BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY In the Matter of the Application of ) ) NO. RUEX 010274 Harry and Charlotte Hawkins ) ) FINDINGS, CONCLUSIONS For Approval of a Reasonable Use Exception ) AND DECISION ) SUMMARY OF DECISION The request for approval of a Reasonable Use Exception to construct a single-family residence within 200 feet of a Class II wetland is GRANTED, with conditions. SUMMARY OF RECORD Request: Harry and Charlotte Hawkins (Applicants) requested approval of a Reasonable Use Exception (RUEX) to construct a single-family residence within 200 feet of a Class II wetland. The residence would be located at least 70 feet from the wetland edge and the driveway leading to the residence would be located at least 60 feet from the wetland edge. The subject property is located south of 93 rd Street on the east side of Hart Road in Thurston County, Washington (no address has been assigned) and is identified as Tax Parcel No. 12723120104. Hearing Date: An open record hearing on the request was held before the Hearing Examiner of Thurston County on June 18, 2001. Testimony: At the open record hearing, the following individuals presented testimony under oath: Liz Morrell, Thurston County Development Services Harry Hawkins, Applicant Charlotte Hawkins, Applicant
Exhibits: At the hearing, the following exhibits were admitted: EXHIBIT 1 Development Services Report Attachment a Attachment b Attachment c Attachment d Attachment e Notice of Public Hearing Reasonable Use Exception Application Site Development Plan Zoning/Site Map Wetland Report Attachment f Findings, Conclusion, and Decision for RUE-94-006 dated June 5, 1995 Attachment g Critical Area Buffer Notice Upon consideration of the testimony and exhibits submitted at the open record hearing the Hearing Examiner enters the following : FINDINGS 1. The Applicants requested approval of a RUEX to construct a single-family residence within 200 feet of a Class II wetland. The residence would be located at least 70 feet from the wetland edge and the driveway leading to the residence would be located at least 60 feet from the wetland edge. The subject property is located south of 93 rd Street on the east side of Hart Road in Thurston County, Washington (no address has been assigned) and is identified as Tax Parcel No. 12723120104. 1 Exhibit 1, Staff Report, page 1; Exhibit 1, Attachments b and c. 2. The subject property is zoned Rural Residential with a density standard of one dwelling unit per two acres (RR-1/2). Permitted uses within the RR-1/2 zone are residential and agricultural. Exhibit 1, Staff Report, page 2; TCC 20.10.020. 3. The subject property is a 1.2-acre parcel that is located entirely within the 200-foot buffer of a Class II wetland that extends over the northwest corner of the property. Singlefamily residential development is prohibited within the wetland buffer except with approval of a Reasonable Use Exception. There are no other critical areas on-site. 1 The legal description of the property is a portion of Section 23, Township 17 North, Range 2 West, W.M. Exhibit 1, Staff Report, page 1. Harry and Charlotte Hawkins, RUEX 010274 Page 2
Exhibit 1, Staff Report, page 2; Exhibit 1, Attachments c and e; Testimony of Ms. Morrell; TCC 17.15, Table 5; TCC 17.15.415. 4. The parcel is approximately 181 feet wide and 290 feet deep. The Applicant proposes to place a single-family residence and septic drainfield in the southeast corner of the property. The residence would be 15 feet from the southern property line, 60 feet from the eastern property line and more than 70 feet from the wetland edge. The septic drainfield would be located between the residence and the eastern property line, with the edge of the drainfield only five feet from the eastern property line. A driveway, including a vehicle turnaround area, would extend east along the southern property line from Hart Road to the residence. At its closest point, the driveway would be 60 feet from the wetland edge. The residence could not be moved any farther southeast (away from the wetland edge) without intruding on required septic system setbacks or the vehicle turnaround area. Exhibit 1, Attachment c; Testimony of Mr. Hawkins. 5. Surrounding development is single-family residential to the south. The land east of the subject property is undeveloped, and there is a wetland north of the site. Hart Road is west of the site and crosses the wetland. Exhibit 1, Staff Report, pages 2 and 4; Exhibit 1, Attachments c and d. 6. The parcel was created in 1977, prior to the current zoning of the property and the adoption of the Critical Areas Ordinance. The property has not been part of a subdivision or boundary line adjustment since the Critical Areas Ordinance became effective on February 1, 1994. Exhibit 1, Staff Report, pages 2 and 4. 