HE Decision PLN20120047 - 49.pdfCITY OF EDMONDS
121 5th AVENUE NORTH • EDMONDS, WA 98020 ® (425) 771-0220 ® fax (425) 771-0221
www.edmondswa.gov
HEARING EXAMINER
Phil Olbrechts, Hearing Examiner
RE: George and Virginia Olson
PLN20120047, PLN20120048
and PLN20120049
IT, l�Z10011
DAVE EARLING
MAYOR
The Applicants are requesting three variances to construct a single-family home. A street
setback variance is requested to construct a driveway bridge and associated stairs. A height
variance is requested to increase allowed height from 25 feet to 28 feet. A side yard.
variance is requested to construct a "bump out" along the side of the home to provide for
more natural light of the daylight basement. The street setback variance is approved. The
other two variances are denied.
FIR l 1, I- l l _ 1 ,11i � ,,.
Mike Clugston, Associate Planner, stated that the application is for three variance requests.
The variances are for a proposed single-family residence at 15500 75"' Place West. The
applicant's parcel is the northern most parcel in Edmonds. The applicant applied for a
building permit in August, 2012. The parcel is located in the North Edmonds Earth
Subsidence and Landslide Hazard Area, a known area of potential landslides and soil
movement. During review of the original building permit, Edmonds staff determined that the
proposal showed a bridge structure that was not compliant with setbacks for the zone.
Setbacks for the zone are 25ft, but the structure was clearly at a aft setback. The applicant
chose to apply for a variance to reduce this setback. This variance request proposes to reduce
the regular required 25ft street setback to Oft, allowing for the construction of a bridge -
driveway approach from 75t" Place W to the residence and steps down from the driveway to
the residence's front door. Additionally, the applicant applied for two other variance
requests. PLN 20120048 proposes to increase the maximum allowed height for the single-
family residence fi•om25 ft to 28ft to allow for a 5:12 pitched roof. This roof is at a greater
pitch and has a higher upper floor ceiling than was proposed in the original building permit.
PLN20120049 proposes to reduce the minimum required north side setback to allow for the
construction of a bump -out on the north side of the
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house which would project 3 ft into the required setback. The bump -out was not
shown in the original building permit.
Mr. Clugston testified that public notice of the application and hearing was given on
January 31, 2013. Five comment letters were received. He submitted these
comment letters as exhibits 14-18. Variances have to meet six criteria listed in EDC
20.85: special circumstances, special privilege, comprehensive plan, zoning
ordinance, not detrimental, and minimum variance. The first variance for street
setback meets the special circumstances because of the environmental constraints.
Keeping the construction away from the steeper, western portion of the site will
benefit the soil and result in less grading. In regard to special privilege, the first
variance meets this criteria, and all five of the homes in the area have received
setback variances from 75th Place W. This variance meets the comprehensive plan as
the plan approves of minimizing grading and custom built homes. A code compliant
driveway could have been designed; however, it would push the whole development
further to the west and down slope. The variance is not detrimental and impacts the
slope less. Finally, this is the minimum variance necessary to construct the bridge
and driveway.
In regard to the height variance, Mr. Clugston noted that the original building permit
did not include the additional 3ft of height. There does not appear to be a special
circumstance for the extra height. Additionally, no special privilege is apparent. It is
unlikely that the 3 extra feet would be detrimental to neighbors as there is only one
home to the east, and the proposed home will still be lower topographically. A
residence could be built at the approved height, thus this is not the minimum variance
necessary. In regard to the bump -out variance, Mr. Clugston repeated that this was
also not on the original building permit application. No special circumstances or
privileges are apparent. The bump -out would not impact views in the areas or be
detrimental to the public health, safety, or welfare. It is not a necessary addition, thus
it does not meet minimum variance.
In regard to public comments, Mr. Clugston stated that several comments were
received from Mr. Degan, the neighbor to the subject parcel's south. According to
Mr. Clugston, Mr. Degan is concerned with ownership and upkeep of some
landscaping features; however, this concern is a civil matter and irrelevant.
