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HomeMy WebLinkAboutHEX Decision - Admin Appeal -- Fence Permit -- Radin1 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 Fence Permit Appeal - 1 CAO VARIANCE - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: Benjamin Radin Appeal of Administrative Fence Permit Decision File No. LUA-21-000319 ) ) ) ) ) ) ) FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION Overview Mr. Radin’s appeal is denied due to lack of jurisdiction. The Renton Municipal Code does not authorize the Hearing Examiner or any other city official to grant the relief Mr. Radin requests through issuance of an administrative fence permit. Mr. Radin should have applied for a variance instead of an administrative fence permit. Mr. Radin seeks to construct a fence within his side yard that exceeds the six-foot height limit imposed by RMC 4-4-040D2. Within required yards, RMC 4-4-040G1, regulating administrative fence permits, only allows height increases for fences located along streets. In those areas fences are limited to 48 inches and may only be increased to a maximum of 72 inches if the fence permit criteria are met. Mr. Radin’s proposed fence is not located along a street and he is requesting a fence height that exceeds 72 inches. The administrative fence permit process clearly does not apply to Mr. Radin’s situation and there is no reasonable basis to conclude otherwise. Mr. Radin and the City have invested extensive time and effort to have the fence issue resolved. Had there been any reasonable alternative interpretation of the fence permit regulations available, that would have been applied in this case to avoid going through another review process. Unfortunately, as outlined in the legal analysis below there is no reasonable justification for an alternative interpretation. 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 Fence Permit Appeal - 2 CAO VARIANCE - 2 There is no conflict or ambiguity in the code and there is no absurd consequence to requiring a variance instead of a fence permit for Mr. Radin’s situation. Fence permit criteria are much more flexible and easily met than variance criteria. For these reasons, in the currently written fence regulations, fence permits authorize increases in fence height in areas where they are least likely to adversely affect adjoining property owners and the public. That is why fence permits are only authorized for fences over six feet when located outside of required yards. Fences outside of yards are more separated from public and adjoining property owner view. The contrary staff interpretation leads to the absurd result that fences over six feet within yards can be authorized by a fence permit while those outside can only reach those heights with a variance. In short, staff takes the position that exceptional fence heights should be more easily granted the less the fence is separated from public and adjoining view. The relief sought by Mr. Radin needs to be pursued by a variance application under RMC 4 -9-2501. That would have to be addressed in a separate application to be decided administratively by staff. See RMC 4-9-250B1. The grade difference between Mr. Radin’s property and the adjoining park goes a long way in meeting the “special circumstances” criterion for variances, RMC 4-9-250B6a. At the least, the special circumstances criterion could justify an additional two feet in height (the current height) to provide the fence privileges enjoyed by most other property owners who don’t’ live with grade separations. The public use of the park might qualify as a special circumstance to justify the full ten feet requested by the Applicant. However, the City may not find that this meets the “special privileges” criterion of RMC 4-9-250B6c. Unlike the grade differential, there are likely numerous properties throughout the City along parks, trails and other public places where property owners would also want ten-foot-high fences. Allowing ten-foot-high fences for this reason alone could indeed create large continuous walls that the City’s fence regulations are designed to prevent. An important consideration under the variance criteria would be whether the fence could constitute an unnecessary burden. See RMC 4-9-250B6a. Under this standard, the Mr. Radin would not be entitled to variance approval if alternative, code-compliant standards are available. As noted in the fence decision under appeal, Mr. Radin is authorized for up to ten feet of screening via installation of a trellis. See RMC 4-2-110E.4.i. However, only two trellises are allowed per lot and each trellis only be a maximum of 12 feet long. Although the trellises may not be able to provide the desired screening along the entire 80 feet requested by Mr. Radin, they could be strategically placed to shield his bedroom window. Other alternatives could be the placement of vegetative screening on either side of the fence. For screening on the City side .of the fence, agreement could be reached with the City on planting and 1 The discussion of variance criteria is advisory only and not binding on an City evaluation of a variance application for Mr. Radin’s fence. The information is provided only in hopes to assist a mutually agreeable resolution to Mr. Radin ’s fence issues, to help reduce the time and money already expended . 