetuation of the existing nonconforming use. The nonconforming use is at odds with the comprehensive plan designation and the zoning designation for the lot, and the lot therefore fails to meet RS Cite Development standards. This interpretation would require you to incorporate cite development standards applicable to RM zoning in the RS zone even though not specifically spelled out. In other words, the RS zone does not anticipate the creation of perpetuation of a multiple dwelling nonconforming use, and therefore does not specifically reference parking density limitations. In order for a subdivision to be approved, it must meet all of the criteria and general findings of Section 20.75.080. Subsection C of this section requires a new lot to comply with the zoning code and therefore cite development standards. In summary, a subdivision of the lot creating three new lots must comply with the comprehensive plan and zoning code. If you disapprove this subdivision your finding should: Memorandum to John Bissell October 16, 1995 Page 4 a. Find that the newly created lot would violate the comprehensive plan single family residential designation and therefore it cannot make required finding Section 20.75.080(b). b. Find that the new subdivision lot containing the multi -family dwelling would not comply with the provisions of the required findings of Section 20.75.080(c) in that it does not meet the cite development standards of the RM zone incorporated by implication into the RS zone. While this interpretation runs counter to the general proposition that zoning code should be strictly construed due to the common law property rights of land owners, it does best effectuate the purpose of the code and avoids the anomaly of having a nonconforming use in an RS zone without site development standards applicable to less restrictive RM zoning. DE„ VIAL: 2. LIBERAL CONSTRUCTION AND EMPHASIS OF ROLE OF CHAPTER 17 40. If you determine it appropriate to approve the subdivision for policy reasons, your findings would stress that the existence of Chapter 17.40 approves nonconforming uses. Therefore their continuation in accordance with the provisions of the chapter are in compliance with the comprehensive plan and zoning code, meet the criteria of Chapter 20.75.080(b)(c). Your findings would also cite the maxim of interpretation regarding strict construction in order to permit full use of the property in accordance with the common law of property rights of the owner rather than the "liberal interpretation to effectuate the purpose of the zoning code" maximum, See Keller, M. VARIANCE: I note that Mr. Huff in his letter discusses the use of a variance. The variance criteria of Section 20.75.075 requires that in order for a variance to be granted all of the criteria must be met. Section 20.75.010(A)(2) require that a variance not be granted where the special circumstances finding is predicated upon "a fact or person of the owner..., extra expense which MAJOR ISSUES: 1. Compliance width Edmonds Community Development Code (ECDC) Chapter 16.20.020 (RS-12 Development Standards including setbacks and density). 2. Compliance width Edmonds Community Development Code (ECDC) Chapter 18.80.010 (Street and Driveway Standards). Hearing Examiner Decision Case No. AP-95-189 Page 2 SUMMARY OF RECOMMENDATION AND DECISION: Staff Recommendation: Deny Hearing Examiner Decision: Deny PUBLIC HEARING: After reviewing the official file which included the Planning Division Staff Advisory Report; and after visiting the site, the Hearing Examiner conducted a public hearing on the application. The hearing on the Johnson application was opened at 9:14 am., January 18, 1996, in the Plaza Room, Edmonds Library, Edmonds, Washington, and closed at 10:18 a.m. The record was held open until February 1, 1996 to obtain additional information from the City regarding interpretations of street setbacks on flag lots and from the applicant on applicable Snohomish County regulations for multiple family at the time of the construction of the apartments and more specific dimensions related to the location of the parking relative to the proposed right-of- way. Participants at the public hearing and the exhibits offered and entered are listed in this report. A verbatim recording of the hearing is available in the Planning Division. HEARING COMMENTS: The following is a summary of the comments offered at the public hearing. From the City: John Bissell, Project Planner, summarized the staff report and presented the staff recommendation to deny the appeal. He summarized the four items in the appeal, as follows: 1. In the issue of non-conformance of use, a valid argument for either side could be made based on City policy; 2. At the hearing on the short plat it was determined that the City did not have the right of way adjacent to this lot and therefore it appeared that the parking would be partially on City right of way when dedicated; therefore, a 40' wide easement (not 20') would be required to serve the site; 3. Indicated that existing setback issues could be resolved by demolition, variance or lot - line adjustments; and 4. Clarified that the decision was issued in a timely manner since the hearing was held open. From the Applicant: Gary D. Huff, representing the Johnsons, explained that they want to provide a lot for their children to build on. He noted that the 9 unit apartment was built in 1959 in Snohomish County with a parking requirement of 1 space per unit which were provided adjacent to the street. He discussed the issues of the appeal, noting that the subdivision did not change the f �flearing Examiner Decision Case No. AP-95-189 Page 3 non -conforming apartment use and would reduce the non -conformity of the existing single family home which by City definition is also considered a multiple unit. He noted that there is a 20' wide easement and that a subdivision could be approved subject to receiving a variance from the 40' wide easement requirement. He also stated that the setback issues could be resolved through adjustments to the proposed lot lines in the subdivision. He noted that the staff had stated they would agree to a 2 lot subdivision since the density remains the same. He also argued that the single family home should not be considered a multiple family - that the intent was multiple building multiple family projects. From the Community: John Hjort, who lives across the street, stated that the. apartments did not cause a problem and that the construction of a new house wouldn't really be seen due to the topography. He saw this as a technical issue which should be resolved since it wouldn't hurt the neighborhood. WRITTEN COMMENTS: ' None received. FiNDINOS OF FACT AND CONCLUSIONS A. Site Description 1. Site Development and Zoning: a. Facts: (1) Size: The total size of the subject property is approximately 41,543 square feet (0.95 acres). The size of each proposed lot is: Net Sq. Ft Lot 1: 14,715 14,715 __ _Lot 2: 12,028 , 12,028 _Lot 3• i 13,525 __-i 14,800 (2) Land Use: The existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. The site is zoned in a single family, l2S-12. The proposal would create a separate lot for the apartment building and for the existing single-family residence, as well as add one additional building lot for a total of three lots and potential for 11 dwelling units (see Exhibit A, Attachment 4). (3) Zoning:. The subject property is zoned R.S-12 (single residential family with a minimum 12,000 square foot lot size requirement) (see Exhibit A, Attachment 1). (3) Terrain and Vegetation: The subject property slopes gently from the east to west with a steep bank along the western property line. Vegetation on the site consists of ornamental landscaping with native vegetation along the western bank. (4) Development of Apartment in Snohomish County: it was noted in the testimony that the apartments were built in 1959 while the property was under the jurisdiction of Snohomish County. It has been determined that the parking requirement was one space for each unit. That amount of parking is located Hearing Examiner Decision Case No. AP-95-1.89 Page 4 directly off the street and the furthest point of the parking area is 43' from the assumed centerline of the R.O.W. The applicant was not able to determine with complete certainty what the applicable zoning regulations relative to lot area requirements were at the time of construction; however, the information provided (Exhibit D) would indicate that it is likely that a 9 unit apartment would require a 26,500 square foot lot (7 -10 units requiring 22,000 square feet plus 2 units over 7 at 2250 each or 4,500 square feet). b. Conclusion: In the applicant's response, (Exhibit D) it was noted that the best course .. is to assume that the apartment was constructed as permitted and in compliance w.ith then effective zoning regulations." Although it is not absolutely certain, it appears that this is correct in that the entire parcel is 41,543 square feel. If the gross square footage for the existing single family house is assumed at the 14,800 square feet as proposed for lot 3; this leaves 26,743 square feet which is essentially the same as the 26,500 square feet which is assumed to be required for a 9 unit apartment. Therefore, it is concluded that the current development was consistent with then effective zoning regulations and the addition of a third property would increase the non -conformity. 