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HomeMy WebLinkAboutITEM II-A-1 MAY - D 200S Appeal is filed with the City Clerk Or Deputy City Clerk THE FOllOWING TO BE COMPl TED BY CITY OF AUBURN Application No.: Date of City Council Hearing: \f AR C)f:, ~ c?~ 'Z- Date Filed: Deadline For Filing Appeal: (h~ ~1.~~ fh~ q 1 'Ue5~ THE FOllOWING TO BE COMPLETED BY APPEllANT Name of Appellant(s): t//I(f be- elle~T A- I?tI It L MiJ Phone: Phone: QS8-ta3 - 7~~' Appellant Address: ISf~ S{3 f!.1J S~ S~ JIib~/ itJ.A-- 9fCl1 ~ -~ ~)ft:7 E-mail: cHe LMne e(!J~ ' Agent Address: I~ dgefJ~ G-F ~ t()1r980~'7--- E-mail: (IJE<,L~lj f!!f~J, EXHIBIT 1- page 1 of 3 STATEMENT OF APPEAL The Appellant must identify clearly and specifically the following: 1. The errors which the Appellant believes were made in the action or decision which is being appealed, or the procedural irregularities associated with that action or decision. 2. Specific reasons why the City's action or decision should be reversed or modified. 3. The harm which is expected to be suffered by the Appellant as a result of the action or decision being appealed. If the Appellant is a group or organization, the harm to anyone or more members or the group or organization must be stated. 4. The desired outcome of the appeal. You may provide your responses here, or preferably, attach a separate typed response to each of the above. ~~ tlffacL~ rJ~f0 - . Page 2 of 3 STATEMENT OF APPEAL I). On April 8,2006, Saturday, Viktor Chekota and Eva Law received the copy of the Hearing Examiner's decision. The envelop was dated as per US POST MARK was APRIL 5.2006. SEE EXHIBIT A.. 2).Viktor Chekota filed the request for reconsideration at the City Of Auburn on April 12. 2006 which is within the time frame as per ACC 188.66.150, a Request for Reconsideration must be received "within seven days" from the date of mailing which was April 5,2006.. So the City's action to dismissed the Request for Reconsideration should be REVERSED based on the_Item 1 above. 3.) Viktor Chekota, the applicant, request the Request for Reconsideration of the Examiner's Decision to approve the variance application #V AR06-002 based on the documents and pictures submitted on the "Request for Reconsideration" .on April 12, 2006 at the City of Auburn. . .. Signature of Appellant(s): I#~~ Dated: \f\~ ~ \ 2~(, State of \."-J A } \ J.... )ss County of ~ ~ } On this day perSonally appeared before me hi ~d~1'-R h L~,() to me known to be the individual(s) described in ani 0 executed the within and foregoing instrument, and acknowledged that 21--€- signed the same as ~ free and voluntary act and deed for the uses and purposes therein mentioned. Given under my hand and official seal this 2 eole,. '?>~ day of "fV\ ~ ......."....... ~ ,.,. ..'It.\", ~.. ON Iv. 'It. ,:- ~S ............0-<': '.. :- ~...~\~ES .... ~\ f~"'(;y ~ \~, '0:<: Q:, () d)..," : :0 ~ :",1 o~_~ , -. .... ",,' '"""" ~a:.~c;; 0 .;) iN~t ~ .i '.~"" " ........ fI' , Go..?: v ", "o!".; ~ 7': "'~o ..... " '.Jt. '..::J .... <c, .:' I, .~L.......... t5 .... f." VO s~ ...... I, .... ",..",.."", u ,fi... Do Not Mark Below This Line Appeal File Number Assigned by the City: Date Scheduled for Hearing: Page 3 of 3 RECE'IVED APR 0 3 2006 PLANNING DB>ARIMENT BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN In the Matter of the Application of ) ) Victor Chekota ) ) ) Variance from Fence Height Limits ) NO. V AR06-0002 FINDINGS, CONCLUSIONS, AND DECISION SUMMARY OF DECISION A variance to legalize an existing over height fence within the front and street side yard setbacks is DENIED. SUMMARY OF RECORD Requests: Victor Chekota (Applicant) requested a variance from the fence height limitations in order to legalize an existing fence within the front and street side yard setbacks on property located at 1540 - 23rd Street SE, Auburn, Washington. The Applicant's proposal seeks to exceed the front yard fence height limitations by 10 inches and the street side yard fence height limitations by 33.5 inches. Hearing Date: The Hearing Examiner for the City of Auburn held an open record public hearing on March 21, 2006. Testimony: The following individuals presented testimony under oath at the open record public hearing: Steve Pilcher, City of Auburn Planner Victor Chekota, Applicant Eva Law V irginia Haugen Clarice Bryan Donald Fyles Tim Blumenstein EXHIBIT :;:<. Chekota Fence Height Variance, VAR06-0002 City of Auburn Hearing Examiner Findings, Conclusion, and Decision Page 1 of8 Exhibits: The following exhibits were admitted at the open record public hearing: Exhibit 1: Exhibit 2: Exhibit 3: Exhibit 4: Exhibit 5: Exhibit 6: Exhibit 7: Exhibit 8: Exhibit 9: Exhibit 10: Exhibit lOa: Exhibit lOb: Exhibit 10c: Staff Report Vicinity Map Application for Variance, dated February 3,2006 Notice of Public Hearing Affidavit of Posting Affidavit of Mailing Confirmation of Publication of Legal Notice Aerial Photograph Notice to Correct Violation, Case No. VI005-0998 Site Photographs Site Photographs Site Photographs Site Photographs Upon consideration of the testimony and exhibits admitted at the open record hearing, the Hearing Examiner enters the following Findings and Conclusions: FINDINGS I. The Applicant requested a variance to legalize an existing over height fence on property located at 1540 - 23rd Street SE, Auburn, Washington. The subject property is identified as King County Tax Parcel No. 9500900205. Exhibit 1, Staff Report, Page 1; Exhibit 3, Variance Application. 