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ORDINANCE NO. 4 6 2 4
AN ORDINANCE OF THE CITY OF AUBURN, WASHINGTON, AFFIRMING THE
HEARING EXAMINER'S DECISION TO DENY A REQUEST FOR A VARIANCE
THAT WOULD ALLOW A DECK THAT HAS BEEN CONSTRUCTED WITHIN THE
SIDEYARD SETBACK LOCATED AT 1123 57TH DRIVE S.E. WITHIN THE
CITY OF AUBURN.
WHEREAS, Application No. MIS0006-92 dated November 17,
1992 has been submitted to the City of Auburn, Washington, by
EUGENE and LINDA McKNIGHT requesting a variance to allow a
deck to be retained within the required sideyard setback
located at 1123 57th Drive S.E., within the City of Auburn,
Washington; and
WHEREAS, said request above referred to,
was referred to
the Hearing Examiner for study and public hearing thereon; and
WHEREAS, the Hearing
consider the variance in
City Hall on December 22,
Examiner held a public hearing to
the Council Chambers of the Auburn
1992 at the conclusion of which the
Hearing Examiner denied the issuance of a variance to allow a
deck to be constructed within the required sideyard setback
based upon the following Findings of Fact and Conclusions, to-
wit:
FINDINGS OF FACT
The applicants, Gene and
variance to allow a deck to
yard setback.
Linda McKnight,. request a
be located within the side
Ordinance No. 4624
April 22, 1993
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The subject property is located at 1123 57th Drive S.E.
in Auburn and is currently zoned R-2, single family, and
is utilized as a single family home. Existing zoning and
land uses in the vicinity include single family in all
directions. The Comprehensive Plan designates the
subject site for single family uses and single family
uses are designated in all directions.
The Zoning Code,
as a structure.
violation of the
permit.
at Section 18.04.890, defines the deck
The deck has already been constructed in
City's setback ordinance and without a
The zone in which the property is located, R-2, single
family, requires a 5-foot side yard setback. The
application, pictures, and site inspection indicate that
there is virtually no side yard setback provided for the
deck.
The deck is quite large, approximately 400 square feet in
size and contains a hot tub. While the letter from the
McKnight's attorney, dated January 11, 1993, suggests
that the deck is not 400 feet in size, there is no
testimony before the Hearing Examiner .by which a
conclusion could be reached regarding the specific and
exact size of the deck.
The lot is fairly rectangular in shape. The rear lot of
the house is encumbered by a fairly steep slope.
The lot is encumbered by a portion of another house.
This house is on a lot to the south of the subject
property and the house to the south of the subject
property was built 7.3 feet into the McKnight's property.
This structure constitutes a code violation which the
Hearing Examiner considered in September of 1992 in case
number VI00222-91.
At the time of the public hearing, the City of Auburn
presented a letter from Puget Power dated December 17,
1992 admitted as Exhibit 2 to the hearing. The letter
from the real estate department of Puget Po%;er indicated
that the deck appeared to be within the transmission
right-of-way. After a site inspection at the property,
Ted Thompson of Puget Power wrote a letter dated January
8, 1993 indicating that the deck does encroach 2 feet
into Puget Power's easement area but that the deck as
currently constructed is acceptable to Puget Power.
Ordinance No. 4624
April 22, 1993
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At the time of the public hearing, several neighbors
testified in opposition to the variance request. One
neighbor who lives next door, Bruce Henry, testified that
the deck appears to be well built and is aesthetic.
However, Mr. Henry was concerned about the variance
application which he felt might affect future property
values.
At the time of the public hearing, the applicant's
attorney, Joan L. G. Morgan, submitted a number of
photographs of the deck and hot tub structure. Although
the deck and hot tub was built without a building permit,
it is an attractive and appears to be a well-designed
structure. However, it is acknowledged that pursuant to
the site plan the deck encroaches all the way into the
side yard setback and in fact abuts the north property
line on the subject site.
At the time of the public hearing, in light; of the fact
that the Puget Power letter was not available to the
McKnights and their attorney prior to the hearing, the
Hearing Examiner left the record open for submission of
additional evidence. Additional evidence %;as submitted
in the form of a letter dated January 11, 1993 from the
applicant,s attorney. In addition, a witness who had
initially proposed the application, Michael K. Clawson,
Wrote a letter dated January 12, 1993 rescinding his
earlier objection to the variance request.
