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Amended Decision.pdf.1"? C. 1O 121 5TH AVENUE NORTH • Edmonds, WA 98020 ^ (425) 771-0220 e FAX (425) 771-0221 HEARING EXAMINER In the Matter of the Appeal of ) Mirel Sinclair and ) umiko and Mitsuru Kurosaka ) Of an Encroachment Permit. ) GARY HAAKENSON MAYOR NOV 12 2009 F--NCINEERING DIVISION NO. APL20090001 AMENDED FINDINGS, CONCLUSIONS, AND DECISION SUMMARY OF DECISION The appeal of encroachment permit no. ENG20090017 is GRANTED. �•) Request: The City of Edmonds issued an encroachment permit to Anthony Dadvar (Applicant) on May 28, 2009, which authorized the placement of a gate across the 172"d Street SW right-of-way adjacent to 7527 172nd Street SW, Edmonds, Washington. Mirel Sinclair (7415 Braemar Drive) and Kumiko and Mitsuru Kurosaka (7529 172nd Street SW) appealed the encroachment permit on June 11, 2009. The appeal was timely under the 14 -day deadline specified in ECDC 20.105.020(B). I Hearing Date: The City of Edmonds Hearing Examiner conducted an open record hearing on the appeal on October 1, 2009. The Hearing Examiner viewed the site prior to the hearing. Testimony: The following individuals presented testimony under oath at the open record hearing: 1. Jeanie McConnell, Engineering Program Manager, City of Edmonds 2. Mirel Sinclair, Appellant 3. Mitsuru Kurosaka, Appellant 4. Anthony Dadvar, Applicant2 5. Philip Lovell 6. Alvin Rutledge ' This was the procedural ordinance in effect at the time that the City issued the encroachment permit. The City repealed the ordinance effective June 12, 2009 (Ord. 3736). Z Mr. Dadvar is referred to as the Applicant in this decision, although the encroachment permit application was actually filed by his wife, Haydeh Sharifi. Exhibit A, Attachment 4. Amended Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Sinclair/Kurosaka Appeal, No. APL20090001 page 1 of 9 e Incorporated August 11, 1890 Exhibits: The following exhibits were admitted into the record: A. Staff Report dated September 22, 2009, with the following attachments: 1. Appeal filed June 11, 2009, with adjacent property owners list 2. Zoning and Vicinity Map 3. Letters to Anthony Dadvar from JoAnne Zulauf dated October 8, 2008 and September 15, 2008 4. Encroachment Permit Application filed January 15, 2009; Certificate of Liability Insurance; Encroachment Permit No. ENG20090017 issued May 28, 2009; and Encroachment Agreement recorded April 9, 2009, with attached Exhibit A (legal description) and Exhibit B (site plan) 5. Letter to Anthony Dadvar from Mike Thies, City Code Enforcement, dated February 17, 2009 6. Two photos of gate 7. City Deeds Map 8. City Easement Map 9. Email from Mike Smith to Noel Miller dated January 29, 2009 10. Email correspondence between Noel Miller and Mitsuru Kurosaka dated January 20, 2009 and February 2, 2009 11. Notice of Appeal and Hearing Examiner Hearing dated September 16, 2009 12. 300 -foot Adjacent Property Owner List 13. Notice of Hearing Affidavit of Mailing 14. Notice of Hearing Affidavit of Posting 15. Fire Department Comments dated June 17, 2009 16. Public Works Comments dated June 17, 2009 (no comments) 17. Building Official Comments dated June 17, 2009 (no comments) 18. Parks and Recreation Comments dated June 17, 2009 (no comments) 19. Planning Comments dated September 10, 2009 (no comments) B. Affidavit of Publication of Notice of Appeal and Hearing Examiner Hearing C. Appellants' Hearing Materials dated October 1, 2009 (15 pages total) D. Applicant's Hearing Materials D-1. Four photos relating to waterlines (with Applicant's notes), letter from Sean Russell to Rod Dembowski dated May 12, 2008, letter from City to Applicant dated June 17, 2008, and property line survey for Kurosaka parcel D-2. Topographic Survey dated April 23, 2003 and three photos relating to turn -around improvement and water lines (with Applicant's notes) D-3. Photo depicting white car driving up 172nd Street SW (with Applicant's notes) D-4. Two photos depicting location of Sinclair residence and walk-through gate (with Applicant's notes), printouts relating to police incident dated May 7, 2009, survey of driveway (with Applicant's notes), and correspondence to or from Ms. Sinclair re: tree trimming dated February 25, 2005, February 4, 2005, January 28, 2005, December 13, 2004, November 3, 2004, and October 19, 