PLN2024-0008 Hearing Examiner reconsideration request deniedI
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CITY OF EDMONDS
121 51h Avenue North, Edmonds WA 98020
Phone: 425.771.0220 • Fax: 425.771.0221 • Web: www.edmondswa.gov
DEVELOPMENT SERVICES DEPARTMENT • PLANNING DIVISION
BEFORE THE HEARING EXAMINER FOR THE CITY
OF EDMONDS
Phil Olbrechts, Hearing Examiner
RE: Alan Lawrence and Chele
Warinner-Kent
Setback Variance
PLN2024-0008
DECISION UPON RECONSIDERATION
The Lawrence/Warinner-Kent request for reconsideration and approval of their
variance is denied. Lawrence/Warinner-Kent have not established that their variance
will not be injurious to the property in the vicinity. The basis of this decision as
summarized in the May 9, 2024 decision has not changed as a result of the
reconsideration process. The May 9, 2024 introduction should be read before reading
this Decision Upon Reconsideration.
The Lawrence/Warinner-Kent application for a variance was denied by Examiner
decision dated May 9, 2024. Lawrence/Warinner-Kent requested reconsideration of
the decision by a filing from their attorney dated May 20, 2024. Reid Shockey, a
planner, filed a response on behalf of Christine Foster dated May 23, 2024. Ms. Foster,
an attorney, also filed a response to the Lawrence/Warinner-Kent request addressing
their legal arguments on her own behalf on May 30, 2024. The Lawrence/Warinner-
Kent attorney filed a reply on June 3, 2024. All afore -mentioned documents are
admitted into the record for consideration, excluding a comment in the Reid Shockey
letter that a Foster witness, Jim Overstreet, is a licensed real estate agent. No new
evidence is permitted in the reconsideration review process.
Variance
P. 1 Findings, Conclusions and Decision
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As Applicants, Lawrence/Warinner-Kent had the responsibility to establish that their
variance proposal will not be injurious to property in the vicinity as required by ECDC
20.85.010(E). As addressed in the May 9, 2024 variance decision, Jim Overstreet
testified that the added view encroachment created by the proposed roof extension
would reduce Ms. Foster's property value by $400,000. The May 9, 2024 decision
did not find such a large reduction in property value credible. However, the proposed
20% extension of the Lawrence/Warinner-Kent roofline would materially alter the
view of the natural environment from the Foster as shown in the photographs
submitted by Ms. Foster, Ex. 2. Ms. Foster testified that she recently purchased her
home for $2.8 million. While a $400,000 reduction in property value is not plausible,
a reduction in the tens of thousands of dollars or more is plausible when materially
affecting the view of a $2.8 million dollar view property. In this regard, such an
impact is reasonably construed as injurious to property in the vicinity.
Lawrence/Warinner-Kent argue in their reconsideration briefing that the City staff's
conclusion that the proposal is not injurious to other properties constitutes sufficient
evidence to establish no such impact. It is recognized that staff have expertise in
planning issues associated with the proposed development. However, staff made no
indication that they had considered the impact to Ms. Foster's property values. Ms.
Foster had written a letter addressed in the staff report that the proposal would impact
her view, but the letter did not assert a reduction in property value. See Ex. lh. There
is also no indication that staff has any more expertise in assessing impacts to property
values than Mr. Overstreet.
It also appears that staff's position on the ECDC 20.85.010(E) injury to property
criterion was based upon the erroneous premise that view impacts are not an injury
protected by ECDC 20.85.010(E). In responding to Ms. Foster's comment letter, the
staff report notes that "[n]othing in the Edmonds Community Development Code
requires existing views to be maintained." To the extent that this position extends to
view encroachments that reduce property values, that position is not found to be
correct. As noted in the May 9, 2024 final decision, the City's high quality built
environment is dependent upon a of strict application of variance and reasonable use
criteria. The priority placed upon strict application of building standards to protect
views and the aesthetic landscape is reflected in the City's comprehensive plan, which
provides as follows:
Residential Goal A. High quality residential development which is
appropriate to the diverse lifestyle of Edmonds residents should be
maintained and promoted. The options available to the City to influence the
quality of housing for all citizens should be approached realistically in
balancing economic, social, aesthetic and environmental considerations...
Variance
A.5 Protect residential areas from incompatible land uses through the
careful control of other types of development and expansion based upon the
following principles:
p. 2 Findings, Conclusions and Decision
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A.S.c Stable property values must not be threatened by view, traffic
or land use encroachments.
In their reply briefing the Applicants identify that Edmonds view ordinances are based
on views of Puget Sound and the Olympic Mountains. An argument could be made
that tree views are not the types of views that should be protected under the variance
criteria. Protecting such views in all types of development applications could be
highly disruptive of development since most construction would likely have some
impacts on views of the natural environment. The May 9, 2024 decision recognizes
that the view at stake is of trees framing Puget Sound as opposed to views of the waters
itself. However, the implications of protecting views in the variance process are not
as burdensome as they may initially appear. This decision only protects views under
the ECDC 20.85.010(E) criterion prohibiting injury to other properties. ECDC
20.85.010(E) serves to protect property owners from being adversely affected by
others who seek to bend the zoning rules to their advantage. That is a limited
circumstance that from a policy level is a fair balancing of competing interests.
Persons who purchase expensive property next to a vacant lot have no fair claim to
surprise or protection of their views of trees if the vacant lot is subsequently developed
to applicable zoning standards. Persons in a built environment such as Ms. Foster
should be able to rely upon zoning setback standards to protect their views, even if the
setback standard is applied in an unusual fashion due to unique circumstances such as
the Applicants' easement encroachment. The "stable property values" encouraged by
Comprehensive Plan Policy A.5.c is dependent upon supporting that reasonable
expectation.
The Applicants contended in their reconsideration briefing that Ms. Foster's issues
have no bearing on the variance request because she would have no standing to file a
judicial appeal. Assessing the judicial standing of Ms. Foster is beyond the
jurisdiction of the Examiner. Even if Ms. Foster didn't have standing to file a judicial
appeal, it doesn't appear this would lead to the exclusion of the evidence she presented
during this proceeding. Lack of standing also likely wouldn't reduce the Applicants'
responsibility to ensure that their property does not injury Ms. Foster's property under
the variance criteria.
