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HomeMy WebLinkAboutC_CED Appeal Response_200605_FINALDEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT M E M O R A N D U M DATE: June 5, 2020 TO: Hearing Examiner Olbrechts FROM: Alex Morganroth, Senior Planner SUBJECT: City Response to Appeal LUA20-000006, Jurgens Reasonable Use Variance The applicant has submitted an appeal to the City’s Land Use Decision to approve a Reasonable Use Variance for a two-story, 1,700 sq. ft. (footprint) addition to an existing single-family home at 2301 Jones Ave NE (APN 3344500210). The existing two-story home is approximately 1,824 sq. ft. in size and was constructed in 1974. The garage addition would expand the size of the home two times its current footprint. Staff reviewed the request pursuant to the criteria in RMC 4-3-050.B.6 and applied appropriate conditions to ensure the final home construction would comply with the City’s critical areas regulations. Pursuant to the Pre-Hearing Order issued in this matter, this provides staff’s response to Mr. Jurgens’ appeal. The response begins by generally addressing Mr. Jurgens’ primary concerns on appeal, and then supplements with Mr. Jurgens’ objections to particular conditions of approval. A. General Response to Mr. Jurgens’ Appeal: By Concerns Repeated Throughout Mr. Jurgens’ Appeal First, when determining if criterion (a) of RMC 4-9-250.B.6 was met, staff evaluated the environmental benefit that would be seen by the enhancement of the wetland buffer and stream buffer that had previously been impacted. Based on staff’s analysis of aerial photography, including many images submitted by the applicant in this appeal, the driveway and other improvements within the buffers were not lawfully established and could not be permitted under current critical areas regulations. Regardless, the approval of this variance resulting in the re-establishment of this critical area buffer was warranted. The applicant received approval to expand an existing single-family home with a garage, but the City achieved compliance to correct an illegal driveway within a critical area buffer. This analysis supports conditions 2 through 8 in the staff decision. City Response to Appeal Page 2 of 5 06/05/2020 Second, as it relates to the position that Mr. Jurgens exerts that the manicured lawn is existing legal-non conforming, the City has reviewed the provided aerial photography as well as our own COR Maps and Google Maps street view and had determined that a significant portion of the stream buffer had not been manicured in the past. Based on the images in Exhibit 12 of the City Staff Report and Exhibit 3 provided by the applicant in this appeal, the changes to a manicured stream buffer happened after the implementation of Renton’s Critical Areas regulations and the adoption of critical acres regulations by the state in 1997 under RCW 36-70. Therefore a permit would have been required to maintain a lawn within a stream and wetland buffer to consider this area legal non-conforming. The City does not have any records of permits to allow for a manicured lawn or for stream armoring on this site. Therefore, staff was not obligated to defer to the landscaping, manicured lawn, or stream armoring as legally nonconforming activities with vested rights to continue. Instead, staff considered the reasonableness of yard space in their analysis of the building addition to address the encroachments into the stream buffer. Following this analysis, staff determined that a reasonable yard would be the current manicured location to the west of the stream channel, and staff conditioned the variance to protect the stream buffer to the east of the channel and remove the illegal stream armoring. Third, Mr. Jurgens never specifically requested that the City expand the reasonable use variance to include a reasonable yard space. Therefore, this portion of the analysis could be eliminated (Second paragraph of Staff Comments under FOF 16 “Streams”). However, the City requests that if this portion of the variance is removed that a Condition of Approval be added requiring Mr. Jurgens bring his site into compliance with Critical Areas Regulations and immediately stop using this portion of the stream buffer in an illegal fashion, such as a manicured lawn, on both the east and west side of the stream for the full Type F stream buffer of 75 feet. Finally, Mr. Jurgens’ appeal further identifies some challenges and issues in terms of implementation of the conditions of approval. These are summarized as follows: 1) The applicant claims that maintenance of the wetlands buffer would not be possible if the NGPE is established and that invasive species would threaten the new plantings installed as part of the Wetlands Mitigation Site Plan. In the short term, the City of Renton code requires a five year maintenance and monitoring plan to ensure the new plantings in the re-vegetate area are maintained and invasive species removal is typically a requirement of these maintenance and monitoring plans. The plan would allow the applicant to access the wetland buffer without the needed for a permit for the duration of the approved monitoring plan. For those portions of the site not subject to the maintenance and monitoring plan or following the five years for the portion of the wetland buffer subject to the plan; removal of invasive species and similar routine maintenance (i.e. cutting dangerous City Response to Appeal Page 3 of 5 06/05/2020 trees) are exempt from the Critical Areas Regulations. The applicant would only need to apply for a Critical Areas Exemption Permit at no cost in order to perform necessary maintenance. 2) The applicant states that facade maintenance of the north side of the addition would be difficult if a split rail fence is installed along the building foundation. Pursuant to RMC 4-3-050.G.2., a 15-foot structure setback is applied at the edge of the buffer. The purpose of this code requirement is to ensure that structures built close to a wetland buffers can be maintained without impacting the wetland buffer. The request to eliminate the fence along this portion of the building in order to maintain the structure should be reviewed in the perspective of a further wetland buffer reduction request by the applicant. RMC already considers maintenance of buildings in the adopted critical areas regulations by requiring a setback from the buffer edge, staff agrees that this additional buffer reduction request is reasonable and would meet the criteria in RMC 4-9-250.B.6 to approve a reasonable use variance. However, the further reduction of the wetland buffer in this location increases the importance of offsetting the environmental impacts on the site and further solidifies the City’s position that those portions of the site not permitted to be used under this reasonable use variance should be protected consistent with the City’s critical areas regulations. 