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BULK - )RAGE SETBACK ggin N OF EXISTING VEGETATION BEYOND LANDSCAPE AREAS :EE R.._-.,4-734(D)) 3 hi V.iiuYit..aAx'•a' l.YY ' u Sul::.\. n:. PROPOSED 8—ELT HIGH SITE SCREEN DE—SPECIFIED LANDSCAPE AREAS VARIANCE EXHIE ODE SPECIFIED MINIMUM SETBACK w., ova ALL N.. gc4-7I ,4-734(D),84-744(F)2.) c FflR B=FC T HIGH SITE SCREEN •SEE R.C. ?4-7 4(EiTrMERLINOBULKSTORAGE FACILITY pOY. 0 I.....,1 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 pF R4, o THE CITY OF RENTON 6) z POLICY DEVELOPMENT DEPARTMENT • 235-25`. n MUNICIPAL BUILDING 200 MILL AVE. SO. RENTON,WASH. 9 )5 0A c 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- P - 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."