Although Ms. Foster's judicial standing is beyond the examiner's jurisdiction, the
principles of standing can serve as a guide in assessing whether the injury to property
variance criterion includes the view impacts to Ms. Foster. The Applicants'
reconsideration briefing notes that standing to bring a judicial appeal requires that the
person's interests be covered by the "zone of interests" addressed in the land use
regulations at issue. For judicial land use appeals, this zone of interest test is framed
as "[tjhat person 's asserted interests are among those that the local jurisdiction was
required to consider when it made the land use decision." RCW 36.70C.060(2)(b).
RCW 36.70C.060(2)(a) also requires that the person seeking judicial relief must be
prejudiced or likely be prejudiced by the land use decision.
Variance
p. 3 Findings, Conclusions and Decision
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In this case Ms. Foster meets both standing requirements outlined above. As noted in
the May 9 decision, the purpose of the setback as applied to the Applicants is likely
not to protect the views of Ms. Foster. However, the purpose of the variance process
is to protect Ms. Foster from damage to her property caused by approval of the setback
variance. ECDC 20.85.010(E) prohibits approval of a variance from being injurious
to properties in the same zone. As previously noted, if Ms. Foster's property suffers
a reduction in value due to approval of the subject variance, her property has been
injured as contemplated in ECDC 20.85.010(E). Further, Ms. Foster was given a right
to be heard in the Applicants' variance hearing on the issue of injury to her property.
The City's development standards gave Ms. Foster both the right to have her property
protected from damage by the variance and the right to be heard on that issue. Those
parameters set up a well-defined zone of interests that includes those of Ms. Foster.
Ms. Foster's reduction in property value also meets the other standing requirement,
that Ms. Foster be prejudiced by approval of the variance.
In general, staff's finding that the proposal isn't injurious to other properties is
understandable given that views of trees would not serve as the basis for denial or even
any significant mitigation in applications such as conditional use permits, subdivision
approval or shoreline permits. View impacts for those types of permits are
appropriately discounted under the Comp Plan Residential Goal A requirement that
such impacts should be considered in the context of "balancing economic, social,
aesthetic and environmental considerations." New development and its associated
economic benefit could not reasonably occur if surrounding neighbors could stop
construction to protect their views of trees. However, an important countervailing
consideration in communities such as Edmonds is that maintaining its high property
values is dependent upon maintaining a stable and predictable set of development
standards. Denying variances in the limited circumstance where someone seeks to
improve their property to the detriment of others serves as an appropriate and effective
balancing of economic development and reasonable use of land verses providing
stability for property values.
Holding variance applicants to strict application of the no injury criterion also doesn't
create an unreasonably difficult variance review process. In their reconsideration
briefing the Applicants asserted that they were "blind -sided" at the variance hearing
with Ms. Foster's property value argument. Ms. Foster's written comment did identify
the view impacts to her property, but it is acknowledged that her comment didn't assert
any reduction in property value. The Applicants were free to request that the record
be left open to give them the opportunity to present evidence on property value
impacts, but they did not do so. The Examiner also offered to re -open the hearing for
evidence on property value impacts upon agreement' of the parties. The Applicants
1 Re -opening the hearing requires agreement of the parties because of the one hearing rule of the
Regulatory Reform Act, Chapter 36.70B RCW. RCW 36.70B.050 requires cities and counties to adopt
permit review processes that provide for no more than one open record hearing. Given this objective,
City permitting procedures should be construed as not authorizing a re -opening of a hearing except under
Variance p. 4 Findings, Conclusions and Decision
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declined to agree. Variance applicants faced with plausible value reduction arguments
such as that presented by Ms. Foster will have the burden of establishing no property
value impacts via the testimony and/or reports of appraisers or similarly qualified
individuals. That certainly is a non -negligible expense added to the variance review
process, but also appropriate given the potential value loss to surrounding property
owners.
Overall, this is a difficult case to resolve because of the sparse evidence presented on
either side on property value impacts. The determinative principle in this as in all
permit hearings is that the record must establish conformance to all permitting criteria
for permit approval. Ms. Foster presented a plausible argument that the project could
adversely affect her property values. The Applicants argue that the May 9 decision
inappropriately relies upon a "bare assertion" made by Ms. Foster's team that her
property values would be affected. However, the Applicants' position is undermined
by the fact that they are countering Ms. Foster's "bare assertion" with their own "bare
assertion" that her property values won't be affected'. The Applicants are the ones
who have the burden of proof — they are the ones who have the responsibility to
generate an administrative record that establishes that the approval of the variance
won't be injurious to Ms. Foster's property. Ms. Foster made the plausible argument
that materially obstructing her view of trees framing her water view could materially
reduce the value of her 2.8-million-dollar view property. Upon establishing a
reasonable potential of such damage, the Applicants had the responsibility of
presenting evidence that such an impact was unlikely. They did not do so. For that
reason, the variance cannot be approved.
the limited circumstances contemplated by Chapter 36.70B RCW. The purpose of this requirement is
to reduce the burden of permit review upon applicants and to reduce public confusion over when to
participate as outlined in RCW 36.70B.010. Re -opening a public hearing arguably violates the one -
hearing rule. This is because re -opening a hearing is largely indistinguishable from the prior practice of
cities and counties to hold one hearing after another to gather more information at the expense of the
applicant and confusion to the public.
2 In similar fashion the Applicants argue in their reply brief that "[ijf brought to Superior Court, the
Lawrences would certainly be able to demonstrate that Ms. Foster's assertions are not supported by
evidence that is substantial when viewed in light of the whole record. See RCW 36.70C.130(1)(c)."
That's a misstatement of the variance criterion. ECDC 20.85.010(E) requires the record to establish that
the variance "will not" be injurious to properties in the vicinity. In this regard, if brought to Superior
Court, Ms. Foster would certainly be able to demonstrate that the Applicants' assertion that approval of
their variance will not be injurious to Ms. Foster's property are not supported by evidence that is
substantial when viewed in light of the whole record.
