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HomeMy WebLinkAboutR-2000-003 Denial of Larry Loveless appeal of the Hearing Examiner’s decision for the development of four duplexes on 46th Avenue (RESOLUTION NO. R-2000- 03 A RESOLUTION denying the appeal by Larry Loveless of the Hearing Examiner's Decision on Loveless' Class (2) Application to develop four duplexes in the single-family (R-1) zone on 46th Avenue north of Englewood Avenue. WHEREAS, on October 13, 1999, Larr Loveless ("Applicant" and/or "Appellant") duly appealed the Hearing Examiner's Decision dated September 28, 1999, (Examiner No. IU99-1-13) which denied Loveless' Class (2) Application to develop four duplexes in the single-family (R-1) zone on 46th Avenue north of Englewood Avenue ("the Proposal") on several grounds; and WHEREAS, on December 7, 1999, the City Council conducted a public hearing on Loveless' appeal of the Hearing Examiner's Decision; and WHEREAS, the record considered by the Hearing Examiner included numerous letters that reflect an exceptionally high level of opposition to the Proposal from neighboring property owners. Several of these neighboring property owners appeared at the hearing conducted by the Hearing Examiner on September 9, 1999. The letters and statements at the hearing concerned the adverse impacts on nearby property owners' uses of their properties including without limitation traffic on Englewood Avenue and diminution of the value of single-family residences resulting from the duplexes proposed by the Applicant; and WHEREAS, the City Staff Report to the Hearing Examiner recommended denial of the Proposal and associated short plat; and WHEREAS, at the December 7, 1999, appeal hearing, neighboring property owners expressed the same intense level of opposition to the Proposal; and WHEREAS, it is clear from the Preliminary Short Plat application which called the proposed short plat "Loveless Phase I," submitted in conjunction with the Class 2 application, as well as from the Hearing Examiner's Decision (see pages 4-5), that, if the Applicant successfully developed and marketed the Proposal, the Applicant/ Appellant would seek to subdivide Applicant's remaining adjacent property to develop a total of 14 or 15 duplexes, or 30 residential units; and WHEREAS, section 15.03.030(2) of the Yakima Municipal Code provides: Single -Family Residential District (R-1). The single-family residential district is intended to: a. Establish and preserve residential neighborhoods for detached single-family dwellings free from other uses except those which are compatible with, and serve the residents of, this district; and Page 1 of 3 b. Locate moderate -density residential development, up to seven dwelling units per net residential acre, in areas served by public water and sewer. Detached single-family dwellings are the primary use in this district. The district is characterized by forty-five percent lot coverage; access to individual lots by local access streets; large front, rear and side yard setbacks; and one and two story structures. The density in the district is generally seven dwelling units per net residential acre or less. However, development exceeding seven dwelling units per net residential acre, may be allowed in accordance with Table 4-1 in Chapter 15.04. This higher density development shall be allowed only on those limited occasions when the reviewing official finds that the location and site plan of the project is such that the higher density would be compatible with neighboring land uses and the level of public services, and is consistent with the goals and objectives in the Yakima urban area comprehensive plan. Public water, sewer and other urban services are generally available throughout the district. and WHEREAS, section 15.04.020(2) of the Yakima Municipal Code provides: Class (2). Class (2) uses are generally permitted in the district. However, the compatibility between a Class (2) use and the surrounding environment cannot be determined in advance and occasionally a Class (2) use may be incompatible at a particular location. Therefore, Class (2) review by the administrative official is required in order to promote compatibility with the intent and character of the district and the objectives and development criteria of the Yakima urban area comprehensive plan. The administrative official may approve, deny, or impose conditions on the proposed use and site improvements. The procedures in Chapter 15.14 shall be used to review and evaluate Class (2) uses. WHEREAS, the underlying Class 2 Application was appropriately referred to the Hearing Examiner for review, public hearing and decision pursuant to section 15.14.040(3)(e) of the Yakima Municipal Code; and WHEREAS, the Hearing Examiner's Decision was the result of lawful procedure and followed prescribed process; and WHEREAS, the Hearing Examiner's Decision is based on correct interpretation and application of the applicable law; and WHEREAS, the Hearing Examiner's Decision is supported by evidence that is substantial when viewed