ORDINANCE NO. 412

 

AN ORDINANCE OF THE TOWN OF SOUTH PRAIRIE, PIERCE COUNTY, WASHINGTON APPROVING A VARIANCE FROM THE FRONT YARD SETBACK REQUIREMENTS TO ALLOW NO SETBACK FROM THE FRONT PROPERTY LINE OR RESIDENTIAL STRUCTURE LOCATED IN A RESIDENTIAL DISTRICT,

SPECIFICALLY AT 127 HIGHWAY 162 EAST, ADOPTING FINDINGS AND CONCLUSIONS, SETTING FORTH THE CONDITION OF INDEMNIFICATION AND HOLD HARMLESS.

 

Whereas, A.R. Minich, 127 Highway 162 East, South Prairie, Pierce County, Washington has submitted an application to construct a 36 foot by 36 foot garage on property legally described as Lot 2, Olympic Manor, according to Plat recorded in Book

 

24 of Plats at page 19, Pierce County, Washington, and

 

Whereas, the applicant has requested a variance on the setback from the front property line, and

 

Whereas, the Unified Development Ordinance at Section 17.04.010 requires a

 

25 foot setback from the front property line for a residential structure located in a residential district, and

 

Whereas, the application is for a residential structure located in a residential district, and

 

Whereas, variances are allowed under Section 17.09.040 provided certain requirements are met, and

 

Whereas, a public hearing was held in April 24, 2001 after proper notice, and Whereas, the property owner is requesting a zero front foot setback from the front property line, and


Whereas, the front property line of the property is the right-of-way line of State Route 162, and

Whereas, even though State Route 162 is not built out to its right-of-way line, it may, at some time in the future be built out to its right-of-way line resulting in the structure, subject to the application, having no setback from a state highway, in which case if such occurred, for safety considerations, the structure would have to be removed, and

Whereas, the application was reviewed by the Town Planner and the Town Planner has made certain recommendations consisting of findings and conclusions which have been accepted by the Town Council and are incorporated by reference as Exhibit "I", and

Whereas, the project is categorically exempt from SEPA regulations, Chapter 197-11-800(6)(b) WAC and the Shoreline Management Act 90.58 RCW, and

Whereas, the criterion for the allowance of the variance, as set forth in Chapter 17.04 have been met, and

Whereas, because of the possibility at some point in the future that the state highway may be built to its right-of-way width the property owner, and applicant, and the applicant as property owners heirs, successors and assigns agree to indemnify and hold harmless the Town from any and all claims that may result from the granting of this application, and further agree to hold harmless and indemnify the Town from any costs related to the removal of the structure in the event the highway is widened to its right-of-way, or any part thereof, and


Whereas, with the conditions imposed in this ordinance, the variance is in conformity with the Comprehensive Plan and has no adverse environmental affect.

Now, therefore, the Town Council of the Town of South Prairie, Pierce County, Washington do ordain as follows:

Section 1: The application of A.R. Minich, 127 Highway 162 East, South Prairie, Pierce County, Washington for a variance for the construction of a 36 foot by 36 foot garage on property located on Lot 2, Olympic Manor, according to the Plat recorded in Book 24 of Plats, at page 19, in Pierce County, Washington to allow a zero foot setback from a front property line as a variance is hereby approved provided that the applicant execute an agreement binding upon its heirs, successors and assigns wherein it is agreed that the garage set forth above built on the zero setback from the front property line be removed if the state route is widened and further that an agreement be executed and attached hereto and incorporated by reference as Exhibit "2" to indemnify and hold the Town, its officials, agents and employees harmless from any and all claims that may result from any incident that is related in any way to the construction of the structure with a zero foot setback from the front property line and that it is agreed that the applicant will cause this ordinance and the attached agreement to be recorded with the Recorder's Office for Pierce County and shall advise any subsequent owner of the property of its existence.

Section 2: If any provision of this ordinance, or any exhibit referred to herein, is determined to be invalid or unenforceable for any reason, the remaining provisions of this ordinance and/or any exhibit incorporated by this ordinance shall remain in force and affect.


Section 3: This ordinance shall take effect and be in force five (5) days from and after its passage, approval and publication as required by law.

 

Mayor Layne Ross

INTRODUCED: 4/24/01

PASSED: 4/2/01

APPROVED: 4/2/01

PUBLISHED: 4/2/01

 

 

Attested:

 

Marla Nevill

Town Clerk

 

 

 

 

Approved as to Form:

 

 

Michael J Reynolds

Town Attorney

 



Memorandum

 

 

TO: Mayor and Town Council Town of South Prairie

 

FROM: Mart Kask, Town Planner Town of South Prairie

 

SUBJECT: Variance Application, build a garage within front yard setback Butch Minich. 127 Highway 162 E.. South Prairie. WA 98385

 

DATE: 24 April 2001

At Issue

 

Butch Minich, residing at 127 Highway 162 E., South Prairie, WA 98385, proposes to construct a garage that extends into the front yard setback. Upon conducting an on-site examination and calling for property line markers to be established by a surveyor, it was found that Mr. Minich's residence has been constructed in the front yard setback. Further, a corner of Mr. Minich's residence extends into the Washington State Department of Transportation (WSDOT) right-of-way for SR-162.

