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HomeMy WebLinkAboutITEM III-AAUBURN WASH[NGTON AGENDA BILL APPROVAL FORM Agenda Subject: Ordinance No. 6150 "Gazhenko Conditional Use Permit" Date: A lication No. CUP07-0003 Janua 30, 2008 Department: Planning, Building, Attachments: Ordinance No. 6150, Budget Impact: N/A and Communit Administrative Recommendation: City Council introduce and adopt Ordinance No. 6150. Background Summary: The case was placed on the agenda of the regular City Council meeting on Monday, December 17, 2007. At that meeting, the City Council decided to conduct a closed record hearing on the Conditional Use Permit request. In accordance with ACC 18.66.170, "upon (conducting) its own closed record hearing the City Council may affirm, reject, (or) modify the hearing examiner's recommendation or take whatever action it deems appropriate pursuant to law." Ordinance No. 6150, if adopted, would affirm the Hearing Examiner's recommendation. Staff is recommending the Council affirm the Examiner's recommendation and adopt Ordinance No. 6150. 03.10.1 CUP07-0003 Reviewed by Council 8~ Committees: Reviewed by Departments & Divisions: ^ Arts Commission COUNCIL COMMITTEES: ®Building ^ M&O ^ Airport ^ Finance ^ Cemetery ^ Mayor ® Hearing Examiner ^ Municipal Serv. ^ Finance ^ Parks ^ Human Services ^ Planning & CD ®Fire ®Planning ^ Park Board ^ Public Works ^ Legal ^ Police ^ Planning Comm. ^ Other ®Public Works ^ Human Resources ^ Information Services Action: Committee Approval: ^Yes ^No Council Approval: ^Yes ^No Call for Public Hearing _/ /_ Referred to Until _/_/ Tabled Until _/_/_ Councilmember: Norman Staff: Baker Meetin Date: Februa 6, 2008 Item Number: III.A ~~$j jj * MORE THAN Y4U IMAGINED ORDINANCE NO. 6150 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, APPROVING A CONDITONAL USE PERMIT TO ALLOW A TRIPLEX WITHIN AN R2 SINGLE FAMILY RESIDENTIAL ZONE AT 504 H STREET NE, AUBURN, WASHINGTON WHEREAS, Application No. CUP07-0003, dated August 31, 2007, was submitted to the City of Auburn, Washington, by Leonard Gazhenko for approval of a Conditional Use Permit to allow a triplex within the R2 Single Family Residential Zone, at 504 H Street NE in Auburn, Washington; and WHEREAS, said application was referred to the Hearing Examiner for study and public hearing theron, along with staff review; and WHEREAS, the Hearing Examiner held a public hearing to consider said application in the Council Chambers of the Auburn City Hall, on October 17, 2007, and the Hearing Examiner recommended approval of the application on December 6, 2007, subject to two conditions; and WHEREAS, a request for reconsideration of the Hearing Examiner's recommendation was filed by neighbors of the subject property on December 17, 2007, and the Hearing Examiner issued a response to the request for reconsideration on January 9, 2008, affirming the recommendation; and WHEREAS, on December 17, 2007, the City Council decided to conduct a closed record hearing on the Conditional Use Permit request; and Ordinance No. 6150 January 30, 2008 Page 1 WHEREAS, on February 6, 2008, the City Council conducted a closed record hearing and considered said application and approved the Hearing Examiner's recommendation and proposed conditions for the issuance of a Conditional Use Permit (CUP) to allow a triplex within an R2 Single Family Residential Zone at 504 H Street NE in Auburn, Washington based on the following Findings of Fact and Conclusions, to-wit: FINDINGS OF FACT Procedural: 1. Applicant. The applicant is Leonard Gazhenko 2. Hearing. The Hearing Examiner conducted a hearing on the application at 5:30 p.m. at Auburn City Hall in the Council Chambers on October 17, 2007. Substantive: 3. Site/Proposal Description. The applicant proposes to build a triplex at 504 H Street N.E. in R2 (single-family residential) zone. The site is flat and contains a single-family home built in 1941, which is proposed to be removed prior to the construction of the triplex. The property is at the southeast corner of the intersection of Fifth Street N.E. and H Street N.E. The triplex would be accessed off of H Street N.E. via a 12-foot-wide, paved driveway. As noted in an October 12, 2007, letter from Sarah Meier (Exhibit No. 13), the subject property houses over 35 trees, many of them mature with heights of up to 65 feet. As shown in the site plan (Exhibit No. 2), the applicant proposes to retain about six of these trees in addition to some shrubs. Stormwater is proposed to be addressed by an infiltration trench on the northwest side of the property. The applicant also proposes asix-foot cedar fence along the north perimeter of the property. A 48- inch chain-link fence is currently located on the east perimeter of the property. Each triplex unit will contain three bedrooms and will have atwo-stall attached garage. The garages will have paved areas for backing and on-site maneuvering. The subject lot is 23,116 square feet in size. 4. Characteristics of the Area. The subject property is surrounded by single- family homes in a setting aptly described by one of the neighbors as "quaint, cozy, Ordinance No. 6150 January 30, 2008 Page 2 and cottage-like." The homes are relatively modest in size and located in a park- like setting with an abundance of trees and well-maintained landscaping. Neighbors clearly take great pride in their neighborhood and the "small-town" atmosphere they have created for themselves as an enclave from surrounding urban development. Surrounding homes are relatively modest in size and are generally several decades old. Landscaping and trees are mature. The subject property is located one residential property north of Messiah Lutheran Church, which is in the process of expanding and remodeling. Directly south of the church is Auburn High School. The subject property is located one residential property east of the high school football field. On-street parking is available along either side of Fifth and H Streets. 