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Conditional Use Permit request of Tim and Holly Buskirk re 507 16th Street

Hearing Examiner #: HE-14-PL-027
Planning #:CUP2014-00005
Incident #:
Filing Date:05/30/2014
City Contact:Lindsay Kershner
Hearing Date: 07/09/2014
Description: Conditional Use Permit request of Tim and Holly Buskirk re 507 16th Street
Decision Date: 07/23/2014
Decision Summary:Approved with conditions

The requested conditional use permit to construct a 1,134 square foot over-sized accessory building on a single-family residential parcel at 507 -- 16th Street, Bellingham, Washington is APPROVED subject to conditions.

David Verret, on behalf of Tom and Holly Buskirk (Applicants), requested approval of a conditional use permit to construct a 1,134 square foot over-sized accessory building on a single-family residential parcel at 507 -- 16th Street, Bellingham, Washington.

Hearing Date:
The Bellingham Hearing Examiner conducted an open record hearing on the request on July 9, 2014.

At the hearing the following individuals presented testimony under oath:
    Lindsay Kershner, City of Bellingham Planner
    David Verret, Applicant's Representative
    Thomas Buskirk, Applicant
At the open record hearing, the following exhibits were admitted in the record:

Exhibit 1 Staff Report to the Examiner, dated July 9, 2014 with the following attachments:
          A. Bellingham Municipal Code 20.16.010
          B. Site Location and Aerial Photograph
          C. Bellingham Municipal Code 20.30.100 Accessory Buildings and Uses
          D. E-mail from Todd Sherman dated 6/13/14
            D.1. Waiver Request Form for Neighborhood Meeting and Letters of Support
          E. Conditional Use Permit Application and Plans (5 sheets including elevations)
            E.1. Site Survey
            E.2. Certification of Existing Grade for Determining Building height
          F. Oversized Accessory Buildings List
          G. LIDAR Elevations
Exhibit 2 Notice of Public Hearing, issued June 27, 2014

Upon consideration of the testimony and exhibits submitted, the Hearing Examiner enters the following findings and conclusions:

1. The Applicants requested approval of a conditional use permit to construct a 1,134 square foot oversized accessory building on a single-family residential parcel at 507 16th Street, Bellingham, Washington. The legal description of the subject property is Lots 20-21 & South 1/2 of Lot 22, Block 47, Bellingham Bay Land Company's First Add to Fairhaven, Bellingham, Whatcom County, WA.; also known as Parcel # 370201 307470. Exhibit 1. Exhibit 1; Exhibit 1, Attachment E.
    2. The subject property is located in Area 4A of the South Hill Neighborhood with a Residential Single Detached zoning designation, which requires 7,200 square feet per unit. Surrounding development consists of single-family residences and appurtenances on similar parcels. This area of the South Hill Neighborhood has views of Bellingham Bay. Exhibit 1; BMC 20.00.180.
      3. Topographically, the lot gradually slopes from east to west, with the grade becoming steeper at the 16th Street right-of-way. The approximately 7,148.5-square foot site contains an existing two-story single-family residence and the subject detached accessory building, currently under construction. Exhibit 1.
        4. The approved accessory building permit (CMB2012-00101) authorized construction of a two-level building built into the slope along the alley. It consists of a two-car, alley access garage (528 square feet) at the alley level and a lower level comprised of a 192-square foot area with a habitable ceiling height and 336 square feet with a ceiling height of less than six feet to be used for storage. Because the City's definition of floor area for detached accessory buildings does not include areas with a ceiling height of less than six feet, no conditional use permit was required for the original building permit. The approved structure replaces a previously existing detached two-car garage and would provide enclosed parking for two cars on the upper level. Exhibit 1.
          5. Since the previous approval, the Applicants have decided to raise the ceiling height on the 336-square foot area to a habitable height, resulting in a total proposed accessory structure of 1,134 square feet. The purpose of the request is to allow additional living area on-site to care for a disabled family member. Exhibit 1; Exhibit 1, Attachment E. Per BMC 20.30.100.B.2, accessory buildings may be used for human habitation by members of the resident family.
            6. The Bellingham Municipal Code (BMC) restricts accessory structures to 800 square feet unless approved through the conditional use permit process. BMC 20.30.100.A.2. The Applicants submitted the instant conditional use permit application to allow the oversized structure on May 15, 2014 with detailed site plans and elevations. Exhibit 1, Attachment E.

