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HomeMy WebLinkAbout01-25-2021 - HEX Decision - Admin Appeal -- Modification -- Do and Phan1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Waiver Appeal - 1 CAO VARIANCE - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: Do and Phan Modification Appeal LUA20-000227, MOD FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION Overview The Do and Phan appeal is granted in part. Condition 4 of the decision under appeal is modified to give the Appellants the option of placing garage doors on both the north and south ends of the garage, with front yard access to the garage authorized until improved alley access becomes available. Further, the north facing garage door shall be removed along with front yard driveway improvements once improved alley access is available. The Appellants appeal a staff decision approving their request for a modification to RMC 4-4- 080(F)(7)(b), which requires alley access with garages in the rear of the home for dwelling units abutting alleys in the R8 zone. Staff authorized front yard access to the garage, but conditioned it (Condition 4) with the requirement that the garage be placed in the rear of the home and accessed only through a garage door located in the rear of the home. The Appellants appeal is limited to challenging Condition No. 4. At hearing, staff revealed that they are allowing other developers under similar circumstances to have the dual access identified in the preceding paragraph. Given that this condition largely meets the objectives of RMC 4-4-080(F)(7)(b), the Applicant is given the same option as other developers to install a garage with dual access. Testimony 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Waiver Appeal - 2 CAO VARIANCE - 2 A computer generated transcription of the proceeding, as well as a recording of the proceeding, is available from the City Clerk’s Office upon request and payment of any applicable fees. Exhibits 1. October 30, 2020 Administrative Modification Decision (LUA20-000227, MOD) 2. November 10, 2020 Appeal 3. King County property records (admitted for purpose of comparing homes sizes of other homes within same block). Findings of Fact Procedural: 1. Appellant. Chloe Phan and Huy Do, 451 Duvall Ae NE, Suite 115, Renton, WA 98059. 2. Hearing. A virtual hearing on the appeal was held via the Zoom application on January 19, 2021, Zoom Meeting ID: 821 5456 7797. 3. Appeal Description. Ms. Phan and Mr. Do have appealed the conditions imposed by a City staff decision to approve a modification request to RMC 4-4-080(F)(7)(b), which requires alley access with garages in the rear of the home for dwelling units abutting alleys in the R8 zone. The Appellants propose to construct a home in an R8 district for a vacant parcel located at 909 N. 29th St. The City approved the modification request by decision dated October 30, 2020. The administrative decision recognized that alley access is not currently feasible, because neighboring properties have built structures such as sheds and fences across the alley way. The alley way has also not been improved for vehicular access. The administrative decision waives the alley access requirement but requires the Appellants to construct the garage in the rear of the home for future alley access if and when the alley is ever opened and developed for that purpose. This condition necessitates enough space be dedicated along the side of the proposed home to provide driveway access from the rear garage to N. 29th Street in the front of the home. The Appellants contest the condition. 3. Impact of Condition. Impacts to developable area by the City’s garage condition (Condition 4) are modest. If garage doors on both the north and south ends of the garage are allowed, available 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Waiver Appeal - 3 CAO VARIANCE - 3 developable space is reduced by less than 1%. If only a south facing garage door is authorized, available developable space is reduced by 8.3%. The dimensions of the rectangular lot are 50x102 feet. RMC 4-2-110A requires side yards of five feet and rear and front yards of 20 feet. This leaves a developable area of 40x62 feet, which is an area of 2,480 square feet or 5,960 square feet for a two story home. At the hearing, the City revealed for the first time that it would be willing to accept a garage with doors on both the north and south ends, thus eliminating the need for a driveway along the side of the home to access a garage with an entrance only located on the garage’s north end. This significantly reduces the impact of the garage condition. Ex. 3 site plans reveal the dimensions of the proposed home for a garage with a north facing door. The site plan shows an approximately 40 square foot interior building area between the south end of the proposed garage and the south end of the proposed residence. This is the only area that would be lost if the Applicant were required to make the garage accessible from both the north and south ends. The impact of such a requirement, therefore, would be a loss of 40 square feet from a development potential of 5,960 square feet, or a reduction of 0.067% in building potential. If a north facing garage door is not allowed, the impacts to the proposal are more significant. It is uncontested that the minimum feasible driveway width is 8 feet. RMC 4-4-080I2biii requires driveways to be located at least five feet from property lines. Installing a driveway along the side of the home to access a rear garage, therefore, reduces developable lot width to 32 feet. The Applicant asserted at hearing that a five foot separation would be necessary between the driveway and the home. Staff testified that there is no such setback required and none is apparent in the City’s development standards. From this evidence it is determined that the maximum impact on developable space is the loss of 8 feet of developable width of the first floor, which results in a reduction of development