2. The subject property is zoned R-2 Single Family Residential (R-2). The R-2 zone is intended to create a living environment of optimum standards for single-family dwellings at a relatively low degree of density. Design standards for fences within the R-2 zone are established in Auburn City Code (ACC) 18.48.020. ACC 18.14.010; ACC 18. 14. 040(H); Exhibit 1, Staff Report, Page 1. 3. The subject property, located within the Urban Growth Area, has a City Comprehensive Plan land use designation of Single Family Residential. Goals and policies with the Comprehensive Plan that are applicable to the proposed variance include: Land Use, Neighborhood Quality, Goal 8 (maintain and protect all viable and stable residential neighborhoods) and Urban Design, Goal 22, Objective 22.1, Policy UD-l (maintain ... the existing aethestic character of the community). City of Auburn Comprehensive Plan; Exhibit 1, Staff Report, Page 1. 4. The subject property is a flat, rectangular shaped comer lot. A single-family detached Chekota Fence Height Variance, VAR06-0002 City of Auburn Hearing Examiner Findings, Conclusion, and Decision Page 2 of8 residence, orientated towards 23rd Street SE, is located on the subject property. The property has access from two points: a driveway providing access from 23rd Street SE to a paved parking area and a driveway providing access from "R" Street SE to a detached garage. The Applicant stated that primary access to the residence was from 23rd Street SE and that he utilizes the "R" Street SE access point only once or twice a week. Exhibit 1, Stcif.f Report, Pages 2-3; Testimony of Mr. Pilcher; Testimony of Mr. Chekota. 5. In November 2005, Auburn Code Enforcement Officer Joiner performed a site visit. At that time, Officer Joiner noted that the fence, which was under construction, exceeded height limitations set by ACC 18.48.020. Officer Joiner discussed and explained the height limitations with the Applicant. Despite Office Joiner's instructions, the Applicant proceeded to complete construction of the fence in violation of the height standards. Exhibit 1, Staff Report, page 2; Testimony of Mr. Pilcher. 6. A Notice to Correct Violation was issued by the City requiring the Applicant to remove the fence or lower it to the maximum allowable fence height. Compliance was required by 5:00 pm on January 3, 2006, unless a Request for Reconsideration was submitted, in writing, to the Planning and Community Development Department by January 6, 2006. The record does not demonstrate that the Applicant filed a Request for Reconsideration. Exhibit 1, Stcif.f Report, Page 2; Exhibit 9, Notice to Correct Violation. 7. A comer lot is a lot situated at the intersection of two or more streets. ACC 18. 04. 590(A). Pursuant to ACC 18.04.570(A)(2), the front lot line for a comer lot is that lot line that abuts a designated arterial. For the subject property, the front lot line abuts "R" Street SE, a minor arterial, and the street side yard lot line abuts 23rd Street SE. ACC 18.04. 750(A) (2); Exhibit 1, Staff Report, Pages 2-3; Testimony of Mr. Pilcher. 8. The Applicant constructed a solid wood fence along 23rd Street SE, a residential street, which is 52 inches in height and abuts the sidewalk. ACC 18.48.020(A)(I)(a) provides that fences within the street side yard setback must not exceed 42 inches. The Applicant's 52-inch high fence is 10 inches over the stated height limitations. ACC 18.48.020(A)(I)(a); Exhibit 1, Stcif.f Report, page 3; Exhibits 10, lOa, lOb, and 10c - Site Photographs. 9. The Applicant constructed a solid wood fence along "R" Street SE, a minor arterial street, which is 75.5 inches in height and abuts the sidewalk for most of its length. ACC 18.48.020(A)(l)(a) provides that fences within the front yard setback must not exceed 42 inches. Th~ Applicant's 75.5-inch high fence is 33.5 inches over the stated height limitations. ACC 18.48.020(A)(I)(a); Exhibit 1, Staff Report, page 3; Exhibits 10, lOa, lOb, and 10c - Site Photographs. 