Hearing Examiner Decision.pdf'I'l) C. 1 9()\)
C" ITY 0' GARY HAAKENSON
MAYOR
121 5TH AVENUE NORTH - Edmonds, WA 98020 ® (425) 771-0220 - FAX (425) 771-0221
HEARING EXAMINER
In the Matter of the Application of NO. PLN -2010-0049
Mark Jackson
For a Variance FINDINGS, CONCLUSIONS,
AND DECISION
SUMMARY OF DECISION
The request for a variance from the street and side yard setback standards of the Single -Family
Residential (RS -12) zone to allow additions onto the living room and garage of a legally
nonconforming residence at 1101 - 12th Avenue North in Edmonds, Washington is DENIED.
Request:
Mark Jackson (Applicant) requested a variance from the street and side yard setback standards of
the Single -Family Residential (RS -12) zone. The variance was sought to allow additions onto
the living room and garage of a legally nonconforming residence at 1101 - 12th Avenue North in
Edmonds, Washington.
Hearing Date:
The Edmonds Hearing Examiner conducted an open record hearing on the request on August 19,
2010. The Hearing Examiner conducted a site visit on August 23, 2010, driving by the subject
property and observing it in the context of the surrounding residential development.
Testimony:
At the open record hearing the following individuals presented testimony under oath:
1. Kernen Lien, Planner, City of Edmonds
2. Mark Jackson, Applicant
3. Al Rutledge
4. Eloise Sheldon
Exhibits:
At the open record hearing the following exhibits were admitted into the record:
1. Planning Division Staff Report, dated August 10, 2010
2, Land Use Application
3. Applicant Narrative and Criteria Statement
4. Site Plan
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Jackson Variance, No. PLN -2010-0049 page I of 7
Incorporoted Au'qust 11, 1890
5. Site Photos
6. Zoning and Vicinity Map
7. Short Plat S-27-66
8. Lot Line Adjustment S-29-87
9. Notice affidavits
10. Technical Committee Review Comments
11. Critical Area CRA20100007
12. Neighborhood Residences and Garages Comparison, prepared by Planning Staff
13. Affidavit of Publication
14. Correspondence from Ron and Marilyn Wirtz, dated August 6, 2010
15. Correspondence from John and Lee Sheldon, dated August 18, 2010
16. Correspondence from Dr. and Mrs. Dana Blackham, dated August 18, 2010
Upon consideration of the testimony and exhibits submitted, the Hearing Examiner enters the
following findings and conclusions:
FINDINGS
1. The Applicant requested a variance from the street and side yard setback standards of the
Single -Family Residential (RS -12) zone to allow additions onto the living room and
garage of a legally nonconforming residence at 1101 - 12th Avenue North in Edmonds,
Washington.' Exhibit 1, pages 1-2; Exhibits 2 and 3.
2. The RS -12 zone requires a minimum 25 -foot setback from the street and 10 -foot side
setbacks. Edmonds Community Development Code (ECDC)16.20.030.
3. The existing residence was built in 1962, at which time the RS -12 zone required a 7.5 -
foot side setback. In 1962, the eastern wall of the existing garage was placed eight feet
one inch from the eastern lot boundary.' In the early 1970s, the development standards of
the RS -12 zone changed, requiring a 10 -foot side setback. Because it complied with the
development standards in effect at the time of construction, the existing residence became
legally nonconforming when the zoning regulations changed. Exhibit 1, page 2; Lien
Testimony.
4. In 1966, the parent parcel containing the existing residence was subdivided into four lots
under File No. S-27-66. The existing residence was retained in place on a five -sided
parcel totaling 19,850 square feet, with the north and west lot lines that were not
perpendicular to the house. Subdivision S-27-66 reserved an access easement along the
subject property's north lot line; it did not alter the relationship between the existing
' The subject property is known as Tax Parcel Number 00548900001911. Exhibit 1, page 1.