Additionally, Mr. Degan's expressed concern over slope stability. Mr. Clugston
noted that geotechnical studies were required and conducted for the parcel.
Additionally, stormwater is addressed by the building permit. All stormwater
generated from newly created impervious surfaces will have to be detained onsite and
then tight -lined to the bottom of the slope, adjacent to the railroad tracks. The
Shelton and Thorpe letters addressed whether the application met variance criteria.
Snohomish County Parks and Recreation sent a comment letter asking if the site
setback could be reduced. The County is concerned with tree and soil health which
will be dealt with in the building permit process.
Variance p. 2 Findings, Conclusions and Decision
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In conclusion, Mr. Clugston testified that Edmonds staff recommends the
bridge/driveway variance be approved with one condition. The one condition is that
the Oft street setback applies only to the driveway structure as proposed in the
building permit. Staff recommends denial of the height variance because it does not
meet each of the six criteria. Likewise, staff recommends denial of the bump -out
variance request. The applicant could build several feet further to the west. Grading
and filling restrictions would not prevent them from building to the west, but would
most likely trigger the need for a shoreline permit. Mr. Clugston believes the plan is
to build the driveway on some form of piling structure. Filling the driveway area is
an alternative, but may require a variance anyway because, within setbacks, structures
can only be three ft. Staff does not believe this is the only location for the driveway
on the site; however, based on the building permit, this is the best location. The staff
report lists several past variances that were granted in the area, but it is not a
comprehensive list. Past variances in the area have been granted for garages to have
larger heights. It is unclear why these variances were granted, and, if applied for
today, these variances probably would not be granted. Now, the City Council does
not want variances granted unless they actually meet the six criteria. In the 1980s and
1990s, Edmonds granted many variances without necessarily meeting the special
privileges criteria.
James Thomas, architect and applicant representative, stated there have been two
recent topographical surveys of the property. As you walk south to north, the
property slopes in that direction. The northernmost point of the property line is 6ft
higher than the southern property line. The slope of the northern property line is
close to 70 percent, and there is a retaining wall that increases the percentage. The
narrowness of 75th Place W and this steep slope make it impossible to access the
property from the north. Building the driveway with the setback would result in the
need for a retaining wall and create a dangerous situation for those backing up on the
driveway. The original design needed 750 yards of cut -and -fill. The new design
creates a minimum impact area with a setback in the front, north, south, and a 200ft
shoreline setback. The applicant is not trying to avoid obtaining a shoreline permit,
but instead is attempting to make a smaller footprint. The previous design included a
daylight basement that would require a lot of cut. The site is difficult to build upon
and the applicant wanted to limit the number of trucks transporting dirt. The new
design has greatly limited cut. The only cut will be the 2ft perimeter of grading, the
inside of the house grading, and the dirt pulled out for the required 25ft piers for the
engineering design. The applicant is taking the minimalist approach. The bridge
allows the applicant to avoid cutting into the property. The bridge will be concrete
and then have a wood -frame structure to support it on the slope. There will be
ventilation under the driveway.
In regard to the public comments, Mr. Thomas noted that the applicant has used a
team of geotechnical engineers, hired an arborist to create a vegetation plan, and
utilized a structural engineer. The railroad has approved the draining program of
moving stormwater down slope towards the tracks via a retention pipe. The applicant
is taking the low impact approach. In regard to the height variance, Mr. Thomas
Variance p. 3 Findings, Conclusions and Decision
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testified that the house could be built with a flat roof, but it would not drain very well.
A 3:12 roof and a 5:12 roof are not substantially different. The house cannot be built
farther from the Degan house because of the northern slopes. More cut and tree
cutting would be required to change the site plan. Mr. Thomas believes that
Snohomish County will approve of the plan once they receive the arborist report that
was conducted. The applicant wants to protect the railroad, the neighbors, and the
new home from landslides. The house could be pushed to the west, but that would
create a larger footprint. The 3ft height addition would have no adverse impacts and
meets the city's comprehensive plan. Edmonds determines single-family residence
height via 4 -corner averaging. They draw a box around the house, find the midpoint
of the house, and average them. This approach is universal and does not account for
lots that are sloped. The baseline is 2.5 ft below the ground floor, thus, without the
slope, the height requirements would be met.