3) Underground electrical line serving the home runs directly along the boundary of the NGPE where the split rail fence would be located prohibiting the installation of the fence. The existence of underground utilities is not a unique situation when it comes to fence construction. Staff recommends that the applicant call Diggers Hotline, 811, prior to installing the fence and reposition the fence accordingly in order to avoid the utility lines. Fencing, foundations, and other structures are frequently installed near utility lines and can be done in a safe manner if their locations are identified prior to digging the postholes. 4) The applicant requested that the precise location of the fence be defined. Due to unknown factors such as the utility lines or other obstacles, staff has drafted conditions 3 and 7 to allow flexibility in determining the exact location of the fence at a later date. B. Supplemental Response to Mr. Jurgens’ Specific Objections Condition #2 City Response to Appeal Page 4 of 5 06/05/2020 The applicant states that a Native Growth Protection Easement (NGPE) should not be required because a NGPE was not identified on the submitted Wetlands Mitigation Site Plan that was reviewed both before and during the application review. The applicant also notes that the establishment of an NGPE was not recommended by the City’s Environmental Review Committee, Department of Ecology, or the applicant’s wetlands Ecologist (Altmann Oliver Associates). However, the lack of recommendation by a review body or agency does not absolve the applicant from the requirement to establish an NGPE over any portion of the site containing critical areas or their buffers since it is a code requirement. RMC 4-3-050.G.3.a requires that an NGPE be established to protect a critical area from any proposed development for a non-exempt activity (including Category I, II, III, IV wetlands and their associated buffers). In addition, RMC 4-3- 050.G.3.c allows the City to require a NGPE as a condition of approval when otherwise not required. The applicant’s proposed project, construction of an addition within a critical areas buffer, is not an exempt activity and therefore the NGPE is required. The intent of Condition #2 was to require the establishment of a modified NGPE easement area in order bring the site closer to compliance with the code, while allowing the applicant to continue to have reasonable use of the property. The condition allows for a “win-win” situation, in which the applicant is allowed to encroach into the required wetlands to construct an addition, while retaining use of the majority of the property. The establishment of the wetlands NGPE and associated fencing would ensure that the wetlands to the north of the site is protected in perpetuity. In the appeal, the applicant claims that maintenance of the wetlands buffer would not be possible if the NGPE is established and that invasive species would threaten the new plantings installed as part of the Wetlands Mitigation Site Plan. However, removal of invasive species and similar routine maintenance (i.e. cutting dangerous trees) are exempt from the Critical Areas Regulations. The applicant would only need to apply for a Critical Areas Exemption Permit at no cost in order to perform necessary maintenance. Therefore, maintenance of the buffer would not be an issue. The applicant states that the establishment of the NGPE would remove the legal non- conforming status of the portion of the wetlands buffer required to be placed in the easement. However, as further described above, staff reviewed the aerial photography provided by the applicant in Exhibit 3 of his submitted appeal, which appears to show that some small portions of the wetlands buffer area were maintained as manicured grass dating back to 2002. The majority of the north portion of the site where the NGPE would be located does not appear to be maintained and therefore staff disagrees with the applicants claim of existing non-conforming rights. Regardless of the historical vegetative make-up of the buffer, any change of the site is due to the applicants own proposal to construct an addition within a critical areas buffer. If the applicant was not proposing to construct the addition in the buffer, there would not be a requirement to City Response to Appeal Page 5 of 5 06/05/2020 establish a NGPE and the property could continue to be used in the same manner as today. Therefore, any loss of a legal non-conforming status is purely a self-created hardship and therefore not relevant to the argument against Condition #2. Condition #3 The installation of a split rail fence along the boundary of an NGPE is a code requirement intended to prevent accidental or intentional disturbances of critical areas and their buffers (see RMC 4-3-050.G.3.c). The applicant states that facade maintenance of the north side of the addition would be difficult if a fence is installed along the building foundation. Staff concurs and would support amending the condition to not require split rail fencing between the north property line and the north side of the addition. See prior analysis related to this change above. See prior analysis for response to claim of loss of legal non-conforming status. Condition #5 The applicant claims that historic aerial imagery of the site provided as an exhibit in the appeal indicates that manicured grass existed on both the east and west sides of the stream. As further analysis on this assertion of legal nonconforming status, staff reviewed the imagery provided and disagrees with the applicant’s interpretation. In fact, the applicants Exhibit 4 clearly shows unmaintained vegetation within the stream buffer between the ROW and the stream in both 2005 and 2009 imagery. Staff does concur that the area to the west of the stream has historically consisted of manicured lawn since at least 2002 and wrote the condition to reflect that. In addition, staff concurs that it is unclear when the stream armoring was installed and is therefore amenable to adjusting the condition to no longer require removal of the rocks, fill, and other armoring materials. With respect the establishment of the NGPE over a portion of the stream, section RMC 4-3-050.G.3.C gives the City the ability to condition a proposal to provide an NGPE in order to further the goals of the Critical Areas Regulations. Therefore staff required that the stream and the buffer area to the south be placed in a NGPE and fenced off in order to protect the stream from impacts such as those created in the past (i.e. adding armoring, channel altering, underground). Conditions #4, 6, 7, 8 See responses above.