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VE-8-93ZONING ADJUSTOR SPOKANE COUNTY, WASHINGTON IN THE MATTER OF A VARIANCE FROM FLANKING STREET YARD SETBACK REQUIREMENT FILE: VE-8-93 APPLICANT: SPOKANE SEED COMPANY BY WESTERN MILLWRIGHTS COMPANION FILE(S): CE-273-90; BP-121-93 AND BUILDING PERMIT RECORDS FOR E. 6015 ALKI PARCEL NUMBER(S): 35133.1311 FINDINGS OF FACT, CONCLUSIONS, AND DECISION APPLICATION DESCRIPTION: The applicant proposed to build two grainstorage bins at the southeasterly comer of the parcel, with a flanking street yard setback of 2 feet from the lot flanking street (Alki Road) property line; whereas, section 14.634.325.A.3 of the Zoning Code of Spokane County requires that the minimum flanking street yard setback to be 35 feet. Authority to consider such a request exists pursuant to section 14.404.080 of the Zoning Code of Spokane County and Spokane County Board of County Commissioners resolution No. 89 0708, as may be amended. PROJECT LOCATION: West Spokane Valley, at the northwest corner of the intersection of Alki Avenue and Lake Road, one block east of Fancher Road, in SW 1/4 of Section 13, Township 25N, Range 43 EWM; 6015 E. Alki Avenue. OPPONENTS OF RECORD: NONE PUBLIC HEARING AND DECISION: After consideration of all available information on file, exhibits submitted a personal tour of the area, a review of other flanking street yard variances in the area, and testimony received during the course of the public hearing held on October 13, 1993, the Zoning Adjustor rendered a written decision on October 26, 1993 to DENY the application as set forth in the file documents. A lesser Administrative Exception is granted pursuant to section 14.506.020.9. of the Zoning Code of Spokane County, to 20 feet from the Alki Avenue property line, as set forth below. FINDINGS OF FACT 1. Testimony was taken under oath. 2. The proposal is exempt from the provisions of the Washington State Environmental Policy Act, Chapter 43.21C RCW pursuant to WAC 197-11-800 (6) (b). 3 . The reasons for granting the variance, as set forth by the applicant, are as follows. a. There is a need for more storage at the site and the site is built to the point that no additional storage can be added within the 'footprint' provided by the zoning regulations. CASE NO. VE-8-93 SPOKANE COUNTY ZONING ADJUSTOR PAGE 2 b. Approving the variance and the additional storage would create less dust, conserve energy (due to less handling of the material) and reduce the waste associated with excessive handling of the product. Adding these two bins increases the efficiency of operation and hence reduces the environmental costs. c. The variance is required for a continued and enhanced economic return from the property through more efficient storage and handling of the peas and lentils. 4. Numerous factors and circumstances were noted by the Zoning Adjustor as a result of a site inspection and a discussion between the Zoning Adjustor and the applicant during the hearing. a. The applicant owns a sizeable parcel of land immediately to the south, across Aiki. Although this site as storage may have its own complicating factors with a franchise from the County Engineer's regarding air rights or subsurface ground rights, storage is possible to the south with conveyance under or above the roadway to the processing plant on the north side of Alki. b. In that discussion the applicant disclosed that it is their eventual intention to bring the processing portion of their operation for peas or lentils across Alki to the south and separate the storage and processing of peas and lentils onto the two separate sites (one side of Alki for peas and the other for lentils). c. An inspection of the area by the Zoning Adjustor disclosed numerous instances in which new construction has occurred on the south side of Alki, clearly adhering to the 35 foot setback for the buildings, with the front yard areas for landscaping, storm water drainage disposal and parking areas. In the general area there appears to be no instance of lawful single digit dimension setbacks from the property lines, although there appears to be numerous setbacks of approximately 20 feet. A color aerial photograph looking northeasterly across the property depicts the general setbacks in the area and substantiates that, at least along Alki, there would be no similar setbacks rivaling the one sought by the applicant. The present site of the proposed storage bins contains a shop building and fenced outdoor storage area for various materials related to the entire processing storage at the Alki site. A review of building permits after the public hearing (by the Zoning Adjustor) disclosed information generally as follows. The site on the north side of Alld has been the subject of many building permits over the years. The file for E. 6015 Alki is extensive. Of particular interest is the slow but steady expansion of the site, including both the processing operation and additional storage bins. Slowly but surely the number of storage bins and buildings added has consumed nearly all of the lawfully buildable site east and southeast of the processing plant. The shop structure is an exception to the storage bin phenomena. The VE-8-93 CASE NO. VE-8-93 SPOKANE COUNTY ZONING ADJUSTOR PAGE 3 building permit for the main portion of the storage building was issued on June 5, 1972 (permit J3370) and the site plan showed a 35 foot setback for the 40 foot by 24 foot building. Most site plans