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44 f I F, -ED LANDSCAPE AREAS AND AREAS
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BEGINNING
OF FILE
FILE Tin
e/%'
MICROFILMED
00? 1 -- 54
Ve - D
SP o21- 3y
Affidavit of Publication
STATE OF WASHINGTON
MAY 1 4 1
COUNTY OF KING
ss.
Cindy Strupp being first duly sworn on
NOTICE OF
p
She chief clerk PUBLICHEARINGoath,deposes and says that is the of
RENTON
nnTHEDAILYRECORDCHRONICLE,a newspaper published six(6)times a
HEARING EXAMINER Pub)ie I" tiCe
week.That said newspaper is a legal newspaper and it is now and has been RENTON,
for more than six months prior to the date of publication referred to, WASHINGWIL
CONSIDER TH OLLOW
printed and published in the English language continually as a newspaper BEPH
B
BY TTHEICIRENTrONINGPETITION:published four(4)times a week in Kent,King County,Washington,and it is
LAND USE HEARING EX-
METRO - Al cation to
now and during all of said time was printed in an office maintained at the allow a 63 foe 'all metal
aforesaid place of publication of said newspaper.That the Daily Record AMINER AT HIS REGULAq tower in a G-1 z nd district
Chronicle has been approved as a legal newspaper by order of the Superior MEETING IN THE COUN• that has a heigt .mil of 35
Court of the County in which it is published,to-wit,King County, CIL CHAMBERS ON THE feet.SECOND FLOOR OF CITY GARY MEAL 3 CON-
Land Use HearingHALL , R E N T O N STRUCTION r iMPANY
Washington.That the annexed is a WASHINGTON ON APRIL (
ECF-024-84) - )
plication24, 1984, AT 9:00 A.M. TO
for special perr and site
plan approval t illow the
construction of ?ulk stor-
age facility for th hort term
storage of truck ailers in-
as it was published in regular issues(and
cluding three 9 trailers
not in supplement form of said newspaper) once each issue for a period for employee oft file SP-
021-84 and file ,-022-84,
and four variance for:(1)to
of one consecutive issues,commencing on the reduce the lanc ape set-
back along East' ley Road
from 20 feet to 1( et,file V-
13 tbay of April 19
84 ,and ending the 023-84, (2) to lute the
landscape setba along the
east property lir from 20
feet to 10 feet ar )liminate
day of 19 ,both dates the site screen fr e,file V-
inclusive, and that such newspaper was regularly distributed to its sub- 024-84 (3) to el nate the
scribers during all of said period. That the full amount of the fee 20-foot landscai setback
a
and site screen t ce along
charged for the foregoing publication is the sum of 30•• 60, •which
the south prope line, file
has been paid in full at the rate of per folio of one hundred words for the
V-025-84, and ( to allow
first insertion and per folio of one hundred words for each subsequent
structures and b storage
to be located wit 'the 60-
insertion.
foot setback alor ast Val-
ley Road,file V-C -64;pro-
perty located at ''00Eastn ",+(
Valley Road.
u U Legal descript s of the
h1,£..,Cie files noted above •e on file
in the Renton B ring and
Subscribed and sworn to before me this 13 th day of ZoninALL9 NTERES D PER-
SONS TO SAID F lITIONS
April 19?.4...
ARE INVITED Tt ,E PRE-
v4,
SENT AT PUBLIC
e
HEARING ONN . RIL 24,
1984, AT 9:00 M. TO
Notary Public in a r the State of Washington,
EXPRESS THE OPIN-
siding atMedt, King County.
IONS.
r3 e ra 1 Gla r
Ronald Nelson
Building and Zoni Director
Published in th aily Re-
Passed by the Legislature,1955,known as Senate Bill 281,effective June cord Chronicle pril 13,
9th, 1955. 1984. R9052
Western Union Telegraph Co. rules for counting words and figures,
adopted by the newspapers of the State.
VN 1,e7 Revised 5/82
y
Affidavit of Publication
STATE OF WASHINGTON
COUNTY OF KING
ss.
Cindy Strupp being first duly sworn on
oath,deposes and says thatShe is the chief clerk of MAY 1, 4 1vOc.'i
THE DAILY RECORD CHRONICLE,a newspaper published six(6)times a
week.That said newspaper is a legal newspaper and it is now and has been
for more than six months prior to the date of publication referred to,
printed and published in the English language continually as a newspaper
published four(4)times a week in Kent,King County,Washington,and it is
now and during all of said time was printed in an office maintained at the
aforesaid place of publication of said newspaper.That the Daily Record
Chronicle has been approved as a legal newspaper by order of the Superior
Court of the County in which it is published,to-wit,King County,
Washington.That the annexed is a..N.otice of...Environmental
Determination
Public Notice Pub ; Notice
as it was published in regular issues(and NOTICE OF ENVIRON- issued a fi al declaration of
not in supplement form of said newspaper) once each issue for a period MENTAL' DETERMINA- non-signdi rnce for the tot-
TION lowing prc ict:
ENVIRONMENTAL WILLI/ 4 & MARCIA1
HEATH E %F-033-84 i
of One
consecutive issues,commencing on the R ON WASHINGTONON Applicai in for
The EnvironmentalRe- aPProval
9th day of.4tP r i l 19 84 and endin
view Committee(ERC)has proximate 1.2 acres of pro-
g the issued a Anal declaration of party ink tour (4) single
non-ionificance wit condf family btu file Short PW-
tions for the following 034-84, E d variances for:
r 1)to alb a private street,
day of 19 both dates project:
MERLINO CON- Me V-03: B4, and (2) to
inclusive, and that such newspaper was regularly distributed to its sub-
STRUCTION COMPANY allow a p; Intern lot,file V-scribers during all of said period. That the full amount of the fee
ECF-02444)
033-84; k ,ated at 1303 N.
Application for special 28ak Stir (within Groan-
charged for the foregoing publication is the sum of $3 2.p.4.9 which permit and site plan approv-
belt on tl comprehensive
has been paid in full at the rate of per folio of one hundred words for the al to allow the consftuctionof Plan)•
first insertion and per folio of one hundred words for each subsequent a bulk storage fadNty forthe Further nformation re-
insertion.
C"-...
short tent of truck girding tr action is avail-
trailers including three office
able In a Building and
n
tra8srs br smptoy.e,e, Zoning Department,
L. '(/ Ile SP-021-64 and file SA- i 3,
T 0222-84, and four variances
of ERG action60. ny
Chief....C erk
Y for: (1) to reduce the land-
iith themustliesoapssetbackalongEastaaMee
Valley Road from 20 feet to Examiner iy April 23,1984.
10 Net.Ste V-02344,(2)to Pubilsr' d in the Daiy Re-
Subscribed and sworn to before me this 9 ttl day of
reduce 1M landscape ea. cord Chrc Ids April 9,1984.
I back along the east property POW
April 19.8.4.. line from 20 feet to 10 feet
and eliminate the site screen
fence, Me V-024-84, (3)to
sllminets the 20 foot land-
Notary Public i nd for the State o Washington, soaps setback and site
residing at jam, King County. screen fence along the
Federal Way
4)
line, ° V
Passed by the Legislature,1955,known as Senate Bill 281,effective June
allow '
strbe o
and built storage
to
9th, 1955.
to be klclocated within the 80
foot setback along East Val-
Western Union Telegraph Co. rules for counting words and figures, lay Rood,. _ Vim'P
adopted by the newspapers of the State. party based at East
Valley Road.
The Environmental Re-
view Comilla(ERC)has
VN#87 Revised 5/82
11111RentonCityCouncil
6/25/84 Page two
Audience Comment continued
Police Athletic tax-deductible since the group is not a charitable organize( on;
Association (cont. ) and financial statements are not available to the general p( )lic.
Advance to Old Fred Steiner, 320 Rainier Avenue S. , requested Council advar ;e
Business/Public to Old Business, Public Safety Committee Report regarding
Safety Report legalization of punchboards. MOVED BY REED, SECONDED BY
MATHEWS, COUNCIL SUSPEND THE REGULAR ORDER OF BUSINESS AND
ADVANCE TO OLD BUSINESS. CARRIED.
Public Safety Public Safety Committee Chairman Reed presented a report
Committee recommending that punchboards be legalized and the ordinance so
Punchboards amended. The Committee further recommends referral to the ( ty
Attorney and the Ways and Means Committee for final action.
The recommendation reflects the support of a majority of the
Committee; and follows a meeting with local businessmen, the
Police Chief and representatives of the State Gambling Commission
to discuss this subject. MOVED BY REED, SECONDED BY KEOLKEF
COUNCIL CONCUR IN THE PUBLIC SAFETY COMMITTEE REPORT.
Discussion indicated that revenue derived from legalization )f
punchboards would most likely be used for policing and regulation
of that activity; Renton is one of four or five other citie in
the State in which punchboards are not allowed; representati -es
of the State Gambling Commission and Renton Police Departmer
felt the only liability in allowing the activity would be
borne by the owners of the establishments. ROLL CALL: 3 AY S:
KEOLKER, REED, MATHEWS. 4 NAYS: HUGHES, STREDICKE, TRIMM,
CLYMER. MOTION FAILEC.
CONSENT AGENDA City Clerk reported bid opening 6/20/84 for Garden Avenue Nc th
Bid Opening - Local Improvement District No. 328; four bids received; Engi eer ' s
LID 328 Estimate: $492,006.42. Refer to Transportation Committee.
Bid Opening - City Clerk reported bid opening 6/18/84 for Renton Pedestria
Renton Pedestrian Corridor and Shop Site Redevelopment; two bids received;
Corridor/Shop Site Architect ' s Estimate: $304,545.00 base bid. Refer to Commun ty
Redevelopment Services Committee.
Bid Opening/Award - City Clerk reported bid opening 6/12/84 for Police Departmen
Police Department Women' s Lounge; two bids received; Engineer ' s Estimate: $10, 00.
Women ' s Lounge Park Director recommended bid award to low bidder, H. S. Bui ders,
Seattle, in the amount of $12,646.85, and authorization for ayor
and City Clerk to sign contract. Council concur.
Consent Agenda MOVED BY HUGHES, SECONDED BY MATHEWS, COUNCIL ADOPT THE CONS NT
Adopted AGENDA AS PRESENTED. CARRIED.