George Olson, owner of the property, stated that he is not attempting to add value to
his house with the side bump -out. He plans on living in the home for the rest of his
life and is not building to sell. The side build -out is part of a sewing room, and the
bump provides for the largest amount of natural sunlight as possible. It will greatly
increase the quality of life for his wife.
Mr. Thomas added that the west light is not appropriate for sewing because there is
too much glare. Overhead, northern light is ideal for the proposed use.
EXHIBITS
All fourteen attachments listed on page 13-14 of the staff report were admitted into
evidence as Exhibits 1-14. At hearing on February 14, 2013 the following exhibits
were also admitted:
Exhibit 15 email from Marilyn Degan dated 2/13/13
Exhibit 16 email from Jim and Jane Shelton dated 2/13/13
Exhibit 17 email from David Thorpe dated 2/12/13
Exhibit 18 email from Snohomish County Parks dated 2/12/13
FINDINGS OF FACT
Procedural:
Applicant. The Applicants are George and Virginia Olson.
2. Hearing. A hearing was held at 3:00 pm on 2/14/13 at the Edmonds City
Council meeting chambers.
Substantive:
Variance
p. 4 Findings, Conclusions and Decision
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3. Site/Proposal Description. The applicants propose three variances for the
construction of a single-family home at 15500 75th Place West. PLN20120047
("street setback variance") proposes to reduce the regular required 25' street setback
to 0' to allow for the construction of a bridge/driveway approach from 75th Place
West to the residence and steps down from the driveway to the residence's front door.
PLN20120048 ("height variance") proposes to increase the maximum allowed height
for the single-family residence from 25' to 28' to allow for a 5:12 pitched roof.
PLN20120049 ("side yard variance") proposes to reduce the minimum required north
side setback to allow for the construction of a bump -out on that side of the house
which would project 3' into the required setback.
Mr. Thomas applied for a building permit to construct a house and related site
improvements on the subject lot on August 23, 2012 (BLD20120858), and the
building permit application was determined to be complete on October 1, 2012
(project plans from the building permit application are included as Attachment 1).
During the initial review period, the Planning Division determined that the proposed
bridge/driveway structure and steps did not comply with the required street setback
for the zone (Attachment 2). To resolve this concern, the driveway approach would
either have to be redesigned to be code -compliant or a variance would have to be
obtained to reduce the regularly required 25' street setback for the RS -20 zone. The
Applicant applied for a variance (PLN20120047) on December 21, 2012 to reduce the
regularly required 25' street setback to allow construction of the bridge/driveway and
steps as proposed in the building plans from August 23, 2012 (Attachment 3). Along
with the bridge/driveway variance request, however, the Applicant included the side
yard variance and height variance requests.
The project site is vacant. The site slopes steeply down from 75th Place on the east
to the Burlington Northern Santa Fe tracks and Puget Sound on the west. The eastern
portion of the site is somewhat less steep, where the proposed residence is to be
located (Attachment la). Because the site is located within the North Edmonds Earth
Subsidence and Landslide Hazard Area (ESLHA), geotechnical peer review of the
building permit materials BLD20120858 was required (Attachment 7).
4. Characteristics of the Area. The project site is the northernmost parcel on
75th Place West, immediately adjacent to Meadowdale Beach Park. The surrounding
neighborhood is zoned for large lots (RS -20 and RS -12) due to the widespread
presence of critical areas in the vicinity. While there are still some vacant parcels
along this length of 75th Place, most lots are developed with single-family residences.
5. Adverse Impacts. There are no adverse impacts associated with the
requested variance. The most significant impact that would normally be anticipated
would be the view impacts associated with the height variance, but aerial photographs
in the record show that the home is not located within any view corridors of
surrounding homes. Further, the home will be placed along a steep slope and will
only project above the adjoining street by only a few feet.