            7. The proposal would not change the portion of the building facing the alley, but would raise the ceiling height on 336 square feet of the lower level to create a bedroom and bathroom for a family member. No cooking facilities are proposed. The elevations submitted depict a design consistent with the surrounding single-family development. Existing stormwater facilities would be improved to promote retention of runoff on-site for infiltration. There would be no impacts to the right-of-way during or after construction. No commercial activities are proposed and no increase in vehicle trips is anticipated to result from the proposal. Exhibit 1, Attachment E; Verret Testimony.
              8. Pursuant to BMC 20.30.100.B.1.a, accessory buildings may not exceed one story or 12 feet in height under either height definition. The proposed two level building would be consistent with code based on height definition number two, because it would measure 10 feet, four inches tall. Exhibit 1; BMC 20.08.020.B.
                9. Planning Staff indicated that the subject property has adequate room to accommodate the existing residence and the proposed 24 by 22-foot accessory building footprint. After review of the plans, Staff submitted that no portion of the proposed building would exceed the maximum height allowed and that the building would satisfy yard setbacks required in accordance with BMC 20.30 and all applicable code requirements in the Residential Single Development Chapter of the BMC. Staff asserted that approval would not impact existing public facilities and utilities and would be consistent with the intent of the Residential Single General Use Type, which is primarily intended to accommodate low density single-family residential development. Exhibit 1; Kershner Testimony.
                  10. The addition of cooking facilities would convert the proposed structure into an accessory dwelling unit, which is prohibited. The Bellingham Municipal Code defines accessory dwelling unit as a second, subordinate dwelling unit for use as a complete, independent dwelling with permanent provisions for living, sleeping, eating, cooking, and sanitation. BMC 20.08.020. To ensure that the structure is not converted into a dwelling unit with provisions for cooking, Planning Staff recommended that a covenant restricting the use of the property to one single-family dwelling with no accessory dwelling unit be recorded with the Whatcom County Auditor prior to building permit issuance. Exhibit 1; Kershner Testimony.
                    11. The South Hill Neighborhood Plan promotes protection of the existing highly valued neighborhood views. Some views from the residences along 17th Street are currently blocked by vegetation on the subject property and on parcels further west. The peak of the proposed accessory building would be at approximately 326 feet, nine-inches above sea level. Even with its level two level design, a review of the plan compared with City LIDAR information shows the proposed detached accessory building would not block the existing views of the developed properties to the east nor block the view of Bellingham Bay for 500 17th Street. Exhibit 1; Exhibit 1, Attachment G.
                      12. The Applicants notified three abutting neighbors of the proposal. All three neighbors replied in support of the conditional use permit. The required pre-application neighborhood meeting was waived. Exhibit 1, Attachment D.1.
                        13. The requested oversized accessory structure would be the second permitted oversized accessory building in the neighborhood. The other oversized accessory building is a 1,350-square foot garage at 480 S. State Street. There have been 58 oversized buildings approved in Bellingham since 1989. Exhibit 1, Attachment F.
                          14. In response to the notice of application issued on June 11, 2014, Planning Staff received one comment expressing "100% support" of the proposed CUP. Exhibit 1, Attachment D. Notice of public hearing was issued on June 27, 2014. Exhibit 2. No members of the public appeared to provide testimony at hearing.
                            15. Planning Staff recommended approval, asserting that the proposed accessory building would: promote the health, safety, and general welfare of the community; meet the purpose and intent of the Residential Single land use zone; be compatible with the surrounding single family residences; and not be detrimental to the neighborhood. Exhibit 1; Kershner Testimony.

                            The Hearing Examiner is granted authority to hold hearings and make decisions on conditional use permit applications pursuant to BMC 20.16.010.D.

