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Short Plat and Variance requests of Todd Fuller re 2204 Whatcom Street (aka Huntley Short Plat #2450)


Hearing Examiner #: HE-14-PL-022
Planning #:SUB2013-00036 / VAR2014-00008 / SEP2014-00006
Incident #:
Filing Date:03/12/2014
City Contact:Ryan Nelson
Hearing Date: 05/14/2014
Description: Short Plat and Variance requests of Todd Fuller re 2204 Whatcom Street (aka Huntley Short Plat #2450)
Decision Date: 05/28/2014
Decision Summary:Short Plat and Variance for Whatcom St. approved with conditions. Variance for Newton St. denied.

This matter came before the Bellingham Hearing Examiner for hearing on the 14th day of May 2014 on the application of Todd and Colin Fuller for a five-lot short plat with variances from subdivision requirements for property located at 2204 Whatcom Street in Bellingham.
Testimony was received from Ryan Nelson, Bellingham Planning and Community Development Department; Todd Fuller, Applicant; Colin Fuller, Applicant; Wendy Harris, 3925 E. Connecticut Street; and Gaythia Weis, 1713 Edwards Court.
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. Todd and Colin Fuller applied for short plat approval for a five-lot short plat, with variances from requirements to construct Whatcom and Newton Streets abutting the plat to three-quarter standard, for property located at 2204 Whatcom Street.
2. The subject property is located in Area 8 of the Whatcom Falls Neighborhood and is designated Residential Single, 10,000 square feet minimum detached lot size, 7,200 square feet minimum cluster detached. Special Conditions for this area include clearing and traffic restrictions to residential streets to the north.
3. The property contains approximately 64,651 square feet of land area on the southeast corner of Whatcom and Newton Streets. It contains one existing single-family residence which was constructed in 1956. The existing house would remain on proposed Lot 5 of the short plat, at the corner of Whatcom and Newton Streets. Lots 1 and 3 would have approximately 75 and 100 feet, respectively, of frontage on Newton Street, and Lots 2 and 4 would be located in the rear portion of the property with side-by-side 15-foot wide pipestems on Newton Street for access.
4. The Applicants propose to provide access to the four new lots from Newton Street via a shared driveway within the pipestems between Lots 1 and 3. The existing house on proposed Lot 5 would maintain access to Whatcom Street.
5. The proposed lots meet or exceed the minimum required lot size, lot width and lot depth specified in BMC 18.36.020.
6. Whatcom Street has a 30-foot wide right-of-way. Newton Street has a 50-foot wide right-of-way. The Applicants requested an administrative waiver from the requirement of BMC 18.12.030 that all lots within a short plat abut a street with at least 60 feet of right-of-way. The administrative waiver was granted, in accordance with BMC 18.12, after a determination that additional right-of-way was not necessary for future traffic circulation of the city.
7. The eastern property line of the subject property is located between 79.3 and 150 feet from Cemetery Creek, which is a Fish and Wildlife Habitat Conservation Area regulated under the City's Critical Areas Ordinance (CAO). The area adjacent to the creek is also a landslide and erosion geologically hazardous area, also regulated under the CAO.
8. The CAO will require a 150-foot buffer from the creek for development on proposed Lots 2 and 4. Proposed Lot 2 contains approximately 16,000 square feet. Proposed Lot 4 contains approximately 14,400 square feet . Each of these lots has a depth, exclusive of the pipestems, and outside the required buffer, of more than 60 feet. These proposed lots contain sufficient site area outside the required buffer for reasonable residential development. Any development proposal for the property which seeks to reduce the required buffer will require a critical areas permit.
9. The property contains a significant number of trees with trunk diameters greater than six inches. BMC 18.28.210 and the Special Condition for clearing applicable to the property requires a subdivision design that preserves the greatest amount of existing on-site vegetation, including trees with a trunk diameter of six inches or greater, and other natural ground cover, with replacement of removed trees where practical, and compliance with the land clearing chapter, BMC 16.60.
10. BMC 18.12.040 and 18.28.040 requires that all lots in a short subdivision of five or more lots must abut a street improved to at least three-quarter of a standard city street, as specified in BMC 13.04.
11. A full standard residential access street consists of two travel lanes plus curb, gutter and five-foot wide sidewalks on both sides of the street.
12. Newton Street is currently constructed with two travel lanes with curb, gutter and sidewalk on the west side of the road and gravel shoulder and open ditch on the east side of the street abutting the subject property.
13. The Applicants request a variance from the requirement to construct a sidewalk on the east side of Newton Street abutting the property. They state that the street is already constructed to three-quarter standard because the sidewalk, curb and gutter were constructed on the opposite side of the street. They also state that a sidewalk constructed on the development side of the street would not be continued north to connect to sidewalk at Old Lakeway Drive, or south because Newton Street is gated immediately south of the property. They argue that the properties on the street are already developed so they would not be required to complete construction of the sidewalk and the City is unlikely to complete the construction.