10. The Applicant purchased the property in 2003. The Applicant and Ms. Law stated that when they moved in to the residence they had repeated problems with unleashed dogs Chekota Fence Height Variance, VAR06-0002 City of Auburn Hearing Examiner Findings, Conclusion, and Decision Page 3 of8 entering their property and endangering their dogs and, they had problems with garbage being thrown in the yard. In addition, the Applicant noted a lack of privacy because of two of their three bedrooms proximity to "R" Street. The Applicant asserted that the height of the fence, especially along "R" Street SE, was intended to alleviate these problems, provide privacy, and lessen noise and light pollution created by traffic. Exhibit 3, Variance Application; Testimony of Mr. Chekota; Testimony of Ms. Law. 11. The Applicant argued that there are fences of similar and/or greater height within the front yard setback of properties in the surrounding neighborhood. A site visit to verify site and neighborhood conditions concluded that the mobile home park to the east of the subject property maintains a fence greater than 42 inches along its entire frontage with "R" Street SE but that the fence is setback approximately 6-10 feet from the sidewalk by a landscaped area. City Staff stated that there are no residences on 23 rd Street SE that have front yard fences and no other residence within the surrounding neighborhood with fences exceeding 42 inches in the front yard setback. Mr. Blumenstein, who lives directly across 23rd Street from the Applicant, has a six-foot high fence facing "R" Street that has been in place for approximately 30 years. Exhibit 1, Staff Report, Pages 4-5; Testimony of Mr. Pilcher; Testimony of Mr. Chekota; Testimony of Mr. Blumenstein. 12. The Applicant asserted that ACC 18.48.020(A)(1)(b) was applicable to this matter. ACC 18.48.020(A)(1)(b) provides that when a residence has two street frontages with one of the frontages located on an arterial street and the lot does not have vehicle access to the arterial, then a fence of up to 72 inches in height may encroach into the setback abutting the arterial street. This section of the ACC also requires a five-foot wide landscaping strip between the fence and the abutting arterial. ACC 18.48.020(A)(1)(b) is not applicable in this situation. The subject property does fronts onto two streets - 23rd Street SE and "R" Street SE - and "R" Street SE is an arterial. However, the subject property has vehicle access from both of these streets. In addition, the Applicant's existing fence abuts the sidewalk on "R" Street SE and the section of the ACC that he asserts is applicable requires a five-foot wide landscaping strip between the fence and the roadway. ACC 18.48. 020(A) (1) (b); Testimony ofChekota; Testimony of Mr. Pilcher. 13. Public comments were received on the proposal. Neighboring property owners concurred that traffic noise generated by "R" Street SE was a nuisance and that the neighborhood did experience problems with garbage and dogs. Neighboring property owners also stated that although the Applicant's fence was aesthetically pleasing, it was too high and impacted sight distances at the intersection of "R" Street SE and 23rd Street SE, creating safety issues for vehicles and pedestrians alike. Testimony of Ms. Haugen; Testimony of Ms. Bryan; Testimony of Mr. Finer; Testimony of Mr. Blumenstein. 14. City Staff testified that vehicle and pedestrian safety is a key issue and that a fence over 72 inches does not provide a "clear view" triangle necessary to provide for public safety. ACC 18.48.020(B)(1) states that nothing shall be constructed within the triangular area Chekota Fence Height Variance, VAR06-0002 City of Auburn Hearing Examiner Findings, Conclusion, and Decision Page 4 of8 formed by a line 20 feet along the right-of-way lines of two intersecting streets and the line connecting the ends of the two 20-foot lines that is between a height of three feet and 10 feet above the established grade. City Staff asserted that the design of the fence impacted the view triangle and did not provide adequate sight distances for vehicles entering and exiting the neighborhood and for pedestrian traffic. ACC 18.48.020(B)(J); Exhibit 1, Staff Report, Pages 4-5; Testimony of Mr. Pilcher. 15. The Applicant seeks only to legalize an existing fence. Approval of the variance would not add dwelling units to the subject property. No surface mining permits, conditional use permits, or contract rezones are in effect on the subject property. 16. Variance applications are exempt from SEPA review. WAC 197-11-800. 17. The City provided reasonable notice of the March 21,2006 public hearing. Notice was posted on-site on March 9, 2006; was mailed to all property owners within 300 feet of the affected site on March 10, 2006; and was published in the King County Journal on March 11, 2006. Exhibit 4, Notice of Public Hearing; Exhibit 5 and Exhibit 6, Affidavits of Legal Notice; Exhibit 7, E-mailfrom King County Journal. CONCLUSIONS Jurisdiction The Hearings Examiner is granted jurisdiction, to hear and make a decision on a variance application pursuant to AMC Chapter 18.66 and AMC Section 18.70.010. Criteria for Review Auburn City Code 18.70.010 provides criteria for review for variance applications. A variance applications shall only be approved if the Applicant can demonstrate that: 1. There are unique physical conditions including narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardships arise in complying with provisions of this title. 