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N N = ~ _ ~ ° ~ m ~ ~ a o m p ;+? a_. mm=w~su mw`°°'~a ~~.oy,zw o ao vi D ~o=~a m~ ~~.~ ~o~~o ~. m m ~ ~ m m A W ~ ~ ^ ^ ^ ~ '~ N 3702_ mm ~~° ~ ~' ~m ~Da ~ ~ m •c~ m ~ ~• 3a3m ~ a ~ _ w_ ~° ~ m < ~, ~ ~ m ~ ~ 'D O ~ v a w ~ T ~ ~'~ ~a ~ 3, n 3 ~ w o m ~ ~ .. a O 0 3 ^~L"] N ~ Z~ ~ tlP 7 a (D C7 ^o m a m N y OFFICE OF THE HEARING EXAMINER CITY OF YELM DECISION ON RECONSIDERATION CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL APP-04-0128-YL APPELLANTS: Kathryn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. P.O. Box 73669 Puyallup, WA 98373 ATTORNEY FOR APPELLANTS: William Lynn Attorney at Law P.O. Box 1157 Tacoma, WA 98401 The following exhibits were submitted and made a part of the record as follows: EXHIBIT " 2" - Request for Reconsideration dated November 8, 2004 EXHIBIT " 3" - Memorandum from Examiner circulating Request for Reconsideration dated November 16, 2004 EXHIBIT "4" - Response from City dated November 19, 2004 EXHIBIT "5" - Response from Bill Lynn dated December 6, 2004 By Report and Decision dated October 27, 2004, the Examiner granted the appeal of Kathryn Dotson and Freestone DFF Yelm II LLC of the City's denial of a boundary line adjustment (BLA) request. On November 8, 2004, Cathie Carlson, Parametrix, timely filed a Request for Reconsideration which the Examiner circulated to parties of record on November 16, 2004. On November 19, 2004, the Examiner received a response to the reconsideration request from Grant Beck, Director, Community Development Department. The Examiner also received a letter from William T. Lynn, attorney at law, dated December 6, 2004. Based upon the reconsideration request and responses thereto, the following additional -1- findings are hereby made as follows: 1. Condition No. 1 of the decision granting the appeal reads: The appellant shall connect the newly created, smaller lot to City sewer and water. The appellant asserts in its reconsideration request that it cannot comply with Condition No. 1 due to the property owner's refusal to connect to City water and sewer until completion of the purchase of her property. The applicant asserts that it cannot complete the purchase of the property until the BLA is approved and recorded. The appellant therefore proposes to post a bond with the City in an amount equal to 150% of the total cost of the connections. The appellant desires a maximum of 90 days from the date of recording to complete the connections. In his letter of December 6, 2004, Mr. William Lynn advises that the improvements will meet Health Department requirements and offered an assignment of cash as opposed to a bond. 2. It appears that Health Department regulations control the requirements for and timing of connection to sanitary sewers and public water. Mr. Lynn notes that the project would meet Health Department requirements by connecting only to sewers, but the appellant agreed to connect to both sewer and water. Mr. Beck notes that the City accepts financial guarantees only when circumstances outside the control of the developer prevent the completion of a project, and when the work remaining is minor and would not permit the development from basic functionality when not completed immediately. 3. While Mr. Beck correctly asserts that the circumstances of the purchase of the lot are not beyond the appellant's control, at the same time the appellant has proposed an assignment of funds for 150% of the cost of connection and a maximum of 90 day period to complete the work. It also appears that the applicant has agreed to connect the smaller lot to water which Health Department regulations would not require. While the City's position is technically in accordance with its policies, the only issue prohibiting compliance is the timing of the improvement (subsequent to the BLA). Such timing constraint does not affect the substance of the original decision nor does it create a risk for the City. Therefore, the request for reconsideration should be granted and Condition No. 1 modified as follows: The appellant shall connect the newly created, smaller lot to City sewer and water; provided, however, that the appellant may make such connections within 90 days of the recording of the BLA. ,. Provided, further, that the appellant shall post an assignment cf cash -2- in an amount of 150% of the total amount of the estimated cost of the improvements. Failure of the appellant to post the assignment or complete the project as required will automatically render the BLA null and void. DECISION: The request for reconsideration is hereby granted as set forth above. ORDERED this 7'" day of January, 2005 P . CAUSSEAUX, JR. Hearing Examiner TRANSMITTED this 7`h day of January, 2005, to the following: APPELLANTS: Kathryn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. P.O. Box 73669 Puyallup, WA 98373 ATTORNEY FOR APPELLANTS: William Lynn Attorney at Law P.O. Box 1157 Tacoma, WA 98401 OTHERS: Parametrix Attn: Cathie Carlson 8830 Tallon Lane NE Lacey, WA 98516 City of Yelm Attn: Tami Merriman/Grant Beck 105 Yelm Avenue P.O. Box 479 Yelm, Washington 98597 -3- CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL and APP-04-0128-YL NOTICE APPEAL OF EXAMINER'S DECISION: The final decision by the Examiner may be appealed to the city council, by any aggrieved person or agency of record, oral or written that disagrees with the decision of the hearing examiner, except threshold determinations (YMC 15.49.160) in accordance with Section 2.26.150 of the Yelm Municipal Code (YMC). NOTE: In an effort to avoid confusion at the time of filing a request for reconsideration, please attach this page to the request for reconsideration. -4- OFFICE OF THE HEARING EXAMINER CITY OF YELM DECISION ON RECONSIDERATION CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL APP-04-0128-YL APPELLANTS: Kathryn Dotson 16440 Middle Road SE 1'elm, viiH y~~,9; Freestone DFF Yelm 11 LLC J. Scott Griffin, ,Jr. P.O. Box 73669 Puyallup, WA 98373 ATTORNEY FOR APPELLANTS: William Lynn Attorney at Law P.O. Box 1157 Tacoma, WA 98401 The following exhibits were submitted and made a part of the record as follows: EXHIBIT "2" - Request for Reconsideration dated November 8, 2004 EXHIBIT " 3" - Memorandum from Examiner circulating Request for Reconsiders#ion dated November 16, 2004 EXHIBIT "4" - Response from City dated November 19, 20~04Ap \!~ ~, P?t4 ti mot! n-- .... t...q .. .. T1't~ ..2 ~• tiryi:`,~ r~!'frL]PR'!~'on~. tR_ Af'!