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HomeMy WebLinkAboutCity Council Committees - Planning-Board of Adjustment - 08/01/1994 (5)BOARD OF ADJUSTMENT MINUTES August 1, 1994 The scheduled meeting of the Kent Board of Adjustment was called to order by Chair Jack Cosby on the evening of Monday, August 1, 1994, at 7 p.m. in Chambers West, Kent City Hall. BOARD OF ADJUSTMENT MEMBERS: Jack Cosby, Chair Ron Bannister Walter Flue Doug Gesler CITY STAFF MEMBERS: Laurie Evezich, Assistant City Attorney Linda Phillips, Planner Ron Campbell, Engineering Inspector Lois Ricketts, Recording Secretary APPROVAL OF THE JULY 11, 1994 BOARD OF ADJUSTMENT MINUTES Mr. Flue MOVED that the minutes of the July 11, 1994 meeting be • approved as written. Mr. Banister SECONDED the motion. Motion carried. Chair Cosby opened the public hearing with the administration of the oath to all who intended to speak. MORFORD, PAUL, ET AL APPEAL #AD 94-1 Mr. Mel Kleweno, Curran, Kleweno and Johnson, represented the following applicants: Mr. and Mrs. Paul Morford, Lot 1322204-9337; Mr. and Mrs. Robert MacIsaac, lot 132204-9336; Mr. and Mrs. Dale Morford, lot 132204-9335; and Mrs. Myrna Millick, lot 132204-9225; Mr. and Mrs. Paul Morford, lot 132204-9228. These applicants own five contiguous parcels along Fourth Avenue North east of the Valley Freeway. He stated that one of the issues of the appeal was the question of ownership of certain lots on June 20, 1973. Lot 9337 was owned by Robert T. Kobayashi. Lot 9336 was owned by Murray but sold to Kobayashi in 1968; however, final payment was not made by Kobayashi until 1980. The fee title was with Murray, but the purchaser's interest in the real estate contract was with Kobayashi. He contended that the title does not pass to the purchaser until the contract is paid in full. Ownership of lot 9336 was vested in the seller who held the property in separate ownership and was never held in continuous ownership prior to June 20, 1973, and therefore not subject to the non -conforming lot . provisions. Lot 9335 was owned by Mr. Kobayashi on June 20, 1973. He submitted Exhibit 1 into the record. This letter dated May 10, 1994 addressed to the Planning Director requested a hearing for Board of Adjustment Minutes August 1, 1994 this appeal at the earliest possible date. He expressed concern for his clients because of the delay they have experienced in this matter and the limited construction season in this area. Mr. MacIsaac submitted Exhibit 2 into the record, a chronology of events regarding his parcel, and explained that he purchased lot 9336 in January 1994 and planned to build six small houses on the site. Because the lot was long and narrow, he had arranged with Paul Morford to share an access road between lot 9337 and lot 933.6 before the lot was purchased. Because of the access road, the 80 - foot by 300 -foot parcel became a 66 1/2 foot by 300 foot parcel. His communication with the City of Kent regarding this property had been through Paul Morford. He had hoped to build six rentals on the site. Since the City Council has expressed more interest in ownership than rental developments, he considered building inexpensive condominiums, because six houses would need to be built on six separate lots. Mr. Morford met with the Planning Department after the lots were purchased, and he was informed that lot 9337, lot 9336 and lot 9335 and lot 9225 were illegal lots. At this time Paul Morford purchased lot 9228 to the north of the other four parcels. In an effort to get through the planning and building process, he created a conceptual drawing of triplexes and • fourplexes utilizing all the parcels, but he specifically pointed out that each was owned separately. When this drawing was presented to the Planning Department, it was determined that this was an integrated plan and must go through SEPA. He expressed concern about a huge, integrated project because it might necessitate some kind of partnership, and he wished to keep his property in separate ownership. He submitted this conceptual drawing as Exhibit 3. He submitted as Exhibit 4 a document from Chicago Title which showed ownership by Richard and Mae Murray until June 16, 1981. It was later determined that lot 9225 and lot 9228 were legal lots, and Mr. Paul Morford proceeded with building plans for lot 9228. Since Mr. MacIsaac was anxious to expedite development on his lot 9336, he deposited fill on his site at the same time that fill was deposited on lot 9228. The City inspected the sites and placed stop work orders on both parcels since no grade and fill permit was available at the time of inspection. Mr. Kleweno entered Exhibit 5 into the record, a letter from Paul Morford dated July 29, 1994, and Exhibit 6, Thresholds for categorical exemptions. Ms. Evezich explained that the appellants are owners of five contiguous lots which were in continuous ownership prior to 1973 and therefore subject to nonconforming lot requirements and therefore