Hearing Examiner #: HE-13-PL-022
City Contact:Brian Smart
Hearing Date: 08/07/2013
Description: Variance request of Ziad Youssef re 1828 Franklin Street
Decision Date: 08/21/2013
Decision Summary:Approved with conditions.
This matter came before the Bellingham Hearing Examiner for hearing on the 7th day of August, 2013 on the application of Ziad Youssef for a variance from setback and landscaping requirements for property located at 1828 Franklin Street in Bellingham.
Testimony was received from Brian Smart and Ryan Nelson, Bellingham Planning and Community Development Department; Ron Jepson, Applicant's Representative; and Ziad Youssef, Applicant.
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. Ziad Youssef applied for a variance from setback and landscaping requirements of the Bellingham Municipal Code for property located at 1828 Franklin Street.
2. The subject property is located adjacent to Franklin, Grant and Ohio Streets in Area 6 of the Sunnyland Neighborhood. This area is designated Industrial, Light.
3. The property contains an existing car lot and two buildings. The site is approximately 15,000 square feet in area.
4. In 2006, the Applicant submitted a building permit application to change the use of the main building on the site to retail auto sales and a martial arts studio. This change required improvement of the parking area. A site plan submitted with that application showed the required parking spaces for the proposed uses and a five-foot landscape strip along the Ohio Street frontage. The paved parking area was never completed and the landscape strip was not installed. The martial arts studio is no longer at the location and the parking area is used for display of vehicles for sale.
5. Ohio Street has an 80-foot right-of-way and is developed to full standard with 40 feet of paved travel lanes, curb, gutter, and setback sidewalks. Ten feet of right-of-way remains between the back of the sidewalk and the property lines.
6. There are no front setbacks required for structures in the Industrial area. Some of the properties along the south side of Ohio Street in this area have buildings located up to the front property lines. Others have gravel parking areas located along the front property lines without a landscaping strip. More recent developments along the northern side of Ohio Street have a five-foot landscaping strip with the remaining 10 feet of right-of-way included within the landscaped area.
7. The Applicant now plans to pave the parking lot and would like to install the landscaping within the right-of-way adjacent to the front property line instead of on private property.
8. BMC 20.12.010D(4)(b) provides that in industrial designated areas a five-foot setback requirement applies when a parking facility is located adjacent the front property line.
9. BMC 20.12.030C(4)(c) provides that setback areas required in BMC 20.12.010D(4)(b) shall be landscaped if the adjacent property is of the same general use type.
10. BMC 20.12.030B(1) provides that the landscaping provisions apply to all new construction and to remodeling when the cost of remodeling exceeds 50 percent of the assessed valuation of the structure to the extent that there is space available for the landscaping.
11. BMC20.08.020 defines "parking facility". The definition excludes lots used for the sale or rental of cars.
12. The proposal submitted by the Applicant shows a five-foot landscaping strip along the Ohio Street frontage at the back of the sidewalk. The Applicant states that an alternative proposal for 10 feet of landscaping from the back of the sidewalk, up to the curbcut on Ohio Street would also be acceptable.
13. City staff has recommended approval of the variance but subject to conditions, including landscaping of the entire 10 feet of the right-of-way along the entire Ohio Street frontage.
14. Variance criteria are set forth in BMC 20.18.020.
15. One public comment was received in support of the proposal.
II. CONCLUSIONS OF LAW
1. Based on the material in the record it appears that the 2006 proposal has been abandoned. It is not clear what parking is required for the current use, or whether there is new construction or remodeling that would trigger the requirement for a parking facility with a landscaping requirement.
2. If the provisions of BMC 20.12.030B(1) are applicable, a variance should be granted to allow reduction in the setback and provision of landscaping within the right-of-way, given the nature of the use, the lack of landscaping on other properties within the vicinity on the south side of Ohio Street, and the curb cut installed by the City when Ohio Street was improved to full standard.
3. It is unlikely that the remaining 10 feet of right-of-way will be needed for further street improvements so it could be made available for landscaping, subject to approval of the Public Works Department.
4. Granting a variance as proposed will not be unduly detrimental to the public welfare nor injurious to the property or improvements in the vicinity.
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.
A variance is granted for reduction in the setback and to allow landscaping within the Ohio Street right-of-way for property located at 1828 Franklin Street, subject to the following conditions:
1. If the provisions of BMC 20.12.010D(4)(b) and 20.12.030C(4)(c) do not apply because there is no (or an abandoned) change of use, or no new construction or remodeling in excess of 50% of the assessed valuation of the structure, or there is no "parking facility" as defined in BMC 20.08.020 located adjacent to the front property line, the requested variance is not necessary and the following conditions shall not apply.
2. If the above-cited sections do apply the Applicant shall provide at least five feet of landscaping, in accordance with a landscaping plan approved by the City, within the 10 feet of Ohio Street right-of-way between the back of the sidewalk and the property line, or on the subject property adjacent to the Ohio Street right-of-way, along the Ohio Street frontage, but excluding up to 30 feet of the frontage if used for permitted ingress/egress and not for parking or display of vehicles.
3. The required landscaping shall include a variety of ground cover, low shrubs and at least two street trees. The landscaping plan shall provide for amended soils to ensure that landscaping will survive and thrive. The plan shall be designed by a licensed landscape professional and submitted for review and approval of the City prior to issuance of a Stormwater Permit.
4. An assignment of funds or other surety acceptable to the City shall be provided prior to permit issuance to ensure completion and survivability of the required landscaping. The assignment of funds or other surety shall be for 150% of the cost of installation and plant materials and shall remain in force for at least one year to allow the City to remedy any defects in the work or lack of timely performance of the work.
5. The Applicant shall obtain any required Final Certificate of Occupancy required by applicable building codes.
6. The site shall comply with the requirements of BMC 20.12.010, as applicable.
ENTERED this 21st
day of August 2013.
Bellingham Hearing Examiner