' The Staff Report states the garage is eight feet eleven inches from the eastern lot line, and the Applicant's materials
state the garage is eight feet one inch from the eastern lot line. Exhibit 1, page 2; Exhibit 3. In order for a six-inch
additional encroachment to be necessary to result in the desired fmal setback of seven feet seven inches (as stated by
the Applicant), the existing setback must equal eight feet one inch. The uncertainty regarding the existing setback
does not prejudice the position of any party.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Jackson Variance, No. PLN -2010-0049
page 2 of 7
residence and the eastern side lot line. Exhibit 1, page 2; Lien Testimony; Exhibit 7, see
Exhibit 7, page 3 of H.
5. The boundaries of the subject property were again amended in 1987 through a boundary
line adjustment (BLA, File No. 5-29-87). The BLA altered the western and northwestern
lot lines of the subject property, reducing its total area to 14,542 square feet. The BLA
did not impact the relationship between the existing residence and the eastern lot line.
Exhibit 1, page 2, Exhibit 8.
6. There is a storage structure (an enclosed garden shed) that runs the length of the
residence between the garage and the eastern lot line, located in the required setback.
There is no building permit on record for the structure, and it is not known when it was
built. Whether the storage structure is legally nonconforming or illegally built is not
relevant to the instant application for variance. Exhibit 1, pages 4-5; Lien Testimony;
Exhibit 5, page 1, photos 2277, 2278, and 2279.
7. The Applicant purchased the property in 2005 after it had settled in its current
configuration and has made no changes to the lot boundaries. Jackson Testimony;
Exhibit 3.
8. Surrounding properties share the site's RS -12 zoning designation. Most of the homes in
the vicinity are oriented to maximize views of Puget Sound and the Olympic Mountains,
visible to the west as a result of the surrounding topography. Exhibit 1, page 3; Site Visit.
9. The subject property sits on a large west -facing hill, with grades that slope steeply from
an elevation of 294 feet in the northeast corner to 260 feet in the southwest corner. The
existing residence sits on a flat area, but the parcel drops steeply (approximately 500/0) to
the south and west of the residence. Exhibit 1, page 3; Site visit.
10. The Applicant desires to build additions onto the living room and the garage of the
existing residence. As proposed, the addition to the living room would extend to the
north. The proposed garage addition would extend the garage to the north and to the east,
extending six inches closer to the eastern lot line. Both additions are proposed on the
level part of the property. Neither, if approved, would require the removal of mature,
significant vegetation. Exhibits 2, 3, and 4; Exhibit 1, page 4.
11. The existing garage, which encroaches into the eastern side setback, is 26 feet long and
22 feet wide. The proposed eastern expansion, if approved, would intrude a total of two
feet five inches into the required 10 -foot side setback, leaving a side setback of seven feet
seven inches. It would extend the garage over the existing foundation, which the current
structure does not completely cover. Exhibit 3; Jackson Testimony, Exhibit 5, page 1,
photos 2277 and 2280.
12. The existing living room is 24 feet long and 18 feet wide; its long wall faces the western
view. In order to expand the living room to "be more consistent with the homes in the
neighborhood and to make better use of the western views of Puget Sound and the
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Jackson Variance, No. PLN -2010-0049
page 3 of 7
Olympic Peninsula", the Applicant desires to extend the living room to the north, leaving
a street setback of 13 feet from 199th Street SW. Exhibit 3; Jackson Testimony.
13. The Applicant's residence has a footprint of 1930 square feet, and a total floor area of
3,060 square feet. It is described as a single -story home with a completed daylight
basement. It has a two -car garage of approximately 572 square feet, and there is space
for additional off-street parking outside the garage on the lot. Exhibit 1, page 5; Exhibit
3; Exhibit 5, page 2; Exhibit 12.
14, Snohomish County Assessor information compiled by the Planning Department shows a
survey of 21 homes in the immediate vicinity have an average floor area of 3,571 square
feet and garages averaging 541 square feet.' The Applicant's existing is garage is larger
than 14 of the 21 garages in the neighborhood for which Assessor data was provided in
the record, and the existing residence (excluding garage) is larger than seven of the 21
surrounding residences. Exhibit 12.