2. Neighboring Development and Zoning: a. Facts: (1) The adjacent properties to the north, south, east, and west are currently zoned as single-family (RS-12) (see Exhibit A, Attachment 1). (2) The adjacent properties to the east, north, and south are currently developed with single-family homes. B. History 1. Facts: The following is a chronological account of the development of the property located at 17000 Talbot Road. The purpose is to clarify the review process for this proposal, as well as outline the appeals that have taken place. a. August 3, 1995: Chester Johnson applies for a Mot short plat. (file No. S-95-129) b. September 22,1995: Staff conducted a public hearing on the proposed 3-lot short plat (see Exhibit A, Attachment 4). c. September 29,1995: Gary Huff, Attorney for the Applicant submitted a brief summarizing his testimony (see Exhibit A, Attachment 4) d. October 18,1995: Scott Snyder, City Attorney submitted comments on the September 29,1995 letter from Mr. Huff, Hearing Closed. e. November 15,1995: Appellant files an appeal of the City of Edmonds decision denying the Chester Johnson 3-lot short plat (see Exhibit A, Attachment 2). 2. Conclusion: The decision of the City of Edmonds was issued in a timely manner. Hearing Examiner Decision Case No. AP-95-189 Page 5 C. Edmonds Community Development Code (ECDC) Compliance I. ]Facts: The fundamental site development standards pertaining to Residential development in a RS-12 zone are set forth in Chapter 16.20.030. The existing development does not conform to all RS-12 requirements in that the existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. This create a total of 10 existing dwelling units on one lot in a single family zone (RS-12). The maximum number of dwelling units allowed by the RS 12 zone on a single lot is one (1). The proposal would create a separate lot for the apartment and for the existing single family building, as well as add one additional building lot for a total of three (3) lots with 11 dwelling units. In addition, the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision. The applicant has also proposed to access the subdivision via a 20-foot wide access easement where a 40-foot wide access is required based on the number of proposed dwelling units to be served (see Exhibit A, Attachment 4). 2. Conclusion: The proposal does not comply with the development standards for the RS- 12 zone as set forth in Chapter 16.20 or the street and driveway standards as required by Chapter 18.80 because the applicant is proposing a development which would allow 11 dwelling units where the density allowed in the RS-12 zone would allow three (3) dwelling units. Additionally the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision, and because the proposed access easement is 20 feet wide, where a 40 foot wide access easement is required. Eased upon the foregoing findings and conclusions, the appeal by Chester Johnson is denied. Entered this 15th day of February,1996, pursuant to the authority granted the Hearing Examiner under Chapter 20.100 of the Community Development Code of the City of Edmonds. �MQQ__ Robert G. ke Hearing Examiner Pro Tern RECONSIDERATION AND APPEALS: The following is a summary of the deadlines and procedures for filing reconsiderations and appeals. Any person wishing to file or respond to a recommendation or appeal should contact the Planning Department for further procedural information. y (Hearing Examiner Decision He g Case No. AP-95-189 Page 6 A. REQUEST FOR RECONSIDERATION: Section 20.100.010.E allows for the Hearing Examiner to reconsider his decision or recommendation if a written request is filed within ten (10) working days of the date of the initial decision by any person who attends the public hearing and signs the attendance register and/or presents testimony, or by any person holding an ownership interest in a tract of land which is the subject of such decision or recommendation. The reconsideration request must cite specific references to the findings and/or the criteria contained in the ordinances governing the type of application being reviewed. B. APPEALS: Section 20.105.020.A & B describe how appeals of a Hearing Examiner decision or recommendation shall be made. The appeal shall be made in writing, and shall include the decision being appealed along the name of the project and the date of the decision, the name of the individual or group appealing the decision, their interest in the matter, and reasons why the appellant believes the decision to be wrong. The appeal must. be filed with the Community Development Director within ten (10) working days after the date of the decision being appealed. EXHIBITS: The following exhibits were offered and entered into the record. A. Planning Division Advisory Report with five attachments B. Large, mounted Engineering drawing of proposed short plat C. Interpretation File 91-5 regarding setbacks for "Flag Lots" D. Letter from Gary D. Huff, dated February 1,1996, regarding location of parking area and information on applicable zoning requirements in Snohomish County PARTIES of RECORD: John L. Hjort Chester Johnson 17121 Talbot Road 17000 Talbot Road Edmonds, WA 98026 Edmonds, WA 98026 Gary D. Huff Inge Johnson 1201 Third Avenue, #2900 David Johnson Seattle, WA 98101 21221 Cypress Way Lynnwood, WA 98036 Jack Fritz Ann Landberg Jill Fritz 16900 Talbot Road 17140 Talbot Road, #9 Edmonds, WA 98026 Edmonds, WA 98026 KARR•TUTTLE•CAMPBELL {fir TfouedFd'1904 Rr6 c.V n _�• o A profuzim alsarolrr CmPtutioa SG P 2 �ee �* 1201 Third Avenue; Suite 2900, Seattle, Washington 98101.3028 � � �JgS Telephone (206) 223.1818, Foesimi7e (206) 082-7100 p jj De Portland Me P. • � 1105 Standard Plaza,1100 S.W. Sixth Avenue, Portland Oregon 97204.1086 Telephone (503) 248.1330, Farmmile (303) 222.4429 Please reply to Seattle Off W Gary D. Huff (206) 224-8024 VIA FACSIMILE Mr. John Bissell Community Services Department City of Edmonds 250 5th Avenue North Edmonds, WA 98020 September 28, 1995 RE: Chester Johnson Short Plat Application Dear Mr. Bissell: This letter is written in response to your request that we put into writing a synopsis of the legal arguments presented at last Friday's hearing on the above application. We are pleased to do so in the hope that further review will lead to a favorable decision in this matter. We understand that it is your intention to have at least some of these issues reviewed by your city attorney. We would be amenable to either an in -person or telephonic meeting if further discussion would be of assistance in resolving these issues. As established at the hearing, the apartment building was permitted and constructed under Snohomish County code provisions prior to the annexation of this area into Edmonds. The parking requirement under the then applicable codes was one space per unit. The parking for the nine unit building was satisfied by the nine spaces along Talbot Road. This fact is important in determining whether additional parking behind the apartment is necessary to satisfy parking requirements. Only if additional parking is so required would the number of units needing parking in the rear be considered users of the access drive. As you know, the ooazssi.oi Exhibit 4 C) Mr. John Bissell September 28, 1995 Page 2 number of users of that drive determines its required width. If the apartment parking is satisfied along Talbot, then the current access drive is sufficiently wide to accommodate the three lot short plat without the necessity of a reduction in road standards. Section 17.40.010(A) of your code defines a nonconforming use as follows: A nonconforming use is one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of this zoning ordinance and where applicable its predecessor. The apartment was legal under Snohomish County ordinances when. constructed. Annexation into Edmonds and the concurrent application of city zoning cannot change that fact. Section 17.40.010(B) provides that "(a) nonconforming use may continue.....but it may not be expanded in any way...." Thus, the nine spaces continue to be legally sufficient for this building. Further, any attempt on the part of the city to require additional parking would itself violate your codesinge it. would, cons _the expansion Siegal, nonconforminj use. Given the above, no apartment residents should or can be considered as users of the access drive. The prospective users would then be the remaining two lots to be established by this application and the two other residents who have a legal right to utilize the northerly 10 feet of the access drive but who have no legal right to drive onto any part of the Johnson property. Section 18.18.010 then requires only a 20 foot easement width and 16 feet of paving for drives utilized by 3 or 4 users. The current drive either satisfies that requirement or could easily be made to do so with very minor improvements. This property is zoned for single family residential purposes. Under the city's view, the mlim property is considered nonconforming. Thus, under this view, the Johnsons are unable to even build a deck on their home because of the legal existence of an apartment structure several hundred feet away. This unusual interpretation stems from a very literal reading of Section 21.60.050 which defines the term "multiple dwelling." 