 

Knowing the location of Mr. Minich's residence in relation to the front yard setback line and the WSDOT right-of-way line, should the Town of South Prairie go ahead and grant Mr. Minich a variance? The response rests on two tests. One test deals with granting a variance for constructing an addition to a non-conforming structure in the front yard setback. The other test deals with a legal question that the Town Attorney may want to address. The legal question is: "Since a corner of the residence currently extends into the WSDOT right-of-way of SR-162. and the Town grants a variance to add on to the residence by constructing a garage, what liability might the Town incur by granting a variance to add on to a non conforming structure which the WSDOT may require to move or to cut-off to clear the WSDOT right-of-way of any obstruction?"

 

This memorandum only addresses the variance issue. The legal opinion dealing with the potential liability issue can only come form the Town Attorney.

EXHIBIT "1"


Text Box: 415/memo4-24	EXHIBIT "1"Findings

1.                     Mr. A.R. "Butch" Minich, owns a home and resides at 127 Highway 162 E.. South Prairie. WA 98385.

2.                     Mr. Minich's home is located in a "R" Residential Zone, requiring a 25 foot front yard setback. Section 17.04.010.G.4.a of the Unified Development Ordinance.

3.                     Mr. Minich. in December 2000 tiled an application to build a garage. The application was accompanied by a plot plan. The plot plan showed the house to be 30 feet back from the font yard property line.

4.                     Based on the information contained in the application by Mr. Minich. Mart Kask, Town Planner. conducted a Residential Site Plan Review and wrote a memo. dated 13 December 2000. approving the site plan.

5.                     In March 2001, the Building Inspector, inspecting the foundation forms for the garage discovered that the garage and the residence extended into the front yard setback and potentially the WSDOT right-of-way.

6.                     A surveyor was called out to establish the property limits of Mr. Minich's property. The survey was conducted by Delta Surveyors. Delta Surveyor's surveyed the property and put in place property line markers.

7.                     Visually observing the location of the residence and the property markers, it is my conclusion that the house and the proposed garage extend into the 25 foot front yard setback. Further. it is my conclusion that a portion of the house extends into the WSDOT right-of-way.

8.                     The Town of South Prairie's Unified Development Ordinance provides for continued use of non-conforming structures. Section 17.08.100. A.2 states as follows: "Ensure reasonable opportunity for use, maintenance and improvement of legally constructed buildings, structures and site development features which do not comply with current minimum requirements for the district in which they are located."

9.                     The Town of South Prairie's Unified Development Ordinance in Section 17.09.300 further provides the following: "Responsibility for establishing of lot lines and setback lines. Notwithstanding any provisions in this title to the contrary, the Town shall have no duty to verify or establish lot lines or setback lines at a development. The location of lot lines or setback lines at a development and construction related thereto shall be the responsibility of the applicant and owner."


Conclusions

 

1. Mr. Minich's residence at 127 Highway 162 E., south Prairie. WA 98385 is a non-conforming structure by extending into the front yard setback and extending into the WSDOT right-of -way for SR-162.

 

Mr. Minich's application to build a garage must be considered as a variance to a non-conforming structure. The three tests of a variance are listed below.

 

3.                     The variance does not constitute a grant of special privilege inconsistent with a limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the applicant has tiled is located.

 

4.                     Such variance is necessary. because of special circumstances relating to size of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is situated.

 

The granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated.

Recommendations

1. That the South Prairie Town Council grants Mr. Minich a variance to construct a garage that extends into the front yard setback.

2. That the South Prairie Town Council. in their deliberations on the variance question. take into consideration the potential legal liability that the Town may incur by granting a variance to a non-conforming structure that the WSDOT may require to be moved or cut back to clear the SR-162 right-of-way of any obstruction.


EXHIBIT "1"


Text Box: EXHIBIT "2"CONDITIONS ON APPROVAL OF SETBACK
BETWEEN A.R. MINICH
AND
TOWN OF SOUTH PRAIRIE

THIS AGREEMENT made and entered into this 1st day of May, 2001, by and between A.R. MINICH, a single person, his heirs, successors and assigns, hereinafter referred to as "PROPERTY OWNER", and the TOWN OF SOUTH PRAIRIE, a town in Pierce County, Washington hereinafter referred to as "TOWN".

