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HomeMy WebLinkAboutEX_17_2021-11-15 Request to Reopen Hearing 176-001 Final T: (425) 451-2812 • F: (425) 451-2818 11201 SE 8th St. * Suite 120 * Bellevue, WA 98004 www.jmmklanduselaw.com Via E-Mail olbrechtslaw@gmail.com and Messenger Phil A. Olbrechts Hearing Examiner Attn: City Clerk City of Renton 1055 S. Grady Way Renton, WA 98057 November 16, 2021 Re: Request to Reopen Hearing, Asdourian House Remodel LUA21-000025, V-A, V-H Dear Mr. Examiner: On behalf of the Applicant, we submit this request to reopen the hearing for Asdourian House Remodel LUA21-000025, V-A, V-H. In the alternative, please consider this a Request for Reconsideration of the Final Decision (“Decision”) dated November 2, 2021 pursuant to Renton Municipal Code (“RMC”) 4-8-100(I). Respectfully, the Applicant submits that the Hearing Examiner’s Findings of Fact 3 and 6 are based on erroneous facts leading to an error in judgment/application of the permit requirements to those facts. The Hearing Examiner denied the Applicant’s request for a variance to the 25’ OHWM setback. The Applicant believes this decision is based on two incorrect factual issues. First, the Staff Report incorrectly concludes that the Applicant’s proposed garage additions lie entirely outside of the 25’ OHWM setback. The Applicant represented in its materials that the additions to the building footprint, in order to create a garage, were all landward of the existing building, but did not claim that they were landward of the setback. The Applicant unfortunately did not catch this error, and the denial of the variance will preclude the addition of a garage, which the Hearing Examiner clearly believes should be permitted. Second, the Applicant inadvertently forced a comparison of apples and oranges with regard to “livable space” in the square footage calculations. The Applicant did not know that total livable square footage would become such a central issue to the Hearing Examiner’s decision. Unfortunately, some of the materials in the Applicant’s submittal confused this issue, with inaccurate definitions and/or representations. The figures in Exhibit 12 represent “livable” area, whereas the Applicant’s numbers encompass much more. Ultimately, the Applicant believes that the Hearing Examiner’s conclusion that the Applicant is proposing to create 3,579 SF of “livable” space is erroneous. In fact, the Applicant proposes to create 3,076 of “livable” space, and the City of Renton, Hearing Examiner November 16, 2021 Page | 2 JOHNS MONROE MITSUNAGA KOLOUŠKOVÁ, PLLC Hearing Examiner’s decision restricts the Applicant to far less than the 2,790 SF or even 2,500 SF that was determined to be reasonable, based on the configuration of the site. RMC 4-8-100(I)(3) states that reconsideration cannot be requested for shoreline permits including shoreline variances. For the following reasons, this does not preclude the Applicant’s request to reopen the hearing. RMC 4-8-080(G) states that any appeal to the Shorelines Hearings Board must be closed record. If the Hearing Examiner does not reopen the hearing for the Applicant to correct these errors, it will be very difficult to correct these facts on appeal. This is not a situation where the Examiner’s conclusions are based on an error of law, appropriate for reconsideration. Rather, the parties to the case presented incomplete and/or inaccurate information, precluding the issuance of a legally supportable decision. To some extent, this request could be considered a motion for a mistrial. Where the Examiner’s decision is based on erroneous factual representations, justice has not been achieved for any party. Whether considered in the context of a shoreline variance or not, many other issues were before the Hearing Examiner here, and all issues benefit from a full and accurate disclosure of the facts. While there are no explicit procedures identified for this, the Applicant believes the Examiner has the authority to reopen the hearing under RMC 4- 8100(G)(3)(c)(viii), with appropriate notice given by City Staff. The Examiner could then vacate the Decision and issue a new one or issue an amended decision. If the Examiner knows of another path, including reconsideration, the Applicant welcomes such an alternative, and the Hearing Examiner should consider such request to be stated herein. Building Footprint The Staff Report states that “the building footprint of the first and second floor of the structure would not change within the OHWM setback and no expansions of the footprint would encroach closer to the shoreline.” Exhibit 1 at 1. The first half of this statement is not true, the second half is. The second conclusion is stated in various ways throughout the Staff Report. In the analysis of “reasonable use” on page 6 of the Staff Report, it appears the Report implicitly acknowledges that the expansion of the building footprint to accommodate the garage would include area within the shoreline setback. However, other than in