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Setback Variance request of Garrett O'Brien regarding 2633 Lincoln Street

Hearing Examiner #: HE-14-PL-034
Planning #:VAR2014-00016
Incident #:
Filing Date:05/29/2014
City Contact:Ryan Nelson
Hearing Date: 07/09/2014
Description: Setback Variance request of Garrett O'Brien regarding 2633 Lincoln Street
Decision Date: 07/23/2014
Decision Summary:Approved with conditions

The requested variance to allow required parking in the front yard setback and approve a driveway greater than 20 feet in width to accommodate construction of a 2,436-square foot duplex at 2633 Lincoln Street, Bellingham, Washington is APPROVED subject to conditions.

Garrett O’Brien (Applicant) requested approval of a variance to allow required parking in the front yard setback and approve a driveway greater than 20 feet in width to accommodate construction of a duplex at 2633 Lincoln Street.

Hearing Date:
The Bellingham Hearing Examiner conducted an open record hearing on the request on July 9, 2014.

At the hearing the following individuals presented testimony under oath:

    Ryan Nelson, Planner
    Garrett O'Brien, Applicant
At the open record hearing, the following exhibits were admitted in the record:

Exhibit 1 Staff Report to the Examiner, dated July 9, 2014 with the following attachments:
        A. BMC 20.18.020
        B. Vicinity Map
        C. Variance Application packet, including:
          1. Application, dated received May 16, 2014
          2. Applicant Narrative, received May 19, 2014
          3. Site Plan
        D. Aerial Photograph of project vicinity
        E. Public comment from Glen Forsch, dated June 11, 2014
        F. Excerpts from Bellingham Comprehensive Plan, Land Use Chapter and Economic Development Chapter
        G. Notice of Application and Public Hearing

Upon consideration of the testimony and exhibits submitted, the Hearing Examiner enters the following findings and conclusions:

1. The Applicant requested approval of a variance to allow required parking in the front yard setback and approve a driveway greater than 20feet in width in order to accommodate construction of a 2,436-square foot duplex at 2633 Lincoln Street, Bellingham, Washington. The legal description of the subject property is Lot 16, Block 334, First Addition to New Whatcom Plat; also known as Parcel # 380320-045164. Exhibit 1. Exhibit 1; Exhibit 1, Attachment C.
    2. The subject property is located in Area 4 of the Sunnyland Neighborhood. It is zoned Residential Multi Duplex, which requires a minimum lot area of 3,000 square feet per duplex unit or 5,000 square feet per single-family unit. Exhibit 1; Exhibit 1, Attachment B; Bellingham Municipal Code (BMC) 20.00.200; BMC 20.32.
      3. The purpose of the Residential Multi (RM) general use type is to accommodate the highest concentrations of people within the city. Regulations governing RM uses are intended to provide a framework for a desirable living environment for the people living within and adjacent to RM designated areas. The Code contains optional RM regulations that are available to the innovative designer or builder in order to create design and site flexibility, while maintaining or surpassing the living environment that the standard regulations would produce. BMC 20.32.020.A.
        4. The 7,522-square foot property is currently vacant. City permit history indicates that a single-family residence previously located on the subject property was demolished in 2006 under permit # DEM2006-00067. The site is triangular in shape and relatively flat. Surrounding development consists of single-family and duplex residential development on lots of varying sizes. The site fronts Lincoln Street to the east and is the last lot on Lincoln where it dead ends. Interstate-5 is east of Lincoln Street. There is a single-family lot to the south. A City of Bellingham Parks Department trail (Railroad Trail) abuts the site to the north/northeast, which connects to Memorial Park. The dead end of Lincoln Street contains a developed Railroad Trail access point. A partially developed alley dead ends two parcels to the south on the west side of the site. Exhibit 1; Site visit; Exhibit 1, Attachment B.