2. Because of such physical conditions, the development of the lot in strict conformity with the provisions of this title will not allow a reasonable and harmonious use of such lot. 3. The variance.. if granted, will not alter the character of the neighborhood, or be detrimental to surrounding properties in which the lot is located. For nonconforming single-family homes, this finding is determined to be met if the features of the proposed variance are consistent with other comparable features within 500 feet of the proposal. Chekota Fence Height Variance, VAR06-0002 City of Auburn Hearing Examiner Findings, Conclusion, and Decision Page 5 of8 4. The special circumstances and conditions associated with the variance are not a result of the actions of the Applicant or previous owners. 5. Literal interpretation of the provisions of this title would deprive the Applicant of rights commonly enjoyed by other properties in the same zoning district. 6. The approval of the variance will be consistent with the purpose of this title and the zoning district in which the property is located. 7. The variance will not allow an increase in the number of dwelling units permitted by the zoning district. 8. The authorization of such variance will not adversely affect the comprehensive plan. 9. The variance shall not allow a land use which is not permitted under the zoning district in which the property is located. 10. The variance shall not change any regulations or conditions established by surface mining permits, conditional use permits, or contracts rezones authorized by the city council. Conclusions Based on Findings I. The Applicant's property is not subject to unique physical conditions that would cause unnecessary hardship if the development standards where strictly adhered to. The subject property is similar in size and shape to other lots in the surrounding area. No topographical conditions exist that impact adherence to City development regulations. The physical conditions of the property are not unique and do not create hardship. Findings of Fact No.4. 2. Restricting the Applicant to strict conformity with the fence height limitations of the code would not prevent reasonable and harmonious use of their property. The Applicant seeks to legalize an existing over height fence. A fence is a permitted use within the R-2 zoning district and, when of legal height, does not require a building permit for its construction. Fences that are aesthetically pleasing and provide for safety, privacy, and security are a reasonable and harmonious use of residential property. Fences that adversely impact the surrounding neighborhood by creating vehicular and pedestrian safety issues are not a reasonable and harmonious use. Limiting the Applicant to a 42-inch fence height in the front and street side yard setback would not prevent the Applicant from utilizing the property in a reasonable and harmonious way. Findings of Fact Nos. 1, 2, 7, 8, 9, 11, 12, and 14. 3. The proposal would alter the character of the neighborhood. The subject property is located within the urban growth area. The surrounding neighborhood is developed with single-family residences on similarly sized lots. City Staff did not observe any other fences Chekota Fence Height Variance, VAR06-0002 City of Auburn Hearing Examiner Findings, Conclusion, and Decision Page 6 of8 of this height within the front yard setback of neighboring properties with the exception of the mobile home park to the east. Although the design of the fence may be aesthetically pleasing, there is a viable concern in regards to the impact on sight distances for vehicular and pedestrian traffic and, in establishing a precedent for fences that create a "walled off' appearance within the residential community. Findings ofF act Nos. 2, 3, 8, 9, 11, and 13. 4. The special circumstances and conditions associated with the variance are a direct result of the actions of the Applicant. The only special circumstance associated with the variance is the presence of the existing fence. A City Code Enforcement Officer previously advised the Applicant of the City's standards in regards to fence height limitations within the R-2 zone. Despite this advisement, the Applicant completed construction of the fence at its present height. Therefore, the existing, non-conforming fence is a direct result of the Applicant's actions. In addition, the Applicant purchased the residence in 2003 and should have been fully aware of the traffic volumes on "R" Street SE and the potential impacts from this traffic. Findings of Fact Nos. 5, 6, 8, 9, and 10. 5. Literal interpretation of the code provisions would not deprive the Applicant of rights commonly enjoyed by other properties in the same zoning district. There are no other fences of this height within the front yard or street side yard setbacks of neighboring properties with the exception of Mr. Blumenstein's fence of 72 inches. Adherence to the height limitations set forth in ACC 18.42.020(A)(l)(a) would not deprive the Applicant of rights enjoyed by others within the surrounding community. Findings of Fact No. 11. 