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Public Works Variance request of Mark and Judy Biondi re 800 Block of Bennett Avenue

Hearing Examiner #: HE-13-PW-025
Planning #:VAR2013-00019
Incident #:
Filing Date:07/12/2013
City Contact:Brent Baldwin
Hearing Date: 08/09/2013
Description: Public Works Variance request of Mark and Judy Biondi re 800 Block of Bennett Avenue
Decision Date: 08/23/2013
Decision Summary:Approved with conditions.

This matter came before the Bellingham Hearing Examiner for hearing on the 9th day of August, 2013 on the application of Mark and Judy Biondi for a variance from street construction requirements of the Bellingham Municipal Code for the construction of a single family residence on property located in the 800 block of Bennett Avenue in Bellingham.
Testimony was received from Brent Baldwin, Bellingham Public Works Department; Larry Stoner and Jason Stoner, Applicant's representatives; Heather Wolf, Attorney for Marc Davis; Alan Stein, 1808 Taylor Avenue; Charles Bird, 903 19th Street, Quenby Peterson, 809 Highland Drive; Marc Davis, 807 19th Street; Brian Griffin, 1801 Taylor Avenue; John Mackenzie and Gae Mackenzie, 803 Highland Drive.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List.

1. Mark and Judy Biondi applied for a variance from the street construction requirements of BMC 13.08.030 for property located on Bennett Avenue in the block between 19th and 20th Streets.
2. The subject property is located in Area 4D of the South Hill Neighborhood and Area 1A of the Happy Valley Neighborhood. The dividing line between the two Neighborhood bisects the property. The property is legally described as Lots 5 and 6, Block 14, together with the vacated southerly 20 feet of Bennett Avenue abutting, Lysle's First Addition to Fairhaven. Lot 5 is located in the Happy Valley Neighborhood and is designated Residential, Multi, Multiple, Planned. Lot 6 is located in the South Hill Neighborhood and is designated Residential Single, 7,200 square feet minimum detached lot size.
3. The subject property is approximately 6,000 square feet in area with dimensions of 50 feet in width and 120 feet in depth.
4. A legal lot determination was issued for the property August 25, 2006. The determination indicates that Lots 5 and 6 are required to be consolidated to constitute a single buildable parcel, and that as consolidated they do constitute a legal buildable lot for one single-family residence.
5. The property is located in the center of the block between 19th and 20th Streets. To the south is a steep slope and a multi-family development. To the north is undeveloped land which is owned and used in conjunction with the property to the northwest, at 807 19th Street. To the west is an alley which extends between 19th and 20th Streets and to the west to Taylor Street. To the southwest is a multi-family development. To the east is Lowell Park Open Space.
6. Bennett Avenue is a 60-foot wide undeveloped right-of-way which abuts the Lowell Park Open Space.
7. 20th Street is developed to Bennett Avenue. A steep slope extends from 20th Street to the subject property within the Bennett Avenue right-of-way.
8. 19th Street is developed to front 807 19th Street, approximately to the alley right-of-way. A footpath is located in the 19th Street right-of-way that leads to the Lowell Park Open Space.
9. Properties abutting Bennett Avenue in the block to the north of the subject site are accessed from Highland Drive.
10. Taylor Avenue to the west of the site is on a steep slope. The Taylor Avenue stairs are located within this right-of-way.
11. BMC 13.08.030 requires that a minimum standard street must be constructed along the frontage of property for which a building permit is sought, connecting to another minimum standard, or better, street, prior to issuance of the building permit. BMC 13.08.050 establishes criteria for a variance from this requirement.
12. The Applicants proposed to construct a driveway for access to their property, in lieu of the minimum standard street requirement. Without a variance the Applicants would be required to extend a minimum standard street, 20 feet of pavement with four feet wide gravel shoulders, within the Bennett Avenue right-of-way from either 20th Street or 19th Street, extending from the edge of the existing street improvements to the far edge of their property.
13. The Applicants proposed to construct a driveway within the alley right-of-way between 19th Street and the northern portion of their property.
14. The alley is undeveloped but is currently used by the owners of the property abutting the alley on both sides as a garden and landscaped area.
15. After substantial public comment regarding the proposal the Applicants amended their variance request to propose driveway access from 19th Street and the Bennett Avenue right-of-way to the northerly portion of their property.
16. The Public Works Department supports the Applicants' request for a variance, but did not express support for the original proposal to construct a driveway in the alley. The Department approved the Applicants' request to determine that the property would be the "last lot served" by water and sewer mains, relieving the property of requirements to extend water and sewer mains across the full frontage of the property, as extension of those mains would not serve any other properties. The Department indicated that granting the variance to relieve the Applicants of the requirement to construct Bennett Avenue would not adversely affect other vacant parcels.
17. The only other property that could be served by the construction of Bennett Avenue is the property to the north, owned by the owners of the property at 807 19th Street. That property owner did not oppose the variance request except to the extent that the proposed driveway would be constructed within the alley, thereby bisecting their landscaped yard. That property also has access to 19th Street.
18. A great deal of public comment was received. Most of the public comment objected to the proposed use of the alley for a driveway. Other comments expressed concerns that development in Bennett Avenue would adversely impact the Lowell Park Open Space. Some comments suggested that the Applicants could construct access to their property from 20th Street in the Bennett Avenue right-of-way.
19. The steep slope on Bennett Avenue between the subject property and 20th Street is a geological hazard critical area, subject to restrictions contained in the City's critical areas ordinance. Critical areas regulations require avoidance of impacts when there are feasible alternatives.
20. Without a variance the Applicants, or their successors, would be required to construct 19th Street to Bennett Avenue and Bennett Avenue to the southerly property line of their property. The required construction would be 20 feet of pavement and four-foot gravel shoulders within the rights-of-way. The Applicants propose a 12-foot wide driveway. The driveway would have less impact on the adjacent Lowell Park Open Space than the minimum standard street.
21. BMC 13.08.050 provides that a variance may be granted from the minimum standard street construction requirement if practical difficulties arise in the design and construction of streets due to topographic or geological limitations or other problems inherent or peculiar to the area, or where it is found that imposition of the required street width would be detrimental to the interest of the neighborhood.
22. In this case, imposition of the required street width would be detrimental to the interests of the public and the neighborhood. It would detract from the Lowell Park Open Space immediately across Bennett Avenue from the subject property. The topographic features of the area, including the steep slopes to the south and west of the property, limit the alternatives for access to the property, including construction from the closest minimum standard street, 20th Street at its intersection with Bennett Avenue.
23. Granting the variance will not be detrimental to other properties in the area. It will reduce the impacts that would result from street construction for neighboring properties. The owners of the only other property that would be served by this section of 19th Street and Bennett Avenue have indicated that they do not oppose the variance provided the driveway access is through 19th Street and Bennett Avenue and not the alley.
1. The amended proposal satisfies the criteria for a variance from minimum standard street construction requirements.
2. A variance 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 from the street construction requirements of BMC 13.08.030 is granted for the subject property, Lots 5 and 6, Block 14, together with the vacated southerly 20 feet of Bennett Avenue abutting, Lysle's First Addition to Fairhaven, subject to the following conditions:
1. The variance is granted for the construction of one single-family residence and associated accessory buildings only.
2. Driveway access to the property shall be from 19th Street and Bennett Avenue. Design, location and construction of the driveway shall be subject to review and approval of the Public Works and Parks and Recreation Departments. The Public Works Department may require a right-of-way use permit for the driveway. The driveway shall be constructed and maintained at the property owner's expense.
3. Access to the property shall comply with Fire Codes. It shall be the responsibility of the property owner to obtain approval of the Fire Department for required access. Sprinklers may be required for the residence depending upon the type of access constructed.
4. Driveway width and surfaces shall be approved by the Department of Public Works. Gravel or crushed surfaces may be approved if they satisfy Fire Code requirements and it is determined that they will not adversely impact public street surfaces, Park property or pedestrian safety. The width shall be no less than 12 feet. Greater width may be required if necessary to comply with Fire Code or other access requirements.
5. The Parks and Recreation Department may require relocation or reconstruction of any park facilities that will be displaced or damaged by driveway construction including, but not limited to, trails, signage, bollards, landscaping, and other improvements and facilities.
6. The location and design of the driveway shall, to the extent feasible, avoid or minimize impacts to mature evergreens and other important or valuable trees, shrubs and plants specified by the Parks and Recreation Department.
7. Stormwater threshold requirements of BMC 15.42 shall be determined as though the variance from street construction requirements had not been granted.
8. This variance may be subject to the expiration provisions of BMC 21.10.

ENTERED this 23rd day of August 2013.
Bellingham Hearing Examiner
Dawn Sturwold