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HomeMy WebLinkAboutHE Determination HE 2022-001 Sandy Flats Fence Variance BEFORE THE CITY OF PASCO HEARINGS EXAMINER IN THE MATTER OF ) FINDINGS OF FACT, HE 2022-001 ) CONCLUSIONS OF LAW, BIG SKY DEVELOPERS ) AND DECISION THIS MATTER, having come on before the City of Pasco Hearing Examiner on June 8,2022, the Hearing Examiner having taken evidence hereby submits the following Findings of Fact,Conclusions of Law, and Decision as follows: I. FINDINGS OF FACT 1. The Applicant is requesting a variance from the height requirements for fencing within front yard areas. Applicant is requesting to allow a 6' fence to be built within the front yard area. 2. The Applicant is Big Sky Developers, 5426 N Road 68,Box D-113, Pasco WA 99301. 3. The project location is Midland Lane between Vincenzo Drive and Sandifur Parkway. 4. The legal description of the subject property is PTN N W4 8-9-29 DAF: BINDING SITE PLAN 2002-05 LOTS 4 THRU 7. 5. The property size is 6.86 Acres. 6. The property has access from Midland Lane. 7. Municipal water and sewer service are available from Midland Lane. 8. The site is zoned R-4 (High-Density Residential)and is undergoing development with 48 duplex units and one office. Surrounding properties are zoned R-1 (Low-Density Residential)developed with SFDUs and C-1 (Retail Business) both undeveloped and developed. 9. Fences heights and locations are regulated by the Pasco Municipal Code(PMC).The planning standard is found in 25.180.050(1)Design standards: 9.1 Fences, Walls and Hedges. 9.1.1 The height of fences, walls and hedges shall be limited to 3.5 feet within the front yard area of residentially zoned lots,retail business and office zoned lots; provided, when two contiguous corner lots,or two corner lots separated only by an alley right-of-way, form the entire frontage between parallel or nearly parallel streets, the height of fences,walls and hedges shall be limited to six feet within the front yard adjacent to the side street; except where the front door of a house faces the side street all fences greater than 3.5 feet in height must be set back to the building line of the house facing the side street. Findings of Fact/Conclusions of Law/Decision/ HE 2022-001 Page 1 of 6 9.2 The definition of a front yard according to the PMC is found in Title 25.15.270(y) definitions: 9.2.1 "Yard, front" means an open and unoccupied space extending the full width of the lot between any building and any street right-of-way adjacent the lot. The front yard shall be determined by measuring perpendicular from the street right- of-way to the closest point of the building. 9.2.2 The front yard of the applicant's property is the first twenty feet from the property where the closest building is located. Within this area PMC requires that fences not exceed a height of 3.5', however, the property is proposed with numerous duplex style structures with the rear of the structures facing the Midland Lane right-of-way. The proposed fence would act like an estate wall that is generally required for subdivisions located adjacent to roads classified as Collectors or Arterials. 10. As per Pasco Municipal Code (PMC) 25.195.020(1)Land Use Decision Authority. 10.1 Variances. Applications for variances from the terms of this title; provided, that any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zoning in which the subject property is situated,and that the following circumstances are found to apply: 10.1.1 Because of special circumstances applicable to the subject property, including size, shape, topography, location of surroundings, the strict application of the zoning ordinance is found to deprive subject property of rights and privileges enjoyed by other properties in the vicinity and under identical zone classification. 10.1.2 The granting of the 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. 10.1.3 The special circumstances applicable to the subject property were not created through the action(s) of the applicant or any predecessor in interest. 10.2 According to PMC 25.195.020, all three of the above criteria need to be met in order for the Hearing Examiner to grant a variance. 10.3 The Applicant suggests the following special circumstances apply to the property: 10.3.1 "The northeast corner of the subject property borders Mediterranean Villas, an existing duplex-housing development, with an existing 6-foot masonry block fence along Midland Lane frontage as shown in the attached pictures. The proposed fence would be contiguous with the existing fence of the Mediterranean Villas subdivision." 10.3.2 The Hearing Examiner finds that there are no special circumstances applicable to the Applicant's property which deprive the subject property of the rights and privileges enjoyed by other properties in the vicinity. The Applicant's assertion that a neighboring property's use of their property is a special circumstance for the subject property, is not supported by fact or law. The Applicant has provided absolutely no evidence whatsoever that special circumstances, as described in the PMC, apply to the subject property that relate to the subject property's size, shape,topography or location of surroundings. The Applicant is allowed to have a fence. The allowed fence simply cannot be as tall as the Applicant desires. 