by MARK ST.J. COUHIG

Sequim Gazette

Six new zoning rules adopted by the Sequim City Council in late January have raised concerns among property owners, developers and real estate agents.

Two changes are particularly contentious. The first is a new rule declaring that in mixed-use and commercial zones, “residential uses” will henceforth be allowed only when the residence is located above a ground floor retail space or office.

Some also have noted that in “cleaning up” the chart of allowable uses for each type of zone the city has summarily removed many uses that were formerly allowed.

A little history

At the October 25, 2010, city council meeting, city staffers were given the go-ahead to work on six proposed “fast-track” zoning reforms. The new rules are the first step in an ongoing effort to rewrite the city’s zoning laws, a goal established by the council early in 2010.

Interim Planning Director Joe Irvin defends the recent changes, saying that together the new rules will improve the code greatly, particularly by ensuring that land zoned for mixed-use and commercial use isn’t utilized in a manner unintended for that zone.

Toward that end the planning department created “strong language outlining the intent of each district. That’s a really big improvement,” Irvin said. “Trying to identify uses that match that intent was part of the main goal of the reform,” he said.

He said the concerns he’s heard are largely the result of “a little misunderstanding” on the part of some community members.

Critics of the changes disagree, saying the new rules create substantial difficulties for property owners in the affected zones.

Repairing the rules

Irvin provided an example of the flaws in the code that now have been fixed, saying that prior to the recent changes the code for mixed-use zones “allowed 30 percent of a site to be stand-alone residential development. There was no code that would require the rest of the portion to be built out as commercial uses at the same time.”

As a result, Irvin said, “you were just getting residential development on commercial property for an unspecified length of time.”

Irvin also noted that first-floor homes in Sequim mixed-use zones were nonconforming before the recent rules were passed. One important fact remains, he said: A home-owner living in a mixed-use residential area can continue to live in his or her first-floor residence in perpetuity. He or she also can sell it for continued use as a residence.

Irvin also said adding on to a home in a Sequim mixed-use zone won’t necessarily trigger a change-in-use. There are exceptions: The new addition cannot be a separate domicile and the new addition must meet other zoning rules, such as mandated setbacks.

Irvin said those owning nonconforming structures in mixed-use zones will be glad to learn of another change in the rules. Before the recent revisions, the city’s code stated that a nonconforming structure within the city that was damaged “exceeding more than 50 percent of replacement cost” had to be rebuilt in conformance with the zoning regulations.

That was a big issue in finding financing, Irvin said. “Who would give a loan on something like that?” he asked.

The new verbiage stipulates that a nonconforming residence damaged through “unforeseen circumstances” can be rebuilt if the rebuilding doesn’t “increase the nonconformity” of the structure with the zoning ordinance.

Irvin summed up his thoughts on the changes, saying the new “nonconforming chapter isn’t restrictive. It allows them (homeowners) to remain, even in case of unforeseen events.”

In the end, he said, the new rules reassert that residential use “is vital to our downtown.”

Pulling the trigger

Irvin said there are two triggering mechanisms that will constitute a new use of a nonconforming structure in a mixed-use zone. If a “use” ceases for a year or more — for example, if a home is vacant for that time — the structure then would be required to meet the rules as written.

He also noted that a larger property with a house on it might be subject to certain difficulties if the owner hoped to add a commercial facility on the same property. He suggested one possible solution might be a “binding site process.” In that process the city “examines the impact to see if the proposed mixed-use development could be approved.”

Irvin was quick to note the procedure doesn’t result in a waiver but is simply an alternative mechanism provided for by law.

Mike McAleer, a managing broker with Re/Max Fifth Avenue in Sequim, isn’t so sure. He says remodeling may trigger a change in use and notes that voluntarily choosing to rebuild your home would likely

be very difficult.

Turning the tables

The recent changes also replace the old tables of permitted uses for each type of zone with statements of intent and lists of permitted uses. Irvin admits the number of permitted uses has declined, in some zones by as much as a third, but says that’s the result of a better evaluation of what fits.

“We had in mind the thought we’d identify uses compatible with the intent created,” he said. He also answered critics who said the changes were proposed and passed with insufficient public notice. “As we wrote intents for each zone we evaluated the uses and presented those to the planning commission multiple times, and to the council.”

He said the city didn’t hold a “work session” on the changes but said notice of their availability was posted on the city’s website and were subject to proper public notice. “We said if you want to see them, come by and see them any time.”

“We’re talking about zoning reform — the fact that there will be changes is inherent in that.”

McAleer disagrees, saying you can’t make changes in zoning without changing the comprehensive plan.

“There’s a very public process. This was supposed to be fine tuning, just ‘cleaning up’ the uses. I don’t think there were enough eyeballs on this.”

McAleer noted the city is in fact seeking a consultant to write a new amendment to the comprehensive plan that will include zoning issues.

McAleer also provided an example of the difficulties brought on by the changes.  He said he is the listing agent for one 75-acre property in Sequim that is in a C2G (“General Retail”) zone. Before the changes the site could have hosted a retail operation larger than 5,000 square feet. Under the new rules, the owners of the property are precluded from building a retail store larger than 5,000 square feet, ruling out its use for a large grocery store, a Target, or any other substantial retail operation.

“That’s a true statement as outlined in the code and that’s the bottom line,” Irvin said. But the new C2G rules, he said, “allow a wide range of uses.”

“I think part of it is making sure that our C2G zoning (provides for) uses that don’t necessarily detract from our downtown core. But I think there’s definitely a possibility to re-look at that, to re-examine it to ensure that’s the right zoning there.”

“I think we still have a lot of work in front of us, especially as we move forward with the evaluation of land uses for the downtown core. In the downtown core, it very well may be appropriate to have the mixed-use with a residence next to a business. Not on Washington Street, but maybe on Bell Street.”

Irvin also said, “When you’re writing code, it’s always in flux. There very well might be a problem out there. If there are unforeseen circumstances, come by and we’ll talk.”

In addition to the two more controversial changes, the new rules require neighborhood and community presentations for major conditional-use permits, special-use permits, major binding site plans and major subdivisions. They also eliminate the minimum density allowance for mixed-use and commercial zones and establish a maximum density for these zones.

Reach Mark Couhig at mcouhig@sequimgazette.com.