BEFORE THE HEARING EXAMINER FOR THE CITY OF MEDINA

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Findings, Conclusions, and Decision City of Medina Hearing Examiner

Charles River Properties, LLC Variance, No. P-20-015 Page 1 of 9

BEFORE THE HEARING EXAMINER FOR THE CITY OF MEDINA

In the Matter of the Application of ) No. P-20-015 )

Kwatee Stamm, on behalf of ) Charles River Properties, LLC

Charles River Properties, LLC ) Variance

)

) FINDINGS, CONCLUSIONS, For a Nonadministrative Variance ) AND DECISION

SUMMARY OF DECISION

The request for approval of a variance from the rear setback requirements of Medina Municipal Code (MMC) 20.22.030 from 30 feet to 11 feet to accommodate an outdoor living space,

including patio, grill, and seating, at 2230 Evergreen Point Road is GRANTED. Conditions are necessary to address specific impacts of the proposal.

SUMMARY OF RECORD

Hearing Date:

The City of Medina Hearing Examiner held an open record hearing on the request on May 27, 2020. Due to the COVID-19 pandemic, the hearing was held using remote technology. The record was left open until May 29, 2020, to assure that any member of the public having

difficulty connecting to the remote hearing would have the opportunity to provide comments on the request. No additional comments were received, and the record closed on May 29, 2020. Testimony:

The following individuals presented testimony under oath at the open record hearing: Stephanie Keyser, City Planning Manager

Kwatee Stamm, Applicant Representative Erin Riley, Property Owner

Exhibits:

The following exhibits were admitted into the record: 1. Staff Report, dated May 12, 2020

2. Owner’s Declaration of Agency, dated February 2, 2020

3. Statutory Warranty Deed (No. 20190110000336), recorded January 10, 2019 4. Notice Materials:

a. Notice of Complete Application, dated March 4, 2020

b. Declaration of Mailing, dated March 5, 2020; Notice of Application; Declaration of Posting, dated March 5, 2020; Notice of Application, issued March 5, 2020

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c. Declaration of Mailing, dated May 5, 2020; Notice of Hearing, issued May 6, 2020; The Seattle Times, receipt (No. 94327); Declaration of Posting, dated May 6, 2020

5. Email from Richard Yang to Stephanie Keyser, dated March 20, 2020 6. Non-Administrative Variance Application, dated March 2, 2020 7. Site Plan Drawings:

a. Site Plan W/Adjacent Property Info (Sheet No. L1.0)

b. Non-Administrative Variance Permit Site Plan (Sheet No. L1.1) c. Grading Plan (Sheet No L2.0)

d. Layout Plan (Sheet L3.0) 8. Architectural Plans:

a. Cover Sheet, received March 3, 2020

b. Site Plan (Sheet A.1), dated January 5, 2019

c. Maximum Building Height/Bldg Lot Coverage & Total Impervious Area Plans (Sheet A.2), dated January 5, 2019

d. First Floor Plan (Sheet No. 1), dated January 5, 2019 e. Second Floor Plan (Sheet No. 2), dated January 5, 2019 f. Exterior Elevations (Sheet No. 3), dated January 5, 2019 g. Exterior Elevations (Sheet No. 4), dated January 5, 2019 h. Footing Details (Sheet No. 5), dated January 5, 2019 i. Wall Sections (Sheet No. 6), dated January 5, 2019

j. Wall Sections & Details (Sheet No. 7), dated January 5, 2019 k. Misc. Details (Sheet No. 8), dated January 5, 2019

l. Door & Window Details (Sheet No. 9), dated January 5, 2019 9. Email from Wilma Edmonds to Stephanie Keyser, dated May 19, 2020 10. Staff PowerPoint Presentation, dated May 27, 2020

11. Additional Materials:

a. Schematic Planting Plan, dated May 26, 2020 b. Site Photos, dated May 26, 2020

c. Planting Plan (Sheet L4.0), dated May 21, 2020

The Hearing Examiner enters the following findings and conclusions based upon the testimony and admitted exhibits:

FINDINGS

Application and Notice

1. Kwatee Stamm, of Kenneth Philip Landscape Architects, on behalf of Charles River Properties, LLC (Applicant), requests approval of a variance from the minimum rear setback requirements of MMC 20.22.030 from 30 feet to 11 feet to accommodate an outdoor living space, including patio, grill, and seating. The property is located at 2230

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Evergreen Point Road.1 Exhibit 1, Staff Report, pages 1 and 3; Exhibit 6; Exhibit 7;

Exhibit 8.