5. Adverse Impacts. The extensive testimony on the project raised several issues, which will be addressed individually below: A. stormwater drainage. Photographs were presented (Exhibit No. 13) showing flooding on H Street N.E. and Fifth Street N.E. According to the testimony of another individual, .this flooding problem has improved since the photographs were taken, which was apparently 18 months ago. Several people expressed concern that the addition of .significant impermeable surface to the subject property, in addition to the removal of the trees and other vegetation, would exacerbate the drainage problems on H Street N.E. and Fifth Street N.E. Staff responded that stormwater runoff created by the development would be retained onsite by the proposed infiltration trench, which would involve piping that would direct water to soil layers that are able to absorb stormwaters of 100-year flood events. There was no evidence presented in the record that this infiltration system would not be adequate to handle the stormwater runoff created by the development. Given the absence of this evidence and the expertise of staff, the Examiner finds that the project adequately addresses stormwater drainage and that this project will not add to the drainage problems on H Street N.E. and Fifth Street N.E. B. Fencin Some people were concerned that the six-foot-high fence required by the Planning Department would not be consistent with the open character of the neighborhood and would also serve as a magnet for graffiti. The Examiner agrees and for this reason, and in furtherance of ensuring compatibility with the park-like setting of the neighborhood, recommends that the Council condition the project to replace the six-foot fence with a vegetative wall. C. Traffic and parking. Several comments were made that the neighborhood suffers from congestion and parking problems during school and church events. It is also felt that garages are often just used for storage and that it Ordinance No. 6150 January 30, 2008 Page 3 is likely that the garages will not be used for parking. The staff testified that the streets that serve the project are well within the level of service assigned to those streets and that the traffic generated by the units is far below the threshold under City requirements that triggers a traffic study. Although garages are sometimes used for storage at the expense of parking,. it does .appear unlikely that a homeowner would use a garage for storage if off-site parking were a serious problem. Furthermore, the traffic impacts generated by the project are well within the range of traffic impacts deemed acceptable under City traffic standards. Given these factors, the traffic impacts of the project are adequately addressed. D. Rental units. Concerns were raised that the units would be rented as opposed to sold and that this would attract "low-income" persons who would not maintain their property. Using a zoning code, or any regulation, to discriminate against persons due to their income is likely to violate state and federal constitutional equal protection requirements. Further, the property owner has stated that his intent is to sell the units individually. As noted by staff, the applicant is legally authorized to sell .individual units under the state's condominium laws. See Chapter 64.32 RCW and Chapter 64.34 RCW. Given these factors, the Examiner finds that the concerns over rental of the triplex units is neither factually nor legally supportable. E. Neighborhood Compatibility. As noted previously, the neighborhood qualifies as "quaint, cozy and cottage-like." .There is no question that this is a very desirable, place to live and that any new development must be sensitive to the beauty and serenity of the neighborhood. There is also no question that abig-box development for a triplex without mitigation would not be compatible with the modest scale of the surrounding homes and the park-like setting in which they are located. However, the project has been designed and mitigated to provide for a legally acceptable level of compatibility. As shown in Exhibit No. 2, the triplex is significantly modulated from one unit and garage to the next as well as within the rooflines. As conditioned with a vegetative fence and as designed with the retention of several mature trees, the project also contributes to and blends in with the park-like setting of the surrounding homes. Given these factors, the Examiner finds that the proposed triplex is compatible with the single-family character of the surrounding neighborhood. Ordinance No. 6150 January 30, 2008 Page 4 CONCLUSIONS OF LAW Procedural: 1. .Authority of Hearing Examiner. ACC 18.64.020(A) grants the Hearing Examiner with the authority ~to review a request for a Conditional Use Permit and make a recommendation to the City Council Substantive: 2. Zoning Designation. The property is zoned R2, single-family residential. 