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Critical Areas Variance of Keith Troske re 1108 Inverness Lane


Hearing Examiner #: HE-13-PL-023
Planning #:VAR2013-00011 / VAR2013-00018 / CAP2013-00014
Incident #:
Filing Date:07/19/2013
City Contact:Ryan Nelson
Hearing Date: 09/25/2013
Description: Critical Areas Variance of Keith Troske re 1108 Inverness Lane
Decision Date: 10/09/2013
Decision Summary:Approved with conditions

This matter came before the Bellingham Hearing Examiner for hearing on the 25th day of September 2013 on the application of Keith Troske for a variance from setback requirements and critical areas regulations for property located at 1108 Inverness Lane in Bellingham.
Testimony was received from Ryan Nelson, Bellingham Planning and Community Development Department; Keith Troske, Applicant; and Laura Brakke, 585 Pleasant Bay Road.
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. On April 8, 2013 Keith Troske applied for a variance from front yard setback requirements and critical areas buffer restrictions for property located at 1108 Inverness Lane to construct a single-family residence.
2. A Notice of Incomplete Application was sent to the Applicant by the Planning and Community Development Department on April 18, 2013 indicating that additional information was required to process the application. A Notice of Application was issued on July 31, 2013 for the proposal. A Request for Information was sent to the Applicant by the Department on August 23, 2013. Additional information was submitted on behalf of the Applicant on September 16, 2013.
3. The subject property is legally described as Lot B of the Shady Short Plat. It is located in Area 7 of the Whatcom Falls Neighborhood and is designated Residential Single, Detached, 10,000 square feet minimum detached lot size, one lot/10,000 square feet overall cluster density, minimum cluster lot size 7,200 square feet. Special conditions in this area include clearing.
4. The subject lot is the last undeveloped lot on Inverness Lane, Likely Drive and Likely Court. The lot was created in 1981. The neighboring properties were developed with single-family residences in the 1970's and 1980's.
5. The property is approximately 70 feet wide and 130 feet deep with an area of approximately 7,329 square feet, consistent with the minimum cluster lot size for the area. It abuts Inverness Lane to the west and Cemetery Creek to the east. Single-family residences are located to the north, south, east across Cemetery Creek, and west across Inverness Lane.
6. The property slopes, dropping approximately 30 feet from the western lot line to Cemetery Creek on the east. Slopes in excess of 40% are located within 50 feet of the proposed residence. These slopes are designated landslide geologically hazardous areas and are regulated by the City's Critical Areas Ordinance (CAO).
7. Cemetery Creek is a habitat conservation area that is regulated under the CAO.
8. Development of the proposal requires a Critical Area Permit (CAP). This permit will be reviewed and issued by the Planning and Community Development Department subject to consistency with the CAO and the decision issued in this proceeding.
9. The Applicant proposes to construct a single-family residence with a footprint that extends to 10 feet from the front property line, five feet from the side property lines and approximately 77 feet from the rear property line. Decks would extend out from the structure on the south side. Variances from the standard front yard setback and critical areas buffer requirements are required for this proposal.
10. The proposed residence would have a footprint of approximately 2,130 square feet (including decks/patios) and total floor area of approximately 3,158 square feet. Total impervious surface would cover approximately 2,328 square feet. The residence would have a main floor and a daylight basement lower floor with three bedrooms, two and one-half baths, rec room, kitchen/dining/great room, unfinished basement space and a two-car garage.
11. Other homes in the area vary in size, footprint and placement on the lot. The average footprint of surrounding residences is approximately 2,590 square feet, excluding decks/patios.
12. Inverness Lane is a 50-foot wide right-of-way with a bulbed cul-de-sac at the end of the street. The subject property is situated on the bulb portion of the cul-de-sac. A five-foot wide sidewalk is located within the right-of-way. A portion of the right-of-way between the sidewalk and the property line is not developed with street improvements. It contains underground utilities and would contain a portion of the driveway for the proposed residence.
13. The proposed 10-foot front yard setback line would curve across the property, touching the proposed structure at its southwest corner and at the mid-point of the structure's fašade at the southwest corner of the garage. Other portions of the structure would be set back more than 10 feet from the front property line.
14. Other neighboring residences which also abut Cemetery Creek are set back from the right-of-way between 12 and 65 feet, with an average setback of 35.8 feet.
15. The subject property was created, and surrounding properties developed, prior to adoption of the City's CAO.
16. Cemetery Creek is a Type 3 stream, also known as a Habitat Conservation Area (HCA) pursuant to the CAO, BMC 16.55.510. The buffer for a Type 3 HCA ranges from a minimum of 75 feet to a maximum of 150 feet. BMC 16.55.500D(3)(e) provides that when an HCA is within a landslide hazard area or buffer the riparian habitat area width shall be the maximum distance, in this case 150 feet.