Variance p. 5 Findings, Conclusions and Decision
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In assessing the impacts of the variance request, it should be noted that only the
impacts of the variance are at issue, not the house as a whole. Even if one were able
to successfully argue that the home could not be built "but for" the variances and as a
result all impacts should be considered, those impacts would be adequately addressed
by the City's extensive development standards. Constitutional due process and
takings law requires highly adverse impacts in order to deprive the applicants of any
opportunity to develop the lot and no such impacts are reasonably inferred from the
record.
In two comment letters, Ex. 10 and Ex. 15, Thomas and Marilyn Degan noted they
are engaged in a boundary dispute with the applicant over the location of the southern
boundary line. The requested variances do not affect the location of the southern
boundary line. The approval of the street setback variance should be flexibly
interpreted to authorize the displacement of the driveway further north if necessary to
accommodate a resolution of the boundary dispute. The Degans also expresses
concern over the geological stability of a soldier wall that will be built on the west
side of the home as well as stormwater run-off issues. The variance requests do not
affect the west wall or the stormwater issues raised by the Degans. As noted in the
staff report, slope stability and stormwater will be addressed during building permit
review.
Snohomish County also raises concerns over slope stability and site drainage. The
only slope stability and site drainage issues attributable to the variance that would
affect the county would be from the proposed side yard variance, which involves a
relatively minor area. As noted in response to the Degan comments, slope stability
and stormwater will be addressed during building permit review. There is nothing in
the record to suggest that the City's comprehensive development standards are
inadequate to properly mitigate the stormwater and slope stability impacts.
Snohomish County also raises concern that grading activity may affect tree health on
its property. Given that the side yard variance could facilitate grading that could
impact the roots of Snohomish County trees, this could be a relevant concern. If the
side yard variance were to be approved, an arborist report and associated mitigation
could be required to mitigate tree impacts as requested by the County.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. ECDC 20.85.020 provides the Hearing
Examiner with the authority to review and act upon variance applications as Type III-
A.
Substantive:
Variance
p. 6 Findings, Conclusions and Decision
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2. Zoning Designations. The area is zoned Single -Family Residential (RS -
20).
3. Review Criteria and Application. Variances to setback requirements are
set by ECDC 20.85.010, quoted 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 ofpublic structures and
uses as set forth in ECDC I7,_00w0 0 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 met for the street setback variance and not met for the
other two variance requests.
As to the street setback variance, there are special circumstances and environmental
constraints on the parcel that would support the granting of a street setback variance
for the bridge/driveway and steps. The lot is steeply sloped and situated within the
mapped Earth Subsidence and Landslide Hazard Area. While a code -compliant
driveway approach could be created for the site (Ex. 3d), it would result in pushing
the proposed house closer to the steeper western portion of the parcel as well as
requiring more extensive grading. Constructing the proposed bridge/driveway and
steps would minimize the impact to the slope and soils at the site (Ex. 1 a, 1 c and If).
The special circumstances criterion as applied to the height variance raises the most
difficult issue of these variance requests. Although the steep slopes of the property
have deprived the applicants of structural height that is usually available to others,
that loss of height does not deprive the applicants of "rights and privileges" as
required by the criterion quoted above.
Variance p. 7 Findings, Conclusions and Decision
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As testified by the applicant, the steep slope of the property results in an allowed
structure height that is approximately 2.5 feet lower than what would be allowed for a
home on a level lot. This is because according to the uncontested testimony of the
applicant, application of the City's height definition measures height 2.5 below the
ground floor of the home. As a result, special circumstances related to the property
(the steep slope) are cutting 2.5 feet out of the applicant's height allowance.
