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"
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.
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