CORRESPONDENCE Added letter was read from David L. Halinen, representing Ga y
Merlino Appeal Merlino Construction Company, requesting withdrawal of appea
Withdrawn of Hearing Examiner 's Decision on Merlino Special Permit, Si
Plan Approval and Variances; File Nos. SP-021-84, SA-022-84,
V-02 -84 V-024-84, V-025-84, and V-026-84. Councilman
Stredicke reported t at t e appea , i e on May 25, 1984, h d
been the subject of Planning and Development Committee meeti g
on 6/21/84, and a report had been prepared for presentation
this date. (Withdrawal accepted. )
OLD BUSINESS Council President Hughes presented a letter from Lon Hurd,
Cable Rates 3-H Cable Communications Consultants, indicating disagreemen
with Group W Cable Manager that commercial rates are not und< -
guidelines of the Renton ordinance as a rate that can be
regulated by the City. Further review with the City Attorne'
was proposed by Mr. Hurd, who will then make a report to the
Council as to the rights and obligations of the City concern ig
commercial rates. MOVED BY HUGHES, SECONDED BY CLYMER, COUNCIL
REFER THIS CORRESPONDENCE TO THE COMMUNITY SERVICES COMMITTEE
CARRIED.
Public Safety Public Safety Committee Chairman Reed presented a report
Committee indicating that a meeting was held with Police Chief Al Walla ,
Additional and Captain Don Persson to discuss the request for an
Sergeant Position/ additional sergeant position in the Police Department. The
Police Department
Committee concurs in the request for the new position and
IL
recommends the City Council grant the request. Further, the
Committee recommends referral of the matter to Ways and Meanc
Committee.
7629125lib410
GARY MERLINO CONSTRUCTION CO.
General Contracting-
9125 - 10th Avenue South Seattle, Washington 98108
June 25, 1984
City Council
The City of Renton
200 Mill Avenue South
Renton, Washington 98055
RE: THE APPLICATION OF GARY MERLINO CONSTRUCTION CO. FOR A
SPECIAL PERMIT, SITE PLAN APPROVAL, AND VARIANCES
FILES NO. SP-021-84, SA-022-84, V-023-84, V-024-84,
V-025-84, and V-026-84)
Dear Council Members:
Gary Merlino Construction Co. hereby withdraws its May 25th
appeal of the Decision of the Land Use Hearing Examiner in the
above-referenced matter.
Sincerely,
GARY MERLINO CONSTRUCTION CO.
aii,,,_, 4,d,
David L. alinnen, P.E.
Applicant's Representative g
i
1
3Is
EEEM1 r
ANzi ''
1iiii
t,
1
CITY CLERK
1
frp(
6
I
OF R
1
o THE CITY OF RENTON
C.) `y © Z
MUNICIPAL BUILDING 200 MILL AVE. SO. RENTON,WASH. 9801
z
0 GIMP BARBARA Y. SHINPOCH, MAYOR • LAND USE HEARING EXA? INER
90 co-FRED J. KAUFMAN. 235- 593
P0,
9lt4.
E
E.°o SEPS
June 21, 1984
JMembJUofRentonCityCouncilers
Municipal Building CITY CLERK
200 Mill Avenue So.
Renton, Washington, 98055
SUBJECT: Variance and Bulk Storage Provisions
I would like to take this occasion to write on the question of variances and hope that tr
additional input may assist you in your deliberations.
As you are aware, the City has adopted zoning laws which limit the types of uses whic
may be established in particular zones. Within certain zones an applicant may t
permitted to establish a wide range of uses by right, and without any further review t
the City. All applicants would need a building permit and would have to comply wi
environmental regulations.
Some uses, though only after a specific review of the proposal, are permitted in zon s
from which they may normally be excluded. The effects of the use, its location, s
neighbors and its size may all work either for, or against a particular proposal. Similar y
analyzed would be the precedent of allowing the use. Bulk storage use permits fall witU n
this area. They are a discretionary use, subject to a full study and fairly strict regulatiot .
Not every site can reasonably contain every possible use; this pertains especially .o
discretionary approvals such as bulk storage uses. When a site has certain constraii is
which limit the practical use of the site then a variance may be in order. As the numt 3r
of variances necessary to permit a use to be established increases, the more the analy is
must be directed at whether the site is truly suitable for the proposed use. The grea sr
the number of variances or the greater the variance from particular standards appl 3d
generally to others, the greater the danger of diluting the standards.
Coupled with the passage of zoning laws is the inevitable amendment of those laws, eit er
increasing the standards or in some cases decreasing the standards. When requirem€ its
are tightened, as in requiring additional landscaping, or greater setbacks, or prohibit ng
certain uses altogether such as Shell Oil, the older established uses becc ne
non-conforming and the new uses, by comparison, are subject to the more strinc :nt
requirements.
The newer proposed uses may not be able to build as large, or as tall; or they may have tc
provide more landscaping, or they may not be able to build at all. Under the
circumstances, a new applicant is bound by the new standards and cannot rely on the fact
that a neighboring use constructed under older standards has gained a benefit. The City is
entitled to modify its codes and mandate stricter standards. Hopefully old uses will
eventually be broght into compliance but not if standards are relaxed for its new neighbor.
As noted earlier, not all sites are suitable for every type of use. There have been
number of sites in the City which are not suitable for manufacturing park uses becaust
the setbacks for such uses could not be accommodated on smaller lots. The same i
obviously true for bulk storage uses. Certain sites, quite possibly contrary to their owner
desires, may be unsuitable for the use proposed. That does not mean that practical use o
the site is denied, it just means that the proposed use may be impractical and th;
applicant may have to conceive a new purpose for the site.
A bulk storage use is subject to special review. Special standards have been incorporate
into the Ordinance presumably to preserve the public health, safety and welfare, an
presumably to enhance the appearance of bulk storage uses. An applicant is not entitle
to a bulk storage permit as a matter of right. The applicant has to meet strict criterii
While variances from those criteria may be warranted in certain instances, one has t
review the entire scope of the ordinance and envision the effects of relaxing th
standards. Can the site serve the purpose without the variance? Would relaxing th
standards create a precedent which could ultimately negate the beneficial purposes of th
ordinance? What would be the effect on other properties and the general public? Coul
the standards be reasonably applied to other properties if this applicant escapes th
standards or will every property owner thereafter be able to escape the standards?
The provisions of the bulk storage ordinance are equally applicable to relatively small
acre parcels. Any parcel faced with large setbacks would obviously reap greater use
the site if the setbacks and landscaping were reduced. Similarly every property owns
would reap a cost savings if fencing and/or landscaping were not required. The questio
therefore, should be - what makes the instant site unique and is the variance tru
necessary to development of the site?
All too often a property owner has a parcel which may not be suitable for the propos(
purpose - it may be too small, too steep, or too wet for the intended purpose. But
variance is not always appropriate. A variance is surely not appropriate when a site is to )
small and the only purpose of the variance would be to allow more development than
permitted by ordinance. If variances are applicable to a five acre site then they sure
become applicable to 1 acre sites which could be only approximately 210 feet on a side. f
variances are applicable to all such sites, then when would the standards apply? It bo s
down to the fact that not every site can support any use. And a variance, or worse, 3
series of variances, may not always be the remedy for the site's deficiencies.
If the City's standards are reasonable they should be enforced in an equitable mann(
There should be consistency in enforcement, and variances should only be issued wh 1
they are necessary. Variances have always been an extraordinary remedy since th y
permit a particular party to escape standards which otherwise uniformly apply to all oth r
property owners in the jurisdiction.
1
Again. I hope this assists you in your deliberations regardings requests for variances in
particular, zoning, and precedent regarding non-conforming uses in general. If this office
can be of any further assistance. please do not hesitate to call.
Sincerely
FRED J. KWUFMAN
HEARING EXAMINER
FJK/dk
cc:`/ Maxine Motor, City Clerk
Lawerence J. Warren. City Attorney
Dave Clemens, Policy Development Director
Ron Nelson. Building Official
Roger Blaylock, Zoning Administrator
4111
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o THE CITY OF RENTON
6) z
POLICY DEVELOPMENT DEPARTMENT • 235-25`.
n MUNICIPAL BUILDING 200 MILL AVE. SO. RENTON,WASH. 9 )5
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091
SEPSE4\
5
P
BARBARA Y. SHINFOCH MEMORANDUM
MAYOR
June 21, 1984
TO: Planning and Development Committee
FROM: David R. Clemens
Policy Development Director
SUBJECT: Merlino Special Permit, Site Plan Approval, and Variances
The following is a summation of the applicant's appeal followed by discussion on each of
the points raised:
Error #1:The Hearing Examiner should not have substituted "other reasonable use"
for the "undue hardship" standard established by the City code.
Discussion: The Hearing Examiner in his decision did utilize the "other reasonable
use" standard as a test to determine what is an acceptable level of "undue
hardship."
Error #2:The Examiner refused to consider other "nonconforming" uses as
justification for the variance, and should have considered the five-year
short term" proposed in the applicant's amended application.
Discussion: The Policy Development Department is unable to find any provision in
the City code which would automatically justify the use of "nonconforming" uses
as justification for a variance. However, the Examiner did consider this issue and
found the issue unpersuasive. Likewise, the Examiner rejected the concept of a
five-year "temporary" use of the property to likewise be unpersuasive.
Error #3:The use of other examples is an inappropriate means of evaluating "undue
hardship."
Discussion: Any decision-maker must consider what "reasonable test" must be
used in making any final decision on a particular set of circumstances. The
Examiner in this case cited other examples of uses within the vicinity which
provide justification for his conclusion regarding the determination of "undue
hardship." Inclusion of these examples is both necessary and appropriate.
Planning and Development Committee
Merlino Appeal
June 21, 1984
Page 2
Error #4:The limited term of the amended application should have been justification
for reduced requirements.
Discussion: The Examiner's conclusion in this case is not based upon duration as
an issue. The Examiner argues that performance of the standards required by the
City's code must be that of the applicant and not the general public. In the
Examiner's opinion, substitution of public for private expenditures in the
screening of the subject site is inappropriate.
Error #5:The citation of the applicant's testimony is out of context and fails to
support the Examiner's conclusion of "no undue hardship."
Discussion: Reading of the entire text provided by the applicant in his appeal
clearly supports the Examiner's conclusion. The full text, as provided by the
applicant, is more persuasive than the summarized text in the Examiner's
conclusion. The applicant clearly states that, if the bulk storage use were to
remain following a modification in the City's right-of-way, it could conform to
the requirements of the landscaping standard within the site.