~~ By Report and Decision dated October 27, 2004, the Examiner granted the appeal of Kathryn Dotson and Freestone DFF Yelm II LLC of the City's denial of a boundary line adjustment (BLA) request. On November 8, 2004, Cathie Carlson, Parametrix, timely filed a Request for Reconsideration which the Examiner circulated to parties of record on November 16, 2004. On November 19, 2004, the Examiner received a response to the reconsideration request from Grant Beck, Director, Community Development Department. The Examiner also received a letter from William T. Lynn, attorney at law, dated December 6, 2004. Based upon the reconsideration request and responses thereto, the following additional -1- findings are hereby made as follows: 1. Condition No. 1 of the decision granting the appeal reads: The appellant shall connect the newly created, smaller lot to City sewer and water. The appellant asserts in its reconsideration request that it cannot comply with Condition No. 1 due to the property owner's refusal to connect to City water and sewer until completion of the purchase of her property. The applicant asserts that it cannot complete the purchase of the property until the BLA is approved and recorded. The appellant therefore pro~,:~5es U post a uo~ ~d vit'i the City in ar' wm^!.lnt enl gal to 150% of the total cost of the connections. The appellant desires a maximum of 90 days from the date of recording to complete the connections. In his letter of December 6, 2004, Mr. William Lynn advises that the improvements will meet Health Department requirements and offered an assignment of cash as opposed to a bond. 2. It appears that Health Department regulations control the requirements for and timing of connection to sanitary sewers and public water. Mr. Lynn notes that the project would meet Health Department requirements by connecting only to sewers, but the appellant agreed to connect to both sewer and water. Mr. Beck notes that the City accepts financial guarantees only when circumstances outside the control of the developer prevent the completion of a project, and when the work remaining is minor and would not permit the development from basic functionality when not completed immediately. 3. While Mr. Beck correctly asserts that the circumstances of the purchase of the lot are not beyond the appellant's control, at the same time the appellant has proposed an assignment of funds for 150% of the cost of connection and a maximum of 90 day period to complete the work. It also appears that the applicant has agreed to connect the small°~ lot `:3 :1'~tnr ~„hi4{-a u.,Y~th ['lnnaCtmF~n± ra Jl_91?tR4?!lS l~IOUI(~ rlc~fi rP~;JIrE?. ~/Uh11P the City's position is technically in accordance with its policies, the only issue prohibiting compliance is the timing of the improvement (subsequent to the BLA). Such timing constraint does not affect the substance of the original decision nor does it create a risk for the City. Therefore, the request for reconsideration should be granted and Condition No. 1 modified as follows: The appellant shall connect the nevrly created, smaller lot to City sewer and water; provided, however, that the appellant may make such connections within 90 days of the recording of the BLA. Provided, further, that the appellant shall post an assignment of cash -2- in an amount of 150% of the total amount of the estimated cost of the improvements. Failure of the appellant to post the assignment or complete the project as required will automatically render the BLA null and void. DECISION: The request for reconsideration is hereby granted as set forth above. ORDERED this 7th day of January, 2005 . CAUSSEAUX, JR. Hearing Examiner TRANSMITTED this 7th day of January, 2005, to the following: APPELLANTS: Kathryn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. P.O. Box 73669 Puyallup, WA 98373 ATTORNEY FOR APPELLANTS: William Lynn Attorney at Law P.O. Box 1157 ~v.J7 ~ ~G:, ~ i~ J OTHERS: Parametrix Attn: Cathie Carlson 8830 Talton Lane NE Lacey, WA 98516 City of Yelm Attn: Tami Merriman/Grant Beck 105 Yelm Avenue P.O. Box 479 Yelm, Washington 98597 -3- CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL and APP-04-0128-YL NOTICE APPEAL OF EXAMINER'S DECISION: The final decision by the Examiner may be appealed to the city council, by any aggrieved person or agency of record, oral or written that disagrees :vith the decision of the hearing examiner, except threshold determinations (YMC 15.49.160) in accordance with Section 2.26.150 of the Yelm Municipal Code (YMC). NOTE: In an effort to avoid confusion at the time of filing a request for reconsideration, please attach this page to the request for reconsideration. -4- RECEIVE LAW OFFICES DEC ®9 v"I GORDON, THOMAS. HONEYWELL, MALANCA, PETERSON £~ DAHEIM LLP NicCAR~fHy TACOMA OFFICE SEATTLE C~i4t~g C.~'~UX O pou~e"~ 1201 PACIFIC AVENUE. SUITE 2200 ONE UNION SO UARE Ol Il /~ POST OFFICE BOX 1157 600 UNIVERSITY, SUITE 2100 TACOMA. WASHINGTON 98401-1 1 5 7 SEATTLE, WASHINGTON 98101-4185 (253> 620-6500 <206) 676-7500 FACSIMILE (253> 620-6565 FACSIMILE (206) 676-7575 REPLY TO TACOMA OFFICE WILLIAM T. LYNN ATTORNEY AT LAW DIRECT (253) 620-6x16 (206) 676-6416 E-MAIL lynnwC~gth-law.com December 6, 2004 Stephen K. Causseaux, Jr. iiearirrgs E,x~rrirrer P.O. Box 5767 Tacoma, WA 98405 RE: Request for Reconsideration - Yelm Dear Mr. Causseaux: ~ ~S This is a response to the November 19th, 2004 letter from Mr. Beck which we received from Parametrix on December 3, 2004. The situation that prevents the appellant developer from making the improvements is a true "Catch 22". He cannot buy the property until it is a lawful lot which, according to the decision, cannot happen until water and sewer are connected. The property owner, in turn, will not allow these improvements to be made prior to the sale of the property. We believe this is a situation outside of the developer's control. We also note that the Health Department requirements would be met by the connection of the property to sanitary sewer only and even without public water. In an effort appease the City, the appellant offered to connect to both sewer and water, and the Hearing Examiner incorporated those as conditions of approval. It should be noted, however, that that condition actually goes beyond what is required to make the site a lawful building site. Finally, we understand that the City has a preference for an assignment of cash as opposed to a bond. Our client is willing to assign cash in order to obtain approval of the boundary line adjustment. We believe this approach protects both the City and the applicant. Very truly yours, William T. Lynn WTL:gam cc: Scott Griffin Cathie Carlson Grant Beck [1292319 vl] ~~~ TIi~ p a YELM WASHINGTON M E M O R A N D U,~EIVED NOV23Gti~ City of Yelm MGGARTHI; Community Development Dep~~~ & RouR~ i~~ ~~ To: Ste hen K, Causseaux, Jr., Hearing Examiner ~.