6. Denial of the variance would be consistent with the purpose of the code and the R-2 zoning district. A fence is allowed within the residential zoning district and is consistent with the residential nature of the zone. The purpose of the City's zoning code and development regulations is to facility adequate provisions for, among other things, essential light, air, and open space and, to create and preserve an attractive municipality and environment in which the citizens of Auburn can derive a sense of community. Allowing for fences that exceed the maximum allowable height limits does not create open communities but rather separated, walled, and divided communities. Code provisions provide exceptions to fence height limitations for residence with two street frontages but only if the property does not have vehicles access from the arterial and the fence is setback five feet. These code provisions are intended to not only provide for aesthetically pleasing communities but for vehicular and pedestrian safety. Since the subject property has vehicle access from "R" Street SE, permitting the existing fence would be inconsistent with the purpose of the code. Findings of Fact Nos. 2, 3, 11, 12, and 13. 7. The variance would not allow an increase in the number of dwelling units permitted by the zoning district, will not go against Comprehensive Plan policies, will not allow a land use not permitted under the zoning district, and does not involve regulations or conditions established by surface mining permits, conditional use permits, or contract rezones authorized by the city council. Findings of Fact Nos. 1, 3 and 15. Chekota Fence Height Variance, VAR06-0002 City of Auburn Hearing Examiner Findings, Conclusion, and Decision Page 70f8 DECISION Based upon the preceding Findings and Conclusions, the request for a variance from maximum allowable front yard and street side yard fence height limitations as set forth in ACC 18.48.020(A)(l)(a) is DENIED. The Applicant shall bring the existing fence into compliance with the fence height limitations set forth in ACC 18.48. ?{ 5q-- --- Decided this~ay of March, 2006. J es M. Driscoll ity of Auburn Hearing Examiner Chekota Fence Height Variance, VAR06-0002 City of Auburn Hearing Examiner Findings, Conclusion, and Decision Page80f8 I I I I I I I I I I I ;L 1 :"II 1 :i I :it:: [[1 '1 )1/ I-----i I I I' I I r " s .- I f-- I ~. ~1 ! I ~ T~t- ~- ~I L= :: ~4" t- ~ :>>1. :"111= I ___---1 25 H ST t-~::J .. :::iT. :"II~ S I II tIl I I =:: I =-' ?6 -~H ~ st -, 1 ...:t:l Ir ~I- I . I \ ~ , r i I EXHIBIT .3 ~ r I ~~IT Sl~ 1 r I I I. h I~. [7r-1 ~I~' i't~ ~, - ~ I l'Jfg ~~-- ~ fJ e;\ \::;yt VARIANCE APPLICA rlON . . . . . . .' J 3' {!)iz . .. u -- rg ~.:_'~~>";}:;;.::<~~~~... .... .......... ". "............ .. .....: ~~Kn))7'< . fl44~J-'~.t;fVl?~.~ ~~""'-"'-"'>~'~""--""_'/""H"" ~lWJ>:~\: -~>'L..fc..<:. \ ". ..'~~',",."',:'" "'''.' ..... " . .... " . . - ..".. - ".. '. ,-:' .~;. :. . . .- -". . "... '. . . zooe:,~~:.:'>..::.':. ""; '.' ,.-'..~~..~___:..:< .:..;~~__:.....:..,...: '.. ~~_~:. '.': .' .' Heari,ngllafe:' :. .'. .... ,. Staff~::'-. Information above wll beCOlTipletec;l by staff COMPlETE THIS FORM WITH ALL ENTRIES BEING TYPED (except sigIIabns) OR NEATLY PRINTED IN INK. IF ADDED SPACE IS NEEDED, ADD THE ADDITIONAL REQUIRED PAGES TO THIS APPLICATION. 1. Please give 8 generaf desaiption of your request and. if you wish. provide other Information that you feel supports Ihe variance. Variance request to IegaIze Ihe existing over height fence wfttin front yard. The existing fence provides welfare and safety for cu dog, enjoy our privacy and due to heavy traftic and vehicle lights Ihe height of Ihe fence eliminate Ihe nuisance of Ihe vehicle lights, Iraffic noise, thus help LIS erjoy Ihe use of Ihe property . 2. What unique physical conditions, including narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions, are BSsociated.wittJ your property? Property is located in Ihe comer of 8 heavy arterial Road of R STREET AND 23fID ST SE. QXHIBIT .!:L .t:.':;~ 3. What phYSical conditions are present that will not allow a reasonable and hannonious use of your property? As stated in #2, Vehicle lights due to heavy traffic, no privacy, danger to our dog from dog deceases, and dog bites from other dogs walking Will NOT allow us to live reasonable and harmonious use of our property. 4. How will the variance not alter the character of the neighborhood, or be detrimental to surrounding properties in which your property is located? The variance ,if granted, will not alter the character of the neighborhood, or be detrimental to surrounding properties in the property is located. There are fences in the surrounding neighborhood with this height and or higher within front yard setback. 5. Are there special circumstances and conditions associated with the variance request that may be the result of the actions of the applicant or previous owner? That the special circumstances and conditions associated with the variance are not a result Of the actions of the applicant or previous owners. ifiance Application "Iised 1111712005 Page 4 of6 ALL PROPERTY OWNERS INCLUDED IN THIS APPLICATION MUST BE LISTED BELOW OPPOSITE A "PARCEL NUMBER" WHICH IS ALSO SHOWN ON THE LEGAL DESCRIPTION AND INDICATES THE PROPERTY OWNED BY EACH APPLICANT. YOUR SIGNATURE ALSO INDICATES YOU HAVE READ AND UNDERSTOOD THE CONTENTS OF THIS APPLICATION AND ITS ATTACHMENTS RIGHT OF ENTRY: BY SIGNING THIS APPLICATION, I GRANT THE CITY AND ITS AGENTS THE RIGHT TO ENTER UPON THE PROPERTY FOR PURPOSES OF CONDUCTING NECESSARY INSPECTIONS TO DETERMINE COMPLIANCE WITH APPLICABLE LAWS, CODES AND REGULATIONS, UNTIL SUCH TIME THE VARIANCE PROCESS IS COMPLETED. PARCEL NUMBER NAME, ADDRESS AND PHONE NUMBER (Please Print) SIGNATURE! J DATE ~\~~ O~ O~, O~ ~).Of. VlK\O~C~ ~~"?T.