0042681.01 C. Mr. John Bissell September 28, 1995 Page 3 Multiple dwelling means a building or group of buildings on the same site containing two or more separate dwelling units. This definition clearly contemplates a multiple building apartment project. We are unable to make the logical leap necessary to use this language to include a single family residence which was constructed prior to the apartment and which is totally separate therefrom, within the multiple dwelling definition; particularly when the result thereof has such wide ranging consequences. The apartment is a multiple dwelling. The single family residence is a conforming single family residence. The Johnson property houses two separate uses: multi -family and single family. The nonconformity involves the existence of the multi- family use in a single family zone. Our discussions have made clear your interpretation that creation of separate conforming lots for the existing and an additional single family residence represents an expansion of a nonconforming use. In support of your position, you point to the language of Section 17.40.010(B) which states that a nonconforming use "may not be expanded in any way, including additional lot area....." You have told me that no purpose is served by the inclusion of this language in this section. Rather, you are of the opinion that the intent of this language must have been to preclude a reduction in lot area of a nonconforming use such as is proposed here. As we expressed at the hearing, we can contemplate several situations where the questioned language would be applicable. We suggested that a nonconforming car dealership, rental yard or other business with outdoor display areas may wish to expand by adding lot area. We believe these are exactly the type of situations meant to be addressed by this language. We further believe that the language must be read for what it says; not for what one might wish it said. Rather than representing an expansion, we believe the Johnson application contemplates a reduction in nonconformity. Under your interpretation, the '=tki Johnson property is nonconforming. if a three lot short plat is approved, then .2/3 of the site is brought i= conformity with existing single family zoning. The nonconforming portion of the property is reduced from 41,000 to 14,000 square feet. The oWX manner in which approval of this application results in an in. r� ease is in the ratio of units to lot area for proposed Lot 1 (the apartment). However, that increase also occurs with the two lot short plat the city has twice offered to approve. There, too, the ratio for the apartment lot is increased. As we noted at the hearing, we have consulted with Professor William Stoebuck of the University of Washington Law School. In addition to being one of the nation's recognized experts on property law, Professor Stoebuck has just published a two volume treatise on Washington real property law. Included at Section 4.21 thereof is a discussion of Washington 0042681.01 Mr. John Bissell September 28, 1995 Page 4 law concerning nonconforming uses. Professor Stoebuck is willing to confirm in writing if necessary his opinion that. so long as the apartment building is structurally left unchanged, then the reduction in its lot area arising from approval of this application would not constitute an expansion of a nonconforming use. In his exhaustive research for this treatise, he found not a single case which would support the city position. The staff report relies on the definition of a street contained in Section 21.90.120 in arguing that approval of the Johnson application would cause the setback for the existing apartment to violated. That section defines a street as follows: Street means the public or private right-of-way or access easement which provides vehicle access to more than three lots. Assuming that the drive would, on approval, come within that definition, then the city considers Lot 1 to come within the definition of a corner lot. A corner lot is defined at Section 21.15.100: Corner lot means a lot which has frontage on two or more streets where the streets meet. The minimum street setback is established at 25 feet in Section 16-20.030. The 20 foot access along the northerly edge of the subject property is made up of two equal parts. The northerly 10 feet thereof is comprised of an access easement across the. land of the adjoining property owner. That easement is reflected at paragraph 17 of the subdivision certificate offered in evidence at the public hearing. The southerly 10 feet, from which the setback must be measured, legally serves only the Jo won properties. While the Johnsons have the right to utilize their neighbors' access, the converse is not true. Even if Lot 1 was considered a user thereof, there are only 3 lots utilizing that portion of the drive from which the setback is measured. Therefore, even with approval of a 3 lot short plat, the setback would not qualify as a street and the setback therefrom would remain at 10 feet. In the event the city chooses not to accept the above argument, then we request that the application nonetheless be approved subject to favorable action on an application for a variance from this setback requirement. 0042681.01 k&. John Bissell September 28, 1995 Page 5 Testimony at the public hearing we believe established the fact that the setback requirement for the existing single family residence on proposed Lot 3 is satisfied. Assuming a street setback requirement of 25 feet, then the existing 26.'7 foot setback is sufficient. The only remaining Lot 3 setback issue concerns the outbuilding at the southerly boundary thereof. The staff report attempts to impose a 25 foot setback from the proposed easterly boundary of Lot 3. That requirement assumes that this boundary is a street lot line as defined in Section 21.90.130: Street Lot Line means the line or lines aloe the edge of a street or =muighL of way or ea ement......(emphasis added). By that definition, a boundary is considered a street lot line only so long as it is , adjacent to a street or access easement. Thus, on Lot 3 a street lot line occurs only along the access way on the northerly side of the property. The lot line nearest the outbuilding which forms the basis of the alleged setback violation is at least 0 feet away.from he access Basement. The line adjacent to the outbuilding thus cannot qualify as a street lot line. The setback would be only the existing 10 feet. We find it instructive that the city's prior planner, Wendy Schulenburg, came to the same conclusion. In her letter dated April 26, 1993, in which she notes that the contents thereof reflect the thinking of herself and the city attorney, she states on page 2 that "....