20043 3 The police report and tree trimming correspondence are not relevant to the encroachment permit and the Hearing Examiner did not rely on them when making this decision. Amended Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Sinclair/Kurosaka Appeal, No. APL20090001 page 2 of 9 D-5. Two photos depicting walkway gate and waterline location (with Applicant's notes) D-6. Copy of appeal with Applicant's notes In addition to the Exhibits listed above, the Hearing Examiner considered the arguments contained in the Appellants' Request for Reconsideration received October 26, 2009, the Applicant's response received November 2, 2009, and the City's response received November 2, 2009. Upon consideration of the testimony and exhibits submitted at the open record hearing, the Hearing Examiner enters the following Findings and Conclusions: FINDINGS 1. The Applicant resides at 7527 172nd Street SW, a parcel located on the north side of 172nd Street SW at its west terminus. His neighbor, Appellant Mitsuru Kurosaka, resides at 7529172 nd Street SW, a parcel located immediately to the north. Mr. Kurosaka does not have direct access to 172nd Street SW or any other public street; access to his property is from a 20 -foot -wide easement that runs along the east side of the Applicant's parcel. Exhibit A, Attachments 1 and 12; Exhibit C, page 6 (aerial photograph); Exhibit D-2, page 1. 2. The City vacated most (but not all) of the 172nd Street SW right-of-way adjacent to the Applicant's parcel in 1998. The portion abutting the eastern 38 feet of the Applicant's parcel was not vacated. Thus, the unvacated right-of-way extends 18 feet beyond Mr. Kurosaka's easement. With respect to the portion of the right-of-way that was vacated, the City has retained a utility easement. Exhibit A, page 2 and Attachments 7 and 8; Exhibit D-2, page 1. West of 74th Avenue West, the 172nd Street SW right-of-way is improved with what is essentially a concrete driveway to the Dadvar and Kurosaka parcels. According to the Applicant's submittals, which were not refuted, the driveway was paved and is maintained largely at his own expense. The driveway is steep (sloping down from 74th Avenue West towards the Applicant's parcel), narrow, and bordered by dense vegetation on both sides. It is not wide enough for two-way traffic. The public has no reason to use the right-of-way unless visiting the Dadvar or Kurosaka parcels. Exhibit D-3; Exhibit D- 4, page 1; Exhibit C, page 6 (aerial photo) 4. In approximately September of 2008, the Applicant installed a gate across 172nd Street SW, at a point a few feet west of Mr. Kurosaka's easement. The Applicant did not obtain the City's permission prior to installing the gate. Pursuant to ECDC 18.70.000(A), "an encroachment permit is required to encroach upon any portion of city public space, right- of-way or easement area with permanent structures." ECDC 18.70.000; Exhibit A, Attachment 3. 5. In response to correspondence from City engineering and code enforcement personnel, the Applicant's wife (as trustee for Washington Investments Revocable Living Trust, the Amended Findings, Conclusions, and Decision City of Edmonds Hearing Examiner SinclairlKurosaka Appeal, No. APL20090001 page 3 of 9 property owner) filed an application for an encroachment permit. The City and Washington Investments entered into an encroachment agreement as required by ECDC 18.70.020(B)(9) and (D) on February 24, 2009, and the agreement was recorded on April 9, 2009. The City issued encroachment permit no. ENG20090017 to the Applicant on May 28, 2009. Consistent with ECDC 18.70.040, the permit includes a note that it is temporary in nature and may be revoked by the City at its sole discretion. Exhibit A, Attachments 3, 4, and 5. 6. The Appellants filed an appeal of the encroachment permit on June 11, 2009. The appeal was timely under the 14 -day deadline specified in ECDC 20.105.020(8).