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 Fence Permit Appeal - 3 CAO VARIANCE - 3 maintenance responsibilities. A temporary fence variance could be authorized to remain in place until vegetation reaches agreed upon height. Exhibits The five exhibits identified in the January 10, 2022 “City of Renton’s Response” were admitted into the record during the January 11, 2022 hearing. A sixth exhibit, the City PowerPoint presentation, was admitted as Exhibit 6 and the City’s COR maps for the project area were admitted as Exhibit 7. Mr. Radin’s October 11, 2021 appeal, including two attached photographs, were admitted as Exhibit 8. Three photographs submitted by Mr. Radin on January 11, 2022 were admitted as Exhibit 92. Findings of Fact 1. Appellant. Benjamin Radin, 274 Thomas Ave SW, Renton, WA 98057. 2. Hearing. A virtual hearing on the appeal was held via the Zoom application on January 11, 2022. 3. Appeal Description. Mr. Radin appeals the City’s denial of his application for a special fence permit issued September 28, 2021 for LUA21-000319. Mr. Radin had requested the permit to build a ten-foot fence along his side property line composed of an eight-foot high cedar fence topped with two additional feet of privacy screening. The purpose of the fence was to provide privacy and noise reduction from the abutting Earlington Park. Mr. Radin focused upon the fact that his property is located at least two feet below the primary grade of the abutting park. The park also has extensive playground equipment just a few feet from his property line, giving children elevated line of sight into Mr. Radin’s property. 4. Fence Permit Findings3. If the proposed cedar fence is bordered on the City side with some kind of vegetation that covers it from view for its full height, it will not detract from the quality of the 2 Exhibits 8 and 9 were not assigned exhibit numbers during the hearing but were expressly admitted into the record. 3 As with the discussion on variance criteria, this finding is intended to facilitate and expedite resolution of Mr. Radin’s fence issues. Should this Decision be appealed to the City Council and the Council agrees with staff that a fence permit is applicable, there will be no need for remand back to the Examiner since all requisite findings have been made here. The fence permit standards are easily met because they are based upon vague aesthetic standards that must be construed in favor of the applicant to avoid constitutional invalidation. An ordinance violates due process if its terms are so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. See Anderson v. Issaquah, 70 Wn. App. 64, 75 (1993). In the area of land use, when assessing a vagueness challenge a court looks not only at the face of the ordinance but also at its application to the person who has sought to comply with the ordinance and/or who is alleged to have failed to comply. Id. Persons of common intelligence would be hard -pressed to all agree that a ten-foot fence covered in vegetation would not be compatible with the surrounding hedges/trees or aesthetically adverse. As noted throughout this decision, the criteria for a fence permit are fairly easy to meet. In contrast, variance criteria are much more restrictive, specific and constitutionally enforceable. The City’s variance criteria are generally required by state law for all cities and counties, see e.g. RCW 35A.63.110(2), and have been the subject of numerous court opinions. The meaning of variance 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 Fence Permit Appeal - 4 CAO VARIANCE - 4 residential environment by being out of scale or creating vast blank walls. With the vegetation it will be aesthetically consistent with the adjoining trees and hedges that provide privacy to adjoining homes. For the same reason, the fence in conjunction with full-covering vegetation will compliment the environment in an aesthetically pleasing manner. Finally, the fence will improve privacy for Mr. Radin’s property by blocking sight lines to one of his bedroom windows. There is no hazard to pedestrian or vehicular traffic since the fence will be 56 feet from the sidewalk. Legal Analysis 1. Authority. RMC 4-8-080G classifies special fence permits as Type I decisions subject to appeal to the hearing examiner, which in turn is subject to closed record appeal to the City Council. 