on building permits subsequent to that continue to re -verify a 32 to 35 foot setback from Alki. On October 26, 1978, a 24 foot by 30 foot addition (building permit M1427) was granted to this same shop building. The site plan for M1427 indicated the existing shop (building permit J3370) as being 45 feet from the south property line at Alki. A detailed site plan associated with a 1980 building permit (80B-1456) shows the shop building constructed only about 25 feet from the Alki property line. This same building permit also indicates a storage yard fence (not lawfully authorized) approximately 3 feet from the Alki property line. The shop building, which is proposed to be replaced by the two storage bins appears not to have been built as per the submitted site plans which then recognized Alki as the front yard for the site, wherein a 35 foot setback was required by the former Spokane County Zoning Ordinance. d. With the establishment of the Zoning Code of Spokane County on January 1, 1991, Alki became the flanking street yard and Fancher and Lake Roads became front yards. The setbacks for both Alki, Fancher and Lake are now 35 feet under the Zoning Code. e. Spokane County Engineer's Office has recommended a'site distance, braking and stopping analysis' be submitted as part of the application for review prior to any approval (reference: October 11, 1993 memorandum from the Spokane County Division of Engineering and Roads, Office of the Spokane County Engineer). The expressed concem of the engineers is that the location of the proposed bins (at 2 feet from the Alki property line) may well provide a view blockage inconsistent with the public health, safety and general welfare of the traveling public on Alki. They suggested the recommended study would quantify any problem and would recommend mitigating measures. f. Subsection 14.506.020.9. of the Spokane County Zoning Code addresses a possible allowable Administrative Exception to a flanking street yard setback. The criteria for granting an administrative exception for a flanking street yard setback is substantially less prescriptive than granting a variance under section 14.404.080 of the Zoning Code (variance). In a memorandum of November 12, 1991, the Planning Director established general criteria for granting Administrative Exceptions. Number 8 of that memorandum addressed an example and stated 2 criteria for granting the flanking street yard setback administrative exception. These provisions would allow the granting of an administrative exception for a 20 foot setback from Alki (as opposed to the required 35 foot setback). The criteria set forth by the Planning Director, specifically "...inability to expand existing structure, add garage, etc...." is applicable to the subject application. Additionally, the granting of such an administrative exception should not, by the Planning Director criteria, create a burden for adjoining property owners. vE-S-93 CASE NO. VE-8-93 SPOKANE COUNTY ZONING ADJUSTOR PAGE 4 g. The Zoning Adjustor introduced various previous flanking street variance decisions in the near vicinity. The various case numbers were read into the record, along with a summary of the decisions. Generally, the decisions where either denial or the granting of a variance to approximately one half of the standard. In only one or two instances were variances granted approaching the degree requested by the applicant. In several instances the previous Zoning Adjustors specifically described that the problem necessitating an application for a variance: would apply to almost any property owner or proposal; is or is not related to the personal situation of the applicants; is either related or is not related to unique circumstances at the property and; is or is not related to the general condition of the surrounding or adjacent properties. h. The two sites which the applicants own are both flat and of common rectilinear shape, encumbered by no special circumstances related to the land; except that the north property is 'built out.' The Division of Engineering and Roads' request for a study needs to be kept foremost in the minds of any appeal body considering the appeal of this decision. 5. Where the problem complained of is common to land in the area or throughout the community, the proper solution is legislative rezoning, rather than piecemeal administrative exemption. The alleged problem or hardship must relate to the land. Community needs or personal hardships do not qualify as legitimate grounds for issuing a variance. (Zoning and Land Use Controls, Rohan, § 43.02 [4][b][i]). 6. Section 14.404.082 of the Zoning Code addresses the requirements for granting a variance. Subsection 1 of the above section is as follows: 1. Any variance from the terms of the Zoning Code shall be subject to such conditions as will (a) ensure that the adjustment shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and similar zone classification in which the property is situated, (b) ensure that the intent and purpose of the Zoning Code is maintained with regard to location, site design, appearance, landscaping and other features of the proposal, and (c) protect the environment, public interest and general welfare, and that the following circumstances are found to apply: a. Because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the Zoning Code creates practical difficulties and is found to deprive the property of rights and privileges enjoyed by other properties