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Setback Variance request of Robert Dillman re 2070 Fairhaven Avenue

Hearing Examiner #: HE-13-PL-018
Planning #:VAR2013-00004
Incident #:
Filing Date:05/13/2013
City Contact:Jackie Lynch
Hearing Date: 07/10/2013
Description: Setback Variance request of Robert Dillman re 2070 Fairhaven Avenue
Decision Date: 07/22/2013
Decision Summary:Approved with conditions.

This matter came before the Bellingham Hearing Examiner for hearing on the 10th day of July 2013 on the application of Robert Dillman for a variance from front yard setback requirements for property located at 2070 Fairhaven Avenue in Bellingham.
Testimony was received from Jackie Lynch, Bellingham Planning and Community Development Department; and Robert Dillman, Applicant.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List.

1. Shannon Maris, on behalf of Robert Dillman, filed an application for a variance from front yard setback requirements for property owned by Mr. Dillman located at 2070 Fairhaven Avenue.
2. The subject property is located in Area 9 of the South Neighborhood, south and west of 21st Street on Fairhaven Avenue. This area is designated Residential Single, Detached, Cluster, 20,000 square feet minimum detached lot size, one lot/20,000 square feet overall cluster density. Special conditions include clearing, wetlands, flood, upgrading of water service, and shoreline.
3. The property is approximately 31,700 square feet in area. The lot slopes downhill from Fairhaven Avenue to Chuckanut Creek. Steep slopes begin approximately 84 to 104 feet south of the front property line. A 50-foot critical areas buffer extends to approximately 34 to 54 feet south of the front property line.
4. The existing house on the property was constructed in 1970. A 1,000 square foot cabin that was constructed before 1950 is located approximately 4.5 feet from the front property line. The house is located outside of the front yard setback but partially within the critical areas buffer.
5. Fairhaven Avenue is a residential street . The pavement is located on the north side of the right-of-way. The south side of the right-of-way adjacent to the subject property is vegetated, leaving an area about 25 to 40 feet wide between the cabin and the pavement.
6. Single-family homes on large lots are located east and west of the subject property. Across Fairhaven Avenue is wooded property owned by the City of Bellingham designated as open space.
7. The Applicant proposes to demolish the cabin and construct a 745 square foot accessory building and 330 square foot attached carport in space now occupied by the cabin. The Applicant also proposes to add an open parking space on the east side of the new accessory building.
8. The Applicant requests a variance from BMC 20.30.040F which requires a 50-foot setback from the centerline of Fairhaven Avenue to construct the new accessory building. The structure would be approximately 4.5 feet from the front property line, 34.5 feet from the centerline of Fairhaven Avenue, and approximately 25 to 40 feet from the paved portion of the street.
9. BMC 20.30.060C(3) prohibits parking within a front yard setback. The proposed carport and open parking space would be located approximately 2.5 feet from the front property line, 17.5 feet within the front setback.
10. Existing parking for the residence is located within the right-of-way.
11. The Public Works Department has determined that there are no vision clearance issues with the proposal and that there is sufficient site distance in the area to allow maneuvering within the right-of-way.
12. The property has a history of complaints and enforcement measures relating to the use of the cabin and an unpermitted accessory dwelling unit on the site. The current property owner intends to apply for a permit for an accessory dwelling unit in the basement of the residence, which requires a third parking space on the property. Removal of the cabin will resolve any remaining issues regarding the existence of a second main residence building on the property.
13. City staff recommends approval of the variances subject to conditions set forth in the Staff Report. One of the recommended conditions includes moving the carport back from the rest of the accessory structure to comply with policies that call for location of parking in a manner that reduces its prominence when viewed from the street.
14. One public comment was received opposing the proposal. The comment states that the Applicant cannot build within the critical areas buffer so the variance would not prevent encroachment into the buffer, that the variance criteria have not been met, and the accessory dwelling can still be built without a variance.
15. Variance criteria are set forth in BMC 20.18.020.
16. The topography of the site, including the steep slopes critical area and buffer, make placement of structures on the property difficult. There is not sufficient room for a garage or other accessory building, and required parking without encroaching into the critical area buffer or front yard setback. Construction within the buffer area is possible but requires a critical areas permit and exemption, as well as engineering certification.
17. Placement of parking in the northern portion of the property will minimize impacts to Chuckanut Creek by reducing the amount and grade of impervious surface driveway required to access the parking area.
18. The proposed structure would not encroach further into the front setback than the existing cabin. Granting the variances would not be unduly detrimental to the public welfare nor injurious to the properties in the vicinity.
19. Without a variance the property would be deprived of privileges enjoyed by other properties in the area.
20. A variance is required to allow reasonable use of the property as proposed, including relocation of required parking from the right-of-way onto the site.
1. The variance criteria have been satisfied.
2. Variances should be approved to allow construction of the proposed accessory building/carport and required parking within the front yard setback, subject to the conditions set forth below.
3. Any Finding of Fact that should be denominated a Conclusion of Law shall be deemed 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/.
Variances are granted to allow construction of an accessory building/carport within the front yard setback and to allow required parking to be located within the front yard setback, as proposed, subject to the following conditions:
1. The existing cabin on the property shall be removed.
2. A permit shall be obtained for any accessory dwelling unit on the property.
3. The proposed music room/home office structure shall be located no closer to the front property line than the existing cabin, approximately 4.5 feet from the line.
4. The proposed carport and open parking space shall be set back from the music room/home office structure or designed so that it is not the predominant feature along the front property line, when viewed from the street. If not set back from the accessory structure the design of the carport and/or the accessory structure may include architectural features, landscaping, or other elements that reduce the appearance of the parking structure and/or enhance the predominance of the residential features of the structure. The setback and/or design features shall be submitted for review and approval of the Planning and Community Development Department for conformance with this condition prior to issuance of a building permit.
5. The uncovered parking space shall either be screened from the easterly property line with a fence or vegetative hedge on the subject property, or a five-foot setback shall be retained between the easterly property line and the parking space. The fence, hedge or setback shall be shown on the plans submitted for a building permit.
6. The structures and parking space shall be located, designed and constructed generally as described in the materials submitted supporting the proposal, except as modifications are required to comply with this Order, Code provisions, or building permit requirements.
7. Use of the accessory structure and parking shall be limited to uses permitted within an accessory building and residential parking and shall be in compliance with the Bellingham Municipal Code, including, but not limited to, regulations governing home occupations.

ENTERED this 22nd day of July 2013.
Bellingham Hearing Examiner
Dawn Sturwold