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Auburn City Clerk PacEeei OF 010 MISC 51.00
City of Auburn
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KING COUNTY, WA
25 West Main St. --- - - -
Auburn, WA 98001
RECORDER'S COVER SHEET
Document Title(s) (or transactions contained therein):
Resolution No. 4316
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Reference Number(s) of Documents assigned or released:
?Additional reference #'s on page of document
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Grantor(s)/Borrower(s) (Last name first, then first name and initials)
Auburn, City of
Grantee/Assignee/Beneficiary: (Last name first)
1. Gazhenko, Leonard,
Legal Description (abbreviated: i.e. lot, block, plat or section, township, range)
Lot 1, Auburn Short Plat #9-76
? Additional legal is on page of document.
Assessor's Property Tax Parcel/Account Number
1821059142
] Assessor Tax # not yet assigned
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RESOLUTION NO. 4 3 1 6
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, DENYING 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 thereon, 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
Resolution No. 4316
February 19, 2008
Page 1
WHEREAS, on February 6, 2008, the City Council conducted a closed
record hearing and considered said application and rejected and denied 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 hereby entered by the City Council, to-
wit:
FINDINGS OF FACT
Procedural:
1. Applicant. The applicant is Leonard Gazhenko.
2. Open Record Hearing. The Hearing Examiner conducted an open record
public hearing on the application at 5:30 p.m. at Auburn City Hall in the Council
Chambers on October 17, 2007.
3. Closed Record Hearing. The City Council conducted a closed record
hearing on the application on February 6, 2008 at Auburn City Hall in the Council
Chambers.
Substantive:
3. Site Description: A one-story single family residence built in 1941 exists on
a 23,116 square foot lot. The lot is relatively flat and abuts single family
residences. The lot has many trees (35 mature trees with heights up to 65 feet
according to a neighbor, Sara Meier; Exhibit No. 13). The property is at the
southeast corner of the intersection of Fifth Street N.E. and H Street N.E. A 48-
inch chain-link fence is currently located on the east perimeter of the property; no
other fencing is visible on the property.
4. Proposal Description. The applicant proposes to build a triplex at 504 H
Street N.E. in the R2 (single-family residential) zone. The single-family home is
proposed to be removed prior to construction of the triplex. As shown on Exhibit
No. 2, the triplex would be accessed off of H Street N.E. via a 12-foot-wide, paved
driveway with ahammerhead-like turnaround. As shown on the site plan (Exhibit
Resolution No. 4316
February 19, 2008
Page 2
No. 2), the applicant proposes to retain about six 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 proposed asix-foot cedar fence along the
north perimeter of the property. Each triplex unit will be two stories, each
containing three bedrooms and atwo-stall attached garage. The subject lot will
remain the same.
6. Characteristics of the Area. According to the Hearing Examiner, the subject
property is surrounded by single-family homes in a setting aptly described by one
of the neighbors as "quaint, cozy, 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.
FINDING OF FACT & CONCLUSIONS OF LAW
1. Hearing Examiner Recommendations & City Council Finding of Facts. ACC
18.64.020(A) grants the Hearing Examiner the authority to make a
recommendation to the City Council on a request for a Conditional Use Permit.
The City Council then reviews the record and affirms, remands back to the
Hearing Examiner or schedules a closed record hearing (ACC18.66.170A). The
council chose to schedule a closed record hearing in this case. After conducting a
closed record hearing, the council could either affirm, reject, modify the Hearing
Examiner's recommendations or take whatever action it deemed appropriate
pursuant to law. The following paragraphs outline the Hearing Examiner Findings
of Fact and recommendations and the Council Finding of Fact, after the closed
door session.
2. Section 18.64.040 of the Auburn City Code (ACC) states ...conditional use
permits may only be approved if findings of fact are drawn to support the following
ACC18.64.040 (A) through (F):
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. Among matters to be considered are traffic
flow and control, access to and circulation within the property, off-
street parking and loading, refuse and service area, utilities, screening
and buffering, signs, yards and other opera spaces, height, bulk, and
location of structures, location of proposed open space uses, hours
Resolution No. 4316
February 19, 2008
Page 3
and manner of operation, and noise, lights, dust, odor, fumes, and
vibration.
Hearing Examiner response: The primary permitted use in the R2 zone is a single-
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.
Council findings: The proposed triplex has greater impacts than other permitted
uses in the area because one large building creates the appearance of greater
"bulk," creates less "yard and other open space" between buildings, and the
location of the structures is not fitting with the majority of housing in the
neighborhood as single family units (ACC18.64.040). The area is mostly single
story single family.
ACC 18.64.040(B): The proposal is in accordance with the goals,
policies and objectives of the Comprehensive Plan.
Hearing Examiner response-- 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.
Council findings-- Although the Hearing Examiner found that the proposal met the
goals of the Comprehensive Plan, the council found that the proposal does not
meet Comprehensive Plan Goals 1, 4, 7, and 8. The proposal would not enhance
community quality and would detract from community character as it would have a
greater impact than other permitted uses in the area. The proposal would not fit
with the established surrounding single family residential neighborhood according
to Comprehensive Plan goals, as follows:
Goal 1. Planning Approach
Resolution No. 4316
February 19, 2008
Page 4
To manage growth in a manner which enhances, rather than detracts
from community quality and values by actively coordinating land use
type and intensity with City facility and service provision and
development. (Page 2-2 ACP).
