Termination of Encroachment Agrmt Dadvar-Sharifi-Recorded.pdfWhen recorded mail to:
City Clerk
City of Edmonds
121 Fifth Avenue North
Edmonds, WA 98020
Deference No. 200904090065
CONFORMED COPY
201410240112 10 PGS
NWIS4ONTYAiNSONNCO, HGTQN
Owner: WASHINGTON INVESTMENTS REVOCABLE LIVING TRUST,
Anthony Dadvar and Haydeh Sharifi, Trustees
City: City of Edmonds
Abbreviated Legal Tract 122 Meadowdale Beach, Volume 5 of Plats, Page 38, Lot A,
Description: Snohomish County, Washington.
Tax Parcel 9 00513100012222
WHEREAS, the City of Edmonds ("City") issued an encroachment permit to Anthony
Dadvar on May 28, 2009 (Permit No. ENG20090017), which authorized the placement of a gate
across the 172nd Street SW right-of-way adjacent to 7527 172nd Street SW, Edmonds, WA; and
WHEREAS, an Encroachment Agreement ("the Agreement") was executed between the
City and Washington Investments Revocable Living Trust, Anthony Dadvar and Haydeh Sharifi,
Trustees ("Owner"), setting forth the parties' rights and responsibilities with regard to the
encroachment; and
WHEREAS, the Agreement was recorded in the official records of Snohomish County,
Auditor's File No. 200904090065, and is attached hereto as Exhibit A and incorporated herein
by this reference; and
WHEREAS, an appeal of the issuance of encroachment Permit No. ENG20090017 was
granted and the permit revoked pursuant to the City of Edmonds Hearing Examiner's Amended
Findings, Conclusions, and Decision dated November 9, 2009, a copy of which is attached hereto
as Exhibit 13 and incorporated herein by this reference; and -
Mage 1 of 2
WHEREAS, with the revocation of Permit No. ENG20090017, the Agreement is no
longer enforceable; and
WHEREAS, the Owner has removed the gate authorized by Permit No. ENG20090017,
as well as the supporting posts and all other materials associated therewith;
NOW THEREFORE, the City hereby provides notice of the termination of the
Encroachment Agreement and the remaining rights and responsibilities of the parties provided
for therein.
This Notice of Termination of Encroachment Agreement shall be recorded in the official
records of Snohomish County, Washington.
Dated: li q
By: L�
FI7g11 ee'Eilg 1�1 1Sioll
Page 2 of 2
Wheu recorded mail to:
SNOHOMISH COUNTY, JSHINGTON
SPACE ABQVE THE LINE FOR RECORDERS USE
Assessor's Parcel No.: 10,0 5 1 V2 -
Applicant_
This ENCROACHMENT AGREEMENT ("Ag Bement") is entered into between the
CITY OF EDMONDS ("City") and Mq )).'�,.
("Owner[s]"), in accordance with Chapter 18.70 of the Edmonds Community Development
Code.
1. The roperty. Owner is the owner of that certain real property located at
7-52-7 172-N E. 9. GJ within the City of Edmonds,
Washington, Assessor's Parcel Number /Z
and more particularly described as follows
11A.=XC `/� 1 2 1) ipLm)ri.4
or
as described in Exhibit "A" attached hereto and incorporated herein by reference.
2. The Easement. The City right-of-way adjacent to owner's property or an
existing easement used for (strike those that don't apply) [street, road, alley, trail, sidewalk,
bikepath, pedestrian easement, sanitary sewer, water, storm, other
3. The Encroachment. The Owner desires to encroach upon the public
easement and the City hereby covenants and agrees and grants its permission to Owner to
allow , a 1 %1 +� + S e � ra�
_-QE to remain in a portion of
the City right-of-wayleasement. A partial site plan, scaled 17-20', showing the location of the
encroachment is attached as Exhibit `B" and incorporated by reference. This Agreement is
subject to the following terms and conditions:
-Iof4-
a_ On behalf of themselves, their successors and assigns, the Owner promises to
maintain, repair, remove and/or replace the encroachment located in the easement
at their sole expense to the standards established by the City. All maintenance,
repair, removal and/or replacement shall be conducted solely at the Owners'
expense.
b. The Owner, on behalf of themselves and their successors and assigns,
acknowledge that the City had no obligation to approve the encroachment within
the easement for the sole benefit of the Owner, and the agreements contained
herein, provide sufficient consideration for the Owner and their successors and
assighs to maintain, repair, remove and/or replace said encroachment located in the
easement at their sole expense in perpetuity -
c_ The Owner promises to indemnify and hold harmless the City, its officers, agents
and employees from any Ioss, claim or liability of any kind or nature arising from
or out of its promises contained within this agreement, including any damage that
may be caused to the encroachment by the City's operation, maintenance, repair,
replacement or other work related to construction activity within the easement
This promise to hold harmless and indemnify includes defense by counsel of the
City's choosing, the payment of reasonable attorney's fees and court costs.