Variance p. 5 Findings, Conclusions and Decision
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DECISION
The Applicants' request for reconsideration is denied and approval of their variance
application is denied.
Dated this 4th day of June 2024.
Phil A.Olbrechts
City of Edmonds Hearing Examiner
Appeal Right and Valuation Notices
This land use decision is subject to appeal to the Edmonds City Council under ECDC
20.01.003. Filing and content requirements for appeal to the City Council are governed
by ECDC 20.06.030. As noted in ECDC 20.06.030B, appeals must be filed within 14
days of issuance of this decision.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Variance
p. 6 Findings, Conclusions and Decision
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BEFORE THE HEARING EXAMINER FOR CITY OF EDMONDS
In re the Matter of an Appeal of the Hearing
Examiner Denial of a Setback Variance:
Alan Lawrence and Chelea Warinner Kent,
Applicants.
NO. PLN2024-0008
LAWRENCES' MOTION FOR
RECONSIDERATION
Alan Lawrence and Chelea Warinner Kent (collectively the "Lawrences") hereby
respectfully file this Motion for Reconsideration, by and through their undersigned attorneys,
regarding the Hearing Examiner's Findings of Fact, Conclusions of Law and Decision on
their setback variance request. This motion is filed pursuant to Edmonds Community
Development Code (ECDC) on the basis of error of law or fact and error of judgment. ECDC
20.06.140(A).
I. INTRODUCTION
The Lawrences were blindsided at the hearing by their neighbor, Ms. Foster, who put
on a show via her companion, Mr. Overstreet, portending a doom and gloom devaluation of
their property by hundreds of thousands of dollars as a result of Lawrences' variance request.
In truth, this assertion does not stand the test of time and is not a compelling argument. Ms.
Foster's arguments, while interesting enough to warrant a few moments of consideration, are
not substantiated in any respect and are based on flawed premises regarding the valuation of
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1 11 their property ode is concerned with objective, not subjective value. Moreover, Ms.
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Foster, as the Hearing Examiner acknowledges, is not a parry within the zone of interests that
are protected by this particular set of regulations, since the setback is dictated by a private
easement that might well disintegrate tomorrow. Hence, it cannot be that Ms. Foster's
property value is being diminished by variance from a regulation that does not protect it.
II. BACKGROUND
The Lawrences sought a variance from ECDC 16.20.030 in order to build an addition
to their home that would allow them to construct a bedroom and laundry area on that portion
of their property over an existing deck. As an aging couple, the Lawrences need all amenities
located on one floor, as stairs become difficult if not impossible to manage in older age. This
addition would allow them to age in place, rather than be forced to move based on the
housing layout.
ECDC 16.20.030 requires a ten -foot side yard setback for their zoning district.
However, the Lawrences' property has special considerations. ECDC 21.90.050 defines a
side setback to be the minimum distance required from a side lot line. ECDC 21.55.040
defines a lot line as any line enclosing lot area. ECDC 21.55.020 defines lot area to exclude
access easements. There is an access easement on the Lawrences' property, and hence, the
ten -foot setback is defined as beginning from the access easement. As noted by the Examiner
in his decision, the purpose of the access easement setback is "to allow for safe and efficient
vehicular passage." Findings, Conclusions and Decision, p.3.
Under the Code, no variance may be approved unless all findings support approval.
ECDC 20.85.010. Prior to the public hearing on the variance request, City Staff reviewed and
approved the proposal, determining it met all necessary findings under the Code. The
Planning Department recommended approval to the Hearing Examiner at the public hearing.
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At the public hearing, one of Lawrences' neighbors, Ms. Foster, presented a case
against the variance based entirely on the alleged devaluation of their property if the variance
were granted. Findings, Conclusions and Decision, p.2. The Hearing Examiner found that the
"proposed variance has a reasonable likelihood of reducing the property value of a single-
family home owned by Christine Foster located directly to the east of the project site."
Findings, Conclusions and Decision, p. 4. By all accounts, this appears to be the sole basis
for the Hearing Examiner's denial of the variance.
The Examiner denied the Lawrences setback variance request based on the variance
criteria governed by ECDC 20.85.010. The Examiner reviewed each Code provision for
compliance with the requisite standards, finding the variance request only failed to meet one
finding under ECDC 20.85.010(E), which states in full "[t]hat 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." ECDC
20.85.010(E). The key issues with the decision concern the problematic valuation of the
impact on property values, the Hearing Examiner's reliance on those values, and
consideration of evidence from a source that is outside the zone of protected interests.
III. ISSUES
A. Was the Hearing Examiner's reliance on an unsubstantiated property valuation over
the findings of City Staff an error of fact and error of judgment under ECDC
20.06.140(A)?
B. Was the Hearing Examiner's allowance of and reliance upon testimony from parties
outside the "zone of interest" an error of law or fact and error of judgment under
ECDC 20.06.140(A)?
C. Did the Hearing Examiner's statement concerning the rationale behind the rezone
proposal constitute an error of fact under ECDC 20.06.140(A)(2)?
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IV. LEGAL ARGUMENT
A. The Hearing Examiner made an error of fact and error of judgment pursuant to
ECDC 20.06.140(A) by relying on an unsubstantiated property valuation and
ignoring the findings of city staff.
At the public hearing, Ms. Foster's companion, Mr. Overstreet testified that
approving the variance request would reduce the value of the neighboring property by
"upwards of $400,000." Hearing Transcript, p. 6. This valuation is problematic for several
reasons. First, Mr. Overstreet has no noted expertise in property valuation and the Examiner
found this testimony "difficult to believe." Second, as noted by the Examiner, the proposed
construction would not block a view of Puget Sound but only a "view of trees already
blocking views of Puget Sound." Findings, Conclusions and Decision, p. 2. The Lawrences
find it hard to believe that blocking the view of a row of trees would lead to any loss in
property value, much less $400,000. There being no foundation laid to substantiate Mr.
