2024-04-25 Hearing Examiner MinutesI
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CITY OF EDMONDS
121 51" 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: Lawrence and Chele
Warinner-Kent
Setback Variance
PLN2024-0008
FINDINGS OF FACT, CONCLUSIONS
OF LAW AND FINAL DECISION
OVERVIEW
Alan Lawrence and Chele Warinner-Kent request approval of a variance to reduce the
ten -foot side yard setback of an existing residence to 0-feet to enable the construction
of an addition over an existing deck and garage of an existing single-family home
located at 1217 - IIth Place North. The variance is denied due to property value
impacts on a nearby home.
The City's variance standards only authorize approval if there is no injury to property
or the environment. There is a reasonable likelihood of a material reduction in property
values of at least one home with approval of the variance. This is an extremely close
case. It is only decided against Mr. Lawrence because of the high -end built
environment of the City of Edmonds with its high property values, multi -million dollar
views, quality construction and strict design standards. In such a context, property
values are particularly dependent upon minimal changes to zoning and development
standards, whether it be legislative or in the variance or reasonable use process. For
these reasons, given the sensitivity of the Edmonds' built environment, variance and
reasonable use applications have generally only been approved when necessary to
accommodate private property rights and/or it's clear that no harm to the environment
Variance
P. 1 Findings, Conclusions and Decision
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and other properties will occur. See, e.g. Final Examiner Decision PLN20130044
(reasonable use request to build single-family home on vacant lot denied because
overhang of second story living space exceeded footprint of first story garage)'.
As aptly put by an affected neighbor, Christine Foster, Mr. Lawrence's request for a
variance was aimed at increasing his property value at the expense of her property
value. The evidence suggests a material reduction in Ms. Foster's property value would
be caused by approval of the variance. Ms. Foster testified that she recently purchased
her home for 2.8 million dollars. Her companion, Mr. Overstreet, testified that the
aesthetic impact of the variance approval would reduce her property value by $400,000.
The proposed variance would extend the roofline of Mr. Lawrence's home by about
20%. It would actually not block a view of Puget Sound but the view of trees already
blocking views of Puget Sound. Mr. Overstreet did not testify as having any expertise
in property valuation. It is difficult to believe that the proposed modest increase in
roofline would result in such a high property value impact. However, given the
proximity of the Lawrence home to the Foster home as shown in the Exhibit 2
photographs and the high value of Ms. Foster's home, an impact of at least $100,000
is not beyond reason. More important, the property value impact presented by Ms.
Foster and Mr. Overstreet is uncontested by Mr. Lawrence. There is no evidence to the
contrary of Mr. Overstreet's $400,000 estimate. There is no basis to conclude,
therefore, that the property will not be injurious to other properties as required by the
City's variance criteria.
In the absence of compliance with all variance criteria, a variance cannot be approved.
The inquiry stops there — in this case due to impacts to the Foster property. However,
what makes this case particularly difficult is that no direct public policy is served by
the denial. One of the purposes of setback standards is to allow for the passage of light
and air, which in turn helps to preserve views of surrounding residences. In this regard,
property owners such as Ms. Foster can be reasonably expected to rely upon adherence
to setback standards to maintain the views they purchased for their homes. However,
the setback standard generally applicable to the Lawrence and Foster properties is only
ten feet. Mr. Lawrence is subject to a forty -foot setback because the zoning code
requires side yard setbacks to be set back from any easement intervening between a
side yard property line and residence. Mr. Lawrence's property has a thirty-foot
easement along his side yard property line and his home is required to be set back an
additional ten feet from that easement. In this regard it is fair to conclude that the
purpose of the expanded Lawrence 40-foot setback is not to provide for passage of light
and air, but rather to provide separation from vehicle travel on the easement. That
purpose is not served here because the proposed addition is on a second story. In short,
1 It is recognized that the deck and garage for the underlying structure of the proposed second story
addition was approved for the same variance in Case No. V 99-76. See Ex. 1, att. F. However in that
proceeding no evidence was presented establishing or even alleging adverse impacts. The Examiner
expressly concluded in that application that there would be no impact to property values, a finding that
cannot be made in this proceeding. Further, the addition proposed in that proceeding was for one story,
which would have much less impact on views than a two story addition.
Variance p. 2 Findings, Conclusions and Decision
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Ms. Foster is relying upon a setback designed to allow for safe and efficient vehicular
passage to protect her views in circumstances where the setback isn't even necessary
for safe and efficient travel.
Although Ms. Foster is seeking to benefit from application of a zoning standard that
was not designed to protect her interests, the broader policy consideration of stable
development standards is still at play. Ms. Foster likely was not prescient enough to
know at the time of her purchase that Mr. Lawrence was not allowed to build upon his
deck and garage structure. For all Ms. Foster knew, there was no easement and Mr.
Lawrence would have had the right to construct his proposed addition with no variance
approval necessary. Mr. Lawrence could still negotiate a ten -foot reduction in the
easement width on his property and eliminate the need for the variance. However, in
the broader context maintaining a hard and fast precedent for strict application of City
variance standards is still in the community's best interests. Edmonds has maintained
its high standard of development by strict development standards. Its exceptions should
be applied in the same manner.
TESTIMONY
A computer -generated transcript of the hearing has been prepared to provide an
overview of the hearing testimony. The transcript is provided for informational
purposes only as Appendix A. No assurances are made as to accuracy of the transcript.
Those needing an accurate transcription will have to purchase a copy of the recording
for the City.
EXHIBITS
The nine attachments identified in Page 2 of the April 18, 2024 staff report along with
the staff report itself were admitted into the record during the April 25, 2024 hearing as
Exhibit 1. A set of four photographs presented by Christine Foster was admitted as
Exhibit 2 during the hearing.
FINDINGS OF FACT
Procedural:
1. Applicant. Alan Lawrence and Chele Warinner-Kent, 1217 — I Ith Place N,
Edmonds, WA 98020.
2. Hearing. A hearing on the subject application was held on April 25, 2024
at 3:00 pm at the City of Edmonds Council Chambers, 250 — 5th Avenue North,
Edmonds, WA 98020.
Variance p. 3 Findings, Conclusions and Decision
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Substantive:
3. Site and Proposal Description. Alan Lawrence and Chele Warinner-Kent request
approval of a variance to reduce the ten -foot side yard setback of an existing residence
to 0-feet to enable the construction of an addition over an existing deck and garage of
an existing single-family home located at 1217 - 11 th Place North.
The Applicants specifically request a variance to ECDC 16.20.030, which imposes a
ten -foot side yard setback in the applicable RS-12 zone. 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. The Applicants' lot contains a thirty-foot easement along
the side yard subject to the variance request. The Applicants have not contested in this
proceeding the staff s interpretation that the required side yard must be measured ten
feet from the edge of the easement, resulting in a forty -foot setback from the side
property line. The Applicants request that the ten -foot setback from the thirty-foot
easement be reduced to zero feet, which results in the proposed structure still being 30
feet (the width of the easement) from the side property line.
The subject site was annexed into the City in 1956 and the single-family residence was
built in 1957. Edmonds adopted its first zoning ordinance in 1959, which established
side setbacks of 10 feet for the RS-12 zone.
4. Characteristics of the Area. As far as can be discerned from an aerial photograph
of the project site, Ex. 1, att. 5, the project site is surrounded by single-family residences
with views of Puget Sound located to the west.
5. Adverse Impacts of Proposed Use. 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. This finding is based upon the
factors identified in the Overview section of this decision.
Concerns in written comment were also raised about stormwater and steep slope
impacts. See Ex. 1, Att. 8 and 9. As identified in the staff report, stormwater impacts
are fully addressed by the City's detailed stormwater standards, which will likely result
in reduced stormwater impacts over existing conditions. As to steep slopes, the City
has adopted steep slope regulations designed to mitigate against steep slope hazards.
The regulations do not require any measures to be taken to protect the slopes of the
project site for the subject proposal and nothing in the record suggests that measures
beyond those required by the steep slope regulations are necessary.
6. Necessity of Variances. The variance is arguably necessary because of the unique
circumstances of the project site. The Applicants are required to essentially conform
to a 40-foot variance instead of the more generally applicable 10-foot variance because
of the presence of an access easement. The only alternative for additional living space
is to build into a steep slope, potentially triggering steep slope regulations and adding
Variance p. 4 Findings, Conclusions and Decision
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to the impervious surface of the project site. Staff testified at hearing that due to the
relatively old age of the subject home it is smaller than most surrounding home. In
short, the variance is necessary to reasonably accommodate a reasonably sized home.