¢ To paraphrase, the Appellants argued that the encroachment violates the criteria of ECDC 18.70.030 by interfering with traffic, permanently occupying right-of-way designed for vehicular traffic, and creating a safety hazard; and that the information contained in the permit application does not comply with ECDC 18.70.020 and is misleading. Exhibit A, Attachment 1; Exhibit C. 7. Appellant Mirel Sinclair resides at 7415 Braemar Drive, a parcel located to the southeast of the Applicant's parcel, on the opposite side of 172id Street SW. There is no vehicular access to Ms. Sinclair's parcel from 172nd Street SW. Access to her parcel is from Braemar Drive, and the access is not affected by the location of Mr. Dadvar's gate.5 There is a vegetative buffer between 172nd Street SW and her residence .6 Exhibit D-4, pages 1 and 2; Exhibit A, Attachment 12. As argued by the Appellants, the encroachment permit application did not include a partial site plan "clearly showing proposed encroachment, private property lines, all existing structures and driveways, easements and/or public property (developed or undeveloped)." ECDC 18.70.020(B) (3). The partial site plan that was recorded in conjunction with the application does not show the boundary between the 172nd Street SW right-of-way and the Applicant's property. Thus, the extent of the encroachment cannot be readily determined from the site plan. Exhibit A, Attachment 4. 9. None of the evidence submitted into the record establishes the extent of the encroachment with precision. In email correspondence dated February 2, 2009, the Public Works Director indicated that the encroachment was approximately six feet. However, in viewing the submitted photos, it appears that the encroachment might be greater than six feet. A six-foot encroachment would mean that the gate is set back 12 feet from the west edge of the easement, and the distance appears to be less than that. The Applicant's site plan, if drawn to scale, shows a gate setback of approximately 10 feet, corresponding to an eight -foot encroachment. Exhibit A, Attachments 4, 6, and 10. 4 This was the procedural ordinance in effect at the time that the City issued the encroachment permit. The City repealed the ordinance effective June 12, 2009 (©rd. 3736). 5 Although this raises a potential standing issue, the Hearing Examiner notes that ECDC 20.105.030 specifies that anyone within 300 feet of the subject property is entitled to appeal a staff decision. Ms. Sinclair lives within 300 feet of the subject property and thus has standing to appeal under City of Edmonds ordinances. Exhibit A, Attachment 12. 6 The vegetative buffer is the south half of the 172"d Street SW right-of-way, which has not been improved. See Exhibit A, Attachment 7, Exhibit D-4, page 8, Exhibit D-2, page 1, and Exhibit D-4, page 1. Amended Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Sinclair/Kurosaka Appeal, No. APL20090001 page 4 of 9 10. The Appellants alleged that the encroachment is between 15 and 20 feet, but did not submit any specific evidence - such as a measurement - to support the allegation. Based on a survey showing that the portion of the right-of-way lying west of Mr. Kurosaka's easement is only 18 feet, it is clear that the encroachment cannot be 20 feet. Exhibit D-2, page 1; Exhibit C. 11. The Appellants alleged defects in Mr. Dadvar's Certificate of Liability Insurance, which is required by ECDC 18.70.020(B)(7) and 18.70.030(E). ECDC 18.70.030(E) states the insurance requirement as follows: When the application is for use or encroachment onto a public right-of-way ... the application will be required to provide and continually maintain during the term of the permit a certificate of insurance naming the city as an additional insured, with respect to liability and providing that it shall be primary as to any other policy of insurance. The policy must contain the additional insured statement, coverage amounts and cancellation notification indicated on the sample insurance form provided by the city. ECDC 18.70.030(E). The Applicant's insurance certificate, effective December 15, 2008, provides for personal liability coverage in the amount of $500,000. It names the City of Edmonds as an additional insured, and provides for cancellation notification. The certificate identifies the street address associated with the encroachment. Exhibit A, Attachment 4. The sample insurance form submitted by the Appellants differs from the Applicant's in that, under the general liability heading, it shows personal injury coverage in the amount of $300,000 and property damage in the amount of $100,000. Exhibit C, page 15. The Appellants did not allege or submit evidence that the insurance obtained by the Applicant does not provide the City with equivalent protection. 