HomeMy WebLinkAboutCity Council Committees - Planning-Board of Adjustment - 08/01/1994 (4)�i
BOARD OF ADJUSTMENT
Verbatim 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, Inspector, Engineering
Lois Ricketts, Recording Secretary
Mr. Flue MOVED that the minutes of the July 11, 1994, meeting be
approved as written. Mr. Banister SECONDED the motion. Motion
carried.
The public hearing was opened with the administration of the oath.
MORFORD PAUL ET AL APPEAL #AD 94-1
(Verbatim Minutes)
Chair Cosby: Doug, you had a question.
Mr. Gesler: One thing that ..reading this thing that somewhat
bothered me.. Who acts as the attorney for the Board of
Adjustment?
Ms. Evezich: I do.
Mr. Gesler: You are also acting as the attorney for..
Ms. Evezich: Excuse me, sir. I misunderstood you. Tonight I am
representing the City. The City Attorney, Roger Lubovich, would
ordinarily represent the Board of Adjustment in all matters that
you would hear; however, since Mr. Lubovich originally wrote some
of the correspondence regarding this appeal to Mr. Morford, we
believe there was a conflict of interest because the parties
weren't able to agree to a certain form of process in advance. We
weren't able to provide counsel for you in any other capacity
because of Roger's conflict. If you have any questions regarding
procedure, and if Mr. Kleweno has no objection to providing you
limited answers regarding procedure, I could do that for you.
i.
t
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. Gesler: One of the points I noticed in here it seems that,
what page was that ... Well, I'm not sure what page we are on ... some
of the contentions are that this is not a matter that can be heard
by the Board of Adjustment, that it is not the appropriate forum.
I feel somewhat... with lack of legal advice, do we in fact, or can
we in fact hear this matter unless this is the appropriate forum.
I don't know whether it is or not.
Ms. Evezich: Is this microphone on? Pardon me. I just wanted to
be sure that I was on the record. There are matters raised in the
appellants' original appeal of April 22nd that the City has argued
are not within the appellate jurisdiction of the Board of
Adjustment. we have provided you with statutory reasons why we
feel that those matters are not properly raised or heard by you.
I don't know if Mr. Kleweno was able to give you a copy of his
memorandum prior to our meeting here this evening.
Mr. Kleweno: I was not. I had them ready. Mel Kleweno, attorney
representing the appellants. No, I was not able. I had the brief
ready about five o'clock and I furnished it to the members now...I
recognize that it is lengthy. I do address that very question in
the brief, and it is our position that this is the correct forum to
. hear all four parts of the appeal. Since you are acting as a
quasi-judicial group or body, it seems to me that you will have to
read both briefs and the cited materials and make up your minds.
I don't think at this point since it is an adversarial position
that other than the matters that are raised by the City, that the
City is a proper party to be giving counsel.
Ms. Evezich: We accept that. We understand that. The City
recognizes that awkward representation that both the city has in
this capacity and you lack in this capacity as commissioners of the
Board of Adjustment. Mr. Kleweno and I will do our best to make
this as simple as possible I am sure without going off too far into
procedural matters that will obscure the issues. We will do our
best. Mr. Kleweno has provided you with some written materials,
and I am sure that each of our oral arguments will outline our
positions on whether or not these matters are appropriately before
the Board of Adjustment. I am prepared to discuss those matters
and answer questions that you might have, and I am sure that Mr.
Kleweno is also. Mr. Kleweno and I agreed earlier this afternoon
that as you would ordinarily do in a matter that was heard by a
judge in Superior Court, the person who is bringing the appeal
would be allowed to present their side of the issue first. I
believe that would be fair since I was given the responsibility of
preparing you with some kind of written materials in advance of
0
2
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
this meeting. So, if you are ready to proceed and hear our
respective positions, I'll give the floor to Mr. Kleweno.
Chair Cosby: Okay, is there anything else?
Mr. Gesler: I certainly would feel better if we had somebody
representing us. Does the City want to hire an attorney for us?
Voice: I'd volunteer.
Ms. Evezich: And we'd object. I'm sorry we have such a limited
staff that there isn't anybody who could represent you that wasn't
in a position where the party who is bringing this appeal might
later allege that there was a conflict of interest or at least the
appearance of impropriety because of the association of the City
Attorney with the issue and the office, so in an excess of caution,
we are not able to provide you with that representation; however,
I believe that, speaking for myself, I have addressed the issues
both in writing to you in advance, and I am prepared to discuss
them at some length this evening, and I am sure that Mr. Kleweno is
also. If you are unpersuaded, then I guess you will let us know.
Chair Cosby: what does this mean from a personal liability
standpoint?
Ms. Evezich: As I have indicated in the materials that I have
provided you, it is the position of the City Attorney's office that
the Board of Adjustment's authority is spelled out within the
provisions of Kent City Code, I believe it is Section 12.01, or
excuse me, Chapter 12.01, and there are specific items that are
appropriate before your view, and then there are also some matters
that pertain to quasi-judicial issues that the City may delegate to
you especially by ordinance. However, that has not happened, and
so if you were to issue a decision that we would argue is beyond
the scope of your authority, we could characterize that decision as
void and unfulfillable, and then it would be up to the appellants
to seek a decision in King County Superior Court upholding your
decision. As I have also indicated in the prior written materials,
I believe such a decision would be subject to a challenge by the
City that it was ultra vires, which is beyond the scope of your
legal authority. And again, we would characterize it as
unenforceable and void. And it would be up to the appellant to
seek a judgment to enforce it.
Mr. Gesler: That seems to be what I have the problem with. Who
advises us what our rights are?
0 3
Board of Adjustment Minutes
(verbatim Minutes)
August 1, 1994
Ms. Evezich: Mr. Gesler, if I might help you a little, I have
prepared some code provisions that I have cited in the materials
that I gave you on the 25th.
Mr. Gesler: This is the Rules and Regulations for Conducting
Business with the Board of Adjustment?
Ms. Evezich: No, sir, that would be the specific code provisions
that create the Board and authorize what matters you will and will
not hear, and what matters will be heard, like a land use hearing
examiner, and, hopefully, there will be clarification in the
statutory provisions.
Chair Cosby: So, did I hear you say that personally we are not
exposing ourselves to a personal liability here?
Ms. Evezich: It is my opinion that you would not be exposing
yourself to personal liability.
Chair Cosby: All right. So while we are sort of mulling that
over, we are going to have to come to a decision here, but what I
feel I should say is that the little legal business that my wife
and I have fortunately had to over the years we have done with Mr.
Kleweno's firm, and I will be actively involved in helping a
partner in the firm who is running for election. I want that out
in the open and up front. I don't think that would keep me from
making a fair decision, but I want everybody to know that. And if
anybody has any problem with my sitting on this, I certainly would
withdraw.
Ms. Evezich: Well, since I'm the party that would object, I would
just say that the City has no objection provided that at the end of
all oral argument and all written documentation that is provided to
you, it is still your belief that you can provide an unbiased and
untainted decision.
Mr. Gesler: Now, to be quite frank, it sounds to me like almost a
situation that if we were to rule in favor of the appellants pretty
much the attorney's office wouldn't declare these things null and
void. We didn't have jurisdiction ... go to court. So I'm not sure
where we are.
Ms. Evezich: Let me just add that there are only two issues here
that the City is contending are beyond the scope of the authority
of the Board of Adjustment, and those are the issues as I have
indicated, that we feel are inappropriate for you to render a
decision on.
0 4
j• Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. Gesler: Those are the two SEPA...
Ms. Evezich: In our opinion those are the two SEPA. If the
Commission has no objection, when Mr. Kleweno wants to speak and I
can sense that he wants to have an opportunity to speak, I will
just give him an opportunity. Are there any other questions at
this time that you would like to ask me before Mr. Kleweno speaks?
Chair Cosby: No.
Mr. Kleweno: You are correct. I did want to speak. I won't lurk
over your shoulder any more. I think that there are a couple of
matters that are properly before the Board and that the Board can
act on without any challenge from the City indicating that they may
be beyond your jurisdiction. It is our position as we set forth in
our memorandum to the Board that you have the jurisdiction to hear
all of the matters. You will just have to weigh that and determine
when you make your final decisions whether you feel that you do
have based on the authorities that the City Attorney has cited, and
based on the authorities that I have cited whether on the SEPA
matters whether you do have authority. I have a exhibit, and we
haven't been able to find an easel. Maybe we could find some
scotch tape even and put this to the front of .. excuse me for a
minute and I'll step across the hall. Is there anyone across the
hall, does anyone know... (unclear)
Chair Cosby: So there is no objection from the Board that we do
proceed. All right. (unclear ... as people set up the board)
Ms. Evezich: Are we ready to proceed?
Chair Cosby: Thank you. We are ready to proceed.
Mr. Kleweno: I apologize first of all for the delay with the
exhibit. I think it will help you as we go along to understand
what is maybe the key issue in our appeal. And that has to do with
the ownership of some lots which are the subject of this appeal.
I am going to present a couple of witnesses tonight and one of them
is Mr. MacIsaac. He is seated here in the audience. He owns one
of the parcels of property in question, and perhaps from the
standpoint of what we are going to be talking about most tonight,
the key parcel of the property. Mr. Dale Morford, one of the other
property owners, is here in the audience and he is going to read
into the record or present into the record a letter submitted by
his father, Paul Morford, who is unable because of a family matter
to be with you tonight and present his own testimony. I think that
0 5
,.
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
I will leave most of my argument for the summation after we finish
the testimony. I wanted to make one correction in the record, and
I wanted to submit one letter which I wrote to the City into the
record at this point. Your record from the July proceedings seems
to indicate this matter wasn't heard earlier because counsel was
unavailable in May, June and July. I plead guilty to June and July
on the dates you had scheduled for meetings, because those were the
few days that I was going to be out of town on vacation. But in
May I was available and would have made myself available. The
letter that I am going to admit into the record at this time
indicates that as soon as I was advised in May of a June date, I
wrote to the Planning Director and advised that I wouldn't be
available on that date and asked for a hearing at the earliest
possible date. The reason for the hearing at the earliest possible
date, Mr. MacIsaac can tell you that, and I think common sense will
tell you that also, because in this part of the country there is a
limited good building season. And the good building season is in
the spring, summer and fall months, and so it was very important to
the property owners to resolve the matters which were preventing
them from going forward with their building project as
expeditiously as possible. And again, although I was on vacation
during a couple of days, I wasn't in May and we did ask for the
earliest possible date. And I recognize that you gentlemen are not
highly paid for your services here and that it is a service which
you are giving the community, but I do not know whether you were
asked for alternate dates or not, and at this point it is not
germane, except that I did not want to clear up and I do want to
leave you with the idea that property owners were and are operating
with a sense of urgency. The matters that we are going to be
talking about this evening have to do with a building project or an
attempted building project by four property owners. The property
in question is located on the west side of North Fourth before you
get to the Valley Freeway. And looking at our fine drawing
here ... this would be North Fourth, that's south in that direction,
north in this direction, and the key lot that we will be discussing
in some detail is the one that is marked in red and it has current
owners, and then the ownership that we feel was the ownership on
the 20th day of June 1973. And this will become important as we go
along to determine who the owners were currently and who the owners
were on the date when the ordinance which took effect in the City
of Kent with which we are dealing this evening. It is the position
of the appellants that on the date of the ordinance which we will
be talking about, and that is June 20th 1973, that these three
parcels of property were in separate ownership. And so that you
don't become too confused let me tell you what we feel the status
of title was, and we will be introducing a document from the title
company which, in the title company's opinion, also led to who the
0 6
A,
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
owners were on those particular days. If we look at this lot, I
believe that the City agrees and alleges at least in a letter from
Mr. Harris that the lot which is currently owned by Paul Morford
was on June 20th, 1973, owned in fee simple by virtue of a
statutory warranty deed having been granted to him by an individual
by the name of Robert Kobayashi. And I know that I have the
pronunciation correct, because I have dealt with him in the past.
I owned property further south of that and at one time tried to buy
this twenty years ago. The second lot is currently owned and was
purchased in January of this year by Bob MacIsaac. It is our
contention that on the 20th of June 1975 that property was owned by
a couple by the name of Murray. In 1968 the Murrays had entered
into a real estate contract for the sale of this second lot with
Mr. Kobayashi. So on the date, the crucial, to us the crucial date
of June 20, 1973, the status of the title as we view it was, that
the fee simple was owned by the Murrays subject to a real estate
contract which had been entered into with Kobayashi in 168. So fee
title in Murray, purchaser's interest in a real estate
contract..Kobayashi. The third parcel of property which is the
third from the left-hand side of your exhibit is currently owned by
Dale Morford who is present here this evening if you have any
• questions. He also purchased that property, I think, in January of
194. And on the crucial date in question the City has contended
and we agree that the property was owned in fee simple by virtue of
a statutory warranty deed having previously been executed recorded
to him by Robert Kobayashi. So I think that you will be convinced,
at least the City says that they can see that this property... and
this property were owned in fee .. on June 20th 1973 by Kobayashi.