(S)ince proposed Lot 2 is not developed and the easement would terminate at Lot 3, there would not appear to be an encroachment problem on either of these lots." Regardless of the efficacy of this argument, the Lot 3 setback is not a serious problem. Should the city not accept our interpretation, then an approval could again be conditioned on approval of a variance setback. Easier still would be a requirement that the subject lot line be adjusted 15 feet to the. east adjacent to the outbuilding and slightly to the west next to the carport. If necessary to maintain 12,000 square feet in Lot 2, the easterly lot line thereof could be moved slightly eastward without negatively impacting Lot 1. We trust that this letter serves the intended purpose and will be helpful in resolving this matter. Hopefully we have demonstrated a legal and legitimate justification for approval of 89Q.lgy- DATE: TO: FROM: RE: CIVIC CENTER • EDMONDS, WA 98020 . (206) 775-2525 October 16, 1995 John Bissell, Associate Planner W. Scott Snyder, Office of the City Attorney Chester Johnson Short Plat - Letter of Gary Huff LAURA M. HALL MAYOR You have asked for my review and response to Mr. Huff's letter of September 28, 1995. Generally, I am responding to the issue of whether or not subdivision of an existing nonconforming lot containing a nine -unit apartment building and a single-family dwelling constitute expansion of a legal nonconforming use. The lots are zoned single family (RS-12) and designated single family on the Comprehensive Plan. As is noted in this memo, the more difficult issue is satisfaction of the review criteria of the subdivision code, specifically Section 20.75.080(b) and (c). These two provisions require all subdivisions to be consistent with the provisions of the Edmonds Comprehensive Plan and Zoning Ordinance. The issue as I see it is whether a newly created lot containing an existing nonconforming use complies with the zoning code and comprehensive plan. At the present time, a nonconforming, nine -unit apartment building and a single-family home are located on a large lot of approximately 44,000 square feet zoned single family (R-S). This lot is proposed to be subdivided into three lots. At issue is not the square footage necessary to subdivide the lots but rather the continuation of the apartment building as a nonconforming use after subdivision of the property, and indeed whether the subdivision can be approved. Chapter 17.40 of the Edmonds Community Development Code deals with nonconforming uses. The chapter distinguishes nonconforming uses, buildings and lots. In this situation, the apartment building is a nonconforming use and building but not, given the limited restrictive language of Sections 17.40.020 and 17.40.030, a nonconforming lot. The language of these specific sections is critical. Under Washington law, in the event of ambiguity, problems of interpretation should be resolved in favor of the common law right of a property owner to utilize his property. Mall Inc V. City of Seattle, 739 P.2d 668, 108 Wash. 2d 369 (1987). Nonconforming uses are not favored under Washington law, and abatement is reviewed in strict conformity with the language of the City ordinance. Keller v Bellingh=, 92 Wash. 29 726, 0 Incorporated August 11, 1890 Exhibit Sister Cities International — Hekinan, Japan Memorandum to John Bissell October 16, 1995 Page 2 600 P.2d 1276 (1979). The purpose of ordinances restricting nonconforming uses is to bring about their eventual abatement and extinguishment of the nonconforming use. Wd. A nonconforming use is: . one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of the zoning ordinance and, where applicable, it predecessor. ECDC 17.40.O10(a). A nonconforming use may continue unless required to be abated "... but it may not be expanded in any way, including additional lot area, floor area, height, number of employees, equipment, or hours of operation." I note in Mr. Huffs letter some discussion of the language regarding lot area. As normally applied, this language refers, for example, to a business's attempt to utilize additional lot or floor area for a use not previously in the nonconforming use. In other words, a business which had a nonconforming outside storage could not expand 'the storage use to occupy additional new lot area. In my experience and reading, the lot area description does not anticipate a lot line adjustment to add square footage to a lot upon which a nonconforming use is in operation. Remember, we are discussing a nonconforming use, not a nonconforming lot. The provisions of 17.40.020 and 17.40.030 both appear limited on their terms to bulk zoning and site development standards. 17.4O.O20(a) defines a nonconforming building as: one which once met bulk zoning standards and iW develpment standards applicable to its construction, which no longer conforms to such standards.... Emphasis added. It is my understanding that the existing lot does not have existing setback problems. Rather, there are three areas of nonconformity: 1. Multi -family dwellings are not a permitted use for the zone. ECDC 16.20.O10(a)(1). 2. The density violates the table of lot development standards. ECDC 16.20.030. The zone is not as clear as the site development standards set forth for the multi -family zonesrefers ?minimum to [16.20.030 refers to "minimum lot area (sq. ft.)" while I6.30.O3O(a) rers to area per dwelling unit (sq. ft.).9 Read together, however, the two sections seem clear that a minimum of 12,000 square feet per dwelling unit is required in an RS-12 zone. Memorandum to John Bissell October 16, 1995 Page 3 3. If approved, additional parldng is required for the use if multi -family zone standards are applicable. See later discussion. This case presents a difficult call both legally and in terms of policy considerations. In the past the staff has strictly construed the nonconforming lot provisions in order to effectuate the purpose of the chapter and over time abate nonconforming uses. As- you are aware, the nonconforming use provisions have been changed in recent years to provide more flexibility regarding lot size. Similarly, the adoption of the county -wide planning policies and population growth encourage the City to accept additional growth. At the center of any interpretation of the current code provisions is a determination of whether the subdivision proposal is consistent with the letter and purpose of the City's comprehensive plan and zoning code. There are two maximums of judicial interpretation applicable to the subdivision and zoning code at this point, and their application yields different results. The two general approaches are as follows. 1. STRICT CONSTRUCT -0-K ABA'"'' NT EFFECTUA't'F' �tCiRPOSE OF THE CODE. This approach would construe the code in order to effectuate its purpose. e ler, MMa.. The purpose- of a nonconforming limitations is to eventually abate the nonconformity. As noted, this lot has three potential areas of nonconformity and approving the subdivision would permit perpetuation of the existing nonconforming use. The nonconforming use is at odds with the comprehensive plan designation and .the zoning designation for 'the lot, and the lot therefore fails to meet RS Cite Development standards. This interpretation would require you to incorporate cite development standards applicable to RM zoning in the RS zone even though not specifically spelled out. In other words, the RS zone does not anticipate the creation of perpetuation of a multiple dwelling nonconforming use, and therefore does not specifically reference parking density limitations. In order for a subdivision to be approved, it must meet all of the criteria and general findings of Section 20.75.080. Subsection C of this section requires a new lot to comply with the zoning code and therefore cite development standards. In summary, a subdivision of the lot creating three new lots must comply with the comprehensive plan and zoning code. If you disapprove this subdivision your finding should: Memorandum to John Bissell October 16, 1995 Page 4 a. Find that the newly created lot would violate the comprehensive plan single family residential designation and therefore it cannot make required finding Section 20.75.080(b). . b. Find that the new subdivision lot containing the multi -family dwelling would not comply with the provisions of the required findings of Section 20.75.080(c) in that it does not meet the cite development standards of the RM zone incorporated by itnviication into the RS zone. While this interpretation runs counter to the general proposition that zoning code should be strictly construed due to the common law property rights of land owners, it does best effectuate the purpose of the code and avoids the anomaly of having a nonconformng use in an RS zone without site development standards applicable to less restrictive RM zoning. ElV`IAL. 2. LIBERAL CQNSTRSLCT1CiN AlVID El %HHAMS OF ROLE dl+ CHAPTER 17 40. If you determine it appropriate to approve the subdivision for policy reasons, your findings would stress that the existence of Chapter 17.40 approves nonconforming uses. Therefore their continuation in accordance with the provisions of the chapter are in compliance with the comprehensive plan and zoning code, meet the criteria of Chapter 20.75.080(b)(c). Your findings would also cite the maxim of interpretation regarding strict construction in order to permit frill use of the property in accordance with the common law of property rights of the owner rather than the "liberal interpretation to effectuate the purpose of the zoning code" maximum. See Keller, supra. VARYANCE: I note that Mr. Ruff in his letter discusses the use of a variance. The variance criteria of Section 20.75.075 requires that in order for a variance to be granted all of the criteria must be met. Section 20.75.010(A)(2) require that a variance not be granted where the special circumstances finding is predicated upon "a fact or person of the owner..., extra expense which n • I ;AUNTY KARR-TUTTLE-CAMPBELL' A PleA--dS-ti- C-P-3 oa CEP 2 1201 Third Avenue, suite 2900. Seattle, wnhington 98101.3029 �y „J 9 l�sv�t Telephene (208) 229d91S, Pe -W * (206) 682.7100 N�/N�;q/y`�.