14. The Applicants also request a variance from the requirement to construct Whatcom Street to three-quarter standard. Whatcom Street is currently a dead-end street connecting to Woburn Street to the east and terminating in front of the property, with no connection to Newton Street. It is surfaced with gravel and chip seal and has no curb, gutter or sidewalk. The street provides access to three houses, including the existing residence on the subject property. No further development is likely to take access from this section of Whatcom Street.
15. Further subdivision activity is anticipated to the south of the property on Newton Street. It is likely that future subdivisions will be required to develop sidewalks on both sides of Newton Street.
16. City staff has recommended approval of the variance from the requirement to construct Whatcom Street abutting the property to three-quarter standard. Staff indicates that it is unlikely that the section of Whatcom Street abutting the property will serve additional properties in the future and that there would be little benefit to the neighborhood of improvements to the street. It now functions as a driveway for the existing residences.
17. City staff recommends denial of the variance from the requirement to construct Newton Street to three-quarter standard abutting the property. Staff states that the three-quarter standard requirement has been consistently applied to require a development to construct sidewalks on the development side of the street, even if the opposite side of the street has been constructed with curb, gutter and sidewalk. It states that granting a variance from required sidewalk improvements on Newton Street would lead to further fragmentation of the absence of sidewalks and result in a greater burden on the city and its annual street improvement program to develop the sidewalks on the east side of the street. It also states that the sidewalk on the east side of Newton Street has the potential to connect the pedestrian network with a future subdivision and trail system to the south.
18. Public comment was received for the proposal. Comments included opposition to the variance from the requirement to construct a sidewalk on Newton Street, concern regarding preservation of mature trees within the Cemetery Creek buffer area and to screen the Puget Sound Energy substation located to the east of the property, the need for sidewalks to provide pedestrian connectivity, environmental impacts to the creek, habitat and landslide hazard areas, increased traffic and parking demand, and stormwater management. Some of the comments supported the requested variance from three-quarter street improvements to Whatcom Street to preserve the existing character of the area. Some comments indicated that the variance request for Newton Street did not satisfy the variance criteria. Concerns were also expressed that the critical areas permit application was not complete yet and it should be considered along with the variance requests to avoid piece-mealing of the development process.
19. City staff recommends approval of the short plat with the variance from construction of Whatcom Street subject to the conditions set forth in the Staff Report.
20. Subdivision variance criteria are set forth in BMC 18.48.010. This section states that a variance may be granted when, due to unusual shape, exceptional topographic conditions, geological problems, environmental constraints or other extraordinary situation or condition in connection with a specific piece of property, the literal enforcement of the subdivision regulation would involve difficulties or result in an undesirable plat; or the granting of the variance results in better lot design than previously existed; and 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 property is located.
21. The proposed short plat satisfies the requirements of BMC 18.12 and 18.36, except for the street improvement requirements for which variances are sought.
22. The proposed variance from street improvement requirements for Whatcom Street satisfies the variance criteria of BMC 18.48.010. The existing residence on the property currently takes access from Whatcom Street, which functions as a driveway for this residence and two others. The street dead-ends at the property and is not likely to be improved or extended in the future. The new lots created by the short plat will not access Whatcom Street and improvement of the street would alter the character of the existing neighborhood in a manner not desired by the residents.
23. The proposed variance from street improvement requirements for Newton Street does not satisfy the variance criteria of BMC 18.48.010. Newton Street provides access to the newly created lots in the short plat. There are no unusual conditions applicable to the property that make it difficult to construct the required improvements or cause the improvements to result in an undesirable plat. Granting the variance would not result in a better design that previously existed. Granting the variance would be detrimental to the public welfare as well as the future residents of the plat as it would result in a gap in standard street improvements and pedestrian safety and connectivity that would either remain in perpetuity or require correction at public expense.
II. CONCLUSIONS OF LAW
1. The proposed short plat satisfies the requirements of BMC Title 18, except for the requested variance from street improvement requirements for Newton Street, and should be approved subject to the conditions set forth below.
2. The variance from street improvement requirements for Whatcom Street satisfies the variance criteria of BMC 18.48 and should be approved, subject to the conditions set forth below.
3. The variance from street improvement requirements for Newton Street does not satisfy the variance criteria of BMC 18.48 and should be denied.
4. The requirement of BMC 18.12 and 18.28 for three-quarter standard street improvements requires improvement of the side of the street abutting the development with sidewalks and other improvements as specified in the applicable standard, regardless of the existence of a sidewalk on the other side of the street. The interpretation of the three-quarter improvement standard urged by the Applicants, where no further improvements would be required if a three-quarter improvement was constructed with development of property on the opposite side of the street, would result in an almost complete lack of full standard streets in the city. The three-quarter standard requirement requires each developer to construct the improvements necessary for the abutting development, including abutting sidewalk, curb and gutter. Full standard streets result when developments on both sides of the street complete their required three-quarter improvements.
5. 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.
III. ORDER
The five-lot Huntley Short Plat #2450 is approved with a variance from street construction requirements for abutting Whatcom Street, subject to the following conditions:
1. A variance from street construction requirements for Whatcom Street is granted. No further improvement of Whatcom Street is required with the proposed short plat.