17. Cemetery Creek meanders through the subject lot close to the rear property line. The entire property is located within the maximum buffer area. The distance from the creek to the front property line ranges between approximately 100 and 130 feet.
18. BMC 20.30.040F requires a front setback of 20 feet from an abutting cul-de-sac, a rear setback of 10 feet and side yard setbacks of five feet.
19. The Applicant proposes a setback from the creek of 50 feet and a zero-foot building setback from the buffer.
20. The surrounding residences which abut the creek, and which were constructed prior to adoption of the CAO, are set back an average of approximately 47 feet from the creek.
21. BMC 20.18.020 provides criteria for granting variances from the setback requirements of BMC 20.30.040. These criteria include: 1) that 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; and 3) that the subject property cannot be reasonably used under the regulations as written.
22. City staff has recommended approval of the front yard setback variance subject to conditions set forth in the Staff Report, including completion of a survey by a licensed surveyor prior to construction and compliance with all other applicable code requirements and conformance to the submitted plans.
23. One public comment was received pertinent to the front yard setback variance proposal. Neighbors on Inverness Lane oppose the setback variance because it would not provide adequate parking space in the driveway, forcing parking for the residence onto the cul-de-sac, which they indicate is already crowded, the shallow front yard would not be in keeping with other homes on Inverness Lane, and construction and clearing on the property could damage their trees separating their home from the subject site.
24. There are special circumstances applicable to the subject property, including buffer requirements for Cemetery Creek and the steep slope which, without variances, consume all of the property, rendering it undevelopable. All of the surrounding properties developed prior to CAO restrictions and are now non-conforming to those regulations. The proposal requests variances to develop the subject property in a manner similar to the surrounding properties. Reduction of the front yard setback allows development of the property to be concentrated in the area furthest from the creek and the slope.
25. Reduction in the front yard setback will reduce the on-site space between the garage face and the sidewalk, however, the proposal does provide for the required two on-site parking spaces within the garage. In addition, a portion of the garage, as proposed, would be setback more than 10 feet, providing potential for guest parking in front of the garage. Single-family residences are not required to provide more than two parking spaces on-site. Parking on the public street is open to the public unless restrictions on parking are officially adopted by the City.
26. Reduction in the front yard setback will not necessarily increase the amount of clearing within the front portion of the subject site. Removal of trees is not restricted within zoning setback areas. These setbacks restrict certain structures within the required yard area but do not prohibit landscaping or active use of the yard area.
27. Reduction in the front yard setback will not be unduly detrimental to the public welfare nor injurious to the property or improvements in the area. The property is located at the end of a cul-de-sac, it is unlikely that additional right-of-way will ever be required for street or utility purposes and traffic on the street is limited to that generated by the nine residences located on the cul-de-sac. Existing residences are located at varying distances from the right-of-way, there is already a lack of uniformity along the street frontage. It does not appear that location of the proposed residence 10 feet from the property line will have any greater impact on neighboring properties than location of the residence 20 feet from the property line.
28. The subject property cannot be reasonably used without variances from setback regulations and/or critical areas buffer requirements. Reduction of the front yard setback allows development further from the regulated stream and steep slope.
29. Critical areas reports were prepared for the property by Merit Engineering, Inc., (dated April 4, 2013, with an addendum via letter dated July 12, 2013) relating to geologically hazardous areas, and Aqua-Terr Systems, Inc., (dated June 28, 2013 with an addendum dated September 15, 2013) relating to Habitat Conservation Areas. These reports are incorporated herein by reference.
30. The Merit Engineering, Inc. report concludes that the property may be suitable for the proposed development and that the proposed alterations to the site should not decrease slope stability on the subject or adjacent properties, adversely impact the surrounding critical areas, or increase surface water discharge, sedimentation, or erosion rates if the recommendations in the report are followed. The report recommends methods and measures relating to site preparation and grading, cuts, fills, excavation, lateral earth pressures, and construction. It indicates that the slope is generally stable and does not appear to be at risk of landslides or large scale slope failures, although there may be seismic hazards associated with the slope. The engineer's opinion is that the slope will not be adversely affected by the proposed development and any landslide hazards will be sufficiently mitigated if the recommendations in the report are followed.
31. The engineering report recommends that the proposed 50-foot setback from Cemetery Creek be used to determine the building envelope as it is more restrictive than their recommended slope setback and buffer zone of 10 feet from the top of the critical slope. The report also supports the variance from the front yard setback, stating that the closer the building pad is to the front edge of the property the less impact to the slope and less risk of increased erosion.
32. The addendum to the Aqua-Terr report indicates that the functions of Cemetery Creek will not be compromised as a result of the proposed project because a naturally vegetated area adjacent to the creek will remain and enhancement in the form of the removal of non-native and invasive plants and planting native trees and shrubs will occur. It also indicates that a 10-foot landscaped lawn would be provided between the 50-foot buffer from the creek and the house for safety and access to the rear of the house.