3. Review Criteria and Application. ,Triplexes are permitted within an R2 zone if the underlying lot is at least 18,000 square feet and the criteria for a conditional use permit are met. See ACC 18.14.030(F). Since the subject parcel is 23,116 square feet in size, the lot size requirement is met. The criteria for a conditional use permit are satisfied as outlined below where each criterion is in italics and the application to the project is applied in corresponding Conclusions of Law. ACC 18.64.040(A): The use will have no more adverse effect on the health, safety or comfort of persons living or working in the area and will be no more injurious, economically or otherwise, to property or improvements in the surrounding area than would any use generally permitted in the district. 4. The primary permitted use in the R2 zone is asingle-family dwelling. See ACC 18.14.020(A). The minimum lot size for the R2 zone is 6,000 square feet. See ACC 18.14.040(A). Consequently, the impacts of the proposed triplex must be compared to the potential to construct three separate single-family homes in the same location. Further, it must be recognized that there are no limits to the size of the homes that could be built on three separate lots and, therefore, no guarantees that the homes that would be built at this location would be of compatible scale to those in the surrounding area. Given the modulated design of the project and vegetative screening from adjoining uses, there is nothing to suggest that the proposed triplex would be more injurious, economically or otherwise, to property improvements in the surrounding area than would be permitted outright. In fact, single-family homes that would not be subject to size, design or screening restrictions could create a much more significantly adverse aesthetic impact than the triplex proposal. Ordinance No. 6150 January 30, 2008 Page 5 ACC 18.64.040(B): The proposal is in accordance with the goals, policies and objectives of the Comprehensive Plan. 5. As noted in the staff report, the project is consistent with Auburn Comprehensive Plan Policies LU-12 and LU-14 in that the project adds to the mix of housing types and is under the six-unit-per-acre density cap recommended by Policy LU-14. ACC 18.64.040(C): The proposal complies with all requirements of this title. 6. As noted previously, the proposal satisfies the R2 criteria for multiple-family dwelling by exceeding 18,000 square feet in area for a triplex. The proposal also meets the off-street parking requirement of ACC 18.52.020(A)(3) by providing two parking stalls per each three-bedroom triplex dwelling unit. There is nothing within the record to suggest noncompliance with any other requirements of the City's Zoning Code. ACC 18.64.040(D): The proposal can be constructed and maintained so as to be harmonious and appropriate in design, character and appearance with the existing or intended character of the general vicinity. 7. The criterion above is the most relevant and difficult to apply to the subject property. It is unlikely that there would be any neighborhood in the City of Auburn where a triplex would be more out of place than the one in this application. As noted in the Findings of Fact, if the applicant were just proposing an unmitigated box-like triplex, there would be no question that the proposal would not be harmonious or appropriate in design, character and appearance with the surrounding neighborhood. It is likely that if the size of the triplex was compared to the size of the surrounding homes and also that the percentage of lot coverage were compared that a person could objectively conclude that the triplex is not harmonious in scale with the surrounding community. However, when the actual design of the project is taken into account as well as the mitigation as discussed in the Findings of Fact, the project is acceptably harmonious with the surrounding community. In arriving at this conclusion, it must be recognized that the City is severely limited in its discretion to impose code criteria such as "harmonious" and "appropriate." The Washington State Supreme Court has invalidated design regulations as being unconstitutionally vague due to design criteria such as "interesting" and "harmonious." See Anderson v. City of Issaquah, 70 Wn. App. 64 (1993). As noted by the Anderson court: Ordinance No. 6150 January 30, 2008 Page 6 The statute which either forbids or requires the .doing of an actin terms so vague that men [and women] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. 