15. There is flat, developable area adjacent to the garage and the living room that could
contain expansions of the existing structure without encroaching into required setbacks
from the side or street. Exhibit 4; Jackson Testimony, Lien Testimony; Exhibit 1, page 7.
16. In support of his request, the Applicant argued that the west- and south -facing slopes
significantly limit the flat, useable area of his property. He argued that the previous
boundary adjustments of his parcel had left an irregularly shaped lot and had left final lot
lines not perpendicular to the pre-existing residence. He argued that his lot/residence
orientation contrasts with that of surrounding homes, which he asserted are sited on their
lots in an orientation that allows for future expansion without affecting setbacks. He
argued an expanded garage would be more consistent with the sizes of the surrounding
garages, and that the expanded living room would leave his total floor area more
consistent with the square footage of surrounding residences. He argued that the
improved views would "likely also increase the overall value of [the] home." Exhibit 3,
pages 2-4; Jackson Testimony.
17. In his testimony and written materials, the Applicant argued that no party would be
harmed if he were allowed to expand his residence as desired into the street and side yard
setbacks. Jackson Testimony; Exhibit 3, page 5.
18. Planning Staff concurred that there would be no detriment to the public health, safety,
and welfare. Exhibit 1, page 7. However, Staff disagreed that special circumstances
could be found to arise from the previous subdivision and also disagreed that the
requested variances were the minimum necessary for the Applicant to enjoy the same
rights as surrounding residential owners. Staff noted that the residence could be
expanded without resorting to variance, and also that the existing residence and garage
are of sizes comparable to those of surrounding homes. Based on the position that the
' These averaged figures were calculated based on the square footages of the 21 residences depicted in Exhibit 12,
which include the Applicant's residence.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Jackson Variance, No. PLN -2010-0049
page 4 of 7
Applicant already enjoys the rights allowed to other RS -12 zoned properties, Staff opined
that the variances are not necessary to allow the Applicant the same rights as his
neighbors. The City recommended denial of the application. Exhibit 1, pages 7-8; Lien
Testimony.
19, Notice of Application and Public Hearing were posted on-site, published in The Herald,
and mailed to surrounding property owners within 300 feet of the site. Exhibit 1, page 2;
Exhibit 9.
20. The City received several comments in favor of the application, and one in opposition.
Exhibits 14, 15, and 16; Sheldon Testimony. The opposing letter asserted that the
requested variances would interfere with the commenting neighbors' view. Exhibit 16.
Other public comment offered encouraged the Applicant to notify Snohomish County
regarding any changes to property values as a result of the outcome of the hearing.
Rutledge Testimony.
CONCLUSIONS
Jurisdiction:
The Hearing Examiner has jurisdiction to hear and decide variance requests pursuant to ECDC
20.01.003.A and .0 and ECDC 20.85.020.
Criteria for Review:
Pursuant to ECDC 20.85.010, no variance may be approved unless all of 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;
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Jackson Variance, No. PLN -2010-0049 page 5 of 7
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 Findinas:
1. No special circumstances that may be recognized under the City Code give rise to the
requested variances. While the subject property is significantly constrained by
topography, the slopes on and near the site are not the bases for the requested variances to
setback requirements. There is room to expand the structure in the flat portions of the
site, or vertically, without further encroachment into setbacks. The Applicant's five -sided
lot and legally nonconforming garage placement cannot be considered when reaching the
determination as to special circumstances, per ECDC 20.85.010.A.2, as both are the
result of actions of former owners of the parcel. Likewise, the Applicant's stated
intentions of improving his views and increasing his property value cannot justify a
variance. Findings 3, 4, 5, 11, 12, 15, 16, and 18.
2. The application does not demonstrate that the requested variances are the minimum
necessary to allow the Applicant to enjoy the same rights enjoyed by other property
owners in the RS -12 zone. The existing garage is larger than 14 of 21 surrounding
properties, and additional off-street parking is available on-site. The existing residence is
larger than seven comparable surrounding residences, being only 511 square feet smaller
than the average of the sample provided. More significantly, the Applicant could make
substantial increases in his square footage (and his views) without resorting to variance
from any zoning standard. Findings 13, 14, and 15.