12. The Appellants argued that without the right-of-way located behind the gate, larger vehicles (and even standard -sized vehicles) cannot execute a three-point turn and must instead backup 172nd Street SW to exit the site. During this past summer, the Appellants observed three different vehicles (one "standard work truck" and two "standard -size pick- ups") backing up and/or down the right-of-way. The Appellants alleged that vehicles did not back up the right-of-way prior to installation of the gate. One of the Appellants' concerns with respect to vehicles backing up the right-of-way was that, due to the steep gradient, drivers would not be able to see the intersection of 74d' Avenue West in their rear-view mirrors. The Appellants were also concerned that backing up the right-of-way would be dangerous in icy conditions. Exhibit C; Testimony of Mr. Kurosaka. 13. The distance a vehicle would need to back up 172nd Street SW between the Applicant's property line and the next place to turn around is approximately 150 feet. Exhibit A, Attachment 12. Although the Applicant has a driveway located in front of and to the north of his garage that is used by vehicles to turn around (the driveway is on his private property and is accessed from the Kurosaka easement), the Appellants allege that he Amended Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Sinclair/Kurosaka Appeal, No. APL20090001 page 5 of 9 blocks the driveway to vehicles servicing the Kurosaka residence. Exhibit C; Exhibit A, Attachment 4 (Site Plan Map); Exhibit D-2. 14. The Appellants submitted an aerial photo, taken prior to installation of the gate, which they allege shows a larger vehicle using the now -gated right-of-way to execute a turn. However, the photo shows the vehicle as being outside of the right-of-way boundary and on the Applicant's property. Several feet beyond the gate, the Applicant's driveway turns to the north into a private parking area, which extends beyond the right-of-way boundary. The aerial photo submitted by the Appellants shows the truck perpendicular to the right- of-way in what appears to be the private parking area. Although the truck would have used the gated right-of-way to reach the location shown in the photo, no evidence was presented that that location was right-of-way. Exhibit C, page 6, Exhibit A, Attachment 4 (Site Plan Map). 15. Both the Applicant, in installing the gate, and Mr. Kurosaka, in objecting to the gate, are concerned with protecting young family members from truck traffic and poor driving. With respect to the Applicant, there has been an incident in which a service vehicle (not serving his residence) hit a structure on his property. With respect to Mr. Kurosaka, his driveway is narrow and he does not want vehicles attempting to turn around on his property. Testimony of Mr. Dadvar; Exhibit C, page 13. 16. The Applicant submitted that large vehicles should not be using the driveway at all, and that no vehicle should use the driveway during icy or snowy conditions. Testimony of Mr. Dadvar; Exhibit D-6. One of the problems with large vehicle use (other than the difficult terrain) is that the concrete pavement cannot support heavy weight. The water lines serving the Dadvar and Kurosaka residences run beneath the driveway and the easement. In the past, truck traffic has caused damage to the concrete and has broken the water lines located beneath. Exhibit D-1; Exhibit D-2, page 2; Testimony of Mr. Dadvar. 17. The Applicant has paved a small area of his own property at the corner of the driveway and the easement to facilitate turning. Exhibit D-2. 18. The gate does not affect fire engine access to the site. Whether the gate is open or closed, a fire engine cannot turn around in front of the subject property. Exhibit A, Attachment15. 19. City Fire Department staff drove an aid car down 172"d Street SW, and City Public Works Department staff drove a "standard sized maintenance truck" (a vehicle similar in size to a delivery truck), and both were able to turn the vehicles around "at the intersection of [the Kurosaka] driveway." Exhibit A, Attachment 10. The Fire Department submitted that the gate does not affect its ability to turn aid cars around. Exhibit A, Attachments 9, 10, and 15. The Appellants presented credible evidence that the turn around location was not in front of the gate but in Mr. Dadvar's private driveway located to the north of his garage, which is adjacent to Mr. Kurosaka's south property line. Exhibit C; Exhibit A, Attachment 10. The Hearing Examiner needed to use this driveway as a turn -around during her October 1, 2009 site visit. Amended Findings, Conclusions, and Decision . City of Edmonds Hearing Examiner Sinclair/Kurosaka Appeal, No. APL20090001 page 6 of 9 20. The gate does not affect the City's ability to access its utility easement. Testimony of Ms. McConnell. 