need a lot line adjustment to consolidate these lots from five lots into four lots in order to achieve the development they 2 • Board of Adjustment Minutes August 1, 1994 are proposing. The appellants also appeal the City's determination that there are over 30 units in the entire project which invokes a SEPA checklist and a threshold determination by the SEPA official. The appellants also appeal a determination that there were over 500 cubic yards of fill deposited. on lot 9336 which also invoked SEPA. The only issues properly raised before the Board of Adjustment pertain to the ownership of the lots prior to 1973 and whether or not the proposed project is subject to multifamily design review. Whether the plan presented by the appellants represents an integrated proposal and thus requires SEPA, and that over 500 cubic yards of fill were brought onto tax lot number 9228 and lot 9336 thus requiring a SEPA checklist are matters outside the jurisdiction of the Board of Adjustment. The Board is without legal authority to make a decision on these matters. The SEPA issues raised in the appellants' original appeal are only appealable to the King County Superior Court. As an integrated development, the project is not subject to categorical exemption. The project is considered as a whole. Washington Administrative Code 197-11-060 provides that when a proposal or parts of a proposal are related to one another closely enough to be in effect a single course or action, they shall be evaluated in the same environmental documents. The appellants claim that they are • entitled to categorical exemption pursuant to Kent City Code Section 11.03.210 which allows the exemption from SEPA for the development of just 12 units. The purpose of the categorical exemption is to have it applied to an entire project, not on a lot - by -lot basis. There is no entitlement to categorical exemption because lots are individually owned. She submitted into the record Exhibit 7, Washington Administrative Code 1197-11-060; Exhibit 8, Kent City Code 11.03.520; Exhibit 9, Chapter 12.01, Board of Adjustment statutory authority; Exhibit 10, Section 15.09.0047, Multifamily design review; Exhibit 11, Section 15.08.100(E) Nonconforming lots. She pointed out that the matters pertaining to the number of cubic yards of fill and whether or not this is an integrated proposal are beyond the scope of the Board's authority, but since there had been specific questions asked regarding these issues that she was unable to answer in advance of the public hearing, the City inspector who measured the cubic yards and issued the red tag orders was present. Ron Campbell, construction inspector, stated his professional qualifications and explained that he had measured the fill on three separate occasions, and he determined that over 700 cubic yards of fill was actually placed on the site in his measurement on May 2, 1994. Mr. MacIsaac sought the assistance of Mr. Campbell in removing the excess yardage from the site, and Mr. MacIsaac reduced the quantity of the fill to equal the exempt level of 500 cubic yards and received the permit back. • 3 • Board of Adjustment Minutes August 1, 1994 Ms. Evezich added that any amount of fill over 500 cubic yards requires a SEPA checklist. She summarized by stating that the two issues before the Board at this meeting were the ownership of the parcels and whether the development was subject multifamily design review. Mr. Kobayashi was the owner of the parcels since 1968 when he entered into the real estate contract with the Murrays, so the parcels were in continuous ownership and therefore subject to the setback restrictions and nonconforming lot restrictions. When Washington courts have been asked to determine what type of an interest a real estate contract vendee has in property that they are purchasing, the courts have characterized their property interest as that of an owner when certain things have been stated in the real estate purchase contract. Specifically, as in this case, the vendee, the buyer, has the right to possession, which means the vendee could go before a city council and request permits and variances, the vendee is charged with the responsibility for paying taxes and assumes risk of loss, which means the vendee had the burden of any damages to the property as the result of any catastrophe, and the vendee is charged with the responsibility of maintaining insurance. The City's position is that Mr Kobayashi has been the purchaser and owner of this property since 1968. As such these lots were not in separate ownership. They were in • continuous ownership prior to 1973 and therefore do not constitute legal lots and are therefore subject to the nonconforming lot restrictions, and a lot line adjustment must be effectuated by the appellants before they can have the requested proposal developed in the manner in which they have proposed. The other issue appropriately before the Board is that multifamily design review