Hearing Examiner #: HE-14-PL-009
City Contact:Steve Sundin
Hearing Date: 04/09/2014
Description: Setback Variance request of Whatcom Rowing Association re 2202 Electric Avenue
Decision Date: 04/18/2014
Decision Summary:Approved with Conditions
This matter came before the Bellingham Hearing Examiner for hearing on the 9th day of April 2014 on the application of Whatcom Rowing Association for a variance from the required setback from Electric Avenue in order to construct a boathouse at Bloedel Donovan Park, 2202 Electric Avenue in Bellingham.
Testimony was received from Steve Sundin, Bellingham Planning and Community Development Department; and Jon Sitkin, 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.
I. FINDINGS OF FACT
1. Whatcom Rowing Association applied for a variance from setback requirements of BMC 20.42.050D to construct a boathouse adjacent to the property line abutting Electric Avenue at Bloedel Donovan Park.
2. The subject property is a public park owned by the City of Bellingham. It is located at 2202 Electric Avenue on the shoreline of Lake Whatcom in Area 12 of the Silver Beach Neighborhood and is designated Public.
3. A Conditional Use Permit was previously issued for the boathouse in HE-12-PL-024. The Findings of Fact and Conclusions of Law from that matter are incorporated herein by reference, except to the extent that they are inconsistent with the Findings and Conclusions contained herein.
4. A Shoreline Substantial Development Permit was issued for construction of the boathouse on March 4, 2013.
5. On September 6, 2013, the Applicant applied for a foundation-only building permit for the boathouse. During review of that application it was discovered that the proposed location of the boathouse would conflict with other park facilities and access ways. To avoid the conflicts the Applicant seeks this variance to locate the boathouse within the required setback from Electric Avenue.
6. Electric Avenue is an arterial street with a right-of-way that is 60 feet in width at its intersection with Alabama Street, widening to 130 feet at the proposed location of the boathouse. The additional right-of-way on the east side abutting the park is used as lawn area and access to the park.
7. BMC 20.42.050D requires a 20 foot setback from property lines abutting or across a right-of-way from residentially zoned property. The property on the west side of Electric Avenue is zoned Residential, Single. However, the residentially zoned land consists of the excess right-of-way. The closest residential property is located approximately 160 feet from the proposed boathouse.
8. If the residential zone had not been extended into the excess right-of-way the proposed location for the boathouse would be located across from land designated Public and there would be no required setback.
9. Variance criteria are set forth in BMC 20.18.020.
10. City staff has recommended approval of the variance subject to conditions specified in the Staff Report, as modified at the hearing to remove recommended Condition No. 2.
11. No public comment was received for this proposal.
12. There are unique circumstances applicable to the subject property and proposed use that cause the strict enforcement of the setback regulation to deprive the property of rights and privileges enjoyed by other properties in the same vicinity and designation. The location of the excess right-of-way, which is probably a remnant of abandoned railroad right-of-way, and the extension of the residential zone into the excess right-of-way, are circumstances that do not apply to other properties in the vicinity and result in the application of a setback requirement that is not necessary to serve the intended purpose of the setback for uses on Publicly zoned property.
13. Granting a variance from the setback requirement to allow location of the boathouse up to the property line will not be unduly detrimental to the public welfare nor injurious to the property or improvements in the vicinity. There will remain a separation from the proposal to the nearest residential property of approximately 160 feet, well in excess of the standard required separation if the right-of-way had been of normal width. The property line is also setback a substantial distance from the traveled portion of Electric Avenue, so the proposed boathouse will not be located immediately adjacent to the street. The variance will allow location of the boathouse in a manner that will not conflict with other park facilities and access, and will reduce new impervious surfaces by utilization of an existing impervious area.
14. Application of the setback requirement would not be reasonable under the circumstances of the property, and would deprive the property of a reasonable use. The required setback is not necessary to provide the intended separation from residential uses. Location of the boathouse outside the setback area would result in conflict with existing public facilities.
II. CONCLUSIONS OF LAW
1. The proposal satisfies the variance criteria.
2. A variance from the setback should be granted subject to the conditions set forth below.
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 is granted to reduce the setback from Electric Avenue to zero feet for the proposed boathouse at Bloedel-Donovan Park, 2202 Electric Avenue, subject to the following conditions:
1. The boathouse shall be located entirely on an existing impervious surface, provided that roof eaves not more than four feet in width may overhang pervious areas;
2. The boathouse shall not obstruct access-ways in and out of park areas or to adjacent buildings for maintenance vehicles.
3. Existing mature trees shall be preserved.
4. Site work for foundation and building preparation shall not occur during seasonal restrictions specified in BMC 16.80.120.
5. The construction and use of the proposal shall be generally consistent with the materials and representations provided by the Applicant, except as modifications are required to comply with the conditions specified herein or in the Conditional Use Permit, or as otherwise required by the City.
6. Construction and use of the proposal shall comply with all other requirements of the Bellingham Municipal Code or variances obtained.
ENTERED this 18th
day of April 2014.
Bellingham Hearing Examiner