Overstreet's claims, Lawrence might well have argued that the increase in value of the
Lawrence property would correspondingly raise the value of Ms. Foster's property —as we
all know, a rising tide raises all boats. However, the fact that Lawrences chose not to respond
with unsubstantiated speculation should not be held against them, as the Hearing Examiner
does by asserting that no evidence was submitted to rebuff Mr. Overstreet's claims. Indeed,
Lawrence was blind -sided by these wild claims, and could not possibly have prepared for
them. The proposed construction would preserve the valuable view of Puget Sound while
increasing the value of the Lawrences' property. However, there is zero credible testimony in
the record that an additional 20% of roofline will have any material effect on the value of the
Foster property, it is a "bare assertion," nothing more, and is insufficient to warrant a
preponderance of the evidence finding. See Harberd v. City of Kettle Falls, 120 Wn. App.
498, 508, 84 P.3d 1241 (2004) ("bare assertions that a genuine material issue exists will not
defeat a summary judgment motion in the absence of actual evidence"). While there is no
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1 11 summary judgment standard applicable here, it was an error of fact and of judgment for the
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Hearing Examiner to conclude that these bare assertions demonstrated a reasonable
likelihood of devaluing the Foster property.
The Foster property has an expansive view of the skyline and bay from end to end,
and yet, we are to believe that a small additional roofline, below that view corridor, is going
to materially change the value of the home, in a housing market that is driven by lack of
supply, not the choice of sunset views. With all due respect to Mr. Overstreet and Ms. Foster,
this is a straw man argument that does not stand the test of time. There is no expert evidence,
or even objective testimony, that the Foster property would not sell for as much, or more,
after construction of Lawrences' planned addition.
The Hearing Examiner inappropriately weighed the bare assertions of a non -expert,
interested party, as to the detrimental impacts of the variance under ECDC 20.85.010(E). The
Examiner notes in his decision that there is no evidence to the contrary of Mr. Overstreet's
valuation, but that assertion is not true. In their Report, City Staff determined that the
variance proposal met every finding required under Code, including detrimental impacts
under ECDC 20.85.010(E). City Staff are employed in part to professionally interpret and
review variance proposals and found there were no detrimental impacts to this proposal. This
finding is definitionally in opposition to Mr. Overstreet's self-serving property valuation. The
Examiner favoring an unsubstantiated claim of one interested parry over the meticulous
review of a team of professionals at the City is an inappropriate basis upon which to base the
decision, to conclude more likely than not that the bare assertion is true, just as it would be if
the Examiner based the decision on Lawrences' own wild accusations. Accordingly, the
Examiner's reliance on this property valuation in his decision was an error of fact and
judgment, and we respectfully request the Hearing Examiner reverse the decision and grant
the variance.
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B. The Examiner made an error of law or fact and error of judgment under ECDC
20.06.140(A) by allowing and relying on claims outside the "zone of interest" of
the subject regulation.
According to the City of Edmonds Hearing Examiner's mission, "[t]he purpose of a
public hearing is for interested people to provide the Hearing Examiner with information and
testimony on the subject for which the hearing was convened." Here, the subject of the
variance is whether the Lawrences should be allowed to receive a variance for the setback
standards designed to allow for "safe and efficient vehicular passage." Findings, Conclusions
and Decision, p.3. The driving factor of the setback is a private driveway easement, one
which Ms. Foster and Mr. Overstreet have no interest in and no right of access to. The fact
that the setback currently provides some benefit to the Foster property is happenstance, luck,
not any design or intent under zoning code. Consequently, they have no interest in and no
standing to challenge this variance request. Indeed, the Examiner noted in his decision that
"no direct public policy is served by the denial." Findings, Conclusions and Decision, p. 4.
This begs the question, why was the variance denied at all? The answer is clear, to placate
the unsubstantiated assertions of a neighbor who is, at best, a tangential, third -party
beneficiary of an unrelated restriction on Lawrences' property.
This is dispositive, since Ms. Foster cannot demonstrate that their concerns are within
the "zone of interests" that the City of Edmonds intended to protect when taking action to
create setbacks from private driveway easements. Sarepta Therapeutics, Inc. v. Health Care
Auth., 19 Wn. App. 2d 538, 550, 497 P.3d 454 (2021). The zone of interests test is one of the
three pillars of standing under the Administrative Procedure Act. See id. A party must
establish all three in order to sustain a challenge under the Administrative Procedure Act. Id.
If this case were to proceed to Superior Court under the Land Use Petition Act, Ms. Foster
would have to demonstrate standing under RCW 36.70C.060(2). Ms. Foster could never meet
these criteria, because the decision cannot prejudice them. "To satisfy the prejudice
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1 11 requirement, a petitioner must show that he would suffer injury in fact as a result of the land
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use decision." Thompson v. City of Mercer Island, 193 Wn. App. 653, 662, 375 P.3d 681
(2016), as amended on denial of reconsideration (May 4, 2016). "To show an injury in fact,
the petitioner must allege a `specific and perceptible' harm." Id. The key is that Ms. Foster
cannot be harmed by variance from a regulation that does not protect her, since, as the
Hearing Examiner noted, there would be no possible objection if the easement area was
reduced, something Ms. Foster has no control over.
Moreover, "[i]f the petitioner alleges a threatened rather than an existing injury, he
`must also show that the injury will be immediate, concrete and specific; a conjectural or
hypothetical injury will not confer standing." Id. Ms. Foster's assertions are just that, purely
conjectural and hypothetical. Thus, as noted above in the evidentiary context, Ms. Foster's
assertions are not enough to confer standing to challenge the variance.
Simply put, this setback regulation is not meant to protect Ms. Foster and Mr.
Overstreet, and the Lawrences are not asking for this variance at the expense of any
regulation they could have relied on when purchasing the property. The simple fact of
development is there are impacts, but when those impacts are not subject to protected rights,
parties opposing development do not have standing to challenge them. The mere fact that Ms.
Foster finds the roof objectionable is an insufficient basis upon which to challenge the
variance proposal. Accordingly, Ms. Foster and Mr. Overstreet's testimony is outside the
zone of interest, they are not prejudiced by the granting of the variance, and we respectfully
request the Hearing Examiner reverse the decision and grant the variance.
C. The Examiner made an error of fact under ECDC 20.06.140(A)(2) when
contemplating the reason for the rezone proposal.
