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