7. The Critical Areas Ordinance specifies different wetland buffer widths according to the intensity of the land use. Although under the original RR 1/5 zoning of the property the minimum buffer width would have been 100 feet, under the current RR 1/2 zoning of the property the minimum buffer width is 200 feet. 2 TCC 17.15, Table 10; Testimony of Ms. Morrell. 8. The parcel is vegetated with a dense canopy of fir and alder trees and a dense understory of shrubs and ground cover. Vegetation within the 60 to 70-foot buffer would not be disturbed. A fence would delineate the wetland buffer. Exhibit 1, Staff Report, page 2; Exhibit 1, Attachment c; Testimony of Ms. Morrell. 9. Building permits for single-family residences are categorically exempt from State Environmental Policy Act (SEPA) review. TCC 17.09.050. 10. Notice of the open record hearing was mailed to property owners within 500 feet of the site on June 5, 2001 and was published in The Olympian and posted on the property on June 8, 2001. Exhibit 1, Staff Report, page 3; Exhibit 1, Attachment a. At the hearing the 2 Although no testimony was taken on the issue, the Site Plan depicts that a buffer width reduction would be needed to construct the residence even if the 100-foot standard applied to the property. Exhibit 1, Attachment c. Harry and Charlotte Hawkins, RUEX 010274 Page 3
County recommended approval of the RUEX application with conditions. No public comment was received. Exhibit 1, Staff Report, page 3; Testimony of Ms. Morrell. CONCLUSIONS Jurisdiction The Hearing Examiner is granted jurisdiction to hear and decide applications for Reasonable Use Exceptions pursuant to Chapter 36.70 of the Revised Code of Washington and Chapter 17.15 of the Thurston County Code. Criteria for Review The Thurston County Critical Areas Ordinance allows the Hearing Examiner to grant a Reasonable Use Exception if the following five findings can be made: 1. No other reasonable economic use of the property as a whole is permitted by this Chapter; 2. No reasonable economic use with less impact on the critical area or buffer is possible; 3. The requested use or activity will not result in any damage to other property and will not threaten the public health, safety or welfare on or off the development proposal site; 4. Any alteration to a critical area is the minimum necessary to allow for reasonable economic use of the property; and 5. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant in subdividing the property or adjusting a boundary line thereby creating the undevelopable condition after the effective date of this Chapter. TCC 17.15.415. Conclusions Based on Findings 1. No other reasonable economic use of the property as a whole is permitted by the Critical Areas Ordinance. The only reasonable economic use of the property is residential. Other potential uses, including agriculture and recreation, are not reasonable because of the size and location of the property. Findings of Fact Nos. 2-5. 2. No reasonable economic use with less impact on the critical area or buffer is possible. As described above, the only reasonable economic use of the property is residential. Findings of Fact Nos. 2-5. 3. The proposed residential use will not result in any damage to other property and will not threaten the public health, safety or welfare on or off the subject property. Harry and Charlotte Hawkins, RUEX 010274 Page 4
There are no public health or safety issues associated with the proposal. Minimum setbacks from the septic drainfield would be maintained. Finding of Fact No. 4. 4. The proposed alteration of the critical area is the minimum necessary to allow for reasonable economic use of the property. The entire property is located within the wetland buffer, and the residence would be as far from the wetland edge as possible while maintaining required setbacks. Conditions are needed to ensure that as many trees as possible are retained on-site, that no clearing occurs within the reduced wetland buffer, and the buffer edge is properly identified. Findings of Fact Nos. 1, 3, 4, and 8. 5. The inability of the Applicant to derive reasonable use of the property is not the result of actions by the Applicant in subdividing the property or adjusting a boundary line thereby creating the undevelopable condition after the effective date of the Critical Areas Ordinance. Finding of Fact No. 6. DECISION The request for approval of a Reasonable Use Exception to construct a single-family residence on Tax Parcel No. 12723120104, as depicted on the Site Plan dated November 27, 2000 (Exhibit 1, Attachment c), is GRANTED, subject to the following conditions: A. Prior to or in conjunction with the issuance of any building permit, all applicable Critical Areas Ordinance regulations and requirements of the Thurston County Environmental Health Department and Thurston County Development Services Department shall be met. B. Section 17.15.415 of the