� �. PortlandOlBrM ,! "' 'r 1105 Standard Plate.1100 S.W. Sixth Avenue, PWdInd, Orepu 97204-1083 Telephone (603) 248.1330, Facsimile (603)122.4420 Please reply to Seattle Office Gary D. Huff (206)224-8024 September 28, 1995 VIA FACSIMILE Mr. John Bissell Community Services Department City of Edmonds 250 5th Avenue North Edmonds, WA 98020 RE: Chester Johnson Short Plat Application Dear Mr. Bissell: ......ate-"'.—. Ex�+iBIT - ----�� f1LE NO• S This letter is written in response to your request that we put into writing a synopsis of the legal arguments presented at last Friday's hearing on the above application. We are pleased to do so in the hope that further review will lead to a favorable decision in this matter. We understand that it is your intention to have at least some of these issues reviewed by your city attorney. We would be amenable to either an in -person or telephonic meeting if further discussion would be of assistance in resolving these issues. 1) As established at the hearing, the apartment building was permitted and constructed under Snohomish County code provisions prior to the annexation of this area into Edmonds. The parking requirement under the then applicable codes was one space per unit. The parking for the nine unit building was satisfied by the nine spaces along Talbot Road. This fact is important in determining whether additional parking behind the apartment is necessary to satisfy parking requirements. Only if additional parking is so required would the number of units needing parking in the rear be considered users of the access drive. .As you know, the EXHIBIT 13 0042681.01 Mr. John Bissell September 28, 1995 Page 2 number of users of that drive determines its required width. If the apartment parking is satisfied along Talbot, then the current access drive is sufficiently wide to accommodate the three lot short plat without the necessity of a reduction in road standards. Section 17.40.010(A) of your code defines a nonconforming use as follows: A nonconforming use is one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of this zoning ordinance and where applicable its predecessor. The apartment was legal under Snohomish County ordinances when constructed. Annexation into Edmonds and the concurrent application of city zoning cannot change that fact. Section 17.40.010(B) provides that "(a) nonconforming use may continue..... but it may not be expanded in any way...." Thus, the nine spaces continue to be legally sufficient for this building. Further, any attempt on the part of the city to require additional parking would itself violate oy ur code since it would constitute the expansion of a legal nonconforminguse Given the above, no apartment residents should or can be considered as users of the access drive. The prospective users would then be the remaining two lots to be established by this application and the two other residents who have a legal right to utilize the northerly 10 feet of the access drive but who have no legal right to drive onto any part of the Johnson property. Section 18.18.010 then requires only a 20 foot easement width and 16 feet of paving for drives utilized by 3 or 4 users. The current drive either satisfies that requirement or could easily be made to do so with very minor improvements. This property is zoned for single family residential purposes. Under the city's view, the =tit: property is considered nonconforming. Thus, under this view, the Johnson are unable to even build a deck on their home because of the legal existence of an apartment structure several hundred feet away. This unusual interpretation stems from a very literal reading of Section 21.60.050 which defines the term "multiple dwelling." W4xsai.ot Mr. John Bissell September 28, 1995 Page 3 Multiple dwelling means a building or group of buildings on the same site containing two or more separate dwelling units. This definition clearly contemplates a multiple building apartment project. We are unable to make the logical leap necessary to use this language to include a single family residence which was constructed prior to the apartment and which is totally separate therefrom, within the multiple dwelling definition; particularly when the result thereof has such wide ranging consequences. The apartment is a multiple dwelling. The single fancily residence is a conforming single family residence. The Johnson property houses two separate uses: multi -family and single family. The nonconformity involves the existence of the multi- family use in a single family zone. Our discussions have made clear your interpretation that creation of separate conforming lots for the existing and an additional single family residence represents an expansion of a nonconforming use. In support of your position, you point to the language of Section 17.40.010(B) which states that a nonconforming use "may not be expanded in any way, including additional lot area....." You have told me that no purpose is served by the inclusion of this language in this section. Rather, you are of the opinion that the intent of this language must have been to preclude a reduction in lot area of a nonconforming use such as is proposed here. As we expressed at the hearing, we can contemplate several situations where the questioned language would be applicable. We suggested that a nonconforming car dealership, rental yard or other business with outdoor display areas may wish to expand by adding lot area. We believe these are exactly the type of situations meant to be addressed by this language. We further believe that the language must be read for what it says; not for what one might wish it said. Rather than representing an expansion, we believe the Johnson application contemplates a reduction in nonconformity. Under your interpretation, the =tim Johnson property is nonconforming. If a three lot short plat is approved, then 2/3 of the site is brought i= conformity with existing single family zoning. The nonconforming portion of the property is rcduced from 41,000 to 14,000 square feet. The Qnly manner in which approval of this application results in an increase is in the ratio of units to lot area for proposed Lot 1 (the apartment). however, that increase also occurs with the two lot short plat the city has twice offered to approve. There, too, the ratio for the apartment lot is increased. As we noted at the hearing, we have consulted with Professor William Stoebuck of the University of Washington Law School. In addition to being one of the nation's recognized experts on property law, Professor Stoebuck has just published a two volume treatise on Washington real property law. Included at Section 4.21 thereof is a discussion of Washington 0042681.01 Mr. John Bissell September 28, 1995 Page 4 law concerning nonconforming uses. Professor Stoebuck is willing to confirm in writing if necessary his opinion that so long as the apartment building is structurally left unchanged, then the reduction in its lot area arising from approval of this application would not constitute an expansion of a nonconforming use. In his exhaustive research for this treatise, he found not a single case which would support the city position. Ire -11 •#I 1 SM1 t l t IRWO 1 t," i w / 100 • 1 WKI 4 ki fJ61 fleFt f 1 "t. -11 " i. The staff report relies on the definition of a street contained in Section 21.90.120 in arguing that approval of the Johnson application would cause the setback for the existing apartment to violated. That section defines a street as follows: Street means the public or private right-of-way or access easement which provides vehicle access to more than three lots. Assuming that the drive would, on approval, come within that definition, then the city considers Lot 1 to come within the definition of a corner lot. A comer lot is defined at Section 21.15.100: Comer lot means a lot which has frontage on two or more streets where the streets meet. The minimum street setback is established at 25 feet in Section 16.20.030. The 20 foot access along the northerly edge of the subject property is made up of two equal parts. The northerly 10 feet thereof is comprised of an access easement across the land of the adjoining property owner. That easement is reflected at paragraph 17 of the subdivision certificate offered in evidence at the public hearing. The southerly 10 feet, from which the setback must be measured, legally serves only the_ Jo son nra ewes. While the Johnson have the right to utilize their neighbors' access, the converse is not true. $ven if Lot 1 was considered a user thereof, there are only 3 lots utilizing that portion of the drive from which the setback is measured. Therefore, even with approval of a 3 lot short plat, the setback would not qualify as a street and the setback therefrom would remain at 10 feet. In the event the city chooses not to accept the above argument, then we request that the application nonetheless be approved subject to favorable action on an application for a variance from this setback requirement. 