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� � � <br /> � <br /> b � <br /> Cy M <br /> t' y U1 ' <br /> > � � }M <br /> H � H <br /> K n _. <br /> H F <br /> � H b <br /> N M <br /> � � F"�i <br /> E, <br /> O N <br /> � � Op <br /> L� • fSl • <br /> � � H Hearing Examiner of the City of Everett Aug. 13, 1992 <br /> � y City Hall � <br /> o y 3002 Wetmore Ave. <br /> � " v Everett Wa. 98201 � <br /> � O N <br /> Subject: The Appeal of Zion Lutheran Church of a Public Works Permit Appeat <br /> #5-92 <br /> Gentlemen: <br /> We were requested by the Pastor of Zion Luiheran Chuc+ch (J. B. <br /> Brandt) to review three documents (The Staff Report to ihe Hearing Ezaminer <br /> Appeal of Public Works Permit #{92/173, Findings and Decision of the Hearing <br /> Examiner, and Chapter 1330 of the Everett Municipal Code(EMC)) and to pmvide <br /> a statement regarding his Request for Reconsideration of the examiners'decLsioa <br /> �' � Before making our comments, we must state ths.t we are owners of property <br /> � �� adjacent to the Applicant (Kevin Stark) and the Appellant (J. B. Brandt) and are <br /> therefore not totally disinterested parties in the outcome of these proceedings• <br /> 1 ���.. � Section 13.30A10 of the EMC perrnits Pablic Works to gtant <br /> "��� temporary use of city rights-0f-way for an annual fee "where such use is <br /> nonexclusrve and will not interFere with public convenience". Secuon 13.30.040 <br /> of the EMC. waves the annual fee for a use if it will "not interfere with the public <br /> � �� convenience.....and which use is attendant to uses in su►gle-family zones such as <br /> fences,bulkheads stairs and IandscaP�B R'e do not see anywhere in <br /> „ <br /> seetion1330.040 where the mquirement of section 13.30.010 for nonexclusive use <br /> � '�� may be waved. A dictionary definition of exclusive is " disposed to resist the <br /> i admission of outsidets . It would appear from this deffinition that a fence of any <br /> „ <br /> substance plflced in a common alley would necessarily be intended to be ezclusive <br /> , I�� and therefore not meet the nonexclusive requirements of section 13.30.010. <br /> ( � . Although the Hearing E�aminPr identified the appellants concem for the eeclusive <br /> I ' nature of the fence and its' potential for interfering with his convenience ( item 9 <br /> "finding of facts") in his "Findings and Decision", the Eaaminer only made a <br /> � '�� determination that the fence would not interfere with the public convenience (item <br /> 4 "conclusions"). No conclusion was made as to compliance with the nonexclusive <br /> requirements. Further, in the Staff Report it was stated thar. <br /> "It has been the cities practice to permit the consuvction of fences in <br /> unopened alley rights-of-way when the fence is positio rt d�q�lly ` <br /> divide the righc-af-way between the two abutting pmpe y <br /> This is suppoeted by the fact that when an unopened righe-0f-way is <br /> vacated and sold, the underlying interest �s e9uallY divided between <br /> the abutting property owners." <br /> I submit that this logic is flawed. If the Hearing Examiners decision is sustained <br /> and the city continues its'stated practice (even in matters where abutting property <br /> owners are in dispute), any properry owner can, for all intent and purposes, gain <br /> exclusive use of city owned nght-of-way with out the need to pay the city to vacate <br />