10.3.3 The Applicant has failed to prove, by a preponderance of the evidence,that PMC 25.195.020(1)(a)is factually satisfied. 11. History. Findings of Fact/Conclusions of Law/Decision/ HE 2022-001 Page 2 of 6 11.1 An application for a block fence the encompassed the parcel was submitted to the city in March of 2022.This site plan indicated fencing in what was to be the front yard area of the upcoming residential development.Discussion with the applicant occurred indicating that the portion of the fence in the front yard could not be approved and the plans for the remaining areas of the fence were approved and a permit issued in April of 2022. 1 1.2 An application for Hearing Examiner review was received by the City of Pasco in May of 2022 for the portion of the fence in the front yard,requesting a variance from the fencing design standards. 12. VARIANCE REQUEST: "The proposed use is a 6-foot in height masonry block fence, approximately 500 feet in length. The proposed fence will provide security, privacy, and protection for future residents of the subject property. The City of Pasco has designated the eastern boundary of the subject property as the front yard area for the duplex housing.According to PMC 25.180.050(1)(c)fences in front yard areas may not exceed three and a half feet in height and this a variance is required." 12.1 The duplexes adjacent to the proposed fencing will be oriented such that the rear of the buildings will face Midland Lane, similar to the properties referenced within the Mediterranean Villas Subdivision located on Mia Lane. Since this is a multifamily development the strict application of the Municipal Code creates odd regulations for front yards, depriving the units adjacent to Midland Lane of privacy afforded by a 6 foot fence from the street frontage. 12.2 However, this is not a factual or legal basis for a variance. The orientation of duplexes on the lots is not a special circumstance. If it were a special circumstance,then every home in Pasco with a rear yard adjacent to a road would be entitled to a variance. This is a situation that more appropriately should be addressed by Pasco City Council. 12.3 The proposed location of the fence will be subject to sight distance requirements at the access points as prescribed by PMC and Pasco Design and Construction Standards. 12.4 The existing fence along the border of the Mediterranean Villas Subdivision was constructed prior to any proposals for duplexes or residential development on the subject property. However, it must be noted that the orientation of the duplex units to place the rear of the buildings facing the Bedford frontage was designed by the applicant. 13. The Applicant states the following regarding how the strict interpretation of the zoning ordinance deprives the applicant of rights and privileges enjoyed by other properties in the vicinity under an identical zoning classification: 13.1 "Mediterranean Villas is contiguous to the subject property and contains approximately 700 linear feet of 6-foot masonry block fencing along Midland Ln frontage extending from Vincenzo Dr.to the northeast corner of the subject property. The strict interpretation of the zoning ordinance deprives the Sandy Flats subdivision of the opportunity to simply extend the fence alignment further south along the property line of the proposed subdivision. Continuing the fence line at a 6-foot height will provide for the health, safety, and general welfare of the area residents, and would create an aesthetically pleasing visual environment that will benefit residents and passers-by. Furthermore,the proposed fence height will not impact or inhibit the line of sight for drivers traveling on Midland Ln. or entering/exiting the subdivision." 13.2 Again,the Applicant fails to factually prove the existence of a legal special circumstance. 14. The Hearing Examiner finds that if this variance had been granted,that it would not be materially detrimental to public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is located. The proposed six foot fence would be consistent Findings of Fact/Conclusions of Law/Decision/ HE 2022-001 Page 3 of 6 with the fencing of the neighboring property. The Hearing Examiner finds that the masonry block fence on the adjacent property was properly permitted without the need for a variance. PMC 25.195.020(1)(b)can be satisfied. 15. The Hearing Examiner also finds that the Applicant has done nothing to create any"special circumstances" on the subject property. However, as set forth above,the Hearing Examiner finds that there are no special circumstances related to this specific piece of property that support the granting of a variance. The Hearing Examiner also notes that the Applicant was in control of the type and location of structures to be built on the property. PMC 25.195.020(1)(c)cannot be satisfied because there is no special circumstance related to the subject property. 