Decision.pdfrh C. 1 SWI
CITY OF EDMONDS
121 5TH AVENUE NORTH - Edmonds, WA 98020 - (425) 771-0220 - FAX (425) 771-0221
HEARING EXAMINER
In the Matter of the Application of
James Ratchford
For a Variance
NO. V-2008-12
FINDINGS, CONCLUSIONS,
AND DECISION
GARY HAAKENSON
MAYOR
SUMMARY OF DECISION
The request for a variance from the side yard setback requirement of the Single -Family
Residential (RS -12) zone to allow a deck to be located five feet from the east side lot line at 7815
—175' Street SW, in Edmonds, WA is GRANTED, subject to conditions.
SUMMARY OF RECORD
Request:
James Ratchford (Applicant) requested a variance from the side yard setback requirement of the
Single -Family Residential (RS -12) zone to allow a deck to be located five feet from the east side
lot line at 7815 —175' Street SW, in Edmonds, WA.
Hearing Date:
The City of Edmonds Hearing Examiner conducted an open record hearing on the request on
May 1, 2008. The Hearing Examiner conducted a site view prior to the hearing. The Hearing
Examiner conducted a site view after the hearing.
Testimony
At the open record hearing the following individuals presented testimony under oath:
1. Gina Coccia, Planner, City of Edmonds
2. James Ratchford, Applicant
3. Demetrious Lagos
4. Alvin Rutledge
Exhibits:
At the open record hearing the following exhibits were admitted into the record:
1. Staff Report
2. Zoning & Vicinity Map
3. Land Use Application
4. Criteria Statement, including letters from neighbors, photos, and maps, dated February
19, 2008
5. Supplemental Information, dated April 5, 2008
Findings, Conclusions, and Decision
Hearing Examiner for Ciry of Edmonds
Ratchford Variance, No. V-2008-12
Incorporated August 1I, 1890
Sister City - Hekinan, Japan
page 1 of 7
6. Geotechnical Report for Existing House, dated March 21, 2002
7. Site Plan — Existing (File BLD -2002-0619)
8. Site Plan — Proposed Deck Addition
9. Public Notices and Affidavits
10. George Lagos letter, dated April 18, 2008
11. Applicant's PowerPoint presentation (11 slides)
12. Lagos photograph of drainage pipe between properties
13. Comments from Mr. Rutledge
Upon consideration of the testimony and exhibits submitted at the open record hearing, the
Hearing Examiner enters the following Findings and Conclusions:
FMINGS
1. The Applicant requested a variance from the side yard setback requirement of the Single -
Family Residential (RS -12) zone to allow a deck to be located five feet from the east side
lot line at 7815 --175' Street SW (the subject property), in Edmonds, WA.' Exhibit 1,
page 1; Exhibit 3.
2. All surrounding lots are zoned RS -12. The RS -12 zone requires ten -foot side yard
setbacks. Many lots in the vicinity of the subject property appear to have Puget Sound
views. Exhibit 1, page 2; Site visit, Edmonds Community Development Code (ECDC)
16.20.030(A).
3. The Applicant had the existing residence built on the subject property in 2002. At the
time of construction, a 14.5 -foot by 10 -foot deck was built on the eastern side of the
home. More recently, the Applicant doubled the size of the existing deck by extending it
north along the eastern side of the house. Its present dimensions are 29 feet by 10 feet.
Exhibit 1, page 6; Testimony of Mr. Ratchford; Exhibit 8.
4. Pursuant to a neighbor complaint, the City inspected the existing deck and determined
that the deck intrudes four feet, four inches into the east side yard setback along the entire
29 -foot length of the deck. After this determination, the City reviewed its files and
discovered that the builder omitted the original 14.5 by 10 -foot deck from the final
approved building plans. The Applicant states that he was unaware of this omission and
therefore unaware that his deck was neither approved nor consistent with the zoning code
at the time he chose to expand it. Rather than remove the existing deck, the Applicant
applied for a variance. Whether the deck is allowed to remain as is or is modified, the
Applicant must secure a building permit for it. Exhibit 1, page 6, Exhibit 5; Testimony of
Ms Coccia; Testimony of Mr. Ratchford; Testimony of Ms. Coccia.