2. Relief Not Authorized. Mr. Radin seeks to increase the six-foot fence height limit imposed by RMC 4-4-040D2 for fences in interior lot side yards. That relief is not authorized by special fence permit regulations. The only wooden fences subject to administrative fence permit approval within required yards are those located within street setbacks as outlined in RMC 4-4-040G1a. Those fences can only be increased from a height of four feet to a maximum height of six feet. 3. No Conflict or Ambiguity in Special Fence Permit Regulations. A code interpretation and testimony by staff identify that staff view the regulations limiting applicability of the special fence permits to be ambiguous. There is no such ambiguity in the plain meaning of applicable regulations. Currently, RMC 4-4-040G1 only authorizes fence permits to increase fence height over six feet “outside” of required yard setbacks. Staff believes that this term was placed in error, and that the wording should be “within” required setbacks as opposed to “outside” of them. There is no rational basis for this interpretation. The staff’s position on ambiguity is detailed in Policy/Code Interpretation CI-154, Ex. 5. This policy identifies that RMC 4-4-040G1, which only authorizes more than six feet fence height outside of required yards, “creates a conflict with other provisions in RMC Title 4, which regulate fences located within yard setbacks.” There is no such conflict. RMC 4-4-040D1 identifies that the maximum height for fences in any residential district is six feet. There is nothing within chapter RMC 4-4-040 or any other part of the RMC that requires fences to be placed in required yards. RMC 4 -4-040G1 simply provides that if a fence is located outside a required yard as opposed to inside of it, that the height can exceed six feet if it meets the special fence permit criteria. The code interpretation notes that “because most fences are located along property lines, staff have handled this conflict to interpret the special administrative fence permit provisions to apply to fences proposed within required yard setbacks.” Although most fences may in fact be placed within required yards, this does not mean that the Council did not intend to only allow fences over six feet via the fence permit outside of the required yards. Fences outside of required yards are not unheard of. Persons owning large parcels may very well erect fences outside of required yards to contain pe ts, livestock criteria can be cobbled together in much more specific fashion both from the clarity of the criterion themselves and the court opinions that construe them. 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 Fence Permit Appeal - 5 CAO VARIANCE - 5 and/or for security reasons. It makes perfect sense that as to these fences, the Council found the more flexible standards of a fence permit to be appropriate for fences exceeding six feet. Such fences, being outside of required yards, clearly have less impact on adjoining properties and neighborhood aesthetics than those placed within required yards. For a person who wishes to erect a ten-foot fence in the side area of a five-acre parcel 500 feet from the nearest property line, it makes little sense to make them go through a more burdensome variance process. The rational for the applicability of the special fence permit is clear – if someone wants to put up a fence greater than six feet within a required yard, they need to have a very good reason to do so – they need to meet the standards for a variance. Fences over six feet in required yards, with their proximity to adjoining property and public view, should not be freely given under the more permissive standards associated with special fence permits. The interpretation adopted by CI-154 also conflicts with the “plain meaning rule” of statutory construction, well summarized in one court opinion as follows: First, we examine the plain language of the regulation; if that language is unambiguous, it controls. For a regulation to be ambiguous, more than one interpretation must be reasonable. In examining plain language, a term in a regulation should not be read in isolation but rather within the context of the regulatory and statutory scheme as a whole. We should not construe a regulation in a manner that is strained or leads to absurd results, and our paramount concern is to ensure that the regulation is interpreted in a manner that is consistent with the underlying policy of the statute. Rios-Garcia v. Wash. State Dep't of Soc. & Health Servs., 493 P.3d 143, 148-49 (2021). Citations and quotation marks omitted. The CI-154 interpretation does not comply with the plain meaning rule. The CI-154 position is stated most directly in its suggested revision to RMC 4-4-040G1b, which currently provides that fence permits are authorized for fences exceeding six feet “outside of required yard setbacks.” CI-154 provides that this wording should be “within required yard setbacks.” There is no ambiguity in the current quoted language – there is no reasonable basis from the plain meaning of that wording to conclude that fences “outside” of a yard setback should be construed as its exact opposite, “within” a yard setback. In point of fact, it is the CI-154 interpretation that leads to absurd results. If the revisions suggested by CI-154 are adopted, only fences within yard setbacks would be eligible for a fence permit. Those outside of yards would have to