in light of the whole record; and WHEREAS, the Hearing Examiner's Decision is within the Hearing Examiner's authority and jurisdiction; and Page 2 of 3 WHEREAS, the Hearing Examiner's Decision gave proper effect to the constitutional rights of the Applicant; and WHEREAS, the City Council has jurisdiction to decide this appeal and all procedural requirements have been satisfied; and WHEREAS, after considering the record considered by the Hearing Examiner, the Hearing Examiner's Decision dated September 28, 1999, Examiner No. IU99-1-13, the arguments of the Applicant/ Appellant and neighbors and interested parties at the appeal hearing on December 7, 1999, the City Council finds concludes that, given the exceptionally intense level of opposition to the Proposal reflected by the record in this matter, which opposition concerns the density, inconsistent character, and adverse impact on property values in the area, which would result from the Applicant's current and apparent future plans, the Class 2 Proposal is incompatible with the single-family uses in the neighborhood, and is inconsistent with the objectives and intent of the Comprehensive Plan and is inconsistent with purpose and intent of Title 15 of the Yakima Municipal Code, and that consequently the Hearing Examiner's Decision on the Class (2) Application should be affirmed and this appeal should be denied; now, therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The appeal by Larry Loveless of the Hearing Examiner's Decision (dated September 28, 1999; Examiner No. IU99-1-13, which is attached hereto and incorporated by reference) to deny Loveless' Class (2) Application to develop four duplexes in the single-family (R- 1) zone on 46th Avenue north of Englewood Avenue is denied, and the Hearing Examiner's Decision to deny Loveless' Class (2) Application is affirmed. ADOPTED BY THE CITY COUNCIL this 4 day of January, 2000. ATTEST: /4C;(1j City Clerk C:\word\land use\appeals\class 2 review\Loveless\deny appeal res.doc Last printed 01/04/00 1:34 PM Page 3 of 3 Master Application by ) EXAMINER,S DECISION ) Larry Loveless for Class 2 ) City No. CL(3) #6-99 Review and a Short Plat ) Creating Four Duplex Lots ) EXAMINER NO. IU99-1-13 On North 46th Avenue Near ) Englewood ) The Examiner conducted a public hearing on September 9, 1999. The staff report presented by Dan Valoff recommended denial due to compatibility concerns. Mr. and Mrs. Loveless were represented by attorney James Carmody. Several neighborhood residents testified with concerns or opposition, and a significant number wrote expressing the same sentiments. The Examiner has inspected the property both prior to and after the hearing. SUMMARY OF DECISION. The application is denied because the overall project creates a dwelling unit density incompatible with R-1 standards. A rezone to R-2 would be more appropriate, prior to developing this project. From the view of the site, the matters contained in the official record including the staff report, a review of both the Yakima Urban Area Comprehensive Plan and the Yakima Urban Area Zoning Ordinance, and from evidence received at the hearing, the Examiner makes the following: 1. Applicant. 2. Location. EXAMINER'S DECISION - 1 Larry Loveless Examiner No. IU99-1-13 FINDINGS Larry and Kimberly Loveless. The property is located on vacant land HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 on the east side of North 46t'' Avenue, north of Englewood Avenue; Assessor's parcel numbers 181315-33040 and 33041. 3. Application. This is a Class 2 zoning review application, coupled with a four lot short plat, treated herein as a master application. 4. Proposed Use. Duplexes. 5. Current Zoning and Use. The site and adjacent area is zoned Single Family Residential (R-1). The property originally was orchard, but is now vacant. Adjacent properties have the following characteristics: Location North South East West Zoning R-1 R-1 R-1 R-2 R-1 Existing Use Orchard Single family residential Single family residential Single family residential (zero lot line) (Bellevue Manor) Single family residential 6. Project Description,Qn June 11, 1999 the City of Yakima Department of Community & Economic Development Planning Division received a Class (2) zoning review and short plat application from Larry & Kimberly Loveless. The short plat proposed the creation of four 8,000 -plus square foot parcels and a remaining larger tract. The applicant has applied for Class (2) review for the development created by this Notice of duplex (condo) units short plat. of Application for this on each of the lots development was sent to adjoining property owners on July 6, 1999, with the 20 -day comment period ending on July 26, 1999. During the comment period, numerous written comments were received, mostly disapproving of the proposed development. In accordance with Chapter 15.14.040(3)(e) of the Yakima Urban Area Zoning Ordinance, the Acting Administrative Official, Bob Shampine, EXAMINER'S DECISION - 2 Larry Loveless Examiner No. IU99-1-13 HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 referred this application to the Hearing Examiner for review, public hearing, and decision. The two existing parcels were created by a recent administrative lot line adjustment which served to delete that portion of the property which has frontage on Englewood. The two parcels directly front on 46th, are of approximately equal size, and total 3.6 acres. Four lots would be created with frontage on 46th. These lots would be located starting at the north edge of the property, extending south. The remaining large parcel would be L-shaped. The bulk of that lot would be located behind (east) of the new duplex lots. The short leg of the L would have frontage on 46th, south of these lots. The 46th Avenue frontage of the larger lot would accommodate another duplex and an interior street to access the remainder of the parcel. That portion of the project is not currently under review. The new duplex lots would range in size from 8,075 to 8,500 square feet. The minimum duplex lot size in R-1 is 8,000 square feet. Each lot will comply with all development standards established by local ordinance. This includes providing four offsite parking spaces for each duplex (two per residential unit). The intent is to build single story duplexes, which will meet all setback and building height requirements. Maximum allowable lot coverage (area covered with impervious surfaces) is 45% in R-1. This proposal shows 43% coverage on the site plan. Utilizing the density calculations in the staff report, based on lots which are of slightly different size than the latest site plan, but still over 8,000 square feet per lot, the dwelling unit density for a duplex unit on these parcels is approximately 10.5 dwelling units per net residential acre. EXAMINER'S DECISION - 3 Larry Loveless Examiner No. IU99-1-13 HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 Public water and sewer will be provided. North 46th Avenue is an unclassified local access street requiring 50 feet of right of way. The street is currently a half developed street with 32 feet of right of way. Physical inspection indicates that the street is developed with pavement, and curb and gutter on the west side. There is no curb and gutter on the east side. The pavement width is approximately 15 feet. Forty-sixth Avenue is barricaded at the north end of this property. Beyond the barricade, based upon my review of city right of way maps, it appears that the city has 16.5 feet of right of way to the north, connecting with Modesto Way. This small strip is improved with curb and gutter on the west side, and has approximately 10 feet of pavement. It is bordered on the east by Tom Gasseling's pear orchard, which also contains his residence. The reason for the street barricade is not clear on the record, but presumably is because of the inadequacy of 46th generally, in particular that portion north of the barricade. City staff recommend that if this project is approved that the development be required to dedicate, along the frontage of the four duplex lots only, an additional 18 feet of right of way. Furthermore, along the duplex lot frontage, the developer will be required to complete the east half of the street to equal 32 feet of pavement together with a five foot sidewalk, and presumably street lights, all along the frontage of these lots. Staff did not recommend, and at the hearing the applicant did not propose, developing 46th Avenue from the south end of this project to the intersection with Englewood. 7. Hearing Testimony. Mr. Loveless testified that if this four lot project works out as he hopes, that he intends to develop the rest of the vacant property in a similar fashion. His ability to market these four lots will determine the future size of other duplexes, as to whether they should be smaller or larger. EXAMINER'S DECISION - 4 Larry Loveless Examiner No. IU99-1-13 HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 He anticipates being able to create, at the same density, approximately 14 to 15 lots total, which means 28-30 duplex (condo) style dwelling units. Mr. and Mrs. Loveless own the house at the southeast corner of Englewood and 46th. This property is immediately adjacent to this project, and will provide the right of way necessary for completion of 46th to Englewood in conjunction with proposed Phase 2 of this project. Phase 2, consisting of the development of 10 or 11 new lots, is not part of this proposal. After the hearing, by written communication from Mr. Loveless to the Examiner, Mr. Loveless indicated that if necessary he will construct 46th to urban standards in conjunction with this four lot project. In other words, 46th would be improved to its full width from Englewood north to the barricade at the north end of the Loveless property. Mr. Loveless provided documentation and extensive testimony concerning the character of the neighborhood. His Exhibit 2 includes a map, marked in blue, showing the various condominium and duplex developments in the area. This includes duplexes located on Estee