potential from 5,960 square feet to 5,464 square feet, a reduction in 8.3% of developable space. The applicant asserted that 24 feet of backout space is necessary for access to the rear garage, thus reducing available buildable area by at least four feet of lot depth. This maneuvering space is available when combining the abutting alley with the required 20 foot rear yard. City regulations would also not result in any loss of rear yard space, since the Note 39 of BMC 4-2-110 only requires that a garage door facing an alley must be located within 26 feet of the back of the alley. The required 20 foot rear yard plus the alley width is sufficient to meet this requirement. Consequently, it is determined that rear maneuvering space will not reduce developable space. The applicant also asserted that the grade change in the rear yard is too steep to accommodate the maneuvering space for rear access. However, at hearing staff showed an examples of at least one other two story home with the same grade change that has succeeded in providing front and rear garage door access for rear access for a future alley connection. The Applicant also asserted that it may not be possible to meet height requirements for a two story home if grade accommodations have to be made for rear access, but again the Applicant acknowledged that the two story home examples presented by 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Waiver Appeal - 4 CAO VARIANCE - 4 staff were designed for similar grade conditions. Consequently, it is determined that grade issues will not further reduce developable space to any material degree. 4. Likelihood of Alley Access. Alley access is likely to occur within the foreseeable future. It is uncontested that the alley overall is currently not feasible due to structural encroachments such as fences and sheds. However, the alley connection to the subject lot is only about 100 feet from the nearest public road connection, specifically Burnett Ave N. Brianne Bannwarth, Renton Development Engineering Manager, testified that the only impediment to alley access at this time from Burnett to the subject parcel is the home built on 2814 Burnett Ave N., which is built right up to its north property line. She noted that redevelopment pressure for lots within the ten block area has resulted in 25 new single-family homes within the past two to three years. The applicant acknowledged that there was redevelopment going on in the area, but appeared to suggest that at least some of that was the result of short platting. Ms. Bannwarth noted that the home on 2814 Burnett was built in the 1950s. Ms. Bannwarth also noted that the 2814 home is located on one of the larger lots within its block. King County property records as well as Ex. 4 reveal that of the 43 lots in the block in which the 2814 lot is located, only three of those lots are larger. Ms. Bannwarth also noted that fees are collected from homes constructed in the area for future alley development and that an alley was developed using these fees within the past year just two or three blocks away. Given all of these factors, it is concluded that the 2814 lot will be redeveloped within the reasonably foreseeable future, thus enabling improvement of the alley way with the funds collected by the City. 5. Adverse Impacts. As revised by this Decision, the proposal will not create any significant impacts to other properties. As outlined in Conclusion of Law No. 3, the property rights of the Applicant dictate that it be allowed front yard vehicular access to its proposed garage until alley access becomes available. This Decision mitigates the impact of front yard access by retaining the requirements of Conditions 1-3 of the Administrative Decision in conjunction with the proposed design mitigation proposed by the Applicant for front yard access. The objectives of the alley access requirement, as outlined in the staff report, pinpoint the adverse impacts associated with front yard access, specifically pedestrian safety, aesthetics and loss of pervious and green space. Conditions 1-3 of the waiver under appeal accomplish these objectives by requiring grasscrete pavers, significant landscaping along the project frontage, and limiting driveway width to 9 feet. In addition, the Applicant has incorporated design measures to reduce the visual impact of a front facing garage door, composed of recessing the garage from the front of the home, limiting the width of the door, glazing the door and limiting driveway cut to eight feet. For visual impacts, it is also significant that all of the lots within the same block as the project site currently have front facing garages, so the proposed front facing garage will be fully aesthetically compatible with existing development. The three staff conditions coupled with the Appellant’s design proposal serves to both reduce visual impact and maximize green and pervious surface. Pedestrian safety is protected to the maximum extent practicable by requiring elimination of front yard vehicul ar access once alley access is available. 6. Current Alley Access Not Feasible. Current alley access is not practical or feasible. As previously identified, staff do not see alley access as currently feasible due to the location of the home 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Waiver Appeal - 5 CAO VARIANCE - 5 on 2814 Burnett. This was the opinion of Brianne Bannwarth, Development Engineering Manager of the City of Renton. Ms. Bannworth’s expert opinion was not contested and is supported by the aerial photographs of the project site, which show the home on 2814 Burnett built up to the alley with no setback and the absence of any other impediments to alley access between the project site and Burnett Avenue. Conclusions of Law 1. Authority. RMC 4-8-080G grants the Hearing Examiner the authority to hold hearings and issue final decisions on appeals of modification decisions. 