The question becomes in accordance with the applicable ordinance
who was the owner of the middle parcel of property. And it is our
contention and I think the record shows clearly the title record
that the fee owner on that date were the Murrays subject to the
real estate contract where they had sold the purchasers' interest
to Kobayashi. The key to this is who was the owner of the property
on the date of the ordinance, June 20th 1973, because the
ordinance, if we read it, and it has been cited in the City
Attorney's brief, deals with ownership of contiguous or continuous
pieces of property. And the City's position is that on the date of
this ordinance all three of those pieces of property were owned by
Kobayashi. And we say that no, Kobayashi certainly owned one in
three, but he didn't own parcel 2. Our position is, and I think
set forth in the brief, that he had a contract where he could
secure ownership by the payment of the sum due on the real estate
contract and secure statutory warranty deed and then he would be
the owner of that parcel of property. Bob I don't know how we re
going to do this. Maybe you can come up and you can speak on this
side and I'll speak on the other side. I'm going to give you a
• 7
{
Board of Adjustment Minutes
• (Verbatim Minutes)
August 1, 1994
handout that is a summary of most of Mr. MacIsaac's testimony. If
you have any questions as he goes along, it might be helpful.
Chair Cosby: Thank you.
Mr. Kleweno: Please state your name for the record.
Mr. MacIsaac: Robert MacIsaac.
Mr. Kleweno: Your residence address.
Mr. MacIsaac: 25001 116th Avenue SE Kent.
Mr. Kleweno: A very brief description of your educational and work
background.
Mr. MacIsaac: Well, I'm a 1965 graduate of Seattle University,
civil engineering, and have worked basically in the engineering and
construction industry my entire life. Starting out with Boeing
facilities with the Space Center when it was under construction,
then into working for Devrow Corporation and Wynoochee Dam back in
• 69 '72, something like that. Went to work for David A. Mowet
Company doing bridge construction. Then ended up working back for
Bocan which is a construction subsidiary for Boeing. Did a lot of
sewage treatment and nuclear work for them. Then moved into
general construction company, about 15 years in heavy drain
construction. Did a lot of work on the floating bridges. Did the
bulge removal and put the draw span in the Hood Canal Floating
Bridge. And then finally a couple of years ago our general
construction company was bought out by a New Zealand firm and
things changed and I became out on my own and started my own small
business and built one house down here at North Park, and did a
remodel in the county, and now I am attempting to build six houses
on this piece of property here that I bought here. That is
basically my background.
•
Mr. Kleweno: Mr. MacIsaac, referring..if you could come around
just for a minute on this side referring to the exhibit we have
placed up there which I have referred to as your parcel of
property, could you point that out for the Board.
Mr. MacIsaac: Yes, I've got the second piece in there. That's my
piece of property.
Mr. Kleweno: You bought that in 1994 in the spring of 1994.
Mr. MacIsaac: Yes, I bought it in January of 1994.
n
Board of Adjustment Minutes
• (verbatim Minutes)
August 1, 1994
Mr. Kleweno: And what were your plans with that property.
Mr. MacIsaac: My plans were to build six small houses something
like ... if any of you are familiar with Benson Glen, the county
project near Renton, that was the plan at that time was to build
six units on that property.
Mr. Kleweno: How long have you ... Are you acquainted with Paul
Morford?
Mr. MacIsaac: Yes I am.
Mr. Kleweno: How long have you known Paul?
Mr. MacIsaac: I met Paul originally when I was working for Boeing
back in '66-67 someplace there. He was in construction management
for Boeing on the Space Center, and I was in Facilities Engineering
at the time.
Mr. Kleweno: Would it be fair to say that you and Paul have been
good friends through the years.
rMr. MacIsaac: Yes it would.
Mr. Kleweno: Have you ever been a partner with Paul in any
project.
Mr. MacIsaac: No, I have never been a partner of Paul.
Mr. Kleweno: Are you in these various properties here, are you a
partner with him in any of the parcels which he owns here?
Mr. MacIsaac: No, I am not.
Mr. Kleweno: Is he a partner with you in any of these parcels?
Mr. MacIsaac: No he is not.
Mr. Kleweno: Are you a partner with Dale Morford and the property
ownership?
Mr. MacIsaac: No I am not.
Mr. Kleweno: The other one is a Mrs. Millick. Are you a partner
with Mrs. Millick?
Mr. MacIsaac: No I am not.
0 9
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. Kleweno: Okay, let's go back
lot. And again for background,
properties by Paul Morford. Would
Mr. MacIsaac: Yes
to the time that you bought the
you were introduced to these
that be..(unclear)
Mr. Kleweno: And during the period of time that you were looking
at developing and building on your parcel of property, did you have
occasions to speak with Paul and Dale and Mrs. Millick about what
they might do with their parcels?
Mr. MacIsaac" Mainly with Paul, because in order for me to build
the six houses on that lot seeing it's long and narrow, I had to
have an easement, and so I did quite a bit of discussion with Paul,
because I needed an easement on Paul and Carol's lot, and likewise
I had to give them an easement on my lot so that they could put an
access road in, a shared access.
Mr. Kleweno: So you were looking to have a joint access part on
your property and part on Paul Morford's property.
Mr. MacIsaac: Correct.
Mr. Kleweno: That would be the Paul Morford property on the
exhibit which lies to the south of your property.
Mr. MacIsaac: Yes, that is correct.
Mr. Kleweno: Now you've indicated that your first plan was to
perhaps build six houses on this particular property. Did you
during the period you were buying the property and considering your
plans make contact with the City Planning Department?
Mr. MacIsaac: I did not during the time I was buying. Paul
Morford had made contact with the city and talked about the
possibilities of putting the six houses on his lot and so on, and
seeing he's done a lot of building with the city, I was basically
following on his lead and letting him look into it for his
property, assuming mine would be a similar situation.
Mr. Kleweno: What was the first contact you had with the City
Planning people concerning the development of your lot? I
recognize you may not be able to give us the exact date, but give
us just a chronology, if you would.
Mr. MacIsaac: Well, I wrote up a little scenario here. Would you
like to go kind of through that.
• 10
s
Board of Adjustment Minutes
• (Verbatim Minutes)
August 1, 1994
Mr. Kleweno: That might be helpful if you went through that in a
brief basis, so that would give some continuity to what occurred as
far as your involvement with the City and this property and the
appeal.
Mr. MacIsaac: Basically, I bought the lot that I indicated here
that is 663¢ foot wide by 300 foot lot. It is located between one
that Paul and Carol Morford bought to the south and one that Dale
and Kathy bought to the north. As I said before, I had an
agreement with Paul when we looked at buying that we could get
joint easement and that I would give the easement that he needs and
so we could get proper access. As a resident of Kent, I was aware
of the general feeling that we have over built with apartments. I
mean, that's been going on ... I'm on the Planning Commission and I'm
pretty aware of what is going on there. I was also aware of the
trend by the Council to push for single family residences in the
City and try to bring a balance. I'm keenly aware that there is no
affordable single family housing in this city, because I did build
one house over here in North Park, and we have gotten to the point
that young families are unable to afford single family houses. The
small three bedroom we built there sold for $125,000. I don't
think that is in the reach of our younger generation now with the
declining wage rates, and so on, that they are all facing. Then I
started working on alternatives for this lot and, of course, worked
with Paul to some extent. He had some ideas, I had some ideas,and
I was intent on trying to get some kind of income-producing
property for retirement, because I had just separated from a
company that my career had been with for 15 years, and all of a
sudden you find yourself where am I going for my retirement? I'm
51 now, so I have to start worrying about that, too. So, basically
Paul was interested in putting condos on his property making six
houses into a condo, separate little houses like Benson Glen, and
I would have liked income property, which would be rentals and make
those six houses into rentals. However, whoever got building,
however it all worked out, depending on time, and so on, if the
condo market was what the City Council has been telling us is much
more appropriate, they'd like us to see have more ownership in
houses rather than rentals, and so I was willing to go with the
condo concept and think it is very applicable. However, we are
trying to work for inexpensive condos and try to get it down so
more people can afford them. And of course Paul having done a lot
of building within the City of Kent, he went forward to the
Planning Department and started working on details. In fact he had
actually talked to the Planning Department on several occasions
before he purchased the property and before I purchased the
property. At that time the Planning Department seemed very
enthusiastic about the single family houses. And was very
• 11
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
encouraging. That's what I would like to build, because I am a
small builder. I do most everything myself on the houses. I do
not sub out a lot of the work. Then after several meetings with
the City I had purchased the property and Paul was still meeting
basically trying to get through concepts and so on and working out
details how these six houses could be put on the property, because
they would have to be in a condo configuration, because lot sizes
would not allow six houses unless they were on separate lots. They
would have to be in a condo -type configuration or in a rental
situation. So basically the condos was how we ended up through
that scenario we ended up with the condos. Then in one of Paul's
meetings with the Planners he was told that he had in fact an
illegal lot. At that time he was told that all five lots were
illegal. Of course that set me reeling because I'd bought a piece
of property that I could not build on according to the planners.
We started investigating. Paul went to Chicago Title and had them
review the issue and basically that is what Mel has just presented
to you. But in fact the lot that I own is the one causing the
problem. As..,I feel kind of bad about that ... the other owners,
but, in fact, it wasn't in continuous ownership. So,, anyway, he
went to Chicago Title. The City then came back and we presented
• that documentation to the City and the City said "no" not legal
lots, you can't build on them. They didn't provide us any
documentation or anything. Here I sit saying, my gosh I have a
piece of property that I can't build on. So then we did find out
that the City did use Stewart Title for their title company as one
of their title company—anyway we went to Stuart Title and we also
got information from Stewart Title that said that my piece of
property was owned by Mr. Murray, and therefore was a legal lot not
in continuous or whatever ownership on the 1973 date. The City
response to that was still "no" and they would give us no
documentation and time was just moving along. So then at that
point I was sitting there with a lot that was not buidable, Paul
had a lot that wasn't buildable, his son, Dale, had a lot that was
not buildable, and Myrna Millick. Paul said there was a fifth lot
that was possible to buy, that's this lot shown here in black. So
Paul went ahead and purchased that property as a possibility of
making lot line adjustments and making 80 -foot lots, which is
considered the legal lot under the MRG zoning here. So he went
ahead and purchased that piece of property, and then depending if
we could get a decision from the City on the legality of the lots
and so on, then we were able at least then to move ahead and do
something and still be able to develop individual lots. Of course
to make my lot a legal lot, I would have to buy about 27 feet from
Dale Morford, and I would have to sell in order to make Paul
Morford's lot legal, he would have had to buy 1334 feet from me.
• 12
Board of Adjustment Minutes
(verbatim Minutes)
August 1, 1994
Mr. Kleweno: That was to make each of the lots as we go from south
to north 80 feet in width on the street. Is that right?
Mr. MacIsaac: That is correct.
Mr. Kleweno: That would have met ... that would have been a legal
lot for the zoning. Is that correct?
Mr. MacIsaac: That is correct.
Mr. Kleweno: So the fifth lot was bought.
Mr. MacIsaac: So Paul bought the fifth lot in limbo not having a
decision yet from the City as to the legality of the individual
lots. In fact at that time all five lots were said to be not
legal—that they were contiguous ... or whatever. So the single
family house concept would not work on the 80 -foot lot, because you
start working with the square footage, and to get the proper number
of units, by the time you take up that much more area, it no longer
works. So we started looking at other concepts. I looked at
concepts for my lots, and Paul was looking at concepts for his, and
• I won't speak as to Dale and Mrs. Millick, because I had very few
conversations with them in this regard. I was concerned about my
lot and Paul's lot as we basically had to share an access to make
them work. And as that (unclear) along, with the four lots, this
lot would share access, and very likely Dale and Myrna's lot would
have to share an access road. Then if these lots were combined
into four lots, is what has come up later, then again the four lots
would have to be combined so that you would have two access roads
in there. Anyway, we worked on many concepts. I came up with
wanting to go with townhouses... was looking to try to get access
for people from ground floor type of thing, try to make appeal and
still trying to keep the house units small and so on. So looked at
triplexes, fourplexes and so on. Paul and Carol had been going
through the same kind of things. We had a couple of meetings
together, because we kind of wanted to coordinate what went on the
individual lots so I wasn't building something that looked terrible
or didn't fit in with what they were doing seeing we had to have a
shared access. Time was really of the essence, because we were
trying to make this construction season... just slipping away from
us desperately right now. I drew up a general concept then of
originally of my lot, Paul's lot and then after reading some of the
multifamily design review requirements of the City, I decided that
they wanted to see what happens on adjacent lots to you. Well, the
lots to the south of Paul's property, that side were already built
in apartments two-and-one-half/three story type apartment units.
