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WVE-4-81BEFORE THE ZONING ADJUSTOR OF SPOKANE COUNTY, WASHINGTON IN THE MATTER OF: APPLICANT:. K. C. JORDAN ) DECISION REQUEST: WAIVER OF VIOLATION ) CONCLUSIONS OF LAW COUNTY CODE: 4.25.030 (f) and 4.05A.070 (bl) ) FINDINGS OF FACT FILE NUMBER: WVE-4-81 PARCEL #: 13531-1195 DATE OF HEARING: SEPT. 23, 1981 DATE OF WRITTEN DECISION: OCT. 7, 1981 REPRESENTED BY: FRANK CONKLIN, ATTORNEY DECISION The waiver of violation is hereby granted. That the garage may remain at its present location as long as said structure does not encroach upon the public right-of-way. INTRODUCTION This matter being the consideration by the Zoning Adjustor for Spokane County and pursuant to Chapter 4.25, Section 4.25.010, the Zoning Adjustor has the authority to hear and decide such matters coming before him. After conducting a public hearing to receive all public testimony and after review- ing the public record and examining available information, the Zoning Adjustor in accordance with Chapter 36.70.810 Revised Code of Washington and Section 4.25.030 of the Zoning Ordinance hereby makes the following Findings of Fact and Conclusions of Law hereinbelow stated. The applicant, K.C. Jordan; filed an application with the Planning De- partment on August 31, 1981 requesting approval of a waiver of violation. The subject property is located North of Cataldo Avenue in Section 13, Township 25, Range 43. That on September 23, 1981 a public hearing was held before the Zoning Adjustor. After receiving public testimony and accepting the file from the Planning Department, the Zoning Adjustor placed this matter under advisement for review and decision. The date of October 7, 1981 was set by the Zoning Adjustor for the announcement of the decision. After due consideration of the evidence contained in the file as compiled by the Planning Department, evidence presented by the applicant, all evidence elicited during the public hearing and from on -site review, the following Con- clusions of Law, Findings of Fact and Conclusions shall constitute the decision by the Zoning Adjustor on this application. CONCLUSIONS OF LAW That the Zoning Adjustor of Spokane County has jurisdiction over the issuance of the building permit for the project to the applicant pursuant to the provisions of Chapter 36.70.810 RCW and Section 4.25.030 of the Spokane County Zoning Ordinance. That the applicant submitted an application to the Planning Department requesting a public hearing before the Zoning Adjustor, and that pursuant to Chapter 36.70.840 and Section 4.25.040 of the Zoning Ordinance, notice for a public hearing was given through the United States mail to all property owners within a radius of 300 feet from the subject pro- perty. II. That all citizens notified an public agencies having jurisdiction were afforded the opportunity to testify or submit written comments on the pro- posed project. PAGE 2 WVE-4-81 That this action was taken after finding that the public health, safety, and general welfare will not be infringed upon. Furthermore, this action con- forms to the intent of the Zoning Ordinance in that the issuance of a waiver of violation is not violating the spirit and intent of the Ordinance. It was found that the applicant acted in good faith and that there are no modifications that can be reasonably imposed. The garage is not infringing upon any other properties nor the public right to safe travel along Cataldo Avenue. IV. That pursuant to the above cited provisions of law, Findings of Fact here- inbelow substantiates action taken regarding this application. Any Finding of Fact hereinafter stated which is deemed to be a Conclusion of Law is adopted as the same. FINDINGS OF FACT I. The applicant requested a waiver of violation in order to allow an exist- ing garage to remain at it's present location which is found to be approximately six feet from the front property line. The Spokane County Zoning Ordinance in this instances requires a 25 foot setback from Cataldo Avenue. II. The Spokane County Zoning Ordinance, Section 4.25.030 (f) provides that a waiver of violation may be granted when found by the Zoning Adjustor that the applicant acted in good faith with every intent to comply with the provisions of the Zoning Ordinance. Such action by the Zoning Adjustor must be made in full consideration of the public health, safety, convenience and general welfare. The applicant, through his attorney, testified that the garage was construct- ed in 1977. That a building permit application was made on February 7, 1977. On the application, the garage is shown to be set back 10 feet from Cataldo Avenue. That on February 8, 1977 a building permit (No. L6856) was issued by the Building Code Department. The permit did note as standard comments the minimum setback requirements. It was further stated that because of the lot configuration and the fact