Hearing Examiner #: HE-14-PL-025 (Setback Variance)
City Contact:Steve Sundin
Hearing Date: 06/25/2014
Description: Shoreline Conditional Use Permit and Variance request of Toma Podorean re 320 Sea Pines Road
Decision Date: 06/30/2014
Decision Summary:Approved with conditions
This matter came before the Bellingham Hearing Examiner for hearing on the 25th day of June 2014 on the application filed by Ali Taysi on behalf of Toma Podorean for a variance from front yard setback requirements to locate a single-family residence on property located at 320 Sea Pines Road in Bellingham Washington.
Testimony was received from Steve Sundin, Bellingham Planning and Community Development Department; Ali Taysi, AVT Planning & Consulting, Applicant's Representative; and Toma Podorean, 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. Ali Taysi, AVT Planning & Consulting, filed an application for a Variance from front yard setback requirements of BMC 20.30.040, on behalf of Toma Podorean, to construct a single-family residence on property owned by Mr. Podorean located at 320 Sea Pines Road in Bellingham.
2. The property is legally described as Lot B, Sea Pines Lot Line Adjustment (the subject property). It is located in the Briza subdivision, which was approved in 1986, southwest of Chuckanut Drive, south of View Crest Road, and north of Chuckanut Bay, near the end of the Sea Pines Road cul-de-sac.
3. The subject property is located in Area 7 of the Edgemoor Neighborhood and is designated Residential Single, Detached, 20,000 square feet minimum detached lot size, or one lot per 20,000 square feet overall average density. Special conditions include clearing and view buffering from adjacent residential.
4. The property is located in the Natural shoreline designation, Marine Reach 19, Chuckanut Bay, in the City's Shoreline Master Program (SMP) BMC 22.03.030A(3).
5. The SMP was approved in February 2013 and is codified as BMC Title 22. BMC 22.03.030A(4) provides that residential development on shorelines designated Natural requires conditional use permit approval.
6. Prior to adoption of the current SMP, single-family residential development on the Chuckanut Bay shoreline was allowed without a conditional use permit. All other lots within the Plat of Briza within shoreline jurisdiction were developed prior to 2013. The subject property is the last undeveloped lot in the Briza Plat on the shoreline.
7. The subject property contains 14,900 square feet of area. It is approximately 200 feet in depth extending from Sea Pines Road on the north to Chuckanut Bay on the south, and approximately 75 feet in width. The property slopes steeply from Sea Pines Road down to Chuckanut Bay. A rock band is located at approximately 75 feet from Sea Pines Rd., forming a steep bluff, and separating the upper, developable portion of the property from the lower, forested, steep slope extending to the water and covering approximately two-thirds of the site (herein after "rock band").
8. The subject property lies entirely within 200 feet of the ordinary high water mark (OHWM) of Chuckanut Bay.
9. The entire property is located within the 200-foot buffer specified in the SMP for a fish and wildlife habitat conservation area (FWHCA). It is also within a landslide hazard area as the middle portion of the site has a slope greater than 40%. The SMP specified buffer for a landslide hazard area is 50 feet from the top and toe of the slope. The required buffer, pursuant to the SMP is the buffer that is more protective, so the property is subject to a 200-foot buffer according to the SMP.
10. Chuckanut Bay is considered a pocket estuary containing intertidal areas and eel grass beds. It is designated a priority habitat by the Washington Department of Fish and Wildlife. Puget Sound Chinook and Steelhead salmon utilize the priority habitat areas for migration and foraging. They are also listed priority and candidate species, and "threatened" under the Endangered Species Act.
11. The proposal includes construction of a single-family residence with pervious deck, attached garage and driveway with a total footprint of approximately 3,500 square feet. The residence would be two stories with a daylight basement, extending no higher than 35 feet from average grade. A 750 square foot elevated and open deck would be located on the water side of the residence.
12. Standard five-foot setbacks would be provided on each side of the structure. A variance from front yard setback requirements has been requested in order to locate the structure approximately 15 feet from the property line abutting Sea Pines Road instead of the required 20 feet (50 feet from the centerline of Sea Pines Road). Approval of this variance would allow the structure to be located further landward of the OHWM.
