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HomeMy WebLinkAboutHE Determination HE 2022-002 Grace Kitchen Fence Variance BEFORE THE CITY OF PASCO HEARINGS EXAMINER IN THE MATTER OF ) FINDINGS OF FACT, HE 2022-002 ) CONCLUSIONS OF LAW, GRACE KITCHEN ) AND DECISION THIS MATTER, having come on before the City of Pasco Hearing Examiner on August 10, 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,Amanda Lorraine,on behalf of Grace Kitchen, is requesting a variance from the design standards within the C-2 zoning district. Applicant is requesting to allow the installation of chain link fencing with a single strand of barbed wire along the top to tie into and match existing fencing on the adjacent property. The Applicant has already installed the barbed wire. 2. The Applicant is Amanda Lorraine for Grace Kitchen, 112 North 2"d Avenue, Pasco WA 99301. 3. The project location is 112 North 2nd Avenue(Parcel#112034192). 4. The legal description of the subject property is the South 50'of Lots 1 &2 Block 23,N.P. PLAT. 5. The property size is approximately 0.12 Acres(4999.82 Square Feet). 6. The property has access from from North 2nd Avenue,and the east-west alley to the south. 7. Municipal water and sewer service are available from the east-west alley to the south. 8. The site is zoned C-2 (Central Business District)and is developed with one office. Surrounding properties are also zoned C-2 (Central Business District), and are developed with various commercial structures. 9. As per PMC 25.180.050(1)(g), barbed wire is prohibited in the C-2 zoning district: 9.1 Fences, Walls and Hedges. 9.1.1 (g) Barbed and razor wire fencing is prohibited in all residential districts, in the office district and the central business district.Barbed wire may be permitted in suburban residential districts on tracts larger than one acre that are used for animal husbandry. In the C-1 retail business district only one strand of barbed wire is permitted along the top rail or within two inches of the top rail. 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: Findings of Fact/Conclusions of Law/Decision/ HE 2022-002 Page 1 of 4 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 argues that the following special circumstances apply to the property: 10.3.1 Just off of the alleyway that runs between Lewis and Clark streets and behind our building we installed chain link fencing with a single strand of barbed wire along the top to tie into and match existing fencing on the property behind us.The purpose of the fencing is to prevent trespassing on the property. Prior to the fencing being installed, evidence of drug use, including used needles, and sexual activity, including used condoms,were frequently found in the stairwell in this area behind our building. This presents a health and safety hazard to our employees who access that area, as well as a general community hazard and nuisance. Fencing without the barbed wire will not sufficiently prevent access, based on previous experience in this area. 10.3.2 This area of the property is out of view from the primary streets(2nd,Lewis,and Clark)and is off of the alleyway. The stairwell is further recessed, making it an attractive location for the above noted illicit activities. The location is conducive to these activities and barbed wire is necessary to prevent those activities. The fencing with barbed wire matches the existing fencing and is not readily visible from main streets,therefore 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. These circumstances were not created by the applicant or any predecessor in interest. 10.4 How does the strict interpretation of the zoning ordinance deprive the applicant of rights and privileges enjoyed by other properties in the vicinity under an identical zoning classification? 10.4.1 As discussed above,the fencing was installed to tie into and match existing fencing with a similar strand of barbed wire located on the property behind us, which is also located in the central business district.Not only does strict interpretation deprive the applicant of the rights and privileges enjoyed by the property behind us, but it creates further reason for individuals to seek access to our property since access is more difficult to the other. 11. History 11.1 On March 2, 2020,the owner of the property at 312 West Clark Street applied for a building permit to install a chain-link fence with a single strand of barbed wire atop, which the City errantly permitted. 11.2 On April 14, 2022,the City of Pasco received a building permit application from the owners of the property at 112 North 2 n Avenue for a fence with barbed wire to match that previously installed at 312 West Clark Street. According to internal records,the application was "Approved without barbed wire. . .. This approval is only for the fence (without barbed wire) . . .". Findings of Fact/Conclusions of Law/Decision/ HE 2022-002 Page 2 of 4 12. Notice of the public hearing was sent to property owners within 300 feet of the subject property and the newspaper on July 21, 2022. 