Nothing herein, however, shall be interpreted to require the Owner toindemnify
the City from the negligence or intentional tortuous act of its employees, officers,
or agents.
d. The Owner shall at the request of the City, promptly remove, repair, reconstruct,
and/or replace the encroachment at the Owners' sole expense. Upon receipt of
notification from the City that the City requires removal of all or portions of the
encroachment from within the easement, the Owner will promptly remove those
portions of the encroachment from within the easement area as required by the
City at their sole expense. If the portions of the encroachment required by the City
to be removed are not timely removed by the Owner, they shall be removed by the
City at the expense of the Owner, and the Owner shall reimburse the City for the
costs of removal of the encroachment and disposal of materials as well as for any
increased construction costs or consequential damages incurred by the City due to
the Owners' delay. In the event that portions of the encroachment must be
reproved to facilitate utility and/or construction activity by the City within the
easement or other requirements of the City, the Owner shall be solely responsible
for replacement of the encroachment at their expense upon completion of the
utility and/or construction or other activity by the City.
e. Whatever rights and obligations were acquired by the City with respect to the
easement shall remain and continue in full force and effect and shall in no way be
affected by City's grant of permission to construct and maintain the encroachment
structure.
-2of4-
f The property owner is 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. A copy of the insurance certificate shall be provided to
the City at the beginning of each calendar year, no later than the 21" day of
January_
4. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes and replaces all other
agreements, oral or written, between the parties with respect to the subject matter. This
agreement may not be amended except in writing in a document filed of record with the
auditor of Snohomish County, Washington.
5. Notices. Any notice which is required or may be given pursuant to this
Agreement shall be sent in writing by United States mail, first class, postage pre -paid,
registered or certified with return receipt requested, or by other comparable commercial
means and addressed as follows_
If to the City:
City :Engineer
City of Edmonds
121 Fifth Avenue North
Edmonds, WA 98020
Yto the Owner:
r
92
�_� 9
which addresses may be changed from time to time by providing notice to the other party in
the manner described above.
6. Waiver. City's consent to or approval of any act or omission by Owner shall
not constitute a waiver of any other default by Owner and shall not be deemed a waiver or
render unnecessary City's consent for approval to any subsequent act by Owner. Any waiver
by City of any default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of the Agreement.
7. Termination of Agreement. In addition to any other remedy provided for by
law, the City reserves the right to terminate this agreement in the event the encroachment
negatively impacts or damages the City's casement and/or underlying utility ' systems or
violates any condition of service adopted by the City, at its sole discretion, as may be
necessary to prevent damage to the City's utility system, or any other public facility which
may be impacted by the Owners' failure to properly use the easement.
8. Successors and Assigns. This Agreement shall be binding and inure to the
benefit of the parties hereto and their respective legal representatives, successors, and assigns.
Owner agrees to incorporate this agreement by reference in any subsequent deeds to the
property, but any failure to do so does not invalidate this provision.
-3of4-
9. Ca acid . Each party represents that the person(s) executing this Agreement
on behalf of such party has the authority to execute this Agreement and by such signature(s)
thereby bind such party.
-14
IN WITNESS WHEREOF, the panties hereto have executed this Agreement on this day
of tvt 20,D'I
OWNER(S); Washington Investments Revocable Li T' ig T _ust,
dated November 12, 2004e
By: By: . % �f
Hai deb Sharifi Trustee
STATE OF WASHINGTON )
COUNTY OF SNOHOMISH )
See'Notary Acknolwedgment attached.
�,,
This day, personally appeared before me, , -- G ,
to me known to be the person(s) who executed the within and foregoing document and that
iaefshehhey} signed the same askhi's/Aer/thei.r) free and voluntary act
and deed for the uses and purposes therein tiaeiitioned.
CITY -OF EDM
go
ENGMEMM6 DRISION
Notary Public
Typed or Printed Name
My Commission expires:
-4of4-
STA'L'E OF WASHINGTON
ss_
County of Snohomish
On this 24°x` day of February, 2009, pmonaliy appeat-eed 14AYUER SHA1II, to me known to
be the individual described in. and Who executed the within and foregoing insstnurlent, and on
oath stated that she was authorized to execute the instrument and acknowledged it as the
TRiUSTBB of the WASHINGTON 1NVESTINMNTS REVOCABLE LTVING TRUST dated
November 12, 2004 to Fre the free and voluntary act of such party for the uses and purposes
mentioned in the instrument, to �t� (bur' page document e�L�d."F�tcroachment.A er PIi
and dated February 24, 2009, to which doenment this notarization acknowledgernent should. be
attached thereto.