~[ p From: Grant Beck, Directo Date: November 19, 2004 Subj: Request for Reconsideration -APP-04-0128-YL (BLA-04-0099-YL) The Community Development Department opposes the request for reconsideration of the Examiner's decision regarding an appeal of the denial of a boundary line adjustment. The request is to allow the developer to bond for improvements required for the completion of the boundary line adjustment. It is the policy of the City to accept a financial guarantee only when circumstances outside the control of the developer prevent the completion of a project under construction and only when the work remaining is minor and would not prevent the development from basic functionality if not complete immediately. In this case, the `development' being kept from completion is the purchase of the property, according to the request for reconsideration. Further, the conditions which require connection to City services are required for the new lot to be consistent with minimum area requirements. It is the City's practice for all financial guarantees of the nature being requested to require 150% of the total amount of the improvement to be deposited with the City in it's trust fund. Bond's have not been accepted as a form of financial guarantee except for road projects which require the Washington State Department of Transportation's approval. Finally, the applicant has already applied for a subdivision of the property subject to the boundary line adjustment and that application has been determined to be incomplete, in part because the application does not accurately depict the property as it exists at this time. c. Cathie Carlson, Parametrix 8770 Talon Lane NE Lacey, WA 98513-6641 4 O~ T~p~ City of Yelm °' Community Development Department 105 Yelm Avenue West P.O. Box 479 YELM Yelm, WA 98597 WA SMINGTON November 2, 2004 Scott Griffin Freestone DFF Yelm II LLC P.O. Box 73669 Puyallup WA 98373 Re: Griffin Subdivision Application Dear Mr. Griffin: On October 28, 2004, the City received your application for Preliminary Plat and has determined that the application is incomplete. The following items must be submitted or completed before this application can be processed. 1. The preliminary plat maps must show the location of Yelm Creek, and its ordinary high water mark. 2. The preliminary plat maps must show the 200-foot shoreline jurisdiction area and the flood zone area separately. 3. The preliminary plat maps must show wells and septics on or within 200-feet of the site. Please be sure to show the City's well and radius located to the southeast of this property. 4. The preliminary plat maps must show dimensions of lots, streets, property borders, etc. 5. A conceptual landscape plan must be submitted with application. 6. The legal description is incorrect. The boundary line adjustment is not complete; therefore Parcel B of BLA-04-0099-YL does not exist. We cannot process this application until the boundary line adjustment is complete and recorded pursuant to the letter from Grant Beck, dated October 28, 2004, or that the property identified as Parcel B of BLA-04-0099-YL is incorporated a part of the subdivision application. If you have any questions, please feel free to call me at (360) 458-8408. Sincerely, Grant Beck Community Development Director cc: Cathie Carlson, Parametrix (360) 458-3835 (360) 458-3144 FAX www.ci.yelm.wa.us ~~ 1VIcCarthy Causseaux Rourke Inc., p.s. Established 1977 November 16, 2004 TO: PARTIES OF RECORD RE: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL APP-04-0128-YL Stephen ~. Causseaux, Jr qo~ South loth Street Tacoma, Washington ~Sqo~ Phone ~ti~-~-~-~aoC Facsimile ~;',-~%'--6q,g The Examiner has received Request for Reconsideration dated November 8, 2004, in the above-entitled matter from CATHIE CARLSON of PARAMETRIX. This request is being sent to the above parties of record for their review and/or comments. If any party wishes to comment on this request, their comments must be submitted to the Examiner no later than December 2, 2004, (10 working days from mailing). The Examiner would also request that a copy of any comments be sent to Ms. Carlson so that she might be aware of such comments. The Examiner will make a determination on the request for reconsideration at the end of the above-stated time period. Very truly ours, STE EN K. CAUSSEAUX, JR. Hearing Examiner SKC/ca Enclosures cc: Parties of Record ~X ~ November 8, 2004 PMX# 257-4812-001 Stephen K. Causseaux, Jr., Hearing Examiner c/o City of Yelm P O Box 479 Yelm, WA 98597 Re: Appeal of Boundary Line Adjustment Denial BLA-04-0099-YL and APP-04-0128-YL Dear Mr. Causseaux: We are writing to request reconsideration of the conditions in your decision of the above-referenced appeal. Freestone DFF Yelm II LLC is unable to comply with Condition l prior to recording the [Boundary Line Adjustment for the following reason. The owner of the property, Kathryn Dotson, will not allow her property to be connected to City water and sewer until the purchase of her property has been completed. Freestone DFF cannot purchase the property until the BLA has been recorded. In order that the Boundary Line Adjustment may be recorded and to assure that the property will be connected to City water and sewer and all appropriate fees paid, we request that Freestone DFF Yelm II LLC be permitted to post a bond for these improvements. The amount of the bond would include the cost of the water and sewer connection and other fees associated with connecting the site to City water and sewer, including inspection fees, latecomers charges, and abandonment of the existing septic system and well. The proposed amount of the bond is 150% of the total amount of these improvements. Freestone DFF Yelm II LLC will submit the total estimated cost to the City of Yelm for review and approval. We request that Freestone DFF Yeh» If LLC be allo~~ed a maximum 90 days from date of recording of the Boundary Line Adjustment to complete the improvements. Your consideration of our request is appreciated. Sincerely, PARAMETRIX Cathie Carlson o:\cad\4812U 10804 HE modification request Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage Article IV 17.5.3 Comply with all local and state requirements stipulated in the OSSP and the operational certificate issued for the system. SECTION 18 EXPANSIONS. The health officer shall require an on-site sewage system and a reserve area in full compliance with the new system construction standards specified in this article for an expansion of a residence or other facility. SECTION 19 ABANDONMENT. Persons permanently removing a septic tank, seepage pit, cesspool, or other sewage container from service shall: 19.1 Have the septage removed by a certified pumping firm; 19.2 Remove or destroy the lid; and 19.3 Fill the void with soil. SECTION 20 SEPTAGE MANAGEMENT. 