0042681.41 Mr. John Bissell September 28,1995 Page 5, Testimony at the public hearing we believe established the fact that the setback requirement for the existing single family residence on proposed Lot 3 is satisfied. Assuming a street setback requirement of 25 feet, then the existing 26.7 foot setback is sufficient. The only remaining Lot 3 setback issue concerns the outbuilding at the southerly boundary thereof. The staff report attempts to impose a 25 foot setback from the proposed easterly boundary of Lot 3. That requirement assumes that this boundary is a street lot line as defined in Section 21.90.130: Street Lot Line means the line or lines along of a street or access rigrit of wav or easement --- ...(emphasis added). By that definition, a boundary is considered a street lot line only so long as it is adjacent to a street or access easement. Thus, on Lot 3 a street lot line occurs only along the access way on the northerly side of the property. The lot line nearest the outbuilding which forms the basis of the alleged setback violation is at least 60 feet away from the acms easement. The line adjacent to the outbuilding thus cannot qualify as a street lot line. The setback would be only the existing 10 feet. We find it instructive that the city's prior planner, Wendy Schulenburg, came to the same conclusion. In her letter dated April 26, 1993, in which she notes that the contents thereof reflect the thinking of herself and the city attorney, she states on page 2 that "....(S)ince proposed Lot 2 is not developed and the easement would terminate at Lot 3, there would not appear to be an encroachment problem on either of these lots." Regardless of the efficacy of this argument, the Lot 3 setback is not a serious problem. Should the city not accept our interpretation, then an approval could again be conditioned on approval of a variance setback. Easier still would be a requirement that the subject lot line be adjusted 15 feet to the east adjacent to the outbuilding and slightly to the west next to the carport. If necessary to maintain 12,000 square feet in Lot 2, the easterly lot line thereof could be moved slightly eastward without negatively impacting Lot 1. We trust that this letter serves the intended purpose and will be helpful in resolving this matter. Hopefully we have demonstrated a legal and legitimate justification for approval of CITY OF EDMONDS CIVIC CENTER • EDMONDS, WA 88020 • 1205) 775-2525 890.19y »�enl DATE: October 16, 1995 TO: John Bissell, Associate Planner FROM: W. Scott Snyder, Office of the City Attorney RE: Chester Johnson Short Plat - Letter of Gary Huff LAURA M. HALL MAYOR You have asked for my review and response to Mr. Duffs letter of September 28, 1995. Generally, I am responding to the issue of whether or not subdivision of an existing nonconforming lot containing a nine -unit apartment building and a single-family dwelling constitute expansion of a legal nonconforming use. The lots are zoned single family (RS-12) and designated single family on the Comprehensive Plan. As is mated in this memo, the more difficult issue is satisfaction of the review criteria of the subdivision code, specifically Section 20.75.080(b) and (c). These two provisions require all subdivisions to be consistent with the provisions of the Edmonds Comprehensive Plan and Zoning Ordinance. The issue as I see it is whether a newly created lot containing an existing nonconforming use complies with the zoning code and comprehensive plan. At the present time, a nonconforming, nine -unit apartment building and a single-family home are located on a large lot of approximately 44,000 square feet zoned single family (R-S). This lot is proposed to be subdivided into three lots. At issue is not the square footage necessary to subdivide the lots but rather the continuation of the apartment building as a nonconforming use after subdivision of the property, and indeed whether the subdivision can be approved. Chapter 17.40 of the Edmonds Community Development Code deals with nonconforming uses. The chapter distinguishes nonconforming uses, buildings and lots. In this situation, the apartment building is a nonconforming use and building but not, given the limited restrictive language of Sections 17.40.020 and 17.40.030, a nonconforming lot. The language of these specific sections is critical. Under Washington law, in the event of ambiguity, problems of interpretation should be resolved in favor of the common law right of a property owner to utilize his property. Mall Inc. ,v. City of _Seattle, 739 P.2d 668, 108 Wash. 2d 369 (1987). Nonconforming uses are not favored under Washington law, and abatement is reviewed in strict conformity with the language of the City ordinance. Keller v. Bellingham, 92 Wash. 29 726, l'11 : 1 * Incorporated August 11, 1890 b Sister Cities International — Hekinan, Japan Cj Memorandum to John Bissell October 16, 1995 Page 2 600 P.2d 1276 (1979). The purpose of ordinances restricting nonconforming uses is to bring about their eventual abatement and extinguishment of the nonconforming use. . A nonconforming use is: . . . one which was once allowed by applicable land use regulations, but is no longer allowed, due to the passage or later change of the zoning ordinance and, where applicable, it predecessor. ECDC 17.40.010(a). A nonconforming use may continue unless required to be abated ".. but it may not be expanded in any way, including additional lot area, floor area, height, number of employees, equipment, or hours of operation." I note in Asir. Buff s letter some discussion of the language regarding lot area. As normally applied, this language refers, for example, to a business's attempt to utilize additional lot or floor area for a use not previously in the nonconforming use. In other words, a business which had a nonconforming outside storage could not expand the storage use to occupy additional new lot area. In my experience and reading, the lot area description does not anticipate a lot line adjustment to add square footage to a lot upon which a nonconforming use is in operation. Remember, we are discussing a nonconforming use, not a nonconforming lot. The provisions of 17.40.020 and 17.40.030 both appear limited on their terms to bulk zoning and site development standards. 17.40.020(a) defines a nonconforming building as: . . . one which once met bulk zoning standards and SjW develo mR ent sMndards applicable to its construction, which no longer conforms to such standards.... Emphasis added. It is my understanding that the existing lot does not have existing setback problems. Rather, there are three areas of nonconformity: 1. Multi -family dwellings are not a permitted use for the zone. ECDC 16.20.010(a)(1). 2. The density violates the table of lot development standards. ECDC 16.20.030. The zone is not as clear as the site development standards set forth for the multi -family zones in ECDC 16.30.030. [16.20.030 refers to "minimum lot area (sq. ft.)" while 16.30.030(a) refers to "minimum lot area per dwelling unit (sq. ft.)