Subscribed and sworu to before me this date: 24 February 2009,
Name. (printed) James R_ Hawes
Title: Notary public
My commission expires: 12-12-2011
THAT PORTION OF TRACT 122, MEADOWDALE BEACH, ACCORDING TO THE PLA -T THEREOF,
RECORDED IN VOLUME 5 OF PLATS, PAGE 38, RECORDS OF SNOHOMISH COUNTY,
WASHINGTON, OESCR1BED AS FOLLOWS
BEGINNING AT THE SOUTHWEST CORNER OF SAID TRACT 122,
THENCE NORTH 0°20'00" EAST, ALONG THE WEST LINE OF SAID TRACT 122, A DISTANCE OF
138 94 FEET,
THENCE SOUTH 85°10'31"EAST, PARALLEL WITH THE SOUTH LIME OF SAID TRACT 122, A
DISTANCE OF 324 40 FEET TO THE TRUE POINT OF BEGINNING,
THENCE CONTINUING SOUTH 88" 10'31"EAST, A DISTANCE OF 159 95 FEET,
THENCE SOUTH 2°28'20" EAST, A DISTANGE OF 139 28 FEET TO THE SOUTH LINE OF SAID
TRACT 122,
THENCE NORTH 8810'31" WEST, A DISTANCE OF 168 74 FEET TO A POINT WHICH IS 302 37
FEET EAST OF THE SOUTHWEST CORNER OF SAID TRACT 122,
THENCE NORTH 160$'51" EAST, A DISTANCE OF 138 90 FEET TO TRUE POINT OF BEGINNING
LOT 4, CITY OF EDMONDS SHORT PLAT NO S-92-022 RECORDED UNDER AUDITOR'S FILE.
NUMBER 9503010348
SITUATE IN THE COUNTY OF SNOHOMISH, STATE OF WASHINGTON
ew
j5A7�z
5-11 jJ4
vxi5-pj�e, NOLLgf r-;, -Nc
11
1159
752-7 17A `3 �T-
ril c Is To
CITY OF EDMONDS GARY HAAKENSON
121 5TH AVENUE NORTH • Edmonds, SNA 96020 • (425) 771-0220 •FAX (425) 771.0221 MAYOR
HEARING EXAMINER
NOV 12 2009
In the Matter of the Appeal of ) NO. APL20090001
Mirel Sinclair and ) AN3ENDED FINDINGS,
Kutniko and Mitsuru Kurosaka ) CONCLUSIONS, AND DECISION
Of an Enoroacimient Permit. 1
SUMMARY OF DECISION
The appeal of eneroaclvrient permit -no. ENG20090017 is GRANTED,
SUMMARY OF RECORD
Request:
The City of Edmonds issued an encroachment pennit to Anthony IDadvar (Applicant) on May 28,
2009, which authorized the placement of a gate across the 172�d Street SW right -of way adjacent
to 7527172°d Street SW, Edmonds, Washington.
Mirel Sinclair (74•I5 Braemar Drive) and Kumiko and Mitsuru Kutosaka (7529172"d Sir'et SW)
appealed the encroachment permit on Tune 11, 2009. The appeal was timely under the 14 -day
deadline; specified in ECDC -20.105.020(B).'
Hearing Date.-
The,
ate: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.
Testimonv:
The following individuals presented testimony under oath at the open record hearing:
1, Jeanie McConnell, Engineering Program Manager, City of Edmonds
2. Mixes Sinclair, Appellant
3, Mitsuru Kurosaka, Appellant
4. Anthony Dadvar, Applicane
5, Philip Lovell
6. Alvin Rutledge
' This was fiie procedural ordinauce iii effect at the bind that the City issued file encroachment permit. Tile City
repealed the ordinance effective June 12, 2009 (Ord. 3736).
:'Mn Da'cl'd& is referred to as the Applicalit it this decisim, altboligL tho encroaclunent peruit application was
aohla)ly filed by his wife, IdaydGh ,5h,,arifi, &,hibil A, Altaelment'4,
,I: 1-7 IT;- ,I,. -•_v_.-, - -...,- ..