5. The subject site is 27,515 square feet in area, which is more than twice the minimum lot
size in the RS -12 zone. Steep slopes, containing ravines within protected greenbelts,
' The legal description of the subject property is a portion of the southwest quarter of the southwest quarter of
Section 7, Township 27 North, Range 4 East, w.K; also known as Tax Parcel Number 00679200000700. Exhibit
8,• Exhibit 1, page 2.
Findings, Conclusions, and Decision
Hearing Examiner for City of Edmonds
Ratchford Variance, No. V-2008-12
page 2 of 7
encumber both the southern and northern ends of the subject property. The slopes, which
have grades of slightly less than 40%, are not landslide hazard areas, but they are erosion
hazard areas subject to development standards of the City of Edmonds Critical Areas
Ordinance. The front (southern end) of the lot is also encumbered by a paved access
easement serving the lot to the south. Exhibit 1, pages 4-5; Exhibit 8, Exhibit 11, Slide 3;
Site visit; Testimony of Mr. Ratchford.
6. Existing site improvements cover approximately 3, 648 square feet of the lot (excluding
the deck), for about 13% of total lot coverage? The Applicant estimates that greenbelts
encumber approximately 21,000 square feet of his lot, and that outside of the footprint of
the residence, only approximately 2,000 square feet of lot area is useable outdoor space.
The Applicant asserted that he enjoys only approximately 6,000 square feet of useable
area on his 27,515 square foot lot. This assertion, which was not disputed by the City or
parties of interest, appears to be supported by the site plan, aerial photos, and other
photography of the site. Exhibit 1, page 4; Exhibit 4, Exhibit 11, Slides 3, 4, 5, 6, and 7;
Testimony of Mr. Ratchford.
7. The zoning code contains an exception that allows unenclosed, uncovered decks less than
three feet above grade to intrude into side yard setbacks up to one-third of the width of
the required setback. ECDC 1620.040(C). Due to existing on-site slopes, it would not
be possible to build a deck on the eastern side of the residence that could comply with the
restrictions of the provided exception. Testimony of Mr. Ratchford; Exhibit 11, photos;
Exhibit 8.
8. The Applicant argued that because only approximately 6,000 square feet of his large lot
is useable area, development standards of the RS -6 zone would be an appropriate guide
for use of his severely restricted property. Testimony of Mr. Ratchford; Exhibit 11, Slide
3. The RS -6 zone requires a minimum lot size of 6,000 square feet and a minimum side
yard setback of five feet. ECDC 16.20.030. In support of this, the Applicant cites
Comprehensive Plan policies relating to large lot residential development, quoting:
"larger lot sizes provide more opportunity to avoid disturbance of existing natural
features — particularly vegetative cover — and provide an opportunity to maintain linkages
between critical areas and habitat." Exhibit 4, citation to page 51 of the City of Edmonds
Comprehensive Pian.
9. City Planning Staff suggested that a deck that conforms to the requirements of the zoning
ordinance could be constructed in the front or back yards of the property, rather than
along the eastern side yard. Testimony of Ms: Caccia; Exhibit 1, page 7.
10. Due to the location of the access easement for the neighboring lot and of 175"' Street SW,
a front yard deck would not provide the private use and enjoyment of outside area
commonly associated with residential decks. Due to the nearness of the residence to the
steep slope in the back yard (at the north end of the lot), significant engineering would be
Z Maximum lot coverage in the RS -12 zone is 35%. ECDC 16.20.030(A).
Findings, Conclusions, and Decision
Hearing Examiner for City of Edmonds
Ratchford Variance, No. V-2008-12
page 3 of i
required to build a deck that could safely accommodate residential occupancy on the
north end of the structure. In addition, there is a ten -foot wide sanitary sewer easement
located four feet north of the residential building pad. The steep slope down into the
ravine begins at the northern edge of this sewer easement. The Applicant could
encounter utility -related restrictions to residential appurtenances in the easement area.
Further, a geotechnical engineering report prepared prior to residential construction on-
site indicates that soils on the .steep slope could be difficult to build on. Exhibit 6, Exhibit
8, Testimony of Mr. Ratchford; Exhibit 11, photos.