The Examiner made an error of fact under ECDC 20.06.140(A)(2) when stating that
"Mr. Lawrence's request for a variance was aimed at increasing his property value at the
LA WRENCES'MOTIONFOR RECONSIDERATION —
PAGE 7 OF 9
JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC
ATTORNEYS AT LAW
1601 114" Ave. SE, Suite 110
Bellevue, Washington 98004
Tel: (425) 4512812 / Fax (425) 4512818
RECEIV�D
05/20/202
CITY OF EDMOVDS
PLANNING FlajfJ
DEVELOPMEll T
1 11 expense of [Ms. Foster's] property value." Findings, Conclusions and Decision, p. 2. As
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outlined above, the Lawrences' purpose for the variance is to allow the couple to age in place
in their current home they have occupied for ten years. The mischaracterization of the
Examiner that this was a purely economically motivated change was misleading and played
an outsized role in what the Examiner deemed "an extremely close case." Findings,
Conclusions and Decision, p. 2. The economic factors related to property values is the
primary reason the Examiner denied the variance proposal, and the Lawrences wish to clarify
that portion of the record.
V. REQUEST FOR RELIEF
Based on the foregoing and the evidence in the record, the Lawrences respectfully
request the Examiner reverse his decision and approve the variance proposal.
DATED this 20a' day of May, 2024.
JOHNS MONROE MITSUNAGA
KOLOUSKOVA, PLLC
By
LA WRENCES'MOTIONFOR RECONSIDERATION —
PAGE 8 OF 9
Dean Williams, WSBA #52901
Peter Durland, WSBA 461486
Attorneys for Alan Lawrence and Chelea
Warinner Kent
JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC
ATTORNEYS AT LAW
1601 114" Ave. SE, Suite 110
Bellevue, Washington 98004
Tel: (425) 4512812 / Fax (425) 4512818
RECEIV
05/20/2024
CITY OF EDMOI
PLANNING E
DEVELOPMEf
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�D
[IDS
T
On information and belief, the contents of this request are true and accurate.
Dated this 20th day of May, 2024, in Edmonds, Washington.
Alan Lawrence
G�xe�ru hrari+csceifcercE
Chelea Wariner Kent
LA WRENCES'MOTIONFOR RECONSIDERATION —
PAGE 9 OF 9
JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC
ATTORNEYS AT LAW
1601 1141h Ave. SE, Suite 110
Bellevue, Washington 98004
Tel: (425) 4512812 / Fax (425) 4512818
2716 Colby Avenue
Land Use Everett, WA 98201
S H O C KEY Environmental Analysis
Permitting p: 425.258.9308 Celebrating service excellence since 1980!
PLANNING GROUP, Inc. Public Policy f 425.259.4448
www.shockeyplanning.com
May 23, 2024
Phil Olbrechts, Hearing Examiner
Development Services Department, Planning Division
121 5th Avenue North
Edmonds, WA 98020
RE: PLN2024-0008
`;`d NNOW43�1.11�
Alan Law I W-arinner-Kent
Opposition td R@qif §t f6ivReconsideration
Dear Mr. Examiner, Q AM B O A U
I've been asked to assist Christine Foster on the above -entitled matter. Ms. Foster resides on a property
adjacent to the Lawrence/Warinner-Kent property which is the subject of a variance request. My client
has opposed the granting of the variance and opposes a reconsideration of your decision to deny. Our
opinion is that your decision was complete, compelling, and consistent with EDC 20.85.010 which
requires that all the criteria for approval be met, specifically Finding E:
"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".
It should suffice that the most immediate neighbor has expressed opposition to the request. As with
most variance rules, the Code sets a high bar for approval to ensure that adjacent properties are not
made to suffer negative consequences because of the waiver of rules that are supposed to apply to all
properties in the same residential zone.
Variances are meant to mitigate harm to a property owner caused by typical development rules being
applied in unique situations. They are exceptions to the rules intended to protect properties and property
rights. Here the variance is to allow improvements (view enhancement and floor area expansion) to
the Lawrence/Warinner-Kent property. Other options exist for the owner. To grant this variance, which
is opposed by an affected neighbor, confers a special privilege on the applicant to the detriment of Ms.
Foster and in violation of the Findings criteria shown above.
It is our understanding that if you decline the request for reconsideration, an appeal of your variance
denial is to the City Council, to be heard at a closed record hearing. Eventually the appeal can be to
Superior Court. We are confident your decision to deny will survive any challenges.
I have reviewed the Motion for Reconsideration submitted by the Lawrence/Warriner-Kent's attorney
and find little substantive argument that would support reversing your decision to Deny the variance.
The Motion alleges various weaknesses in Ms. Foster's arguments but fails on specifics.
The Motion states that Ms. Foster's concern over devaluation of her property "fails the test of time".
I'm not sure exactly what this means, but if it is possible that approval of a variance would cause
negative value impacts because of view disruption, then Criteria "E" in EDC 20.85.010 is not met.
Phil Olbrechts, Hearing Examiner
RE: PLN2024-0008
May 23, 2024
Page 2
➢ There is a theme and a tone throughout the Motion that presumes that the burden of proof
to deny a variance lies with Ms. Foster or the City. In fact, the burden of showing that the
variance meets all of the Findings allowing approval lies with the Applicant.
➢ The Lawrences should have presented evidence showing that alternative improvements that
would allow them to "age in place" had been attempted unsuccessfully. Again, it is not
enough to waive a rule as a convenience. Variances require a showing that attempts to meet.
code had been made as a foundation for the argument that a variance must be granted.
➢ If the Lawrences bear the burden of proof, then they should have retained expert
representation to show that their proposed addition "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 ". Mr. Overstreet, while not a licensed appraiser, is a licensed real
estate professional and is qualified to give his opinion on the effect of variances on home
value. If not a $400,000 devaluation, a $50,000, $100,000 or some figure in between is
significant and violates Finding E.
➢ Part B of the Motion alleges that Ms. Foster lacks standing to oppose the variance. At this
point, I should note for the record that I am not an attorney. My comments cannot and
should not be viewed as legal opinion. I am, however, a city planner with 56 years of
experience in all matters related to land use and the law. I will not comment further on
Lawrence's arguments on standing except to say Ms. Foster obviously has it. That is a
matter to be proven in court.