2. Applicable Criteria. The modification request subject to this appeal is governed by the criteria adopted by RMC 4-9-250D, which are quoted below and applied via corresponding conclusions of law. RMC 4-9-250D2: Whenever there are practical difficulties involved in carrying out the provisions of this Title, the Department Administrator may grant modifications for individual cases provided he/she shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modification is in conformity with the intent and purpose of this Code, and that such modification: 3. The criterion is met. As determined in Finding of Fact No. 6, alley access is currently not practical. The comprehensive plan land use designation for the project site is Residential Medium Density (MD). Renton Comprehensive Plan Policy L-15 provides in pertinent part that MD districts should “[p]lace areas that can support high-quality, compact, urban development with access to urban services, transit, and infrastructure, whether through new development or through infill, within the Residential Medium Density (RMD) designation.” As conditioned, approving the waiver both retains high quality development by focusing upon retention of green and pervious spaces while at the same time making infill development feasible. The modification approved by this Decision is consistent with the intent and purpose of the Code for the reasons identified in Conclusion of Law No. 5. RMC 4-9-250D2a: Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; 4. The criterion is met. It is uncontested that waiving alley access substantially implements the comprehensive plan. The central issue of the appeal is whether it’s still necessary to require rear yard garage access to implement these policies. It is determined that the objectives of the comprehensive plan can still be attained by requiring rear access as conditioned, but that the access requirement can be qualified with an allowance for concurrent front access via rear and front doors until the alley way is constructed. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Waiver Appeal - 6 CAO VARIANCE - 6 The Appellant cites to Comprehensive Plan Policy L-3 as authorizing a waiver of alley access and removing the staff condition for rear yard access to the garage. Policy L-3 is well suited to adapting the alley access requirement to constitutional and state statutory mandates limiting development restrictions to those reasonably necessary to mitigate development impacts. Policy L-3 encourages “infill development of single-family units as a means to meet growth targets and provide new housing.” City staff testified that the alley serving the subject lot is currently undeveloped and it’s not feasible to develop the 100 feet of alley way connecting the subject lot to Burnet Avenue due to the presence of a home built in the 1950s adjacent to the alley at 2814 Burnett Avenue. Under these circumstances, requiring a home to provide for alley access when it is infeasible to do so should be construed as preventing the infill of lots such as the one under appeal. Waiving the alley access requirement at this time, therefore, implements Policy L-3. The administrative decision under appeal currently requires the garage entrance to be located behind of [sic] the house, rather than the front or side of the house.” Policy L-3 serves as an appropriate basis for evaluating the reasonableness of this condition. The objective of Policy L-3, encouraging infill, can be subverted if development standards unreasonably limit development potential and/or increase development costs. Construing Policy L-3 in this manner ensures that the City’s development standards can be construed in a manner that is consistent with constitutional and statutory law. Specifically, RCW 82.02.020 prohibits restrictions that require the setting aside of land unless doing so is necessary to mitigate project impacts. See, e.g. Citizens' Alliance v. Sims, 145 Wn. App. 649 (2008)(ordinance restricting clearing of rural zoned lots to a maximum of 50% invalidated as violating RCW 82.02.020 due to lack of linkage between development impacts and clearing restriction). The burden of proof in meeting this standard rests with the City. See Home Builders v. Bainbridge Island, 137 Wn. App. 338, 348-349 (2007). The principles codified in RCW 82.02.020 mirror those of constitutional takings law. A pertinent case in this regard is Burton v. Clark County, 91 Wn. App. 505 (Wash. Ct. App. 1998). At issue was a subdivision condition that required the Applicant to set aside part of the proposed plat for a stub road. The Applicant asserted that requiring the stub road was a taking of its property without compensation under federal takings law. The Burton court agreed, concluding that: Even taken in the light most favorable to the county, none of this evidence provides a basis for reasonably inferring that the exacted road will connect with Northeast 20th Avenue in the foreseeable future, and without such an inference, the exacted road lacks any tendency to solve or even alleviate the public problems that the county identifies. 91 Wn. App. at 528. The facts of this case are similar to the Burton case, in that the Appellants are required to set aside a potentially significant amount of developable space for an alley connection that may never occur. The Burton court ruled that for stub roads, there must be a basis for reasonably inferring that the stub road will connect to a road within the foreseeable future. As outlined Finding of in Fact No. 4, there is good reason to find that the alley for the subject lot will be improved within the foreseeable future. Further, since the City has improved another alley just two to three blocks 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Waiver Appeal - 7 CAO VARIANCE - 7 away within the last couple years under similar circumstances, there is even better reason to conclude that for the Kennydale neighborhood in general, alleys will be improved over time in the foreseeable future. It is marginally fair to conclude that the alley adjoining