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HomeMy WebLinkAboutGriffin Home, Administrative Appeal1 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 VARIANCE APPEAL - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: Griffin Home Administrative Appeal LUA10-082, V-A ) ) ) ) ) ) ) ) ) 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 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 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. 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 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: 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 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. 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 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: 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 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 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 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. 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 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 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 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.