In summary, the Lawrences characterize their affected neighbors as using "bare assertions"
instead of documented facts in their attempt to avoid the negative impacts of their home
expansion. Ms. Foster is simply a neighbor who purchased her home knowing what the zoning
required and being confident that the zoning rules would protect her investment over the long
term.
Finally, the Lawrences represent they were "blind -sided" by Ms. Foster'sappearance at the
public hearing. The City files will show and the City Staff should be able to confirm that Ms.
Foster had expressed her opposition in advance of the hearing.
Sincerely,
SHOCKEY PLANNING GROUP, INC.
I
Reid H. Shockey, AICP
Vice President
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BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
Phil Olbrechts, Hearing Examiner
In the matter of the Hearing Examiner's May
9, 2024 Denial of a Setback Variance NO. PLN2024-0008
Alan Lawrence and Chelea Warinner Kent, RESPONSE TO APPLICANT'S
MOTION FOR RECONSIDERATION
Applicants.
I. The Applicants Failed to Prove all Findings required by ECDC 20.85.010
Lawrence and Wannner-Kent (collectively Lawrences) applied for a variance on or
about February 2, 2024. On March 27, 2024, Foster purchased the property located directly
across the street from the Lawrence property. On or about April 5, 2024, a public notice was
posted in front of the Lawrence property notifying neighbors of the Lawrence variance
application and the comment period expiring April 17, 2023. Foster submitted her timely
comment which clearly indicated her opposition to the variance application. (Attachment 8 to
staff s analysis).
The public hearing was held on April 25, 2024. Foster and her fiance, Bruce Overstreet,
were present and gave testimony in keeping with Foster's written comment filed with the City
nearly two weeks earlier. For the Lawrences to represent they were blindsided by Foster's
attendance and presentation at the hearing and "could not possibly have prepared for them" is
RESPONSE TO APPLICANT'S MOTION FOR
RECONSIDERATION - 1
® FOSTER LAW Pc
8204 Green Lake Drive N.
Seattle, WA 98103
206 682-3436 • Fax 206 682-3362
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disingenuous at best. And, while the Lawrences describe the hearing as "a show", the hearing
was a very serious proceeding to Foster and the value of her property.
Pursuant to ECDC 20.85.010, no variance may be approved unless all findings support
approval. And, it is the applicant's responsibility to show that all of the criteria are satisfied.
However, in their Motion for Reconsideration the Lawrences disregard this mandate and assert
that Foster has the burden of definitively proving through expert testimony that her property
would be detrimentally impacted because her testimony was based on "bare assertions" and
provided "zero credible testimony". The reality, however, is that Foster and Overstreet presented
testimony from which the logical conclusion is that her property value would be damaged and
the Lawrences failed to rebut such testimony.
While Foster did not have a professional expert appraiser testify, common sense and
circumstantial evidence are compelling here. In their application relative to comprehensive plan,
the Lawrences write that their "proposed addition would allow [them] to increase the value and
usefulness of their current single-family home". As the hearing examiner correctly finds, the
Lawrences' addition would increase their property value to the detriment of Foster's property
value. It is common sense to conclude that increased square footage and enhanced view access
will increase the Lawrences' property value. It is further common sense that a significantly
increased unattractive roofline would be detrimental to the Foster property and limit her buyer
pool. Foster testified that she has refused to buy properties with prominent views of rooflines in
the past and would not have bought her current property had she known the roofline would be
expanded. This is compelling evidence of the impact an expanded roofline would have on her
buyer pool and decreased value. Views are value in Edmonds. And, as Overstreet further
testified, the Lawrence roofline as it currently exists draws your attention and frames the view
RESPONSE TO APPLICANT'S MOTION FOR
RECONSIDERATION - 2
® FOSTER LAW Pc
8204 Green Lake Drive N.
Seattle, WA 98103
206 682-3436 • Fax 206 682-3362
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the water. To argue that a 20% increase in the length of that roofline (conservatively estimated)
would not be detrimental to Foster's property value defies logic and common sense.
Another potential increase in value to the Lawrence property comes from the
representation in their variance application that their addition would be "furthering in their small
way the overall goals of the Edmonds Comprehensive Plan." In this regard, it appears the
Lawrences plan to use the addition as an ADU in the event zoning in Edmonds would
accommodate that in the future.
The hearing examiner did not err when finding the Lawrences' request for a variance was
aimed at increasing their property value. This was not a mischaracterization by the Examiner as
urged by Lawrence but rather a direct quote from the Lawrences' variance application that it
would increase their property value (Paragraph Q. Since this matter must be considered from the
closed record where no additional evidence is admissible, the Lawrences' newfound reason for
their variance that they want it to "age in place" is not admissible and also not credible in the
least. It is also significant to point out that special circumstances for a variance should not be
predicated upon any factor personal to the owner such as the ability to secure a scenic view or
the ability to make more profitable use of the property. ECDC 20.85.010(A)(2).
The Motion next asserts that the Examiner erred by ignoring the findings of the city staff.
However, the Hearing Examiner is not bound by the staff s recommendation — especially being
prepared before the public hearing. The staff and the Lawrences' architect concluded that the
proposed expansion will not impede views to the east owing to their elevated building pads.
However, the staff took photos of the Lawrence home from the street level. Its photos did not
show the roof at all and in no way considered the impact of an expanded roofline wall on the
value of the Foster property.
RESPONSE TO APPLICANT'S MOTION FOR
RECONSIDERATION - 3
® FOSTER LAW Pc
8204 Green Lake Drive N.
Seattle, WA 98103
206 682-3436 • Fax 206 682-3362
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The Lawrences next claim the examiner erred by considering any of Foster's testimony
because she is outside the "zone of interest". Essentially, they argue that Foster has no standing
and essentially no right to provide testimony against the variance because she does not live in the
setback or access the driveway. This is not an accurate representation of the law.