in the vicinity and similar zone classification; and VE-8-93 CASE NO. VE-8-93 SPOKANE COUNTY ZONING ADJUSTOR PAGE 5 b. That the granting of the variance will neither be materially detrimental to the public welfare nor injurious to the property or improvements in the vicinity and zone in which the property is located. (emphasis added) Subsection 4 of the above section defines several key terms, one of the most important of which is 14.404.082.4.e wherein 'practical difficulties' are established as one or more of any number of differences and privileges characteristic of a property due to a combination of special circumstances and standards of the Code: provided, that a practical difficulty shall not solely be a parcel alleged to be too small for a given use if the subject property can be put to any number of similar or alternative uses conforming to the standard. (emphasis added) CONCLUSIONS 1. Special circumstances (Zoning Code, § 14.404.082.1.a. and § 14.404.082.4.b.) are not found to exist such that the application of the zone creates a practical difficulty (Zoning Code, § 14.404.082.4.e.i.). 2. The property is not deprived of rights and privileges enjoyed by other properties in the vicinity and similar zone classifications (Zoning Code, § 14.404.082.4.a., c. and d.). Reasons for granting a variance must be reasons pertaining to the property itself which prevent full use of the property to the extent other properties in the vicinity and under the same zoning can be used. RCW 36.70.810(2)(a). 3. Strict application of the 35 foot setback on Alld arguably can create an unreasonable burden in light of the purpose to be served by the Zoning Code. The purpose of setbacks is to, among other things, create a uniform visual relief in a zone along the street side environment. It is also for the purpose of creating visual corridors for the purposes of safety of the traveling public with respect to ingress and egress from private properties onto the public thoroughfare. A setback of 2 feet places a major visual obstruction to the point where the public safety is jeopardized (reference comments from the Spokane County Engineers Division of Engineering and Roads memorandum). However, application of the previous flanking street standard (Zoning Code, § 14.506.020.9.) achieves the purpose and intent of the Zoning Code for visual relief and protection of the health, safety and general welfare of the public. For the proposal, although it is not to the degree to which the applicant seeks relief, the 20 foot setback provision as provided in the Administrative Exception portion of the Zoning Code (§ 14.506.020.9) is grantable since it addresses an expansion/intensification issue and does not adversely affect adjacent property. 4. A broader public or communion need or interest will not be served by granting the variance. Granting the variance requested by the applicant, will, as described above, place the traveling public and those private parties entering the public right-of-way from the Alki property line, at some degree of risk. Furthermore, the applicant company, and to a lesser extent some consumers of peas or lentils, are the benefactors of the variance, if granted. Evidence of hardship or difficulty that will support a variance must relate to the land itself and not to the owner -applicant (St. Clair v. Skagit County, 43 Wn App. 122, 126, 1986). VE-8-93 CASE NO. VE-8-93 SPOKANE COUNTY ZONING ADJUSTOR PAGE 6 5. Granting the variance to 2 feet from the property will establishes a precedent which will adversely affect the zoning concept for the area and the County as a whole. The qualifying criteria for a variance is not met by the proposal and to grant the variance opens all industrial properties in the county to serious consideration of a similar degree of relief. Granting relief to 20 feet from the property line is an application of the Administrative Exception of Chapter 14.506 of the Zoning Code, which has a considerably lower threshold for granting than does the criteria for variances established in the Zoning Code. 6. The variance should not be granted substantially based upon the lack of reasonable economic return (Zoning Code, § 14.404.082.3.c.). 7. If the application for variance were to be granted, the Zoning Adjustor or Board of Adjustment would have no basis for denying subsequent variance applications by other owners under similar circumstances. With no special circumstances at the site, this would amount to a defacto text amendment to the Code; an authority neither Hearing Body possesses. 8. The applicant has not presented a convincing case that a broader public or community need or interests would be served by granting the variance, as opposed to denying the application. 