Error #6: Denial of the variance does create "undue hardship" and is regressive.
Discussion: As discussed previously, there is no support in the City code for the
use of nonconforming uses as either support or justification for a variance.
Reliance by the applicant on the Zoning Administrator's testimony fails to take
into account the remainder of the record, which recommends denial or
modification of most of the variances proposed by the applicant.
Error #7:The conclusion that there will be a lack of landscaping is erroneous.
Discussion: The Examiner's conclusion is predicated on the argument that the
landscaping surrounding this proposed bulk storage use would be less than the
minimums required for permitted uses in the L-1 District.
Error #8:The variance is not a special privilege.
Error #9:The standards cited by the Examiner are unreasonable under the "undue
hardship" test.
Error #10: The variance does not "strip bulk storage of its validity."
Discussion: The Examiner's argument is predicated on the fact that the standards
set forth by the City Council for bulk storage uses as small as one acre (one-fifth
the size of this site) were intended to fully screen and fully separate bulk storage
uses from adjoining uses. The Examiner, therefore, concludes that abrogation of
these standards should only be done on the most compelling of justification. The
Examiner concludes that no such justification exists.
4
Planning and Development Committee
Merlino Appeal
June 21, 1984
Page 3
Error #11: Bulk storage uses have a right to the consideration of variances.
Disccussion: The appellant is correct that bulk storage uses have the same rights
to consideration of variances as any other use; however, such
consideration does not necessarily lead to the conclusion that any or
all such variance considerations should be approved. The City's bulk
storage standards were developed for a broader "general good" than
that of a single use. The Examiner concludes that modification of
the standards, where a "reasonable use" is left with the property, is
unjustified. Further, the Examiner finds in Conclusion #11 that this
application for bulk storage use must meet a higher standard of
review and a broader burden of proof of its compatibility with the
City's clearly enunciated environmental and aesthetic concerns
established by the Bulk Storage Ordinance. The Examiner concludes
that this application fails to meet that burden.
GENERAL DISCUSSION:
The Policy Development Department believes that the applicant in this case faces three
burdens. First of all, the applicant must show that it complies with all four variance
criteria established by the City code before a variance application may be approved.
Secondly, the applicant's proposal for a five-year "temporary use" must be justified in
that it has the practical effect of being a permanent use. Finally, the applicant has the
burden of proving that his proposed bulk storage permit is appropriate and is a "privilege"
which should be issued as opposed to a "right" of an otherwise permitted use in the L-1
District.
1. We believe that the applicant has failed to show compliance with all four variance
criteria. Arguably, the applicant may have shown that an "undue hardship" exists,
although the Examiner concluded otherwise. This department can find no bulk
storage use of any size or location which has obtained variance relief; therefore,
we believe that a "special privilege" would clearly exist if these variances as
proposed were approved. Further, we believe that the proposal clearly has
adverse effects upon the public's health, safety, and welfare and clearly will have
adverse effects upon adjacent properties, particularly those properties on the hill
to the east of the subject site as a result of the precedent setting nature of the
broad range of variances proposed in this case. Finally, we believe that the
variances requested are clearly not the minimum variance appropriate for the
subject use.
2. Although the applicant clings to the argument that a five-year temporary use is
appropriate and practical, every department which reviewed the proposal rejected
that contention. The Examiner also rejected the contention.
411,416
Planning and Development Committee
Merlino Appeal
June 21, 1984
Page 3
3. Finally, the Bulk Storage Permit must be issued under the provisions of the
Special Permit. Special Permit provides a "limited power to issue permits for
uses....not permitted by right....depending upon the facts of each particular
case." Further, the bulk storage standards state as its intent "to allow such
facilities in a location and a manner so they are compatible with adjacent
properties and beneficial to the City." Based upon the statement of intent of the
bulk storage standards, and the provisions of the special permit section, the
Examiner rejected the proposal for "this bulk storage use" at "this site."
COUNCIL REVIEW:
As discussed at the previous Planning and Development Committee meeting, the City
Council is required to conclude that an error in fact or an error in law exists in the
Examiner's decision. In this case, the action of the Examiner is a final decision. The City
Council is without power to substitute its judgment for that of the Examiner.
We believe that the applicant's strongest argument relies on the premise that "reasonable
use" should not have been substituted for the specific ordinance language of "undue
hardship." However, this department believes that "reasonable use" is a proper and
appropriate test of whether an "undue hardship" exists in a particular case. Although this
department believes, as it testified in the hearing that the bulk storage use of this site is
appropriate, we are not prepared to substitute our judgment for that of the Examiner in
his conclusion that the variances requested are inappropriate nor that the bulk storage use
of this site, subject to those variances, should be approved.
RECOMMENDATION:
Based upon the foregoing discussion, the Policy Development Department believes that
the Planning and Development Committee should reject the applicant's contention that an
error in fact or law exists in the Examiner's decision. Therefore, the applicant's appeal
should be rejected.
DRC:0704G:wr
Renton City Council
qb6/4/84 Page five
Audience Comment continued
Transportation observations during recent field trip to the area, noti g
Committee liability to the City because only half of abuttingneiihborsRentonHillAlleyhavededicatedpropertytotheCityformaintenancepurloses.
continued He stated that ownership would be researched and need f r
a policy for other alleys in the area would be determin d.
The possibility of formation of an LID for alley improv ment
was discussed, and it was noted that Cedar Avenue had b en
improved through a local improvement district.
CONSENT AGENDA Items on the Consent Agenda are adopted by one motion w ich
follows the listing:
CG3 Short Plat Appeal of Land Use Hearing Examiner ' s decision filed by CG3, enSh. P1 . 037-84 Oregon Partnership, Short Plat 037-84, V-038-84, for tw -
lotAppealshortplatofapproximately6.42 acres of M-P zoned proartyandavariancetoallowaprivatestreetat4112WestV ' leyRoad. Refer to Planning and Development Committee.
Merlino Special
Appeal of Land Use Hearing Examiner 's decision filed byMerlinoPermitandSiteConstructionCo. , File No. SP-021-84, SA-022-84, V-023- 4,
Approval Appeal V-024-84, V-025-84 and V-026-84, for special permit andsiteSP-021-84
plan approval for construction of a bulk storage facili yatSA-022-84 2900 East Valley Road. Refer to Planning & Development Committee.
Scott 10% Notice Policy Development Department requested public meeting f .of Intent Petition scheduled for June 18, 1984 for Scott 10% Notice of Intl t
to Annex Petition to Annex; property located south of Sunset Bou hvard NE
between Union Avenue NE and Queen Avenue NE (extended) . Council
concur.
Bid Opening - City Clerk reported 5/30/84 bid opening for Renton Airpc -tRentonAirportWestPerimeterRoadimprovements; four bids received; Er ',lineer ' sWestPerimeterRoadEstimate: $60,664.64. Refer to Transportation Committe !
Bid Opening - City Clerk reported 5/18/84 bid opening for Renton MunicpalAirportSeaplaneAirportSeaplaneRampDredging; five bids received; Engileer ' sRampDredgingEstimate: $25,450.00. Refer to Transportation (Aviatior
Committee.
Broadmoor Claim for damages in the amount of $1 ,223.35 filed by BradmoorEnterprisesEnterprises, Inc. , 2507 Beacon Avenue South, Seattle, tc recover
Claim for Damages cost to repair frame and front end of delivery truck as ellasCL15-84 three days' loss of service allegedly caused by truck dr ving
over open manhole (4/18/84) . Refer to City Attorney and
Insurance Service.
Fund Transfer
Public Works Director requested resolution to transfer f nds
forforCrashFireattendanceofthreefirefightersatCrashFireSchoolittheSchoolandWateramountof570,383.00 from Airport Ending Fund Balance ur o
Main Airport Water Main Project and Airport Travel . Refer to !Ways
and Means Committee. (See action page seven. )
Fund Transfer
Public Works Director requested ordinance to appropriate
for FASP and unanticipated Federal Aid Safety Program (FASP) and Fede al
FAUS Revenues Aid Urban System (FAUS) revenues, unappropriated fund ba ance
and provide other reallocations within the Arterial Stre t
Fund for a total increase in the amount of $140,851 .00. Refer
to Ways and Means Committee. (See action page six. )
Puget Power
Land Use Hearing Examiner recommended approval of rezone
Rezone application by Puget Sound Power and Light Company, File No.
R-010-34 R-010-84, from H-1 to B-1 , for 0.84 acres of property located
on the west side of Talbot Road South approximately 500 ' i°et
south of South Grady Way; accompanied by conditional use 'aermit
CU-011-84) and special permit (SP-012-84) for fill and ubstation
construction not requiring Council approval . Refer to Wh 's
and Means Committee for ordinance.
Consent Agenda MOVED BY HUGHES, SECONDED BY REED, COUNCIL ADOPT THE CONS NT
Adopted AGENDA AS PRESENTED. CARRIED.
CORRESPONDENCE Letter from Police Chief Alan L. Wallis requested authorI iation
Sergeant ' s for an additional sergeant ' s position effective 7/1/84 or as
Position Requested
soon after that date as possible to mitigate internal prc ilems
created as a result of staff shortage. MOVED BY HUGHES, ECONDED
O
OF R4
11
o
THE CITY OF RENTON
MUNICIPAL BUILDING 200 MILL AVE. SO. RENTON, WASH. 98055
n rn BARBARA Y. SHINPOCH, MAYOR MAXINE E.MOTOR,
90 o- CITY CLERK • (206) 235- 500
0,
9g7
0 SEP100
June 1 , 1984
STATE OF WASHINGTON)
ss
COUNTY OF KING
MAXINE E. MOTOR, City Clerk of the City of Renton, being
first duly sworn on oath, deposes and says that she is a citizen of
the United States and a resident of the State of Washington, over the
age of 21 and not a party to nor interested in this matter.
That on the 31st day of May, 1984, at the hour of 5:00
p.m. , your affiant duly mailed and placed in the United States Post
Office at Renton, King County, Washington, by first class mail , to all
parties of record a true and correct NOTICE OF APPEAL OF THE HEARING
EXAMINER' S DECISION FILED BY David L. Hallinen, P.E. , representing
Gary Merlino Construction Co. , Inc. , Short Plat 021 -84, Site Plan
Approval 022-84, Varances 023, 024, 025, 026-84.