33. The Aqua-Terr report describes proposed mitigation for the buffer alteration. The report concludes that avoidance is not feasible due to the size of the property. It indicates minimization efforts will be employed to the maximum extent practicable during construction, including such measures as silt fencing, brush barriers, straw bale dams, sediment ponds/traps, and a stormwater dispersion trench. The report states that rectification of accidental impacts to the stream are not anticipated because a 50-foot buffer would remain between the structure and the creek. Mitigation is proposed for the remaining buffer area including removal of trees that are directly adjacent to the proposed structure where root damage will occur during construction, removal of invasive species, planting native tree and shrub species, installation of a split-rail fence and sign and placement of the buffer in a conservation easement. The report indicates that elimination of impacts over time would occur by preservation and maintenance operations. The report indicates that the loss of function is the reduction in square footage or lineal feet from the required 150 feet to 50 feet. The mitigation plan estimates that 50 shrubs and 12 trees would be installed within the mitigation site, which is the remaining buffer area.
34. City staff have recommended approval of the variance to reduce the buffer from Cemetery Creek subject to conditions set forth in the Staff Report, including retaining a building setback area of 10 feet from the edge of the 50-foot buffer, compliance with other requirements of the CAO and a CAP, installation of permanent signage and fencing, recording a permanent conservation easement, and a monitoring and maintenance plan to protect the habitat conservation area.
35. Public comments were received regarding the critical areas variance request. One comment from a neighboring property owner indicates that the banks of Cemetery Creek are unstable, threatening the foundations of neighboring residences, that it would be unwise to reduce the buffer at the natural curve in the creek bed on the subject property, that compounding the error and lack of sensitivity to the creek demonstrated when the other properties were platted and developed is not in the best interests of the neighborhood, the creek or the potential owner of the proposed home. Another comment states that the laws should be enforced in the spirit in which they were enacted, to protect a significant creek, that the Applicant purchased the property knowing that it was in a critical area, that the lot is smaller than the 10,000 square foot minimum and contains steep slopes so the Applicant should not expect to get a standard size home on the lot, that the Applicant could build a smaller home, that hazard tree removal will make it more likely that the slope will erode and undermine foundations of homes and adds to the risk of flooding, that a smaller footprint for the proposed residence is necessary to protect salmon and other animals, and that the minimum setback should be 75 feet, not 50 feet.
36. ReSources for Sustainable Communities commented that Cemetery Creek is a priority occurrence/mitigation area for coast resident cutthroat, that in 2012 Cemetery Creek had seven months when fecal coliform exceeded geomean standards and eight months when dissolved oxygen exceeded geomean standards, that development is directly linked to decreased water quality, which is a key factor in salmonid health. The comment also states that a proposed house can reduce the variance needed by decreasing the size of the home or creating a two-story home and eliminating the back yard. The comment states that removal of trees within the buffer would result in increased sunlight and decreased buffer services that regulate stream turbidity, temperature, dissolved oxygen, and nutrient and fecal coliform runoff, and that a disturbance from fallen trees and increased sunlight would also increase the susceptibility of invasive species establishment.
37. BMC 16.55.120 provides criteria for variances from CAO regulations. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria. These criteria are set forth in Exhibit L to the Staff Report and are incorporated herein by reference.
38. There are special circumstances peculiar to the property not applicable to other lands in the same district. This is the last undeveloped parcel in the area and was platted prior to adoption of the CAO. The property lies entirely within the regulated buffer area adjacent Cemetery Creek. These circumstances do not result from the actions of the Applicant.
39. Application of the full buffer requirement would deprive the Applicant of all reasonable economic uses permitted other properties in the vicinity in the same zone. The minimum variance necessary to provide the Applicant with reasonable economic use of the property is that necessary for the construction and use of a single-family residence that is consistent with current standards and compatible with the neighborhood.
40. Granting a variance for a reduced buffer is consistent with the development of other properties in the vicinity and will not confer any special privilege on the Applicant that is denied by the CAO to other lands under similar circumstances.
41. Granting the variance is consistent with the general purpose and intent of the CAO and will not have a significant adverse impact on the functions and values of the associated critical area, provided adequate mitigation for the reduced buffer area is performed, or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity.
42. Licensed professionals have determined that the proposal will not have a significant impact on the functions and values of the critical areas and have proposed a mitigation plan based on best available science to conserve and protect the habitat area. There are currently barriers to fish passage in the abutting stretch of Cemetery Creek. Placement of the remaining buffer in a conservation easement, fencing of the buffer area and signage will facilitate enhancement of anadromous fish habitat in the future.