that Cataldo was not paved at that time, the front property line was assumed to be at the edge of the unpaved road. It is also noted that the sub- ject property abuts I-90 Freeway at the north property line. IV. The lot size is 13,860 square feet having a lot depth of 120 feet at the east property line and 38.3 feet of depth at the west property line as shown by survey contained in the file. There are 126 feet of frontage on Cataldo. The violating structure is located at the west end of the lot and would appear to be located approximately 5 feet from the west line. The requir- ed side yard setback in this instance is 5 feet (reference Section 4.05A.040). V. From on -site review, it is found that the garage is not near any other residences or structures. The adjacent property to the west which is the va- cated portion of Girard Road contains an area approximately 1200 square feet in size and is vacant. It was noted that the garage is completly finished and i;s landscaped. A chain link fence is located along Cataldo. Also the garage is oriented in a manner that the doors are located on the east side of the building thus there is no backing of vehicles directly onto Cataldo Avenue. There is one point of ingress and egress at the approximate middle of the lot. The Zoning Adjustor did notice other structures within the near vicinity which appear to be not in compliance with the setback provisions of the zoning ordinance. The mobile home located directly across Cataldo from the subject property appears to be located less than 10 feet from the property line along Cataldo. PAGE 3 WVE-4-81 VI. Comments submitted by County Departments reviewing this file are as follows: DEPARTMENT OF BUILDING AND SAFETY: In a memo dated September 16, 1981, it was stated that this application was a result of a complaint ➢odged with the Zoning Investigator on August 7, 1981. Further, it was found that the appli- cant had obtained the necessary building permit for the garage in 1977 (refer to Finding III), however, no inspections were called for. On site inspections by various members of the Department have indicated no apparent hazard. Also it was noted that further information is available from the Spokane County Engineer's Office. COUNTY ENGINEER'S OFFICE: The Engineers Office in a memo dated September 23, 1981 responded that they had no comments concerning this request. VII. The opportunity was afforded at the hearing to any interested parties to testify in opposition to this request. Testimony was received from E. M. Sanstrom, a neighboring property owner. Mr. Sanstrom expressed the following concerns: (1) Public right-of-way encroachment; (2) Property devaluation; and (3) Property ownerships. The Zoning Adjustor in review of these concerns writes the following re- sponses: 1) Encroachment - As evident by law, the Zoning Adjustor does not have the jurisdiction to grant the right for any building or structure to encroach onto adjoining properties regardless of whether it is owned by the public or by an individual property owner. The file informa- tion presented to the Zoning Adjustor at the public hearing did not confirm that the violating structure is on public property. As re- ported in Finding No. VI, the Engineer's Office had no comment. Furthermore, claims against encroachment are considered a civil matter and not under the jurisdiction of the Zoning Adjustor. The decision in this matter is to grant the waiver of violation pro- vided that the garage does not encroach upon public right-of-way. Mr. Sanstrom further argued that such encroachment presents a traffic hazard. The Zoning Adjustor finds that the location does not impair sight visability nor impede the safe and orderly flow of traffic. The location of the garaae on the north side of Cataldo is opposite of the clear view triangle of the intersecting point of Cataldo and Girard Road. Further, vehicular access to the garage is on the east side of the structure and on the applicant's property. Thereby there is no backing or parking of vehicles within the public right-of-way. 2) Property Devaluation - The adjacent parcel of land most directly affected is a triangular shape parcel containing approximately 1200 square feet in area. This parcel is a vacated portion of Girard Road. Interstate 90 is adjacent to the northerly property line. The size of this portion would preclude any development. Perhaps a small garage may be located provided relief from the setback requirements are ob- tained. Mr. Sanstrom'.s.residence and accessory structures are located on lots fronting on Girard. Therefore it can be concluded that the present location of the violating garage which is 5 feet from the pro- perty line is not an encroachment onto the required side yard setback area. Further, this adjacent portion being a vacated road would not contribute to property devaluation. Eventhough the subject property is located adjacent to an interstate highway, the applicant's use of that property for residential purposes and well landscaped can only enhance property values in the vicinity. 