And so then I drew up a scheme also for these other two lots using
• 13
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
the same concept of triplexes and fourplexes. And I took that down
to meet with Fred Satterstrom at the Planning Counter as they
require in the Multifamily Design Review that you have some
meetings at the counter and discuss concepts. I took this concept
down just to see if this fit, because here I am involved in the
Planning Commission and so on and know these individuals, and I
thought it would be nice to have a well -coordinated project that
both the City people and us could be proud of down the line. And
so I brought that concept drawing down. Fred at the time was quite
busy and said could he take that drawing over night or for a day or
two and get back to me and have a meeting. I said yes that was
fine with me, because he wanted to meet with Charlene Anderson who
also made some comments and had been working with Paul to some
extent on this thing. So I agreed that they could take it and look
at it. I was going to discuss concept, because all I was concerned
about then was. we were trying to develop concept. Is this concept
better than single family. Can the single family be used yet. Is
there anything else that you and the City can help us or me as a
builder develop that would be very satisfactory for the City. So,
anyway, what came out of that was a meeting about a week later in
which Dale Morford, Paul Morford and myself met with the Planning
staff. At that point the bombshell was dropped on us and they said
that they were considering this now a big project all integrated
together. We don't care that you have separate ownership or
separate lots in there. We want you to go through SEPA, and that
was beyond me because the SEPA requirements as I knew it was
anything under 12 units you did not have to go through SEPA on an
individual lot. And that will get discussed a little further
tonight.
Mr. Kleweno: Mr. MacIsaac, let me have marked and we can then
submit or get copies what I call the infamous drawing. I'll show
this to you first. Is this the drawing that you had prepared and
were discussing informally with Mr. Satterstrom.
Mr. MacIsaac: That is correct.
Mr. Kleweno: Is this the one that was then discussed at the
meeting with the planners approximately a week later.
Mr. MacIsaac: That is correct. And of course when it was
submitted none of the red marks or any of that was on it. It was
just a plain blue and white drawing.
Mr. Kleweno: Would you mark this. What if anything of an unusual
nature occurred with this drawing at the meeting with the planners.
• 14
Board of Adjustment Minutes
. (Verbatim Minutes)
August 1, 1994
Mr. MacIsaac: Well, the only thing unusual at that meeting was
that as the meeting was drawing to a close and Fred basically said
that we had an integrated project and had to have SEPA. Paul
emphasized that no, there was separate lot ownership, and he
actually tried tearing up the drawing to tear out his little piece
of property and say here's my piece of property. You know, there's
no reason to have SEPA on it. And at that point he left the
meeting and Dale and I stayed a little longer and talked. But that
was essentially how that meeting concluded.
Mr. Kleweno: And this to you meant additional delay with your
project. Is that correct?
Mr. MacIsaac: Absolutely.
Mr. Kleweno: I'm handing to the members of the Board the document
that you talked about from Chicago Title... handing you what has
been marked as Exhibit 4 for the purposes of our appeal with the
Board. Can you identify this for us.
Mr. MacIsaac: Yes this is the report Paul Morford received from
. Chicago Title on my behalf.
Mr. Kleweno: Taking a look at the legal descriptions that are
contained in the documents attached, is that the same lot that you
bought in January of 1994.
Mr. MacIsaac: Yes it is.
Mr. Kleweno: You already examined this prior to coming here
tonight.
Mr. MacIsaac: Yes I have.
Mr. Kleweno: I know you didn't look (unclear) now.
Mr. MacIsaac: I guess.
Mr. Kleweno: Do you recall when the meeting on infamous drawing
was held approximately?
Mr. MacIsaac: Toward the middle of March, I believe.
Mr. Kleweno: In sequence what happened then with your plans to
build.
• 15
Board of Adjustment Minutes
.(Verbatim Minutes)
August 1, 1994
Mr. MacIsaac: Actually, the sequence was kind of interesting at
that point because some place along the line before the first of
March the City did determine that in fact Mrs. Millick's lot and
the fifth lot that Paul purchased which are those two lots, the one
in black and the one in yellow in the exhibit, they determined that
those were legal building lots, so Paul submitted a basic plan for
a carriage house and a townhouse to the City.
Mr. Kleweno: On which lot.
Mr. MacIsaac: On Lot Number 5 which was his.
Mr. Kleweno: That's the black lot, the second lot that he had
purchased. And at that time I went down with Paul when he made
that submittal. We met with the Building Department officials and
one of the plan check ladies, and went through in detail the
submittal of the basics, because the basic plan had not been used
at that time for multifamily. It was allowed but had not
been ... this was going to be the prototype with the City in running
a basic plan through, and so we had quite a discussion with them.
We were very enthusiastic. They accepted the plan. They had not
only the two basics, but we also submitted or Paul submitted a site
plan for his lot which showed two townhouses and a carriage house.
And the upstairs ... A carriage house for information in our plan
here is four garages below and a housing unit above the garages.
And so in order to get the project moving in a timely manner, that
was submitted as a duplex with an unfinished upstairs. And the
City could accept that in that fashion to allow building to get
started, and multidesign review not to have to be gone through. As
soon as multifamily design review could be run through, then
another permit would be issued for the finish work in the upstairs
of the carriage house. And so Paul submitted on a duplex and
ultimately a building permit was issued on that duplex with that
unfinished third unit and that particular unit is under
construction on Paul's lot now.
Mr. Kleweno: That's the lot number 4. number 5, the one in black.
Mr. MacIsaac: Now when you speak of basics, as briefly as you can
when you describe what you mean by basic and why that could be
important to you.
Mr. MacIsaac: Well, a basic plan is generally in a housing
development, somebody like Schneider Homes, some of the larger
builders, will submit five or six different floor plans for houses
in their units. Those floor plans might have the reverse living
room, just a little different facade, that type of thing that they
0 16
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
use in a basic plan. They submit those plans, they are reviewed by
the city/county whichever government agency, and they are kept on
record. Then at the time you are ready to go ahead and build that,
you come in and say I want Plan A or Plan B, you pay your permit
fees and it is almost an over-the-counter one -day activity and you
have your permit in hand. It is very, very key that you get basic
plans submitted early, and as you are ready and as the project
proceeds you are able to purchase individual permits for those
units as you go along. Now the city had this in operation for the
single-family detached dwellings, and at this point we're putting
through with us or working with us to develop the prototype for how
it is going to work for the multifamily. And that was how and why
I was even involved then, because again I wanted to see that the
townhouses and the carriage houses that I could build and use the
same basic plan so that we could time wise get building and make
this construction season.
Mr. Kleweno: Is there any requirement in the City ordinance that
you know of when there has been a basic approved that it be the
same owner that uses the basic. In other words, if I am Schneider
Homes and present a basic for Dreamy Ridge, or whatever you want to
• call the development, would that preclude you from using that same
basic down on North Fourth if you had Schneider's consent.
Mr. MacIsaac: I really can't answer that for sure, Mr. Kleweno,
because the City has changed some ordinances since the time that we
made application.
Mr. Kleweno: Let's go back to the time in question.
Mr. MacIsaac: At the time of the question I would say the basic
plan could be used by anybody if they had permission of the owner.
And I don't believe the ordinance was even clear enough to say that
they had to have permission of the fellow that submitted it
originally. I think that was something that the City was trying to
get clarified. So somebody else might speak to that from the City
that is more familiar, but that is my understanding.
Mr. Kleweno: So in any event you... the basic plan for a duplex and
an triplex was submitted to the City. Is that correct?
Mr. MacIsaac: Basic plan for a carriage house and a townhouse that
would then be put together in configurations of duplexes,
triplexes, fourplexes.
Mr. Kleweno: Carrying on in time frame what occurred next as far
as your particular lot and your building plans.
0 17
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. MacIsaac: Basically there was ... as far as my lot goes, my
concerns were that the basic plan we had heard that the City was
now going to try to change the requirements on basic plan, that it
was going before the Operations Committee or Planning Committee,
I'm not just sure which that was now, and so we were immediately
concerned, because here they had taken it in, they had said we're
going to run this through, we're going to work with you, you help
us, we'll help you. We get through the prototype situation,
everything will work fine. And then we hear through the back door
they are in fact trying to change an ordinance so that the basic
plans are no longer allowed for multifamily. It was upsetting. I
was very frustrated at that point, because I didn't think anybody
was dealing up front with me from the City. So, anyway, then we
did talk to ... I talked to Roger Lubovich, I talked to the Mayor, I
talked to many others, the Planning Department and said hey, this
isn't right when you are going around trying to do things and
you're not keeping us informed. Because we had an application, or
Paul had an application which I was planning to use the basic also.
So this was happening. we had the meeting then. Paul had already
submitted. we had the meeting on the concept plan. We came out of
that meeting knowing that the next day or two the Operations
Committee was going to meet or the Planning Committee, whichever
one it was in, and discuss getting rid of basics in the
multifamily, and at that point in order for me to protect my rights
to first of all the basic plan and being able to use it, I
submitted application on my property the same day after coming out
of that meeting to build a duplex with a triplex unfinished area
above with... looking for multifamily design review down the line
and so on. So I went ahead and submitted on my property to protect
rights under the basic plan. So now I have a permit application
in for my duplex.
Mr. Kleweno: Has that ever been acted upon.
Mr. MacIsaac: No, it hasn't. In fact my lot was red tagged and I
was told that I could do no more building until I complied with
SEPA.
Mr. Kleweno: And that came as a result of a determination by
someone in Planning that this was an integrated plan and therefore
subject to SEPA.
Mr. MacIsaac: That is correct.
Mr. Kleweno: And that was because it contained more than 12 units.
Is that right?
18
• Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. MacIsaac: At that time my lot in that configuration contained
eight units.
Mr. Kleweno: I know, but the total, if you looked at all of them
together, contained more than 12.
Mr. MacIsaac: Correct.
Mr. Kleweno: Was it ever your intent to submit this to the City as
an integrated site plan.
Mr. MacIsaac: No it was not.
Mr. Kleweno: Did you make that known at the meeting with the
infamous drawing.
Mr. MacIsaac: Yes we did. We showed separate ownership and that
was always the intent to keep separate ownership. It was very
important to keep separate ownership, because of setting up... if
you are working in the condominium situation, you have to have
basically half of your units built before you can start selling
units. If I had six units, I would have to have three built, so I
didn't want to get tied in with anybody else into a huge complex at
all, because, basically if there is 30 units in there, 15 would
have to be built, it would require some kind of partnership. All
complicated. I did not want that. I wanted to build my own little
single family houses if I could, and now because of the lot
situation, 1 was forced to go into fourplexes and so on, which I
think would be a very good situation, but that's where it got to.
Mr. Kleweno: Again, the approximate date of the meeting on this
drawing.
Mr. MacIsaac: Like I say, mid March could be. We were expecting
some answer back on the basic plans by like the third week in
March, and that is when, you know, we heard about the things going
through the ordinances, the possible ordinance change and so on and
then I made that submittal and the City records would show whenever
I made that permit application.
Ms. Ricketts: March 31.
Mr. MacIsaac:_ That's probably when I drew up the drawing.
Mr. Kleweno: This says meeting 3/31/94.
19
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. MacIsaac: Well, okay. That might be true, 3/31, that's
probably correct.
Mr. Kleweno: Shortly after that time then some administrative
decisions were made by the Planning Director, Mr. Harris, is that
correct, in the form of a letter to the property owners.
Mr. MacIsaac: Yes.
Mr. Kleweno: Do the members of the Board have copies of that
letter that form the basis of the appeal. I think maybe I had it
in my basic appeal that the letter from Mr. Harris is attached.
Ms. Evezich: It should be attached to the memorandum (unclear)
Chair Cosby: The last two pages perhaps.
Mr. Kleweno: Yes I did attach it to the memorandum of appeal, but
I also think it is in the original appeal, but it doesn't make any
difference, just so you have access to that letter dated April 13,
1994. The determinations were made, the appeal was filed. Is that
• correct.
Mr. MacIsaac: That is correct.
Mr. Kleweno: You are one of the appellants.
Mr. MacIsaac: That is correct.
Mr. Kleweno: What has occurred since that time?