                            Criteria for Review
                            Pursuant to Bellingham Municipal Code 20.16.010.B, conditional use permits for conditional uses allowed in the general use type may be granted by the hearing examiner if the record demonstrates the following:
                                1. The proposed use will promote the health, safety, and general welfare of the community.
                                2. The proposed use will satisfy the purpose and intent of the general use type in which it is located.
                                3. The proposed use will not be detrimental to the surrounding neighborhood.

                            Pursuant to BMC 20.16.010.C, in applying the standards set forth in subsection B(above), the hearing examiner shall consider the following factors as to whether the proposed use will:
                              1. Be harmonious with the general policies and specific objectives of the comprehensive plan.
                              2. Enable the continued orderly and reasonable use of adjacent properties by providing a means for expansion of public roads, utilities, and services.
                              3. Be designed so as to be compatible with the essential character of the neighborhood.
                              4. Be adequately served by public facilities and utilities including drainage provisions.
                              5. Not create excessive vehicular congestion on neighborhood collector or residential access streets.
                              6. Not create a hazard to life, limb, or property resulting from the proposed use, or by the structures used therefor, or by the inaccessibility of the property or structures thereon.
                              7. Not create influences substantially detrimental to neighboring uses. “Influences” shall include, but not necessarily be limited to: noise, odor, smoke, light, electrical interference, and/or mechanical vibrations.
                              8. Not result in the destruction, loss, or damage to any natural, scenic, or historic feature of major consequence.

                            Conclusions Based on Findings:
                            1. The proposal promotes the health, safety, and general welfare of the community. The oversized accessory structure would allow additional living space on-site for residents of the existing household in a manner that would be consistent with existing on and off-site residential development. The design of the structure has minimized interruption to views of Bellingham Bay from surrounding properties by building into the slope. The record contains no evidence of harm to natural, scenic, or historic features of consequence, nor of possible hazard to persons or property. Findings 5, 6, 7, 9, 11, 12, 14, and 15.

                            2. With conditions, the proposal satisfies the purpose and intent of the general use type in which it is located. Oversized accessory structures are allowed in the Residential Single Detached zone by conditional use review. As proposed, the structure would comply with the use, height, and setback standards applicable to the underlying zone. Findings 6, 7, 8, 9, and 10.

                            3. The proposal would not be detrimental to the surrounding neighborhood. The proposed structure has been designed to fit into the subject property topographically and area-wise. It would not tower over the existing residences or block views. Its design is intentionally similar to existing residences in the area. There is no evidence that it would result in noise, odor, smoke, light, electrical interference, and/or mechanical vibrations beyond those associated with typical single family development. No new traffic is anticipated. In complying with setbacks and height restrictions, the structure would not adversely affect access to any existing structures, utilities, or the right-of-way. Findings 7, 8, 9, 11, 12, 13, 14, and 15.

                            Based upon the preceding findings and conclusions, the requested conditional use permit to construct a 1,134-square foot over-sized accessory building on a single-family residential parcel at 507 16th Street, Bellingham, Washington is APPROVED subject to the following conditions:

                            1. The accessory structure shall not exceed 1,134 square feet in floor area.
                              2. The design, location, construction and use of the proposed structure shall be substantially consistent with the plans, drawings, representations, and other materials submitted in support of the application, except for such modifications as may be required to comply with the conditions of building permit approval.

                              3. New construction shall comply with all requirements of the Bellingham Municipal Code, including but not limited to Title 20, building codes, and stormwater regulations.

                              4. Use of the structure shall be limited to the family residing in the main building on the property. No business or commercial use of the accessory building shall be allowed.
                                5. No cooking facilities are authorized in the structure.

                                6. A covenant that restricts the use of the property to a single-family residence without an accessory dwelling unit shall be recorded with the Whatcom County Auditor's office.
                                  7. The Applicant shall submit a revised building permit.

                                  DECIDED July 23, 2014.
                                  Bellingham Hearing Examiner
                                  Sharon A. Rice, Pro Tem