Maxine E. Motor, City Clerk
SUBSCRIBED AND SWORN TO before me this 1st day of June, 1984.
o ry Public an for the stE e
of Washington, residing at
King County
For. Use By City Clerk's Office Jnl
A. I . #
AGENDA ITEM
RENTON CITY COUNCIL MEETING
Ow
x
SUBMITT
pt./Div.
NG
Bd./Comm. City Clerk For Agenda Of June 4, 1984
Meeting Date)
aff Contact Maxine E. Motor
Name) Agenda Status :
BJECT: Appeal of Hearing Examiner ' s
Consent XX
Public Hearing
Decision: fAry Merl inn r.nnctriirtinn Co
Correspondence
File No. SP-021-84. SA-022-84, V-D23-84_ Ordinance/Resolution
V-024-84, V-025-84, V-026-84 Old Business
Exhibits: (Legal Descr. , Maps, Etc. )Attach
New Business
Study Session
A. City Clerk' s Letter, 5/29/84
Other
B. Letter of Appeal
C. Hearing Examiner ' s Report . S/11 /84
Approval :
Legal Dept. Yes No N/P
COUNCIL ACTION RECOMMENDED: Refer to Finance Dept. Yes No. N/!
Planning and Development Committee
Other Clearance
FISCAL IMPACT:
Amount Appropriation-
Expenditure Required $
Budgeted Transfer Required
SUMMARY (Background information, prior action and effect of implementation)
Attach additional pages if necessary. )
Appeal filed by David L. Halinen representing Gary Merlino Construction i1.
accompanied by required fee received on May 25, 1984.
PARTIES OF RECORD/INTERESTED CITIZENS TO BE CONTACTED:
See page 13 of Examiner ' s Report
SUBMIT THIS COPY TO CITY CLERK BY NOON ON THURSDAY WITH DOCUMENTATION. .
OF RED
o THE CITY OF RENTON
MUNICIPAL BUILDING 200 MILL AVE. SO. RENTON, WASH. 98055
orn BARBARA Y. SHINPOCH, MAYOR MAXINE E.MOTOR,
o
co-
QCITY CLERK • (206) 23E 250
11'
E0 SEP1°*
5
May 29, 1984
APPEAL FILED BY DAVID L. HALINEN FOR GARY MERLINO CONSTRUCTION CO.
Re: Appeal of Land Use Hearing Examiner' s Decision, dated May 11 , 1984,
Gary Merlino Construction Company; Files No. SP-021-84, SA-022-84,
V-023-84, V-024-84, V-025-84, and V-026-84; 2900 E. Valley Road.
To Parties of Record:
Pursuant to Title IV, Chapter 30, City Code, written appeal of Land Use
Hearing Examiner' s decision has been filed with the City Clerk, along wit
the proper fee of $75.00.
NOTICE IS HEREBY GIVEN that the written appeal and other pertinent
documents will be reviewed by the Council 's Planning and Development
Committee and will be considered by the City Council when the matter
is reported out of Committee.
The Council Secretary will notify all parties of record of the date and
time of the Planning and Development Committee meeting.
Sincerely,
CITY OF RENTON
r7 ra
Maxine E. Motor
City Clerk
11111b ITY OF RENTO
N? 63F0
FINANCE DEPARTMENT
RENTON, WASHING N 98055
19'
RECEIVED
OF27
441pa az;--/&,„,,,,c-
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7,___ - -
TOTAL 7 5-- -
r
4110
0L'Q
BEFORE THE CITY COUNCIL OF THE
CITY OF RENTON, WASHINGTON 5
1 •
crycf
APPEAL OF THE MAY 11, 1984 DECISION OF THE
LAND USE HEARING EXAMINER DENYING THE APPLICATION
OF GARY MERLIN() CONSTRUCTION CO. FOR A
SPECIAL PERMIT, SITE PLAN APPROVAL, AND VARIANCES
FILES NO. SP-021-84, SA-022-84, V-023-84, V-024-84,
V-025-84, and V-026-84)
Specification of Errors
Error 1. The Examiner substituted an "other reasonable use" test
for the "undue hardship" test specified in City of Renton Code Section
4-722(G)3(a) . (See Examiner's Conclusion l .a.) This substitution
caused the Examiner to erroneously conclude that the applicant had
not met its burden of proof with respect to the requested variances.
The correct test is whether hardship to the applicant resulting from
the strict application of Title IV regulations is undue. City of
Renton Code Section 4-722(G)3(a) . Instead of using this code-specified
test, the Examiner erroneously substituted the much more burdensome
other reasonable use" element of the balancing test that is used in
Washington to determine whether a regulation is an unconstitutional
taking. Natural Resources v. Thurston County, 92 Wn.2d 656, 669
where a private developer's preliminary plat application had been
turned down by a board of county commissioners, the Washington State
Supreme Court held that the board's action was not a taking, stress-
ing the fact that the commissioners had indicated that they would
have accepted certain plat layouts other than the one that the developer
had proposed) . See also Maple Leaf Investors, Inc. v. Department of
Ecology, 88 Wn.2d 726.
Having adopted the wrong test, the Examiner then took notice in
Conclusion 2 that other uses of the site were possible. Assuming
that the existence of other possible uses made reasonable use of the
site possible without the requested variances (Conclusion 2, first
sentence and Conclusion 6, paragraph 1, last sentence) , the Examiner
substantially dismissed the Applicant's and Zoning Administrator's
arguments, which were correctly based on the "undue hardship" test.
Because the Examiner's entire series of Conclusions and his Decision
really were hinged upon this irrelevant conclusion that the site
could reasonably be used for something other than trailer storage,
the Examiner's Decision is clearly erroneous.
Page 1 of 6
4110 111
In contrast to the "other reasonable use" test, the undue hardship
test focuses on the strict application of the zoning code provisions
to the specific land use application under consideration. The test
does not focus on whether a site's zoning might permit a completely
different land use. Here, the Applicant demonstrated that the strict
application of the zoning code was undue, and this fact was acknowledged
by the Zoning Administrator with respect to variances for a five-
year term as is illustrated by his eleven recommended conditions of
approval listed on pages 7 and 8 of the Examiner's Report and Decision.
Error 2. The Examiner erroneously refused to consider comparisons
with adjacent non-conforming uses for variance justifications even
though the Applicant made an alternative request for variances with
a five-year term. (See Examiner's Conclusion 7.) Because a sub-
stantial portion of the evidence supporting the requested variances
stems from the legal non-conforming uses in the immediate vicinity
of the subject site, the Examiner's refusal to consider the comparisons
led him to a clearly erroneous decision.
Even assuming for the sake of argument that the legal non-conforming
uses should not be cited to justify variances where the variances
will be permanent, an applicant certainly should be permitted to
cite them where, as here, consideration is given to variances for a
short term. The argument against such citation for permanent variances
is that the legal non-conforming uses are really only temporary.
Any significant changes in such uses (including modernization of
facilities or even their replacement after fire) will cause them to
have to conform to up-to-date codes. Granting a permanent variance
based on such legal non-conforming uses could substantially extend
the period duringwhich an area would not have to conform to current
codes. However, with a short-term variance, no such substantial
lengthening of the period during which an area need not conform to
current codes will occur. In fact, where, as here, the subject parcel
is part of a limited, well-defined area comprised substantially of
legal non-conforming uses that have given no indication of abating
in the near future, denial of a right to cite such adjacent non-
conforming uses is fundamentally unfair.
Error 3. In Examiner's Conclusions 3 & 4, the Examiner created the
erroneous impression, through comparison with inapposite cases, that
the Applicant is able to provide all of the code-specified landscaping
without undue hardship. Neither of the cited cases included variance
requests, and neither site had the geometric constraints and other
special circumstances that pertain to the subject site. Further,
the landscaping proposed in the Beckmann Homes' application was
necessary to conform to restrictive covenants that relate back to that
site's rezone last fall. No such restrictive covenants exist regarding
the subject site. These factors make the Examiner's comparisons of
no probative value. The impression that he attempted to create by
making them was wholly without basis and thus was clear error.
Page 2 of 6
4111/1110
Error 4. The Examiner's contention that " [s3ites should not be
permitted to rely on public landscaping or screening if the subject
site can provide the landscaping" is clearly erroneous. (See Examiner's
Conclusion 5, paragraph 3.) Such a statement does not take account
of the limited term of use being considered here nor proper account
of the fact that the screening function will indeed be provided.
Further, the statement is misleading because it suggests that the
proposal relies solely upon public landscaping or screening, which
it does not.
As the Zoning Administrator stressed at the continuation of the Public
Hearing, in regard to the proposed five-year term the primary concern
of the other departments was not where screening would be provided
but rather that screening be provided, the latter presumably being
the policy underlying the Bulk Storage Ordinance. With the conditions
of approval recommended for a five-year limitation on the variances,
the Zoning Administrator made clear that we had met that policy.
Error 5. The Examiner erroneously concluded from the testimony of
the Applicant's Representative (cited in Examiner's Conclusion 5)
that the code-specified landscaping provisions caused no undue hardship
upon the Applicant. However, the specific language of the cited
testimony and the context in which that testimony was made provide no
support for such a conclusion.
First, the context of the cited testimony was that of the highly
unlikely contingency that either East Valley Road or SR 167 would be
widened during the limited period that the Applicant intends to use
the site for trailer storage. I (David Halinen) indicated earlier in
my testimony (see Examiner's Report and Decision page 2, paragraph 3)
that the Applicant's main concern was "that [itj be permitted to
utilize the site for the proposed use, with the requested variances,
for a period of approximately five years from the date of occupancy"
because of the Applicant's plans to later build commercial warehousing
or some other type of project that will require permanent building
structures) at the site. Because a full widening of East Valley Road
has just barely been completed, and because no widening of SR 167 is
proposed for the near future, this contingency appears most unlikely
during the short term for which the Applicant intends the requested
use. My "concession" was made merely to avoid extended discussion on
a point that appeared to me to be nothing more than a "red herring."
Second, the language of my comment also does not support an inference
that undue hardship does not exist. I merely said that we would
accept a condition that says we would have to move the landscaping
within the site if we were to continue to operate the site for the
trailer storage use ." (Emphasis added.) Because of the extreme
unlikelihood that such a contingency will occur during the period that
the Applicant desires to use the site for trailer storage, my
statement merely conceded that the Applicant was willing to bear the
risk of the consequences of the occurrence of this unlikely contingency.