Mr. MacIsaac: Since that time of course I detected that many of
the members of the City and Mr. Morford were having some kind of
personality conflicts. Met with the City officials. Many of them
actually to try to resolve that issue I spent quite a bit of time
because Paul is a friend and the City people are very important to
me also. And so I took a lot of time to try to bring those
individuals together in a...
Mr. Kleweno: And you also wanted to build, didn't you.
Mr. MacIsaac: Absolutely. I've got a lot of money at stake, and
I am to the point ... I am now working in Napavine, which is south of
Chehalis, after leaving General and all the commuting and so on
that I have done over the years chasing marine construction, I want
to work in Kent. I want to work here close to home. I am tired of
commuting, and so here I am. I am out of town again. I am with my
0 20
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
own small business, but it is not at all what I had planned on. I
planned to build here, and I want to have something to be proud of.
So, anyway, then we met with the Planning Department which at this
point too had now received the permits. The permit department was
working for... reporting directly to the Mayor, then that shifted to
the Planning Department, and I think we got caught in the middle of
that, because you now had some new individuals in responsibilities
that they weren't as comfortable with, and so we got caught in the
middle of that little shuffle also.
Mr. Kleweno: At some point you had made the decision to bring some
soil onto the properties to begin construction, is that correct.
Mr. MacIsaac: That is correct.
Mr. Kleweno: And some soil was deposited, some fill was deposited
on the property.
Mr. MacIsaac: That is correct.
Mr. Kleweno: And about the same time the building permit was
issued for the black lot, we'll call it, because it is designated
by black up there on the drawing. Is that correct.
Mr. MacIsaac: Yes, that is correct.
Mr. Kleweno: And to your knowledge if you have a building permit
in hand, do you need a fill permit.
Mr. MacIsaac: No
Mr. Kleweno: Do you happen to recall whether the fill was brought
in first or whether the building permit was issued first.
Mr. MacIsaac: That particular property that he is talking about is
Paul's property, the black one, and being I was basically
unemployed at the time, Paul had hired me to do some work for him
on that property. He had been bringing in fill within the one -foot
depth and so on over the property and trying to stay under the 500
cubic yard requirement.
Mr. Kleweno: What is the significance of 500 cubic yards.
Mr. MacIsaac: I'm not real sure of the significance, because it is
something the City has brought forth under SEPA as I see it, it's
not the issue.
0 21
J
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. Kleweno: Well, aren't you allowed to bring in up to 500 cubic
yards without a fill and grade permit.
Mr. MacIsaac: That is correct, according to the Uniform...
Mr. Kleweno: According to the City ordinance.
Mr. MacIsaac: Well, City ordinance and the Uniform Building Code.
Mr. Kleweno: So, it was your plan to bring in under 500 yards on
these lots. Is that correct.
Mr. MacIsaac: That is correct.
Mr. Kleweno: Then fill was brought onto the properties and
eventually the city came out and seeing the fill closed the project
again. I guess for the first time.
Mr. MacIsaac: They actually posted stop work order on Paul's
property. Correct. And then it was later that they came out and
posted one down on my property when they cited SEPA.
iMr. Kleweno: Was the stop work order then lifted on Paul's
property.
Mr. MacIsaac: It was lifted on Paul's property so that he could
continue building.
Mr. Kleweno: Now your training is as an engineer. Is that
correct. Is that a civil engineer.
Mr. MacIsaac: Civil engineer. That is correct.
Mr. Kleweno: Did you take any independent measurements yourself to
determine whether there was more than 500 cubic yards of fill on
your property.
Mr. MacIsaac: There was no 500 yards on my property at all.
Mr. Kleweno: Did you make any independent determinations as
whether there was at any time more than 500 cubic yards on the
black property.
Mr. MacIsaac: Yes I did, and my determination was that there
wasn't 500 yards. Then I did a little more detailed take off and
found that I thought there was 545 yards using thicknesses and
depths the City had used in their calculations, and subsequently
22
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
even found that the depth was six inches less than that and there
was actually not that much yardage on the property. It was under
the 500 yards. But that was after the building permit on Paul's
had been issued and he was in pins and needles waiting for that,
because they kept saying yes, they were going to issue it, yes they
are going to issue it, but the basic plan they couldn't get a
decision on basic plans, and so they actually held up during the
time he was putting fill on, and he got the building permit and
moved ahead and put more than 500 yards on after he had the
building permit in hand.
Mr. Kleweno: You have a building permit application in to the City
of Kent at this time. Is that correct.
Mr. MacIsaac: That is correct.
Mr. Kleweno: And that has not been acted upon.
Mr. MacIsaac: That is correct. It has been in since the latter
part of March, and no action has been taken because of the legal
lot issues.
Mr. Kleweno: And that is because the number one decision was made
that that was not a legal lot, and number two that later they
treated the entire property as an integrated site and required SEPA
compliance. Is that correct.
Mr. MacIsaac: That is correct.
Mr. Kleweno: What are your current plans for the property.
Mr. MacIsaac: My current plans are ... I wished I didn't have it, to
tell you the truth, if you really want to know. I am just really,
really frustrated, disappointed, and really upset with the city at
this point for not working with me to try to develop something that
we could all be proud of. And not getting answers to questions
that I've raised, and so on, and being delayed forever. I became
so frustrated that I just hold back and have done very little
waiting for some kind of decisions.
Mr. Kleweno: Do you have any other testimony you want to add or
give to the Board of Adjustment at this point realizing the time is
running.
Mr. MacIsaac: No, not other than that I guess I have expressed my
disappointment because I did hope that the City would work with us.
I am trying to develop housing that could be usable by people who
23
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
do not have as good a means as others, and I thought the City would
jump in and work with me and try to do that, and it has been very,
very frustrating to me. I'm very unhappy with how it has come out.
Thank you.
Chair Cosby: Let's see now. Your lot the City says is not a legal
lot.
Mr. MacIsaac: Correct.
Chair Cosby: And your frontage is how much.
Mr. MacIsaac: Sixty-six and one-half feet.
Chair Cosby: Okay, and how far back does your ... I see it sort of
varies.
Mr. MacIsaac: My lot runs back... the original lot ran back 300
feet, and we have since found a vacated street in the back that
allowed another 30 feet, so it is 330 feet by 66 and one-half feet
wide.
0 Chair Cosby: Okay. Any other questions.
Mr. Gesler: How many units were you planning to build, Bob.
Mr. MacIsaac: Initially six units.
Mr. Gesler: But what was the final.
Mr. MacIsaac: The final ... what has been submitted for SEPA review
is actually nine units now. It is a combination of two fourplexes
and another carriage house in the back.
Mr. Gesler: Okay, what is the total for the whole project. I
mean, if it were one project.
Mr. MacIsaac: If it were one project I believe it was 33 or 34
something in that neighborhood.
Chair Cosbv: The ownership, I know the City will get to this, but
the ownership... when did you buy the lot.
Mr. MacIsaac: January of 94.
Chair Cosby: And who owned it when you bought it.
• 24
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. MacIsaac: I bought it from Kobayashi.
Chair Cosby: Kobayashi, I'm sure it says in here, but Kobayashi
had owned it for how long. Do you know roughly. Did he own it
since '73.
Mr. MacIsaac: He owned it, I think, from 1981, sometime in 1981
that he took ownership.
Chair Cosby: Does someone else in there, I don't want to mislead.
Mr. Kleweno: As I indicated in my introductory remark, Kobayashi
entered into a real estate contract to purchase this property in
1968. He received a statutory deed which we say equates to
ownership in 1981, and that is in the documentation which is
submitted from Chicago Title.
Chair Cosby: Okay, so Kobayashi signed the contract in 168 to buy
from Murray.
Mr. Kleweno: That is correct.
Chair Cosby: Okay, and so in 173 it was owned by Murray.
Mr. Kleweno: Our contention is, and as we set forth in our brief
the definition of ownership, yes, we would say that it was owned by
Murray subject to the real estate contract interest of Kobayashi,
and then when Kobayashi paid the purchase price off in full in 181,
he received in our view ownership.
Chair Cosby: Okay. Thank you.
Mr. Kleweno: I have a letter that has been submitted by Paul
Morford. I was going to have his son, Dale, read it, but I think
it speaks for itself and will submit it at this point and will
trust that in the course of your deliberation that you will take a
minute to read the letter rather than have it read into the record.
Does that suit the Board at this point.
Chair Cosby: Is that okay with you?
Voices: Sure ... sure
Chair Cosby: Great.
• 25
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. Kleweno: I only wanted to enter one more exhibit that has to
do with the portion of the Kent City Code which deals with the
threshold for exemption from SEPA. Trust you have a copy of this.
Ms. Evezich: I do.
Mr. Kleweno: I also inform the Board that I don't think the
original version has the circles that appear on your copies.
Voice• It helps.
Mr. Kleweno: I am going to stop at this time reserving argument
and. rest the appeal at this point.
Chair Cosby: Thank you. The City is ready I am sure.
Ms. Evezich: I think that in the interest of giving you some
clarification to issues that are probably weighing heaving on your
mind, I'd like to address, I think, the questions that you raised
earlier that I was not able to answer because of the quasi-judicial
proceeding, and try to give you some clarification on the matters
the City characterizes as related to SEPA appeals and beyond the
scope of your appellate jurisdiction. As Mr. Kleweno has
indicated, and his testimony supports, the appellants are owners of
these five contiguous lots. Their four issues are that the
proposed condominium project on Fourth Avenue North as it was
characterized in the infamous drawing is subject to multifamily
design review. They also appeal from the fact that the City
characterizes these lots as in continuous ownership prior to 1973
and therefore subject to nonconforming lot requirements as Title
15.08.100 under the Kent City Code, and that therefore they need a
lot line adjustment to consolidate these lots from five lots into
four lots in order to achieve the development as they are proposing
it. The appellants also appeal from the City's determination that
there are over 30 units in this whole project, therefore invoking
SEPA requiring among other things a SEPA checklist and a threshold
determination by the SEPA official, and the appellants also appeal
a determination that there were over 500 cubic yards of fill
deposited onto lot number 9228. And that also invoked SEPA. As
the City characterizes these issues, the only issues appellants
properly raised before the Board of Adjustment pertain to whether
or not three of these five lots are in continuous ownership 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 thus requiring SEPA,
and that over 500 cubic yards of fill were brought onto tax lot
number 9228, thus requiring a SEPA checklist are matters outside
26
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
the jurisdiction of the Board of Adjustment. And you are without
legal authority to make a decision on these matters. Section
15.09.070 generally provides for appeals of administrative
interpretations relating to enforcement or interpretation of Title
15. In his memorandum of appeal, Mr. Kleweno has cited this as his
basis for indicating that this matter is properly before you.
However, 15.09.070 only allows you to make determinations relating
to administrative interpretations of Title 15. It does not give
you the authority to make or to hear matters that are brought to
you on appeal under Title 11 or for that matter any other title
unless specifically authorized by the Kent City Council by
ordinance. The Board of Adjustment is authorized to hear appeals
pursuant to Title 12, subsections 01.040. You can hear appeals
from orders, recommendations, permits, decisions or determinations
made by a city official in the administration or enforcement of the
provisions of the zoning code or any ordinance adopted pursuant to
it. Applications for variance from the terms of the zoning code or
any other such quasi-judicial and administrative determinations as
may be delegated by ordinance. None of those matters are before
you at this time, and none of those issues were the vehicle that
brought this appeal to you. The only administrative decision
pertaining to Title 15 is whether the appellants' lots were in
continuous ownership prior to 1973 under Section 15. 08. 100 (E) (2) (b)
as we have indicated in our staff report. And whether or not the
appellants are subject to multifamily design review under Section
15. 09.047(A)(3) also outlined in our staff report. SEPA issues are
appealable only to the ... The SEPA issues that are raised in the
appellants' original appeal are only appealable to the King County
Superior Court. Although the Kent City Code does provide for
appeals of certain SEPA issues under Title 11 subsection 03.520, it
only allows the following appeals for SEPA determinations. You may
appeal the City's procedural compliance.in the issuance of a final
determination of nonsignificance, a determination of significance,
and for substantive appeals that are not subject to the a final
decision by the City Council and pertain to the condition or denial
of some matter, particularly a permit or a variance, on the basis
of SEPA. The statute specifically provides that no other appeals
are provided. The appellants do not base their appeal on a DNS,
excuse me, a determination of nonsignificance or determination of
significance, or a matter that is conditioned or denied on the
basis of SEPA. By both state law and the Kent City Code, no
appeals of administrative interpretations of SEPA are allowed under
Section 11.03.520 subsection (3). The project presented to the
City on at least four different occasions depicts the development
of at least 31 units. In their most recent submittal for SEPA
review that number was raised from 31 in the original, as it has
been characterized by plaintiff's counsel, the infamous drawing,
• 27
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
from 31 to 34 to 37 units. As such, the SEPA official is
authorized by both state and local law to characterize the overall
project as an integrated proposal. This is pursuant to the
Washington Administrative Code Section 197-11-060(3)(B). As an
integrated development, the project is not subject to a 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 for 12 units,
exemption from SEPA for the development for just 12 units. However
the categorical exemption is applied. Excuse me. The purpose of
the categorical exemption is to have it applied to an entire
project, not on a lot by lot basis as appellants would argue.