9. Rohan, in Zoning and Land Use Controls, § 43.02 [5], states that over the years a number of factors have been considered by courts with respect to granting variances. These include: (1) whether strict compliance with the terms of the ordinance will preclude a permitted use from being pursued; (2) whether the land will yield a reasonable return; (3) the degree to which the applicant seeks to vary from the ordinance; (4) the degree of harm which will be imposed on the surrounding area if the variance is granted; (5) whether some other method can be pursued to avoid the need for the variance; (6) whether the difficulty is self imposed; and (7) whether the interest of justice and the general welfare will be served. Rohan continues that no factor alone controls and all must be considered. It is a balancing act of the competing interest between the landowner and the community, as expressed through the zoning document. As the Zoning Adjustor considered all the facts, testimony, relevant case law and instructive usefulness of Rohan's Zoning and Land Use Controls, it is concluded that the balancing test of competing interest lies with he variance request as being: (1) primarily to the benefit of the applicant; and (2) generally to the detriment of the local area and the community, as a precedent which would destroy the purpose and intent of the concept of building setbacks set forward in the Zoning Code adopted by the Board of County Commissioners. 10. The proper legal requirements for advertising of the hearing before the Zoning Adjustor of Spokane County have been met. DECISION From the foregoing Findings and Conclusions, the Zoning Adjustor DENIES the applicant's proposal as generally set forth in the file documents and instead APPROVES an Administrative Exception to 20 feet from Alld Avenue. VE-8-93 CASE NO. VE-8-93 SPOKANE COUNTY ZONING ADJUSTOR PAGE 7 CONDITIONS OF APPROVAL I. GENERAL 1. The following conditions shall apply to the applicant, owner and successors in interest and shall run with the land. 2. Failure to comply with any of the conditions of approval contained in this decision, except as may be relieved by the Zoning Adjustor, shall constitute a violation of the Zoning Code for Spokane County and be subject to such enforcement as is appropriate. 3 . The Zoning Adjustor may administratively make minor adjustments to site plans or the conditions of approval as may be judged by the Zoning Adjustor to be within the context of the original decision. II. PLANNING DEPARTMENT 1. Although, grain storage bins are the intended land use, other structures may be reviewed and approved by the Zoning Adjustor. 2. Prior to development of the property under the authority of this decision, the applicant shall submit a site plan for approval by the Zoning Adjustor. The site plan shall accurately indicate the Alki Avenue property line, existing physical features, and overlay the outline of the grain storage bins. The approval of this site plan by the Zoning Adjustor does not supersede or take the place of any site plan requirements required through the building permit process and associated with complying with the underlying standards of the I-3 zone for new construction. 3. In the event this variance denial and approval of a subsequent administrative exception approval is overturned by the Board of Adjustment or a court of competent jurisdiction, it is highly recommended that the requested engineering study be undertaken if the storage bins or other construction is to be closer than 20 feet to the Alki Avenue property line. III. DEPARTMENT OF BUILDINGS 1. The applicant shall contact the Department of Buildings at the earliest possible stage of design/development in order to be informed of code requirements administered/enforced as authorized by the State Building Code Act. Design/development concerns include: Fire Apparatus Access Roads; Fire Hydrant/Flow; Approved Water Systems: Building Accessibility; Construction Type; Occupancy Classification; Exiting; Exterior Wall Protection; and Energy Code Regulations. None is needed. IV. DIVISION OF UTILITIES VE-S-93 CASE NO. VE-8-93 SPOKANE COUNTY ZONING ADJUSTOR PAGE 8 V. HEALTH DISTRICT None is needed. VI. DIVISION OF ENGINEERING AND ROADS 1. In the event a variance or other deviation is granted to closer than 20 feet to the Alld Avenue property line the following should apply: The County Engineer has reviewed this proposal and requests that a site distance, braking and stopping analysis be submitted as part of the application for review prior to approval being granted for the project. This analysis shall be as prescribed in A POLICY on GEOMETRIC DESIGN of HIGHWAYS and STREETS, prepared by the AMERICAN ASSOCIATION OF STATE HIGHWAY AND TRANSPORTATION OFFICIALS. In addition, that no decision be rendered in favor of the variance application until such time as a review of the analysis has occurred and the County Engineer has forwarded his comments and recommendations to the Zoning Adjustor. NOTICE: PENDING COMPLETION OF ALL CONDITIONS OF APPROVAL WHICH NEED TO BE COMPLE 1 ED PRIOR TO PERMIT ISSUANCE, PERMITS MAY BE RELEASED PRIOR TO THE LAPSE OF THE 1EN (10)-DAY APPEAL PERIOD. HOWEVER, THE COUNTY HAS NO LIABILITY FOR EXPENSES AND INCONVENIENCE INCURRED BY THE APPLICANT IF THE PROWL APPROVAL IS OVERTURNED OR ALTERED UPON APPEAL. DATED this Rath- day of October, 1993. 2 G. MOSHER, AICP ing Adjustor ounty, Washington PILED: 1) Applicant (Certified/Return Receipt Mail) 2) Opponents of Record 3) Spokane Division of Engineering and Roads 4) Spokane County Health District 5) Spokane County Division of Utilities 6) Spokane County Department of Buildings 7) Planning Department File BP-121-93 8) Planning Department Cross-reference File and/or Electronic File VE-S-93 CASE NO. VE-8-93 SPOKANE COUNTY ZONING ADJUSTOR PAGE 9 NOTE: ONLY THE APPLICANT OR AN OPPONENT OF RECORD MAY N1LE AN APPEAL WITHIN 1 EN (10) CALENDAR DAYS OF THE ABOVE DA It OF SIGNING. APPEAL MUST BE ACCOMPANIED BY A $200.00 FEE. APPEALS MAY BE FILED AT THE SPOKANE COUNTY PLANNING DEPARTMENT, PUBLIC WORKS BUILDING, 1026 W. BROADWAY, SPOKANE, WA 99260 (Section 14.412.042 of the Zoning Code for Spokane County). VE-8-93