In context, the language does not even suggest that the hardship was
not undue.
Page 3 of 6
111
contingency. In context, the language does not even suggest that
the hardship was not undue.
Error 6. The Examiner's gratuitous comments in Conclusion 6 are
contrary to the evidence in the record and applicable rules of law
and are thus clear error.
First, the Examiner's statement that "[t]o deny the variance is
not to deny the applicant's reasonable use of the subject site nor
should it be viewed as regressive" is both confused and erroneous.
As discussed in Error 1, above, speculation about some "other
reasonable use" for the site is wholly irrelevant. Under the proper
test ("undue hardship") , the denial must be viewed as contrary to
law and thus "regressive."
Second, the Examiner's expressed difficulty of distinguishing between
locations which have justifications for variances and those locations
which do not stems, once again, from applying the wrong variance
test. In contrast, by applying the code-specified "undue hardship"
test, the difficulty becomes only that ordinary difficulty of deciding
whether a proposal, on its own merit, faces undue hardships due to
the strict application of the zoning code. The subject site's
narrow geometry and unique location among several non-conforming uses
that lie within the small triangular area bounded by SR 167 and East
Valley Road make the subject property easy to distinguish from the
site across East Valley Road. The distinction is even easier to
make when the short term of use that the Applicant requested is con-
sidered.
Third, the Examiner's conclusion that the Lumber Market would be left
without incentive to modernize if the variances are approved illustrates
the inequity in the Examiner's methodology. It suggests that speculative
effects on incentives of a non-conforming user to conform to up-to-date
code provisions should outweigh the disability that that non-
conforming user places upon an adjacent property owner like the
Applicant. (The Examiner's statement regarding the reasonability of
Lumber Market modernization is especially curious since he took no
evidence on that subject.) Here, where the Applicant has indicated a
willingness to accept variances for a term of only five years, the
incentive effects on the Lumber Market are miniscule, and thus such
a weighing clearly favors the grant of variances requested.
Fourth, the Examiner's comment that approval of the subject variances
would be a waiver "with ease" of the aesthetic provisions with "no
supporting hardship shown" flies in the face of the whole record.
The Applicant's application and testimony clearly established the
special circumstances and undue hardships that justify the variances,
which the Zoning Administrator's position subsequently confirmed with
respect to variances for a five-year term.
Page 4 of 6
4110 1110
Error 7. The Examiner's comment in Conclusion 7 that "[t]here is
no justification not to screen the subject site save economic
incentives to delay or defer aesthetic improvements to the area"
is contrary to the record, misleading, and clearly erroneous. The
comment suggests that the proposal will leave the site unscreened,
which it will not. The original application included a proposal to
provide a full 20 feet of landscaping along East Valley Road plus
a site screen fence along the project's north, west, and south
boundaries, while relying upon the existing trees within the SR 167
right-of-way margin which already provide substantial screening along
the east boundary. With the additional screening provisions that the
Zoning Administrator recommended as part of the eleven conditions of
approval (listed on pages 7 and 8 of the Examiner's Report and
Decision) for the project with a five-year limitation, the Examiner's
comment was all the more contrary to the record, misleading, and
erroneous.
Error 8. The Examiner's Conclusion 8, that "[t]he approval of the
variances would grant the applicant a special privilege not granted
others," is clearly erroneous. This conclusion was based upon his
erroneous earlier refusal to consider comparisons with adjacent non-
conforming uses (see Error 2) and his erroneous replacement of the
undue hardship" test with an "other reasonable use" test (see Error 1) .
Using the "undue hardship" test and properly considering the adjacent
non-conforming uses, no special privilege exists especially if the
variances are limited to the short five-year term.
Error 9. The Examiner's Conclusion 9, that the Applicant is quibbling
over standards, is clearly erroneous because this conclusion was
expressly premised upon the Examiner's "other reasonable use" test.
Error 10. The Examiner's Conclusion 10, that the variance request
attempts to strip the bulk storage provisions of any useful effect,
is clearly erroneous because it also is premised upon the Examiner's
other reasonable use" test. In fact, the Examiner, rather than the
Applicant, is the party attempting to strip a portion of the zoning
code of any effect. By substituting the "other reasonable use" test
for the "undue hardship" test, the Examiner attempts to make qualifi-
cation for a variance virtually impossible, thus gutting the variance
provisions of any useful effect.
Error 11 . The Examiner's Conclusion 11 erroneously implies that
applicants for bulk storage permits do not have a right to any
associated variances even if they have met the burden of proof
specified in the zoning code. The Applicant has met its burden of
proof with respect to these variances, and they must be granted
even though they are associated with the bulk storage provisions.
Page 5 of 6
410
Summary of Action Requested
The Applicant hereby requests that the City Council reverse the
decision of the Hearing Examiner and grant the special permit, site
plan, and variances for a five-year term subject to the eleven
conditions of approval recommended by the Zoning Administrator on
pages 7 and 8 of the Examiner's Report and Decision.
Respectfully submitted by:
ti(1`Lt Q May 25, 1984
David L. alinen, P.E. Date
Applicant's Representative
Page 6 of 6
WRITTEN APPEAL OF HEARING EXAMINER' S DECISION/RECOMMENDATION TO RENTON CITY COUNCIL
APPLICATION NAME: FILE NO. SP-021-84, SA-022-84
V-023-84, V-024-84,
MERLINO BULK STORAGE FACILITY V-025-84, V-026-84
GARY MERLINO CQNSTRUCTION CO.
The undersigned interested party hereby files its Notice of Appeal from the Decisic
or Recommendation of the Land Use Hearing Examiner, dated May 11,15 34
1 . IDENTIFICATION OF PARTY
APPELLANT: REPRESENTATIVE ( IF ANY) :
Name: Gary Merlino Construction Co. Name: David L. Halinen, P_R_
Address: 9125 10th Ave. S. Address: same as for appelant
Seattle, Washington 98108
Telephone No. (206) 762-9125 Telephone No.
2. SPECIFICATION OF ERRORS (Attach additional sheets if necessary)
Set forth below are the specific errors or law or fact upon which this appeal
is based:
see attached sheets
FINDINGS OF FACT: (Please designate number as denoted in the Examiner' s Report
No. Error:
Correction:
CONCLUSIONS:
No. Error:
Correction:
OTHER:
No. Error:
Correction:
3. SUMMARY OF ACTION REQUESTED: The City Council is requested to grant the follo‘ ing
relief: (Attach explanation, if desired)
X Reverse the Decision or Recommendation and grant the following relief:
See attached sheets
Modify the Decision or Recommendation as follows:
Remand to the Examiner for further consideration as follows:
Other:
May 25, 1984
Appellant/Re resentative Signature Date
NOTE: Please refer to Title IV, Chapter 30 of the Renton Municipal Code, and Sec ion!
4-3016 and 4-3017, specifically (see reverse side of page) for specific appeal prtcedL
4-3016: APPEAL: Unless an ordinance providing for review of decision of the
Examiner requires review thereof by the Superior Court, any interested
party aggrieved by the Examiner's written decision or recommendation may submit a
notice of appeal to the City Clerk upon a form furnished by the City Clerk, within
fourteen (14)calendar days from the date of the Examiner's written report. The notice
of appeal shall be accompanied by a fee in accordance with the Fee Schedule of the
City.
A) The written notice of appeal shall fully, clearly and thoroughly specify the
substantial error(s) in fact or law which exist in the record of the proceedings
from which the appellant seeks relief.
B) Within five(5)days of receipt of the notice of appeal,the City Clerk shall notify
all parties of record of the receipt of the appeal. Other parties of record may
submit letters in support of their positions within ten (10)days of the dates of
mailing of the notification of the filing of the notice of appeal.
C) Thereupon the Clerk shall forward to the members of the City Council all of the
pertinent documents, including the written decision or recommendation,
findings and conclusions contained in the Examiner's report, the notice of
appeal, and additional letters submitted by the parties.
ID) No public hearing shall be held by the City Council. No new or additional
evidence or testimony shall be accepted by the City Council unless a showing is
made by the party offering the evidence that the evidence could not reasonably
have been available at the time of the hearing before the Examiner. If the
Council determines that additional evidence is required, the Council may
remand the matter to the Examiner for reconsideration. The cost of
transcription of the hearing record shall be borne by the appellant. In the
absence of an entry upon the record of an order by the City Council authorizing
new or additional evidence or testimony, it shall be presumed that no new or
additional evidence or testimony has been accepted by the City Council, and
that the record before the City Council is identical to the hearing record before
the Hearing Examiner.
El The consideration by the City Council shall be based solely upon the record,
the Hearing Examiner's report,the notice of appeal and additional submissions
by parties.
F) If, upon appeal of a decision of the Hearing Examiner on an application
submitted pursuant to Section 4-3010(A( and after examination of the record,
the Council determines that a substantial error in fact or law exists in the
record, it may remand the proceeding to Examiner for reconsideration, or
modify, or reverse the decision of the Examiner accordingly.
G) If, upon appeal from a recommendation of the Hearing Examiner upon an
application submitted pursuant to Section 4-3010(8) or (C), and after
examination of the record, the Council determines that a substantial error in
fact or law exists in the record, or that a recommendation of the Hearing
Examiner should be disregarded or modified, the City Council may remand the
proceeding to the Examiner for reconsideration, or enter its own decision upon
the application pursuant to Section 4-3010(B) or (C).
H) In any event, the decision of the City Council shall be in writing and shall
specify any modified or amended findings and conclusions other than those set
forth in the report of the Hearing Examiner. Each material finding shall be
supported by substantial evidence in the record.The burden of proof shall rest
with the appellant. (Ord. 3658, 9-13-82)
4-3017: COUNCIL ACTION: Any application requiring action by the City
Council shall be evidenced by minute entry unless otherwise required
by law.When taking any such final action,the Council shall make and enter findings of
fact from the record and conclusions therefrom which support its action. Unless
otherwise specified, the City Council shall be presumed to have adopted the
Examiner's findings and conclusions.
A) In the case of a change of the zone classification of property(rezone), the City
Clerk shall place the ordinance on the Council's agenda for first reading. Final
reading of the ordinance shall not occur until all conditions, restrictions or
modifications which may have been required by the Council have been
accomplished or provisions for compliance made to the satisfaction of the
Legal Department.