3. Because all variance criteria must be satisfied and the two previously discussed were not
satisfied, it is not necessary to review the remaining criteria.
4. ECDC 17.40.020.B expressly prohibits expansion of legally nonconforming structures in
any way that increases the nonconformity. The Applicant's residence is legally
nonconforming due to its encroachment into the eastern side setback. Both of the
requested setback variances would increase the existing nonconformity. Findings 3, 11,
and 12.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Jackson Variance, No. PLN --2010-0049
page 6 of 7
DECISION
Based on the preceding findings and conclusions, the request for a variance from the street and
side yard setback standards of the Single -Family Residential (RS -12) zone to allow additions
onto the living room and garage of a legally nonconforming residence at 1101 - 12th Avenue
North in Edmonds, Washington is DENIED,
DECIDED September 1, 2010.
Toweill Rice Taylor LLC
City of Edmonds Hearing Examiners
By:
Sharon A. Rice
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Jackson Variance, No. PLN -2010-0049
page 7 of 7
I I? C. 1 9()\)
CITY Of. EDMONDS GARY HAAKENSON
MAYOR
121 5TH AVENUE NORTH - Edmonds, WA 98020 ® (425) 771-0220 - FAX (425) 771-0221
HEARING EXAMINER
. RE CONSIDERATION AND APPEAL
The following is a summary of the deadlines and procedures for filing requests for
reconsideration and appeals. Anyperson wishing to file or respond to a request for
reconsideration or an appeal should consult the relevant ordinances and/or contact the Planning
Division of the Development Services Department for further procedural information.
REQUEST FORRE, CONSIDERATION
Pursuant to ECDC 20.06. 010, requests for reconsideration may 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 prior to hearing.
Reconsideration requests must contain the infon-nation specified in ECDC 20.06.010(D) and be
accompanied by the required filing fee.
APPEALS
Pursuant to ECDC 20.01.003(0), appeals of Hearing Examiner decisions on variances shall be
made to the City Council, which body conducts a closed record appeal hearing on the appeal
pursuant to the provisions of ECDC 20.07. Appeals to the City Council must be filed within 14
days of the date the Hearing Examiner decision is issued. The appeal must be submitted by 4:30
pin on the last business day of the appeal period. The appeal must contain the information
specified in ECDC 20.07.004(D) and be accompanied by the required filing fee. Filing a
request for reconsideration is not a prerequisite to filing an appeal.
EFFECT OFRE, QUEST FORRE, CONSIDERATION 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.
LAPSE OF APPROVAL
Section 20.05,020(C) of the ECDC states: "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."
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 Assessor's Office.
Incorpotated August 11, 1890
1p C. I SL)v
121 5TH AVENUE NORTH - Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221
HEARING EXAMINER
MEN WALIUM1011WIC111:1 "'U'll Q,
Regarding the request of
Mark Jackson
For a Variance
1, Sharon A. Rice, the undersigned, do hereby declare:
Case No. PLN -2010-0049
GARY HAAKENSON
MAYOR
I 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; and 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; and that on
September 1, 2010 1 served a copy of the decision in case PLN -2010-0049 upon the following
individuals at the addresses below by first class US Mail:
Mark Jackson
1101 - 12th Avenue North
Edmonds, WA 98020
Clerk of the Edmonds City Council
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
Alvin Rutledge
7 101 Lake Ballinger Way
Edmonds, WA 98026
Dr. and Mrs. Dana Blackham
1100 - 12th Avenue North
Edmonds, WA 98020
Edmonds Development Services
121 Fifth Avenue North, First Floor
Edmonds, WA 98020
John and Lee Sheldon
1025 - 12th Avenue North
Edmonds, WA 98020
Ron & Marilyn Wirtz
1031 - 12th Avenue North
Edmonds, WA 98020
I hereby declare under penalty of perjury under the laws of the State of Washington that the foregoing is
true and correct, this I st day of September 2010 at Edmonds, Washington.
Sharon A. Rice
Toweill Rice Taylor LLC
Incorporated August 11, 1890