Hearing Examiner #: HE-13-PL-014
Planning #:VAR2013-00010 / CAP2013-00001
City Contact:Kim Weil
Hearing Date: 05/08/2013
Description: Variance from Critical Areas Ordiance request of Christopher and Nancy Haley re 1448 Iris Lane
Decision Date: 05/22/2013
Decision Summary:Approved with conditions.
This matter came before the Bellingham Hearing Examiner for hearing on the 8th day of May 2013 on the application of Chris and Nancy Haley for a variance from the Critical Areas Ordinance to construct a single-family residence on property located at 1448 Iris Lane.
Testimony was received from Kim Weil, Bellingham Planning and Community Development Department Chris Haley, Applicant; and John Brown, 233 Terrace Place.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List.
I. FINDINGS OF FACT
1. Chris and Nancy Haley applied for a variance from the provisions of BMC Chapter 16.55 in order to construct a single-family residence on property located at 1448 Iris Lane in Bellingham.
2. The subject property is legally described as Lot 2, Iris Lane Short Plat. It is located in Area 8 of the South Neighborhood. This area is designated Residential Single, Detached, 7,200 square feet minimum lot size.
3. The property is located just east of Chuckanut Drive and southeast of Willow Road. A mobile home park is located immediately north of the properties abutting Iris Lane. The property formerly known as Fairhaven Highlands is located immediately to the east of the property. The Fairhaven Highlands property is now owned by the City of Bellingham.
4. The Warrenshire Short Plat created 15 lots and a reserve tract abutting Iris Lane in 1969. An additional two lots were created from the reserve tract in the Iris Short Plat in 2004. The other lots abutting Iris Lane have been developed with single-family residences. The property to the immediate north, at 1445 Iris Lane, was developed in 1918.
5. The Fairhaven Highlands property contains a number of wetlands that were identified as part of the environmental impact study of the property between 2009 and 2011 and added to the City's wetland maps in July 2012. Wetland FF is located in the western portion of the Fairhaven Highlands property, near the subject property and other parcels bordering the western edge of the Fairhaven Highlands property.
6. Wetland FF is designated as a Category I Mature Forested Wetland. BMC 16.55.340 provides for a 150-foot buffer for this wetland. All of the subject property is located within this buffer area.
7. All of the other parcels within the buffer area for Wetland FF to the west of the Fairhaven Highlands property were developed prior to the wetland delineation.
8. The subject property is located downhill from the wetland. Due to this location development of the property will not impact water quality, water storage or hydroperiod of the wetland and it will not result in any loss of shading for the wetland.
9. The subject site has been cleared and graded and contains no habitat features.
10. BMC 16.55.120 provides for a variance from the provisions of BMC Chapter 16.55 if the criteria specified in that section are satisfied.
11. The Applicants propose to construct a single-family home on the 11,348 square foot lot. The proposed home, garage and driveway would be located on a footprint of approximately 2,750 square feet. Fencing would be located near the eastern property line to protect trees and root zones along and east of the property line. The nearest structure to the wetland would be approximately 20 feet from the property corner or about 55 feet from the wetland, as shown in Exhibit A
to the Staff Report.
12. City staff has recommended approval of the variance subject to conditions set forth in the Staff Report.
13. Public comment was received from representatives of Responsible Development. They expressed concerns regarding protection of the wetlands but indicated that Responsible Development was not opposing the project. One of the representatives also indicated he was a Commissioner for the newly formed Park District and that the District had not yet had an opportunity to consider its position on this application.
14. Additional public comment was received from residents/property owners in the area. They opposed the proposal indicating that the wetland and buffer should be left as is, that they wished to retain the natural forested area, that construction of a house would be disruptive to the quiet neighborhood, that additional housing is not needed, that the lot is too small for a house, that the proposal will cause more drainage problems and traffic congestion, that falling trees could be a safety issue and that the development of the property would not be in the best interests of the current residents of Iris Lane.
15. Special circumstances applicable to the subject site include the fact that it is the last piece of undeveloped property within the western portion of the wetland buffer, that the wetland was not delineated until after the parcel was created through a short plat, that the entire property is located within the wetland buffer, that the property has been cleared and graded, and that the property is located downslope from the wetland. These circumstances are not generally applicable to other properties in the same district.
16. The special circumstances applicable to the subject property were not the result of the actions of the Applicants. The lot was created prior to the time the wetland was identified and delineated. Prior to purchasing the property the Applicants made due diligence inquiries regarding the status of the property but no wetlands or buffer areas affecting the property were shown on City maps at that time.
