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HomeMy WebLinkAbout4624 1 2 3 4 5 6 7 8 9 10, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 Page 1 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 ~. 2 3 4 5 3. 6 7 '4o 5. 6. 7. 8. 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 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 10. 11. 12. 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 Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 Page 6