the project site will be available for vehicular access within the foreseeable future. Although requiring the Applicant to set aside property for future alley access is marginally justified for purposes of RCW 82.02.020 and constitutional takings law, any such requirement is bounded by concepts of reasonableness and proportionality. Regulatory exactions must be “reasonably calculated” to prevent or compensate for adverse public impacts of a development. Burton, 91 Wn. App. at 523. For this case, limiting access to the rear of the project is not reasonable because the City has authorized temporary front access for other projects under similar circumstances and has indicated that such a design would be acceptable for the project under appeal. As outlined in Finding of Fact No. 3, under alley conditions similar to the one applicable to the Applicant, the City has authorized waiver of alley access for other single-family home construction with a garage that has both a rear door for future alley access and a front door that can be used until the rear alley is improved. As found in Finding of Fact No. 3, authorizing two garage doors instead of one reduces loss of developable space from 8.3% to less than 1%, the more flexible condition resulting in the loss of less than 40 square feet of developable space. Since the City has found this alternative to be acceptable for other similarly situated development and the impacts of the alternative are fairly modest as determined in Finding Fact No. 5, it must be concluded that the Applicant should be given the option of dual north/south garage access. RMC 4-9-250D2b: Will meet the objectives and safety, function, appearance, environmental protection and maintainability intended by the Code requirements, based upon sound engineering judgment; 5. Criterion met. As conditioned by this decision, the criterion is met. Conditions 1-3 of the administrative decision coupled with the Applicant’s proposed garage door design will serve to meet the objectives of the alley access requirement. The staff’s recitation of the objectives of the alley requirement are uncontested and logical, specifically that the purpose of requiring alley-oriented garages and vehicular alley access in the Residential-6 (R-6) and Residential-8 (R-8) zones is to improve pedestrian safety, reduce the visual impact and presence of garages on the streetscape, and increase the amount of green and pervious surfaces in the front yard setback area. For the reasons identified in Finding of Fact No. 5, these objectives are met with imposition of Conditions 1-3 of the Administrative Decision coupled with the Applicant’s proposed garage door design. RMC 4-9-250D2c: Will not create substantial adverse impacts to other property(ies) in the vicinity; 6. Criterion met. As conditioned by this Decision, the criterion is met. For the reasons identified in Finding of Fact No. 5, the proposal will not create substantial adverse impacts to other properties in the vicinity. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Waiver Appeal - 8 CAO VARIANCE - 8 RMC 4-9-250D2d: Conforms to the intent and purpose of the Code; and 7. Criterion met. As conditioned by this Decision, the criterion is met for the reasons identified in Conclusion of Law No. 4. RMC 4-9-250D2e: Can be shown to be justified and required for the use and situation intended; 8. Criterion met. This Decision is ultimately based upon the property rights of the development as protected by RCW 82.02.020 and constitutional takings law. These property rights are defined and clarified through case law that balances the public interest against the b urdens placed upon the Applicant. The end result is justified and necessary to fairly balance the City’s objectives in improving the livability of its community while still enabling the Applicant the reasonable opportunity to develop its property. DECISION The Appeal is sustained in part. Conditions 1-3 of the Administrative Decision are retained as written. Condition No. 4 is revised to provide as follows: 4. The garage and garage entrance for the new single-family residence shall be located behind of the house, rather than the front or side of the house. The garage shall be designed to ensure access is preserved from the existing alley if improved in the future. The garage may include a front yard facing vehicular door in addition to a rear facing door. If the Applicant elects to add a front yard facing door, the front of the garage must be designed as proposed in the Applicant’s November 10, 2020 appeal letter, provided that the garage shall be recessed further from the front property line to the extent that site conditions permit. Staff may approve modifications to the Applicant’s proposed front door design as reasonably necessary to accommodate the grades necessary to achieve two story construction with alley access. The front facing garage door, if constructed, shall be removed upon availability of improved alley access. The final home design shall be reviewed and approved by the Current Planning Project Manager prior to building permit issuance. The conditions of the administrative decision shall be recorded on a covenant running with the land to the extent found necessary by staff to ensure that all waiver conditions are implemented once alley access becomes available. DATED this 24th day of January 2021. City of Renton Hearing Examiner 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Waiver Appeal - 9 CAO VARIANCE - 9 Appeal Right and Valuation Notices RMC 4-8-080(G) subjects this open-record appeal decision to closed record appeal to the City of Renton City Council. Appeals of the hearing examiner’s decision must be filed with the Renton City Clerk within fourteen (14) calendar days from the issuance of the decision as outlined in RMC 4-8- 110C2. All appeals must be received by the City Clerk’s Office by this deadline and be accompanied by the applicable appeal fee. Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.