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VARIANCE APPEAL - 1
BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
RE: Griffin Home
Administrative Appeal
LUA10-082, V-A
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APPEAL OF VARIANCE APPROVAL
Summary
The Appellant appeals the approval of an administrative variance for a 7,200 square foot
roofed structure to enclose an existing 7,200 square foot concrete sports court. The variance
approval is reversed and denied. The variance request was to waive the requirements of RMC 4-
2-110(B), which limits the size of accessory structures on properties zoned R-4 to 1,000 square
feet. The approval is reversed because the Applicant did not demonstrate undue hardship as
required by the variance criteria.
Testimony
Dr. van Breda, Appellant, submitted his written testimony, which was admitted as Exhibit 18. Dr.
van Breda noted that as to the undue hardship criterion, he is concerned that the nonconforming use
status of the building grants the Applicant license to continue to expand contrary to existing
regulations and that the proposed structure is only 600 square feet smaller than the largest existing
building on the site. The proposed structure will be three stories in height.
On the materially detrimental criterion, the project will generate noise late into the evening and will
be an eyesore. The planting of 10 to 12 foot trees cannot hope to shield a 35 foot building. The
building will be the tallest on the site and from his property all buildings within view do not exceed
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VARIANCE APPEAL - 2
one story. Asserting that the sports court is not visible is incorrect since the court is visible in the
summer months. Dr. van Breda believes that the metal roof will increase noise impacts. Dr. van
Breda noted that the structure would adversely affect home values.
On the special privilege criterion, Dr. van Breda cannot understand how allowing such a massive
structure could not be considered a special privilege. The proposed building is larger than most
building sites in Clover Creek.
Dr. van Breda noted that there is no undue hardship involved because the sports court is not critical
to the future of the stated aims of Friends of Youth. He also noted that the Applicants should build
their court at the running track location of the site, located on the southeast side of the campus away
from adjoining homes.
Gerald Wasser, Renton planner, testified that the campus of the subject site is 5.6 acres in size. It is
composed of four lots. The main campus is 3.4 acres in size and includes two structures for the
care of the youth. There is also a parking area that contains 40 parking spaces and in the northeast
portion is a concrete structure used as a sports court. The current sports court is 60x120 feet in size.
The proposed structure will be composed of two enclosed walls. It was originally proposed as four
walls of chain link fence, but was revised in response to neighborhood concerns. Mr. Wasser noted
that staff did not respond to Dr. van Breda’s concerns over property value impacts because they
cannot research that issue. Staff did comment on concerns over light, views and noise. He noted
that the walls will be lined with matts that absorb noise. The roof structure contains wood
sheathing on the inside that attenuates noise as well. Photo simulations are included in Exhibit 16
to demonstrate view impacts. The building would be visible when the deciduous trees shed their
leaves in the fall/winter months. The 22 trees that will be planted will achieve a much greater
height then 10 to 12 feet over the years.
Mr. Wasser noted that the Griffin home was annexed into the city in 1959. At that time the
property was zoned R-4. An undue hardship does exist because the R-4 development standard was
intended for residential development. Functionally the proposal provides for the same type of use
already at the sports court but just provides protection from inclement weather. The Applicant has
also stated that the sports court would only be used for limited hours. The Applicant stated that the
boys would not be able to use the court during late evening hours. The variance is the minimum
necessary, but it is unknown whether the Applicant has considered building further away from
adjoining homes at the southeast corner of the campus. Regarding the height, the midpoint of the
roof is 30 feet high, which is the height limit for the R-4 zone where height is measured from the
midpoint of the roof.
Bob Rench, Applicant’s representative, noted that the Applicant hasn’t looked to the southeast
corner of the property because the current site is already devoted to sports court use and a large
portion of the southeast corner is not usable and the sports court would eliminate use of the fields
for soccer and other recreational activities. In response to questions, there are 24 residents at the
facility.
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VARIANCE APPEAL - 3
Aso Jaffe, the Applicant’s architect, testified about lighting, noise abatement and views. Ex. 4
shows that the lights proposed for the facility are down lights suspended from the building trusses
and are enclosed by a facie that surrounds the roof, which would minimize any light spillage from
the building, especially considering that the building is 30 feet lower than surrounding housing.
The sports court is below the site line of the van Breda residence. As to noise, noise will be
absorbed by the sidewalls which are composed of sound absorbing matts as well as insulation.
Originally the court did not include sidewalls.
In response to questions from the Examiner, Barry Oman stated that the courts are only used during
light hours so that they are used more during the summer. Sometimes lights are used during the
winter until 9:00 pm. The courts will be used whether or not the structure is added. The structure
will improve noise levels. However, it is acknowledged that the structure will be used more due to
protection from inclement weather, but the inclement weather will also serve to buffer the noise.