An aggrieved or adversely affected party has standing if he shows that the land use
decision has prejudiced him or is likely to. Thompson v. City of Mercer Island, 193 Wn. App
653, 662, 375 P.3d 681 (2016) citing, RCW 36.70C.060(2)(a). To satisfy the prejudice
requirement, the party must show that he would suffer injury in fact as a result of the land use
decision. Chelan County v. Nykreim, 146 Wn.2d 904, 934, 52 P.3d 1 (2002). While an injury in
fact must be specific and perceptible, this only means that a conjectural or hypothetical injury,
not specific to the party, will not confer standing. Suquamish Indian Tribe v. Kitsap County, 92
Wn. App. 816, 829, 965 P.2d 636 (1998).
The facts in the above -cited cases are instructive. In Suquamish, a predicted increase in
traffic was held sufficient to establish injury in fact. Id. at 831. In Nykreim, the petitioners lacked
standing because they cited no specific injury to themselves but instead alleged their sole interest
was to preserve zoning in their district. This was deemed too abstract to confer standing.
Nykreim 146 Wn.2d at 935. Likewise, Thompson did not have standing because again, he did not
allege any specific injury to himself or his property. His sole interest was trying to enforce
zoning protections in his neighborhood in general. Thompson, 193 Wn. App. at 663.
Foster clearly has standing as she has asserted the likelihood of prejudice specific to her
property. In any event, the Lawrences' argument that Foster lacks standing is not supported by
the fact that ECDC 20.85.010 requires variance applicants to prove all the criteria listed, which
includes proving the variance is not detrimental. Detrimental is defined to include injury to the
RESPONSE TO APPLICANT'S MOTION FOR
RECONSIDERATION - 4
® FOSTER LAW Pc
8204 Green Lake Drive N.
Seattle, WA 98103
206 682-3436 • Fax 206 682-3362
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property in the vicinity and same zone. Their argument is also inconsistent with the City
providing public notice at the Lawrence property, inviting public comments, and holding a
public hearing to address concerns with the variance application.
Based on the foregoing, Foster respectfully requests the Hearing Examiner deny the
Applicants' Motion for Reconsideration.
Respectfully submitted this 30th day of May, 2024.
FOSTER LAW P.C.
Christine A. Foster WSBA 18726
RESPONSE TO APPLICANT'S MOTION FOR
RECONSIDERATION - 5
® FOSTER LAW Pc
8204 Green Lake Drive N.
Seattle, WA 98103
206 682-3436 • Fax 206 682-3362
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RECEIVED
June 03,2024
CITY OF EDMONDS
PLANNING & DEVELOPMENT
DEPARTMENT
BEFORE THE HEARING EXAMINER FOR CITY OF EDMONDS
In re the Matter of an Appeal of the Hearing
Examiner Denial of a Setback Variance:
Alan Lawrence and Chelea Warinner Kent,
Applicants.
NO. PLN2024-0008
LAWRENCES' REPLY BRIEF IN
SUPPORT OF MOTION FOR
RECONSIDERATION
I. INTRODUCTION
Alan Lawrence and Chelea Warinner Kent (collectively the "Lawrences") hereby
respectfully file this Reply Brief in Support of their Motion for Reconsideration, by and
through their undersigned attorneys, regarding the Hearing Examiner's Findings of Fact,
Conclusions of Law and Decision on their setback variance request. Based on their initial
motion and the arguments contained herein, the Lawrences respectfully request the Examiner
reverse his decision and approve the variance proposal.
II. FACTS
Prior to the public hearing before the Hearing Examiner (the "Hearing"), the
Lawrences submitted a Variance Request Application (the "Application") for their property
located at 1217 11th Pl. N. Edmonds, WA 98020 on February 2, 2024. The City of Edmonds
Planning Division reviewed the Application, finding that the proposed variance met all six
findings required for a variance request under ECDC 20.85.010. Following her purchase of a
LA WRENCES' REPLYMOTIONFOR JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC
RECONSIDERATION — PAGE I OF 6 ATTORNEYS AT L A W
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Tel: (425) 4512812 / Fax (425) 4512818
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neighboring property on April 5, 2024, Ms. Foster reviewed the application and relayed her
concerns to the City regarding the "unsightly expansion of the roofline," and the allowance
for the variance on the "critical slope." Hearing Packet, attachment H. The Planning Division
examined her concerns and upheld its finding that the Application complied with all
necessary Code provisions. Thereafter, Ms. Foster attended the Hearing with her Fianc6,
testifying via unsubstantiated concerns regarding a drop in her property value of "upwards of
$400,000." Hearing Transcript, p. 6. Following the hearing, The Hearing Examiner denied
the Application, noting it only failed to meet one finding under ECDC 20.85.010.
III. ANALYSIS
1. The Lawrences definitively showed compliance with all required findings under
ECDC 20.85.010.
ECDC requires six findings to approve a rezone application. ECDC 20.85.010. The
Hearing Examiner found the Application only failed to comply with one finding under Code,
which states "[t]hat 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." ECDC 20.85.010(E). If approved, the
Hearing Examiner found, the Lawrences' Application had a reasonable likelihood of
reducing the value of Ms. Foster's property, and, based on Ms. Foster and her Fiances'
valuation, there is "no basis to conclude, therefore, that the property will not be injurious to
other properties." Findings, Conclusions and Decision, p. 2, 4. The Lawrences respectfully
disagree with this finding.
In their Application, the Lawrences point out that the based on the easement between
the property and the property to the north, the separation between the structures will be "at
least more than twice the minimum side setbacks for any other typical adjacent properties in
this same zone," finding further that the expansion of the existing building will not impede
LA WRENCES' REPLYMOTIONFOR JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC
RECONSIDERATION — PAGE 2 OF 6 ATTORNEYS AT L A W
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neighboring views based on the elevated building pads and the proposed addition will not
exceed the existing ridge height. Hearing Packet, p. 7. The Planning Division agreed with
these findings, stating in their Report and Recommendation to the Hearing Examiner (the
"Report") that the "encroachment into the north side setback would not be imposing due to
the additional 30-foot access easement," concluding that the variance appears to be consistent
with ECDC 20.85.010E. Hearing Packet, pp. 31-32. After reviewing Ms. Foster's response to
the Application, the Planning Division reiterated its support stating the height of the proposed
project is "5 feet less than the zoning maximum," and neither a Code provision nor a private
view easement prohibits the construction project. Hearing Packet, p. 32.
