MEMORANDUM

Issues of Controversy:
Below are the following issues of controversy and the relevant criteria that govern each issue:

Issue #1: May the Council apply the Exceptions to the Street Standards to Prospect Street?

Short Answer:
Yes. Despite Mr. Hopkins' arguments to the contrary, the Exceptions of 18.88.050.F are applicable in this case. The Council has the authority, if it so chooses, to require the applicant to dedicate portions of the subject property for the improvement of Prospect Street, but the Council is not required to do so.

Background:
Prospect Street is identified as a "Neighborhood Street" in the City's Transportation Plan. The current Prospect Street right-of-way (ROW) varies between 43.85 feet on the eastern 2/3 of the street and narrows to 28.745 feet on the western 1/3 of Prospect. This is clearly below the 50-57 foot ROW standard of the Street Standards Handbook ("Handbook"). The applicant proposed that Prospect Street ROW (approved by the PC) remain 43.85 feet on the eastern 2/3 of the street and 28.745 feet on the western 1/3 of Prospect, but that the curb-to-curb width of the eastern 2/3 of the street be 24 feet, while the western 1/3 be 22 feet. The PC required a 25-foot curb-to-curb width (rather than the proposed 24-foot width) on the eastern 2/3 of the street, but otherwise, the applicant's proposals for Prospect Street were approved.

The applicant is requesting that Council uphold the PC's decision.

The appellant and opponents vigorously oppose the PC's decision and would like Council to require the applicant to dedicate a portion of the subject property to meet street standards as outlined in the Handbook. If required to dedicate portions of the subject property, some or all of the lots adjacent to Prospect Street would no longer meet the minimum lot size required (10,000 sq. ft.), thus effectively requiring the applicant to submit another proposal with fewer lots (probably one less lot).

Relevant Code Standards and Criteria:
Mr. Hopkins is correct that "[t]his Council is empowered by any one of several sections of the Code to require the applicant to dedicate added ROW from its property." Brief in Opposition ("Brief"), 5. But having the authority to require dedication is different than being required to require dedication from the applicant.

Section 18.80 applies generally to proposals for subdivisions. However, Section 18.80.020.B specifically applies the Street Standards in Chapter 18.88 "Performance Standards Option" to subdivision development streets. Adding to the confusion, Section 18.80 adds specific requirements for streets in subdivisions, which Mr. Hopkins highlighted in his brief and in his testimony to Council.

Specifically, Section 18.80.020.B.5 "Existing Streets" states: "[w]henever existing streets adjacent to or within a tract are of inadequate width, additional right-of-way shall be provided at the time of the subdivision." Mr. Hopkins emphasizes the word "shall" but ignores the term "inadequate." If the Council finds that Prospect street width is inadequate, then the Council must require additional ROW from the applicant.

However, in order to determine whether a particular street is of "inadequate" width, requiring additional right-of-way dedication by the applicant, Council needs to apply at Performance Standards Option for Streets in Section 18.88.050 "Street Standards" which incorporates by reference the City's Handbook, and specifically, Section 18.88.050.F which allows the Council to except certain streets from the Handbook standards. The fact that the proposed ROW is below the standards of the Handbook, does not necessarily mean that the proposed ROW is "inadequate." This is precisely the type of flexibility that the Performance Standards ordinance allows for.

Mr. Hopkins argued that Section 18.82.020 takes discretion away from this Council on this issue. Brief, p.5. This is incorrect. Section 18.82.020, although titled "Street Dedication Required," does not require additional ROW, but gives Council discretion to decide whether to require additional ROW. The first four provisions of Section 18.82.020 apply to future streets. However, the last provision, (E), applies to existing streets. Section 18.82.020.E states: "[t]he City may require additional right-of-way on streets which do not meet the Street Standards of Chapter 18.88, Performance Standards Option…" Although street dedication is required in Section 18.82.020 for future streets, additional ROW dedication for existing streets is authorized, but not required.

Mr. Hopkins quotes Section 18.82.060, apparently for the proposition that additional ROW is required in this situation. Brief, p. 5. However, Section 18.82.060 merely establishes the timeframe for when dedication is to be complete. In other words, Section 18.82.060 requires the dedication of future ROW for a street or greenway prior to final action on a subdivision approval, but only if such dedication is required. If no dedication is required, then Section 18.82.060 is inapplicable.