Court and Garden Park Way, off North 42nd Avenue, as well as Bellevue Place, between 44th and 46th on Englewood, as well as the Englewood Crest and Casa Royale Condominimum developments west of 48th, on Englewood Avenue. In the area marked in blue on Exhibit 2, Mr. Loveless counts 141 condominiums, and 70 houses, together with a church. He refers to this area between 40th and 50th as a condominium corridor along the north side of Englewood. Accordingly, he argues that his project is a logical extension of the corridor, and in fact borders a portion of the west side of Bellevue Manor, the zero lot line development on Bellevue Place. Mr. Loveless prefers that 46th retain its barricade and remain a permanent cul de sac, since 47th provides adequate access EXAMINER'S DECISION - 5 Larry Loveless Examiner No. IU99-1-13 HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 into the Conestoga area, and is a natural buffer for single family access to Englewood. He also points out that it is very difficult to find property on which to build duplexes, and that most of the new single family construction is being built west of Yakima, rather than in this more centrally located area. He anticipates each dwelling unit would have 1,400 to 1,500 square feet, and hopefully sell in the $100,000 to $120,000 range. He notes that the median price for condominiums in Yakima is $117,000, and that the average price is $121,000 per unit. Several residents on North 46th testified. For example, Doug Pratt indicated that the street width of 46th is completely inadequate. He, as did others, testified that any time one meets a garbage truck pulling off Englewood onto 46th, that you have to back up in order to clear the intersection and the street. He pulled no punches in calling the street a disaster, and declaring that it needs widened now, regardless of this project. Several neighborhood residents testified concerning the dwelling unit density, the zoning, and the problem with a piecemeal development approach. Lee Clark, 817 Conestoga, is characteristic. He is against the proposal because the density makes the area look like R-2 zoning. The R-1 single family status of the area keeps getting nibbled away. His second concern deals with the quality of the project. He is concerned that there is nothing relative to the type of improvements that would be required, both public and private, for the overall project, and that there is no overall site plan. This leads to his third concern, which is that a piecemeal approach, reviewing first a four lot project and then a future project, tends to avoid more stringent review of the whole project. Tom Gasseling, who borders the property to the north, voiced the same concerns, indicating that 140 condominiums are enough, EXAMINER'S DECISION - 6 Larry Loveless Examiner No. IU99-1-13 HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 and wondering why Phase 2 is not being dealt with now. He pointed out that the duplexes on Garden Park Way are very nice, and typically sell for $180,00 to $265,000 per individual unit. He is not persuaded that these lower priced units, and the density, is compatible with the existing R-1 zoned neighborhood. These are representative concerns which were also voiced by other speakers at the hearing, and also reflected in the correspondence received prior to the hearing. Attorney Carmody, on behalf of Mr. and Mrs. Loveless, built upon Mr. Loveless' testimony about the character of the area. He pointed out that standard information available from the commonly used Trip Generation Manual indicates that traffic generated by individual families typically averages 10 vehicle trip ends per day, whereas residential condominiums or townhouses generally develop six trip ends per day. He points out that city staff have concluded that there are no capacity problems with Englewood, and that the street system can clearly handle this proposal. In a legal memorandum received by the Examiner after the hearing, Mr. Carmody reiterates Mr. Loveless' commitment to complete full frontage improvements on 46th to Englewood as part of this initial proposal. He also points out that public sentiment alone is not sufficient to deny a project which otherwise complies with all development regulations. 8. Post Hearing Evidence. Reference has been made above to a letter and legal memorandum received from Mr. Loveless and Mr. Carmody respectively. the hearing. be included I have in the These were mailed to my office after reviewed them and conclude that they should record. The primary reason is that Mr. Loveless has made a significant concession from the original application in agreeing to complete 46th Avenue at this time. Mr. Carmody's legal memorandum simply provides case authority for the assertions he made at the hearing, reviewing settled law. EXAMINER'S DECISION - 7 Larry Loveless Examiner No. IU99-1-13 HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 Both documents are included in the official record, and were not solicited by the Examiner. 