2. The City of Medina (City) determined that the application was complete on March 4, 2020. On March 5, 2020, the City posted notice of the application at City Hall, on the City website, at the City Post Office, on the City public notice board, and at two locations within 300 feet of the subject property, with a comment deadline of March 19, 2020. The next day, the City mailed the notice to owners of property within 300 feet of the property. On May 6, 2020, the City mailed notice of the open record hearing associated with the application to owners of property within 300 feet of the property. The same day, the City posted notice of the hearing at City Hall, on the City website, at the City Post Office, on the City public notice board, and at two locations within 300 feet of the property, and published notice in The Seattle Times. Exhibit 1, Staff Report, pages 2 and 3; Exhibit 4. 3. The City did not receive any comments from reviewing departments and agencies in

response to its notice materials. It did, however, receive comments from two area residents. Richard Yang wrote the City requesting denial of the variance on the grounds that existing zoning ordinances should be upheld and that reducing the rear setback to 11 feet would have detrimental impacts on neighboring property owners and area property values. Wilma Edmonds wrote the City with similar concerns. Exhibit 5a; Exhibit 9.

State Environmental Policy Act

4. The variance request is exempt from environmental review under the State Environmental Policy Act (SEPA), Chapter 43.21C Revised Code of Washington (RCW), in accord with Washington Administration Code (WAC) 197-11-800(6)(e).2

Exhibit 1, Staff Report, page 1.

Comprehensive Plan and Zoning

5. The property is designated Residential by the City Comprehensive Plan. Comprehensive

Plan, Figure 2: Land Use Plan (2015, as amended). Under the Comprehensive Plan, it is

the policy of the City to retain and promote the high-quality residential setting that is the hallmark of the Medina community. Comprehensive Plan goals and policies relevant to

1

The subject property is identified by Tax Assessor Parcel No. 3262300225. Exhibit 2. A legal description of the property is included with the Statutory Warranty Deed. Exhibit 3.

2

WAC 197-11-800(6)(e) provides that land use decisions that “[grant] variances based on special circumstances, not including economic hardship, applicable to the subject property, such as size, shape, topography, location or surroundings and not resulting in any change in land use or density,” shall be exempt from SEPA review.

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the proposal call for maintaining Medina’s high-quality residential setting and character.3

Exhibit 1, Staff Report, page 2.

6. The property is zoned Single-Family Residence (R-16). Surrounding properties to the north, east, and south are also developed with single-family residences and zoned R-16. Property to the west, across Evergreen Point Road, is developed with single-family residences in an R-20 zone. Exhibit 1, Staff Report, page 2.

7. The rectangular property is approximately 16,235 square feet (0.37 acres) with

approximate dimensions of 135 feet in length and 119 feet in width. Minimum lot size in the R-16 zone is 16,000 square feet. MCC Table 20.22.020. The proposal would meet all zoning requirements related to structural coverage and impervious surface coverage, whether the variance is approved or not. Setback requirements are set forth in MMC 20.22.030 and are determined by lot size. Based on the size of the lot, all front and rear property lines require 30-foot setbacks, and side property lines require a 10-foot setback.

MCC Table 20.22.030. The property is currently being redeveloped under building,

grading, drainage, and tree activity permits approved in 2019. The requested variance would not impact the work currently being performed on the property. Exhibit 1, Staff

Report, pages 3 and 4; Exhibit 11.

Variance

8. As noted above, the Applicant is in the process of redevelopment of the residence under permits granted in 2019, and seeks a variance to accommodate an outdoor living space, including, patio, grill, and seating, by reducing the backyard (rear) setback from 30 feet to 11 feet. Exhibit 1, Staff Report, pages 3 and 4; Exhibit 5; Exhibit 10; Exhibit 11. 9. The Applicant submitted a project narrative addressing the variance criteria of MMC

20.72.030.F with its application materials. Specifically, the Applicant argues:

 Encroachments into the rear yard setback are common in the surrounding area. The request would allow the Applicant to have a passive recreation area in the backyard, including a patio, similar to other properties in the vicinity.

Accordingly, the request would not constitute the grant of a special privilege.  The topography of the site creates a special circumstance because the finished

floor of the home sits approximately eight or nine feet below Evergreen Point Road. Because of this, the home’s massing and garage have been sited as far eastward as possible (toward the rear property line) to provide a safe and private transition into the residence. This has created very little space for a rear patio area for passive recreational use in the backyard.

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City staff specifically identified Land Use goal LU-G1 (maintaining Medina’s high quality residential setting and character) and Housing Goal H-G1 (preserving and foster housing development consistent with Medina’s high-quality residential setting) as applicable to the proposal. Exhibit 1, Staff Report, page 2.

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 Impacts from creating a passive recreational space in the backyard would be minimal and isolated to adjacent neighbors. These impacts, however, would be diminished by the proposed grading and buffer plantings. Moreover, the proposal would not threaten public safety or degrade the surrounding and adjacent

landscapes.

 The setback is the minimum necessary to provide comfortable outdoor seating and circulation for a group of 12 people in the backyard patio area. This would be compatible with the scale of the residence and comparable to other patios in the surrounding neighborhood.