~E. f\-\.\!) u e-tJ ( W f\ q good- , Fax number :><... E-mail address r "~\(U\W ~ eoMca.~,. \J c'". Fax number E-mail address DESIGNATED CONTACT PERSON: 1'i{~~C\\6-~\~ . , .,', '. . (~?))~~~~k\e-~SX~b3)?tD-~~4;L~ . Fax: ' (e:eLb- V4\~<3CtJ~ E-mail address: C\\ c~LM.u ~ c...em ~T \ ~ E:.~ . . Name: Address: Phone: Variance Application Revised 11/1712005 Page 5 of 6 Please circle the best method to contact you: regular mail; fax; e-mail LEGAL DESCRIPTION OF PROPERTY LU\ ~ '\ bL~.:J,. WOLfE~ -A L Md. Variance Application Remed 11N712OO5 Page 6 of6 ~ EXHIBIT S CL- EXHIBIT S- j EXHIBIT I-c. AUBURN AGENDA BILL APPROVAL FORM WASHINGTON Aqenda Subiect Public Hearing Application No. VAR06-0002 Department: Planning Attachments: Please refer to Exhibit List Date: 3/16/2006 Budget Impact: NA Administrative Recommendation: Hearing Examiner to deny the Variance as requested, based upon the Findings of Fact and Conclusions as outlined. Backqround Summary: OWNER/APPLlCANT: Viktor Chekota REQUEST: Variance request to legalize an existing over height fence within a front yard and side street side yard setback. The existing fence is approx. 5 feet in height, whereas the Zoning Code establishes a height limit of 42 inches (35ft ) . . LOCATION: 1540 23rd St. SE I I EXISTING ZONING: R2, Single Family Residential EXISTING LAND USE: The site is occupied by a single family residence facing 23rd St., with a detached garage accessing off R St. SE. I COMPREHENSIVE PLAN DESIGNATION: Single Family Residential SEPA STATUS: Exempt I ! Reviewed by Council & Committees: i ReViewed by uepartments & Divisions: ~ArtS Commission COUNCIL COMMITTErs ~ Building ~ M&O Airport ~ Finance Cemetery Mayor Hearing Examiner Municipal Serv. Finance Parks Human Services Planning & CD Fire Planning Park Board Public Works Le al Police Planning Comm. Other I Pu%lic Works Human Resources Action: Committee Approval: BYes BNO Council Approval: Yes No Call for Public Hearing _1_1- Referred to Until I I I Tabled Until I_I Councilmember: Norman I Staff: Pilcher Meeting Date: March 8, 2006 I Item Number: EXHIBIT i.- AUBURN * MORE THAN YOU IMAGINED Staff Report Vicinity Map Application Notice of Public Hearing Affidavit of Posting Affidavit of Mailing Confirmation of Publication of Legal Notice Aerial Photograph Notice to Correct Violation Photos of fence 006 rrounding properties Land Use ingle Family Home ingle Family Home ingle Family Home Mobile Home Park ingle Family Home nd detached garage hed garage facing 23rd ing space. A driveway , 2005, At the time, the till not completed, applicant at his e contrary to the tly issued on January 3, City of Auburn, but line is to be considered Aqenda Subiect Public Hearing VAR06-0002 Date: 3/16/2 The Comprehensive Plan designation, zoning designation and land uses of the su are: Comprehensive Zoning Plan Site Single Family R2 Single Family Residential Residential North Single Family R2 Single Family Residential Residential South Single Family R2 Single Family Residential Residential East High Density RMHP Residential Residential Mobile Home Park West Single Family R2 Single Family Residential Residential EXHIBIT LIST Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 S S S S FINDINGS OF FACT: 1. The applicant's site is occupied by a single story single family residence a that faces R St. SE. The residence appears that it may have had an attac St. SE at some point in time that has subsequently been converted into liv accessing 23rd extends from the street to the house. 2, A Code Enforcement action was initiated for this property on November 3 existing fence was under construction. In mid-November, with the fence s Enforcement Officer Joiner discussed the fence height limitations with the residence. The applicant later proceeded to continue constructing the fenc information provided to him. A Notice to Correct Violation was subsequen 2006. 3. Building permits for fences 6 ft. or less in height are not required within the there are Zoning Code standards that regulate fence height. 