9. Environmental Review. This project is exempt from review under the State Environmental Policy Act. The City's SEPA ordinance, YMC Chapter 6.88, adopts by reference the categorical exemptions and threshold determinations set forth in RCW 43.21C. (The SEPA statute). See YMC 6.88.185. Under state law the short plat is exempt from environmental review. Under local ordinance, creating two dwelling units on one lot in the R-1 zone is also exempt from review. See YMC 6.88,070(A) (1) (b) . 10. Yakima Urban Area Cor,prehensive Plan. The 1997 Yakima Urban Area Comprehensive Plan's Future Land Use Map designates the preferred use of land in this area as low density residential, meaning less than 7 dwelling units per acre. (See Map III -3, and pages III -6 and III -9, 1997 Comprehensive Plan) Medium density is 7 to 11 units; high density is 12 and over. (Id.). The Plan at page III -11 states: "The distribution of the new housing units by location and density is specified on the Future Land Use Map." The map's designation of areas suitable for moderate residential density development is considered to be able to accommodate over 2,000 new units within the urban service area. If this is inadequate, the plan anticipates annual modification. (See Plan, p. IV -9). This proposal is not consistent with the designation of this area under the Plan as preferred for low density residential development. 11. Yakima Urban Area Zoning. Ordinance. The single family residential (R-1) zone is intended to establish and preserve residential neighborhoods for detached single-family dwellings free from other uses except those which are compatible with, and serve the residents of, the R-1 zone. In addition, the intent is EXAMINER'S DECISION - 8 Larry Loveless Examiner No. IU99-1-13 HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 to locate moderate density residential development, up to seven dwelling units per net residential acre, when served by public water and sewer. (YMC 15.03.030(b)). Duplexes are a class 2 use in R-1, meaning that they are generally permitted but may be incompatible at a particular location. Accordingly, class 2 review is required on a case by case basis in order to review the proposal "...to promote compatibility with the intent and character of the district and the objectives and development criteria of the Yakima Urban Area Comprehensive Plan." (YMC15.04,020(b)). The Two -Family Residential (R-2) zone is designed for both detached single family and duplex structures, with a dwelling unit density of up to twelve dwelling units per net residential acre. The density of this proposal, 10.5 units per acre, is far more consistent with R-2 than R-1 zoning. The clear language of both the Plan and the Zoning Ordinance indicate that duplexes may be scattered throughout the R-1 zone, but not placed in a concentrated fashion which is far more dense than seven units per acre. 12. Caselaw. Mr. Carmody cites cases for the proposition that neighborhood opposition must have some basis in fact or law; unsupported personal opinion does not constitute a justifiable basis for project denial. This is an accurate statement. However, in this instance, neither the Comprehensive Plan nor the Zoning Ordinance countenance this proposal at this location. Neighbors have a right to express their opinion that this proposal is incompatible with the neighborhood and the predominant R-1 zoning. 13. Public Notice. Public notice of the hearing was provided in accordance with the ordinance. EXAMINER'S DECISION - 9 Larry Loveless Examiner No. IU99-1-13 HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 From the foregoing Findings, the Examiner makes the followings CONCLUS I ONS 1. The Examiner has jurisdiction. 2. For the reasons stated herein, the application does not comply with the objectives of the Urban Area Comprehensive Plan, the intent of the Single Family Residential (R-1) zoning district, and the provisions of the Urban Area Zoning Ordinance. 3. The application is denied. DATED this day of September 28, 1999. PHILIP A. LAMB Hearing Examiner EXAMINER'S DECISION - 10 Larry Loveless Examiner No. IU99-1-13 HEARING EXAMINER FOR THE CITY AND COUNTY OF YAKIMA POST OFFICE BOX 4 YAKIMA, WASHINGTON 98907 (509) 248-0706 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT / 3 Item No. For Meeting Of: January 4, 2000 ITEM ill LE: denying the appeal by Larry Loveless of the Hearing Examiner's Decision on Loveless' Class (2) Application to develop four duplexes in the single-family (R-1) zone on 46th Avenue north of Englewood Avenue. SUBMIT 1 ED BY: Lawrence A. Peterson, Assistant City Attorney CONTACT PERSON/TELEPHONE: Lawrence A. Peterson, 575-6030 SUMMARY EXPLANATION: The proposed resolution provides a written decision on this appeal, which was heard by the City Council on December 7, 1999 and was decided by unanimous vote. Resolution X Ordinance Contract Other(Specify) Funding Source ryry •_ APPROVED FOR SUBMITTAL: M )6\-4"4City Manager STAFF RECOMMENDATION: ADOPT THE PROPOSED RESOLUTION. BOARD/COMMISSION RECOMMENDATION: N/A COUNCIL ACTION: