PLN2023-0057 HE DecisionI
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CITY OF EDMONDS
121 5th 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: Abul and Shireen Azad FINDINGS OF FACT, CONCLUSIONS
OF LAW AND FINAL DECISION
Setback Variance
PLN2023-0057
OVERVIEW
Abul and Shireen Azad request approval of a variance to reduce the 25-foot street
setback to 0 feet for frontage on Birch Street and to reduce the 25-foot street setback to
8' 4" along 100th Ave W for existing illegally constructed encroachments for a single-
family home located at 1251 Birch Street. The variances are denied except that the
garage addition will be allowed to encroach into the street setback up to 15 feet from
the Birch Street front property line.
This variance decision does not affect the Applicants' ability to otherwise establish
conformance to zoning code standards. The Applicant can still establish that some or
all of the encroachments qualify as legal nonconforming uses pursuant to the standards
of Chapter 17.40 ECDC. The Applicant can also pursue the position they took at the
hearing that the shed is only subject to a five-foot setback. The five-foot setback
appears to only apply to accessory structures placed in the rear yard per ECDC
16.20.060C. However, if the Applicants can find another code provision that applies
the five foot setback to street setbacks that is something they can work out with staff.
At hearing the Applicants identified that the setback encroachments were necessary to
accommodate the disability of their daughter. The Examiner requested legal authority
Variance P. 1 Findings, Conclusions and Decision
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on how the City's variance process could be affected by the City's duty to provide
reasonable accommodation under the American with Disabilities Act (ADA) if the
Applicant thought this could prove useful for their case. The ADA issue was briefed
by both the Applicants and City. The City opposed consideration of ADA issues on
the basis that the City has a separate ADA accommodation process, Chapter 17.05
ECDC. That accommodation process authorizes the Community Development
Director to waive development standards as necessary to comply with the ADA.
The availability of the Chapter 17.05 accommodation process precludes consideration
of ADA issues in this variance review. The variance review criteria are not amenable
to ADA accommodation. In particular, ECDC 20.85.010A2 expressly provides that
disability doesn't qualify as special circumstances in support variance approval. In its
briefing the City has suggested that approval of the requested accommodation for
illegal encroachments would not be consistent with past City precedent. It's up to the
Applicants to determine if it would be worthwhile pursuing that separate process.
Ultimately, since such a separate process is available and disability doesn't serve as
grounds for approval under at least one of the variance criteria, ADA issues will not be
addressed in this review.
Another important issue to the Applicants was that they believe the City should have
notified them about the code compliance problems with the subject property before
they purchased it. That issue is not relevant to whether the proposed variances comply
with the variance criteria. The City was actively working with the prior property owner
to bring the subject property up to code shortly before the Applicants purchased it. The
City then advised the Applicant of the code compliance issues within days of their
purchase of the subject property. Cities sometimes do record on title final code
enforcement decisions such as final Notices of Violation. However, there is no
obligation to do this'. Recording on title is a liability risk if done incorrectly. Beyond
recording on title there is nothing the City could reasonably do to monitor pending
home sales of its 43,000 residents to apprise them of code compliance issues. The
Applicants have not identified how failure to record on title or provide other notice
excuses compliance with the variance criteria and none is evident from the record.
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.
' Failure to record arguably renders a final code enforcement decision inapplicable to subsequent
purchasers. At worst, this would mean that as to a new property owner the City would have to prove the
violations over again. Since each day an illegal structure remains unabated qualifies as a separate
violation, the City would not be precluded from bringing a second action against a new owner who didn't
receive notice of the prior violation.
Variance p. 2 Findings, Conclusions and Decision
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EXHIBITS
The fifteen attachments identified in Page 2-3 of the June 5, 2024 staff report along with
the staff report itself were admitted into the record during the July 25, 2024 hearing as
Exhibit 1. The staff PowerPoint presented at the July 25 hearing was admitted as Exhibit
2. A chronology of code compliance work prepared by the Applicant was admitted as
Exhibit 3.
FINDINGS OF FACT
Procedural:
Applicant. Abul and Shireen Azad, 1251 Birch Street Edmonds, WA 98020.
2. Hearing. A hybrid virtual/in-person hearing on the subject application was
held on July 25, 2024 at 3:00 pm at the City of Edmonds Council Chambers, 250 — 5th
Avenue North, Edmonds, WA 98020. The record was left open through August 19,
2024 for briefing on ADA accommodation requirements.
Substantive:
3. Site and Proposal Description. Abul and Shireen Azad request approval of a
variance to reduce the 25-foot street setback to 0 feet for frontage on Birch Street and
to reduce the 25-foot street setback to 8' 4" along 100th Ave W for existing illegal
encroachments for a home located at 1251 Birch Street.
Between 2017 and 2022, previous owner(s) of the property constructed multiple
unpermitted additions, including a rear attached addition on the northeast portion of the
building, a rear attached addition on the southeast portion of the building, a detached
accessory structure on the southeast corner of the lot, a ground level patio connecting
the detached accessory structure to the main building, an attached addition on the south
side of the building, and an extension to the garage on the west portion of the building.
On September 23, 2019, the City of Edmonds Building Inspector issued a Stop Work
Notice (Attachment 2) as part of INV2019-0020. As a result, on October 31, 2019, the
previous owner applied for a permit to add 'I 84sf addition to the front of the house to
expand the kitchen and dining room' (BLD2019-1392). The application expired on
January 21, 2023, after one extension dated December 30, 2021. On January 31, 2022,
a code enforcement case was opened under file number COD2022-0017. The narrative
to COD2022-0017 states: "complaint of extensive remodel done without permit. Recent
real estate listing shows 4 bedrooms and 2,156 sq. ft. Tax records show 2 bedrooms
and 1231 sq. ft." In response to the code enforcement case, the Building Inspector
visited the address on March 18, 2022, and made an initial evaluation of the
unpermitted work. Work included, but was not limited to, a new garage and foundation,
Variance p. 3 Findings, Conclusions and Decision
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conversion of existing garage to living space, and new roofing. On November 23, 2022,
City of Edmonds Code Enforcement issued an Order to Correct (Attachment 3) as part
of COD2022-0017.
On January 17, 2023, Victor Sung applied for permit BLD2023-0067, which includes
the following description: `the work includes but is not limited to converting the
existing bonus room into two new bedrooms and one bath and enlarging the existing
living room by adding 192 square feet of space." Planning and Development staff
discovered the extent of the unpermitted work under review of permit number
BLD2023-0067.
On August 23, 2023, the Applicants applied for the subject variance to reduce setbacks
to allow for the retention of the unpermitted additions built by the previous owner(s).
A portion of the unpermitted garage addition that encroaches into the right-of-way is
not part of the variance application since approval of a variance will not waive
compliance with the City's right of way use standards.
4. Characteristics of the Area. The Azad residence fronts a cul-de-sac to Birch Street
to the west and 100 Ave W to the east. The staff report doesn't identify surrounding
uses but as far as can be ascertained from the aerial photographs of the exhibits the
Azard residence is surrounding single-family homes.
5. Adverse Impacts of Proposed Use. No adverse impacts from approval of the
variance are evident from the record. The staff report notes that the absence of building
permit review for the project could be materially detrimental since there could be
fire/safety issues associated with failure to conform to building standards. However,
the absence of building permit review is not relevant to the variance review. The City's
code compliance tools will deal with building permit violations. The pertinent issue
for variance review is whether approval of the setback encroachments will cause any
adverse impacts. Setbacks are designed to allow for the passage of light and air, to
prevent sight distance problems on passing traffic and to provide for fire separation
from adjoining buildings.
The staff report identifies no adverse encroachment impacts and none are evident from
the record. Passage of light and air is not a major issue because the encroachments are
along a wide arterial on one side and a cul-de-sac on the other. Given the wide expanse
of pavement adjoining both encroachments, passage of light and air does not appear to
be a problem. For similar reasons, since the encroachments are not near any buildings
they also do not create any type of fire hazard. Finally, no traffic visual obstruction
appears to be caused by the proposal as well.
6. Necessity of Variances. There are no special circumstances associated with the
project site justifying the need for the variance with the exception of the garage
encroachment. The need for the variance is entirely attributable to the fact that the
encroachments resulted from unpermitted and illegal additions of a prior owner. The
Applicants would have a reasonably sized home in the absence of the encroachment —
Variance p. 4 Findings, Conclusions and Decision
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the aerial photographs of the record show that the home without illegal encroachments
is of comparable size to surrounding homes. It is also pertinent that when the home
was first built it was presumably considered to be of a reasonable livable size.