."] Read together, however, the two sections seem clear that a minimum of 12,000 square feet per dwelling unit is required in an RS-12 zone. II. Memorandum to John Bissell October 16, 1995 Page 3 3. If approved, additional parking is required for the use if multi -family zone standards are applicable. See later discussion. TWO POSSML E RESULTS-- STAFF POI EY ISSUE � This case presents a difficult call both legally and in terms of policy considerations. In the past the staff has strictly construed the nonconforming lot provisions in order to effectuate the purpose of the chapter- and over time abate: nonconforning uses. As- you are aware, the nonconforming use provisions have been changed in recent years to provide more flexibility regarding lot size. Similarly, the adoption of the county -wide planning policies and population growth encourage the City to accept additional growth. At the center of any interpretation of the current code provisions is a determination of whether the subdivision proposal is consistent with the letter and purpose of the City's comprehensive plan and zoning code. There are two maximums of judicial interpretation applicable to the subdivision and zoning code at this point, and their application yields different results. The two general approaches are as follows: APPROVAU: 1. STRICT CONSTRUCTION - ABATEMENT - BEE=ATE'i`F€RPTiRP(7S OF THE CODE. TIds approach would construe the code in order to effectuate its purpose. Keller, sup. The purpose of a nonconforming limitations is to eventually abate the nonconformity. As noted, this lot has three potential areas of nonconformity and approving the subdivision would permit perpetuation of the existing nonconforming use. The nonconforming use is at odds with the comprehensive plan designation and the zoning designation for the lot, and the lot therefore fails to meet RS Cite Development standards. This interpretation would require you to incorporate cite development standards applicable to RM zoning in the RS zone even though not specifically spelled out. In other words, the RS zone does not anticipate the creation of perpetuation of a multiple dwelling nonconforming use, and therefore does not specifically reference parking density limitations. In order for a subdivision to be approved, it must meet all of the criteria and general findings of Section 20.75.080. Subsection C of this section requires a new lot to comply with the zoning code and therefore cite development standards. in summary, a subdivision of the lot creating three new lots must comply with the comprehensive plan and zoning code. If you disapprove this subdivision your finding should: Memorandum to John Bissell October 16, 1995 Page 4 a. Find that the newly created lot would violate the comprehensive plan single family residential designation and therefore it cannot make required finding Section 20.75.080(b). 5 b. Find that the new subdivision lot containing the multi -family dwelling would not comply with the provisions of the required findings of Section 20.75.080(c) in that it does not meet the cite development standards of the RM zone incorporated by imWiSaatioII into the RS zone. While this interpretation runs counter to the general proposition that zoning code should be strictly construed due to the common law property rights of land owners, it does best effectuate the purpose of the code and avoids the anomaly of having a nonconforming use in an RS zone without site development standards applicable to less restrictive RM zoning. OVY: DIY • ► : "!) UI` .:.' • • ...:_ 1Y=l,;17.40. If you determine it appropriate to approve the subdivision for policy reasons, your findings would stress that the existence of Chapter 17.40 approves nonconforming uses. Therefore their continuation in accordance with the provisions of the chapter are in compliance with the comprehensive plan and zoning code, meet the criteria of Chapter 20.75.080(b)(c). Your findings would also cite the maxim of interpretation regarding strict construction in order to permit full use of the property in accordance with the common law of property rights of the owner rather than the "liberal interpretation to effectuate the purpose of the zoning code" maximum. See iK 11 , mpro. I note that Mr. Huff in his letter discusses the use of a variance. The variance criteria of Section 20.75.075 requires that in order for a variance to be granted all of the criteria must be met. Section 20.75.010(A)(2) require that a variance not be granted where the special circumstances finding is predicated upon "a fact or person of the owner..., extra expense which FOR ISSUES: 1. Compliance width Edmonds Community Development Cade (ECDC) Chapter 16.20.020 (RS-12 Development Standards including setbacks and density). 2. Compliance width Edmonds Community Development Code (ECDC) Chapter 18.80.010 (Street and Driveway Standards). 3. Compliance with Edmonds Community Development Code (ECDC) Chapter 20.105 (Appeals and Court Review). R Hearing Examiner Decision Case No. AP 95-189 Page 2 Staff Recommendation: Deny Hearing Examiner Decision: Deny PUBLIC HEARING: After reviewing the official file which included the Planning Division Staff Advisory Report; and after visiting the site, the Hearing Examiner conducted a public hearing on the application. The hearing on the Johnson application was opened at 9:14 a.m., January 18,1996, in the Plaza Room, Edmonds Library, Edmonds, Washington, and closed at 10:18 a.m. The record was held open until February 1, 1996 to obtain additional information *,from the City regarding interpretations of street setbacks on flag lots and from the applicant on applicable Snohomish County regulations for multiple family at the time of the construction of the apartments and more specific dimensions related to the location of the parking relative to the proposed right-of- way. Participants at the public hearing and the exhibits offered and entered are listed in this; report. A verbatim recording of the hearing is available in the Planning Division. HEARING CGhEMNTS: The following is a summary of the comments offered at the public hearing. From the City: John Bissell, Project Planner, summarized the staff report and presented the staff recommendation to deny the appeal. He summarized the four items in the appeal, as follows: L In the issue of non-conformance of use, a valid argument for either side could be made based on City policy, 2. At the hearing on the short plat it was determined that the City did not have the right of way adjacent to this lot and therefore it appeared that the parking would be partially on City right of way when dedicated, therefore, a 40' wide easement (not 20') would be required to serve the site; 3. Indicated that existing setback issues could be resolved by demolition, variance or lot - line adjustments; and 4. Clarified that the decision was issued in a timely manner since the hearing was held open. From the Applicant: Gary D. Huff, representing the -Johnson, explained that they want to provide a lot for their children to build on. He noted that the 9 unit apartment was built in 1959 in Snohomish County with a parking requirement of 1 space per unit which were provided adjacent to the street. He discussed the issues of the appeal, noting that the subdivision did not change the Hearing Examiner Decision Case No. AP-95-189 Page 3 non -conforming apartment use and would reduce the non -conformity of the existing single family home which by City definition is also considered a multiple unit. He noted that there is a 20' wide easement and that a subdivision could be approved subject to receiving a variance from the 40' wide easement requirement. He also stated that the setback issues could be resolved through adjustments to the proposed lot lines in the subdivision. He noted that the staff had stated they would agree to a 2 lot subdivision since the density remains the same. He also argued that the single family home should not be considered a multiple family - that the intent was multiple building multiple family projects. From the Community: John Hjort, who lives across the street, stated that the apartments did not cause a problem and that the construction of a new house wouldn't really be seen due to the topography. He saw this as a technical issue which should be resolved since it wouldn't hurt the neighborhood. �VRTI'TEN COMMENTS: None received. FINDINGS OF FACT AND CONCLUSIONS A. Site Description 1. Site Development and Zoning: a. Facts: (1) Size: The total size of the subject property is approximately 41,543 square feet (0.95 acres). The size of each proposed lot is: Net So. Ft. i Gross Sq. Ft___ Lot l: i 14,715 i 14,?15 Lot 2: --li 12,028 �r-i 12,028 Lot 3• _—i-13,525 -i 14,800 (2) Land Use: The existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. The site is zoned in a single family, RS-12. The proposal would create a separate lot for the apartment building and for the existing single-family residence, as well as add one additional building lot for a total of three lots and potential for 11 dwelling units (see Exhibit A, Attachment 4). (3) Zoning:. The subject property is zoned RS-12 (single residential family with a minimum 12,000 square foot lot size requirement) (see Exhibit A, Attachment 1). (3) Terrain and Vegetation: The subject property slopes gently from the east to west with a steep bank along the western property line. Vegetation on the site consists of ornamental landscaping with native vegetation along the western bank. (4) Development of Apartment in Snohomish County: It was noted in the testimony that the apartments were built in 1959 while the property was under the jurisdiction of Snohomish County. It has been determined that the parking requirement was one space for each