Nothing in the provisions allow the characterization of lots to be
dealt with individually. To the contrary SEPA's procedural
provisions are designed to require the consideration of
environmental impacts as they relate to a project directly,
indirectly or cumulatively. There is no entitlement, excuse me, to
a categorical exemption, because lots are individually owned. I've
spent some time discussing this issue because I don't want the
Board of Adjustment to get confounded in issues that are raised by
the appellants and which we have characterized as not properly
before you. I have taken the time to copy some of the code
provisions and I will submit them into the record for you to
review. No, I'll have to submit them at the end.
Voices• Unclear
Ms. Evezich: Put all these documents together put them in a safe
place. There are five copies of the Washington Administrative Code
Section 197-11-060 (unclear) and there are five copies
Voices: Unclear
Ms. Evezich: There are also five copies of Section 11.03.20 of the
Kent City Code.
Voice: Do you have another one of the black. no we don't have
enough copies.
Ms. Evezich: I'll check. And there are also copies of Section
12.01 which deals with the matters that are properly before the
Board of Adjustment ... (unclear)
• 28
• Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
I will have to provide those to you. I thought I had five copies.
Apparently I don't.
Voice: I think there was four of everything...(unclear)
Ms. Evezich: As I said, the City's position is that these matters
are specifically appealable to King County Superior Court, and your
statutory authorization is articulated in Chapter 12.01 of the Kent
City Code. While the City does provide for appeals of certain
matters pertaining to SEPA before the land use hearing examiner,
they pertain to the threshold determination, the determination of
nonsignificance, and matters dealing with conditions or denials
that are not otherwise appealable to the Kent City Council.
Voice: What are you talking about in the Kent City Code. What was
the citation.
Ms. Evezich: In Chapter 12.01
Voice: You've given us 11 not 12, 11.03.600.
Ms. Evezich: As I said, Chapter 12.01 specifies what your
statutory authority is. The other code provisions provide for
other matters pertaining to SEPA. And the Kent City Code has
specifically adopted the Washington Administrative Code Section
197-11-060 to its procedures under Title 11. I do want to
emphasize that it is the City's position that these matters
pertaining to the number of cubic yards of fill and whether or not
this is an integrated proposal are beyond the scope of your
authority. I have addressed them here to provide you with
information because you had questions regarding these issues, but
I was not able to answer in advance of a public meeting. You asked
me to specifically address how the City would substantiate whether
or not there were over 500 cubic yards of fill on lot number 9228,
and I can tell you now that on three separate occasions the City
had field investigators go out and measure the cubic fill that had
been deposited on that site. The appellants apparently object the
character or qualifications of the person who was doing the field
investigation; however, these are professionals that we have hired
specifically for this purpose. There is nothing under SEPA, the
Uniform Building Code, or the Kent City Code that requires that
such measurements be calculated by an engineer. Mr. Ron Campbell
of the Public Works Department and the Building Department was our
field investigator who measured those cubic yards on three
different occasions, and on his final measurement on May 2nd of
1994 he determined that over 700 cubic yard of fill was actually on
the site. At some point in time afterward Mr. Bob MacIsaac
i29
0
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
actually sought the assistance of Mx
amount of excess yardage from the
reduced in quantity to below 700 to
cubic yards. Mr. Ron Campbell
verification that he did that on th
him come forward and at least repre:
time.
Campbell in removing certain
site so that it was actually
equal the exempt level of 500
s here to provide you with
it time. And I'd like to have
ent to you what he did at that
Mr. Campbell: My name is Ron Campbell. I've worked for the City
for five years as a construction inspector. Prior to that I worked
for the DOT as a construction inspector technician under an
engineer, prior to that I took engineering courses at RVTI and came
out four O. I had to go back to school to get an education to
(unclear) work in construction so I wouldn't be down in, where is
that (unclear) I'll stand by my figures. He and I could bump
heads all day. He could give us the same size lot and we would
come up with the same cubic yards in it. I do this every day all
day. I pay contractors by the cubic yard, by the square foot, and
if they had a problem with my numbers, you could bet they'd be back
if I was shorting them on their pay. They stand by my numbers, and
I do, too.
Ms. Evezich: Ron, could tell us about the first time you went out
to get a measurement.
Mr. Campbell: The first time out I measured it on my own. Another
inspector called me. It was generally his territory. He had
suffered a heart attack and we were relieving him of certain
portions of his areas. And he said do you have a grade and fill on
Fourth. I said not that I know of. So I swung on by and took a
look at it, and there was material being hauled on the site, and I
asked the spotter, there wasn't nobody there, the spotters guide
tells trucks to dump and he grades it out with a cat. Asked him
where his grade and fill was. He said that Paul had it but he
wasn't around immediately. And I said where are you getting this
fill from. I recognized the truck from just up the street. He
said that's where they're getting it..up the street. So I went up
there and checked to see if Paul was around or if anybody there
knew if they had seen a grade and fill where they were hauling out
of, and nobody had. At this time I went back and told them that I
was going to stop the haul because I had no grade and fill on the
thing, and looking at the ground there was obviously more than five
truck loads of material in there, and my grade and fill is on the
top of them say 50 yards or more. They don't get into this one
foot high and everything else that is in there. They just say 50
yards or more. And then I got a call not to stop the fill and I
believe that was Don Wickstrom, Director of Public Works. All they
30
Board of Adjustment Minutes
• (Verbatim Minutes)
August 1, 1994
were doing was putting a little bit of material for a foundation.
And I tried to point out that it looked like more than that going
on to me, and he said he had been talking to Mr. Morford down at
Engineering and that it didn't look like it was going to be that
much more. He had to have a little extra for a setback off your
footings and everything. So at that point I figured well, something
is fishy here. I'll wait until they finish this haul and then I'll
measure it up. When I calced it up the first time, all I did was
take the main square out of the lot and it was over 600 yards. At
that point ... two days before that Planning had started saying what
do you know about that fill going on up there...
Ms. Evezich: What about the second time. What was the measurement
and what was (unclear).
Mr. Campbell: Those are in my notes. It was 638 yards that time.
I was requested to go back and give them another definitive
measurement. All I had done was calc it up real quick on a piece
of grid paper, and I turned that over to Charlene, I believe. And
then all of this other stuff (unclear) went through the process of
red tags and everything. And then telling them to remove the red
tags and then they wanted the definitive measurement. The other
gentlemen that had been here sitting next to me in the suit, he was
the one who asked for it from Planning, Brad Hazeltine. My tape
had been broken in the meantime, so I asked another inspector to
meet me with his tape measure. He showed up, that's Van Parker.
And Brad and I measured up everything this time. I said okay, I'm
not eliminating this little wedge-shaped piece of pie that goes
down to this other one -foot lift, I say I'm going to measure
everything. And it came up to 791 yards as originally filled.
And they had removed some material for a footing, because he had
been given a building permit and permission to go ahead and then
stop as they said. And that was 146 cubic yards that they removed
out for the building footing, pushed it on to a lot to the north or
out to the other four lots to the south, I'm not sure which way it
went, but it was gone. And that gave us a grand total of 645 cubic
yards as you sat, and from that point on then, like Mr. MacIsaac
said, I was called out, he asked me for my help what have I got to
get out of here to get this thing going. And I said okay, remove
this, remove this, did some calculations, and he removed it and I
went back the next day and looked at it and said fine, build. I
will let them know that it has been reduced.
Ms..Evezich: Now that was sometime before May 2, you measured it
on May 2nd and found 645 cubic yards.
Mr. Campbell: May 2nd was my final measurement.
0 31
Board of Adjustment Minutes
(VerbatimMinutes)
August 1, 1994
Ms. Evezich: Sometime after that...
Mr. Campbell: It was after that Bob called me back out, and I had
been told by Stan Wade, my construction engineer, that if ... he
was keeping me posted on what was going on between these other
departments, and as soon as we handled it in the field out of
Engineering he said if they can get it done, you meet him out there
and get it down to below 500 yards, you can get their suspended
building permit back. So I met Bob on site and we went over it,
and he had it cleaned off the next day.
Ms. Evezich: Do you have any questions?
Chair Cosby: It may not be a question that you could or would want
to answer, but perhaps the City Attorney would want to, but I heard
earlier...I thought it was earlier, that once a permit was issued,
then you could put more than 500 cubic yards on the property. Did
I hear that or not? I don't know if I heard it.
Ms. Evezich: You may have heard that from either the appellant or
the appellants' counsel.
Chair Cosby: Do you agree with that?
Ms. Evezich: I would say that anything over 500 cubic yards
requires a SEPA checklist.
Chair Cosby: Okay.
Mr. Campbell: That's the latest thing I heard out of, you know,
the grape vine, now they are asking to put material back that I had
them remove to get under the 500 something about it not being safe
working around it. Now wait a minute. Take it away, start
building, then put it back.
Mr. Kleweno: Let's assume it is not subject to SEPA, okay. It is
not subject to SEPA and you have your building permit, are you
still restricted to 500 yards?
Mr. Campbell: Somebody above me makes that call. I'm an
inspector.
Mr. Kleweno: Do you know when the building permit was issued for
the applicable lot?
Mr. Campbell: I do not. The only reason I got my nose in this is
because I had no grade and fill permit.
is 32
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. Kleweno: Isn't it true that you can deposit... assuming again
that SEPA doesn't apply, that you can put 500 cubic is it feet or
yards
Mr. Campbell: Cubic yards
Mr. Kleweno: On to a lot.
Ms. Evezich: I'm going to object. This is very unusual for a
plaintiff's counsel to be cross examining my witness before I have
resumed my own testimony. I do the cross examining the witness
(unclear) I do appreciate the question, but
Mr. Kleweno: I thought he was finished. I'm sorry.
Ms. Evezich: Regardless of whether or not he was finished, I
haven't had an opportunity or did I interrupt to cross examine your
witnesses. Mr. Campbell is not in a position to interpret the
Zoning Code. That is done by either the Public Works Director or
the Planning Director matters pertaining to the Building Code, and
the codes pertaining to grade and fill permits that are issued by
the Public Works Department are done by those respective
departments.
Mr. Kleweno: I assume you were presenting him as an expert.
Ms. Evezich: I have offered his testimony purely for the
clarification of the question that was asked to me prior to this
time that I could not answer because it was related to a quasi-
judicial issue.
Mr. Kleweno: Well, if you are not presenting him as an expert,
then I move that all of his testimony be stricken. If you are
presenting him as an expert, then I would presume that he can
answer the question. He could say I don't know.
Chair Cosby: Well, 1 think I'll make a decision on that. And I
think that he said that he really.... the decision on the more than
500 cubic yards would come from someone from higher authority than
he is. And in my opinion he has been presented as someone who was
a witness to an act, not necessarily an expert, and as far as I am
concerned.
Mr. Campbell: He can handle some math, basic math.
Chair Cosby: I think he has done that. He has presented himself
as a witness to what occurred, and I appreciate that. Thank you.
0 33
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Voices: Unclear
Chair Cosby: Does anyone else have any questions?
Ms. Evezich: I'd like to get back ... as I said before, I have
provided you... I'm in an uncomfortable position. I have to give
you information that gives you guidance because of these matters
that in my opinion are irregularly and inappropriately brought to
your attention. I have done my best to provide you with objective
basis for you to determine whether or not you agree with the City's
position that these matters are beyond the scope of your authority
and what the consequences of making a decision raised by those
issues will be. The real matters that the City sees as
appropriately raised before you are whether or not the three lots
that were owned by Mr. Kobayashi and purchased under real estate
contracts were in continuous ownership and therefore subject to the
setback restrictions and the nonconforming lot restrictions of
Title 15. It is the City's position that Mr. Kobayashi has been or
was the owner of these parcels since 1968 when he entered into the
real estate contract. And you've had an opportunity to read the
materials that the City of Kent has assembled in this matter. The
. question of how to characterize a vendee's interest in real
property has been in a state of conflict in the State of Washington
for some time. It was earlier characterized and 50 years ago as
not being of legal interest of any consequence. And that decision
was overruled in 1977 by a case called Cascade Savings, which is
also mentioned in the City staff report. When the Washington
courts have been asked to determine what type of an interest a real
estate contract vendee has in property that they are purchasing
pursuant to a real estate contract, the courts have characterized
their property interest as that of an owner particularly when
certain things have been provided for in the real estate purchase
contract. Specifically, and as in this case, the real estate
vendee had the right to possession, which meant that he was the
person who could properly go before a city council and request
permits, variances, get other development permits for the property.
