dadvar - Hearing Examiner Decision.pdflhC 1$9"
GARY HAAKENSON
MAYOR
121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221
HEARING EXAMINER
In the Matter of the Appeal of
Mirel Sinclair and )
Kumiko and Mitsuru Kurosaka }
Of an Encroachment Permit. }
NO. APL20090001
FINDINGS, CONCLUSIONS,
AND DECISION
SUMMARY OF DECISION
The appeal of encroachment permit no. ENG20090017 is DENIED.
SUMMARY OF RECORD
Reguest:
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 172nd Street SW right-of-way adjacent
to 7527 172nd Street SW, Edmonds, Washington.
Mirel Sinclair (7415 Braemar Drive) and Kumiko and Mitsuru Kurosaka (7529 172" 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).
Hearin 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, Applicane
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repealed the ordinance effective June 12, 2009 (Ord. 3736).
2 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.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclair/Kurosaka Appeal, No. APL20090001 page I of 9
Incorporated August 11, 1890
Sister City - Hekinan, Japan
Exhibits:
The following exhibits were admitted into the record:
A. Staff Report dated September 22, 2009, with the following attachments:
1. Appeal Bled 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 Sept
eznber 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 Hewing
Examiner did not rely on them when making this decision.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclair/Kurosaka dppeal, No. APL20090001
page 2 of 9
D-5. Two photos depicting walkway gate and waterline location (with Applicant's
notes)
D -b. Copy of appeal with Applicant's notes
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 172'd Street SW, a parcel located on the north side of 172"d
Street SW at its west terminus. His neighbor, Appellant Mitsuru Kurosaka, resides at
7529 172"' 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 172"' 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.
3. West of 74th Avenue West, the 172"d 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 70
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 172d 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
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
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclair/Kurosaka Appeal, No. APL20090001
page 3 of 9
temporary in nature and may be revoked by the City at its sole discretion. Exhibit A,
Attachments 3, 4, and 5.
b. 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(B).4 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 172nd Street SW. There is no vehicular
access to Ms. Sinclair's parcel from 172nd Street SW. Access to her parcel is from
Bracmar 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.' Exhibit D-4,
pages I and 2; Exhibit A, Attachment 12.
8. 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(8)(3). The partial site plan that was recorded in
conjunction with the application does not show the boundary between the 172"d 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.
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
4 This was the procedural ordinance in effect at the time that the City issued the encroachment permit. The City
repealed the ordinance effective rune 12, 2009 (Ord. 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 172nd 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.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclair/Kurosaka Appeal, No. APL20090001
page 4 of 9
easement is only 18 feet, it is clear that the encroachment cannot be 20 feet. Exhibit D-2,
page I; 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 terra
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 back up 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 70' 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 172'd 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 extending west from the easement
that can be used to turn around (the driveway is on his private property), the Appellants
allege that he blocks the driveway to vehicles servicing the Kurosaka residence. Exhibit
C.
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
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclair/Kurosaka Appeal, No. APL20090001
page 5 of 9
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. 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 Department access to the site. Whether the gate is open or
closed, a fire engine cannot turn around in front of the subject property, but an aid car can
turn around in front of the subject property. The aid car access was confirmed during a
field test conducted in January of 2009 while the gate was closed. Moving the gate would
not affect aid car access. Exhibit A, Attachments 9, 10, and 15.
19. In addition to the field test regarding a Fire Department aid car, the City Public Works
Department drove a "standard sized maintenance truck" down 172'd Street SW and was
able to turn the vehicle around. The City submitted that the Public Works maintenance
truck is similar in size to a delivery track. Exhibit A, Attachment 10.
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
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclair/KurosakaAppeal, No. APL20090001
page 6 of 9
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:
1. 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),
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
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 (B)(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.
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."
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclair/Kurosaka Appeal, No. APL20090001
page 7 of 9
2. Although the Appellants provided credible evidence that the gated portion of the
right-of-way might assist some vehicles in malting a three-point turn, the Hearing
Examiner is not convinced that the gated portion of the right-of-way is "designed
and intended for vehicular traffic" per the permit criteria. That portion of the
right-of-way has been developed and landscaped as a private driveway. The gate
does not block Mr. Kurosaka's easement, and the driveway does not continue
beyond the gate to any other property. Although the gate might prevent some
three-point turns, it does not, in the Hearing Examiner's opinion, interfere with
traffic. Findings 3, 4, 12, 13, 18, 19, and 21.
3. The gate does not unreasonably interfere with the rights of the public. The terrain
in the area is difficult and the Hearing Examiner concurs with the Applicant that
the driveway is not appropriate for large vehicles. Although the gate might cause
inconvenience to visitors to the Kurosaka parcel, it does not actually block the
easement. Findings 3, 15, 16, 18, and 19.
4. Although the Hearing Examiner is troubled that the application materials did not
contain all of the information required by code (particularly a measurement of the
amount of right-of-way located behind the fence), the relevant criteria for review
do not address application requirements, and in this particular case a decision
based on the criteria can be made without reference to a precise measurement. It
does not appear that the application was actually misleading because the gate
preexisted the application and City personnel actually visited the site prior to
issuing the permit. Further, granting the appeal based on the content of the
application would not actually solve the dispute because the Applicant could
simply correct the information. Although the appeal is denied, the Hearing
Examiner recommends that the City require the Applicant to amend the partial
site plan by delineating the boundary of the right-of-way and the extent of the
encroachment. This would help inform future decisionmaldng with respect to the
gate. Findings 8, 9, and 10.
DECISION
Based on the preceding Findings and Conclusions, the appeal of encroachment permit no.
ENG20090017 is DENIED.
DECIDED this 17th day of October 2009.
Toweill Rice Taylor LLC
City of Edmonds Hearing Examiners
By: r
LeAnna C. Toweill
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. Any person wishing to file or respond to a request for reconsideration or
an Weal 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.
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.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclair/Kurosaka Appeal, No. APL20090001 page 9 of 9