3) Property Ownership - Eventhough there was testimony presented regard- ing ownership, the Zoning Adjustor does not have authority to rule on ownership. This action can only be valid provided that the structure is located within the applicant's property ownership whether owned, or leased. PAGE 4 4NE-4-81 The Zoning Adjustor does note, however, that the file records, specifically the legal descriptions as shown on the assessors records, indicate that the vacated portion of Girard Road is owned by Mr. Sanstrom. In reference to the survey prepared by Clarence E. Simpson Engineers and submitted by Mr. Sanstrom, -it would appear that the Interstate boundary does cross the northwest corner of the subject property making the west line 38.3 feet in length. However, the depth of the lot at the west side of the garage, considering that it is set back 5 feet from the west property line, is scaled on the survey to be approximately 42 feet. VIII. Any Finding of Fact stated hereinabove which is deemed a Conclusion here- inafter shall be adopted as the same. IX. That based on the Findings of Fact stated hereinabove, the Zoning Adjustor writes the following Conclusions to substantiate his decision that the waiver of violation should be granted. CONCLUSIONS I. As supported by Findings Nos. III, V, VI, and VII, it is the Zoning Adjust- ors conclusion that the applicant did act in good faith with every intent to comply with the provisions of the Zoning Ordinance. That further, the appli- cant's action does not infringe upon any neighboring properties nor cause a hazard to the public health, safety, convenience, and general welfare. II. This action cannot be construed to be a permit for encorachment onto ad- joining properties including public right-of-way not owned or leased by the applicant. There was no substantial information or verification that the garage is extending beyond the applicant's property boundary. The County Eng- ineer's Office in review of this application and reported in Finding No. VI had no comment. The Zoning Adjustor's jurisdiction is this matter can only be the issue regarding location of the garage regarding the front yard setback distance. The application was made Sections 4.25.030 (f) and 4.05A.070 (bl) and duly advertis- ed through public notification. All other issues regarding use, locations, and ownership are not under the jurisdiction of the Zoning Adjustor to review and decide as a part of this application. IV. It is the Zoning Adjustor's conclusion that since the violating structure was built in 1977 and the violation was not detected until August 1981, it would be an unreasonable burden and use of zoning law to require compliance. V. The requirement for the issuance of a waiver of violation depends upon find- ing that the spirit and intent of the Zoning Ordinance is not being violated. From the file information and on -site review, it is noted that there are special circumstances that limits building sites and usage. The shape of the applicant's lot and the location next to an interstate highway would deprive the subject pro- perty from rights and privileges enjoyed by other properties in the vicinity. That relief in setback requirements can be justified without being materially detrimental to the public welfare or injurious to property and improvements in the vicinity. PAGE 5 WVE-4-81 VI. The Zoning Adjustor found that the applicant's plot Plan submitted with this application containing dimensions could not be verified to be true and accurate. That it does appear to the Zoning Adjustor that the garage is not located 10 feet from the front property line. Therefore, as a means to uphold the spirit and intent of County Codes and to protect the public from encroach- ment, the Zoning Adjustor is issuing the following Order. ORDER The applicant is hereby given approval to allow the violating structure (garage) to remain at its present location. If it is determined that any portion of said structure extends beyond the applicant's ownership, the appli- cant shall either relocate the garage or acquire by purchase or lease the necessary additional land in order to comply with this action. ENTERED THIS / DAY OF c;0C/c1'.Q.4 , 1981. ATTEST BY: 7/ci//�/-i _.. PARTIES OF RECORD: C rl THOMA L. IAVIS ZONING ADJUSTOR FOR SPOKANE COUNTY, WASHINGTON Frank Conklin 17606 E. Montgomery Greenacres, WA 99016 E.M. Sanstrom N. 915 Girard Rd. Spokane, WA 99206 PURSUANT TO SECTION 4.25.090 OF THE SPOKANE COUNTY ZONING ORDINANCE, THIS ORDER CONSTITUTE THE FINAL DECISION OF THE ZONING ADJUSTOR, APPEALABLE TO THE BOARD OF ADJUSTMENT OF SPOKANE COUNTY WITHIN TEN (10) DAYS OF THE DATE OF THE WRITTEN DECISION BY THE ZONING ADJUSTOR AND SHALL BECOME EFFECTIVE AT THE END OF THE APPEAL PERIOD.