unit That amount of parking is located Hearing Examiner Decision Case No. AP-95-189 Page 4 directly off the street and the furthest point of the parking area is 43` from the assumed centerline of the R.O.W. The applicant was not able to determine with complete certainty what the applicable zoning regulations relative to lot area requirements were at the time of construction; however, the information provided (Exhibit D) would indicate that it is likely that a 9 unit apartment would require a 26,500 square foot lot (1-10 units requiring 22,000 square feet plus 2 units over 7 at 2250 each or 4,500 square feet). b. Conclusion: In the applicant's response, (Exhibit D) it was noted that the best course "... is to assume that the apartment was constructed as permitted and in compliance with then effective zoning regulations." Although it is not absolutely certain, it appears that this is correct in that the entire parcel is 41,543 square feet. If the gross square footage for the existing single family house is assumed at the 14,800 square feet as proposed for lot 3; this leaves 26,743 square feet which is essentially the same as the 26,500 square feet which is assumed to be required for a 9 unit apartment. Therefore, it is concluded that the current development was consistent with then effective zoning regulations and the addition of a third property would increase the non -conformity. . 2. Neighboring Development and Zoning: a. Facts: (1) The adjacent properties to the north, south, east, and west are currently zoned as single-family (RS-12) (see Exhibit A, Attachment 1). (2) The adjacent properties to the east, north, and south are currently developed with single-family homes. B. History 1. Facts: The following is a chronological account of the development of the property located at 17000 Talbot Road. The purpose is to clarify the review process for this proposal, as well as outline the appeals that have taken place. a. August 3,1995: Chester Johnson applies for a 3-lot short plat. (isle No. S-95-129) b. September 22,1995: Staff conducted a public hearing on the proposed 3-lot short plat (see Exhibit A, Attachment 4). c. September 29,1995: Cary Huff, Attorney for the Applicant submitted a brief summarizing his testimony (see Exhibit A, Attachment 4) d. October 18,1995: Scott Snyder, City Attorney submitted comments on the September 29,1995 letter from Mr. Huff, Hearing Closed. e. November 15,1995: Appellant files an appeal of the City of Edmonds decision denying the Chester Johnson3-lot short plat (see Exhibit A. Attachment 2). 2. Conclusion: The decision of the City of Edmonds was issued in a timely manner. t Hearing Examiner Decision Case No. AP-95-189 Page 5 C. Edmonds Community Development Code (ECDC) Compliance 1. Pacts: The fundamental site development standards pertaining to Residential development in a RS-12 zone are set forth in Chapter 16.20.030. The existing development does not conform to all RS-12 requirements in that the existing lot is currently developed with one single-family dwelling unit and one 9-unit apartment building. This create a total of 10 existing dwelling units on one lot in a single family zone (RS-12). The maximum number of dwelling units allowed by the RS 12 zone on a single lot is one (1). The proposal would create a separate lot for the apartment and for the existing single family building, as well as add one additional building lot for a total of three (3) lots with 11 dwelling units. In addition, the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision. The applicant has also proposed to access the subdivision via a 20-foot wide access easement where a 40-foot wide access is required based on the number of proposed dwelling units to be served (see Exhibit A, Attachment 4). 2. Conclusion. The proposal does not comply with the development standards for the RS- 12 zone as set forth in Chapter 16.20 or the street and driveway standards as required by Chapter 18.80 because the applicant is proposing a development which would allow 11 dwelling units where the density allowed in the RS-12 zone would allow twee (3) dwelling units. Additionally the existing buildings would not comply with the minimum required setbacks from the new property lines created via the proposed subdivision, and because the proposed access easement is 20 feet wide, where a 40 foot wide access easement is required. Based upon the foregoing findings and conclusions, the appeal by Chester Johnson is denied. Entered this 15th day of February,1996, pursuant to the authority granted the Hearing Examiner under Chapter 20.100 of the Community Development Code of the City of Edmonds. C� � -G QQ�- Robert G.;,.Hearing Examiner Pro Tern RECONSIDERATION AND APPEALS: The following is a summary of the deadlines and procedures for filing reconsiderations and appeals. Any person wishing to file or respond to a recommendation or appeal should contact _ the Planning Department for further procedural information. A. (REQUEST FOR RECONSIDERATION: Section 20.100.010.E allows for the Hearing Examiner to reconsider his decision or recommendation if a written request is filed within ten (10) working days of the date of the initial decision by any person who attends the public hearing and signs the attendance register and/or presents testimony, or by any person holding an ownership interest in a tract of land which is the subject of such decision or recommendation. The reconsideration request must cite specific references to the findings and/or the criteria contained in the ordinances governing the type of application being reviewed. B. APPEALS: Section 20.105.020.A & B describe how appeals of a Hearing Examiner decision or recommendation shall be made. The appeal shall be made in writing, and shall include the decision being appealed along the name of the project and the date of the decision, the name of the individual or group appealing the decision, their interest in the matter, and reasons why the appellant believes the decision to be wrong. The appeal must be filed with the Community" Development Director within ten (10) working days after the date of the decision being appealed. ITS: The following exhibits were offered and entered into the record. A. Planning Division Advisory Report with five attachments B. Large, mounted Engineering drawing of proposed short plat C. Interpretation File 91-5 regarding setbacks for "Flag Lots" D. Letter from Gary D. Huff, dated February 1,1996, regarding location of parking area and information on applicable zoning requirements in Snohomish County PARTIES of RECORD: John L. Hjort 17121 Talbot Road Edmonds, WA 98026 Gary D. Huff 1201 Third Avenue, #2900 Seattle, WA 98101 Jack Fritz Till Fritz 17140 Talbot Road, #9 Edmonds, WA 98026 Chester Johnson 17000 Talbot Road Edmonds, WA 98026 Inge Johnson David Johnson 21221 Cypress Way Lynnwood, WA 98036 Ann Landberg 16900 Talbot Road Edmonds, WA 98026 ^� ON THIS SIDE WITHIN 80. Dan & Judy Roberts 072704-1-036-0004 072704-1-026-0006 8005 Talbot Road FLEET R/E FUNDING CORP. DONALD E. ANNAND Edmonds, WA 98026 LOREN P. LARSON 16922 TALBOT ROAD P.O. BOX 100563 EDMONDS, WA 98020 FLORENCE, SC 29501 072704-1-024-0008 BEN & TERESA SHIELDS 072704-1-025-0007 DAVID & APRIL ANDREE 072704-1-042-0006 MARK & OLETA BEARD 7921 TALBOT ROAD 7931 TALBOT ROAD 16920 TALBOT ROAD EDMONDS, WA 98020 EDMONDS, WA 98026 EDMONDS, WA 98020 072704-1-065-0008 072704-1-030-0000 07270L. HJO9-0001 L. CHRISTOPHER HJORT ALFRED ALSAKER 17RT 12 TALBOT-ROAD 17121D98020 TALBOT ROAD 17020 TALBOT ROAD EDMONDS, , EDMONDS, WA 98026 EDMONDS. WA 98020 072704-1-044-0004 ...072704-1-031-0009, 072704-1-034-0006 ARCHIE ANDERSON JAMES ROTHAUSFREDE I 17004 TALBOT ROAD 16912 TALBOT ROAD 7808 171ST PL SW EDMONDS,WA 98020 EDMONDS, WA 98020 .. MOWA 98020 D, W EDMONDS, 072704-1-045-0003 072704-1-028-0004 0. E. CAPITAL MTG. SYS. 072704-1-035-0005 ANASTASIOUS CHRISTOPHILIS WILLIAM & PATRICIA ALLEY 17126 TALBOT ROAD FREDERICK M. RICHARDSON 17017 TALBOT ROAD, EDMONDS, WA 98020 P. 0. BOX 66815 EDMONDS, WA 98026 ST. LOUIS, MO 63166 072704-1-038-0002 HAROLD B. LELAND 072704-1-027-0005 _072704-1-037-0004 STEVEN & SUSAN CAREY 17115 TALBOT ROAD MACK LEETSCH 7$06 171ST PL SW EDMONDS, WA 98026 17122 TALBOT ROAD EDMONDS,.WA•98026. EDMONDS, WA 98020 072704-1-041-0007 5944-000-002-0006 S. SANAI, MD WALTER J. MOSS Chester Johnson 8711 TALBOT ROAD Boil TALBOT ROAD 17000 Talbot Rd. EDMONDS, WA 98020 EDMONDS, WA 98020 Edmonds, WA 98020 072704-1-043-0005 072704-1-023-0009 RICHARD ZELDENRUST GEORGE & ALICE WEBER Vern Bower 1703 NW MARKET ST. 17006 TALBOT ROAD Intensus SEATTLE, WA 08107 EDMONDS, WA 98026 PO Box 1486 Snohomish, WA 98291-1486 072704-1-040-0008 .072704-1-032-0008 JACK & IRENE ACHTTIEN JAMES DOUGLAS 16902 TALBOT ROAD 17107 TALBOT ROAD EDMONDS, WA 98020 EDMONDS, WA 98020