70 Wn. App., at 75. In applying this constitutional standard to the design requirements. of the City of Issaquah, the Court was critical of the fact that "in attempting to interpret and apply this code, the Commissioners charged with that task were left with only their own individual, subjective 'feelings' about the 'image of Issaquah' and as to whether this project was 'compatible' or 'interesting."' Given the Anderson Decision, the City of Auburn must be very careful how it applies vague standards such as "harmonious" and "appropriate." If it applies these terms too broadly, to the point where the determination is based on the feelings of the decisionrnaker, the interpretation (and application) will be struck down as unconstitutional. Consequently, even though many, if not .all, residents of the surrounding neighborhood may "feel" that the project as designed and mitigated is still not compatible with their neighborhood, it is likely that others (such as the applicant) may reasonably conclude to the contrary. The fact of the matter is that the R2 zoning district does authorize triplexes within single-family homes. If a triplex is reasonably mitigated to the extent that it is arguably compatible with surrounding uses, the City does not have much latitude to find noncompliance with the criterion above. ACC 18.64.040(E): The proposal will not adversely affect the public infrastructure. 8. As noted in the Findings of Fact, as proposed, the project will be served by adequate traffic and stormwater infrastructure. Traffic and stormwater infrastructure will not be adversely affected by the project. There is no evidence in the Record to suggest that other public infrastructure would be adversely affected by the project. ACC 18.64.040(F): The proposal will not cause or create a public nuisance. 9. As noted in the staff report, the proposal involves a residential use in a residential zone that expressly authorizes .triplexes through a conditional use permitting process. Given these factors, the proposal will not cause or create a public nuisance. Ordinance No. 6150 January 30, 2008 Page 7 RECOMMENDATION Based upon the preceding Findings and Conclusions, the Hearing Examiner recommends City Council approval of CUP07-0003, .subject to the following conditions: 1. Prior to the issuance of a building permit, the developer shall submit for City for review and approval a landscaping plan for the installation of a five-foot wide Type III landscaping along the eastern and northern property lines that includes vegetation that will grow to at least six feet in height. The substitution of the required shrub and groundcover layers of the Type III landscaping of the sod lawn served by an automatic irrigation system per ACC 18.50.060(E) will not allowed. Prior to final inspection of the triplex, the landscaping shall be completed. Any fencing subsequently added to the property shall require an amendment to this conditional use permit. 2. The design of the proposal shall substantially conform to the site plan introduced into the record as Exhibit No. 2. Trees shall also be retained as indicated in the site plan. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. Approval. A Conditional Use Permit is hereby APPROVED based upon the Hearing Examiner's Findings of Fact, Conclusions and Recommendation to allow for a triplex within an R2 Single Family Residential Zone at 504 H Street NE (King County Parcel 182105-9142) identified in Exhibit "A" attached hereto and incorporated herein by reference, subject to the following conditions: Condition 1. Prior to the issuance of a building permit, the developer shall submit for City for review and approval a landscaping plan for the installation of a five-foot wide Type III landscaping along the eastern and northern property lines that includes vegetation that will grow to at least six feet in height. The substitution of the required shrub and groundcover Ordinance No. 6150 January 30, 2008 Page 8 layers of the Type III landscaping of the sod lawn served by an automatic irrigation system per ACC 18.50.060(E) will not. allowed. Prior to final inspection of the triplex, the landscaping shall be completed. Any fencing subsequently added to the property shall require an amendment to this conditional use permit. Condition 2. The design of the proposal shall substantially conform to the site plan introduced into the record before the Hearing Examiner as Exhibit No. 2a, a copy of which is attached hereto and incorporated herein by reference. Trees shall also be retained as indicated in the site plan: Section 2. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Section 3. Recording. Upon the passage, approval and publication of this Ordinance as provided by law, the City Clerk of the City of Auburn shall cause this Ordinance to be recorded in the office of the King County Auditor. Section 4. Implementation. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation. Ordinance No. 6150 January 30, 2008 Page 9 Section 5. Effective Date. This Ordinance shall take effect and be in force five days from and after its passage, approval and publication, as provided by law. INTRODUCED: ATTEST: Danielle E. Daskam, City Clerk APPROVEp AS z0 FORM: Daniel ~ Heid City Attorney PUBLISHED: PASSED: APPROVED: PETER B. LEWIS MAYOR Ordinance No. 6150 January 30, 2008 Page 10 Exhibit A, Ordinance No. 6150 LOT 1 AUBURN SHORT PLAT NO 9-76 REC NO 7606220804 SD PLAT DAF - POR OF SE 1/4 OF NE 1/4 OF NW 1/4 BEG AT N 1/4 COR SD SEC TH S 03-20-22 W ALG E LN SD SUBD 660.70 FT TH N 89-46-08 W 159.93 FT TO E MGN H ST NE TH S 03-20-22 W ALG SD E MGN 180.04 FT TO NXN OF S MGN OF 5TH ST NE & SD E MGN OF H ST & TPOB TH S 89-46-08 E ALG SD S MGN 159.93 FT TH S 03-20-22 W 237.76 FT TH S 79-30-22 W 164.44 FT TO SD E MGN OF H ST NE TH N 03-20-22 E ALG SD E MGN 268.41 FT TO TPOB