2. The requested variance from street construction requirements for Newton Street is denied. Newton Street shall be constructed to three-quarter standard, with a five-foot wide sidewalk and other required improvements abutting the subject property, (resulting in a full standard street with the existing improvements on the west side of the street) in accordance with plans and specifications approved by the Public Works Department and a public facilities construction agreement.
3. The short plat shall consist of no more than five lots and be substantially as shown in Exhibit A to the Staff Report and as represented in the materials submitted in support of the application, except as modifications are required to comply with the conditions set forth herein and the Bellingham Municipal Code. Each lot shall include sufficient site area outside the critical areas buffer boundaries to satisfy the requirements for lot width and depth contained in BMC 18.36 and to allow reasonable development on the lots without a variance from requirements of BMC 20.30.
4. Existing trees with a trunk diameter of six inches or greater shall be preserved unless removal is reasonably required to accommodate the construction of residential structures and driveways, or identified by a certified arborist as a hazard tree. Trees proposed for removal shall be shown on plans submitted prior to construction of structures or infrastructure. No tree removal is allowed within the 150-foot critical area buffer unless approved through a critical areas permit. The critical areas permit shall not permit tree removal within the eastern 30 feet of proposed Lots 2 and 4 and the southern 15 feet of proposed Lots 4 and 5 unless determined to be a hazard tree by a certified arborist. Each hazard tree removed shall be replaced with an equivalent tree to provide screening for property and infrastructure to the east. The Planning and Community Development Department may require replacement for other trees removed if necessary to comply with BMC 18.28.210 and clearing regulations. A note shall be placed on the face of the plat stating that development of all lots is subject to the clearing restrictions included in this Order.
5. Development of the newly created lots and right-of-way infrastructure improvements shall incorporate Low Impact Development techniques to the maximum extent practicable based on site conditions, in accordance with the Stormwater Management Manual published by the Department of Ecology, as amended.
6. The following shall be completed and accepted by the City prior to final plat approval:
      a. Street lights shall be installed in accordance with BMC 18.28.140 in accordance with plans and specifications approved by the Public Works Department.
      b. Street trees in accordance with BMC 18.28.200 shall be installed, or bonded for if seasonally restricted, in a form approved by the Planning and Community Development Department.
      c. A joint access easement and maintenance agreement shall be submitted for review and approval of the City and recorded with the Whatcom County Auditor. The easement agreement shall include a utility easement if deemed necessary by the Public Works Department.
      d. The Developer shall construct a fire apparatus road to service the proposed lots in accordance with applicable requirements, permits and Fire Department approval. The access easement for the driveway shall be designated a fire apparatus road on the face of the plat. The roadway and easement therefor shall be reviewed and approved by the City, and the easement recorded with the Whatcom County Auditor.
      e. Stormwater management shall be designed, located and installed in compliance with BMC 15.42 and the Department of Ecology Stormwater Management Manual for Western Washington, as amended. Mitigation is not required at this time if it is demonstrated that the total of new or replaced impervious surfaces will not exceed 5,000 square feet. Threshold determinations for stormwater management requirements shall be made as though the variance for improvements to Whatcom Street had not been granted. A note shall be placed on the face of the plat that limits the square footage of impervious surface for future development and redevelopment within the short plat boundaries unless additional stormwater management facilities are provided, in accordance with BMC 15.42. Stormwater detention facilities for the development shall be located and designed so that they are not easily visible from public streets and they shall be screened with vegetation. A landscape plan shall be submitted for review and approval of the City and implemented to satisfy this requirement.
      f. Required improvements to Newton Street shall be completed and accepted by the City.
      g. Five copies of the plat (checkprints) prepared by a licensed surveyor, a plat certificate, and plat closure calculations shall be submitted to the Planning and Community Development Department for review and approval prior to submittal of mylars.
      h. A licensed land surveyor shall prepare and submit two signed mylar copies of the plat based on a record of survey and City staff's review of the checkprints. At a minimum, the signature of any person having a vested right in the subject property shall be on the mylar document.
      i. A per lot filing fee, as established by ordinance, must be paid to the City prior to final short plat approval. The current established fee is $106.00 per lot, requiring a total payment of $530.00. The filing of the mylars will change the legal description of the property to Lots 1 through 5, Huntley Short Plat.
7. The City may impose additional conditions if it is found that sufficient information was not presented with the application and/or it is necessary to comply with the Bellingham Municipal Code.
8. The short subdivision application and preliminary approval, and variance approval, will expire three years from the date of this Order unless the final plat is recorded at the Whatcom County Auditor's Office (BMC 18.040.100).
9. The division and development of the property shall comply with all other applicable regulations of the Bellingham Municpal Code, except as variances are granted.
10. The following note shall be placed on the face of the plat:
      Critical Areas Ordinance Note: This project has been reviewed by the City of Bellingham for conformance with BMC 16.55. No development within 150 feet of Cemetery Creek shall be permitted unless approved pursuant to a Critical Area Permit.
11. A condition and Note shall be placed on the face of the plat stating that all development occurring on the lots shall comply with the requirements set forth in this Order, and as it may be amended.
ENTERED this 28th day of May 2014.
Bellingham Hearing Examiner
________________________________
Dawn Sturwold
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