B) All other applications requiring Council action shall be placed on the Council's
agenda for consideration.
Cl The action of the Council, approving, modifying or rejecting a decision of the
Examiner,shall be final and conclusive, unless within twenty(20)calendar days
from the date of the action an aggrieved party or person obtains a writ of
review from the Superior Court of Washington for King County,for purpose of
review of the action taken. (Ord. 3454, 7-28-80)
AFFIDAVIT OF SERVICE BY MAILING
STATE OF WASHINGTON
ss.
County of King
CAROLYNNE F. LOMBARD
being first duly swo.
upon oath, deposes and states:
That on the 11th day of _ MAY 1984, affix t
deposited in the mails of the United States a sealed envelope containing a
decision or recommendation with postage prepaid, addressed to the parties F
record in the below entitled application or petition.
f6t% /
SUBSCRIBED AND SWORN to before me this // da
of 121(
v
1984.
64K,
No ary Public in and for the State of Washington.
residing at therein.
Gary Merlino Construction Company, SP-021-84, A-1
V-023-84, v-024-84, V-025-84, v-026-84
Application, Petition, or Case #:
The minutes contain a list of the parties of record.)
0538E May 11, 984
OFF ICE OF THE LAND USE HEARING EXAMINER
CITY OF RENTON
REPORT AND DECISION.
APPLICANT: GARY MERLINO CONSTRUCTION COMPANY
FILES NO. SP-021-84, SA-022-84, V-023-84, V-t '4-:
V-025-84, and V-026-84
LOCATION: 2900 East Valley Road
SUMMARY OF REQUEST: The applicant seeks approval of a special permit ar i1 si•
plan approval to allow the construction of a bulk ora'
facility for the short term storage of truck 1 aile
including three office trailers for employee office ar I fo
variances from requirements of the Bulk Storage Ordi anc
SUMMARY OF ACTION: Building and Zoning Department Recommendation:
Approval of SP-021-84 and SA-022-84 based on con( tion
denial of V-023-84; partial approval of V-024-84; 3rti
approval of V-025-84; and approval of V-026-84.
Hearing Examiner Recommendation: Special perm a
site plan as submitted for bulk storage are c nies
Variances are denied.
BUILDING & ZONING The Building & Zoning Department Report was
DEPARTMENT REPORT: received by the Examiner on April 18, 1984.
PUBLIC HEARING: After reviewing the Building and Zoning Depar men
Report, examining available information on file wit th
application and field checking the property and surroc idin
area, the Examiner conducted a public hearing o th
subject as follows:
The hearing was opened on April 24, 1984, at 10:09 a.m. in the Council Chambers of the R nto
Municipal Building. Parties wishing to testify were affirmed by the Examiner.
The following exhibits were entered into the record by the Examiner:
Exhibit #1: Yellow file containing the or Gina
application, staff report, and Lher
pertinent documents.
Exhibit #2: Site plan.
Exhibit #3: Series of 37 total ground photo pager for
the Merlino bulk storage facilit a
prepared by David L. Halinen, phy ica:
engineer, laid out along a map of thE
subject site.
Roger Blaylock, Zoning Administrator, provided a brief summary of the proposal, advising hat
the applicant's consulting engineer would be presenting a more detailed presentation 1 ter
Noting the complexity of the request, he stated that it deals with site approvals because o', the
underlying fill and grade permit, a special permit for bulk storage, and four variances fror7 thE
bulk storage requirements. He reviewed in detail the four variances requested: (1) to re uce
the landscape setback along East Valley Road from the required 20 feet to 10 feet, noting hal
the landscaping in question is from the property line back and that East Valley Road is situ tec
on the site's west side; (2) to reduce the landscape setback along the east property line, nc inc
that it abuts SR-167 and that the applicant is proposing to utilize landscaping material Hai
would be hydroseeded with no substantive or vertical types of vegetation planned; (3 tc
eliminate the 20-foot setback and site screen fence along the south property line adjacer tc
the Lumber Market with the building utilizing a similar type storage behind it and to us1
provide the fencing; (4) a reduction of the 60-foot setback along East Valley Road, noting hai
the Bulk Storage Ordinance requires landscaping of the first 20 feet along a public right-of /a)
and no bulk storage within 60 feet, a somewhat obscure prequisite, and this request w ilc
specifically allow the applicant to utilize up to the screening fence whether placed at 20 fet_ of
10 feet in accordance with approval or disapproval of variance #1. The Examiner interjects tc
inquire what the reduction would be in landscaping on variance #2, along SR-167. Mr. Blay
stated present plans show approximately 13 feet of landscaping from the property line to hE
top edge of the fill area, a reduction of 7 feet.
EXAMINER'S REPORT Ai.ECISION
GARY MERLINO CONSTRUCTION COMPANY
Files No. SP-021-84, SA-022-84, V-023-84, V-024-84, V-025-84, and V-026-84
May 11, 1984
Page 2
Mr. Blaylock continued with his review, noting that the site has been utilized in the pa. fo
truck terminal, West Coast Trucklines, on a temporary use permit, and a special perry t w
granted for fill and grade in 1977. These approvals are valid and active due to annual cen
renewals.
He then requested that Mr. Merlino's representative be given an opportunity to m :e
presentation.
Responding was:
David L. Halinen
Staff Civil Engineer
Gary Merlino Construction Company
9125 10th South
Seattle, WA 98108
Mr. Halinen expressed appreciation to Mr. Blaylock for his assistance in the preparation f t
application. To explain their reasons for requesting the proposed use at this time, with sr ma
variances, he advised that they have a tenant, Pacific Motor Transport Company, a sub, dia
of Southern Pacific Railway, who would like to use the Phase 1 portion of the site as s on -
possible for the proposed trailer storage use. This tenant feels that this site is espc :ial1
appropriate for their short-term needs. It is their feeling that the long-term best use f th
site is not for the purpose requested today but rather for some sort of warehousing or oth r us
that will require permanent buildings to be placed on the site. He noted their plans tc buil
such a project and, therefore, requested that the proposed use be considered an interir us=
Noting the site's geometric constraints and position between two roadways, they feel ter.
application of the Bulk Storage Ordinance regulations will result in an unreasonable ha iishi
upon the applicant. Their major concern is that they be permitted to utilize the site fc th
proposed use, with the requested variances, for a period of approximately five years fro r th
date of occupancy. This will allow for reasonable amortization of the cost of improvemen s fo
the present proposal. Applying for a temporary use permit was considered; however, it i fel
that mechanism would not afford sufficient time to provide trailer storage for a tenan an(
amortization of the cost of improvements. In making this application, they do not specif :a11)
limit their request to any specific time duration. Given their desire for subse uenl
redevelopment of the site and the staff concerns raised in the preliminary report ti the
Examiner, if the Examiner feels it would be necessary for a finding of a burden of justific tior
for the variances, they would like their proposal to be considered for a period of five year, on')
from the date of occupancy.
The Examiner inquired if they would be willing to accept that as a condition of approve , t(
which Mr. Halinen responded affirmatively, if he feels that would be necessary for justific tior
of the variance requests. He stated, however, if the Examiner feels there is suffi ienl
justification without that limitation, they would prefer that it not be imposed.
The Examiner requested that Mr. Halinen describe some aspects of the site for the record. Mr
Halinen indicated the north edge of the property is approximately 79 feet in width; the fror agE
along the East Valley Road is approximately 1,219 feet; the south boundary of the site v ricl
abuts the Lumber Market site is approximately 322 feet; and there are approximately 1,237 [eel
of frontage along SR-167. Responding to the Examiner, he advised that the width at the
delineation between Phase 1 and Phase 2 is approximately 475 feet. The approximate acr agE
of the two phases was identified as 2.99 acres in Phase 1 and the remaining acres in Phase 2.
Noting that he was responding to the general theme used by the staff in its report concer pine
the requested variances, Mr. Halinen advised that the subject property is at the extreme r rtt
end of a triangular-shaped strip that is zoned L-1, and it is presently occupied by quite a 'ev
light industrial uses. The property to the west, across East Valley Road, is currE rtl
undeveloped. In justification of the variances requested, an attempt was made to eval at(
existing uses in the area, as they meet the requirements of the Bulk Storage Ordinance, an tc
compare and contrast various attributes of these existing uses against the proposed variar es
He acknowledged that these uses are legal nonconforming uses. It is felt that, if their pro: sa
is limited to a five-year duration, these concerns should be considered to be as equitabl it
justifying these variances as long-term legal nonconforming uses. He noted that none of :hE
existing businesses have made any indications of changes that would terminate their ] ja
nonconforming uses. Also, since the contested variances all deal with site screening, hE
requested that the Examiner take special note of staff's own view of the bulk storage scree .nc
requirements and referred to item 3 on page 4, which includes the statement, "The Bulk Stor tgE
Ordinance suggests a minimum width of landscaping to screen the worst cases of indusl is
storage yards." As an example of "worst case," he offered the possibility of an open pile of c ra
that might extend to a height of approximately 35 feet and indicated their feeling that hE
storage of trailers would be more pleasing.
EXAMINER'S REPORT Al )ECISION
GARY MERLINO CONSTRUCTION COMPANY
Files No. SP-021-84, SA-022-84, V-023-84, V-024-84, V-025-84, and V-026-84
May 11, 1984
Page 3
As a point of advisement, the Examiner requested that Mr. Halinen direct his attention a mi
reasonable use of the subject site rather than the other provisions of granting of ;pe
privilege. Essentially, the question would be, "Is there reasonable use of the subj( :t s
without any of the variances or one of the variances requested?" Mr. Halinen indic, ed
feeling that there was not.
With regard to unsightliness, Mr. Halinen described the truck trailers as compact, vith
maximum height of 13'-6", which is below the maximum bulk storage use permitte . T
trailers will occupy less than half of the site due to the necessary egress aisles. Furtt r, t
proposal is for truck/trailer interchange only and not for loading and unloading the tra ers
the site. He noted their feeling that screening for such use should not be determi ed
standards for the worst cases.