13. The Applicant is requesting a variance from the design standards within the C-2 zoning district. 14. An open record public hearing was held on August 10,2022 via Zoom videoconference. 15. The staff report, application materials,agency comments and the entire file of record were admitted into the record. 16. Appearing and testifying at the open record public hearing was Greg Cullen. Mr. Cullen testified that he was an agent authorized to appear and speak on behalf of the Applicant and property owner. He stated, incorrectly, that the City has conceded that variance criteria PMC 25.195.020(1)(b)and (c)have been accepted by the City. Even if this were true(which the Hearing Examiner believes it is not true because the City has not made any recommendation regarding approval or denial of this application request) it is ultimately up to the Hearing Examiner to establish Findings of Fact and Conclusions of Law demonstrating whether the application complies or does not comply with the applicable land use regulations. 17. When questioned by the Hearing Examiner about the"special circumstances" that are required to be proven pursuant to PMC 25.195.020(1)(a), Mr. Cullen stated that the stairwell on the property is where they find evidence of after hours drug use. Further, he stated that because a neighbor had mistakenly been allowed to install a single strand of barbed wire over their fence,that the Applicant now has a"right"to have a barbed wire fence. 18. The Hearing Examiner, respectfully, does not accept the Applicant's position as to special circumstances and the "right" to have a fence with barbed wire at the top. 19. First of all, single strand barbed wire is prohibited in the C-2 zoning district. It is permitted in the C-1 retail district. This is strong evidence that the City council in adopting these regulations, determined as a matter of policy that single strand barbed wire at the top of fences is not an appropriate use within the C-2 zoning district. 20. Additionally, if having a stairwell on the premises that is being used for illegal activities somehow justifies the criteria for a"special circumstance"the Hearing Examiner finds that the prohibition for barbed wire in the C-2 zoning district would be effectively eliminated. The existence of, or potential for, trespassers is not a special circumstance. 21. The Hearing Examiner finds that the existence of the stairwell, illegal activity on the Applicant's property, the health and safety issues that result from this illegal activity, are simply not"special circumstances" applicable to the subject property. As set forth in the Pasco Municipal Code,a special circumstance is to relate to the"size, shape,topography, location of surroundings"of the subject property. None of these factors exist. 22. The Applicant has failed to prove facts that support a finding that PMC 25.195.020(1)(a)has been satisfied. 23. Likewise, the Applicant has failed to prove facts demonstrating that PMC 25.195.020(b) and(c) are also satisfied. 24. The Applicant advances conclusory statements as opposed to specific facts. Because special circumstances do not exist,and because the City of Pasco's City council has already determined that single strand barbed wire at the top of fences is not allowed in the C-2 zoning district, it is obvious that without proving the existence of a special circumstance, that the existence of this barbed wire may be materially detrimental to public welfare. Findings of Fact/Conclusions of Law/Decision/ HE 2022-002 Page 3 of 4 25. Additionally,because special circumstances have not been found,PMC 25.195.020(1)(c)has not been established. 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. The Applicant has failed to prove the variance criteria necessary to allow the installation of a single strand barbed wire at the top of the fence. In the C-2 zoning district it is specifically prohibited by PMC 25.180.050(1)(g). 29. Any Conclusion of Law that is more correctly a Finding of Fact is incorporated herein as such by this reference. II. CONCLUSIONS OF LAW 1. The Hearing Examiner has been granted authority to render this Decision. 2. Barbed wire is prohibited in the C-2 zoning district pursuant to PMC 25.180.050(1)(g). 3. The Applicant has failed to prove that the criteria set forth in PMC 25.195.020(1)has been satisfied. 4. Special circumstances unique to the Applicant's property have not been proven. 5. 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- 002, is hereby DENIED. Dated this 19th day of August,2022. CITY 9F PASCO HEARING EXAMINER ndrew L. Kottkamp Absent a timely appeal,this Decision is final' ' See Ch. 36.70C RCW(establishing a 21 day appeal period to superior court,and setting forth necessary review contents,along with filing and service requirements). Findings of Fact/Conclusions of Law/Decision/ HE 2022-002 Page 4 of 4