Mr. Olman did not object to a 10:00 pm restriction on court use. Bedtimes for the kids start as early
as 9:00 pm. There are no competitions with other facilities that would bring in additional court
users.
In rebuttal, Dr. van Breda noted that on the roof height there is a major difference between the slab
of concrete presently used and the proposed three story structure. There are mature trees on the
southeast corner of the site that would serve as good protection to neighboring properties. No
neighbors were consulted about the project beforehand and the variance decision was issued during
the holidays when people did not have a reasonable opportunity to respond. There is no definition
given as to how late the court would be used during the summer months.
Exhibits
The March 31, 2011 staff report along with the 17 exhibits identified at page 4 of the report were
all admitted into evidence during the May 17, 2011 hearing. In addition, Dr. van Breda’s written
testimony, dated May 17, 2011, was admitted as Exhibit 18 during the May 17, 2011 hearing.
Findings of Fact
Procedural:
1. Appellant. The Appellant is Dr. van Breda.
2. Hearing. The Examiner held a hearing on the application at 1:00 pm on May 17, 2011, in the
City of Renton City Council Chambers.
Substantive:
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VARIANCE APPEAL - 4
3. Description of Proposal. The Appellant seeks to reverse a staff decision to approve a request
for an administrative variance. Staff approved the variance authorizing the waiver of RMC 4-2-
110(B), which limits the size of accessory structures on properties zoned R-4 to 1,000 square feet.
The Applicant requested relief from this requirement in order to partially enclose a 7,200 square
foot outdoor concrete sports court with a metal building composed of two walls.
The project site is part of the campus for the Friends of Youth Griffin Home, which comprises four
tax lots totaling of 5.64 acres. The proposed project would be located on the tax lot comprising the
main campus property, which is 3.75 acres in size. The lot is located at 2500 Lake Washington
Boulevard North. This tax lot is developed with a Group I Home, which includes a 2-story, 7,807
square foot educational/mental health services building with group care for 12 youths; a 2-story,
6,000 square foot youth treatment facility; a grass play field and gravel running track; driveway and
parking area for 40 vehicles; and an existing uncovered 7,200 square foot sports court.
The Applicant proposes no change in use on the proposed project site. As part of the proposed
project the existing 60-foot by 120-foot uncovered concrete sports court would be repaved in the
same location and a roof covering would be constructed. The structure would be approximately
30-feet in height (28-feet, 9-inches to the midpoint of the roof and 34-feet, 7-inches to the roof
ridge). The roof would be constructed with wood trusses with plywood sheathing and metal
cladding. The structure would have two metal walls facing adjoin residences in order to mitigate
noise. The walls would be insulated and interior mats would absorb additional noise. The
Applicant proposed to plant staggered rows of coniferous trees along the southwest and northwest
perimeters to mitigate aesthetic impacts. The trees would be planted approximately 10-feet on
center.
Pendant metal halide down-lights would be installed inside the structure. Outside of the structure
three metal halide down-lights with restricted spread would be hung from the roof fascia and
would light an area directly west and south of the plat area. These outdoor lights would be
activated by motion sensors.
4. Adverse Impacts. The Appellant identified four impacts, addressed individually as follows:
A. Aesthetic. The Appellant correctly notes that the proposed sports court would be larger
than any other structure at the site. Although the educational/mental health services
building would have more area, this is because it is a two story structure. The sports
court only has one floor but is apparently taller than the educational/mental health
services building. The fairly massive scale of the structure is confirmed by the photo
simulations in Exhibit 6. The scale of the building is not compatible with surrounding
properties, which is composed of residentially zoned and/or developed properties on all
sides. See Ex. 16 and 17. As noted by the Appellant, the footprint of the building is
larger than the lots in his neighborhood.
The Applicant’s architect testified that the sports court is at a lower elevation than Dr.
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VARIANCE APPEAL - 5
van Breda’s property and below his sight line. It is unclear how this sight line is
measured, but it is clear from Dr. van Breda’s testimony that the sports court without the
proposed building is visible from his property. The Applicant proposes to plant some
trees to conceal the building. There was no evidence presented to show that the trees
would grow taller than the proposed building or how long it would take to reach such a
height beyond assertions by staff.
Although the Applicant has done an admirable job in volunteering mitigation to mitigate
aesthetic impacts, there is insufficient information to conclude that the proposed tree
mitigation will completely conceal the structure from adjoining residential properties.
Further, staff acknowledges that in the fall and winter seasons the deciduous trees will not
conceal the building. The proposed building is out of scale with the rest of the buildings
on the campus and grossly out of scale with surrounding single-family homes. The
proposed tree mitigation may or may not conceal the building from adjoining view in the
spring and summer months and will not conceal it from view in the fall and winter
months.