20.1 Only pumping firms certified by the health officer as per subsection 23.3 of this article shall remove septage from an OSS. 20.2 A pumping firm removing septage from an OSS shall: 20.2.1 Transport septage or sewage only in vehicles clearly identified with the name of the business and approved by the health officer; 20.2.2 Record and report septage removal to the health officer; 20.2.3 Dispose of septage, or apply septage biosolids to land only in a manner consistent with applicable laws. SECTION 21 DEVELOPMENTS, SUBDIVISIONS, AND MINIMUM LAND AREA REQUIREMENTS. 21.1 A person proposing any development shall obtain approval from the health officer prior to any development where the use of OSS is proposed. Any new development proposing to use OSS shall be required to have an OSS which meets new construction standards. 21.2 The health officer shall require the following prior to approving any development: AMENDED June 1, 1999 4-53 Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage Article IV 21.2.1 Site evaluations as required under section 11 of this article. This may include information gained in a project review as noted in subsection 10.5 of this article; 21.2.2 Where a subdivision with individual wells is proposed: 21.2.2.1 Configuration of each lot to allow a 100-foot radius water supply protection zone to fit within the lot lines; or 21.2.2.2 Establishment, through protective or restrictive covenants, as appropriate, of a 100-foot protection zone around each existing and proposed well site. Such zones shall be shown on the final plat map. 21.2.3 Where a subdivision to be served by a community well or wells is proposed, all requirements of WAC 246-290 and WAC 246-291 shall be met. This will include wellhead protection when applicable. 21.2.4 Where preliminary approval of a subdivision is requested, provision of at least one soil log per proposed lot, unless the health officer determines existing soils information allows fewer soil logs; 21.2.5 Determination of the minimum lot size or minimum land area required for the development using Method land/or Method II: 21.2.5.1 METHOD I. Table VII, Single Family Residence Minimum Lot Size or Minimum Land Area Required Per Unit Volume of Sewage, shows the minimum lot size required per single family residence. For developments other than single family residences, the minimum land areas shown are required for each unit volume of sewage. TABLE VII MINIMUM LAND AREA REQUIREMENT SINGLE FAMILY RESIDENCE OR UNIT VOLUME OF SEWAGE Type of Soil Type (defined by section 11 of this article)' Water Supply 1A, 1B 2A, 2B 3 4 5 6 Public 0.5 12,500 sq. 15,000 sq. 18,000 sq. 20,000 sq. 22,000 sq. acreZ ft. ft. ft. ft. ft. Individual, on or to 1 acreZ 1 acre 1 acre 1 acre 2 acres 2 acres each lot AMENDED June 1, 1999 4-54 Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage Article IV When an OSS is proposed to be installed in soil types 1 B or 2 through 4 that are included in the list of Category I soil series in Chapter 17.15 of the Thurston County Code (Critical Areas Ordinance), pressure distribution is required, at a minimum. In addition, for those Category I soil series the minimum lot size restrictions found in Table 3 of Chapter 17.15 shall apply, and any lots less than 1 acre in size must be served by a public water system and an OSS meeting Treatment Standard 2. s Due to the highly permeable nature of type 1A soil, only alternative systems which meet or exceed Treatment Standard 2 can be installed. 21.2.5.2 METHOD II. A minimum land area proposal using Method II is acceptable only when the applicant: 21.2.5.2.1 Justi the: 21.2.5.2.1.1 21.2.5.2.1.2 21.2.5.2.1.3 21.2.5.2.1.4 Pies the proposal through a written analysis of Soil type and depth; Area drainage, and/or lot drainage; Public health impact on ground and surface water quality; Setbacks from property lines, water supplies, etc; 21.2.5.2.1.5 Source of domestic water; 21.2.5.2.1.6 Topography, geology, and ground cover; 21.2.5.2.1.7 limatic conditions; 21.2.5.2.1.8 Availability of public sewers; 21.2.5.2.1.9 Activity or land use, present, and anticipated; 21.2.5.2.1.10 Growth patterns; 21.2.5.2.1.11 Reserve areas for additional subsurface treatment and disposal; 21.2.5.2.1.12 Anticipated sewage volume; 21.2.5.2.1.13 Compliance with current planning and zoning requirements; AMENDED June 1, 1999 4-55 WAC 246-272-20501 Developments, subdivisions, and minimum land area requirements. (1) A person proposing the development shall obtain approval from the local health officer prior to any development where the use of OSS is proposed. (2) The local health officer shall require the following prior to approving any development: (a) Site evaluations as required under WAC 246-272-11001, excluding subsections (3)(a)(i) and (4)(d); (b) Where a subdivision with individual wells is proposed: (i) Configuration of each lot to allow a one hundred-foot radius water supply protection zone to fit within the lot lines; or (ii) Establishment of a one hundred-foot protection zone around each existing and proposed well site; (c) Where preliminary approval of a subdivision is requested, provision of at least one soil log per proposed lot, unless the local health officer determines existing soils information allows fewer soil logs; (d) Determination of the minimum lot size or minimum land area required for the development using Method land/or Method II: (i) METHOD I. Table VII, Single family residence minimum lot size or minimum land area required per unit volume of sewage, shows the minimum lot size required per single family residence. For developments other than single family residences, the minimum land areas shown are required for each unit volume of sewage. TABLE VII MINIMUM LAND AREA REQUIREMENT SINGLE FAMILY RESIDENCE OR UNIT VOLUME OF SEWAGE Type of Soil Type (defined by section 11001 of this chapter) Water Supply lA, 1B 2A, 2B 3 4 5 6 Public 0.5 acres 12,500 15,000 18,000 20,000 22,000 2.5 acre2 sq. ft. sq. ft. sq. ft. sq. ft. sq. ft. Individual, 1 acres 1 acre 1 acre 1 acre 2 acres 2 acres on each lot 2.5 acres2 1 Due to the highly permeable nature of type 1 soil, only alternative systems which meet or exceed Treatment Standard 2 can be installed. 