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HomeMy WebLinkAboutHE Determination HE 2023-004 Berven Shed Setback Variance BEFORE THE CITY OF PASCO HEARINGS EXAMINER IN THE MATTER OF ) FINDINGS OF FACT, HE 2023-004 ) CONCLUSIONS OF LAW, DAX BERVEN ) AND DECISION THIS MATTER,having come on before the City of Pasco Hearing Examiner on September 13, 2023,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 for a shed replacement from Pasco Municipal Code (PMC) 25.35.050(b)which specifies the required side yard setback for all structures to be"10 feet, except in zero-lot-line developments in which case no side yard setback is required from the common lot line,provided the remaining side yards are at least 10 feet each." 2. The Applicant is Dax Berven 9807 Chelan Court,Pasco,WA 99301. 3. The legal description is 1 Lot 10 Block 1 Montgomery Estates Phase 1. 4. The general location of the subject property is 9807 Chelan Court,Pasco,WA 99301 (Parcel 118202025). 5. The subject property size is approximately .26 acres (11,131.57 square feet). 6. The subject property has access from Chelan Court. 7. Municipal water and sewer service are available from Chelan Court. 8. The property is currently zoned RS-12 (Suburban) and is developed with a Single-Family Dwelling Unit(SFDU)and two outbuildings. Surrounding properties are zoned and developed as follows: North RS-12 SFDUs East RS-20 SFDUs South RS-12 SFDUs West RS-12 SFDUs 9. On June 21, 2023,the Applicant applied for a building permit to replace a storage shed that was destroyed by a tree which uprooted and fell on the shed during a windstorm. The old shed was installed approximately 18-24" off the east property line. The applicant wishes to locate the replacement shed back at the same location as the destroyed one,arguing that the property does not have any other viable locations to install a shed without significant and expensive modifications. Findings of Fact/Conclusions of Law/Decision/ HE 2023-004 Page 1 of 4 10. The original shed was placed approximately 18-24" off the east property line. The City has no record of issuing a building permit for the original shed. Had it been permitted by the City, it would have been considered a legal nonconforming structure, and per PMC 25.170.040(1)(a)any legal nonconforming use may continue as long as it remains otherwise lawful.However,as no evidence of a permit has been found or offered by Applicant. The original shed is therefore considered nonconforming for purposes of this variance request. 11. Even if the shed had been legally permitted by the City of Pasco (or Franklin County),per PMC 25.170.060(3)a nonconforming use or structure becomes discontinued when it is damaged to the extent that reconstruction costs exceed 50 percent of the assessed value of the structure. Because applicant has applied for a replacement shed rather than a repair of same,the Hearing Examiner assumes that the damage to the structure exceeds 50 percent of the assessed value of the structure. 12. Furthermore,per PMC 25.170.050(2)(e)any reconstructions of legally nonconforming uses should adhere to the required district setbacks. So even if the nonconformity was legal (of which there is no evidence), and even if it had remained (which it did not)the requirement to adhere to current setback requirements would still stand. 13. On June 28, 2023,the building permit application was placed on hold via letter to Applicant requesting information as follows: "Please provide a site plan that clearly indicates the proposed setback for this new shed;the current minimum side setback is 10 feet." 14. The Applicant applied for a variance on July 21, 2023. The variance application was received on July 21, 2023. 15. The Applicant has offered the following explanations for his request: "Many homes in my neighborhood have similarly located sheds that are installed up against the non-roadside edges of the property lines. "Forcing me to relocate the replacement shed would require bearing the high costs of installing a new concrete pad, significantly reworking the irrigation system on my property, and potentially having to demolish what would become a useless concrete pad. "These costs would make replacing the shed monetarily unfeasible, resulting in a loss of available storage space and a subsequent loss to my property value. Additionally,the items&equipment necessary to maintain my property would have to be stored in my garage going forward, resulting in a loss of either vehicle parking space or workshop area. Additionally, a relocation would result in a severe restriction of the functional usage of my backyard." 16. As per Pasco Municipal Code (PMC)25.195.020, The Hearing Examiner shall receive and examine available information,conduct public hearings,and prepare a record thereof,and enter findings of fact, conclusions and a decision as provided for herein. The Hearing Examiner shall hear and decide the following land use decisions: 16.1 Variances. Applications for variances from the terns 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: 16.1.1 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. Findings of Fact/Conclusions of Law/Decision/ HE 2023-004 Page 2 of 4 16.1.2 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. 16.1.3 The special circumstances applicable to the subject property were not created through the action(s)of the applicant or any predecessor in interest. 17. Notice of the public hearing was sent to property owners within 300 feet of the subject property and the newspaper on August 21,2023. 18. Variances are to be evaluated per the requirements of PMC 25.195.020(1): 18.1 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. 18.1.1 Hearing Examiner Finding: Applicant has offered no information regarding the "special circumstances applicable to the subject property, including size, shape, topography, location of surroundings . . . found to deprive subject property of rights and privileges enjoyed by other properties in the vicinity and under identical zone classification." 18.2 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. 18.2.1 Hearing Examiner Finding: The preamble to PMC 25.175.010, which includes yard setback regulations, states that"[t]he purpose of this chapter is to establish certain basic development requirements.These are minimum standards which must be met to assure land use compatibility and promote public health, safety and welfare."PMC 25.175.020(1)explains further, "The City Council,on recommendation of the Planning Commission, and after a public hearing held by the Planning Commission,may establish a building line along certain streets throughout certain zones or throughout certain natural areas, other than the setback requirements as established herein,when it is found that to do so will protect public health,welfare and safety." As such,the City Council has determined that yard setback requirements prevent conditions"detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated.". 18.3 The special circumstances applicable to the subject property were not created through the action(s) of the applicant or any predecessor in interest. 18.3.1 Hearing Examiner Finding: There are no special circumstances applicable to the subject property;the shed placement was created through the action(s)of the applicant or predecessor(s) in interest;the lot configuration,house placement, and yard landscaping layout were all created through the actions of the applicant or predecessor(s) in interest;the City of Pasco has no evidence of a permit for the original shed. 19. An open record public hearing was held on September 13, 2023. 20. The Applicant did not appear at the hearing. He was given the time, date,and manner of the hearing. Findings of FactfConclusions of Law/Decision/ HE 2023-004 Page 3 of 4 21. The Hearing Examiner is of the opinion that there are no special circumstances applicable to the subject property that deprive subject property of rights and privileges enjoyed by other properties in the vicinity and under identical zone classification.That barring new evidence to the contrary, the granting of the variance could very well 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 that any possible special circumstances applicable to the subject property were created through the action(s) of the applicant or predecessor(s) in interest. 22. No member of the public testified at the hearing. 23. The City of Pasco Hearing Examiner considered all evidence within the record in rendering this decision. 24. 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. The Applicant has failed to satisfy its burden of proof to show that the variance complies with PMC 25.195.020(1). 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 2023- 004,is hereby DENIED. Dated this _eday of September, 2023. CITY O VASCO HEARING EXAMINER ew 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). 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