He also was the person who was charged with the responsibility for
paying taxes. He assumed the risk of loss, which meant he had the
burden of any damages to the property as the result of any
catastrophe, and he was also charged with the responsibility of
maintaining insurance. When courts have looked at how to
characterize this relationship between parties in the past and they
haven't had... the Washington courts have been very reluctant up
until at least 1977 to characterize the vendee purchaser's interest
at all, they have been characterizing it as an ownership interest.
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
• 34
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
in separate ownership. They were in continuous ownership prior to
1973 and therefore they 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 development proposal developed in the manner in which
they have proposed. The other issue that the City finds to be
appropriately before you at this time is that multifamily design
review is required for these lots. I don't think that the
appellants seriously dispute that there are more than three units
being developed on each parcel. Multifamily design review would be
required regardless of whether or not there were three units on
each one of these five lots regardless of whether or not they were
held in separate ownership because of its integrated relationship
with one another. If you will recall by looking back at the
language of Washington Administrative Code 197-11-060, any time you
have a proposal or proposals that are subject to similar
requirements are so dependent on one another to be a part of the
same project, they will be deemed to be an integrated proposal for
review of their environmental impacts. And they are certainly
subject to multifamily design review for the same reason. If the
City is precluded from implementing multifamily design review at
this time, we would be unable to make provisions of important
aspects of this project that could make it an environmentally sound
project. The configuration of roads, where lots will sit on sites,
where garages will be located are all very important considerations
that need to be taken into account now before the opportunity is
lost or we won't have an opportunity to put the streets and
drainage and so forth in the appropriate locations. The City
Planning Department has had this information presented to it in a
very unorthodox manner on at least four separate occasions, and I
understand the frustration that people have when they come to a
city counter and they want to build a project. They feel like they
are not getting cooperation or they feel like they are not getting
what they want in the time frame that they want or to achieve the
purpose that they want. But that is not what happened in this
case. This information was presented to the City as I said in a
very unorthodox manner. 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 were 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 plan to the City
Council ... not to the City Council, but first to the Planning
Department, and then to the Building Division for the purpose of
getting addresses, then to the Public Works Department for the
• 35
Board of Adjustment Minutes
• (Verbatim Minutes)
August 1, 1994
purposes of obtaining grade and fill permits. And as this document
progressed its way around through the City through different
individuals always with different questions about what if and would
it be possible to do this, it became clear that the appellants were
doing their best to characterize this as separate legal lots
entitled to separate legal review. Well, neither the threshold or
categorical exemption provisions, SEPA or anything in the Kent City
Code allows somebody to have individualized analysis done on a
project simply because the project is going to involve legal
ownership unique to one individual when they are all combined and
cooperating with one another for the development of a single
project. They have worked together for their utilities
connections, their grade and fill permits, their SEPA review, their
lot line adjustments. The applicant, Paul Morford, has signed on
several occasions permits as attorney in fact for a number of the
appellants, including Dale Morford and Myrna Millick who is not
here tonight. Although the individuals believe that having
separate legal lots entitles them to somehow deviate from the
important analysis and the code requirements, there is nothing in
the code that entitles them to that. I don't want to spend a lot
of time going over information that you've already read in your
• staff report. The hour is getting late. You have a lot of written
material in front of you. I would just like to summarize by saying
that the multifamily design review is appropriate because there are
clearly more than three units being proposed either on any one lot
or on all of these lots together. These lots are, in the opinion
of the City and have been in the opinion of the City, in separate
legal ownerships since 1968, since Mr. Kobayashi entered into a
real estate contract for their purchase. Whether or not you
characterize bare naked title as the only measure of whether or not
somebody has an ownership interest is not the way the Washington
State courts have characterized the interest of a vendee. For that
reason these lots have been in continuous ownership. The opinion
of the Planning Director characterizing them as being nonconforming
lots should be upheld. The Planning Director's decision on
multifamily design review should also be upheld on the Planning
official's determination that there were over 500 cubic yards of
fill on lot 9228 prior to May 2nd of 1994 pertains to a SEPA issue
and is not appropriately appealable before you. And the Planning
Director and SEPA officials determination that this is an
integrated proposal requiring SEPA is also not appealable to the
Board of Adjustment but rather to the King County Superior Court
and is not a matter which you can render a decision on. I will
answer questions if you would like to ask me some.
Chair Cosby: If you would, the last two items that you said were
not appealable. What were those two.
• 36
• Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Ms. Evezich: The City has characterized the appellants' appeal
from our determination that a SEPA checklist is required on the
basis that we determined that there were over 500 cubic yards of
fill in number 9228 as beyond the scope of your authority because
it pertains to SEPA. The second issue is whether or not a
threshold determination is required under SEPA, because the
Planning Director has characterized or excuse me, the SEPA official
has invoked jurisdiction because he characterizes the impacts and
the overall effect and intent and purpose of this project to be an
integrated development comprising up to 34 to 37 units over
approximately four acres, I believe. Do you have questions, Mr.
Gesler?
Mr. Gesler: Yes, on the 500 cubic yards of fill, if this was
subject to SEPA, why did they issue the building permit then?
Ms. Evezich: There is an exemption for under 500 cubic yards of
fill. In the original representation made the appellants'
representative, Paul Morford, was that he did not intend to add
more than 500 cubic yards of fill. It was sometime in, Ron, you'll
have to correct me if I am wrong, sometime in late March or early
. April that a site inspection indicated that there was visibly
Mr. Gesler: I understand that, but then they removed some of the
fill and got it down to 500 yards, and then they turned around and
issued a building permit again.
Ms. Evezich: No, what they did was that they lifted ...they red
tagged the property for development.
Mr. Gesler: Why did they remove the red tag if it was not subject
to SEPA...I mean if it was subject to SEPA.
Ms. Evezich: They removed the red tag because the appellants
complied with the restriction for cubic yards of fill, they reduced
the cubic yardage from 700 ...approximately 745 yards to the 500
yards.
Mr. Gesler: It appears to me that if they are down under 500
yards, then that number 4 that over 500 yards of fill was on there,
it was a mute issue.
Ms. Evezich: It's a mute issue.
Mr. Gesler: So why are we even discussing it. Why is it before us
then.
• 37
• Board of Adjustment Minutes
(verbatim Minutes)
August 1, 1994
Ms. Evezich: Unfortunately as Mr. Kleweno and we discussed on July
lith was originally brought back to you sometime in May after your
regularly scheduled meeting had already been held. Since you only
meet once a month, the other possibility was to be put on the
agenda for June. If I am not mistaken, Mr. Kleweno, correct me, he
wrote to the Planning Director some time late in May.
Mr. Kleweno: Early May.
Ms. Evezich: Early May indicating that he wanted another meeting
with you or another date when he could meet with you. But as I
said you had already met, so the earliest time would be June when
he wasn't available. And then for additional reasons that you have
already heard about I won't elaborate on in July, we weren't able
to hear that, so as time has progressed, the City and the
appellants have done what they could to keep from accumulating
impacts and going where they could without making any moves that
would affect the substantive issues that are before you.
Mr. Gesler: Thank you.
Chair Cosby: Now I understand the ones that are not appealable,
now run back over the ones that are appealable.
Ms. Evezich: In the City's opinion on the issue of whether or not
the three lots, the three interior lots that were held under real
estate contract by Robert Kobayashi are in continuous ownership and
therefore subject to the nonconforming lot requirements of Section
15.08.100 of the Kent City Code and thus require a lot line
adjustment prior to consolidating the lots from five lots to four
lots. That issue is within your scope of authority. The issue of
whether or not these projects... this project is subject to
multifamily design review as set forth in Title 15 is also an issue
that is properly before you.
Chair Cosby: Any other questions. Thank you.
Mr. Kleweno: The City Attorney is correct in characterizing the
status of the law having to do with the vendee 's interest in a real
estate contract as being confusing in the State of Washington. The
Seminole case that first addressed this issue I have addressed on
page 5 of my brief. It is Ashford vs. Reese. In the Supreme
Court of the State of Washington at that time and in that case when
dealing with a purchaser's interest in an executory real estate
contract, and all that means is one that has not been fulfilled
yet, they said an executory contract of sale in this state conveys
no title or interest either legal or equitable to the vendee. That
• 38
• Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
was the law in the State of Washington in 1925, and that was the
law in the State of Washington in 1973. It wasn't until 1977 as
set out by the City in their brief and also indicated in our brief,
that the Supreme Court even said that a vendee had any interest in
real estate by virtue of the vendee's interest in a real estate
contract. So up until 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 at best. Now let's look at the
ordinance as passed by the City of Kent. And this is the City's
ordinance. It is their words, it is not Mr. MacIsaac words. And
they speak of ownership, and they don't say an ownership interest.
And they don't say a real estate purchaser's interest. They could
have said a lot of things, but they chose the word ownership. And
we are talking about real estate. We are not talking about
(unclear) in action or promissory notes or anything when we are
dealing with the ordinance in question. We are talking about real
estate. So the question becomes was there in lot 2 an ownership in
Mr. Kobayashi on June 20th 1973. And I would submit to you that
common sense and a reading of the law has to bring you to the
conclusion that on that date, and again that is the date selected
by the City, I suppose that is the date of the ordinance, I'm not
sure, I didn't check that, but on that date ownership of that real
estate resided in the Murrays. And if ownership, and I keep
emphasizing ownership and check out what ownership means according
to Black's Law Dictionary, it is a very broad definition, ownership
on that date resided in the Murrays. And if you conclude that
ownership on June 20th 1973, and I think you must, resided in the
Murrays, then the ordinance does not apply and the determination
made by the Planning Director is incorrect, and the 66 and 2/3 feet
lots on the frontage by their depths are legal lots. And all of
this is a bunch of nonsense. And everything that flows from that
determination in my opinion was unnecessary. Because once the
determination had been made that these weren't legal lots, then Mr.
MacIsaac is stymied. He has made his investment, he wants to build,
he wants to cooperate with the City, but he is stymied. So what is
Plan B? Plan B is Mr. Morford is going to go and purchase another
lot. Time is running. Time is money to builders. You folks know
that. That is common sense. That is common knowledge. The
planning people know that. Whether they take ... whether they honor
that is something else. And again, I'm not putting the onus on
them, they have a job to do. I will speak of the onus in a minute.
They have a job to do and their job is to see that nice
developments are... and no one is favored, and the law is
followed. So the next thing that occurs in this sequence is that
a fifth lot is purchased. So now the parties decide that they
can't get an ownership determination that would allow them to build
0 on what they say is their legal lots and their legal right to do,
39
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
at least they can then go in and through a lot line adjustment
create four lots and each of them do their own thing. Well, again,
Mr. MacIsaac, maybe naively, thought well, let's cooperate with the
City. Let's put what this thing might look like if it were all
developed. Maybe I'll build my lot first, maybe Morford will never
build, but at least let's show a concept of what it might look
like. And he takes it to Planning. They want to look at the plan.
They look at it. When they come back a week later to meet with the
Planning staff, to and behold the Planning Director has made the
determination that this is an integrated project. Mr. Morford
didn't agree that it was an integrated project and he graphically
displayed it to the City by tearing his lot off. He said my lot
isn't in here any more. So I am out of the integration. And I
suppose if they passed it on to Mr. Maclsaac, he would have torn
his off, too, and said we're not integrated into this. This is our
own separate investment. We need to cooperate, and it makes sense
to cooperate in the project to save dollars and to save time. And
it still makes sense for people who know each other and own
adjoining pieces of property to trade easements if it makes sense
to make the thing go, maybe even have common roads to make the
thing go. Now the determination was though that this is an
integrated project. Now why would that decision be made. Well I
can only speculate, but what it does then is make the project
subject to SEPA. More time, more delay, more fees, more money.
And I would submit more delay of Mr. Morford by Mr. Harris. Then
the determination is made in the letter of Mr. Harris in early
April. And surprise, surprise. Every determination is adverse to
the developers. Now isn't that strange. We appeal the matter.