A ten -foot encroachment (15 foot setback) is justified by a unique combination of
special circumstances for the garage encroachment. The subject lot has two street
frontages which limits buildable area significantly more than comparable sized lots.
The location of the home in a former annexation area may have contributed to the
Applicants' inability to establish nonconforming use since both City and County had
no records of the building permit approval in 1958 — as the Applicants testified, each
told the Applicant to look to the other for the records. Finally, given the curvature of
the cul-de-sac and location of right of way, it is extremely unlikely that the garage
encroachment would ever create any compatibility problems with anything built in the
right of way or result in any adverse impacts to passage of light and air. Given all these
factors, due to the location of the proposal, the Applicant has been both stymied from
establishing a nonconforming use while at the same time burdened with limited
buildable area due to the two street setbacks. This special combination of
circumstances warrants a variance to grant nonconforming use rights that would be
easier for others to establish in other parts of the City.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. Variance applications are classified as Type III-B
decisions. ECDC 20.01.00313 provides that the hearing examiner holds a hearing and
issues a final decision on Type III-B decisions.
Substantive:
2. Zoning Designations. The project is zoned RS-8.
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
Variance
p. 5 Findings, Conclusions and Decision
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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 not met except for a ten -foot encroachment for the garage. There
are no special circumstances associated with the proposal as determined in Finding of
Fact No. 6. The disability of the Applicants' daughter is not allowed to qualify as a
special circumstance as expressly stated in ECDC 20.85.010.A(1)(b) above. As noted
in the Overview of this decision, the setback standards can be waived to the extent
required by the ADA via the separate reasonable accommodation process governed by
Chapter 17.05 ECDC. The ten -foot encroachment is authorized due to a combination
of special circumstances as outlined 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 not met except for the ten -foot garage encroachment. The
Applicants request encroachments into setbacks when they would otherwise have a
reasonably size home. Such an entitlement is not enjoyed by other property owners and
approval would consequently qualify as a special privilege. There is no special privilege
afforded to the Applicants for a ten -foot garage encroachment because of the special
circumstances identified in Finding of Fact No. 6. But for those circumstances, the
Applicants would have an easier time establishing nonconforming use rights consistent
with the obstacles faced by most other home owners with nonconforming development.
ECDC 20.85.010(C) — Comprehensive Plan: That the approval of the variance will
be consistent with the comprehensive plan;
6. The criterion is met. Residential Goal A.2 seeks to protect "neighborhoods
from incompatible additions to existing buildings that do not harmonize with existing
structures in the area." As noted in Finding of Fact No. 5, it's questionable whether the
proposed encroachments would be considered incompatible given their location
adjacent to street frontage with wide expanses of pavement. No other comprehensive
plan policies are directly implicated by the proposal. As further determined in Finding
of Fact No. 5 the proposal overall does not create any significant adverse impacts. For
these reasons the proposal is found to be consistent with the comprehensive plan.
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. ECDC 16.20.000 provides that the purpose of the RS
Variance p. 6 Findings, Conclusions and Decision
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districts is to reserve and regulate areas primarily for family living in single-family
dwellings. ECDC 16.00.100 provides that the purposes of the zoning ordinance overall
are to implement the comprehensive plan, protect the character of existing uses,
ensuring compatibility of uses and preventing unreasonable detrimental effects. The
proposed variance as approved by this decision meets these objectives by providing for
a compatible use without any significant adverse impacts. The variances denied by this
decision likely meet this criterion as well since no significant adverse impacts are
associated with the variance requests as determined in Finding of Fact No. 5.
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 met for all variance requests for the reasons identified 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 ten -foot garage encroachment. The variance requests
as approved by this decision are the minimum necessary for the Applicants to enjoy
nonconforming use rights that other property owners dealing with existing
nonconformities would also enjoy. Since the variance requests are not otherwise
necessary for reasonable use of the property, the variances denied by this decision do
not meet the criterion.
DECISION
The variances are denied except that the existing garage may encroach into the
Birch Street setback up to 15 feet from the property line.
Dated this 3rd day of September 2024.
Phi A.Olbrechts
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.
Variance p. 7 Findings, Conclusions and Decision
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Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Variance
P. 8 Findings, Conclusions and Decision