He requested clarification of Mr. Blaylock regarding the staff position on the applicab ity
Renton Code 4-734(E)(2) with respect to the boundary along SR-167. In his original appl ;ati
he presumed, because the east edge of the property abuts SR-167, that would be consic !red
public right-of-way; and as such they would be faced with 60-foot bulk storage setbac s a
landscaping provisions. In reviewing the staff report, he found no mention of any ( 1-fol
setbacks or special bulk storage landscaping provisions based on that code section for th t sit
of the property. Those issues were addressed, however, with regard to the East Valley 'ioa
Mr. Blaylock indicated that his understanding was that the 60-foot requested variance wa fro
both public rights-of-way. Mr. Halinen asked if he were incorrect in making an interpr€ ati•
that the 60-foot setback from the freeway as well as the East Valley Road is requirec M
Blaylock indicated that state highways are considered public rights-of-way, and therefi re
feels the variance is necessary. Mr. Halinen indicated that, if it is the staff's contentio th.
the variance is necessary but they are recommending approval of the 60-setback reduct m •
the east edge of the highway, that is acceptable. Mr. Blaylock noted that the basis for ;the
approval is the geometric shape of the property, as 60 feet would leave no maneuvering sp ice i
Phase 2 and a very marginally usable Phase 1. The Examiner inquired regarding the sr
staff recommendation for East Valley Road. In reply, Mr. Halinen provided the details i f th
request and the following further discussion.
He stated that along East Valley Road they note two items of concern: First, Section -73
requires 20 feet of landscaping along the road frontage and a 60-foot bulk storage setback Fro
the property line. They propose to provide 20 feet of landscaping, but not totally with i th;
site's boundary. Introduced into the record was
Exhibit #4 Sepia-toned Variance Exhibit.
Indicated on the site plan and, also on the variance exhibit, a full 20 feet of landscapin arE
planned, but 10 feet will be within the property and the balance within the 10 - 11 foot NidE
margin of East Valley Road that lies behind the sidewalk. This matter was discussed ivitt
Richard Houghton, Public Works Director, who seemed to indicate that a right-of-way pi 1-mil
could be issued if requested. He noted that the staff takes exception for the following re, ens
T hey discount provision of the balance of the landscaping within the public right-of vay
suggesting that only 10 feet will be provided, which will impact the properties across the st eet
and they indicate a concern that at some future date East Valley Road could be widened HE
pointed out that East Valley Road was improved just this year through City of Renton I I.D
314, which included street widening and installation of curbs, gutters, and sidewalks on )ott
sides of the street within the vicinity of the subject project. Should the need arise for wide lint
of the street, they are willing to accept a condition indicating that they would have to move the
landscaping to within the site in order to continue operation of this use. They believe that t
unlikely that would occur and request that Bob Bergstrom, Engineering Supervisor, be give ar
opportunity to comment about those prospects.
The Examiner invited testimony from the Public Works Department. Responding was
Bob Bergstrom
Engineering Supervisor
City of Renton
Mr. Halinen asked Mr. Bergstrom regarding his opinion of the prospects for widening of asi
Valley Road in the vicinity of the subject project, especially during the next five years. Ar
Bergstrom indicated it is their opinion that the three-lane roadway configuration will bE
adequate for East Valley Road for the foreseeable future, and he confirmed that the three 1, iel
had been installed through L.I.D. 314 within the last year. Responding to a request fc •
specific definition of "foreseeable future" from the Examiner, he indicated they are looking itc
the 1990s, as at present the road serves only as a local collector street for light indu
businesses along the easterly side of the Valley.
EXAMINER'S REPORT AN/RECISION
GARY MERLINO CONSTRUCTION COMPANY
Files No. SP-021-84, SA-022-84, V-023-84, V-024-84, V-025-84, and V-026-84
May 11, 1984
Page 4
Regarding the necessity for this particular variance, Mr. Halinen stated that it is their osit
that in laying out the use of the site they would probably be faced with losing the entirr ro
stalls were they to bring the entire 20 feet within the site, as the aisles are presentl at
minimum width for reasonable maneuverability of truck-trailer combinations as tl :y
delivering or picking up trailers. This is therefore regarded as a very important varic Ice
reasonable use of the project.
Their second concern regards the frontage along East Valley Road. The staff has recom lens
approval of their request for a variance from the 60-foot bulk storage setback. He refer ed
Examiner to his variance justification report included with the application, rathr t
elaborate further, unless it was wished otherwise.
Mr. Kaufman indicated he was trying to determine what the Building and Zoning Depi tm=
has or has not recommended. Mr. Halinen, referring to page 9 of the staff report un•
recommendation #4, noted that a recommendation similar to the setback from East Vallf. Ro
was made for the setback from SR-167.
Relative to the second variance requested, concerning elimination of the site screen fc ce
the east boundary and, also, the landscaping associated with that particular provision, t si
plan was modified slightly after the application was submitted in view of their discover t' th
the slope of the east edge of the property was a little wider than originally anticipate I -
feet rather than 10 feet. Therefore, he amended the original request, as noted in the rep Irt,
provide a 13-foot wide strip along the east property line. To clarify, the Examiner indica I3d h
understanding that within the 13 feet of the east property line there is a slope severe f nou•
that practical use of it cannot be made. He inquired if the applicant is willing to landscai th.
area. This was confirmed by Mr. Halinen.
He reiterated their problem, because of the site's narrow geometry, that they are very 1 nit;
in width in laying out a reasonable number of stalls for truck storage, and therefo f•
reasonable use of the site the variances requested are necessary. One major justificati n f•
the variances is that there is an existing row of large trees within the SR-167 right-o 1-wa
margin which provides substantial screening from the highway and meeting the literal cod
requirements would be redundant. He acknowledged the staff's concern that the State Hi( iwa
Department could come in and widen SR-167 and remove that screen of trees. In respor 3e t
the possibility, they request that a condition be added that, should the State Hif hwa
Department remove those trees for any reason including the widening of the road, the app can
would be required to conform to the staff request as proposed. He reiterated their feeling tha
should the variances be granted subject to a five-year term, those trees should pi yid:
adequate landscaping during that period.
The Examiner inquired further regarding the adequacy of the use of the site, asking should ree•
be provided within that setback would that deny reasonable use of the subject site. Mr. He iner
indicated that question had been addressed in the variance justifications, and he recallec that
the primary argument is that it is unreasonably economically burdensome upon the applica t tc
do so, when, in fact, other property owners in the area have not been required to do so anc
when there is no practical advantage of any significance to be gained by the City havi g it
accomplished. He indicated his agreement that physically they are not prevented from m. <inc
use of the site as proposed by the staff.
Again, regarding this variance request for the elimination of the site screen fence anc
landscaping, Mr. Halinen noted that staff had pointed out that Burlington Northern, in a rf ent
special permit request, was required to substantially landscape for a bulk storage site (bo :onrr
of page 5). He indicated that Burlington Northern is not similarly situated because it does not
abut the freeway, does not have existing vegetation and screening of the site from an adjo. ri.nc
public right-of-way, and their site does not suffer from the geometric hardships of ;hip
particular site. Also, he pointed out that the road grade of SR-167 is substantially higher har
the site. Because of that elevation difference, even an 8-foot high site screening fence 'anc
other plantings, if the trees were not there, would be of little consequence at least for ivE
years until the trees were fully matured. He introduced an exhibit illustrating that situatic I it
support of his argument.
Exhibit #5 An elevation drawing of a cross-section
Mr. Halinen noted this cross-section is labeled "B-B" and conforms to the section "B-B' a
shown on the site plan (Exhibit #2). The only difference is that this cross-section has t :er
drawn at a scale of 1" = 10' both horizontally and vertically to illustrate the perspective f r
an automobile heading southbound on SR-167. He indicated their feeling that it is impossible tc
set up a fence of reasonable height to accomplish the necessary screening. The Exam lel
directed Mr. Halinen's attention to the fact that installation of a fence would not deny hE
applicant reasonable use of the property and that economics has never been accepted by hE
EXAMINER'S REPORT A(`__ _)ECISION
GARY MERLINO CONSTRUCTION COMPANY
Files No. SP-021-84, SA-022-84, V-023-84, V-024-84, V-025-84, and V-026-84
May 11, 1984
Page 5
courts of this state, nor any other body generally, as reason for granting a variance. ie .
noted that any difficulties with meeting some of the requirements of the Bulk tor,
Ordinance should properly be directed to the City Council, depending upon whether the \ rria
could or could not be granted.
With regard to the third variance requested to eliminate the 20-foot setback and site scr:
fence along the south property line, Mr. Halinen noted that their boundary abuts the um'
Market and that facility has a red building which faces East Valley Road on the west po :ion
that property. The easterly portion of their site is enclosed by an approximately 8-fc h.
red vertical board site screen fence, and the fence on the south property line is for all p rctiI
purposes on the boundary line. From the northwest corner of that fence, the applic it
installed a chain-link type fence which extends to approximately the west boundary If t
site. The locations of these fences were pointed out on the site plan. If they were to
required to provide the 20-foot setback in landscaping, they feel that reasonable use co ld
be made of the site, and they would not have a special privilege because of the way in wh 7.h t
other L-1 bulk storage users in the vicinity have situated themselves. Referring to iten 13
page 6, he noted that the staff concedes that granting variances subject to cor Iitio
subsequent is appropriate, in which it is indicated that, should the operation of the imb
market to the south cease, provisions should be included which would require the applic rnt
put in the additional landscaping and screening. He pointed out that, since staff consid( °s t
appropriate, the other variances could also be considered appropriate subject to con itio
subsequent. He also referred to item 14, in which the staff indicates that protection t
future interests of the lumber market is also a consideration, and Mr. Halinen indicate II th,
they could accept a condition subsequent. However, they do contend, given the pt vsic
condition on the neighboring property and the impact that a 20-foot setback would have e !en •
the west leg of their south boundary, they should be granted the variance along the entirE sou
boundary.
In respect to the fourth variance requested to allow structure and bulk storage to be 1( ate
within the 60-foot setback along East Valley Road, Mr. Halinen noted that the 60-foot sf bac
requirements along East Valley Road and SR-167 have already been covered.
He noted that much more detail regarding justifications and comparisons have been or( 'ide
with the application and are included in the yellow file, Exhibit #1.
In summary, he indicated they are willing to abide by the Examiner's decision for a 5-year :er
for the special permit and related variances. They feel that the variances are necess( y Li
make reasonable use of the property. He also offered to respond to any questions. Th:
Examiner indicated that he had asked most of his questions in the process of the procec ling
and had read all of the documents in the yellow file. He then called for further testimony rorr
the audience.