11. Relating to the variance criterion pertaining to special privilege, both Planning Staff and
the Applicant offered testimony about the sizes of decks enjoyed on surrounding
properties. This testimony generally asserted that the Applicant's 290 square foot deck
was modest in comparison to the decks enjoyed on neighboring lots. Testimony ofMs
Coccia; Testimony of Mr. Ratchford.
12. Staff analysis concluded that the application had satisfied the four other variance criteria
relating to: special circumstances, zoning code and comprehensive plan consistency, and
not being detrimental to other properties. City Planning Staff recommended denial of the
variance based on concerns that the Applicant did not provide evidence showing variance
criteria relating to "minimum necessary variance" had been satisfied. Exhibit 1, page 7;
Testimony of Ms. Coccia.
13. Notice of the open record hearing was published in The Herald, posted on-site, and
mailed to adjoining property owners consistent with the noticing provisions in the
Edmonds Community Development Code. Exhibit 1, page 2; Exhibit 9, Testimony of
Ms. Caccia.
14. The City received public comment from a neighboring property owner opposed to
variance approval. This neighbor expressed concerns relating to the following: the lack
of permit/illegality of the existing deck; the reduction of privacy as a result of reduction
in side yard setback (requesting the Applicant be required to build a fence to restore
privacy); some concerns about a plastic drainage pipe the neighbor asserts the Applicants
placed on the neighbor property; a request that the Applicant resume tree topping that had
been performed by previous owners of the subject property; and that the deck creates a
fire hazard to the neighbor's residence. Exhibit 10, Lagos letter; Exhibit 12, Testimony of
Mr. Lagos. Other public comment referenced the fact that the City has ordered
unpermitted decks to be demolished in other cases. Testimony of Mr. Rutledge; Exhibit
13.
CONCLUSIONS
Jurisdiction-
The Hearing Examiner has jurisdiction to hear and decide variance requests pursuant to
Edmonds Community Development Code (ECDC) 20.100.010(B).
Findings, Conclusions, and Decision
Herring Examiner for City of Edmonds
Ratchford Variance, No. V-2008-12
page 4 of 7
Criteria for Review:
Pursuant to ECDC 20.85.010, the Hearing Examiner may not grant a variance unless the
following findings 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
surroundings of the property, public necessity as of public structures and
uses as set forth in ECDC 17.00.030 and environmental factors such as
vegetation, streams, ponds and wildlife habitats.
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;
C. Comprehensive Plan That the approval of the variance will be consistent with
the comprehensive plan;
D. Zoning Ordinance. That the approval of the variance will be consistent with
the purposes of the zoning ordinance and the zone district 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 properties in the vicinity with the
same zoning.
Conclusions Based on Findings:
1. The subject property is severely restricted by special circumstances. Despite being
more than twice the size of the minimum lot required in the RS -12 zone, steep slopes that
are protected in native growth protection easements encumber nearly three-quarters of the
site, leaving the Applicant with useable area closer to the minimum lot size for the RS -6
zone. Although these same slopes and ravines encumber several other properties in the
area, aerial photography appears to show that the subject property is uniquely limited
Findings, Conclusions, and Decision
Nearing Examiner for City of Edmonds
Ratchford Variance, No. V-2008-12
page 5 of 7
among surrounding properties. In addition to steep slopes, the site is encumbered by an
access easement and sanitary sewer easement, each occupying significant portions of the
site's level, "useable" area. Findings Nos. 5, 6, and 8.
2. Approval of the variance would not be a grant of special privilege. Regarding the
arguments that neighboring properties enjoy larger decks: this line of reasoning is not
persuasive. There is no zoning code provision establishing a range of appropriate sizes
for decks or even stating that all homes must be allowed to build decks. However,
overall useable area on-site is a persuasive line of reasoning. The severe extent to which
the development envelope on this site is limited creates a disadvantage to the resident of
this property as far as being able to be outdoors to enjoy the native greenery. The
maximum lot coverage allowed in the .zone is 35%, which on a 12,000 square foot lot
would be 4,200 square feet. The Applicant's 3,648 square feet of lot coverage represents
only 13% lot coverage of the oversized lot. Allowing a 290 square foot deck still does
not exceed the 4,200 square feet maximum lot coverage envisioned in the zoning code.
Allowing a flat outdoor recreational space that is not in the front yard need not be
construed as special privilege due to the extreme restrictions on use of the site. Findings
Nos. 5, 6, 8, 10, 11, and 12.