B. Noise. It is undisputed that noise from the sports court can be heard by adjoining
properties. The Applicant has added walls, insulation, wooden sheathing and sound
attenuation mats to reduce noise, but the Applicant didn’t have any information on how
much this would reduce noise since he “didn’t know how much noise the kids make
now”. It is also unknown whether the Applicant has taken all reasonable measures to
reduce noise, since there is no information on whether noise could be significantly
reduced by completely enclosing the building with walls as opposed to just placing them
on two sides. Noise impacts can be further reduced by adding conditions limiting night
time use of the court. The Applicant testified that even without such a condition the
courts are not typically used during the dark evening hours except for some times in the
winter up to 9:00 pm.
C. Light. Lighting impacts are not anticipated to be significant. As previously noted,
night time use of the sports court will be limited. There would only be three exterior
lights and these would be metal down lights.
D. Property Values. Dr. van Breda claims that the approval would reduce surrounding
property values, but no evidence from an appraiser or other compelling source is
presented to support this assertion.
Conclusions of Law
Procedural:
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VARIANCE APPEAL - 6
1. Authority of Hearing Examiner. RMC 4-8-080(G) provides that appeals of administrative
variances are heard and ruled upon by the Hearing Examiner in an open record appeal. The
Examiner’s decision is appealable to the City Council in a closed record appeal.
Substantive:
2. Zoning Designation. The subject property is designated R-4.
3. Review Criteria. RMC 4-8-110(7) provides that the Hearing Examiner shall give substantial
weight to any discretionary decision rendered by City staff in its zoning code. A variance decision
qualifies as a discretionary decision subject to substantial weight. The criteria for variance are quoted
below in italics and assessed in corresponding conclusions of law.
RMC 4-9-250(B)(5)(a): That the applicant suffers undue hardship and the variance is necessary
because of special circumstances applicable to subject property, including size, shape, topography,
location or surroundings of the subject property, and the strict application of the Zoning Code is
found to deprive subject property owner of rights and privileges enjoyed by other property owners in
the vicinity and under identical zone classification;
6. Renton sets a fairly high standard for its variance by requiring that the applicant establish that
“undue hardship” results from special circumstances applicable to the subject property. The term has
not been construed by Washington State courts, except for one case that essentially concluded that
“undue hardship” is a stricter standard than “practical difficulties or unnecessary hardship”. See
Cooper-George Co. v. City of Spokane, 3 Wn. App. 416 (1970). In other states, the term has been
construed as requiring a showing that the zoning ordinance is confiscatory or would effectively
destroy the economic utility of the property. See, e.g., Clapp v. Zoning Bd. of Appeals, 268 A.2d 919,
921 (1970). One Washington treatise notes that the hardship term is viewed by some commentators
as a means of avoiding constitutional invalidation. Variances, Washington Practice, Real Estate,
Chapter 4(F). Constitutional takings and substantive due process analysis involves a balancing of
private burden verses public benefit in denying a variance. See Presbytery of Seattle v. King County,
114 Wn.2d 320, 331, 787 P.2d 907 (1990).
It is telling that the “undue hardship” standard is not mandated by state variance requirements, even
though those standards are fairly detailed. See RCW 35A.63.110(2). Renton could have chosen to
require the more lenient “unnecessary hardship” standard or even not required any showing of
hardship. Instead it adopted the most restrictive standard. This must be interpreted as a low tolerance
for variances in the City of Renton.
In assessing the public benefit of denying the variance, it is useful to consider that it is the policy of
zoning legislation to phase out nonconforming uses. This is because nonconforming uses are
disfavored under the law. McMillan v. King County, ____ Wn. App. _____ (2011, Division 1).
Renton’s nonconforming use provisions only allow an expansion of a nonconforming use if the
expansion “moves towards conformity”. RMC 4-10-050(A)(4)(b). The size of the proposed structure
is moving very quickly in the opposite direction. There is nothing unique about the Griffin Home’s
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VARIANCE APPEAL - 7
nonconforming use status that merits the use of the variance process as an end run to the policies and
regulations that seek to phase out nonconforming uses.
Combining all of the considerations above reveals that the application falls significantly short of
establishing undue hardship by denial of the variance. The Applicant proposes an accessory building
that is several times the size allowed for accessory uses in the R-4 zone. The sheer bulk and scale of
the building is not only larger than any of the principal structures on surrounding lots, it is larger than
many of the lots themselves. Further, the Applicant already enjoys extensive reasonable use of its
property, including living, educational and mental health facilities as well as outdoor playfields,
sports court and running track. The loss of some recreational opportunities for the juvenile residents
is highly unfortunate, but this loss does not support any straight-faced constitutional argument that
denial deprives the Applicant of all reasonable use of its property or that denial is confiscatory or
would effectively destroy the economic utility of the property. Even under a more lenient
interpretation, the loss of some outdoor recreational opportunities does not create “undue” hardship
given the public benefits in phasing out nonconforming uses, especially for nonresidential uses
surrounded by residential development.