21. The City's Engineering Program Manager does not consider the portion of right-of-way affected by the encroachment to be "designed and intended for vehicular traffic or parking" per the encroachment permit criteria set forth in ECDC 18.70.030. Testimony of Ms. McConnell. 22. The City's Engineering Program Manager considers the gate to be an "accessory structure such as a fence normally associated with residential use of the property" per the encroachment permit criteria set forth in ECDC 18.70.030 and therefore exempt from the requirement that the encroachment benefit the public interest, safety or convenience. Testimony of Ms. McConnell. 23. Notice of the open record hearing was mailed to surrounding property owners within 300 feet of the subject property, posted on site, at the Civic Center, and at the library, and published in The Herald on September 16, 2009. Exhibit A, Attachments 11, 12, 13, and 14; Exhibit B. CONCLUSIONS Jurisdiction: The Hearing Examiner has jurisdiction to hear appeals of street encroachment permits pursuant to ECDC 18.70.030(D). Criteria for Review: Pursuant to ECDC 18.70.030(B), a street encroachment permit may be approved if the following criteria are satisfied: I . The proposed use shall not interfere with vehicular or pedestrian traffic, including but not limited to the following requirements: A. No portion of the public right-of-way designed and intended for vehicular traffic or parking shall be permanently occupied; B. Requirements of the State Building Code, including but not limited to all provisions relating to disabled accessibility and barrier -free design requirements shall be met; C. Any mobile vending units shall be properly licensed pursuant to Chapter 4.12 ECC; and D. Adequate compensation has been paid for use of the public right-of-way (see subsection D of this section);8 2. The architectural design board has reviewed and approved any proposal which includes a request to construct, erect or maintain an awning, building, sign or any building or structure; 3. The proposal will not unreasonably interfere with the rights of the public; and 8 Subsection D provides in relevant part, "the establishment of compensation for use of the public right-of-way is a legislative decision of the city council and is not subject to judicial review." Amended Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Sinclair/Kurosaka Appeal, No. APL20090001 page 7 of 9 4. The proposal (if for an encroachment permit) either benefits the public interest, safety or convenience ... or is an accessory structure such as a fence normally associated with residential use of the property and fully complies with the requirements of subsections (13)(1) through (3) of this section. Conclusions Based on Findings: 1. The criteria at issue in this case are subsections (1)(a), (3), and (4) of ECDC 18.70.030(B). The Hearing Examiner concurs with the City that the gate is an accessory structure to a residence and therefore exempt from the requirement of subsection (4) that the use benefits the public interest, safety or convenience. Findings 6 and 22. 2. The gate interferes with vehicular traffic, in that it eliminates an area that can be used for three-point turns. Although the Applicant has an alternative turn -around location on his property, that location is not always available and might not be available in the future. Standard -sized vehicles should not have to back 150 feet up a hill if a public turn -around location is available.9 Findings 2, 4, 12, 13, and 19. 3. The gate unreasonably interferes with the rights of the public in that it creates difficulty in maneuvering within the right-of-way and might result in a safety hazard. Even standard -sized vehicles must use the Applicant's private driveway to turn around or must back up the right-of-way. However, the terrain in the area is difficult and the Hearing Examiner concurs with the Applicant that the right-of- way is not appropriate for larger vehicles. Findings 2, 3, 4, 12, 13, 14, 16, and 19. 