Whereas, PROPERTY OWNER has made application for a variance from TOWN and has approved variance under Ordinance No. 412 which provides certain terms and conditions, and

Whereas, one of the terms and conditions of Ordinance No. 412 is the agreement set forth herein, and

Whereas, Ordinance No. 412 is attached hereto and incorporated by reference as "Exhibit 1" as if set out in full, and

Whereas, PROPERTY OWNER acknowledges that the property is adjacent to a state highway which may be widened in the future, and

Conditions on Setback Page 1 of 5


Whereas, PROPERTY OWNER has no alternative in the type of structure PROPERTY OWNER desires to construct unless he obtains a variance, and

Whereas, the TOWN is unaware of any future expansion plans of the state highway but acknowledges where the state right-of-way is and the possibility that it may expand in the future, and

Whereas, the TOWN does not desire to enter into or allow any variance which may result in any hazard whatsoever in an expanded state highway, and

Whereas, PROPERTY OWNER acknowledges a responsibility to TOWN and is agreeable in taking on the risks of possibly relocating or removing the structure in the future and indemnifying and holding the TOWN harmless from any and all claims as the result of PROPERTY OWNER being allowed the variance, and

Whereas, PROPERTY OWNER has been encouraged by the TOWN to have this agreement and Ordinance No. 412 reviewed by PROPERTY OWNER'S separate council, and

Whereas, PROPERTY OWNER acknowledges the agreement will be permanently on the property and will be binding as to any future heirs, successors and assigns and will burden the property.

Now, therefore,' based upon mutual covenants to be derived the parties agree as follows:

1. Agreement To Remove Structure: PROPERTY OWNER agrees to remove any structures allowed under the Variance Ordinance No. 412 in the event of an expansion or widening of State Route 162 adjacent to PROPERTY

Conditions on Setback Page 2 of 5


OWNER'S property at Lot 2, Olympic Manor, according to Plat recorded in Book 24 of Plats, at page 19, in Pierce County, Washington. Any such action shall be taken at the sole expense of PROPERTY OWNER.

2.                                         Hold Harmless Indemnification: PROPERTY OWNER agrees to hold harmless and indemnify the TOWN, its officials, agents and/or employees from any and all claims that may result from the granting of this variance including, but not limited to, the TOWN'S attorney fees and costs.

3.                                         Burden Upon Property: This agreement shall be a burden upon the property described above and shall run as covenant with the land burdening any future owners.

4.                                         Heirs, Successors and Assigns: This agreement shall be binding upon the heirs, successors and assigns of the parties.

5.                                         Recording: PROPERTY OWNER agrees within 30 days of the passage of Ordinance No. 412 to execute this agreement and to record this agreement with the Pierce County Recorder's Office and pay all filing fees and to send a copy of the recorded document to the TOWN within 10 days from receipt of the recorded document to verify the document has been recorded.

6.                                         Independent____ Council____ Review: PROPERTY OWNER acknowledges being advised to have independent council review this document.

PROPERTY OWNER:

 

By: A.R. Minich, a single man

Conditions on Setback Page 3 of 5 EXHIBIT "2"


TOWN OF SOUTH PRAIRIE:

By: Mayor Layne Ross

By: Marla Nevill; Town Clerk

STATE OF WASHINGTON

PIERCE COUNTY

On this day personally appeared before me, A.R. Minich, to me known to be the Property Owner described herein, who executed the within and foregoing instrument and acknowledged that he signed the same as his free and voluntary act for the uses and purposes therein mentioned.

GIVEN under my hand and official seal this 17th_ day of May, 2001.

 

Heather Rounds

NOTARY PUBLIC, State of Washington residing at: Tacoma

My Commission Expires:__ 2/29/04

 

STATE OF WASHINGTON

PIERCE COUNTY

On this day personally appeared before me, Layne Ross, to me known to be the Mayor of the Town of South Prairie, the municipal corporation described herein, who executed the within and foregoing instrument on behalf of the Town of South Prairie, and who acknowledged that he was authorized to sign the within and foregoing instrument on behalf of the Town of South Prairie for the uses and purposes therein mentioned.

Conditions on Setback Page 4 of 5 EXHIBIT "2"


GIVEN under my hand and official seal this 3rd day of May, 2001.

 

NOTARY PUBLIC, State of Washington residing at:

My Commission Expires: 8-9-01

STATE OF WASHINGTON ) :ss

PIERCE COUNTY )

On this day personally appeared before me, Maria Nevill, to me known to be the Town Clerk of the Town of South Prairie, the municipal corporation described herein, who executed the within and foregoing instrument on behalf of the Town of South Prairie, and who acknowledged that she was authorized to sign the within and foregoing instrument on behalf of the Town of South Prairie for the uses and purposes therein mentioned.

 

GIVEN under my hand and official seal this________ 3rd day of May, 2001.

 

 

Sandra Ramsey

NOTARY PUBLIC, State of Washington residing at Buckley

My Commission Expires: 8-9-01


Conditions on Setback Page 5 of 5