2 A conventional gravity system in type 1 soil is only allowed if it is in compliance with all conditions listed under WAC 246-272-11501 (2)(h). One of these limiting conditions is a 2.5 acre minimum lot size. (ii) METHOU u. A minimum land area proposal using Method II is acceptable only when the applicant: (A) Justifies the proposal through a written analysis of the: (I) Soil type and depth; (II) Area drainage, and/or lot drainage; (III) Public health impact on ground and surface water quality; (IV) Setbacks from property lines, water supplies, etc.; (V) Source of domestic water; (VI) Topography, geology, and ground cover; (VII) Climatic conditions; (VIII) Availability of public sewers; (IX) Activity or land use, present, and anticipated; (X) Growth patterns; (XI) Reserve areas for additional subsurface treatment and disposal; (XII) Anticipated sewage volume; (X111) Compliance with current planning and zoning requirements; (XIV) Possible use of alternative systems or designs; (XV) Existing encumbrances, such as listed in WAC 246-272- 09001 (1)(c)(v) and 246-272-11001 (2)(a)(vii); and (XVI) Any other information required by the local health officer. (B) Shows development with public water supplies having: (I) At least twelve thousand five hundred square feet lot sizes per single family residence; (II) No more than 3.5 unit volumes of sewage per day per acre for developments other than single family residences; and (C) Shows development with individual water supplies having at least one acre per unit volume of sewage; and (D) Shows land area under surface water is not included in the minimum land area calculation; and (e) Regardless of which method is used for determining required minimum lot sizes or minimum land area, submittal to the health officer of information consisting of field data, plans, and reports supporting a conclusion the land area provided is sufficient to: (i) Install conforming OSS; (ii) Assure preservation of reserve areas for proposed and existing OSS; (iii) Properly treat and dispose of the sewage; and (iv) Minimize public health effects from the accumulation of contaminants in surface and ground water. (3) The local health officer shall require lot areas of twelve thousand five hundred square feet or larger except when a person proposes: (a) OSS within the boundaries of a recognized sewer utility having a finalized assessment roll; or (b) A planned unit development with: (i) A signed, notarized, and recorded deed covenant restricting any development of lots or parcels above the approved density with the density meeting the minimum land area requirements of subsection (2)(d) of this section; (ii) A public entity responsible for operation and maintenance of the OSS, or a single individual owning the OSS; (iii) Management requirements under WAC 246-272-08001 when installing a LOSS; and (iv) Extinguishment of the deed covenant and higher density development allowed only when the development connects to public sewers. (4) The local health officer may: (a) Allow inclusion of the area to the centerline of a road or street right of way in a Method II determination under subsection (2)(d)(ii) of this section to be included in the minimum land area calculation if: (i) The dedicated road or street right of ways are along the perimeter of the development; (ii) The road or street right of ways are dedicated as part of the proposed development; and (iii) Lots are at least twelve thousand five hundred square feet in size. (b) Require detailed plot plans and OSS designs prior to final approval of subdivision proposals; (c) Require larger land areas or lot sizes to achieve public health protection; (d) Prohibit development on individual lots within the boundaries of an approved subdivision if the proposed OSS design does not protect public health by meeting requirements of these regulations; and (e) Permit the installation of an OSS, where the minimum land area requirements or lot sizes cannot be met, only when all of the following criteria are met: (i) The lot is registered as a legal lot of record created prior to the effective date of this chapter; (ii) The lot is outside an area of special concern where minimum land area has been listed as a design parameter necessary for public health protection; and (iii) The proposed system meets all requirements of these regulations other than minimum land area. 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I „~~'1 7+ "~ . `Puy, ~ ~, r ' i '" ~~~ ~k~r h A ~ ` ~ F Y ,. ,r+° ~_,- { /' 1 rn ~ ;~. ... ~ ~~ ~~ ~~ ~,, ,,~ ~~ ~~~~ .. ,~ u ~ "* t ~~ ,, ~ ~ I o , ~ :~ ~ '~ `a `~ ~. ~, a y k .~ ., _. .~,,,~ 4° r° y ...~..~ _. i Q ._~ P r ` y. ~. ,~ ~ ~' ' '~ ' i ~ ~.`~.,..~........ ,s'' ti ,~ I~ iF~ _ P . ,- ~.. ..W { _.,w ~ ~.."._e ~ _ /. O I ,~ ~ ~ ~,~ ,r~ a~ ~~ , LAW OFFICES CORDON. THOMAS, HONEYWELL, MALANCA, PETERSON F~ DAHEIM LLP TACOMA OFFICE 1201 PACIFIC AVENUE. SUITE 2200 POST OFFICE BOX 1157 TACOMA. WASHINGTON 98401-1 1 5 7 (253) 620-6500 FACSIMILE (253) 620-6565 REPLY TO TACOMA OFFICE WILLIAM T. LYNN ATTORNEY AT LAW DIRECT (253) 620-6416 (206) 676-6416 E-MAIL lynnw~gth-law.com Stephen K. Causseaux, Jr. Hearings Examiner P.O. BOX 5767 Tacoma, WA 98405 December 6, 2004 RE: Request for Reconsideration - Yelm Dear Mr. Causseaux: SEATTLE OFFICE ONE UNION SQUARE 600 UNIVERSITY, SUITE 2100 SEATTLE, WASHINGTON 98 101-4 1 8 5 (206) 676-7500 FACSIMILE (206) 676-7575 O~^ 0 ;J ~~~~~ This is a response to the November 19th, 2004 letter from Mr. Beck which we received from Parametrix on December 3, 2004. The situation that prevents the appellant developer from making the improvements is a true "Catch 22". He cannot buy the property until it is a lawful lot which, according to the decision, cannot happen until water and sewer are connected. The property owner, in turn, will not allow these improvements to be made prior to the sale of the property. We believe this is a situation outside of the developer's control. We also note that the Health Department requirements would be met by the connection of the property to sanitary sewer only and even without public water. In an effort appease the City, the appellant offered to connect to both sewer and water, and the Hearing Examiner incorporated those as conditions of approval. It should be noted, however, that that condition actually goes beyond what is required to make the site a lawful building site. Finally, we understand that the City has a preference for an assignment of cash as opposed to a bond. Our client is willing to assign cash in order to obtain approval of the boundary line adjustment. We believe this approach protects both the City and the applicant. Very truly yours, WTL:gam cc: Scott Griffin Cathie Carlson Grant Beck _ 1 ~(41V ~.,. (~ (~ln~t. f , ~~~. William T. Lynn [1292319 vl] ~° ~. YELM WASNINOTON MEMORAND UM City of Yelm Community Development Department To: Stephen K, Causseaux, Jr., Hearing Examiner From: Grant Beck, Directo~~'~ Date: November 19, 2004 Subj: Request for Reconsideration -APP-04-0128-YL (BLA-04-0099-YL) The Community Development Department opposes the request for reconsideration of the Examiner's decision regarding an appeal of the denial of a boundary line adjustment. The request is to allow the developer to bond for improvements required for the completion of the boundary line adjustment. It is the policy of the City to accept a financial guarantee only when circumstances outside the control of the developer prevent the completion of a project under construction and only when the work remaining is minor and would not prevent the