the summary, the applicant finds no other portions of the Staff Report that conclude the expansion of the building footprint would be entirely outside the OHWM setback, only that the Applicant will not encroach closer to the OHWM. The Applicant believes this single statement in the summary of the Staff Report was made in error, as discussed and depicted further below. The Applicant does not believe it made this representation, and if we did, we did so in error. Living Space Calculations The Exhibit 12 compiled by City staff refers to square footage of nearby homes in the R6 zone as disclosed by the records of the King County Assessor’s Office. The numbers in Exhibit 12, as defined by the King County Assessor’s Glossary of Terms refer to “Total Finished Area,” or “Total finished living space. This would include finished space in a basement.”1 The Applicant has not proposed to create 3,579 SF of total finished living space under that definition. This error is likely 1https://blue.kingcounty.com/Assessor/eRealProperty/ResidentialGlossary.aspx?Parcel=3342700080&AreaReport= http://www.KingCounty.gov/depts/Assessor/Reports/area-reports/2021/residential-southeast/063.aspx City of Renton, Hearing Examiner November 16, 2021 Page | 3 JOHNS MONROE MITSUNAGA KOLOUŠKOVÁ, PLLC the result of including the Applicant’s proposed garage and/or outdoor deck in this figure. The true figure, as the Applicant proposes, is to create just 3,076 SF of livable space. This project went through numerous revisions.2 The Applicant freely acknowledges that its own materials referenced the creation of 3,579 SF of “livable space” or in others 4,043 SF 3. The latter represents previous, totally-abandoned submittals. The former represents the total square footage including the garage, or possibly some portion of exterior deck. This was a poor choice of terms, since it is not factually true under the definition of the King County Assessor’s Office, and so the Applicant inadvertently forced a comparison of apples and oranges. In practice though, garages are not considered “livable space,” since they are not certified for occupancy, and thus are not included in the numbers in Exhibit 12. While the Applicant could submit a supplemental exhibit, we recognize that the record is closed at this time. The additional information herein can be gleamed from the record by a close examination of the submitted plans, albeit not easily without appropriate software. If the Hearing Examiner reopens the hearing, the Applicant’s architect, Bruce Sinkey, is prepared to testify as to their accuracy. The Applicant has not changed any plans in order to make these representations. Rather, the Applicant has only spent more time calculating exactly what has already been proposed. The Applicant’s current proposal is the following: • Building Footprint: 1,398 SF • First Story Livable Space: 827 SF • Second Story Livable Space: 1,297 SF • Third Story Livable Space: 952 SF • Total Proposed Livable: 3,076 SF It would be erroneous to conclude that the Applicant can simply build a second story on top of the 1,398 SF building footprint and create 2,796 SF of “livable” space. For example, the 1,398 SF figure includes walls, garages, etc., many spaces that do not qualify as “livable.” Further, to create the garage, the Applicant will actually be sacrificing some of the current livable space on the first story, which can be seen in Exhibit 5 at p.1, outside of the dashed blue lines, which is the new space. Thus, the “livable” space on the first story will be far less than 1,398 SF. For the second story, even with a 1,398 SF footprint, the Applicant will only achieve 1,297 SF of “livable” space. Thus, with the proposed first and second stories, the Applicant will have just 2,124 SF of livable space, far less than the 2,790 SF average of nearby homes. Given the above, a third story is a necessity. However, as shown in the detail below, a third story is not practical without a 25’ OHWM setback variance. 2 The notes in the Ecology comments, Exhibit 9, are in reference to a prior iteration. 3 The reference in Exhibit 2 to 4,043 SF is also in reference to a prior iteration, or the inclusion of the exterior deck. City of Renton, Hearing Examiner November 16, 2021 Page | 4 JOHNS MONROE MITSUNAGA KOLOUŠKOVÁ, PLLC Annotated excerpt from Exhibit 7. The effect of the presence of water on two sides of this project are immense. The Applicant is not proposing to build out to the property boundary at the eastern edge, which would look terrible and create other issues. The Applicant is only proposing to grace the boundary at two points. See Exhibit 5. As detailed above, a third story, outside the 25’ OHWM setback, would only allow a jagged, angular space that might suffice as an odd viewing deck, but no more. The OHWM setback extends quite far into the northeastern portion of the site. Thus, as discussed further below, if there is to be any third story at all, a 25’ OHWM setback variance is necessary. Effect of Hearing Examiner