Mr. Harris sends -me a letter that says that we can hear the matter
in June. I write to Mr. Harris. I tried to call him and I didn't
get a response. Write to Mr. Harris and say the appellants would
like if it can be arranged, and again I acknowledge at the
beginning of the meeting that your pay threshold is a little low
and we are using your time for free, but it is also important to
these people. And if it could be worked out to hear it at the
earliest possible date. The response to that letter was thundering
silence. I never received a response to that letter. The next I
heard is that yes it was still on for June 20th. I indicated that
I can't do that. You already know that. Then it was July 11th,
and I said, gosh, that is ... unfortunately I will be on vacation.
Whether it is coincidence or not and whether or not you gentlemen
were asked to meet rather than on Monday night or Tuesday night, if
that would have worked I don't know, and it's really not germane at
this time, except to point out that time has been running, and
again this is a matter which is under the direction and control of
Mr. Harris. It is not a secret around City Hall and it is not a
secret in the community that Mr. Paul Morford and Mr. Jim Harris do
0
40
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
not get along. They can be civil to each other, but I think that
they just don't get along. Mr. MacIsaac got stuck in the cross
fire, and I don't think it is fair, because all he did was buy a
lot he wanted to build on, nice suitable housing for the City of
Kent. And he wanted to work with the officials of the City of
Kent. And he tried to work with them, and I submit to you that
every decision that came down the pike was not in favor of the
developer, one of whom was Mr. MacIsaac. And so here we are on the
first of October... August, I don't want time to go that fast, the
days are getting short enough.
Voices: (Unclear) since October... (unclear)
Mr. Kleweno: And here we are today and he is in Napavine commuting
back and forth. His project is stymied. And again I would submit
again to you that it is stymied because of a lot of nonsense.
Turning now to the question again on the lots. Again I would
submit to you that it is their ordinance, they chose the word
ownership. Ownership has a plain meaning as set forth in Black's
Law Dictionary. Ashford vs. Reese said in 1923 and was still good
law in 1973 that a vendee's interest in a real estate contract was
not an interest in real estate period end of story. It was not
until 1977 that the case cited both in my brief and in the City
Attorney's brief says that they started saying well, yeah, maybe
they have some interest in real estate that is a contract vendee.
And they didn't say ownership. They said maybe some interest. You
acquire ownership of a parcel of property when you secure statutory
warranty deed. That's ownership. That then gives you the full
bundle of rights which is equated with ownership. Before that you
may have an interest, but you don't have ownership. And remember
it is the City's term, ownership, ownership. That is their word,
not ours. Turning now to the question of the SEPA review, again I
would submit to you that you do have jurisdiction to determine
whether the Planning Director made ... whether his decision that this
project was an integrated project is an error. Now certainly the
facts as presented by the owners of the property are not in
dispute. All of them say uhuh. We may cooperate, but this is not
an integrated project. We bought our own property, we have our own
property, and I made care during the presentation to ask Mr.
MacIsaac whether he has a partnership with Mr. Morford, Mr. Paul
Morford, not Dale Morford, or any of the other property owners.
And he said no, it is my lot. I want to do my thing. So when the
plan is submitted, now when the concept is presented just to kick
around, all of a sudden it becomes an integrated project. Well, 1
would submit to you that it is not an integrated project, and that
the threshold determination as to whether or not it is integrated
project is not a SEPA decision. That is a discretionary decision
0 41
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
made by the Planning Director, and again I believe it is subject to
your review. I don't suppose the fill question is a question of
great moment at this point, because the fill is off the lot. But
again it is another item where the City is looking at this project
and they are not sure whether once you had a building permit you
have more than 500 or less than 500, but it certainly didn't stop
them from issuing a red tag and stop the project. Again I would
submit that is all part of the power struggle between Mr. Morford
and Mr. Harris, and Mr. Harris holds the cards in this one. And
this guy is in the middle, and so is Mrs. Millick, and so is Dale
Morford. And I submit to you it isn't fair. And you are the only
ones who have ability to say no it isn't fair, and we are going to
make it right. You are assumed to be disbanded much to my dismay.
But at least you have that opportunity now if you think that what
has occurred is unfair to make it right. And again I would say
that the law and the facts, at least on this one, are on our side.
So I respectfully ask that your determination be number one, that
the MacIsaac lot was not in ownership continuously of 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 you make that determination, then the determination of
the Planning Director has to fall. That is that it is not a legal
lot. We would also ask that you make the determination that the
initial threshold determination that this is an integrated project
is not true. That this was not the intent of the owners, never was
the intent. Cooperation, yes. Integrated project, no. Thank you.
Ms. Evezich: Mr. Cosby, may I have an opportunity to (unclear)
that.
Chair Cosby: Of course.
Ms. Evezich: I'll be brief. I've attempted to be as brief as
possible because I had to give the information about SEPA, but I
think there are some issues that I would like to clarify. Most
importantly there is a lot of reference to the City somehow having
the proportion of a villain in this matter, and there is no
conspiracy on the part of the City against any of these appellants.
The City does need comprehensive information whenever it reviews
development, permit application, building permit applications, and
if that has been a problem with these appellants, and they have
suffered as a result of that, the City has done what they could to
tell them where clarifications needed to be and what direction this
project was going to need to move forward based on the information
that they themselves provided of their volition. It is easy to
attack the City in this position because we are charged with the
• 42
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
responsibility of enforcing, interpreting, and applying the laws in
a comprehensive and consistent manner to all people to the benefit
of the community as opposed to the individual pecuniary interest.
But individual developers are applicants or permit recipients. I
want to emphasize that this is not a personal issue. Mr. MacIsaac
is not being singled out, and it is very easy to characterize this
individual as the one blithely wearing the halo of innocence while
all these other decisions come down and act to his demise. But the
City has repeatedly attempted to provide these appellants as much
information as possible to get them in the right direction with
this project, and we have not done anything to delay this
individual because of some personal animosity between the
appellants' representative, Paul Morford, and anybody else involved
in this project. I'd also like to emphasize that just because a
law with the City passed in 1973 characterized lot as
nonconforming, and the Washington Supreme Court interpretation of
what interest a real estate contract had in 1977 is of no
consequence. The fact that the Washington Supreme Court chose to
overrule a law indicates that they felt that it was bad law and
needed to be reversed. In that instance it is not appropriate for
anybody to rely on a law that has been overturned. It does not
affect the outcome of this case. The fact that these lots were
held in a real estate contract in 1968 when you are asked to make
an interpretation of what characterization the courts would give to
those lots in 1994 is the issue that you need to resolve. The
appellants' attorney has spoken of the bundle of rights that are
encompassed in an ownership interest. And as I have already
indicated to you, most of the important bundle of rights that
characterize whether or not an individual was an owner in the eyes
of the Washington Supreme Court are possession, payment of taxes,
risk of loss and whether or not an individual maintains insurance.
These rights were all contracted to Mr. Kobayashi by the individual
sellers of those parcels of property. The appellants' attorney has
also given you a definition from Black's Dictionary as to what
ownership is. And I would just like to indicate also that is a
very broad definition that he has pointed out, and it is written in
the disjunctive, not the conjunctive, that means that any one of
those three things can be deemed to establish ownership. And as he
has also indicated, ownership can be represented by a lot of
different things, but in the eyes of the Washington Supreme Court,
the four important aspects of ownership characterize a real estate
vendeeIsinterest as that of an owner. I won't take up any more of
your time. I would urge you to dismiss the matters that we have
already indicated are not appropriately brought before you because
they pertain to SEPA, and limit your decision this evening to
whether the Planning Director's decision that these lots were in
continuous ownership will be upheld, and whether or not the project
40 43
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
is subject to multifamily design review because there are more than
three units being developed on each parcel. Thank you.
Chair Cosby: Let's start with questions.
Ms. Evezich: (unclear)... Section 15.09.047 regarding
multifamily ... (unclear) Section 15.08.100 regarding
nonconforming ... (unclear)
Chair Cosby: There are normally three criteria that are supposed
to be met or not met when we make a decision here. And Lois do you
have ... I think we need to go over those three. So you want to read
the first one Doug. 'While he is doing that, I'll try to explain
why I think maybe there was a delay in your request, Mr. MacIsaac,
as soon as possible when we couldn't get together at a meeting.
And this is just a guess, but right about the time you were
requesting a meeting with the Board, the Board was being dissolved,
and there were things that were going on that had nothing to do
with the Planning Department. But no one really knew for sure that
there was going to be a Board to appeal to until something like
June 20th, the morning of our last meeting. As of that morning, as
far as I was concerned, as far as I was personally concerned, there
is wasn't a Board. So I think that had something to do with it, and
it had nothing to do with the Planning Department. It was just
some things that happened. And, anyway, for whatever that's worth.
Mr. Gesler: I think I was out of the country in the early June,
and there were only two other members of the Board, so they didn't
have a quorum. (voice unclear) ... I think I don't have it. I
thought it was in the rules and regulations governing the conduct
of business of the Board. I don't find it in here.
Chair Cosby: Lois do you have any of these.
Ms. Ricketts: The three criteria are for variances.
Chair Cosby: So they are not necessary here. Thank you. I have
a question on the ownership of the lots. The City has been telling
people for a number of years that what their definition of
continuous ownership was. And now the appellant is saying, and I
don't think that definition is right. The question comes to my
mind, and it may not make any difference, I guess, what about all
those people who came to the City and said, we want to do this, and
the City said no, you can't do that.
Ms. Evezich: Whether or not the Planning Department has ever had
to decide what to do when presented with the question of whether
0
44
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
real estate contracts would constitute continuous ownership or not,
I can't answer that, and as you know, Mr. Harris is unavailable in
the hospital. But I can tell you that this interpretation was
originally issued by the Planning Director who has been with the
City of Kent for 25 years, and that in making that interpretation
consulted with the Legal Department, and you have my written
materials as to how we find analysis to support that conclusion.
As to other instances that he might have from his experience with
other applicants, I cannot comment.
Mr. Gesler: Did you get a title report on this property?
Ms. Evezich: Yes I did.
Mr. Gesler: What did the title report say?
Ms. Evezich: The title report is issued by a body that specializes
in dealing with issues pertaining to title. The Washington Supreme
Court has indicated that..
Mr. Gesler: I understand that. I just wondered what the report
• said.
Ms. Evezich: The report said that in the opinion of the person
preparing the report that a statutory warranty deed was fulfilled
on a certain point in time and that in their opinion, which is not
a legal opinion, there was a transfer of ownership as ... I think
each parcel was a little bit different. I can't recall
specifically if they addressed each parcel or if they did them
collectively, but they offered an opinion as to when they believe
that title changed hands, which is a separate issue.
Mr. Gesler: They don't offer legal opinions, but they back it up
with money.
Ms. Evezich: Well, but they were addressing the question of title.
Mr. Gesler: Yeah. Okay. Thank you.
Chair Cosby: Can you tell me, if you know, what is the reason for
the law in the first place. I understand the date. I did one of
these. I developed one of these lots, and they said we've got to
check it out. We've got to make sure there's never been any change
in ownership, and there wasn't, so I didn't even worry about it.
But what is the reason, do you know what the reason is.
• 45
Board of Adjustment Minutes
. (Verbatim, Minutes)
August 1, 1994
Ms. Evezich: I don't know. I can speculate. I know that many
years passed between the time the City first adopted it's
Comprehensive Plan. Maybe some of you know a few residents of
Kent. There was a long period of time in between the original
enactment for the City's Comprehensive Plan, and I think that up to
20 or so years passed before it was addressed again in 1973. So at
that time they may have found that for reasons related to
comprehensive zoning that it was necessary to make some changes at
that time. I'm sorry. I'm only guessing.
Chair Cosby: The purpose was to allow grandfathering, I'm sure of
that.
Mr. Kleweno: I'm sure the plats were plats and divisions were
platted in the early days, and they might have been on 66 2/3 lots
which were legal at the time, and then as the City Attorney
indicates, the rules changed, and in that particular zoning no
longer is a 66 2/3 legal.
