Hearing Examiner #: HE-13-PW-037
City Contact:Brent Baldwin
Hearing Date: 10/21/2013
Description: Public Works Variance request of Matthew Little re 40th Place
Decision Date: 11/04/2013
Decision Summary:Approved with conditions.
came before the Bellingham Hearing Examiner for hearing on the 21st
day of October 2013 on the application of Matthew Little for a variance from street and sewer main construction requirements of the Bellingham Municipal Code for property located on 40th
Place in Bellingham.
Testimony was received from Brent Baldwin, Bellingham Public Works Department; and Matthew Little, 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. Matthew Little applied for a variance from the requirements of the Bellingham Municipal Code for construction of a standard street and sewer main across the frontage of his property in the 1700 block of 40th
Place, and extending to the existing terminus of a minimum standard street and sewer main, in order to construct a single-family residence on the property.
2. The subject property is legally described as Lots 23 & 24, Block 2, Allen & Swartout Addition to Fairhaven. It is located on 40th
Place south of Donovan Avenue, in Area 5 of the Samish Neighborhood. The area is designated Residential Single, 20,000 square feet minimum detached lot size.
Place is a 30-foot wide remnant right-of-way. The 40th
Street arterial was realigned through the Samish Highlands subdivision, leaving a short section of right-of-way, now 40th
Place, unimproved, even though it abutted the Samish Highlands plat.
4. BMC 15.12.070 requires sewer main extensions at the time a property is developed when the property does not fully abut a sewer main or when an existing abutting main does not have sufficient capacity. A waiver of this requirement is permitted if the property is the last developable lot that can be served by a main extension. A septic tank is permitted if the property is more than 200 feet from an existing gravity sewer if approved by the Whatcom County Health Department.
5. BMC 13.08.030 requires construction of a minimum standard street across the frontage of a property connecting to an existing minimum standard street in order to obtain a building permit when the property does not abut on an existing street meeting minimum standards. BMC 13.08.050 allows a variance from this requirement if there are practical difficulties involved in constructing the street or if it would be detrimental to the interests of the neighborhood or city.
6. The Applicant proposes to construct a single-family residence on the subject property without constructing 40th
Place to minimum standard and to provide sewer service to the property with a side sewer within the 40th
Place right-of-way from the main located at Donovan Avenue and 40th
7. The properties located north of the subject property front on Donovan Avenue and are developed with residences. The Applicant's property is the first lot on 40th
Place to the south of Donovan that is not developed.
8. Property located further to the south of the Applicant's property was developed several years ago after receiving a variance from the street construction requirement allowing construction of a driveway within the 40th
Place right-of-way to Fire Code standards in lieu of standard street construction. At that time the owners of the other properties that would have abutted a street section indicated no plans to develop their properties. A financial participation agreement for future construction of 40th
Place was required as a condition of the variance.
9. A driveway was constructed within the 40th
Place right-of-way. This driveway does abut the Applicant's property.
10. The Public Works Department indicates that it does not believe that a sewer main extension can be constructed from Donovan Avenue to the subject property in 40th
Place that meets minimum standards for slope and depth of the pipe. The Department indicates that a sewer main should be extended from Donovan at 38th
Street to serve this property and provide for future development of other properties. This main extension would require the installation of approximately 800 linear feet of sewer main.
11. A previous variance was granted for property located on 40th
Street north of Donovan Avenue to connect to the sewer main in Donovan Avenue through a side service within the 40th
Street right-of-way in order to allow that property to eliminate its septic system.
12. The owners of the other properties on 40th
Place and along 38th
Street have expressed their support for the Applicant's variance requests in order to maintain the wooded environment that currently exists in the area and to preserve the rural and natural characteristics of the vicinity.
Place terminates at Cowgill Avenue. The property previously granted a variance from street construction requirements is located at 40th
Place and Cowgill Avenue, at the terminus of the right-of-way. Only one other property is located between that property and the Applicant's property. It is likely that 40th
Place will contain no more than three residences.
14. The Public Works Department recommends denial of the variances due to the fact that there are other properties that could be serviced by extensions of the sewer main from 38th
Street and Donovan Avenue and the roadway within 40th
15. The subject property is located more than 200 feet from the existing gravity sewer Donovan Avenue at 38th
16. Allowing the Applicant to connect to the sewer at 40th
Street and Donovan Avenue would avoid the detrimental effects of a septic system to serve the property.
17. Requiring additional construction of street and sewer improvements would increase impervious surfacing and result in clearing of existing forested land that would be detrimental to the interests of the neighborhood.
II. CONCLUSIONS OF LAW
1. Allowing the Applicant to connect to the nearest sewer main provides greater public benefit than allowing the property to be served by a septic tank as it is located more than 200 feet from an existing gravity main in Donovan Avenue at 38th
2. There are unusual circumstances applicable to the subject property, including topography, previous development patterns and neighborhood environment, that result in practical difficulties in the construction and location of street and sewer improvements.
3. Variances should be granted from the street and sewer construction requirements subject to the conditions set forth below.
Variances are granted for the subject property from the requirements to construct street and sewer main improvements in order to obtain a building permit, subject to the following conditions:
1. These variances are for the construction of one single-family residence on the subject property.
2. Improvements within the 40th
Place right-of-way shall satisfy Fire Code and Fire Department standards for access.
3. The property shall connect to a city sewer main. Location, design and installation of a sewer side service within the 40th
Place right-of-way shall be subject to review and approval of the Public Works Department and shall conform to Department standards.
4. The Applicant and his successors shall be responsible for the maintenance of the driveway and side sewer, at his/their expense, unless the Public Works Department accepts the roadway and/or sewer for maintenance. The Public Works Director may require a right-of-way use permit for the construction and maintenance of the driveway and side sewer.
5. The Applicant shall execute an agreement, reviewed and approved by the Office of the City Attorney, to financially participate, on a pro-rata basis, in any future improvement, up to minimum standard, to 40th
Place between Donovan Avenue and the southerly property line of the Applicant's property.
6. This variance shall expire two years from this date unless construction has begun or a valid building permit for construction is in force.
ENTERED this 4th
day of November 2013.
Bellingham Hearing Examiner