Exhibit 6.

10. City staff also analyzed the proposal for consistency with the variance criteria of MMC 20.72.030.F and generally concurred with the Applicant’s analysis. Staff determined, however, that the issue of whether applying prescribed setbacks in conjunction with the shape of the lot creates a special circumstance or material hardship warranting relief should be determined by the Hearing Examiner. Exhibit 1, Staff Report, pages 3 through

8.

Testimony

11. City Planning Manager Stephanie Keyser testified generally about the proposal, specifically noting that—were the variance granted—the proposal would still meet all other dimensional requirements as well as surface and impervious-surface coverage requirements for the R-16 zone. Ms. Keyser explained that MMC 20.22.040 specifically delineates what structures are allowed to protrude into setbacks and that outdoor patios are not explicitly delineated in this section. Accordingly, the City determined that a variance would be necessary to allow the proposed patio area to be sited, in part, within the required rear yard setback. She noted, however, that the City’s requirements within the shoreline jurisdiction of Lake Washington are different and that, were this proposal to involve a residence further downslope (i.e., closer to the shoreline of the lake), a variance would be unnecessary because the City’s Shoreline Master Program explicitly allows for appurtenant outdoor structures, like patios, in setback areas. Testimony of Ms. Keyser. 12. Applicant Representative Kwatee Stamm, who is serving as the landscape architect for

the proposal, explained that the Applicant realized—after the reconstruction had already begun—that having a backyard patio area would be beneficial and learned from the City that a variance would likely be required to install this amenity. Mr. Stamm explained that the patio area would be approximately 538 square feet and that, between this and the rear property line, there would be a 3-foot high retaining wall, a dense, 9-foot vegetated buffer area screening the patio (and residence) from the neighboring property, and a 6-foot wooden fence. He noted that the entire patio area would be “sunk” below the site-line of the adjoining property and, because of this, would have few impacts on the neighboring property. Mr. Stamm also testified that, if the variance were not approved, the Applicant would have a lawn area in the backyard that would be maintained similar to the proposed

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patio. He stressed that the Applicant seeks the variance to allow hardscaping within the rear setback but that no “outdoor living space” or permanent structures (apart from the retaining wall, which would have a built-in grill and fireplace) would be installed. Mr. Stamm stated that he believes residents who commented on the proposal did not realize what it would entail and that, were they able to visit the site, they would recognize that the variance request is not for anything extraordinary and that it would not impact adjoining properties. Testimony of Mr. Stamm.

13. Property owner Erin Riley concurred with Mr. Stamm’s testimony and explained that, because of the elevation change on the property, the variance would be necessary to allow for a modest patio area in the backyard. When the home remodel began, it became clear that the home additions, including the garage, would need to be sited as far eastward (toward the rear property line) as possible to allow safe ingress and egress from

Evergreen Point Road. She also explained that she reached out to neighbors to visit the site or view plans but, in light of the current pandemic, was unable to accomplish this.

Testimony of Ms. Riley.

Staff Recommendation

14. Ms. Keyser testified that the City does not make recommendations on variance

applications but, if the variance is granted, the City would recommend four conditions: that the variance be granted only to the extent shown in Exhibit 8, that all other zoning and development regulations be followed, that pertinent construction permits be obtained prior to construction activity, and that the variance expire within one year if a complete building permit application is not submitted. Exhibit 1, Staff Report, page 8; Testimony

of Ms. Keyser.

CONCLUSIONS

Jurisdiction

The Hearing Examiner has jurisdiction to hear and decide requests for nonadministrative variances from the Medina Municipal Code. MMC 2.78.070; MMC Table 20.80.060.C.

Criteria for Review

MMC 20.72.030.E sets forth certain limitations on the granting of nonadministrative variances: 1. Nonadministrative variances may be granted where the application of a

dimensional standard would result in an unusual or unreasonable hardship due to physical characteristics of the site;

2. Evidence of other variances granted under similar circumstances shall not be considered in the granting of a nonadministrative variance; and

3. No variance shall be granted for any of the following: a. To alter any definition or interpretation of this title;

b. To alter any provision establishing a use within a zoning district; or

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c. To alter any procedural provisions.

The Hearing Examiner may approve a nonadministrative variance only if the following criteria are satisfied:

1. The variance does not constitute a granting of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the subject property is located; and

2. The variance is necessary, because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located; and 3. The variance is necessary to relieve a material hardship that cannot be

relieved by any other means such that the material hardship must relate to the land itself and not to problems personal to the applicant; and

4. The granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated; and

5. The variance is the minimum necessary to provide reasonable relief.

MMC 20.72.030.F.

In authorizing a variance, the Hearing Examiner may attach reasonable conditions to safeguard the public health, general welfare, and safety. MMC 20.72.030.G.