Simply put, the Lawrences demonstrated in the Application that the variance request
complied with all required findings, including ECDC 20.85.010(E). The Planning Division
reviewed that particular Code provision not once but twice, including after examining Ms.
Foster's concerns regarding the variance. According to the City's website, the Planning
Division is charged with the administration of "all City codes related to land use and zoning
processes and coordinates a wide range of land use permits and approvals." One key function
they serve is to assist the Hearing Examiner with decisions, including variance requests such
as the one at issue in this case. After extensive evaluation of the Lawrences Application,
Planning Division officials charged with the implementation and interpretation of land use
and zoning process determined that the Application met the standards necessary for approval
under Code. Accordingly, the Lawrences met their burden for rezone approval under Code.
2. The Planning Division's Report takes precedence over Ms. Foster's
unsubstantiated property evaluation.
As stated by Ms. Foster in her Response, she "did not have a professional expert
appraiser testify," instead relying on "common sense and circumstantial evidence." Foster
Response, p. 2. Her "common sense" evaluation concluded that a modest increase of an
LA WRENCES' REPLYMOTIONFOR JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC
RECONSIDERATION — PAGE 3 OF 6 ATTORNEYS AT L A W
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existing roofline that would not block views of either Puget Sound or the Olympic Mountains
would reduce her property value by $400,000, a figure that the Hearing Examiner found
"difficult to believe." Findings, Conclusions and Decision, p. 2. Edmonds view ordinances
are based on views of Puget Sound and the Olympic Mountains, evidencing common sense
that this is where the value of the views actually lies. If views of the near hillside were
economically determinative of housing value, surely they would be included in the extremely
common view ordinances found in the City of Edmonds. Ms. Foster later included valuations
of "$50,000, $100,000 or some figure in between" in a supplemental response. Her refusal in
the past to purchase properties with "prominent rooflines" is a matter of taste and has very
little bearing on the valuation of the house in this instance. In short, there is no basis upon
which her values are based, and "common sense" does not lend requisite support to her
assertions.
Ms. Foster's supplemental arguments, and comparison to other choices when buying
a home, demonstrates that there is no valid objective argument here that the value of Ms.
Foster's property will be materially impacted by this variance. Rather, Ms. Foster believes
that her personal experience from the deck of her home will be negatively impacted, which
has no bearing on the objective market forces that drive her property's value. The evidence
Ms. Foster submitted is, at best, objective proof that there will be some change to the view of
trees that already block her view of Puget Sound and the Olympic Mountains. The leap from
this evidence to the conclusion that the property value itself is likely to change, is based on
entirely subjective forces and depends on their personal knowledge of what existed
previously. If brought to Superior Court, the Lawrences would certainly be able to
demonstrate that Ms. Foster's assertions are not supported by evidence that is substantial
when viewed in light of the whole record. See RCW 36.70C.130(1)(c).
LA WRENCES' REPLYMOTIONFOR
RECONSIDERATION — PAGE 4 OF 6
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Bellevue, Washington 98004
Tel: (425) 4512812 / Fax (425) 4512818
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Since Ms. Foster believes common sense to be persuasive here, general tenets of
property evaluations show that location and surrounding property values are the biggest
indicators of how properties gain value. For example, the median sale price of houses in
Seattle is $877,000, the vast majority of which do not have valuable views. Instead, the
primary contributing factor is the surging property values of neighboring houses, driving all
prices up. As discussed, multiple times throughout the proceeding, the Lawrences proposed
construction would raise their property value by adding square footage to the house. This
increase would raise property values to surrounding properties, as sale prices tend to follow
the principle of a "rising tide lifts all boats." Because the proposed addition would not block
the valued portion of the view, common sense property valuation might actually find an
increase in value to Ms. Foster's property, not a decrease. At the very least, it would not be
significantly detrimental to her value, and the Planning Division Report supports this
conclusion, which is based on the assessment of City Staff whose job requirements
necessitate such determinations each day.
3. Ms. Foster lacks standing to challenge the variance request in this very specific
instance.
Ms. Foster relies on the protections of an easement setback that this Hearing
Examiner aptly points out "was not designed to protect her interests." Findings, Conclusions
and Decision, p. 3. Ms. Foster remains outside the "zone of interest" that the setback is
designed to protect, which include "safe and efficient vehicular passage." Findings,
Conclusions and Decision, p. 3. Ms. Foster's claims are the essence of mere speculation. An
"unattractive roofline" and unsubstantiated property valuation based on water and mountain
views that are not impacted are insufficient to meet the burden of demonstrating a specific
and perceptible harm. In challenging the variance, Ms. Foster is asserting third -party
beneficiary status in an easement setback that in no way concerns her property. Further, as
LA WRENCES' REPLYMOTIONFOR JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC
RECONSIDERATION — PAGE S OF 6 ATTORNEYS AT L A W
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noted in the Report, the "height of the project will be reviewed and verified as part of the
building permitting process." Hearing Packet, p. 32. The building permitting process is the
appropriate time to resolve Ms. Foster's concerns, during which she will have ample
opportunity to do so. However, Ms. Foster's challenge to the Lawrences' variance request for
a setback regulation unrelated to her interests is an inappropriate time to raise her concerns,
and, accordingly, she lacks standing to challenge the Application in this proceeding.
V. CONCLUSION
Based on the foregoing and the evidence in the record, the Lawrences respectfully
request the Examiner reverse his decision and approve the variance proposal.
DATED this 3rd day of June, 2024.
JOHNS MONROE MITSUNAGA, PLLC
By
Dean Williams, WSBA #52901
Peter Durland, WSBA 961486
Attorneys for Alan Lawrence and Chelea
Warinner Kent
LA WRENCES' REPLYMOTIONFOR JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC
RECONSIDERATION — PAGE 6 OF 6 ATTORNEYS AT L A W
1601 1141 Ave. SE, Suite 110
Bellevue, Washington 98004
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