development from basic functionality if not complete immediately. In this case, the `development' being kept from completion is the purchase of the property, according to the request for reconsideration. Further, the conditions which require connection to City services are required for the new lot to be consistent with minimum area requirements. It is the City's practice for all financial guarantees of the nature being requested to require 150% of the total amount of the improvement to be deposited with the City in it's trust fund. Bond's have not been accepted as a form of financial guarantee except for road projects which require the Washington State Department of Transportation's approval. Finally, the applicant has already applied for a subdivision of the property subject to the boundary line adjustment and that application has been determined to be incomplete, in part because the application does not accurately depict the property as it exists at this time. c. Cathie Carlson, Parametrix 8770 Talon Lane NE Lacey, WA 98513-6641 owo~T~p~~ City of Yelm Community Development Department 105 Yelm Avenue West P.O. Box 479 YELM Yelm, WA 98597 WASNINOTON November 2, 2004 Scott Griffin Freestone DFF Yelm II LLC P.O. Box 73669 Puyallup WA 98373 Re: Grifi`In Subdivision Application Dear Mr. Griffin: On October 28, 2004, the City received your application for Preliminary Plat and has determined that the application is incomplete. The following items must be submitted or completed before this application can be processed. 1. The preliminary plat maps must show the location of Yelm Creek, and its ordinary high water mark. 2. The preliminary plat maps must show the 200-foot shoreline jurisdiction area and the flood zone area separately. 3. The preliminary plat maps must show wells and septics on or within 200-feet of the site. Please be sure to show the City's well and radius located to the southeast of this property. 4. The preliminary plat maps must show dimensions of lots, streets, property borders, etc. 5. A conceptual landscape plan must be submitted with application. 6. The legal description is incorrect. The boundary line adjustment is not complete; therefore Parcel B of BLA-04-0099-YL does not exist. We cannot process this application until the boundary line adjustment is complete and recorded pursuant to the letter from Grant Beck, dated October 28, 2004, or that the property identified as Parcel B of BLA-04-0099-YL is incorporated a part of the subdivision application. If you have any questions, please feel free to call me at (360) 458-8408. Sincerely, Grant Beck Community Development Director cc: Cathie Carlson, Parametrix (360) 458-3835 (360) 458-3144 FAX www.ci.yelm.wa.us City of Yelm V~ ~~ w~sM~weron October 28, 2004 Kathryn Dotson 16440 Middle Road SE Yelm, WA 98597 J. Scott Griffin, Jr. Freestone DFF Yelm II LLC P.O. Box 73669 Puyallup, WA 98373 Dear Kathryn and Scott: Community Development Department 105 Yelm Auenue West P.O. Box 479 Yelm, WA 98597 Enclosed is a copy of the Hearing Examiner decision regarding the appeal of the City's denial of your application for a boundary line adjustment. The Examiner granted the appeal and approved the boundary line adjustment with the condition that the home site be connected to the City's sewer and water system. In order to complete and record the Boundary Line Adjustment, the connection to City services will need to be completed. Towards that end, the following issues need to be addressed as part of connection to sewer and water. • The sewer connection fee is currently $5,269.00 with a $145.00 inspection fee. A standard residential STEP system will be required to connect the residence to the sewer line located in Middle Road. • The water connection fee is currently $1,500.00 and a standard residential meter is $300.00 pre-tapped and pre-plumbed. The water main is located in Middle Road. • The property is subject to a sewer latecomers charge of $5,608.46, which is payable at the time of connection. • The property is subject to a water latecomers charge of $5,851.55, which is payable at the time of connection. • The existing drainfield will have to be abandoned pursuant to the requirements of the Thurston County Health Department. • The existing well must be decommissioned. (36B) ~ISd-3835 (3S6) 458-3144 FAX ro u ~ m. c i. ye! m. in a. u a have enclosed for your information standard details for the water and sewer connections, including the standard STEP tank detail from the City of Yelm Development Guidelines. If you have any questions regarding the design or process for connecting the home site to the City water and sewer systems, please don't hesitate to contact the Community Dev~ment Department. Beck, Director tment of Community Development c. William Lynn, Gordon Thomas Honeywell Cathie Carlson, Parametrix October 28, 2004 Page 2 of 2 OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YLRPP-04-0128-YL APPELLANTS: Kathyrn Dotson 16440 Middle Road SE Yelm, ~wr, 985~J7 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. Puyallup, WA 98373 SUMMARY OF REQUEST: Kathyrn Dotson and Freestone DFF Yelm II LLC appeal the denial of a boundary line adjustment between two parcels of land currently under the ownership of Ms. Dotson. SUMMARY OF DECISION: Appeal granted, subject to conditions. PUBLIC HEARING: After reviewing Planning and Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hear^g cn the reguest as fo!!ev:~s: The hearing was opened on October 12, 2004, at 9:00 a.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: EXHIBIT "1" - Planning and Community Development Staff Report and Attachments GRANT BECK appeared, presented the Community Development Department Staff -1- Report, and testified that the City finds that the BLA fails to meet the criteria for approval based upon the land use area requirements of the newly created lots. The application does not comply with the density or Health Department requirements. The underlying issue is how the property developments. The code requires a one acre minimum lot size for homes served by both an on-site well and septic system. The lots created do not meet the density requirements for maximum and minimum lots. WILLIAM LYNN, attorney at law, appeared on behalf of the appellant and testified that the issue is whether the City can impose new development regulations on a home where no changes are proposed. The initial decision referred to the Health Department and minimum density. Then, in the staff report, the City adds another reason which alleges an attempt to get around the subdivision code. The appellant owns two parcels of property consisting of ten and eight acres respectively. The house is piesently served by a looped driveway with the garage on the right side of the home. The City told the