Mr. Hopkins argued that the "the only exception to this dedication scheme is provided in 18.82.040." Brief, p. 5. This is not an accurate statement, because Section 18.82.040 is not self limiting. In other words, Section 18.82.040 does not indicate that street dedication may be waived only by Section 18.82.040. Section 18.82.040 requires the Planning Commission (and Council) to waive street dedication for the construction of City street or greenway when it has proven, to the satisfaction of the Planning Commission (and Council), that the planned use will not increase in any way the automobile, pedestrian or bicycle traffic generated in the area. The owner is still prohibited from building in the right-of-way or associated setback areas of the future street or greenway. Section 18.82.040 applies in situations that differ from this. This section applies to situations where the application will not increase traffic, but for which, the City still has an interest in having a dedicated (but unimproved) ROW for future development. Section 18.82.040 is not directly applicable to this case, where the opponents want additional ROW dedicated by the applicant. If Prospect Street was not a "dead end" then it is plausible that this section would apply, as future development might necessitate additional dedicated ROW. It is true that the proposed application will increase traffic slightly on Prospect Street, but this increase in traffic on an already dedicated ROW does not apply to Section 18.82.040. In short, Section 18.82.040 does not preclude this Council from applying the Exceptions to the Street Standards of Section 18.88.050.F.
-

Current Street Characteristics:
•	The current Prospect Street right-of-way (ROW) varies between 43.85 feet on the eastern 2/3 of the street and narrows to 28.745 feet on the western 1/3 of Prospect. This is clearly below the 50-57 foot ROW standard of the Handbook.
•	Prospect Street is identified as a "Neighborhood Street" in the City's Transportation Plan.
-
Proposed Street Improvements:
•	Total ROW for Prospect Street remains 43.85 feet on the eastern 2/3 of the street and 28.745 feet on the western 1/3 of Prospect.
•	Curb-to-curb width of the eastern 2/3 of the street be 25 feet, while the western 1/3 be 22 feet. The 25-foot curb-to-curb width for the eastern 2/3 of Prospect is clearly within the standards of the Handbook.
-
Street Standards: According to the Handbook, pages 20, 32-33, "Neighborhood Streets" have the following standards:
•	A 50 to 57 foot right-of way (ROW) standard where parking is provided on both sides of the street;
•	Curb-to-curb width of 25 to 28 feet for parking on both sides; and
•	An 11-foot queuing lane for parking on both sides.
-
Exception to the Street Standards: Section 18.88.050.F states: An Exception to the Street Standards is not subject to the Variance requirements of section 18.100 and may be granted with respect to the Street Standards in 18.88.050 if all of the following circumstances are found to exist:
A.	There is demonstrable difficulty in meeting the specific requirements of this chapter [i.e. the standards from the Handbook, pages 20, 32-33] due to the unique or unusual aspect of the site or proposed use of the site.
B.	The variance will result in equal or superior transportation facilities and connectivity;
C.	The variance is the minimum necessary to alleviate the difficulty; and
D.	The variance is consistent with the stated Purpose and Intent of the Performance Standards Options Chapter.

This Council has the discretion and flexibility to decide whether the applicant should be granted an Exception to the street standards found in the Handbook. Here the Council can go either way because such determination is factual. This Council is not required to grant an Exception to the street standards on Prospect Street, but, if it chooses to, it must justify such grant of Exception with findings for each criterion in Section 18.88.050.F. The Exceptions for 18.88.050 are not as stringent as the "normal" variance standards of 18.100. This means that the "demonstrable difficulty in meeting the specific requirements" [Criterion A] may be based on the proposed use of the site, and not just the physical attributes of the site. Therefore, how the applicant wishes to develop the site is relevant to granting an Exception to the Street Standards. This Council may find, that because the applicant's tree protection plan makes the development of the site difficult, that this is a demonstrable difficulty in meeting the specific requirements of the Handbook standards. Also, Council may consider the fact that the chief argument against the PC's approval of this application is based on the proposition that the Prospect Street ROW is below standards of the Handbook. It is true that the total ROW width, including sidewalks, parkrow, and pavement is less than the 50-57 foot standard. However, the curb-to-curb width does meet the Handbook standard of 25 feet. Therefore, it is entirely consistent with the code for this Council to determine that the Prospect Street ROW is "adequate" even though the total ROW is below the Handbook standards.

Conclusion:
This Council has the authority to require additional ROW for Prospect Street as it is currently below some of the standards found in the Handbook. However, if the Council finds that the current width of Prospect Street is not "inadequate," then this Council also has discretion to determine that the street standards are exempt under Section 18.88.050.F.

Issue #2: May this Council deduct the paved drive portions of the private way from the lot area of the lots with paved access?

Short Answer:
No, unless this Council interprets "lot area" to mean that paved portions of the private drive must be deducted from the lot area.

Background:
Mr. Hopkins argued that this Council should interpret the definition of "lot area" as found in Section 18.08.360 to mean that the paved private drive portion of the lot must be deducted from the "lot area" of the subject property.

Mr. Harper argued that the code's definition of "lot area" is ambiguous and does not support Mr. Hopkins' argument that the paved portions of the private drive must be deducted from the "lot area."

Relevant Code Standards and Criteria:
"Private drives" are allowed under Section 18.88 "Performance Options Standards" of the code.