Mr. Gesler: I had three 50 -foot lots, and I could build one house
on it.
iChair Cosby: There was something earlier, Mr. MacIsaac, in all
these papers we got said something about there was a duplex with a
garage with living space above the garage, and the implication was
that was going to be another... could have been an implication that
was going to be another living unit. I'm not even sure that it was
your building. (unclear)
Mr. MacIsaac: Yes, and to clarify that, where that came from was
because of going in and using the basic plan of approach to getting
permits. You had to have, in this case, a basic plan, which was a
townhouse, and then there was a basic plan, which was a carriage
house. Those plans were submitted for review as basic plans. And
the City came back and issued Paul Morford a permit not as basic
plans, but they issued him a permit for a duplex with an unfinished
carriage house as a third unit. So it was a triplex with an
unfinished carriage house. The reason it was issued that way was
simply so that construction could proceed. Another permit had to be
issued before that third unit could be finished. At that time a
multifamily design review had to be gone through and was
anticipated to be gone through before the third unit would be
finished. So, what precipitated the whole situation, we started
out with basic plans, the basic plans were put in for review. Two
basic plans were submitted. When the City had not made a decision
on the basic plans and wouldn't make that decision at the time they
were ready to issue the permit, and therefore two permits were
0 46
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
bought. One for a townhouse... one for two townhouses, and one for
an unfinished carriage house. Normally you would buy one permit
for a triplex, but because of the basic plan, using the basic plan
and the City not having been able to work their way through that
process and then wanting to change ordinances, they did issue two
permits to Mr. Morford. So that ... I don't know if I am making
myself clear, but that's what happened. That's how it got started.
That's how Paul was able to build on his lot, and I can't build on
my lot.
Mr. Gesler: By his lot you mean the black lot.
Mr. MacIsaac: Yes, by his lot, I mean the black lot. He can't
tell down here that is the same situation as me. The question of
my lot.
Mr. Gesler: The question is that I think that Paul bought that
black lot for lot adjustment.
Mr. MacIsaac: Right.
• Mr. Gesler: But since he is building that now, I don't think he
can use that ... are they considering that.
Mr. MacIsaac: Let me answer that, because that is really
interesting because as the process went along, first none of these
lots were legal lots, based on the information we were getting from
the City. Then after Paul purchased that lot, they backed off
that, and they said no. Just the first three. Someplace the
timing of this is all ... but anyway, they backed off and said no,
no, now it is only the first three lots. You have an illegal lot
down there, which was this one, and Mrs. Millick lot, also the
yellow one, was determined to be a legal lot by the City.
Mr. Gesler: It is legal, you say.
Mr. MacIsaac: Yes, it is legal. There is two legal lots,
according to the City, and the three that are in question at this
point, as I understand.
Mr. Gesler: One other question. (voice unclear) ... Do you propose
on these (unclear) separate project to have separate utilities. I
mean all separate utility lines going back to each property.
Mr. MacIsaac: That is correct. Individual
Mr. Gesler: Have sewers
0 47
• Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Mr. MacIsaac: Individual water meters and the whole works so
that... absolutely.
Mr. Gesler: Basically each group will be a separate.
Mr. MacIsaac: Correct. Correct.
Mr. Gesler: Thank you.
Chair Cosby: I guess along with that same question I think what
Doug is leading to is ... what does the City see as the harm if you
build on each one of these lots. I understand if you get so many
units you have got to go SEPA, but they are saying they are not
going to mingle those. What is the harm.
Ms. Evezich: Regardless of the manner in which the individual
owners characterize their interest in the property, the City has to
apply and interpret its code provisions and SEPA provisions that
are mandated by state law equally to everybody. One of the
requirements of SEPA and the purpose of SEPA is to make a
determination about the environmental impacts whether they are
• adverse or going to be mitigated and issued a DNS, or if there are
no impacts in a manner which includes all possible direct,
indirect, or cumulative impacts. That is certainly a part of what
the City sees as the harm. Now I think there needs to be a
clarification about utilities connections, drainage ponds, streets,
access, parking lots and impact of individuals living in dwelling
units within a community.
Mr. Kleweno: Mr. Chairman, at this point I am going to object
unless you are going to throw this back open into argument again.
I think what we are receiving now from the City Attorney is
argument about the question that was propounded to Mr. MacIsaac.
And you know we could go back and forth all evening, and I didn't
ask for the last chance to argue, which the appellant normally
gets, because I think you've heard enough. But at this point I am
going to object that this is beyond the scope and it is sort of
answering and arguing the answer of Mr. MacIsaac that the Board
had. I think it is improper.
Chair Cosby: I sort of find it illuminating and you can certainly
speak again at any time. But I would like to finish, please. Go
ahead and finish.
Ms. Evezich: I was simply trying to answer the question would we
see as the impacts. It was not my intention to be argumentative
with Mr. MacIsaac. I like Mr. MacIsaac.
0 48
It
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Chair Cosby: We all do.
Ms. Evezich: But those are some of the considerations that the
City has to take into account, and it is also inappropriate and not
consistent with the manner in which either the code is interpreted
or the code is implied to other members of this community to
obviate the requirements of the project simply because of a
creative method of designating the way a project is going to be
developed, and indicating that while because we are all separate
owners, we all have separate interests, and therefore the impacts
of our projects should be determined individually. That is not
what the law requires, and that is not what the law provides, and
it is not the way we apply the law to anybody else.
Chair Cosby: If Mr. MacIsaac 's appeal is approved and he can build
on his, would that be true then of what the two green lots also?
Ms. Evezich: You can't make a decision independent of the appeal
of the issue in the way that the appellants have framed it.
They're appealing our determination that lots 9335, 9336, and 9337
were in continuous ownership as of a certain date, and therefore
• required to become conforming as of this date.
Mr. Cosby: Thank you.
Mr. Banister: Maybe, Mr. MacIsaac, you can answer it. Something
has been bothering me ever since I noticed it, and you made a
comment during your statement that you have a plan that you are all
going to use. We are talking about over four acres of property
here. We are going to see 34 to 37 structures all the same in that
kind of area, but yet it is going to be independent of each other.
I understand you said that. It is going to be a tremendous area
the same.
Mr. MacIsaac: I think you missed a real key point that I made
early. I am in trouble with the landowners on either side of me,
because I tried to present a concept and bring a concept down to
talk to the City. A concept to talk to the City. because I was
interested in building. Paul Morford may or may not be. And he
may be selling that property or doing something else with it. I
have no idea. Where we have gone to from that concept all of a
sudden became a plan for the entire project, and all it was was a
concept that I came down to talk to Fred Satterstrom on. And from
there it went to all the departments. We got pushed into SEPA, if
you're going to go through SEPA while we are waiting for the Board
of Adjustment to make decisions, we went ahead and did a SEPA
thing. At least we have got some way to go. You know. I've got
• 49
• Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
a lot of money invested. I've got money borrowed on my house. I
can't build. I cannot perform what I do best, and it is stupid,
because that concept ... I drew that thing, I brought it down. It
was a concept. We talked about building retirement homes there.
We've talked about every other kind of thing. This concept is
probably what we are probably what we are now forced into through
the steps and the timing, because we can't back up, we keep getting
forced further down the line. It's, excuse me, it's ridiculous.
Voices: (Unclear)
Mr. Gesler: You do have a SEPA application in now.
Mr. MacIsaac: Yeah, I didn't actually finish my testimony... In
the testimony if you read. We put a SEPA application in. The SEPA
application was approved. There is a $23,000 mitigation fee for
traffic. Then we went to Planning to see why we weren't able to
get our grade and fill permit that had been promised when SEPA was
gone through. Nope. Could not issue it. We had to then get the
lot line adjustments done. The lot line adjustments were run
through. Again, no, now you can't get your grade and fill yet.
. And the reason for that is ... that this thing has gone on for so
long.
Mr. Gesler: You paid the $23,000.
Mr. MacIsaac: The $23,000 mitigation fee is something that will be
paid over the years. We have not exercised or done anything,
because we don't even know that this is the concept that we want,
except for now because of timing the way things have gone and where
we are, we are probably committed to something like this. But, you
know, we've even submitted ... they said now bring us a submittal
on multifamily design review. We brought that submittal down. It
is submitted now under a multifamily design review. We are forced
into a situation that we had no control on, and I wanted to build
my six houses. That's where I am. I still want to build those six
houses. But financially I don't think I can do it any more.
Timing wise, if we start the permit process all over, this is just
absolutely gone ridiculous. And it is my own city that has done
this with me.
Mr. Gesler: Thank you. I have a question for the City Attorney.
It was indicated that the City has changed the ordinances regarding
the basic plans for multifamily units. Is that correct ... the last
six months.
• 50
w
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Ms. Evezich: No that is not correct._ And the issue of basic plans
is not a matter that is part of this appeal. It does obscure the
issues. The original proposal that was brought in by Paul Morford
on March 8, as I have indicated in the staff report, was one single
project. And there was no indication at that time that there were
five other lots that were going to be developed. But...
Mr. Gesler: Thank you. May we see a copy of the infamous plan.
Mr. Kleweno: Be careful with it. It is ripped.
Mr. Gesler: I hoped you taped it together.
Ms. Evezich: I'd like to point out that that is also Exhibit B in
the City's staff report.
Mr. Kleweno: If I could make one comment with your indulgence, I
think what the City Attorney has implied to you is that Mr. Harris
had no discretion on making the determination that this was an
integrated site plan. I don't think that's true. He determined in
his discretion, based on a concept submitted by Mr. MacIsaac, that
• this was an integrated site. He made that determination because he
wanted this project subject to SEPA. I think that's pretty plain.
But he had the discretion to say no, this is exactly what these
people say it is.
Ms. Evezich: What the director has and what the SEPA official has
is substantive authority granted to and pursuant to state law to
make certain determinations. To characterize the duties and
responsibilities that the Planning Director has is purely
discretionary. It misleads you into believing that there was some
kind of subjective determination on the part of the director
towards either the appellants or this particular application, which
is not correct.
Mr. Kleweno: Are you submitting that he had only one choice, and
that was to call this an integrated plan.
Ms. Evezich: No, I'm saying there were a lot of other instances
when this proposal was presented to other people who had permitting
authority in the City of Kent. It was presented by Dale Morford to
the Building Department. It was also presented by Paul Morford for
grade and fill permits. It was also presented, as Mr. MacIsaac has
indicated, at his ... we can't call it a predevelopment meeting, but
whatever your meeting was on March 31st. This has...
Mr. Kleweno: I thought the City had the plan for the week.
•
51
Board of Adjustment Minutes
• (Verbatim Minutes)
August 1, 1994
Mr. MacIsaac: Yes, the City did have the plan for the week. Yes
you are talking about a subsequent...
Ms. Evezich: This information is all provided in the City staff
report.
Chair Cosby: Okay, are there any other questions. Usually what we
do is we adjourn for hopefully for a few minutes and try to decide
what we are going to do. This is ... But let us do that. We will go
into recess, hopefully for not more than 10 or 15 minutes, and
develop a plan of some kind... as long as it isn't an integrated
site plan . Then we'd get triple time whatever we get.
(The meeting was adjourned for executive session.)
Chair Cosby: Bring the meeting back to order. I don't think we
have had a tougher time and more divisions that we've had to go
over since I've been on the Board, which has been for a long time.
Our job, as I see it, and I think the people on the Board see it,
is to try to help citizens get through the morass of bureaucracy
and red tape, and 1 think if we lean in a direction, it has always
• been to lean toward the citizen. And I think we've tried to do
that in this case. But we are unanimous. Is there a motion,
please.
Mr. Flue: Yes there is. I MOVE that the appellants' appeal for
items number 1 and 2 be denied, and that the Board has no
jurisdiction on items 3 and items 4.
Chair Cosby: Is there a second.
Mr. Banister: SECOND.
Chair Cosby: All those in favor say aye.
Voices• Aye.
Chair Cosby: Sorry. The motion has been denied. The request for
the appeal has been denied. Is there anything else. All right,
I'd entertain a motion to adjourn.
Mr. Flue: I MOVE we adjourn.
Mr. Banister: SECOND
Ms. Evezich: May I ask for a clarification for the record.
52
f
Board of Adjustment Minutes
(Verbatim Minutes)
August 1, 1994
Chair Cosby: Yes.
Ms. Evezich: You've made a motion that you are denying the
appellants' appeal on items 1 and 2; therefore you are moving to
uphold the determination of the Planning Director that the lots are
in continuous ownership and subject to the nonconforming lot
restrictions of 15.08.100 and require the lot line adjustment for
the consolidation of four lots. Is that correct?
Mr. Flue: Yes
Ms. Evezich: And you are also denying their appeal that their
property is not subject to multifamily design review and upholding
the decision of the Planning Director that it is subject to
multifamily design review. Is that correct:
Mr. Flue: That is correct.
Ms. Evezich: Thank you.
Chair Cosby: There is a motion to adjourn.
• Mr. Banister: Second.
Chair Cosby: All those in favor say aye.
Voices• Aye
(End of Verbatim Minutes)
ADJOURNMENT
The meeting was adjourned at 10:30 p.m.
Respectfully submitted,
am P. Harris, Secretary
Is 53
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
is
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 9336
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. Maclsaac 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.
49 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 roads, 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
10 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 Maclsaac 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
iMr. 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, ecretary
6