16. Notice of the public hearing was sent to property owners within 300 feet of the subject property and the newspaper on May 19, 2022. 17. The Applicant is requesting to allow a 6' masonry block fence to be constructed adjacent to the front property line, 18' from the roadway. 18. The planning standard is found in Title 25.180 of the Pasco Municipal Code(PMC) 25.180.050(1)(c) Design Standards. 19. According to (PMC) 25.180.050(l)(c): 19.1 The height of fences, walls and hedges shall be limited to 3.5 feet within the front yard area of residentially zoned lots,retail business and office zoned lots; 19.2 Provided, when two contiguous corner lots, or two corner lots separated only by an alley right-of-way,form the entire frontage between parallel or nearly parallel streets, the height of fences, walls and hedges shall be limited to six feet within the front yard adjacent to the side street; 19.3 Except where the front door of a house faces the side street all fences greater than 3.5 feet in height must be set back to the building line of the house facing the side street. 20. According to (PMC) 25.15.270: 20.1 "Yard, front"means an open and unoccupied space extending the full width of the lot between any building and any street right-of-way adjacent the lot. The front yard shall be determined by measuring perpendicular from the street right-of-way to the closest point of the building. 21. The Mediterranean Villas subdivision has fencing along the Midland Property line at 6' in height. No variance was required to construct this fence. 22. An open record public hearing was held on June 8, 2022 via Zoom videoconference. 23. The staff report, application materials, agency comments and the entire file of record were admitted into the record. 24. During the period when the record was open and testimony was to be taken regarding this matter, neither the Applicant,nor the Applicant's representative was present. After the Hearing Examiner closed the record and adjourned the hearing,the Hearing Examiner received an email from the City of Pasco indicating that the Applicant's representative had just entered the hearing room. The Hearing Examiner elected to keep the record open until 5:00 p.m. the following day to allow the Applicant to submit any additional written testimony the Applicant wished to submit. The Hearing Examiner, during the course of the hearing, had specifically mentioned the Hearing Examiner's concern regarding criteria No. 1 for the variance. Findings of Fact/Conclusions of Law/Decision/ HE 2022-001 Page 4 of 6 25. On June 9, 2022, Peter Harpster, agent of the Applicant and property owner, submitted an additional written comment. This comment did address variance criteria No. 1. Once again,the Applicant did not state any facts regarding special circumstances on the Applicant's property, such as size, shape,topography, or location of surroundings that would result in the strict application of the zoning ordinance depriving the subject property of rights and privileges enjoyed by other properties in the vicinity. Once again,the Applicant's only justification for the variance was that the neighbors have a 6 ft. tall masonry block fence, which is what they want. However, the Code allows the Applicant to have a fence, but the height of the allowed fence is limited to 3.5' height. 26. No member of the public testified at this hearing. 27. The City of Pasco Hearing Examiner considered all evidence within the record in rendering this decision. 28. Any Conclusion of Law that is more correctly a Finding of Fact is incorporated herein as such by this reference. H. CONCLUSIONS OF LAW 1. The Hearing Examiner has been granted authority to render this Decision. 2. Prior to approval of a variance, the Municipal code requires three determinations in the affirmative: 2.1 Because of special circumstances applicable to the subject property, including size, shape,topography, location of surroundings, the strict application of the zoning ordinance is found to deprive subject property of rights and privileges enjoyed by other properties in the vicinity and under identical zone classification. 2.1.1 The Applicant has failed to prove by a preponderance of the evidence that this criteria is satisfied. 2.2 The granting of the 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. 2.2.1 The Applicant has proven compliance with this criteria. 2.3 The special circumstances applicable to the subject property were not created through the action(s)of the applicant or any predecessor in interest. 2.3.1 Since there is no"special circumstance"as required by PMC 25.195.030(1)(a), this criteria cannot be satisfied. 3. The requested variance is not consistent with the Pasco Municipal Code. 4. Any Finding of Fact that is more correctly a Conclusion of Law is hereby incorporated as such by this reference. III. DECISION Based upon the above noted Findings and Fact and Conclusions of Law, request for variance, HE 2022- 001, is hereby DENIED. Findings of Fact/Conclusions of Law/Decision/ HE 2022-001 Page 5 of 6 CITY Fc ASCO HEARING EXAMINER A rew L.Kottkamp Findings of Fact/Conclusions of Law/Decision/ HE 2022-001 Page 6 of 6