The staff report, with its recommendation of denial, is
incorporated herein by reference.
CONCLUSIONS OF LAW
The Zoning Ordinance sets forth a series of strict
criteria which must be established by the ew[dence before
a variance can be granted.
The first of these criteria, as set forth in Section
18.70.010 of the Zoning Ordinance, is that there are
unique physical conditions associated with the lot which
create practical difficulties or necessary hardships in
complying with the provisions of the Zoning Ordinance.
The only unique physical condition here is the steep
slope of the lot. While the applicant argued that but
for the neighboring encroachment, the deck would have
been located on the other side of the house, the Hearing
Ordinance No.
April 22, 1993
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Examiner cannot conclude that two wrongs make a right.
While it is true that the rear yard contains slopes, the
application does not establish by a preponderance of the
evidence that the deck could not have been constructed in
compliance with setback requirements.
The applicant needs to establish that as a result of the
physical conditions, the development of the lot in strict
conformity with the provisions of the Zoning Ordinance
will not allow a reasonable and harmoniou:s use of the
lot. While counsel for the McKnights makes a creative
argument with regard to the need for a hot tub on the lot
as a result of injuries sustained by Linda McKnight in an
automobile accident, it cannot be concluded that
development of the lot in conformity with the provisions
of the Zoning Ordinance will not allow a reasonable and
harmonious use of the lot. The development of the lot
within the setback requirements of the R-2 zone would
still allow a reasonable use of the property for a single
family residential structure.
The variance, if approved, must be shown to not alter the
character of the neighborhood or be detrimental to
surrounding properties. In fact, if the variance were
granted it could possibly be detrimental to the
neighboring property by allowing a structure as large as
this deck to be located essentially right on the property
line. Even though the neighbor to the north testified
that the deck was an attractive structure, he still
expressed concern with regard to the detri,~ental affect
on his property that would exist if the Zoning Code was
not enforced.
The special circumstances or conditions associated with a
variance are partially the result of the actions of the
applioant. Had the applicant obtained a building permit
as required, they would have been told by the City that
they must meet the setback requirement.
Literal interpretation of the provisions of the Zoning
Code would not deprive the applicant of rights commonly
enjoyed by other properties in the same zoning district.
There is a substantial amount of deck area which now
exists which would meet the setback requirements of the
zoning ordinance.
The approval of the variance would be inconsistent with
the purposes in the Zoning Code of providing adequate
light, air and privacy.
Ordinance No. 4624
April 22, 1993
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e
Factors 7 through 10 as set forth in the Zoning Ordinance
for the granting of a variance are not applicable here.
WHEREAS, on March 19, 1993, Eugene and Linda McKnight
filed an appeal of the Hearing Examiner's decision; and
WHEREAS, on April 19, 1993, the City Council of the City
of Auburn conducted a hearing on the appeal filed by the
McKnight's at the conclusion of which the Council adopted the
above referenced Findings of Fact and Conclusions of Law and
affirmed the Decision of the Hearing Examiner to deny the
request for a variance to retain a deck that had been
constructed within the sideyard setback at 11211 57th Drive
S.E., Auburn, Washington.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Seotion 1. The above cited Hearing Examiner's Findings
of Fact and Conclusions are herewith incorporated in this
Ordinance.
Section z. The city Council hereby affirms the Hearing
Examiner's Decision to deny the request of Eugene and Linda
McKnight for a variance to allow a deck that has been
Ordinance No. 4624
April 22, 1993
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constructed within the sideyard setback at 1123 57th Drive
S.E., Auburn, Washington.
Se~tion__~. The Mayor is hereby authorized to 'implement
such administrative procedures as may be neoesE:ary to carry
out the dire~tions of this legislation.
Section 4. This Ordinance shall take effect and be in
force five days from and after its passage, approval and
publication as provided by law.
INTRODUCED:
PASSED:
PPROVED:
/ MAYOR
ATTEST:
Robin Wohlhueter,
City Clerk
APPROVED AS TO FORM:
Shelton,
City Attorney
PUBLISHED: ~--~--~
Ordinance No. 4624
April 22, 1993
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