3. The variance would be consistent with the Comprehensive Plan. Finding No. 12.
4. With conditions, the variance would be consistent with the purposes of the zoning
ordinance. One purpose of the residential zones is to ensure that any growth or
development should strive to preserve for itself and its neighbors the following values:
light (including direct sunlight); privacy; views, open spaces, shorelines and other natural
features; and freedom from air, water, noise and visual pollution. ECDC 16.10.000. One
neighbor has expressed concerns that the deck's encroachment into the side yard setback
has reduced that neighbor's privacy.' The neighbor requested that a fence be required to
restore privacy. A condition of approval would require the Applicant to provide a fence
or hedge to protect the neighbor from the decrease in privacy due to the reduced setback.
Findings Nos. 8, 10, and 14.
5, As conditioned, the variance would not be detrimental to the public health, safety,
or welfare, or injurious to property or improvements in the vicinity. The Applicant
would be required to obtain appropriate City permits for existing and future activities
pertaining to the deck and privacy fencing or landscaping adjacent to the deck. Issuance
of such permits would ensure review for compliance with appropriate fire and building
codes to protect public safety and surrounding improvements. Findings Nos 4 and 14.
3 The same neighbor asked that the Applicant be required to top trees to restore the neighbor's former views of
Puget Sound. Exhibit 10; Testimony of Mr_ Lagos. The requested tree topping and any issues relating to the plastic
drainage pipe are not related to the deck variance and are private matters between neighbors over which the
Examiner has no jurisdiction. However, the Applicant should be careful that any fencing or hedge placed to comply
with this conditional variance approval does not further impede the neighbor's view ofPuget Sound
Findings, Conclusions, and Decision
Hearing Examiner for City of Edmonds
Ratchford Variance, No. V-2008-12
page 6 of 7
6. The variance would be the minimum necessary to allow reasonable use and
enjoyment of the property. While the zoning code does not confer any per se right to a
deck as a residential appurtenance, it does promote enjoyment of private property so long
as new development does not pose risks to public health, safety, and welfare, and the
right of neighbors to the private enjoyment of their properties. A deck placed in the front
yard, adjacent to 175`h Street SW and the neighbor's access easement would defeat the
purpose and reasonable expectation of outdoor privacy on the RS -12 zone. The record
contains evidence suggesting that it may not be possible or wise to construct a deck
above the steep slope and sewer easement at the north end of the residence. Each land
use application must be reviewed on its own merits. While the City's recommendation of
denial was based in the appropriate spirit of strict adherence to the zoning code, such
strict adherence in this case would deny the Applicant the right to enjoy reasonable
outdoor space on his 27,515 square foot lot. Approval in this case is based on the severe
topographical limitations faced by the owner of this property. Findings Nos, 4, 5, 6, 8,
and 10.
DECISION
Based on the preceding findings and conclusions, the request for a variance from the side yard
setback requirement of the Single -Family Residential {RS -12} zone to allow a deck to be located
five feet from the east side lot line at 781.5 --175` Street SW, in GRANTED, subject to the
following conditions:
1. The Applicant shall apply for and obtain appropriate building permits for the existing
deck. If alterations to the deck are required in order to obtain building permit
approval, the Applicant must perform such alterations within 90 days.
2. The Applicant shall construct a fence or plant sight -obscuring vegetation along the
eastern property line adjacent to the length of the deck to address the impacts to the
neighbor's privacy resulting from the reduction in the eastern side yard setback. The
Applicant shall take pains to ensure that any such fence or hedge does not impact any
views of the eastern neighbor. The Applicant shall acquire any required permits for
the privacy fence or landscaping in a timely fashion.
DECIDED May 15, 2008.
Toweill Rice Taylor LLC
Hearing Examiners for the City of Edmonds
By:
Findings, Conclusions, and Decision
Hearing Examiner for City of Edmonds
Ratchford Variance, No. V-2008-12
page 7 of 7
l-0C.Is()"
CITY OF E D M O N D S GARY HAAKENSON
MAYOR
121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221
HEARING EXAMINER
RECONSIDERATION AND APPEAL
The following is a summary of the deadlines and procedures for filing requests for reconsideration and
appeals. Any Verson wishing to file or respond to a request for reconsideration or an appeal should
contact the Planning Division of the Development Services Deparhnent for_furthocedural
information.