Exhibits -
The following exhibits were admitted into the record:
A. Staff Report dated September 22, 2009, with the following attachments:
I . Appeal filed Juice 11, 2009, with adjacent property owners list
2. Zoning and Vicinity Map
3. Letters to Antliony Dadvar from JoAnne Zulauf dated October 8, 2008 and
September 15, 2008
4. Encroachment Permit Application tiled January 15, 2009; Certificate of Liability
Insurance; Encroachment Permit No. ENC20090017 issued May 28, 2009; and
Encroachment Agreement recorded April 9, 2009, with attached Exhibit A(l.egal
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 Kura saka dated January
20, 2009 and February 2, 2009
11. Notice of Appeal and Hearing Exwiiiner Hearing dated September 16, 2009
12. 300 -foot Adjacent Property Owner List
13. Notice of Hearing Affadavit 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 Searing
C. Appellants' t -Tearing Materials dated October 1, 2009 (I5 pages total)
D. Applicant's Hearing Materials
D-1. Four photos relating to waterlines (with Applicant's notes), letter from Sean
Russell to Rod Dembowsld 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 tip 172"� 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 tdm ling 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 hely on them when making this decision.
Amended Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclair/Kur•osakaAppeal, 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
The Applicant resides at 7527 172°d Street SW, a parcel located on the north side of 172°1
Street SW at its west terminus. His neighbor, Appellant 1vlitsuru Kluosalca, .resides at
7529 172"" Street SW, a parcel located immediately to the north. Nh-. Kurosaka does not
have direct access to 172n4 Street SW or any other public street, access to his property is
from a 20 -foot -wide casement that runs along the east side of the Applicant's parcel.
Exhibit A, Attachments I and 12; Exhibit C, page 6 (aerial photograph); Exhibit D-2,
page 1.
2. The City vacated most (but not all) of the 172❑d 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 casement. With respect to the portion of the right-of-way that was ,acated,
the City has retained a utility easement. Exhibit th, page 2 and Attachinents 7 and 8;
Exhibit -D-2, page 1.
West of 74th Avenue West, the 1721 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 701
Avenue West towards the Applicant's Marcel), marrow, 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 tine gate. Pursuant to ECDC 18.70.000(A), "an
encroachment peanut is required to encroach upon any portion of city public space, right-
of-way
ightofway or easement area with permanent structures." ECDC 18.70.000; Exhibit A,
Attachment 3.
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
Sinc1air1KurosakaAppea1, No. AP.L20090001
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(B).a 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 172'd Street SW. There is no vehicular
access to Ms. Sinclair's parcel from 172rd Street SW. Access to her parcel is from
Braernar 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 I 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, d, and IQ
'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).
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 Fxhibit D-4, page 1.
Amended Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Sinclaii/KurosakaAppeal, No. APL2009000I
page 4of9
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. used
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(13)(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 maintai a during the terna
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 I& 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 172"4 Street SW to exit the site. During this past summer, the Appellants
observed three different vehicles (one "standard work Muck" 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 7e- 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 172i4 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 flan Map); Exhibit D-2.
14. 'lire 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 tura around on his
property. Testimony ofMr. 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 iey 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 lire engine cannot turn around in front of the subject property. Exhibit A, Attachmentl5.
19. City Fire Department staff drove an aid car dawn 172nd 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,
Attachments 9, 10, and 15. The Appellants presented credible evidence that the turn
around location was not in front of the gate but in Mx. Dadvar's private driveway located
to the north of his garage, which is adjacent to Mr. Kurosaka's south property linea
Exhibit C; Exhibit A, Attachment 10,
The Hearing Fxaminer 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 gram iner
SinclairiKurosakaAppeal, No. AF120090001
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 our 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 strect 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
9.12 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
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&dmonds Hearing Examiner
Sinclafr/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 (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 requitement 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
ight-ofway 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 pian 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 determ nod that adequate compensation had been paid per ECDC
18.70.030(B)(1)(D) without the measurements. Findings 8, 9, and 10.
DECISION
Based on the preceding Findings and Conclusions, the appeal of encroachment permit no,
EN020090017 is GRANTER.
DECIDED this 9th day of November 2009.
Toweill Rica Taylor LLC, City of Edmonds Hearing Examiners
By. ilk«�--- • �L�-�
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
SinclairfKur•osakra,4ppeal, 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 a peal should consult the relevant ordinances andlor contact the Planivn Division of tho
Development Services Department for further procedural infoiniation.
REQUEST FOR RECONSIODERATION
Section 20.06.010 of the Edmonds Community Development Code (ECDC) contains the
procedures for requesting reconsiderations of a Hearing Examiner decision. Requests for
reconsideration must be filed with the City Planning Director within 10 calendar days of the
Tearing Examiner's decision. The fling 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 Comity Superior Court in accordauce with
the Land Use Petition Act (RCW 36.700). Appeals must be tiled within 21 days of decision
issuance. Tiling a rcgiiest 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 counciI." 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 fling 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 fled 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 ofEdinonds Hearing Examiner
Sinclair&vrosakaAppeal, No, APL20090001 page 9 of