is required for these lots. There are more than three units proposed on each parcel. Multifamily design review would be required regardless of whether or not there were three units on each of these five lots and regardless of whether or not they were held in separate ownership because of the integrated relationship with one another. If the City is precluded from implementing multifamily design review at this time, the City would be unable to make provisions of important aspects of this project that could make it an environmentally sound project. The configuration of rcads, drainage facilities, where structures will be located on sites, where garages will be located are all very important considerations that need to be taken into account. When the appellants first approached the City in early March, only one project was being proposed at that time. When they later found out that there was actually a combination of projects being proposed over five separate lots, the City did what it is required to do by state law and evoked its SEPA authority over the project to determine and make provisions for this as an integrated project. The appellants on their own initiative brought this integrated site • 4 • Board of Adjustment Minutes August 1, 1994 plan to the Planning Department, to Development Services to obtain addresses, and to Public Works Department to obtain grade and fill permits. The appellants questioned different departments of the City regarding development possibilities as separate legal lots. The Kent Code does not allow individualized analysis of lots when they are going to be combined with other lots for a single project. They have worked together for the connections of utilities, their grade and fill permits, their SEPA review and their lot line adjustments. The applicant, Paul Morford, has signed for permits on several occasions as attorney in fact for a number of appellants, including Dale Morford and Myrna Millick. The applicants believe that having separate legal lots entitles them to deviate from important analysis and code requirements. She concluded by saying that there is nothing in the code that entitles them to that. Mr. Kleweno responded that in the Ashford vs. Reese case the executory contract of sale conveyed no title or interest either legal or equitable to the vendee. This was the law of the State of Washington in 1925, and that was the law in 1973. It wasn't until 1977 that the Supreme Court said that a vendee had any interest in real estate by virtue of the vendee's interest in a real estate contract. Up to that time any interest they had was not an interest in real estate as set forth in Ashford vs. Reese. It was an interest in personal property. The City Code speaks of ownership, not ownership interest. On June 20, 1973 ownership of the real estate resided in the Murrays, and the ordinance does not apply and the determination of the Planning Director is incorrect, and the 66 and 2/3 foot lots on the frontage by their depths are legal lots. He emphasized that the owners of the parcels cooperate, but they own the parcels separately and this is not an integrated project. The MacIsaac lot was not in ownership continuously by Kobayashi in 1973, because he had only a purchaser's interest in a real estate contract, which by the law in the State of Washington at that time was only personal property at most. It wasn't an interest in real estate. If the Board made that determination, then the determination of the Planning Director that it is not a legal lot would fall. He also asked that the Board make the determination that the initial threshold determination that this is an integrated project is not true. This was never the intent of the owners, only to cooperate in the development of the site. Discussion followed. The meeting was adjourned for executive session. • 5 Board of Adjustment Minutes • August 1, 1994 Mr. Flue MOVED that the appellants' appeal for items 1 and 2 be denied, and that the Board has no jurisdiction on items 3 and 4. Mr. Banister SECONDED the motion. Motion carried. (Mr. Gesler opposed.) Ms. Evezich asked Mr. Flue if the motion that he had made was denying the appellants' appeal on items 1 and 2, therefore moving to uphold the determination of the Planning Director that the lots are in continuous ownership and subject to the nonconforming lot restrictions of Section 15.08.100 and require the lot line adjustment for the consolidation of four lots. Mr. Flue responded that she was correct. Ms. Evezich asked Mr. Flue if the motion that he made was also denying appellants' appeal that their property is not subject to multifamily design and upheld the decision of the Planning Director that it is subject to multifamily review. Mr. Flue responded that this was correct. ADJOURNMENT • Mr. Flue MOVED that the meeting be adjourned Mr. Banister SECONDED the motion. Motion carried. The meeting was adjourned at 10:30 p.m. Respectfully submitted, Ja s P. Har is, 8ecretary 0 6