Decision on Project First Story: Based on the illustration above, it is easy to see how the OHWM setback impedes upon the proposed addition of building footprint to create a garage. The ability to add a garage was never disputed by the City, Ecology, or in the Decision, since it is a recognized appurtenance under the Shoreline Management Act. Second Story: The Applicant cannot do anything to the existing home inside of that setback without the requested variance. The current home is of an older style, utilizing pitched roofs on the second story. The Applicant proposes to square off those edges of the second story. See Ex. 3 at p.2. Ridge now, the ridge of the roof runs north-south, but this is inefficient, and the Applicant intends to make it run east-west. Even this requires a variance to the shoreline setback. This is because, as the Applicant understands it, any change in height within a shoreline setback necessitates a setback variance. While it may be perplexing, this is a situation where any vertical change necessitates a variance to a horizontal standard. The Hearing Examiner’s decision restricts the Applicant to the exact dimensions of the current home (and roof line) wherein it lies within the shoreline setback (the vast majority). Since the roof is not flat, and even a railing for a deck would necessitate a City of Renton, Hearing Examiner November 16, 2021 Page | 5 JOHNS MONROE MITSUNAGA KOLOUŠKOVÁ, PLLC minor variance, the Examiner’s decision also precludes any exterior deck on the second or third stories. The Applicant does not believe this was the Hearing Examiner’s intent. The Applicant is taking living space away from the first story to make room for the garage. Every square foot of added living space will come from the second and third stories. This requires the Applicant to increase the height of the second story within the 25’ OHWM setback by a minimal amount, squaring those building edges and flattening the roof. From a design standpoint, providing the proposed additional rooms and bathroom on the second story necessitates this variance. There is also no upland outdoor space on the property for activities or to enjoy the views of the water. This is why an exterior deck within the proposed building footprint is necessary. In order to maximize interior space on the lower floors, eliminating the need for additional third story space, the Applicant must incorporate some rooftop deck space above the second story, but even this requires a variance. Third Story: The Hearing Examiner granted the Administrative Variance to allow a third story, outside the 25’ OHWM setback. However, the Applicant submits that, as approved, a third story is impractical. As the Hearing Examiner noted, the upland area of the project site is only 2,275 SF. However, even if the Examiner’s estimate that roughly 1/3 of this area lies outside the 25’ OHWM shoreline setback is correct, the Applicant is not proposing to eliminate all front setbacks along the eastern property line to build entirely along the property line. Among other reasons, this would make meeting condition 2.3, requiring the garage to be recessed from the front façade, all but impossible. In practice then, the Applicant does not have the benefit of all the space on a third story outside the 25’ OHWM setback. Please keep in mind, at the minimum, a third story requires the inclusion of a staircase, walls, etc., in order to create any usable space. While the Hearing Examiner stated that the Applicant would have room on the third floor for at least 400 SF, it is unclear whether the Hearing Examiner considered that the available area outside the OHWM cannot be used entirely for “livable” space, and that more space would be necessary to actually facilitate the use of the third story. Adding a third story is also an expensive endeavor, which includes adding a staircase that would otherwise be unnecessary; being limited to the area outside the OHWM likely makes adding a third story prohibitively so. Summary Argument The Applicant takes the Hearing Examiner’s statements regarding what is a reasonable amount of livable space to heart. However, given the explanations herein, the Applicant is adamant that what is proposed is what is necessary to avoid significantly interfering with the Applicant’s reasonable use of the property. Reasonable Use: Nearby homes range from 1470 SF of livable space to 4980 SF. See Exhibit 12. This list is neither exhaustive nor dispositive, but the Applicant submits that the smaller homes are likely older on average, and the larger homes likely newer. This would reflect the arguments made in the Applicant’s Exhibit 6 at p.12–13: (1) families require more space than they used to and often live in multigenerational households, (2) families spend more time at home than in the office than they used to, and (3) more children live at home longer, since they cannot immediately secure affordable housing of their own. The trend of modern living is to have more interior livable