In response, Mr. Bergstrom referred to his memorandum of March 13, 1984, which is incluc: d ir
both the file and staff report, and pointed out that the north 85 feet of the site is part o the
proposed P-9 Channel right-of-way, and it is recommended that, as a condition of appr ,val.
some type of easement or dedication be required so that Soil Conservation Service fe era:
funding can be obtained for that project. He noted that it has been recommended that :hat
area be reserved for the required 2% of the site reserved for wildlife habitat and indicated :hat
this is in conflict with S.C.S. regulations. This requirement must be met in another locatic , a
the S.C.S. requires 2% in addition to the canal right-of-way.
In response, Mr. Halinen advised that, subsequent to the Public Works Department bringinc 'the
matter of the P-9 Channel to their attention, he had sent a letter dated April 3, 1984, tc the
Environmental Review Committee, regarding their plans for the property in that area. In hat
letter it was indicated that they do not intend to dedicate that property to the City at :hi:
time; however, they are proposing development which would preclude future P-9 Cha ne
construction, and their intention to not dedicate the property should have no bearing on whe 'her
or not a declaration of environmental non-significance should be issued. The subseq ant
declaration of non-significance was issued with a proviso that "The north 75 feet across the itE
shall be put in reservation, dedication or easement for drainage and wildlife purposes." HE
indicated no problem with this condition as it reads, but they do not feel they are a substar ia:
beneficiary of the P-9 Channel construction and that all of the options that are listed for
reservation, dedication, or easement for drainage and wildlife purposes should remair a:
written. In addition, he pointed out that the matter of the 2% for wildlife area was specific 11)
discussed in the Hearing Examiner's report regarding their initial grading permit for rif.
project, and he felt that issue was therefore closed. The Environmental Review Commit eE
made its decision subsequent to submittal of this letter and appears to be saying that at leas ir
terms of the threshold determination, that it is appropriate to have the 2% for wildlife wit lir
that area.
EXAMINER'S REPORT AIlikECISION
GARY MERLINO CONSTRUCTION COMPANY
Files No. SP-021-84, SA-022-84, V-023-84, V-024-84, V-025-84, and V-026-84
May 11, 1984
Page 6
The Examiner requested that the record reflect that there was no one else in attendanc at the
hearing. He then granted the Zoning Administrator an opportunity for further comment.
Mr. Blaylock noted that the applicant has created an unusual situation by stating that hi client
will be bound by a five-year limitation. He described their efforts to convince the aj >licant
that a temporary permit procedure was applicable, but this they found to be unacc( )table.
Therefore, they were advised that a permanent solution had to be addressed and resol ed for
the subject site. Continuing, Mr. Blaylock noted that the five-year limitation had cr' ited a
kind of intermediate use and function of the site. However, based upon the past perform nce of
the same property owner, a five-year limitation could become an enforcement problerr in the
fifth year. He also noted that in the past a variance has never been granted for a spec 'ically
limited period but is normally considered permanent. Accepting the 5-year limitati, i, the
Building and Zoning Department might consider further review of their recommenc Lions.
However, the point of contention continues to be the reasonable use of the property, anc. it was
noted that uses in the L-1 zone would have specific limitations imposed whether or n( they
were a special permit for bulk storage or an allowed use in that classification. Speci tally,
with the second variance, which deals with landscaping along SR-167, another use would > :quire
10 feet of landscaping; therefore, to use hydroseeding as a buffer is inappropriate. Al ), the
planting of Douglas fir trees along this boundary would create an appropriate screening i it any
subsequent use. Bulk storage is viewed as a special request beyond that. They believe tt only
reason for the reluctance to landscape the eastern boundary line is economics. As far s the
western property line, East Valley Road, is concerned, because of the testimony given by 'ublic
Works Department that widening of the roadway is unanticipated, as the proposed bulk s gage
will not meet maximum limits in this zone, and if the 5-year proviso were instituted, a li -foot
landscaped area could be appropriate. He noted the intent of the Bulk Storage Ordinanc, is to
screen and produce the intent of blending, and it appears that the applicant's proposal do s not
meet that proviso. The concern is, however, that procedurally they are stuck be ween
something that is permanent and something that is temporary. Relative to screening aloi 3 the
south boundary, it seems that 10 feet of landscaping should be provided, and several pc sible
solutions were suggested.
The Examiner inquired if the staff objected to the five-year use. Mr. Blaylock responder that
they did not object but found it difficult. The Examiner then asked if it would be appropri. :e to
continue the hearing to provide for further review of the application by the City c the
five-year use. Mr. Blaylock indicated a need for legal advice from the City Attorney regi ding
the possibility of proceeding to an enforcement code. The Examiner then indicate his
inclination to continue the hearing unless the applicant has any objections. Mr. Halinen s ated
his primary objection is that their tenant has been waiting for some time for a determir Lion
regarding this issue and asked if the continuation could be made only until next ` eek.
Discussion followed in which Mr. Halinen stated he would consider a one-week's contint ince
and an opportunity to comment to any further staff input. Mr. Blaylock also indicated that
provision #4 of the Recommendation be modified to include a reduction of setback to 20 feet
from SR-167 as well as the East Valley Road. He further supported the recommendatio for
planting of Douglas fir trees along that roadway.
At 11:34 a.m., the Examiner continued the public hearing until 9:00 a.m. on May 1, 1984, to jive
the staff and Mr. Halinen an opportunity for further discussion. It was agreed th t a
supplemental report would be forthcoming from the staff.
The continued public hearing was recalled to order at 9:06 a.m. on May 1, 1984, witt the
previous witnesses considered to be under oath. The Hearing Examiner invited the Z( ling
Administrator to comment.
Mr. Blaylock recalled that the hearing had been continued in order to address two items. I he
first question is whether it is technically legal to allow site approvals, special permits, and
variances with a 5-year limitation as proposed by the applicant. In this regard, he submi Led
into the record:
Exhibit #6 A memorandum from Mr. Blaylock d, .ed
May 1, 1984, to the Exam ier
summarizing a telephone conversa on
with the City Attorney.
In his memorandum Mr. Blaylock indicates that the City Attorney has said that it is appropr (te
to condition land use decisions to a specific time period. He also suggested that, as a matte of
enforcement, restrictive covenants which include a clause stating that the City can recover jail
costs associated with any enforcement of a breach of special permit conditions be utilize( in
preference to bonding as a tool for implementation. Responding to the Examiner, Mr. Blayl ck
advised that a copy of this memorandum had been provided the applicant.
EXAMINER'S REPORT AN.... ._DECISION
GARY MERLINO CONSTRUCTION COMPANY
Files No. SP-021-84, SA-022-84, V-023-84, V-024-84, V-025-84, and V-026-84
May 11, 1984
Page 7
The second item was a request from the Examiner for departmental comments concern ig the
5-year limitation within the intent technicality of the Code. It was reported that all 3f the
departments responding - Policy Development, Building and Zoning, Fire Preventic jr, and
Traffic Engineering - believe that it did not change any of the circumstances concern ig the
intent or application of the Code. These responses were then entered into the record as
Exhibit #7 Responses from the various City
departments concerning the pi posed
5-year limitation as it relates ) the
intent of the Code.
It was noted that the applicant had received copies, with the exception of those frt n the
Traffic Engineering Division, which had just been received.
Mr. Blaylock then proceeded to summarize the comments. The primary concern of the other
departments is that the intent of the Bulk Storage Ordinance is to screen. He not, i the
specific concern of the Policy Development Department that the matter of time limitat ,n did
not address the problem of screening as specified in the Bulk Storage Ordinance and th t the
criteria should be utilized under the Code.
Two recommendations were provided verbally by Mr. Blaylock to the Examiner, dependin, upon
which recommendation the Examiner accepts. If the Examiner were to accept the ! I-year
clause, a modification to their recommendation would be made; however, if the Examiner finds
the 5-year clause unacceptable, the recommendation made originally would stand.
Mr. Blaylock, noting that the intent of the Bulk Storage Ordinance is to provide compat )ility
between adjacent uses, indicated that the primary burden is on the developer to show wha bulk
storage would be on the site and that could be a condition of the limitation. In this respec , Mr.
Blaylock referred to a cross-section illustrating the bulk of the storage area. There v‘, 11 be
trailer units consisting of a height of 13-1/2' to 14'. This maximum height is regulated I the
State.
Should the 5-year limitation be utilized, the nine conditions of approval recommended wo, d be
modified as follows:
1. Partial approval of the variance, V-023-84, to reduce the landscaping along East \ rlley
Road. He explained that the intent can be met by using specific faster growing, lore
dense landscaping materials. This is suggested because it is believed that at the c d of
the 5-year period the bulk storage would be removed, and the site could be utilize for
some other type of use.
2. Regarding the variance request along SR-167, V-024-84, it is their belief that the
applicant's proposal to only hydroseed does not meet the intent of the ordinance and hat
the site screen fence is essential. Even though it is recognized that the elevatit of
SR-167 is higher than the site, it will provide immediate screening of the lower por ions
of the trucks. It is believed that the planting material could also be of a faster grc iing
type, and Douglas fir, four to six feet in height, are suggested. At the end of the 5 ear
period, the result would be a functional landscape screen, which could be retained thr ugh
the life of any development, even if the landscaping presently along SR-167 is rem( 'ed.
The smaller materials are suggested due to the fact that the 13 feet in which these I ees
will be planted is actually an enbankment which could present some stability problems.
3. Relative to variance request V-025-84 to eliminate the 20-foot setback and site scree ing
fence along the southern property line, it is suggested that a reduction is appropriate my
if it is reduced to a screening comparable to that existing along East Valley R ad.
However, the front 90 feet do require screening. A comparable reduction would be t 10
feet.
4. With respect to variance request V-026-84 to allow structures and bulk storage tc be
located within the 60-foot setback along East Valley Road, it should be noted that \ ith
the plans as submitted it would not be a 20-foot setback, but development would be to ,he
screening fence, which would be 10 feet from the property line along East Valley F ,ad
and 14 feet from the property line along SR-167.
5. This condition would remain as originally stated: "The paved entrances shall be exter ed
approximately 50 feet farther into the subject site, and the subject site shall be
maintained in a gravel surface to assure that mud and debris is not tracked onto the Ci t's
streets."