The criteria for review adopted by the Medina City Council are designed to implement the requirement of Chapter 36.70B RCW to enact the Growth Management Act. In particular, RCW 36.70B.040 mandates that local jurisdictions review proposed development to ensure consistency with City development regulations, considering the type of land use, the level of development, infrastructure, and the characteristics of development. RCW 36.70B.040.

Conclusions Based on Findings

1. The variance would not constitute a granting of special privilege inconsistent with limitations upon uses of other properties in the area. Single-family residences are an

allowed use in the R-16 zone, and outdoor patios are permitted as appurtenant uses under MMC 20.21.030. The Applicant is seeking relief from a dimensional standard, not a use that is inconsistent with the R-16 zone. Findings 1, 5 – 14.

2. The variance is necessary because of special circumstances relating to the shape, location, and surroundings of the subject property. The site has declining topography

that caused consideration to be given to the placement of the garage and driveway in order to ensure maximum safety when entering and exiting the property. This created a limited rear yard area. In addition, the site topography is such that the neighboring residence to the east (behind the rear yard) sits upslope of the subject property such that

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the proposed patio would be “sunk” below neighboring site lines and screened by a dense 9-foot vegetative buffer and 6-foot wooden fence. Findings 1, 5 – 14.

3. The variance is necessary to relieve a material hardship. Passive recreational areas,

such as patios, are an allowed appurtenant use throughout the city. The variance is necessary to allow the property owner adequate space to install a backyard patio similar to those enjoyed by other property owners in Medina. Moreover, the only “permanent” structures involved would be the retaining wall (which is allowed within the rear setback) and the hardscaping on which patio furniture would be placed. In addition, this type of use would be allowed outright within the City’s shoreline jurisdiction, and it is

questionable whether the types of materials/objects associated with a rear patio would constitute permanent structures, under MMC 20.12.200. Under that provision, “no permanent structure may intrude” into a setback area and structure is defined as “that which is erected, built or constructed . . . or any piece of work artificially built up or composed of parts joined together in some definite manner.” Although the permanent grill and fireplace built in to the retaining wall would constitute permanent structures, the retaining wall itself is allowed within the setback area and, presumably, a normal

charcoal or electric grill, portable fire pit, and patio furniture would be otherwise allowed. Accordingly, the request mostly relates to the installation of hardscaping within the

setback area. It is unclear how the installation of hardscaping in this area would have detrimental impacts on neighboring properties. Findings 1, 5 – 10.

4. With conditions, the granting of the variance would not be detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is located. The City provided reasonable notice of the

application and hearing. The City received two written comments from area residents expressing concern about the granting of variances, generally, within the City. Neither comment, however, expressed concern over impacts of the proposal that would not be mitigated by the rest of the site design proposed by the Applicant, especially the “sunk” nature of the patio amenity and the additional plantings that would occur within the existing vegetative buffer. In addition, the Applicant offered to meet with neighboring property owners to show them how the proposal would not impact adjoining residences. The patio area would be screened from the adjoining property to the rear by a dense vegetative buffer and would be sited well below the adjoining residence. The proposed patio area would be consistent with the Comprehensive Plan goal of maintaining the city’s high-quality residential setting and character. The proposal would have no significant negative impacts on neighboring properties and would not impact existing view corridors enjoyed in the area. Variances do not have precedential value and granting this variance would not impact the Hearing Examiner’s analysis of future variance requests within the City. Conditions are necessary to ensure that that the variance is granted only to the extent shown in the Applicant’s submitted materials and that the Applicant follows all other zoning and development regulations applicable to the proposal. Findings 1 – 14.

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5. The variance is the minimum necessary to provide reasonable relief. The proposed

patio area was designed to be the minimum necessary to provide reasonable relief and would be compatible with the residence and comparable to other backyard patio areas within the city. Findings 1 – 14.

DECISION

Based on the preceding findings and conclusions, the request for approval of a variance from the rear setback requirements of Medina Municipal Code (MMC) 20.22.030 from 30 feet to 11 feet to accommodate an outdoor living space, including patio, grill, and seating, at 2230 Evergreen Point Road is GRANTED, with the following conditions:

1. Relief from the rear setback is granted only to the extent shown in Exhibit 8, which shows a new rear yard setback of 11 feet from the eastern (rear) property line. Any modifications to the plans that would increase the encroachment into the setback shall require a new variance.

2. All other zoning and development regulations applicable to this project shall be followed. 3. Pertinent construction permits shall be obtained prior to starting construction activity for

this variance.

4. An approved non-administrative variance shall expire if, within one year of the date the decision of the non-administrative variance becomes final, a complete building permit application is not submitted. A six-month extension may be granted pursuant to MMC 20.72.030.H.

Decided this 12th day of June 2020.

ANDREW M. REEVES Hearing Examiner Sound Law Center