space than was once common practice. This trend should influence the standard of “reasonable use.” City of Renton, Hearing Examiner November 16, 2021 Page | 6 JOHNS MONROE MITSUNAGA KOLOUŠKOVÁ, PLLC First and foremost, the 25’ OHWM setback variance is required for the applicant to build the garage, something that everyone has apparently recognized the Applicant should be allowed to do. Garages are considered a normal appurtenance to a single-family residence under WAC 173- 27- 040(2)(g). The Applicant appreciates the Hearing Examiner’s in-depth evaluation and analysis of nearby nonconforming uses. Decision at 6–7. Respectfully, however, the Applicant believes the Examiner relied on the fact of their nonconformance more than necessary. The Examiner’s analysis, and the nonconformance of nearby homes, may be pertinent to both RMC 4-9-190(I)(4)(b)(i)(c) (compatibility) and (d) (not granting a special privilege). However, while the size of nearby homes provides an informative standard for what constitutes reasonable use of property (RMC 4-9- 190(I)(4)(b)(i)(a)), it should not matter in evaluating reasonable use whether these other properties are nonconforming. This risks the intimation of a domino effect where none exists. The Applicant’s position is that a home of a certain size is required for reasonable use. For the purpose of evaluating this question alone, any random sampling of homes in the R6 zone will suffice. It is not necessary to compare the Applicant’s proposal to other nonconforming lots to make this determination. To the contrary, specifically relying on nonconforming uses in this analysis risks equating what is reasonable with what others have been allowed to get away with. That is precisely the sort of subjective analysis and domino effect that the law seeks to avoid. Instead, reasonable use must be based on an objective standard, without subjective limitations. Davidson v. Department of Ecology, SHB No. 19-006, FFCL at p.11 (Nov. 13, 2019). That said, there is nothing wrong with the random sampling we have, as long as the numbers in Exhibit 12 are taken at face value, and not couched in the fact that they represent nonconforming uses. Of this sampling, the average home size, for livable space, is 2,790 SF. Exhibit 12. The 25’ OHWM setback significantly interferes with reasonable use of the property, since the Applicant cannot come anywhere close to building a similarly sized home without it. The Applicant cannot achieve even the proposed first and second stories without this variance, let alone construct a practical third story. Minimum Variance: For all the reasons stated herein, the Applicant believes that we are requesting the minimum necessary variance to afford relief. In particular, the trends of modern living discussed above weigh heavily in favor of the necessity of more interior living space. The Applicant specifically reduced the profile of its proposal in response to Ecology’s comments. The Applicant is no longer proposing to have a full third-story with a rooftop deck. The Applicant is not proposing to exceed the maximum height (in feet) for either the wall plate or roof line. The Applicant has converted the third-story roof into a pitched roof, allowing maximum visibility from the high bluff and homes further landward. The Applicant has taken every possible design consideration into account to come up with the minimum necessary variance to this standard. Other Criteria: The Applicant demonstrated that the proposal will result in no net loss of ecological function, the most important consideration in granting any variance to the Shoreline Master Program. The Hearing Examiner concluded that no significant view impacts were anticipated. Decision at 4. Undeniably, the hardship here is specific to this lot, having water on two sides of the property that impact the buildable area, and thus future applicants cannot rely on this proposal as an example, and there is no risk of a domino effect. City of Renton, Hearing Examiner November 16, 2021 Page | 7 JOHNS MONROE MITSUNAGA KOLOUŠKOVÁ, PLLC Therefore, the Applicant respectfully requests the Hearing Examiner to grant the 25’ OHWM setback variance, on the following proposed terms: • The 25’ OHWM Setback Variance is granted with regard to any increase in building height for the Applicant’s garage, first story, and second story, as shown in Exhibit 3. • The 25’ OHWM Setback Variance is granted with regard to any increase in building height for the Applicant’s third story, including a railing on the roof of the second story for an exterior deck; PROVIDED, prior to building permit issuance, the Applicant shall submit stamped architectural plans affirming that the total livable space of the third story does not exceed 952 SF. If the Hearing Examiner reopens the hearing and the record, the Applicant’s team will happily explain all of the details herein. Sincerely, Dean Williams Direct Tel: (425) 467-9967 Email: williams@jmmklaw.com 2021-11-15 Request to Reopen Hearing 176-001 Final