Hearing Examiner #: HE-14-PW-001
City Contact:Brent Baldwin
Hearing Date: 02/12/2014
Description: Public Works Variance request of Brent and Lynzi Cowden re Orleans Street
Decision Date: 02/26/2014
Decision Summary:Approved with conditions
This matter came before the Bellingham Hearing Examiner for hearing on the 12th day of February 2014 on the application filed on behalf of Brent and Lynzi Cowden for a variance from street frontage requirements for property located on Orleans Street south of Whatcom Street.
Testimony was received from Brent Baldwin, Bellingham Public Works Department; Jules Manos, Applicant's Representative; Brent Cowden, Applicant; Gordon Longanecker, 1301 Whatcom Street; June Vigor, 1333 Whatcom Street; Melissa Nyhus, 1160 Nevada Street; and Russell Jaffe, 1351 Whatcom Street.
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. Jules Manos filed an application on behalf of Brent and Lynzi Cowden for a variance from street frontage requirements for property located on Orleans Street south of Whatcom Street.
2. The subject property is legally described as the south 30 feet of Lot 29, Block 17, Cedar Addition to New Whatcom, Whatcom County Auditor parcel number 380332 135419. It is located in Area 16 of the Puget Neighborhood and is designated Residential Single, 8,500 square feet minimum detached lot size.
3. The property received a legal lot determination from the Bellingham Planning and Community Development Department on December 12, 2005. This determination indicated that the property was a legal building lot despite its substandard size of approximately 3,360 square feet.
4. The property fronts on vacated Orleans Street. Orleans Street abutting the property was vacated in 1930. The vacated right-of-way is currently a private road accessing the Pacific Woods Condominium development. The condominium development includes all of the vacated right-of-way and the property to the east of vacated Orleans Street and south of vacated Whatcom Street, extending east to Pacific Street and one-half block west of Puget Street, and south approximately to the line between Lots 22 and 21 of Block 17 of the Cedar Addition to New Whatcom.
5. The condominium development is gated at the entrance on Whatcom Street. The two existing residences located just north of the subject property are accessed by the private road.
6. The Applicants have asked the condominium association to allow them to join the association and obtain access to their property through the private gate and road. This request was denied by the association.
7. The subject property also abuts an alley to the west. This alley runs north to Whatcom Street, which has not been vacated to the west of Orleans Street.
8. The Applicants request a variance from the provisions of the Bellingham Municipal Code to allow them to obtain access to the property from the alley to Whatcom St. instead of from a minimum standard street. They propose to construct the alley for approximately 150 feet with a 12-foot wide concrete surface.
9. The alley is currently unimproved. It contains structures, including a shed and fences, placed in the alley by abutting property owners.
10. City staff has recommended approval of the variance subject to construction of the alley with a 12-foot wide concrete surface in accordance with a Public Facilities Construction Agreement, and working with abutting property owners to relocate/reconstruct existing structures.
11. Public comment was received from neighbors expressing concerns for the compatibility of the proposed residence, drainage, impact on structures and features, including a mature Chestnut tree, located in the alley, utility access, and loss of privacy.
12. Vacation of the Orleans Street right-of-way, leaving the subject property without legal frontage on a street, is an unusual circumstance of the property which makes compliance with Bellingham Municipal Code requirements for frontage and construction of a minimum standard street abutting the property impossible. The subject property lacks existing frontage and it is unable to dedicate property for a standard street extending to an existing street.
13. Without a variance the property would be rendered unusable for residential development.
14. The alley right-of-way currently exists and may be used for vehicular access to the property, with or without a variance, subject to improvement in accordance with a Public Facilities Construction Agreement.
15. Prior to development the property will be required to obtain access to utilities.
II. CONCLUSIONS OF LAW
1. Due to the vacation of Orleans Street abutting the property, which removed the property's access to a street, a variance from the provisions of the Bellingham Municipal Code requiring frontage on and construction of a minimum standard street prior to issuance of a building permit should be granted, subject to the conditions set forth below.
2. The criteria for issuance of a variance from street frontage and construction requirements have been satisfied.
3. Issues raised regarding adverse possession, prescriptive easements, utility access, and property encroachments are outside the scope of this proceeding.
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.
A variance from street frontage and construction requirements of the Bellingham Municipal Code is granted to allow the construction of one single-family residence on the subject property, subject to the following conditions:
1. If access can be obtained through agreement or easement or prescriptive right, if one exists or can be obtained, from the private road abutting the property the proposed single-family residence on the property may use that access without construction of the alley.
2. If access from the private road is not available the property shall be accessed from the alley to Whatcom Street, subject to construction of the alley with a minimum of 12 feet of hard surfacing, in accordance with a Public Facilities Construction Agreement, or other agreement as specified by the Public Works Department. The design, location and specifications for construction of the alley shall be subject to review and approval of the Public Works and Fire Departments. If the Public Works Department declines to accept maintenance responsibility for the alley improvements the Applicant shall be responsible for maintenance. The Public Works Department may require a right-of-way use permit subject to such conditions as it deems necessary.
3. The Applicants shall work with other property owners abutting the alley to relocate or replace the existing shed and fencing, if feasible.
4. If feasible the alley construction should attempt to avoid removal of the Chestnut tree.
5. The development shall comply with all other requirements of the Bellingham Municipal Code, or obtain variance(s).
ENTERED this 26th
day of February 2014.
Bellingham Hearing Examiner