BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY

Transcription

1 BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY In the Matter of the Application of ) ) NO. RUEX Lowell Trana ) ) FINDINGS OF FACTS, For Approval of a Reasonable Use Exception ) CONCLUSIONS, ) AND DECISION SUMMARY OF REMAND The request for a Reasonable Use Exception to construct a single-family residence on property at Gardner Court SE, which is within the 100-year floodplain of the Nisqually River, is DENIED. SUMMARY OF RECORD Request Lowell Trana (Applicant) requested a Reasonable Use Exception (RUEX) to construct a singlefamily residence at Gardner Court Southeast in Thurston County. The single-family residence is proposed to be located within the 100-year floodplain of the Nisqually River, which is a sensitive area as defined by Thurston County in its Critical Areas Ordinance in Chapter of the Thurston County Code. Hearing Date An open record hearing on the request was held before the Hearing Examiner of Thurston County on November 6, REMAND On December 21, 2000 the Hearing Examiner of Thurston County remanded the request to the Thurston County Department of Development Services for additional information on issues identified in the Remand Order. The Department submitted the information in a letter dated January 8, The additional information is identified in Exhibit 2 with attachments. Testimony At the open record hearing, the following individuals presented testimony under oath:

2 Linda Whitcher, Development Services Lowell Trana, Applicant Randy Reynolds Exhibits At the hearing, the following exhibits were admitted: EXHIBIT 1 Development Services Report Attachment a Attachment b Attachment c Notice of Public Hearing Reasonable Use Exception Application Site Development Plan proposed by Applicant Attachment d Thurston GeoData Center Aerial Photograph printed August 23, 2000 Attachment e Attachment f Photographs of Homes on Adjacent Parcels September 22, 2000 Preliminary Approval Memorandum from Bernadette Clemente, Development Review Attachment g August 29, 2000 Comment Letter from Gary Duvall, Environmental Health Attachment h Critical Area Buffer Notice EXHIBIT 2 January 8, 2001 Letter from Linda Whitcher, Development Services Upon consideration of the testimony and exhibits submitted at the open record hearing and the information provided pursuant to the remand, the Hearing Examiner enters the following Findings, Conclusions, and Decision: FINDINGS 1. Lowell Trana (Applicant) requested a RUEX to construct a single-family residence at Gardner Court Southeast Thurston County. The subject property, a 7,200 square foot lot, is a lot within an approved plat known as the Nisqually River Park Division 1. The lot is located within the 100-year floodplain of the Nisqually River, which has been designated as a sensitive area by Thurston County pursuant to the County s Critical Area Ordinance (TCC chapter 17.15). In order for the proposed development to occur on the subject property an RUEX is required. Exhibit 1, Staff Report, Exhibit 1, Attachment a. Trana, RUEX Page 2

3 2. In 1994 Thurston County adopted the Critical Areas Ordinance (CAO) TCC Chapter 17.15, which limits construction of subdivisions on floodplains. While most construction in the floodplain is prohibited (TCC ), the CAO allows an exception (The RUEX). However, not every request for construction will qualify to be considered for a RUEX. A review must be made of the status of the lot for which the RUEX is sought and the lot must be either vested for development or have a nonconformity status that allows it to be developed. 3. At the November 6, 2000 hearing for the RUEX, evidence was presented that the Nisqually Park Division 1 was recorded in May of 1969, a significant time prior to February 1, Exhibit 1, Staff Report. After remand, the Department did a more specific search and discovered that the plat was approved by the Thurston County Board of Commissioners on June 2, 1969 and recorded with the Thurston County Auditor on June 4, Exhibit 2. The subject property is Lot 19 of the plat. 4. The history of the permit activity for Lot 19 is limited. On May 24, 1972 a septic permit for Lot 19, for installation of a septic system and placement of a three-bedroom mobile home, was issued by the County. At that time the County did not require a separate building permit if a septic permit was secured. Exhibit 2, Exhibit 2 Attachment d. A permit for a carport on the lot was issued on September 12, Exhibit 2, Exhibit 2 Attachment d. Apparently no other permits for the property have been issued. Exhibit Lot 19 is on the Nisqually River flood plain. The property has experienced floods with the most recent major flood occurring in Whitcher Testimony. 6. Since the placement of the mobile home and carport on the lot in the 1970 s there has been no further construction done on-site. While the record is unclear as to the reasons for the removal or destruction of the mobile home and carport, it is clear that the land has not been used for residential use for an extensive period of time. There have been no building permits sought for Lot 19, nor has any construction or reconstruction been done on the property since the 1996 flood. Whitcher Testimony. CONCULSIONS 1. Lowell Trana (Applicant) requested a RUEX to construct a single-family residence at Gardner Court Southeast Thurston County. The subject property, a 7,200 square foot lot, is a lot within an approved plat known as the Nisqually River Park Division 1. The lot is located within the 100-year floodplain of the Nisqually River, which has been designated as a sensitive area by Thurston County. In order for the proposed development on the subject property to occur an RUEX is required. Finding of Fact No If a RUEX request qualifies, it is reviewed pursuant to TCC For a RUEX request to qualify, it must have a nonconforming status as defined in TCC Chapter Trana, RUEX Page 3