There is also nothing the record to suggest that strict application of the 1,000 square foot limitation of
RMC 4-2-110(B) would deprive the Applicant of rights and privileges enjoyed by other property
owners in the vicinity and under the same R-4 zone. No other property in the vicinity would be
allowed to construct a 30 foot tall 7,200 square foot accessory structure on their lot and it is highly
unlikely1 that any use in any R-4 zone would have this option.
In summary, the application fails to comply with RMC 4-9-250(B)(5)(a) because denial of the
variance would not create undue hardship and denial would not deprive the Applicant of rights and
privileges enjoyed by other property owners.
RMC 4-9-250(B)(5)(b): That the granting of the variance will not be materially detrimental to the
public welfare or injurious to the property or improvements in the vicinity and zone in which subject
property is situated;
7. As discussed in Finding of Fact No. 4, the project arguably creates several impacts and it is
unclear whether proposed mitigation measures fully mitigate them. However, it can be reasonably
argued that none of the impacts are “materially detrimental” as concluded by staff. Since the staff’s
conclusions are reasonable and the Examiner must afford substantial weight to these determinations,
the Examiner concludes that the criterion above is satisfied.
1 Churches would be one major exception to this prohibition if they are a nonconforming use. The Religious Land
Use and Institutionalized Persons Act and constitutional considerations may compel a lenient application of variance
criteria for accessory structures that are considered necessary for religious expression. As to other uses, it is unlikely
that such accessory structures would ever be allowed given the strict “undue hardship” standard adopted by the City
of Renton.
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VARIANCE APPEAL - 8
In concluding the project meets the criterion there are a couple other considerations at work as well.
First, Chapter 8-7 RMC already provides for comprehensive regulation of noise levels. This reflects a
legislative determination of what noise levels are acceptable in the City of Renton and compliance
with these standards should be construed as satisfying the criterion as it applies to noise. Second, the
restriction of property rights based on aesthetic considerations is difficult to defend against
constitutional challenge unless the applicable restrictions are based upon clear and specific
regulations. See Anderson v. Issaquah, 70 Wn. App. 64 (1993). Although no two reasonably
intelligent people are likely to differ on the conclusion that the bulk and scale of the proposed
structure is generally not compatible with single-family development in an R-4 zone, they may
reasonably come to different conclusions on this issue when the structure is shielded by trees and
topography in the midst of an institutional campus. Given the uncertainty of whether the aesthetics of
the Applicant’s proposal violate the criterion quoted above, it is safest from a constitutional
standpoint to defer to the staff finding of consistency.
RMC 4-9-250(B)(5)(c): That approval shall not constitute a grant of special privilege inconsistent
with the limitation upon uses of other properties in the vicinity and zone in which the subject property
is situated;
8. As previously discussed in Conclusion of Law No. 6, the Applicant seeks a variance in order
to build an accessory structure that is several times larger than what any other property owner would
be allowed to construct in the vicinity and zone of the proposal. The proposal would clearly
constitute a grant of special privilege in violation of the criterion above.
RMC 4-9-250(B)(5)(d): That the approval as determined by the Reviewing Official is a minimum
variance that will accomplish the desired purpose.
9. The desired purpose is to enable recreational activities in inclement weather. The
administrative record does not contain much information on whether this objective could be achieved
by a smaller sports court. However, as noted in the staff report the need for the area covered by the
sports court is evidenced by its long term historical use. Giving the substantial weight due the staff’s
determination on this issue, the application is concluded to be consistent with the criterion above.
DECISION
The requested variance fails to comply with two of the four variance criteria. The appeal is
sustained and the staff approval of the variance is reversed.
DATED this 31st day of May, 2011.
________________________________
Phil A. Olbrechts
City of Renton Hearing Examiner
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VARIANCE APPEAL - 9
Appeal Right and Valuation Notices
RMC 4-8-080(G) provides that the decision of the hearing examiner is final subject to closed
record appeal to the Renton City Council. RMC 4-8-110(E)(9) requires appeals of the hearing
examiner’s decision to be filed within fourteen (14) calendar days from the date of the hearing
examiner’s decision. A request for reconsideration to the hearing e examiner may also be filed
within this 14 day appeal period as identified in RMC 4-8-110(E)(9). A new fourteen (14) day
appeal period shall commence upon the issuance of the reconsideration. Additional information
regarding the appeal process may be obtained from the City Clerk’s Office, Renton City Hall – 7th
floor, (425) 430-6510.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.