        5. The Applicant submitted plans for a duplex on-site with the building oriented to front Lincoln Street. The site plan depicts a large contiguous 1,900-square foot open space area behind the building and four off-street parking spaces in the front yard setback. Two landscape islands are proposed, separating the parking stalls into two groups of two and screening the proposed parking from the single-family lot to the south. The curb cut proposed would be at least as wide as the four parking stalls. Exhibit 1, Attachment C.3.
          6. As proposed, the parking requires variance approval from three duplex parking standards. All four proposed off-street parking spaces are located within the 40-foot front yard setback measured from the centerline of the adjacent right-of-way, prohibited by BMC 20.32.060.D.6. All four are proposed within five feet of the front property line, prohibited by BMC 20.32.060.D.5. The proposal would exceed the 20-foot maximum driveway width standard required pursuant to BMC 20.32.060.E.5. Exhibit 1; Exhibit 1, Attachment C.3.
            7. Staff noted that although there appears to be adequate area on-site to accommodate redesigning the proposal to comply with the parking requirements, there would be little benefit in doing so since only one property owner immediately to the south would be impacted, on a parcel that provides similar front yard setback parking. Exhibit 1.
              8. The Applicant indicated that he had considered placing the parking under the residential structure; however, this would have resulted either in much greater impact from site preparation (grading) or in a much taller structure, either of which would have had more impact on surrounding parcels and/or the character of the neighborhood. He noted that the rear of the parcel (west corner) would contain a stormwater dispersion trench, and the flow path and trench require structural setbacks. Duplex design standards require a minimum of 250 square feet of useable common space for each unit. The Applicant asserted that it was difficult to design a proposal to meet all applicable land use, stormwater, and parking requirements, and that in his opinion, a variance from parking was the most innocuous option based on the unique nature of the site. As proposed, the project would provide more useable open space that would be of greater benefit to the occupants than would be allowed under strict compliance with the development. The Applicant also noted that the property taxes are based on multi-family development and that requiring a single-family unit on-site would deprive the parcel of its full development potential. O'Brien Testimony.
                9. Planning Staff considered whether requiring alley access was feasible for the site, as a means of ensuring parking would not be in the front setback. The existing alley is not developed to the property boundary and the Applicant would be required to construct its extension to the site across two other properties. Also, an existing PSE power pole in the alley immediately adjacent to the site would have to be relocated to provide primary alley access. Staff determined that requiring alley access was infeasible. Exhibit 1; Nelson Testimony.
                  10. Aerial photography of the vicinity shows that it is common among nearby residences and throughout Area 4 of the Sunnyland Neighborhood for residential development to take access and have off-street parking off of rear alleys, which is not possible for the subject property. The existing single-family residences located immediately south at 2621 Lincoln Street and at 2534 King Street both provide off-street parking in their front or street side yards. Exhibit 1; Exhibit 1, Attachment D.
                    11. According to the City’s Bicycle Master Plan, the Railroad Trail access in front of the subject property is secondary, and the primary access point is located west of the subject property off of King Street. Because of this, pedestrian and bicycle traffic accessing the trail from Lincoln Street is anticipated to be lower in volume than the King Street access, reducing the potential for vehicular and pedestrian/bicycle conflicts. Exhibit 1; Nelson Testimony.
                      12. Because Lincoln Street dead ends at the site, lower traffic speeds and less vehicular circulation are expected in front of the subject property, resulting in a safer environment for pedestrian and bicycle traffic using the roadway for multiple purposes. Planning Staff indicated that the Public Works Department reviewed the proposed variance application and raised no objections. Exhibit 1; Nelson Testimony.
                        13. Planning Staff asserted that the goals and policies of the Bellingham Comprehensive Plan Land Use Chapter, specifically Framework Infill Strategies and General Parking Policies, are supportive of the instant request, as well as Economic Development Goals generally. Without citing specific goals or policies, Staff submitted the position that the Comprehensive Plan generally promotes the following:
                              Make more efficient use of the remaining City land supply; facilitate development on existing lots of record; develop flexible code provisions that allow a range of housing types; adopt minimum density requirements; other steps necessary to make better use of the remaining land supply.

                              Consider reductions in parking standards for purposes of achieving a compact urban form that is attractive, inviting and walkable and furthering City infill and affordable housing goals and policies.

                              Review land use regulations, development standards and design guidelines to ensure that the existing developed and remaining vacant or underutilized employment lands are used as efficiently as possible.

                            Exhibit 1.
                        14. The application was submitted May 16, 2014 and deemed to be complete for the purpose of review on June 6, 2014. Notice of application and public hearing was issued May 6, 2014. Exhibit 1, Attachment A. The City received one public comment in support of the application. Exhibit 1, Attachment E.
                          15. Upon review of the proposal and all applicable regulations, Planning Staff submitted the position that the proposed site design maximizes the usable open space and minimizes bulk, mass, and light trespass impacts on the most impacted property adjacent to the south. Staff asserted that the irregular shape of the site and the fact that the trail and I-5 are adjacent constitute sufficiently unique circumstances to warrant increased flexibility in site design and layout. Staff indicated that the lack of public opposition to the proposal was further basis for considering approval and that approval would allow the Applicant similar privileges as those enjoyed by other property owners in the area without being unduly detrimental to the public welfare or injuring property or improvements in the area. Staff recommended approval subject to conditions. Exhibit 1; Nelson Testimony.

                          The Hearing Examiner is granted authority to hold hearings and make decisions on variance permit applications pursuant to BMC 21.18.020.A.

                          Criteria for Review
                          Pursuant to Bellingham Municipal Code 21.18.020.A, a variance may be approved if all of the following are demonstrated:
                            1. Because of special circumstances, not the result of the owner's action, applicable to the subject property (including size, shape, topography, location, or surroundings), the strict application of the provisions of this ordinance is found to deprive the property of rights and privileges enjoyed by other property in the area and under the identical land use classification; and
                            2. That the granting of the variance will not be unduly detrimental to the public welfare nor injurious to the property or improvements in the vicinity and subarea in which the subject property is located.
                            3. That the subject property cannot be reasonably used under the regulations as written.