17. Because the property is located entirely within the wetland buffer strict enforcement of the buffer requirements would deprive the property of all reasonable economic uses permitted in the Residential Single zone. Without a variance use of the property for residential purposes is not possible.
18. The proposal minimizes the footprint of structures on the property and provides protection for the trees and root zones on the eastern edge of the property. The requested variance is the minimum necessary to provide the Applicants with reasonable economic use of the property.
19. Granting the variance will not confer any special privilege that is denied to other properties under similar circumstances. All of the adjacent residential properties are already developed. The property to the west has been acquired by the City providing opportunities to preserve and protect the wetlands.
20. Granting the variance is consistent with the purpose and intent of the Critical Areas Ordinance which is to protect critical areas and their beneficial functions. The ordinance provides for variance in cases where all reasonable economic use would be denied if the regulations were strictly applied. In this case, the beneficial functions of the wetland will be minimally impacted by the proposed development due to the slope of the property and the fact that it was previously cleared and graded. The proposal provides for a relatively small development footprint and protection of the trees and root zones that, on and near this property, provide for the beneficial functions of the wetland, including habitat and water quality.
21. The best available science supports granting the variance. A site assessment and mitigation plan was prepared for the proposal by Northwest Ecological Services . It indicates that development of the property will have limited impact on the wetland functions and that the existing condition of the lot provides virtually no wetland protection. Because the lot is not directly associated with a stream its development will have no effect on anadromous fish habitat.
22. Granting the variance is consistent with the purpose and intent of the Comprehensive Plan and adopted development regulations. The property is zoned for Residential Single development. The proposal is for a single-family residence on a limited footprint. The proposal is consistent with Comprehensive Plan policies encouraging infill development. With the proposed variance the development will be consistent with the development regulations.
II. CONCLUSIONS OF LAW
1. The subject property is a legal lot, created prior to delineation of the wetland and buffer. It contains more than one and one-half times the minimum site area required by the zone in which it is located. Apart from the Critical Areas Ordinance the property may be developed with a single-family residence and accessory uses and structures upon administrative approval of a building permit. Standard development regulations, including stormwater and parking requirements, among others, will be applied to the property prior to issuance of a building permit.
2. BMC 16.55.120 provides for variances from the buffer requirements of BMC 16.55 upon satisfaction of the variance criteria. These criteria have been satisfied for this proposal. Since the entire property is located within the 150-foot buffer from wetland FF all reasonable economic use of the property would be denied if a variance is not granted. The proposal provides a relatively small footprint for structures on the property and provides fencing and preservation of the eastern edge of the property to protect the features of and near the property that have functional value to the wetland. The property has been previously cleared and graded and its development will not impact the functions of the wetland. All of the other properties similarly situated within the western portion of the Wetland FF buffer have been developed.
3. A variance should be granted to allow the proposed development, subject to issuance of a Critical Areas Permit and compliance with permit conditions, recommended mitigation, and other development regulations.
4. Any Finding of Fact that should be denominated a Conclusion of Law shall be deemed to be a Conclusion of Law. Any Conclusion of Law that should be denominated a Finding of Fact shall be deemed to be a Finding of Fact.
A variance from the provisions of BMC 16.55 is granted for the property located at 1448 Iris Lane to reduce the required buffer of the Category I wetland, Wetland FF, as proposed, subject to the following conditions:
1. No work shall be conducted on the site prior to issuance of a Critical Areas Permit. The Critical Areas Permit will include all of the mitigation components in the Site Assessment and Mitigation Plan (NES, April 2013) or as modified by the Planning and Community Development Department to comply with BMC 16.55 and this Order. All work on the site shall be in compliance with the Critical Areas Permit issued by the City.
2. The development of the property shall be generally consistent with the materials and representations submitted by the Applicants and their representatives in support of the proposal, including, but not limited to, the Mitigation Map, Figure 6 of Site Assessment and Mitigation Report, Exhibit A
to Staff Report, except as modifications are required to comply with the Critical Areas Permit and other applicable development regulations. The required buffer from Wetland FF shall be reduced in accordance with said exhibit, provided that the Critical Areas Permit may require modifications to the development footprint and/or additional mitigation consistent with reasonable development of a single family residence and minimization of wetland impacts.
3. Development of the property shall comply with all other applicable requirements of the Bellingham Municipal Code, or variances obtained.
ENTERED this 22nd
day of May 2013.
Bellingham Hearing Examiner