Council findings: The multifamily triplex detracts from community quality of the
single family neighborhood. The neighborhood has seen little transition or
redevelopment and maintains a high quality of "Old Auburn," as supported by
testimony of more than 20 adjacent neighbors.
Goa/ 4. Community character
To maintain and enhance Auburn's character as a family community,
while managing potential economic opportunities in a manner that
provides necessary employment and fiscal support for needed
services, and while recognizing the need to provide human services
and opportunities for housing to a wide array of household types and
sizes. (Page 2-9 A CP)
Council findings: The council finds that the City is experiencing an increasing
change to multifamily. The multifamily triplex does not maintain and enhance
"Auburn's character as a family community' (CP Goal 4, Objective 4.1, Policy
GP29).'
Goa17. Residential development
To emphasize housing development at single family densities, in order
to reestablish a mix of housing types appropriate for a family oriented
community, while recognizing the need and desire for both lower
density and higher density housing appropriately located to meet the
housing needs of all members of the community. (Page 3-14 ACP)
Council findings: The council disagrees with the Hearing Examiner's findings in
that Goal 7 has not been met. THIS residential development does not promote the
..preservation ...of adequate housing for the city's residents by encouraging a
balanced mix of housing types (LU-12). In this case the council desires to maintain
the single family nature of the use because of the increasing multifamily
development.2
Goal 8. Neighborhood quality
NOTE: Based upon information reported at various City Council and Council Committee
meetings, 309 multifamily units were permitted in the City of Auburn between 2001 to 2005 versus
211 single family during the same time period.
z See footnote # 1.
Resolution No. 4316
February 19, 2008
Page 5
To maintain and protect all viable and stable residential
neighborhoods. (Page 3-20 ACP)
Council Findings. This neighborhood is one of the more stable residential
neighborhoods in the city and its cohesive single family residential character
should be maintained with few exceptions. The council finds that "this single family
detached residential neighborhood(s) should be protected from intrusion by non-
residential ormulti-family. (Policy LU39d)
ACC 18.64.040(C): The proposal complies with all requirements of
this title.
Hearing Examiner response-- 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.
Council finding- No Findings were made.
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.
Hearing Examiner response--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
Resolution No. 4316
February 19, 2008
Page 6
"harmonious." See Anderson v. City of Issaquah, 70 Wn. App. 64, 851 P.2d 744
(1993). As noted by the Anderson court:
The statute which either forbids or requires the doing of an act in
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 decision-maker, 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.
Council findings-- This project is not harmonious with the character of the general
vicinity. The scale of the project is not consistent with surrounding development.
In the immediate vicinity the majority of homes are single story and the proposal
involves two story townhome units. Therefore, the bulk of the structure is out of
character with the neighborhood. In addition, council disagrees with the Hearing
Examiner's blanket finding that the "R2 zoning authorizes triplexes within single-
family zones" because triplexes are clearly only permissible when and if all of the
requirements of ACC18.64.040 are met -and not all have been met in this case.
The council also disagrees that all factors can be mitigated, e.g. as a combined
structure (bulk), with an overall footprint of 6,000 square feet compared to 2,000
for each individual unit would be out of proportion with the current neighborhood's
"harmony and character." Even the Hearing Examiner's findings state, 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...".
Resolution No. 4316
February 19, 2008
Page 7
ACC 18.64.040(E): The proposal will not adversely affect the public
infrastructure.
Hearing Examiner response--As noted in the Findings of Fact, 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.
Council findings-No Findings were made.
ACC 18.64.040(F): The proposal will not cause or create a public
nuisance.
Hearing Examine response--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.
Council findings-No Findings were made.
IN CONCLUSION, for denial of the proposal, it is only necessary that the City
Council find that at least one of the necessary findings of fact for CUPs is
not supported. The City Council finds that necessary findings of fact for the
CUP are not supported by thie project.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. Denial. A Conditional Use Permit for the proposed project is
hereby DENIED based upon the above Findings of Fact and Conclusions.
Section 2. Severability. The provisions of this resolution are declared to
be separate and severable. The invalidity of any clause, sentence, paragraph,
subdivision, section or portion of this resolution, or the invalidity of the application
thereof to any person or circumstance shall not affect the validity of the remainder
Resolution No. 4316
February 19, 2008
Page 8
of this resolution, or the validity of its application to other persons or
circumstances.
Section 3. Recording. Upon the passage, and approval of this Resolution,
the City Clerk of the City of Auburn shall cause this Resolution to be recorded in
the office of the King County Recorder.
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.
Section 5. Effective Date. This Resolution shall take effect and be in force
upon passage and signatures hereon.
PASSED this % f day o.~,,~~; , 200.
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P TER B. LEWIS
ATTEST: MAYOR
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Da 'elle E. Daskam,
City Clerk
APPR'QVED~~6,FOR
City Attorney
Resolution No. 4316
February 19, 2008
Page 9