                          Applicable Code Provisions
                          BMC 20.32.060.D.5: No portion of any open parking facility shall be located within five feet of any property line abutting upon property with a residential single general use type.

                          BMC 20.32.060.D.6: No portion of any parking area shall be permitted within any required front yard, in any required side yard on a flanking street, vision clearance triangle or other front yard setback established on the recorded plat (e.g., a lot frontage such as a pipestem that does not meet minimum lot width and is not buildable.) Driveway crossings and tandem parking within a driveway, when allowed by other city codes, are not prohibited by this provision. Single-family homes and duplexes that are required to provide on-site maneuvering due to driveway access onto an arterial street or location near an intersection under BMC 20.12.010.D.7 are not prohibited from providing a single backup area within the front yard or side yard on a flanking street.

                          BMC 20.32.060E.5: The public works department shall approve the location of all curb cuts. A driveway for a duplex shall not exceed 20 feet in width within a front yard or side yard on a flanking street. For other uses, no single curb cut shall be wider than 30 feet. For parking lots with less than 10 spaces, the curb cut shall be no wider than 12 feet. Parking lots with separate points of ingress and egress shall have no more than a 12-foot curb cut separated by a distance of at least 20 feet and shall comply with arterial street access, Chapter 13.53 BMC, Driveways Giving Access to Arterial Streets.

                          Conclusions Based on Findings
                          1. The subject property is unique in many significant ways. Its triangular shape presents difficulty in siting a building with typical street orientation while balancing front/rear/side yard open space in traditional manner. It is located at the end of a dead end street adjacent to I-5 and existing residential development, meaning the street is not likely to ever be extended. Alley access and off-alley parking is the norm in the neighborhood; however, the rear-loading alley behind the lots on Lincoln Street ends two parcels south of the site. Extending the alley to the site would significantly impact the rear yards of the two parcels to the south and require extensive off-site improvements. Finally, there is a trail head near the northeast corner of the site and the trail runs to the southwest abutting the rear hypotenuse boundary of the triangle lot. These circumstances combined make the parcel unique and present challenges to development that are unusual for parcels in the vicinity and in the zoning district. The site is isolated because of the alley and street dead ends; any variance approved would affect only the parcel immediately to the south. At least two parcels in the vicinity, including the parcel directly to the south, provide off-street parking in the front yard setback, either as legal nonconforming uses or informally without permission. There are duplex open space standards and various setbacks that apply to any development of the subject property. Combining all these factors, it is arguable that requiring the Applicant to strictly comply with parking standards would deprive him of development circumstances enjoyed by at least two other parcels and would result in negligible public benefit. Findings 4, 5, 6, 7, 8, 9, 10, 13, and 15.

                          2. The only property impacted by variance approval would be the parcel to the south, which also has parking in the front yard setback. Due to the isolated nature of the parcel and its position at the end of a dead end road, no property would be adversely impacted by the variance. The Public Works Department raised no objection based on potential pedestrian/cycle conflicts with vehicles parking in the front yard setback on-site. No other potential adverse impacts were identified in the record. Approval would not result in harm to persons or property. Findings 4, 5, 6, 7, 11, 12, and 15.

                          3. The project could arguably be redesigned to satisfy all setback requirements and all standards for duplex development. However, there would be no benefit. Given the unique nature of the site -- it is truly one of a kind -- and the existence of front yard setback parking next door, requiring the Applicant to comply with the parking provisions would serve no purpose other than strict compliance with code. The purpose statement for the Residential Multi general use type includes the use of flexibility to achieve optimal site design. Duplex development standards and several policies of the Comprehensive Plan also promote flexibility to achieve optimal residential development design. In this extremely rare set of circumstances, strict compliance, while possible, would be unreasonable to require. Findings 3, 4, 5, 6, 7, 8, 10, 13, and 15.

                          Based upon the preceding findings and conclusions, the requested variance to allow required parking in the front yard setback and approved a driveway greater than 20 feet in width in order to accommodate construction of a 2,436-square foot duplex at 2633 Lincoln Street, Bellingham, Washington is APPROVED subject to the following conditions:
                            1. New construction shall comply with all other applicable code requirements and shall substantially conform to the plans, specifications, drawings and representations submitted in support of the proposal unless otherwise specified for compliance with building and fire code requirements.
                              2. The proposed building location as identified on the site plan in Exhibit 1, Attachment C.3 shall be required to comply with the minimum seven-foot side yard setback with required screening in accordance with BMC 20.32.050.D.2.b.

                            DECIDED July 23, 2014.
                            Bellingham Hearing Examiner
                            Sharon A. Rice, Pro Tem