appellant that she would need to change the access point, but she can't do that and still access the garage. They desire to develop the balance of the property, but want to leave the house as it presently is. The City wants her to change the access from the street, but she cannot, and therefore proposes no changes. The City also required her to hook-up to sewer and water and make street frontage improvements. He doesn't believe the City can do that as the home creates no new impacts. They submitted a boundary line adjustment application to segregate her home from the balance of the parcel and will make no changes to that parcel. Concerning the Health Department issue, they have seen nothing from the Health Department saying that the BLA creates a problem. Normally, the Health Department makes the decision on septic and water, but staff never routed the request to the Department due to the existing structure. They want a chance to meet Health Department requirements. The Examiner could grant the appeal and impose a condition of meeting Health Department requirements. They could create easements for a reserve drainfield and could also meet the requirements by hooking up to sewer and water. They will agree to do that. The City is using the Health Department as a reason, but it is not valid. Concerning the density, they do not exceed the maximum density. They do not meet the density of three dwelling units per acre now. By shrinking the lot they actually come more into cormp!iance. RGW 58.17.04Q;F; +ees rot prchib!t a lot from eXCeeding the n Minimum Int dimensions and area. The City contends the lot is too big, but the RCW doesn't prohibit it. In the Kristen v. Seattle case, the Supreme Court did not distinguish between large and small adjustments. They propose subdivision of the balance of the site and frontage improvements will be an issue. They are not foreclosing the discussion of improvements. KATHY CARLSON, appellant, appeared and testified that the proposed lot with the house contains 39,198 square feet. MR. BECK reappeared and testified that the Health Department issue would be resolved if the appellant connected to sewer and water. -2- No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded at 9:30 a.m. NOTE: A complete record of this hearing is available in the City of Yelm Community Development Department FINDINGS, CONCLUSIONS AND DECISION: FINDINGS: 1. The Hearing Examiner has admitted documentary evidence into the record, viewed the property, heard testimony, and taken this matter under advisement. 2. This request is exempt from review under SEPA. 3. Notice of this request was advertised in accordance with the Yelm Municipal Code. 4. The applicant has a possessory ownership interest in abutting, rectangular parcels of property, one of which contains ten acres and the other eight acres. The parcels abut Middle Road SE on the northeast and Yelm Creek on the southwest. Improvements on the site include a single family residential dwelling and outbuildings, most of which are on the larger lot. A circular driveway entering the site from Middle Road SE provides access to the single family dwelling. 5. The applicant submitted a request for a boundary line adjustment (BlA) which proposed to combine the parcels and create a 39,198 square foot lot which would support the existing single family dwelling and outbuildings. The applicant proposed the BlA to allow subdivision of the balance of the site into 41 single family residential lots, but exclude the newly created lot from the subdivision. The City denied the BlA by letter from Grant Beck, Community Development Director, to Scott Griffin, Caddis Construction. d2ted August 11.2004. ~Nilliam ! ynn, attorney at law, timely filed an appeal of said denial on August 24, 2004. 6. Mr. Beck denied the BlA application in part because the newly created lot supporting the home violated Thurston County Health Department codes and Washington Administrative Code (WAC) standards which require a minimum lot size of one acre for those lots having both an individual well and on-site sewage disposal system. Furthermore, the 100 foot wide, protective well radius would not be contained within the boundaries of the proposed lot. Mr. Beck also denied the application as the newly configured lots do not meet the density requirements of the applicable Medium Density Residential (R6) zoning district of the Yelm Municipal Code (YMC). Mr. Beck also denied the BlA because the application represented -3- one of a series of actions designed to avoid City subdivision and development regulations requirements. 7. RCW 58.17 sets forth the State Subdivision Act, and RCW 58.17.040 provides exemptions from said act and provides in part: The provisions of this chapter shall not apply to... (6) A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots, or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which ccntains insufficient area and dimension tc meet minimum requirements for width and area for a building site.... Section 16.28.010 YMC sets forth the City's criteria for BLAs in part as follows: Applications for boundary line adjustments within or outside of an approved subdivision shall be presented to the city planner. Upon finding compliance with minimum zoning, health, building and other land use regulations and with the Yelm comprehensive plan and upon finding that the adjustment will not adversely affect access, easements or drainfields, the planner shall issue a certificate of approval.... 8. The City asserts that the BLA creates a lot of insufficient area to meet minimum area requirements of the WAC and County health regulations which require a minimum one acre lot size for those lot using an on-site water source and on-site septic system. However, at the hearing the appellant offered to connect the proposed lot to City sewer and water which eliminates Health Department concerns. 9. Section 17.15.020(A)(1)YMO provides: A. Specific types of uses permitted in the Moderate-Density Residential District: 1. Any residential use, including single-family dwellings on individual lots, duplexes, and other multi-family dwellings, provided they do not exceed six dwelling units per gross acre and are not less than three units per gross acre. -~- Section 17.15.050(A) YMC provides: A. Minimum lot area: None.... The applicable Moderate Density Residential District (R-6) zone classification does not require a minimum or maximum lot area, but does require a maximum density of six dwelling units per acre and a minimum density of three dwelling units per acre. The City asserts that creation of a lot which does not meet maximum density violates the criteria for a BLA set forth in RCW 58.17.040(6). However, said section prohibits creation of lots with "insufficient area and dimension to meet minimum requirements for width and area for a building site". Said section does not prohibit creation of lots which do not meet minimum density requirements. However, the Examiner agrees ~:-ith Staff t"at the intent o` tl~e BL.A exemption is to prohibit creation of lots which do not comply with the requirements of the applicable zone. However, in the present case, the BLA creates no new lots and the density remains constant. The newly created lot meets the minimum density requirements assuming creation of other lots of the same size. Therefore, the BLA does not alter the density of the overall parcel. 