4 or the request to develop must be vested under TCC Q 1-3. The instant request fails to qualify under both of these requirements. The reasoning for this decision is as follows: TCC sets forth the criteria for an RUEX. However, before an RUEX can be considered the property in question must either involve a nonconforming structure or be new construction that is vested pursuant to TCC In addressing the RUEX request of the Applicant, two issues must be considered. Those issues are as follows: 1) Does the Applicant have a vested right to develop the lot with a residence (house or trailer) based on the nonconforming status of the lot or residence that was on the property until the flood of 1996? and 2) If there is no nonconforming status for the lot or residence, can the Applicant develop a new residence within the floodplain? I. Does the Applicant have a vested right to develop the lot with a residence (house or trailer) based on the nonconforming status of the lot or residence that was on the property until the flood of 1996? The CAO allows development of a lot in a sensitive area if it can be proven that the structures on-site are nonconforming as defined in the CAO. Thus the Applicant s property must be nonconforming in order for it to be reviewed for a RUEX based on a nonconforming status theory. In the CAO nonconforming uses are defined in TCC as an activity lawfully established prior to the adoption of this chapter, but because of the application of this chapter does not conform to the provisions of this chapter. There is no definition or direction as to what constitutes an activity. 1 The CAO also sets forth in TCC the definition of nonconforming structure as a building or a portion thereof, which was lawfully erected, altered, or maintained prior to the adoption of this chapter, but because of the application of this chapter does not conform to the provisions of this chapter. However, nowhere in the code is the term nonconforming residences defined. The CAO, while not defining nonconforming residences, does address replacement of nonconforming residences in a floodplain regulated by the CAO. 1 In the January 8, 2001 letter to the Hearing Examiner (Exhibit 2), the Thurston County Development Services Department concluded that the Nisqually River Park plat is a nonconforming use because it was platted prior to the enactment of the Thurston County Critical Area Ordinance (CAO). While this conclusion may be debated it serves no purpose because a nonconforming use is not relevant to determining if there is nonconforming status to construct or place a single-family residence on-site. The relevant investigation is whether the Applicant qualifies to develop based on a determination of nonconformity for a residence or structure. Trana, RUEX Page 4

5 TCC T. 2 regulates the replacement of nonconforming residences by adopting the process for the replacement of nonconforming structures as set forth in TCC That ordinance reads: A nonconforming structure which is damaged or destroyed by accident, fire, explosion, act of God or public enemy may be restored and used for the nonconforming use in existence at the time of destruction provided that: 1. The structure may be restored or rebuilt in a nonconforming manner to the same extent that, but no more than, the pre-existing structure was nonconforming. 2. The building permit application for repair or reconstruction is submitted within twelve months of the occurrence of damage or destruction. (Ord (part), 1997: Ord , 1995: Ord (part), 1980) (emphasis added). Applying the guidelines of TCC to the instant request, the Applicant cannot develop or replace the single-family residence based on a nonconformity theory. While a structure/residence could be built in a similar manner, as what may have been on-site until the 1996 flood, it is prohibited because any nonconformity has lapsed. Because the Applicant did not take action to build, repair, or reconstruct the structure/residence within twelve months of the occurrence of damage or destruction as required by TCC , the property has lost any nonconformity status. The Applicant s property is prohibited from being considered for an RUEX for development based on a nonconforming theory. II. If there is no nonconforming status for the lot or residence can the Applicant develop a new residence within the floodplain? Because the Applicant does not have a nonconforming use, structure, or residence on the subject property the only other alternative available to qualify for an RUEX is TCC Q 1-3. This ordinance regulates construction of new single-family residences in 100-year flood plains. 2 The ordinance reads: Q. Single-Family--Residence, Appurtenant Structure, Boathouse, Deck, and Garage. 2 Mobile homes are subject to this regulation because they are included in single-family definitions of TCC ). Trana, RUEX Page 5

6 1. In the one-hundred-year floodplain, a new single-family residence may be constructed on a lot created in a subdivision if: a. A complete application for preliminary approval of the subdivision was submitted before February 1, 1994; and b. A complete application for a building permit for the residence was either submitted before February 1, 1994 or within five years of the filing of the final plat. 2. All other construction of new residences in the one-hundred-year floodplain is prohibited. 3. For purposes of this subsection, "subdivision" includes subdivisions, short subdivisions, and large lot subdivisions as defined in Chapter TCC. According to the County no complete application for a building permit for a new residence was submitted before February 1, Clearly the RUEX cannot be considered because the property does not satisfy the requirement of TCC Q 1b. DECISION The request a Reasonable Use Exception to construct a single-family residence on property at Gardner Court Southeast, which is within the 100-year floodplain of the Nisqually River, is DENIED for the reasons as set forth herein. DATED this 26 th day of January K:\sepa.sh\DECISION\RUEX\ decision-2.doc James M. Driscoll Trana, RUEX Page 6