qualify for a variance for heights over six feet. In short, under the CI-154 interpretation the fences that are most readily visible and intrusive to adjoining property owners and public view are more eligible for heights over six feet than those fences located further from public and adjoining property owner view. The RMC 4-4-040 fence permit regulations as currently written provide for a logical and internally consistent set of fence height regulations. For well-founded and obvious reasons, the City Council doesn’t want fences over six feet in height to be placed with required yards. Fences taller than that can only be authorized by meeting the rigorous standards of a variance, RMC 4-9-250. Within required yards, the special fence permit can only be used to increase the height of fences under six feet for heights up to six feet. Fences over four feet along streets can be approved up to six feet in height with a special 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 Fence Permit Appeal - 6 CAO VARIANCE - 6 fence permit, as can barbed wire and electric fences. In short, special fence permits can only authorize heights over six feet for fences that are buffered from public and adjoining view by required yards. 4. Code Interpretation Not Binding. Policy/Code Interpretation CI-154 does not create any binding interpretation applicable to this Decision. Under principles of judicial finality, administrative code interpretations that are not timely appealed are binding even if incorrect. See, e.g., See Habitat Watch v. Skagit County, 155 Wn.2d 397, 410-11 (2005). However, CI-154 doesn’t purport to create any binding interpretation. Under the section entitled “Decision,” CI-154 merely makes recommendations for amendments to RMC 4-4-040G1b. In the background section, CI-154 suggests that RMC 4-4-040G1b has been applied by staff in a manner consistent with the suggested amendments. However, CI-154 does not expressly state this interpretation is correct under the code as currently written or that CI-154 is a formerly adopted interpretation to that effect. If persons are going to be prevented from arguing interpretations that conflict with CI-154 because they failed to timely appeal it under finality, then CI-154 needed to provide better notice of what it was designed to achieve. As written, CI-154 looks like a recommendation for a code amendment. That is how it’s construed for this Decision. 5. Fence Height Measured from Highest abutting Elevation. At hearing, the parties disagreed on how to measure the height of Mr. Radin’s fence. Mr. Radin believed fence height was measured from the grade of the ground of the improved areas of the park. The City believed fence height was measured from the highest adjoining elevation between the elevations on one side of the fence verses its opposite side. The height should be measured from the highest abutting elevation. The difference of opinion between the parties stems from RMC 4-4-040C1ai, which provides that where “the finished grade is a different elevation on either side of a fence the height may be measured from the side having the highest elevation.” RMC 4-11-070G defines a “grade, finish” as the “surface level of the ground after completion of all grading.” It’s fairly clear that improvement of the park and construction of Mr. Radin’s home has been completed and, therefore, that all grading has been completed. Consequently, the City accurately measures fence high from the highest ground surface abutting the fence. Mr. Radin takes the position that the ground elevation from the improved portions of the park (i.e. playground equipment, trail and lawn areas) should be the starting point for measuring his fence height. Mr. Radin apparently takes this position on the interpretation of “finished” in “finished grade” as “improved.” However, the City position more directly meets the “grade, finish” definition as simply the grade resulting from completed development. Further, Mr. Radin’s interpretation wouldn’t be workable or be rational in some situations. Mr. Radin’s interpretation necessitates looking for the nearest finished grades on either side of a fence and then applying the highest grade to measure height. For fences bordering ravines or other large undeveloped areas, this could lead to some very strange results. Decision 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 Fence Permit Appeal - 7 CAO VARIANCE - 7 The Examiner has no jurisdiction4 to consider the relief requested by Mr. Radin. Fences over six feet in height cannot be authorized in a required yard by a special administrative fence permit. DATED this 24th day of January 2022. City of Renton Hearing Examiner Appeal Right and Valuation Notices RMC 4-8-080(G) subject 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. 4 If the issue should technically not be framed as jurisdictional, in the alternative the fence permit is simply denied because within required yards, wooden fences can only be authorized for up to six feet by fence permit per combination of RMC4-4- 040G1 and G3.