Critical Areas Ordinance sets out the process and criteria for any property owner to apply for a Reasonable Use Exception to carry out a use or activity, which is prohibited by the ordinance. The ordinance states that the "hearing examiner shall grant the reasonable use exception" if the following five specific findings can be made. 1. "No other reasonable economic use of the property as a whole is permitted by this Chapter." The property is 1.20 acres in size. Due to the size of the property and the parcel proximity bordered on the west by a County road, to the south by a residence, and to the north a wetland, all other reasonable economic uses are very limited. Reasonable economic uses could be agriculture, recreation, or a public facility. None of these uses, because of the size and location of the property could be considered a viable economic use. 2. "No reasonable economic use with less impact on the critical area or buffer is possible." Harry and Charlotte Hawkins, RUEX 010274 Page 5
As discussed in No. 1 above, staff does not believe there is another reasonable economic use of the subject property. Thus, there would be none with less impact. 3. "The requested use or activity will not result in any damage to other property and will not threaten the public health, safety or welfare on or off the development proposal site. As conditioned, staff does not believe that the activity will result in any damage to other properties and should not threaten the health, safety, or welfare on or off the site. 4. Any alteration to a critical area is the minimum necessary to allow for reasonable economic use of the property. The house and septic system would be placed as far upland of the wetland edge as possible but due to the size of the property and the amount of upland area, the subject property does not allow many chances to the proposed site plan submitted. Staff recommends that that a minimal amount of trees be removed to accommodate the home site. 5. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant in subdividing the property or adjusting a boundary line thereby creating a undevelopable condition after the effective date of this chapter. The property has not been part of a subdivision, or boundary line adjustment sense February 1, 1994, effective date of the Critical Areas Ordinance. In addition the site has not been altered. C. The proposed residence is the only residence that would be located within 60 to 70 feet from the wetland. There appears to be no other homes within the setback area within the immediate area. Within sight distance from the subject property the wetland remains unaltered with the exception of Hart Road, which cuts across the wetland. D. The Critical Areas Ordinance gives the Hearing Examiner the authority to impose conditions on any Reasonable Use Exception approval to serve the purpose of the ordinance. Staff recommends several conditions including recording Appendix A (Critical Area and Buffer Notice) with the County Auditor, restricting all development and land clearing to >60 feet from the wetland edge, leaving the remaining buffer in its natural state, and submitting a drainage and erosion control plan that includes directing stormwater away from the wetland area and the binding conditions of the Reasonable Use permit. Harry and Charlotte Hawkins, RUEX 010274 Page 6
E. Thurston County Review Agencies have not commented on this recommendation. There appear to be no problems raised by Thurston County Review Agencies that would inhibit the granting of the requested Reasonable Use Exemption. F. Prior to the issuance of any building permit, the Applicant shall record with the County Auditor a Site Plan and Hearing Examiner Decision with all conditions of approval. G. Prior to site preparation, the Applicant shall submit, if required by the Roads and Transportation Services Department, a drainage and erosion control plan that includes the installation of silt fencing along the length of the area to be disturbed and upland of the buffer edge that meets the requirements of the Drainage and Erosion Control Manual for the Thurston Region, as amended. H. Only land clearing incidental to the preparation of the home site shall be permitted. There shall be no clearing within the 60 to 70-foot reduced buffer area identified on the Site Plan (Exhibit 1, Attachment c) as "No Disturb Buffer Area." The Applicant shall mark the trees to be removed and obtain County approval prior to removal. I. Prior to any land clearing activities, the upland edge of the wetland buffer area shall be indicated with permanent split rail fencing and two wetland buffer boundary signs. This fence shall be installed along the length of the reduced buffer boundary edge. Decided this 3 rd day of July 2001. LeAnna Drevecky K:\sepa.sh\DECISION\RUEX\010274.Hawkins.doc.rtf Harry and Charlotte Hawkins, RUEX 010274 Page 7