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HomeMy WebLinkAboutC_Reconsideration of NOD Criteria #3 www.PlanToPermit.com george@PlanToPermit.com 206-909-2893 June 4, 2020 To: Jennifer Henning Attention: Jill Ding and City Clerk City of Renton 1055 South Grady Way Renton, WA 98057 SENT VIA EMAIL TO: JDing@Rentonwa.gov, Jhenning@Rentonwa.gov, and cityclerk@rentonwa.gov RE: Reconsideration of Condition of Approval #3 for LUA20-000083, V-A (Benson Trails Variance) Dear Jennifer Henning: Thank you, to you and your staff, for quick responses and the Notice of Decision (NOD) as it relates to LUA20-000083, V-A. The owner and I appreciate receiving the NOD in a timely manner, especially given the unusual situation with COVID-19. We noticed that the NOD for LUA20-000083, V-A states (with emphasis added): The Benson Trails Variance, File No. LUA20-000083, V-A, is approved for a 20-foot front yard setback with a 5- foot allowance for a porch projection, a 5-foot side yard setback from the west property line, a side yard setback ranging from 3 feet in front to 1-foot in the rear (where the side lot line intersects with the 15-foot wetland buffer building setback line) along the east property, a 2 foot eve projection into all setbacks, and a reduced minimum lot size to accommodate the required lot line adjustment. The approved variance is subject to the following conditions: … 3. A lot line adjustment shall be recorded prior to the issuance of a building permit to reflect the easement line, as shown in Exhibit 7, which was recorded to address the encroachment. … A. REQUEST This letter is to respectfully request the reconsideration of the condition of approval within LUA20-000083, V-A for a lot line adjustment between the “subject property” (18300 121st Pl SE) and the “neighboring” property to the east (18306 121st PL SE). B. REASON FOR THE REQUEST We appreciate the intent of the condition to clean up the unusual situation that was created by others. The condition is a significant issue for the owner because: 1. There are separate ownerships between the two properties. 2. We cannot force the neighbor to agree to sign the necessary documents needed to complete a lot line adjustment. 3. The current COVID-19 and Governor’s Phase 1 plan adds additional restrictions to negotiating with the neighbor for a lot line revision. Page 2 of 3 LUA20-000083 NOD Reconsideration Request 4. We request that the city take into consideration that the current encroachment of the neighbor’s house was not a result by the owner of the subject property. We hope that the city will consider the time and expenses of a lot line revision should not be born on the owner of the subject property without a clear code requirement. C. FINDINGS OF FACTS AND CODE SUPPORT We recognize, and understand, that the city code must support removal of the condition of approval. To that end, we provide the following facts for your consideration and the record: 1. RMC 4-8-100.I.3 allows for reconsideration by the decision maker, including an Administrator, upon receipt of a written request within 14 calendar days after the written decision has been rendered. The Decision for LUA20-000083, V-A was issued on May 28, 2020. 2. A lot line adjustment requires the written authorization by both property owners. RMC 4-8-120.D.12.Lot Line Adjustment Map.y. The neighboring property owner is not an applicant for the subject variance. A requirement on the subject property does not obligate a third party (the neighbor). a. To prevent the development of the subject vacant lot, the owner of the neighboring property would simply need to refuse to respond to any request or to sign documents. b. The condition could result in the subject property being unbuildable without the current, or future, neighbor’s approval throughout the surveying, permit processing, and recording process. 3. For a condition of approval to be valid, it must “be reasonably calculated to achieve some legitimate objective of the zoning ordinance, and not be unnecessarily burdensome or onerous to the landowner.” Gerla v City of Tacoma, 12 Wn. App. 883 (1975) and Woodinville Water Dist. v. King County, 105 Wn. App. 897 (2001) i. The NOD does not list a code section that supports the condition of approval. Thus, there is not a clear nexus between the condition and a code requirement. ii. The criteria of approval could be achieved without the lot line adjustment, per the narrative submitted with the application that addresses each criteria for approval. iii. The condition of approval would require the owner of the subject property to pay for a new survey for both properties, a lot line revision application, and associated consultant fees due to the encroachment by the neighbor. iv. Requiring the applicant to make a third party agree to an adjustment of their property boundary line could be unnecessarily burdensome and onerous due to negotiations, legal consultations, fees, permit processes, and time. Ownership of the neighboring property may change during the application process, further burdening the final approval and recording of a lot line adjustment. Ultimately, it may be impossible to achieve the approvals by the current and/or future owners of the neighboring property. v. The requirement to be reasonably calculated to achieve and not be unnecessarily burdensome or onerous is analogous to the requirements in SEPA which states mitigation measures must be “reasonable and capable of being accomplished”. RCW 43.21C.060. 4. The thorough Notice of Decision discusses the lot line adjustment on pages 6 and 7 of 9. The stated rational is: To bring the properties into conformance with City standards, a lot line adjustment should be recorded to reflect the easement line that was recorded to address the encroachment. [NOD F.16.a] and In addition, the recommended lot line adjustment, which would result in a reduce lot area for the subject property, would rectify an existing situation... [NOD F.16.b, c, and d] a. The criteria for approval of a variance, RMC 4-9-250.B.5, does not require that encroachments (or other non-conforming situations) of third parties be addressed as a condition of a variance approval, or prior to issuance of a building permit. b. RMC 4-9-250.A.1 provides that the purpose of a variance is “A grant of relief from the requirements of this Title which permits construction in a manner that otherwise is prohibited by this Title”. The Page 3 of 3 LUA20-000083 NOD Reconsideration Request purpose is to allow for construction, and not for resolving non-conforming issues created by third parties. 5. The application materials submitted addresses each criterion in RMC 4-9-250.B.5, and demonstrates how the proposed variance complies with the criteria for approval without a lot line adjustment. a. The lot line adjustment would bring the neighboring property into conformance for setbacks, but would not make the subject property any more conforming. b. A new non-conforming encroachment, created by the property owner, is typically resolved prior to issuance of a building permit. Since a building permit was issued for the neighboring property despite the encroachment, the ability to require a resolution by the neighboring property owner has likely passed. The resolution is beyond the authority of the subject property owner. D. CONCLUSION We appreciate, and understand the intent to resolve a non-conforming issue, though it was created by others. We hope that the city will allow the removal of the requirement for a lot line adjustment, as part of the Notice of Decision for LUA20-000083, V-A for the above reasons, and based on the enclosed findings of facts. Thank you for your time to review the reconsideration request. Sincerely George Steirer Plan to Permit, LLC