4. The enroachment permit application should not have been processed without a site plan complying with the requirements of ECDC 18.70.020(B)(3). Although the Appellants bear the burden of proof on appeal, the Appellants should not have to prove measurements that are required of the Applicant per code. It is not clear how the City determined that adequate compensation had been paid per ECDC 18.70.030(B)(1)(D) without the measurements. Findings 8, 9, and 10. ECISION Based on the preceding Findings and Conclusions, the appeal of encroachment permit no. ENG20090017 is GRANTED. DECIDED this 9th day of November 2009. Toweill Rice Taylor LLC, City of Edmonds Hearing Examiners / r LeAnna C. Toweill 9 The Hearing Examiner acknowledges that the amount of paved right-of-way located behind the gate is likely inadequate to assist larger trucks. Amended Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Sinclair/Kurosaka Appeal, No. APL20090001 page 8 of 9 RECONSIDERATION AND APPEAL The following is a summary of the deadlines and procedures for filing requests for reconsideration and appeals. The procedures are based on Ordinance No. 3736 (June 2009) unless otherwise noted. AU person wishing to file or respond to a request for reconsideration or an qpeal should consult the relevant ordinances and/or contact the Planning Division of the Development Services Department for further procedural information. REQUEST FOR RECONSIDERATION Section 20.06.010 of the Edmonds Community Development Code (ECDC) contains the procedures for requesting reconsideration of a Hearing Examiner decision. Requests for reconsideration must be filed with the City Planning Director within 10 calendar days of the Hearing Examiner's decision. The filing deadline is 4:30 p.m. on the last business day of the reconsideration period. Only parties of record (i.e., the applicant, any person who testified at the open record hearing on the application, any person who individually submitted written comments on the application, or the City of Edmonds) may file a request for reconsideration. The grounds for reconsideration are limited to errors of procedure, errors of law or fact, errors of judgment, or the discovery of new evidence that was not known and could not in the exercise of reasonable diligence have been discovered. Reconsideration requests must contain the information specified in ECDC 20.06.010(D) and be accompanied by the required filing fee. Pursuant to ECDC 20.06.010(G)(3), a decision on reconsideration is not subject to a motion for reconsideration. APPEALS Pursuant to ECDC 20.01.003(C), appeals of a decision of the Hearing Examiner on an appeal of a Type II administrative decision are to Snohomish County Superior Court in accordance with the Land Use Petition Act (RCW 36.70C). Appeals must be filed within 21 days of decision issuance. Filing a request for reconsideration is not a prerequisite to filing an appeal. Former ECDC 20.105.030, which was in effect at the time the encroachment permit was issued and the administrative appeal was filed, provides for the same appeal procedure. That section states, "The decision of the hearing examiner on appeals of staff decisions on project permit applications shall be final and shall not be appealable to the city council." Pursuant to ECDC 20.105.070, "Any final decision ... for which no other administrative appeal is specifically provided in the ECC or ECDC ... shall be reviewable as provided by state law before the Superior Court of Snohomish County." EFFECT OF REQUEST FOR RECONSIDERATION ON APPEAL DEADLINE The timely filing of a request for reconsideration stays the Hearing Examiner's decision until such time that the Hearing Examiner issues a decision on reconsideration, and any judicial appeal must be filed within 21 days of the decision on reconsideration. NOTICE TO COUNTY ASSESSOR The property owner may, as a result of the decision rendered by the Hearing Examiner, request a change in the valuation of the property by the Snohomish County Assessors Office. Amended Findings, Conclusions, and Decision City of Edmonds Hearing Examiner SinclairlKurosaka Appeal, No. APL20090001 page 9 of 9