Although special circumstances may be causing some hardship for the applicants, the
criterion quoted above requires that those special circumstances "deprive the owner of
use rights and privileges permitted to other properties in the vicinity with the same
zoning". The loss in 2.5 feet in allowable height does not qualify as a loss of "rights
and privileges". Although the applicant has referenced several fairly old variance
decisions where height variances have been granted, those decisions all appear to
concern fairly significant losses in development potential. "Rights and privileges"
should not be construed as attaching to any loss of development potential, regardless
of how trivial. This interpretation would spur frivolous zoning requests, a
corresponding waste of administrative resources and an unnecessary degradation of
the integrity of the zoning code. As to height, the applicants would have a more valid
claim if they could assert that the 2.5 loss of height results in the inability to building
a reasonably sized two story home. Yet the only hardship the applicants can identify
is a lower pitch that will result in unspecified less effective drainage. Further, as
noted in the staff report, the applicants had submitted a prior building permit
application that was able to comply with the City's height requirements. The height
request fails to comply with the "special circumstances" criterion because it does not
deprive the applicants of any substantial development potential that would qualify as
rights and privileges available to others in the vicinity.
There are no special circumstances that support the side yard variance. The lot is not
unusually narrow and there are no other features that necessitate more lot width to
build a reasonably sized home. If the applicants need to have a "bump out" for
northern light, then can reduce the length of the home by three feet in order to do so.
They can even make up for the loss area in length reduction by expanding the home
further west.
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 as to the street setback variance. As noted in the staff
report, street setback variances have been granted to all developed lots along 75th
Place West for driveway access or a garage. From a broader perspective, the
applicant seeks to have vehicular access to a single-family home without having to
push a home into the face of a steep slope as well as a significant amount of grading.
Vehicular access is a substantial property right that would not be denied to other
property owners in the vicinity with the same zoning.
Variance P. 8 Findings, Conclusions and Decision
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As to the height variance, for reasons similar to those identified in COL No. 4, the
applicant has not been deprived of any development potential substantial enough to
qualify as a privilege under the special privileges criterion.
As to the side yard variance, there is nothing in the record that would suggest that any
other home in the vicinity would be authorized to build a "bump out' solely to allow
for northern light exposure. Granting of the variance would clearly constitute a grant
of special privilege.
ECDC 20.85.101(C) — Comprehensive Plan: That the approval of the variance will
be consistent with the comprehensive plan;
6. The street setback variance is consistent with the comprehensive plan
policies identified at page 4-16 of the staff report because the variance would help
minimize disturbance of steep slopes. The height variance does not appear to conflict
with any comprehensive plan policies. The side yard variance is nominally not
consistent with the policies identified in the staff report because it reduces privacy
and design harmony by reducing separation from lot lines. However, it is recognized
that the adjoining use is currently a public park and these types of considerations are
not significant for park use.
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. ECDC 16.20.000 provides that the purposes of the RS zones are to provide
for single-family dwellings and nonresidential uses that complement and are
compatible with single family use. Given the lack of adverse impacts and the
proposed residential use, the street setback and height variance requests are consistent
with this purpose. For the reasons stated in preceding COL, there are some nominal
privacy issues with the requested side yard variance.
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. As determined in Finding of Fact No. 5, there are no significant adverse
impacts associated with the proposal. Consequently the criterion is met.
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. As to the street setback variance, the requested variance is the minimum
necessary for reasonable vehicular access, as discussed in more detail in COL No. 5.
Variance P. 9 Findings, Conclusions and Decision
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The requested height variance is not the minimum necessary, since the denial of the
variance would not deny the applicants rights enjoyed by others as discussed in the
interpretation of "rights and privileges" in COL No. 4. The requested side yard
variance is not the minimum necessary since, as discussed in COL No. 4 and 5, the
applicants would not be deprived of any rights by denial of the variance.
The street setback variance (PLN20120047) is approved. The side yard and height
variances (PLN20120048 and PLN20120049) are denied.
Dated this 1 st day of March, 2013.
Phil A. Olbrechts
Edmonds Hearing Examiner
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This decision is final and only subject to appeal to superior court as governed by
Chapter 36.70C RCW. Appeal deadlines are short (21 days from issuance of the
decision) and the courts strictly apply the procedural requirements for filing an appeal.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Variance P. 10 Findings, Conclusions and Decision