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HomeMy WebLinkAboutHE Determination HE 2020-004 Horton Pro-Made Fence Variance ITY OF PASCO HEARING EXAMINER FINDINGS OF FACT, CONCLUSIONS OF LAW,AND DECISION Variance MF#HE 2020-004 Pro Made Construction LLC c/o Ryan Horton September 25, 2020 1. FINDINGS OF FACT 1.1 Proposal. Variance from setback requirement to allow an existing fence near a sidewalk to remain in place. 1.2 Applicant. Pro Made Construction LLC c/o Ryan Horton, 4407 Kitimat Lane, Pasco, WA 99301. 1.3 Location. 4407 Kitimat Lane, Pasco, WA 99301. Corner of Kitimat and Sumas. 1.4 Site and Surrounding Area. The 0.13-acre site is zoned R-1 (Low-Density Residential) and is developed with a single-family home. Surrounding properties have the same zoning and use. 1.5 Hearing. An open record public hearing was held September 9, 2020. Due to COVID-19 restrictions,the hearing was conducted remotely,with the Examiner,Department, and typically the Applicant calling in. The Applicant was not present on the call or via video link. Access information was available to the public to allow citizens to join via either a video link or telephone call-in. There were no reported technical difficulties during the call or afterwards. However, in case any citizens who wished to comment had difficulty calling in, and to allow for Applicant input, the record was kept open through September 11. Other than the Department's power point presentation, no additional written comments were received. The only party testifying at the hearing was DCD,through Mr.Adams. In sworn testimony, he detailed the public safety issues present due to the fence's location and its six-foot height,which interfere with vehicle sight distances. In response to Examiner questions, he confirmed the Applicant could construct a shorter fence at the same location, but the current height did not comply. 1.6 Evidence Reviewed. The Examiner reviewed the Staff Report, which attached maps (overview, vicinity, use, and zoning), site plans, photos, Pasco Code Enforcement Determination and Order, construction permit application, Pasco Building Division letter to the Applicant, and the notice of application. At Examiner request, following the hearing, the Department provided its power-point showing fence location and sight distance intrusions. City of Pasco Hearing Examiner Page 1 of 3 Decision, Pro Made Construction LLC Variance MF#HE 2020-004 1.7 Variance Request. The maximum height for a fence within the front yard area of a residentially zoned lot is 3.5 feet.' A six-foot fence is allowed in the front yard area adjacent to a side street when two contiguous corner lots form the entire frontage between parallel or nearly parallel streets. The Applicant requested a variance to allow a six-foot existing unpermitted fence near the sidewalk to remain so he would have a private back yard. The Applicant viewed the following special circumstances as applying: This is a corner lot. Usually there are two corner lots back forming the full frontage of a side yard. In those cases, a fence is permissible to the sidewalk. However in this circumstance this lot forms the full frontage and there is not lot behind this lot. Under City Code, as there is no lot behind the Applicant's corner lot, the above described code exception does not apply, which necessitates the variance. This condition likely constitutes a "special circumstance," under the code variance criteria. However, the fence was erected as a condition of property sale, without a permit. 1.8 Sight Line Distances. The Department documented public safety issues associated with the request. Engineering standards require "[t]he sight distance triangle clearview shall remain clear of anything erected, placed, planted or allowed to grow in such a manner as to materially impede vision between the heights of 2.5' and 10' above the intersection centerline elevation."2 A clearview sight triangle of 15' x 120' at the intersection of Sumas and Kitimat Lanes is required. The existing fence was documented as severely blocking that view and creating a traffic and safety hazard, as detailed in Department testimony and exhibits on sight line distances. The Applicant did not present contrary evidence. 2. CONCLUSIONS Front yard fences in residential zones are limited to 3.5 feet in height.' At six feet, a variance is required. A variance is subject to conditions to assure it is not "a grant of special privilege inconsistent with" limits on other "properties in the vicinity" and is only granted if these criteria apply: (a) 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. (b) 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. (c) The special circumstances applicable to the subject property were not created through the action(s) of the applicant or any predecessor in interest.4 'PMC 25.180.050(1)(c). 2 Pasco Design and Construction Standards(June 26,2020); Staff Report,p. 2. 3 PMC 25.180.050(1)(c). 4 PMC 25.195.020(1). City of Pasco Hearing Examiner Page 2 of 3 Decision, Pro Made Construction LLC Variance MF#HE 2020-004 The special circumstance the Applicant described do potentially exist due to the lot's corner nature. As the Applicant was not at the hearing, the Examiner did not receive sworn testimony further detailing these circumstances. Regardless,all three criteria must be satisfied for the Hearing Examiner to grant a variance. Criteria (b) is not met, as granting the variance would be materially detrimental to the public welfare due to sight line blockage, which creates a traffic and safety hazard. This hazard was documented through the Department's testimony and exhibits, including drawings illustrating sight line locations and testimony. The fence, as it has been constructed, has been shown to be materially detrimental to the public welfare and injurious to the residences in the vicinity and in the same zone. The Applicant did not meet its burden of proof. The variance should be denied. DECISION The Hearing Examiner, pursuant to the above Findings of Fact and Conclusions of Law, denies the requested variance. Absent a timely appeal,this Decision is final.' DECISION entered September 25,2020. City of Pasco Hearing Examiner Susan Elizabeth Drummond 'See Ch.36.70C RCW(establishing 21 day appeal period to superior court,and setting forth necessary petition for review contents,along with filing and service requirements). City of Pasco Hearing Examiner Page 3 of 3 Decision,Pro Made Construction LLC Variance MF#HE 2020-004