13. The structure would be located on the northerly 75 feet of the subject property, to the north of the rock band. The house would be approximately even with the neighboring house located to the west and landward of the house on the property abutting on the east. The area south of the rock band would be left in its natural state and enhanced with native plantings to improve habitat function. No work would occur within the water.
14. A Shoreline Variance is required to locate any residential structures on the property as the entire property is located within the 200-foot buffer from Chuckanut Bay OHWM. A Shoreline Conditional Use Permit is required to allow a residential use within the Natural Marine shoreline environment. The shoreline variance and conditional use permit are addressed separately.
15. Sea Pines Road is fully improved within a 60-foot wide right-of-way. The property is served by City water, sewer and stormwater utilities and private power, cable, and telephone utilities.
16. An existing stormwater main in Sea Pines Road would collect the stormwater runoff from roof drains and other conveyances. Stormwater collection and conveyance would be required to comply with the City's Stormwater Management regulations set forth in BMC 15.42.
17. A Critical Areas/Shoreline Assessment was prepared for the proposal by Miller Environmental Services, LLC, dated April 14, 2014 and supplemented June 12, 2014. These reports are set forth in Exhibit E
to the Staff Report, and are incorporated herein by reference. The reports conclude that impact from the proposed construction include the loss of forested habitat within the shoreline and habitat conservation area buffer, including the removal of 16 trees greater than six inches in diameter at breast height. The removed trees include Douglas fir, Western red cedar, red alder, and bitter cherry. The proposal includes replacement of these trees at a two-to-one ratio in undeveloped portions of the parcel. Replacement species would include Western red cedar and/or Western hemlock. The report also concludes that the placement of the residence will not significantly affect the use of the southern half of the property as a component of the shoreline habitat corridor as it will be located along the slope in a similar position to the existing residences on either side, and light and noise effects will be less pronounced on the lower portion of the buffer and habitat corridor due to the steep slopes and elevation gradient. A lower ratio of replacement trees and shrubs is proposed due to the existing forested nature of the property and mitigation area which will remain undisturbed. Replacement plantings will be subject to a five-year maintenance and monitoring period with a financial surety of 150% of the cost to ensure a survival rate of 100% for trees and 85% for other vegetation.
18. A Geological Hazard/Critical Areas Evaluation was prepared for the property by Geo Test Services, Inc. dated April 3, 2014 (geological hazard report). This report is Exhibit F
to the Staff Report and is incorporated herein by reference. This report concludes that construction of the proposed residence is feasible and will not increase the threat of the geological hazard to adjacent properties beyond predevelopment conditions; will not adversely impact other critical areas; is designed so that the hazard to the project is eliminated or mitigated to a level equal to or less than predevelopment conditions; and is certified as safe as designed and under anticipated conditions by a qualified engineer or geologist, licensed in the State of Washington. It also concludes that the proposal will not increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions; will not decrease slope stability on adjacent properties; and will not adversely impact other critical areas.
19. The geological hazard report states that a deep-seated rotational type failure affecting the site of the proposed improvements or the existing residence on the slope above the proposed improvements is unlikely to occur due to the apparent competent sandstone (Chuckanut Formation) and dense soil underlying the project area. The site assessment by Geo Test did not observe obvious visual indications of slope instability or signs of extensive soil creep. The report concludes that landslides are unlikely to occur and affect the proposed improvements.
20. The geological hazard report also concludes that, because the proposed residence will be cut into the hillside a buffer and minimum building setback from the top of the slope is not applicable for the site, per BMC 16.55.430.
21. The geological hazard report includes recommendations to prevent excessive erosion, including incorporation of Best Management Practices (BMPs) for erosion control in accordance with current City of Bellingham codes and standards; appropriate silt fencing be incorporated into the construction plan; on-site BMPs be implemented during construction; areas of native vegetation left in place could be enhanced by adding additional native plant species and/or other vegetation enhancements; planting additional brush and vegetation within the subject site and in areas disturbed by excavation to help maintain slope stability; no dumping of yard waste onto the face of site slopes; directing and discharging all collected stormwater to an appropriate collection system; and revegetation/protection of all areas disturbed by construction practices.
22. The proposal includes cantilevering the deck on the south side of the structure over a portion of the landslide hazard area, but the only proposed alteration to the landslide hazard area is the cutting of approximately six conifer trees ranging between seven and 24 inches in diameter. The base of the trunks and root systems will remain in place.
23. The City's 2003 Wildlife Habitat Assessment performed by Nahkeeta Northwest Wildlife Services, Inc. found that the intact and properly functioning habitat corridors within this area are located along the shoreline edge of Chuckanut Bay and within the large undeveloped tracts to the west of the site. These habitat areas that are rated "good" according to the assessment are shown on the map that is Exhibit D
to the Staff Report, incorporated herein by reference.
24. City staff recommends approval of the front yard setback variance.
25. No public comment was received for this proposal.
26. Variance criteria are set forth in BMC 20.18.020. This section states as follows:
Variances can be granted by the hearing examiner if the applicant proves to the hearing examiner that the following criteria are satisfied:
A. 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 title 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
B. 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.
C. The subject property cannot be reasonably used under the regulations as written. [Ord. 2002-10-069 § 48; Ord. 9024, 1982]
27. There are special circumstances applicable to the subject property, including its location within the Natural, Marine Shoreline environment which imposes a 200-foot buffer from the OHWM of Chuckanut Bay, encompassing the entire property, the depth of the property in relation to the buffer requirements, and the creation of the lot prior to adoption of the regulations that severely restrict its use without variances. These circumstances were not the result of the owner's action. The strict application of the setback requirements would deprive the property of rights and privileges enjoyed by other property in the area under the same land use classification.
28. Granting the variance will not be unduly detrimental to the public welfare nor injurious to the property or improvements in the area. Allowing the structure to be moved to the north, into the front yard setback, will move it further from the sensitive habitat area and geological hazard area located to the south on the property. The northern portion of the property is more suitable for development. The proposed residence would be of similar size as the residences on either side and would be located more or less in line with the abutting residences. A variance allowing the residence to encroach within the front yard would not impact views toward Chuckanut Bay from abutting properties. Sea Pines Road is a cul-de-sac with a 60-foot right-of-way. The subject property is located near the bulb of the cul-de-sac. An encroachment of approximately five feet at the closest point would not have a detrimental impact on the use of the street.
29. The subject property cannot be reasonably used under the regulations as written. The property requires a variance from Shoreline regulations for any development to occur as it is located entirely within the required buffer from the OHWM of Chuckanut Bay. The variance from the front yard setback will allow a lesser encroachment into the shoreline buffer. The requested approximately five-foot encroachment into the front yard for the garage portion of the structure allows reasonable use of the property and maintains a reasonable distance and slope for the driveway.
30. A variance was previously granted, in 1992, for the property at 316 Sea Pines Road allowing development to encroach to within five feet of the front property line, or a 15-foot reduction in the front yard setback. The Applicant's request is for a five-foot reduction in the setback.
II. CONCLUSIONS OF LAW
1. The proposal satisfies the variance criteria.
2. A variance from the front yard setback requirements 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 from the front yard setback requirement for the subject property, subject to the following conditions:
1. The development of a single-family residence on the subject property may extend into the required front yard a distance of up to five feet, leaving a front yard setback of 45 feet from the centerline of Sea Pines Road, or 15 feet from the front property line; provided that the setback may be reduced further if necessary to comply with a decision of the Washington State Department of Ecology on the Shoreline Variance (SHR2014-00025). Any modification shall not exceed encroachment of more than 10 feet into the front yard in order to allow for parking and maneuvering in the driveway without encroachment onto Sea Pines Road. Encroachment into the front yard setback no greater than that requested by the Applicant is preferred in order to allow for ease of construction and use of the driveway, due to the slope conditions of the property.
2. Development of the property shall be generally consistent with the materials and representations submitted in support of the proposal, subject to modification required to comply with the conditions herein and required for other permits and approvals, or to comply with applicable regulations.
3. The development shall comply with all other applicable regulations, or variances obtained.
4. The conditions set forth in the Shoreline Conditional Use Permit (SHR2014-00016) and the Shoreline Variance (SHR 2014-00025) are incorporated herein, subject to amendment by the Department of Ecology.
ENTERED this 30th
day of June 2014.
Bellingham Hearing Examiner