43. Granting a variance is consistent with the Comprehensive Plan policies for development on existing lots already served by public infrastructure.
44. The site plan submitted by the Applicant in Exhibit D to the Staff Report indicates that it is not to scale. It appears to be based on the site plan included in the Merit Engineering report, which is to scale. The scale in the Merit Engineering report appears to show insufficient space for the proposed structure (shown on the Applicant's site plan as about 44 feet wide by about 45 feet deep), a 10-foot front yard, a 10-foot back yard as recommended by Aqua-Terr and City staff and shown on the Applicant's site plan, and a 50-foot buffer from the ordinary high water mark of the creek. The buffer shown in the Merit Engineering site plan is not 50 feet from the creek as measured by the scale shown on the site plan. A survey will be required to locate structural setbacks as required by this decision and the CAO. The proposed residence will need to be scaled down to fit the site and the buffers and setbacks required in this decision and the CAP.
45. Utilizing the scale on the site plan, it appears that the building envelope left after imposition of a 50-foot buffer from the creek, a 10-foot building setback from the buffer, five-foot side yard setbacks, and a 10-foot front yard setback is approximately 33 feet in depth by about 44 feet in width at the front setback line. A reasonable residence, consistent with current standards and other residences in the neighborhood, can be constructed within this building envelope.

II. CONCLUSIONS OF LAW
1. The criteria for a variance from front yard setback requirements have been satisfied. Reduction of the front yard setback will allow reasonable use of the property and facilitate a necessary buffer from Cemetery Creek for a single-family residence.
2. The criteria for a variance from the buffer requirements of the Critical Areas Ordinance have been satisfied. Reduction of the required buffer is necessary to allow reasonable economic use of the property with development subject to methods and mitigation in accordance with best available science to protect the functions and values of the critical areas.
3. Variances should be granted to allow reasonable use of the property, subject to the conditions set forth below.
4. 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
A variance is granted for the property located at 1108 Inverness Lane to reduce the front yard setback to 10 feet from the front property line for the construction of one single-family residence, subject to the following conditions:
1. Prior to construction the property lines shall be surveyed by a licensed surveyor.
2. Development on the property shall comply with all other applicable code requirements, except as provided in variances granted for the property, and shall be generally consistent with the plans, specifications and representations submitted in support of the proposal, except as modifications are required to comply with the terms of this Order, code requirements, or permit conditions, provided that the structure may be reduced in size and footprint.
A variance is granted for the property from the buffer requirement of BMC 16.55.500 to reduce the buffer to 50 feet from the ordinary high water mark of Cemetery Creek, and reduce the building setback to 10 feet from the habitat conservation buffer, subject to the following conditions:
1. Property lines and the ordinary high water mark (OHWM) (or top of bank if OHWM cannot be determined) of Cemetery Creek shall be surveyed and determined by licensed professionals. A site plan locating the proposed residence, building setbacks and buffers specified in this Order, consistent with the survey shall be submitted to the Planning and Community Development Department prior to issuance of a critical areas permit.
2. A minimum of 50 feet of habitat conservation buffer measured from the OHWM of Cemetery Creek shall be provided. This buffer shall not be averaged.
3. All structures shall be set back at least 10 feet from the edge of the habitat conservation buffer. Clearing within this 10 foot setback area shall be limited to that necessary for the construction or maintenance of and access to the residence, the safety and protection of inhabitants and property, and conservation of the riparian habitat. A clearing plan shall be submitted for review and approval of the Planning and Community Development Department prior to any ground disturbance within the setback area.
4. Permanent signage consistent with the requirements of BMC 16.55.230A shall be installed adjacent to the habitat conservation buffer. Signage shall also inform occupants of the property of clearing restrictions within the building setback area.
5. Permanent fencing consistent with the requirements of BMC 16.55.230B shall be installed adjacent to the habitat conservation buffer.
6. A permanent conservation easement, enforceable by the City and in a form approved by the Planning and Community Development Department, shall be granted by the property owner and recorded with the Whatcom County Auditor to protect the habitat conservation area and associated buffer prior to issuance of a building permit.
7. The mitigation plan submitted for the critical area permit shall include a monitoring and maintenance plan, including a contingency plan, to further protect the value and function of the habitat conservation area. The mitigation plan shall be subject to review and approval of the Planning and Community Development Department, which may impose additional mitigation requirements consistent with the CAO.
8. Development shall comply with recommendations contained in the Critical Area Reports, except as modifications are required to comply with other conditions of this Order, a critical area permit or code requirements.
9. Development and use of the property shall comply with all other requirements of the CAO and conditions of a critical area permit issued for the development.
10. Variances granted in this Order shall expire in accordance with BMC 21.10.260C.

ENTERED this 9th day of October 2013.
Bellingham Hearing Examiner
________________________________
Dawn Sturwold
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