REQUEST FOR RECONSIDERATION
Section 20.100.010(G) of the Edmonds Community Development Code (ECDC) requires the Hearing
Examiner to reconsider his or her 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.
APPEALS
Chapter 20.105 of the ECDC contains the appeal procedures for Hearing Examiner decisions. Pursuant to
Section 20.105.040(A), persons entitled to appeal include (1) the Applicant; (2) anyone who has
submitted a written document to the City of Edmonds concerning the application prior to or at the
hearing; or (3) anyone testifying on the application at the hearing. Sections 20.105.020(A) requires
appeals to be in writing, and state (1) the decision being appealed, the name of the project applicant, and
the date of the decision; (2) the name and address of the person (or group) appealing the decision, and his
or her interest in the matter; and (3) the reasons why the person appealing believes the decision to be
wrong. Pursuant to Section 20.105.020(8), the appeal must be filed with the Director of the Development
Services Department within 14 calendar days after the date of the decision being appealed. The appeal
must be accompanied by any required appeal fee.
TIME LMTS FOR RECONSIDERATION AND APPEAL
The time limits for Reconsideration and Appeal run concurrently. If a request for reconsideration is filed
before the time limit for filing an appeal has expired, the time clock.for filing an appeal is stopped until a
decision on the reconsideration request is completed. Once the Hearing Examiner has issued his or her
decision on the reconsideration request, the time clock for filing an appeal continues from the point it was
stopped. For example, if a reconsideration request is filed on day five of the appeal period, an individual
would have nine more days in which to file an appeal after the Hearing Examiner issues his decision on
the reconsideration request.
LAPSE OF APPROVAL
Section 20.85.020(C) of the ECDC states, "[t]he 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."
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.
• Incorporated August I1, 1890 •
Sister City - Hekinan, Japan
CITY OF E D M O N D S GARY HAAKENSON
MAYOR.
121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221
HEARING EXAMINER
OFFICE OF THE REARING EXAMINER
CITY OF EDMONDS, WASHINGTON
APPLICANT )
James Ratchford }
}
For a Variance )
I, Sharon A. Rice, the undersigned, do hereby declare:
Case No. V-2008-12
DECLARATION OF SERVICE
1. That I am a partner in the firm of Toweill Rice Taylor LLC, which maintains a professional
services agreement with the City of Edmonds, Washington for the provision of Hearing Examiner
services, and make this declaration in that capacity;
2. That I am now and at all times herein mentioned have been a citizen of the United States, a
resident of the State of Washington, over the age of eighteen (18), and competent to be a witness
and make service herein;
3. That on May 14, 2008 I did serve a copy of the decision in case V-2008-12 upon the following
individuals at the addresses below by first class US Mail.
James & Birgitt Ratchford
7815 —175h Street SW
Edmonds, WA 98026
Clerk of the Edmonds City Council
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
Alvin Rutledge
7101 Lake Ballinger Way
Edmonds, WA 98026
Paul & Karen Johnson
7819 - 175`h Street SW
Edmonds, WA 98026
Ralph Puchalski & Kristin Foote
7810 —175"` Street SW
Edmonds, WA 98025
Don Corwin
PO Box 1451
Edmonds, WA 98020
• Incorporated August 11, 1890 •
Sister City - Hekinan, Japan
11nc.1S9v
CITY OF E D M O N D S GARY HAAKENSON
MAYOR
121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221
HEARING EXAMINER
Saeed Daniali
7821-175 h Street SW
Edmonds WA, 98026
Craig Nakashima
7711--175`4 Street SW
Edmonds, WA 98026
George Lagos
7811-175`h Street SW
Edmonds, WA 98026
Demetrius Lagos
7811-175`h Street SW
Edmonds, WA 98026
City of Edmonds Planning Division
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
City of Edmonds Building Division.
I hereby declare under penalty of perjury under the laws of the State of Washington that the foregoing is
true and correct:
DATED THIS day of , 2008 at S Washington.
Sharon A. Rice
Toweill Rice Taylor LLC
Serving as Hearing Examiner for Edmonds, Washington
• Incorporated August 11, 1890 •
Sister City - Hekinan, Japan