4. Whenever a lot fronts on an arterial street, the Zoning Code states that lot the front lot for the lot: 18.04.570 Lot lines. "Lot lines" means the lines bounding the lot. A. Front lot line: Page 2 of 6 Aqenda Subiect Public Hearing VAR06-0002 Date: 3/16/2006 1. For an interior lot, the front lot line shall be that lot line which abuts the street right-of-way. 2. For a corner lot, the front lot line shall be that lot line(s) which abuts a designated arterial If neither or both is/are a designated arterial, the builder/owner shall at the time of applying for a permit have the option of selecting which lot line shall be the front lot line, the other line lot abutting the intersecting street shall become a street side yard. 5. The following provisions of the Zoning Code determine the maximum height for a fence within the various yard setback areas on a lot: 18.48.020 Fences. A. Height Regulations. The minimum or maximum height requirements as stipulated throughout this chapter shall be considered to be met if the height of the fence is within six percent of the height required. The height of the fence shall be determined from the existing, established grade on the property 1. The following regulations shall apply in the R-S, LHRS, R-1, LHR1, R-2, LHR2, R-3, LHR3, R-4, LHR4, R-MHP, LHRMHP, RO, RO-H, I, LHI, CN, C-1, LHC1, and C-2 districts: a. Fences may be constructed to a height not to exceed the following in each of the required setback areas, as regulated per each zone, or as modified by subsection B of this section: Front yard: 42 inches; Side yard: 72 inches; Rear yard: 72 inches; Street side yard: 42 inches. b. Fences shall comply with the regulations of subsection (A)(1 )(a) of this section, except within residential subdivisions with lots that have two street frontages. One of the street frontages must be an existing or planned arterial street and the lots do not have vehicle access to said arterial In such cases a fence that is taller than 42 inches and up to six feet high may then encroach into the yard setback abutting the arterial street subject to the following: if such a fence is proposed it must be for all or a majority of the arterial street frontage the subject lots abut Individual fences, taller than 42 inches, on independent lots will not be permitted in the required setback area. A five-foot width of landscaping, including deciduous trees planted at an average spacing of 25 to 30 feet, is required between the fence and the abutting arterial A homeowners' association, or similar organization, is required and shall perpetually maintain the fence and the landscaping. The developer and/or homeowners' association shall provide evidence of such perpetual maintenance. The planning director shall approve of the fence material, landscaping and evidence of the homeowners' association maintenance and the timing of the installation of fence and landscaping. 6. Per the Zoning Code standards noted above, the R St. SE frontage of the applicant's lot would be considered the front line and the 23rd St. SE frontage a side street yard. In both instances, maximum fence height is limited to 42 inches, 7. The fence height along the 23rd St. SE frontage is 52 inches in height and located directly in back of the sidewalk. In order to avoid a large tree located at the lot corner at R St. SE, the fence "cuts the corner" beginning at a point approx. 17 ft. west of the R St. SE sidewalk and the angling to a point approx. 24 ft. south along R St. from its intersection with 23rd. From this point to the driveway accessing the detached garage, the fence is 6 ft. 3.5 inches in height. The height of the fence then decreases when it turns back into the lot and extends along the side of the driveway. 8. The fence is a solid wood fence with no openings. 9. R St. SE is classified as Minor Arterial Street according to the City's Transportation Plan Average daily traffic counts along this stretch of R St. were approx. 11,200 in 2005. Page 3 of 6 Aqenda Subiect Public Hearing VAR06-0002 Date: 3/16/2006 10. Both R St. SE and 23rd St. SE have sidewalks separated from the street by a planter strip that consists of lawn. 11. Game Farm Park, a major park facility in the City, is located approx. % mile to the south along R St. SE and is potentially a primary pedestrian destination for residents within the area. 12. The mobile home park to the east features a fence taller than 42" located along its entire frontage with R St. SE. The fence is located behind approx. 6-10 feet of landscaping, which in turn is located behind the integral curb and sidewalk. 13. Staff conducted a site visit on March 3, 2005 to verify site and neighborhood conditions. 14. On March 6,2006, the Auburn City Council overturned the Hearing Examiner's decision to deny a fence height variance request (VAR05-0013, Picazo) and directed staff to draft proposed amendments to the Zoning Code to allow higher fences along lot lines abutting streets. 15. The case file (VAR06-0002) and its contents are hereby incorporated by reference. CONCLUSIONS: Staff has concluded that the requested variance should be denied as requested, as the applicant has not met the burden of proof in demonstrating that it is consistent with all of the following criteria necessary to grant the variances as outlined in Auburn City Code Section 18.70.010(A) (1) through (10). However, the Examiner may choose to favorably consider a modified fence design that does not cause potential safety hazards. An analysis of the application supporting the variance criteria follows. 