Section 18.88.050.A states that: "[a] private drive is a road in private ownership, not dedicated to the public, which serves three or less units." Section 18.08.360 defines "lot area" as "[t]he total horizontal area within the lot lines of a lot, said area to be exclusive of street right-of-way." There is no basis for determining that the private drive portion should be (or even can be) deducted from the definition of "lot area." "Street" is a defined term that includes only public rights-of-way; private drives are not considered "streets." See Section 18.08.670. Mr. Hopkins attempted to support the argument that the private drive access should be deducted from the lot area by citing to a February 25, 2003, letter from staff in regard to an earlier application that stated that "…the Planning Commission could make the interpretation that the flag drive area is the actual physical location where the drive is proposed and deduct this area from the lot." However, this letter was discussing a different planning action than the one proposed here, which had entirely different factual lot dimensions. Furthermore, flag lots and flag driveways are governed by the Partitions portion of the code, in Section 18.76, which is inapplicable to this subdivision application. There are no code provisions that allow for deduction of a private drive from the lot area of a parcel. However, Council does have the authority to interpret "lot area" to exclude private drives, if it has clear findings that justify why private ways should be deducted, as is public street ROW.

Issue #3: May this Council interpret "lot area" to mean the lot size of the subject property prior to dedication of ROW?

Short Answer:
No.

Background:
The attorney for the applicant, Mr. Harper, argued that if the Council does not allow for the "dedication" of an easement on either Prospect or South Mountain, that it should, alternatively, interpret the code's definition of "lot area" to mean the area of the subject property prior to the dedication for street improvements.

Relevant Code Standards:
"Lot area" is defined by Section 18.08.360: "[t]he total horizontal area within the lot lines of a lot, said area to be exclusive of street right-of-way."

"Street" is defined by Section 18.08.670: "[a] public right-of-way for roadway, sidewalk, and utility installation including the terms 'road,' 'highway,' 'land,' 'place,' 'avenue,' 'alley,' or other similar designations. The entire width between the right-of-way lines of every way which provides for public use for the purpose of vehicular and pedestrian traffic."

Reading these two definitions together, it is clear that Mr. Harper's request is not allowed under the code. Lot area is defined in terms of the subject property minus the street right-of-way. Street is defined to include the roadway, land (i.e. parkrow), and sidewalk. Therefore, if this Council requires dedication in fee simple (rather than a "dedicated" easement) then it cannot also interpret "lot area" to include the dedicated portion of the ROW.

Conclusion:
This Council cannot interpret the code to allow the portion of dedicated (in fee simple) ROW to be included in the calculation of lot area because the text of the code clearly states otherwise. If this Council requires portions of the subject property to be dedicated, such dedication must be subtracted from the lot area of the subject property.

Issue #4: Does this Council have the authority to require the dedication of an easement for ROW (including sidewalk and/or parkrow)?

Short answer:
Probably. However, it depends on whether this Council finds that the proposed Prospect Street ROW is "adequate."

Background:
As discussed in "Issue #1," Mr. Hopkins argued that the code requires dedication of ROW in fee simple if the Council finds that the proposed ROW is inadequate. Mr. Hopkins argued that this Council does not have the authority, under the code, to allow the grant of a ROW easement but must require dedication in fee simple.

Relevant Code Standards:
Mr. Hopkins' argument that Section 18.80.020 precludes the City from accepting a grant of easement for ROW is weak. Section 18.80.020.C grants explicit authority to allow for the dedication of easements for utility lines and watercourses. However, this grant of authority may be interpreted so that it does not preclude the granting of other types of easements, such as easements for a public path through the subdivision for example. Local governments commonly accept such easements that benefit the public. In this case, the applicant is asking that an easement be granted in lieu of a dedication of ROW in fee simple. This Council must conclude that the Prospect Street ROW is adequate per Section 18.80.020.B.5 for the City to accept the easement. This is because Mr. Hopkins is probably correct that dedication of ROW in fee simple is the only option available if the proposed ROW is found to be "inadequate." However, if this Council concludes that the proposed ROW is sufficient and not inadequate, the City retains the right to accept a dedication of an easement that would further improve the ROW for the benefit of the public.

Conclusion:
This Council must first find that the proposed Prospect Street ROW is "adequate" before it can accept a grant of ROW easement from the applicant. If the Council finds that the proposed Prospect Street ROW is inadequate, then it must require fee simple dedication of ROW from the applicant's property to satisfy the ROW standards.

Issue #5: Policy Choices at issue in this application.
This Council must choose which policy is more important in this case: Permitting the density allowed under the zoning ordinance or limiting density of development below the zoning ordinance standard when issues of aesthetics and tree protection make the development of the subject property to the maximum-allowed density difficult. The choice really is between allowing less than the zoned for units, or have a fully improved Prospect Street ROW up to the standards of the Handbook, with parkrows.

Back to Top