Procedural:
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CONCLUSIONS OF LAW
1. Authority of Hearing Examiner. Variance applications are classified as Type III-B
decisions. ECDC 20.01.003B provides that the hearing examiner holds a hearing and
issues a final decision on Type III-B decisions.
Substantive:
Zoning Designations. The project is zoned RS-12.
3. Permit Review Criteria/Design Review Approval. Variance criteria are
governed by ECDC 20.85.010. All applicable criteria are quoted in italics below and
applied through corresponding conclusions of law.
ECDC 20.85.010: No variance may be approved unless all of the findings in this section
can be made.
ECDC 20.85.010.A(1) — Special Circumstances: That, because of special
circumstances relating to the property, the strict enforcement of the zoning ordinance
would deprive the owner of use rights and privileges permitted to other properties in
the vicinity with the same zoning.
a. Special circumstances include the size, shape, topography, location or
surroundings of the property, public necessity as of public structures and
uses as set forth in ECDC 17.00.030 and environmental factors such as
vegetation, streams, ponds and wildlife habitats.
b. Special circumstances should not be predicated upon any factor personal to
the owner such as age or disability, extra expense which may be necessary
to comply with the zoning ordinance, the ability to secure a scenic view, the
ability to make more profitable use of the property, nor any factor resulting
from the action of the owner or any past owner of the same property;
4. The criterion is arguably met. The proposed improvements arguably must be
placed at the proposed locations for the reasons identified in Finding of Fact No. 6.
ECDC 20.85.010(B) — Special Privilege: That the approval of the variance would not
be a grant of special privilege to the property in comparison with the limitations upon
other properties in the vicinity with the same zoning;
5. The criterion is met. The Applicants request the variance to increase livable
space commensurate to that of surrounding homes.
Variance p. 5 Findings, Conclusions and Decision
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ECDC 20.85.010(C) — Comprehensive Plan: That the approval of the variance will
be consistent with the comprehensive plan;
6. The criterion may not be met. Policies such a Residential A3 seek to
"[m]inimize encroachment on view of existing homes by new construction." As noted
in Finding of Fact No. 5, the view impairment at issue is of trees as opposed to Puget
Sound itself. It is debatable whether blocking a view of some trees would constitute
view obstruction as contemplated in Al. An over -generalization on this issue could set
a precedent difficult to manage. Ms. Fosters objection on extending the subject roofline
and its impact on property values appears to be based at least in part on the aesthetics
of the roofline2 as opposed to the loss of any vantage point to natural features, such as
water or mountain views. The issue of whether the proposal materially impairs views
as discouraged by the comprehensive plan is left to another day since this variance
already cannot be approved because of its impact to property values.
ECDC 20.85.010(D) — Zoning Ordinance: That the approval of the variance will be
consistent with the purposes of the zoning ordinance and the zone district in which the
property is located;
7. The criterion is met. The proposed variance would still result in
construction that exceeds the general ten -foot side yard variance applicable in the RS-
12 zone. Given that the first floor of the addition area has already been approved and
constructed, the proposal would not undermine the vehicular safety and efficiency
concerns that likely underlie the requirement to add easement area to the ten -foot
setback requirement.
ECDC 20.85.010(E) — Not Detrimental: That the variance as approved or
conditionally approved will not be significantly detrimental to the public health, safety
and welfare or injurious to the property or improvements in the vicinity and same zone;
8. The criterion is not met due to impacts to the Foster property as outlined in
Finding of Fact No. 5.
ECDC 20.85.010(F) — Minimum Variance: That the approved variance is the
minimum necessary to allow the owner the rights enjoyed by other properties in the
vicinity with the same zoning.
9. The criterion is met for the reasons identified in Finding of Fact No. 6.
DECISION
2 Ms. Foster testified she found the roof objectionable and her companion characterized it as a "tractor."
Variance p. 6 Findings, Conclusions and Decision
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The variance is denied due to property value impacts to the Foster property as
outlined in Finding of Fact No. 5.
Dated this 9th day of May 2024.
Plu T A.Olbrochts
City of Edmonds Hearing Examiner
Appeal Right and Valuation Notices
This land use decision is final and subject to appeal to superior court as governed by
the Land Use Petition Act, Chapter 36.70C RCW.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Variance
p. 7 Findings, Conclusions and Decision