1. That there are unique physical conditions including narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardships arise in complying with provisions of the Zoning Ordinance. The applicant's lot is similar in size to others found in the area. Being on the valley floor, topography is not a relevant factor. The lot is located along R St. SE, a Minor Arterial street. Traffic on the street could adversely impact outdoor activities in the applicant's yard from both a noise and privacy standpoint. 2. That, because of such physical conditions, the development of the lot in strict conformity with the provisions of the Zoning Ordinance will not allow a reasonable and harmonious use of such lot. Other homes along the west side of R St. SE either do not have fences, or have fences that conform with the height limitations of the Zoning Code. Staff understands the desire to provide privacy fencing around a back yard when it is adjacent to an arterial street. However, it is important to maintain visibility where a driveway enters the street. It also appears unnecessary to have a 4.5 ft. tall fence to separate a front yard from the street (23rd St. SE) in order to allow a reasonable use of the property. 3. That the variance, if granted, will not alter the character of the neighborhood, or be detrimental to surrounding properties in which the lot is located. For nonconforming single- Page 4 of 6 Aqenda Subiect Public Hearing VAR06-0002 Date: 3/16/2006 family homes, this finding is determined to be met if the features of the proposed variance are consistent with other comparable features within 500 feet of the proposal. Staff is concerned with establishing a precedent for fences greater than 42 inches in height that could establish a "walled-off" appearance in residential neighborhoods where homes face a street. Staff is not as concerned with the desire to erect a taller fence to screen what would be considered the "private" outdoor space of a yard from an arterial street. However, the current fence height presents a sight distance hazard adjacent to the driveway entering onto R St. SE. Staff did not observe any other fences of this height within front or side street yard setbacks in the surrounding neighborhood. 4. That the special circumstances and conditions associated with the variance are not a result of the actions of the applicant or previous owners. Based upon the records of the code enforcement officer, the applicant apparently completed construction of the fence with full knowledge of the limitations of the Zoning Code. 5. Literal interpretation of the provisions of the Zoning Code would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district. Owners of lots not located at street corners are allowed to fence their back yards with 6 ft tall fences. Current City regulations typically do not allow fences greater than 42 inches in height when a lot line abuts a street. 6. The approval of the variance will be consistent with the purpose of the Zoning Code and the zoning district in which the property is located. The stated purpose of the regulations of the Zoning Code (ACC 18.52.010) are to "enhance and maintain the aesthetic character, to promote the public health, safety and general welfare, and to increase the effectiveness of visual communication within the City This chapter is also intended to avoid visual clutter that may adversely impact traffic and pedestrian safety, or be adverse to the property values, business opportunities and the City's appearance and to prevent and abate public nuisances." The City's Transportation Planner has noted that the fence along R St. SE "presents a sight distance problem which could endanger the safety of both the property owner and the public walking or driving nearby. Recommend reducing the fence height to no higher than 42 inches." There are no particular statements within the purpose section of the R2 zone that apply to this proposal. 7. The variance will not allow an increase in the number of dwelling units permitted by the zoning district. Not applicable. 8. The authorization of such variance will not adversely affect the Comprehensive Plan. Not applicable. Page 5 of 6 - -- -- I - - - 3/16/2006 9. The variance shall not allow a land use that is not permitted under the zoning district in which the property is located. Not applicable. 10. The variance shall not change any regulations or conditions established by surface mining permits, conditional use permits or contract rezones authorized by the City Council. There are no other regulations or conditions that apply. RECOMMENDATION Based upon the application and Findings of Fact and Conclusions of the staff report, Staff recommends the requested variance be denied as requested by the applicant. Should the Examiner decide to approve the variance in part, staff recommehds the fence height be reduced to 42 inches along the 23rd St. SE frontage and continuing along R St. SE to a point parallel with the front of the house. The fence should also be required to be reduced in height to no more than 42 inches within the sight distance triangle adjacent to the driveway, per the direction of the Traffic Engineering division. Staff reserves the right to supplement the record of the case to respond to matters and information raised subsequent to the writing of this report. Page 6 of 6