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Setback Variance request of Thomas Malone re 114 Park Place

Hearing Examiner #: HE-13-PL-016
Planning #:VAR2013-00009
Incident #:
Filing Date:05/20/2013
City Contact:Brian Smart
Hearing Date: 05/22/2013
Description: Setback Variance request of Thomas Malone re 114 Park Place
Decision Date: 06/05/2013
Decision Summary:Approved with conditions.

This matter came before the Bellingham Hearing Examiner for hearing on the 22nd day of May 2013 on the application filed on behalf of Thomas Malone for a variance from front yard setback requirements for property located at 114 Park Place in Bellingham.
Testimony was received from Brian Smart and Kurt Nabbefeld, Bellingham Planning and Community Development Department; and Dylan McClary, Applicant's Representative.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List.
1. Thomas Malone filed an application for a variance from front yard setback requirements to enclose an existing carport and construct a second-story addition, reducing the front yard setback, on property owned by Mr. Malone at 114 Park Place in Bellingham.
2. The subject property is located in Area 3 of the Silver Beach Neighborhood and is designated Residential Single, 7,200 square feet minimum lot size. It is legally described as Lots 4 and 5, Boathouse Block, Silver Beach on Lake Whatcom.
3. The property is adjacent to Lake Whatcom. It is approximately 50 feet wide by 75 feet deep and contains approximately 3,715 square feet in area of dry land above the ordinary high water mark of the lake. It contains an existing single-family house constructed in 1977.
4. Single-family homes are located on each side of the subject property. A City-owned stormwater treatment pond is located across Park Place from the property.
5. Park Place is a short section of street which runs southwesterly from Northshore Drive. The northwesterly half of Park Place was vacated prior to 1977 leaving a 30-foot wide right-of-way. Park Place is designated a residential street. It serves four properties.
6. BMC 16.80.080A requires a front yard setback of 15 feet from the front property line.
7. The property was granted a variance from front yard setback requirements in 1977 to construct the approximately 1,950 square foot house. In 1989, another variance was granted to allow a second-story addition to the house. In 2003, another variance was granted to allow construction of a carport with a zero-setback from the front property line.
8. The current request is to enclose the carport, transforming it into an attached garage, and to add approximately 176 square feet to the second-story above the existing carport. The requested front yard setback remains zero feet for the enclosure of the carport and extends to six feet, six inches from the property line for the second-story addition.
9. The proposal would not create any additional impervious surfacing. All of the additions and modifications within the setback area would be on or above existing structures.
10. The variance granted in 2003 imposed conditions on the property, including removal of existing concrete impervious areas on the east and west sides of the property, and a covenant to restrict use and total impervious area. The concrete was removed, the areas revegetated, and the covenant recorded. The covenant provides that the areas on the sides of the property must remain pervious and established with native vegetation. The covenant may not be revoked without prior written consent of the City.
11. BMC Chapter 16.80 establishes maximum allowable area of impervious surfacing for properties within the Lake Whatcom watershed. These provisions have been modified since the last variance was granted in 2003.
12. The property is within shoreline jurisdiction and is regulated by the Shoreline Master Program. The proposal is exempt from shoreline permit requirements but is required to comply with the regulations. The required buffer from the Lake in this area is 100 feet. The existing structures are non-conforming. No expansion towards the lake is permitted.
13. Variance criteria are set forth in BMC 16.80.130 and 20.18.020.
14. City staff has recommended approval of the variance.
15. One public comment was received for the proposal. This comment states that the legal standards for a variance have not been met, that impacts from the proposed construction and intensity of development are harmful to the health of nearby residents and the environment.
16. The proposal does not increase the density of the property. It would remain a single-family residence. Enclosure of the carport does not increase the capacity of the structure but does provide for greater security for the contents. The proposed addition is small and does not add to the height or footprint of the existing structure.
17. The submitted plans show parking on the west side of the property. This parking area would not be consistent with the conditions placed on the 2003 variance or the recorded covenant. This area currently contains grass through gravel, which is also not consistent with the variance conditions or covenant.
18. The request to enclose the carport is a minor modification of the previous variance request to construct the carport. The same considerations apply to this request. The modifications will not add to the footprint or impervious surface and will provide additional security for the property contained within the garage. The garage will provide the required two off-street parking spaces required for the residence. No additional encroachment into the setback is proposed.
19. The proposal to add approximately 176 square feet to the second-floor above the existing carport will not add to the footprint or impervious area. The additional encroachment into the setback area is entirely above the carport and within the footprint of the existing structure. It adds a small amount of area to the existing residence to improve the functionality of the dwelling.
20. Due to the small size of the property landward of the ordinary high water mark of the lake, and the required shoreline buffer there are no other feasible locations for additions to the residence. The proposed additions are consistent with the justification for the variance granted in 2003. They will create minimal additional impacts. The proposal does not increase the overall height of the structure so it should not create any additional view obstruction. Although the construction of the proposal will create some noise and traffic during the construction phase the impact is no different than if the proposal was constructed in a portion of the property that did not require a variance.
21. Neighboring properties are developed with structures similar to that requested by the Applicant.
22. Granting the variance will not be unduly detrimental to the public welfare nor injurious to the property or improvements in the vicinity. The proposal will not increase the density of the property or intensify the use.
23. Enclosure of a carport to create a garage and addition of second-floor living space are reasonable uses of the property that would not be possible without the requested variance. The remainder of the property is encumbered by buffers and other setbacks. The proposal is consistent with the previous variances granted for the property and allows reasonable use while preserving the pervious surfacing that benefits the lake and the environment.
24. To the extent not inconsistent with the Findings of Fact and Conclusions of Law otherwise set forth herein the Findings of Fact and Conclusions of Law set forth in HE-03-PL-014 are incorporated herein by reference.
1. Subject to the conditions set forth below the proposal is consistent with variances previously granted for the property. The variance criteria have been satisfied, subject to the conditions set forth below.
2. A variance should be granted from the front yard setback requirements to allow the proposed enclosure of the existing carport and addition to the second floor above the carport.
3. 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 front yard setback requirements of BMC 16.80 and 20.30 is granted for the property located at 114 Park Place to enclose the carport and add to the second floor above the carport, as proposed, subject to the following conditions:
1. A qualified professional shall determine that no additional phosphorus or fecal coliform loading shall result from the proposal, as provided in BMC 16.80.130.
2. The proposal shall be generally consistent with the materials and representations submitted in support of the proposal, except as modifications are required to comply with this Order or other applicable regulations.
3. The additions and modifications to the structure shall not add to the footprint of the structure nor extend further into setback areas beyond the existing footprint of the structure.
4. The areas on the sides of the structure identified in Exhibit A to the Covenant to Restrict Total Impervious Surface recorded with the Whatcom County Auditor as No. 2040405453 shall be maintained as pervious surfaces and established with native vegetation, in a manner approved by the Planning and Community Development Department, until such time as the City approves, in writing, revocation or modification of the covenant to allow otherwise. The Department may require completion of planting, and/or financial security for successful vegetation, prior to issuance of a building permit.
5. The City may approve modification or revocation of the covenant if the property otherwise provides compliance with pervious surface requirements of BMC 16.80 and adequately mitigates for the impervious surfacing for the carport/garage.
6. At least two parking spaces shall be maintained within the garage. No use or construction within the garage that interferes with the use of two parking spaces shall be permitted.
7. All other conditions of previous variances, not inconsistent with this Order, shall remain in effect.
8. The location, design and construction of the proposal shall comply with all other applicable requirements, or variances obtained.

ENTERED this 5th day of June 2013.
Bellingham Hearing Examiner
Dawn Sturwold
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