10. The appellant fully intends to subdivide the larger lot and must meet all City development standards. The smaller lot with the home would not be included within the subdivision and not subject to subdivision requirements. However, it is reasonable for the City to consider frontage improvements across the newly created lot based upon the BLA and the requirement that the subdivision serve the public use and interest and make appropriate provision for the public health, safety, and welfare. CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The appellant has established that the proposed BLA falls within the exception set forth in RCW 58.17.040(6) and also complies with the requirements of Section 16.28.010 YMC. Therefore, the appeal should be granted and the application for boundary line adjustment approved subject to the following conditions: 1. The appellant shall connect the newly created, smaller lot to City sewer and water. 2. Approval of this BLA shall not prohibit the City from requesting frontage improvements across the smaller upon preliminary plat application for the larger lot. -5- DECISION: The appeal of Kathryn Dotson and Freestone DFF Yelm II LLC is hereby granted subject to the conditions contained in the conclusions above. ORDERED this 27th day of October, 2004. STEPHEN K. CAUSSEAUX, JR. Hearing Examiner TRANSMITTED this 27`h day of October, 2004, to the following: APPELLANTS: Kathyn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. Puyallup, WA 98373 ATTORNEY FOR APPELLANTS: William Lynn Attorney at Law P.O. Box 1157 Tacoma, WA 98401 (~THFRS• Denny Balascio 16422 Middle Road SE City of Yelm Tami Merriman 105 Yelm Avenue West P.O. Box 479 Yelm, Washington 98597 Yelrn, WA 98597 -6- CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL and APP-04-0128-YL NOTICE 1. RECONSIDERATION: Any interested party or agency of record, oral or written, that disagrees with the decision of the hearing examiner may make a written request for reconsideration by the hearing examiner. Said request shall set forth specific errors relating to: A. Erroneous procedures; B. Errors of law objected to at the public hearing by the person requesting reconsideration; C. Incomplete record; D. An error in interpreting the comprehensive plan or other relevant material; or E. Newly discovered material evidence which was not available at the time of the hearing. The term "new evidence" shall mean only evidence discovered after the hearing held by the hearing examiner and shall not include evidence which was available or which could reasonably have been available and simply not presented at the hearing for whatever reason. The request must be filed no later than 4:30 p.m. on November 8, 2004 (10 days from mailing) with the Community Development Department 105 Yelm Avenue West, Yelm, WA 98597. This request shall set forth the bases for reconsideration as limited by the -7- above. The hearing examiner shall review said request in light of the record and take such further action as he deems proper. The hearing examiner may request further information which shall be provided within 10 days of the request. 2. APPEAL OF EXAMINER'S DECISION: The final decision by the Examiner may be appealed to the city council, by any aggrieved person or agency of record, oral or written that disagrees with the decision of the hearing examiner, except threshold deter minations (YMC 15.49.150) in accordance wcf~ Section 2.26. ~ SG of the 'fe!m Municipal Code (YMC). NOTE: In an effort to avoid confusion at the time of filing a request for reconsideration, please attach this page to the request for reconsideration. -8- • (OR APPROVED EQUAL) ENVIRONMENT METER BOX LID TYPE MIDSTATES, BCF-1416 12RL CONCRETE "BROOKS SIDEWALK SERIES 36 CONCRETE SERVICE SADDLE ROMAC 202S OR ROCKWELL 313 METER 80X z ~ 1°x 1" FORD GRIP JOINT z ~ CORPORATION STOP TYPE 3 F8 1101 1 ° PLASTIC LINE {USE 200 PSl -~ DR7 PHILLIPS DRlSCO PIPE 5100 POLYETHI'LENE PIPE) VALVE BOX OR 4" OIA. PVC R15ER. SEE NOTE BELOW. 2~ SLOPE TO BOX 18" CURB v ° ~~~~~~%~~~ s e < v a v n ° v VALVE 80X FOR SIDEWALK OR TRAFFIC 5E7TINGS, SEE DWG. N0. 6-12 USE 4" DIA. SCHEDULE 40 PVC IMTH CAP FOR OTHER INSTALLATIONS. 14 GAUGE 1NSULATEO COPPER TONING WIRE WRAPPED AROUND 7HE PIPE (SEE GENERAL NOTES N0. 7)- y FORD B61-444-G, GRIP 221/2 JOINT BY I.P THREADS. 1 1" A4ALE ADAPTER - J 3/4" X 1" X ]2" BELL - REDUCER. ~-- 1''x 1 ° FORD GRIP JOINT CORPORATION STOP TYPE F8 1101 SERNCE SADDLE NOTES: 1. STAINLESS STEEL INSERTS REQUIRED FOR ALL PACK JOINTS. 2. ALL SERVICE SADDLES SHALL AND F/TTINGS SHALL NAVE I.P. THREADS. CONCRETE OR FOG TITS B9H CONCRETE 'BROOKS DRIVEWAY SERIES 36 CAST IRON & OTHER CONCRETE TRAFFIC COVER TRAFFIC OR AREAS FOG T1TE 69H *CARSON 'CARSGN EARTH SERIES 1419-8 PLASTIC 1419 PLASTIC READER LID ~! ~ LL Ly LL LL LLLLLLLLLLLLL LLLLLL LLLLILL METER CHECK VALVE 19 t/2" PVC CAP 12" 12" FORD VH 72-15W 5/8"x 3/4" COPPER METER SETTER WITH CHECK VALVE AND UNION NUT AND SWIVEL FOR CONNECTING 1 ° IRON PIPE CITY OF YELM, WASHINGTON DEPT. OF PUBLIC WORKS 5/8" SINGLE METER SERVICE APPROVED PUBLIC WORKS DIRECTOR DATE 6- DES. DWN. CKD. DATE TEW TEW DLM 3~ 1 S~OO DWG. N0. SERVICE BOX -CARSON INDUSTRIES MODEL N0. 14196 WITH BOLTED HINGED COVER OR EQUAL COVER MARKING TO READ "SEWER" (USE IN NON-TRAFFIC AREAS) SPLICE TO EXISTING 14 GAUGE TONING WIRE WITH BUTT 14 GA. INSULATED COPPER TONING WIRE CONNECTORS AND FINISH SPLICE TONING WIRE FOR SERVICE TO HEAT SHRINK TAPE GRADE MAINLINE TONING WIRE AND WRAP SPLICE WITH HEAT SHRINK TAPE EXISTING PVC SWP ~z z ~ TO STEP TANK STEP MAIN o 12" CONNECT TO MIN. EXISTING PVC SERVICE LINE 1" SCHEDULE 40 PVC SWP 2" x 1" REDUCER PVC SWING CHECK IF REQUIRED VALVE SL x SL 1" BALL VALVE, SL x SL 1" BALL VALVE, SL x SL 1" PVC NIPPLE, SL x SL 1" x MAIN DIA. PVC REDUCING TEE SL x SL x TH OR PIPE SADDLE CITY OF YELM CREPT. OF PUBLIC WORKS TYPICAL 1 " SERVICE CONNECTION APPROVED I DwG. NO. PUBLIC WORKS DIRECTOR DATE 7- 2 PMX I PMX I MTO I 4/11/00 L~ PL 1/4'x12"x12' HOT DIPPED GALVANIZED FORM CONDUITS TO POST OR CHANNEL. SEE 0 TYPICAL PUMP CONTROL PANEL DETAIL DRAWING ~6. ~O-~ PUMP CONTROL PANEL 3/16" PVC CONDUIT 4"x8' PRESSURE TREATED POST ~ 1/4'x3"x6" HOT ATTACH CONDUIT TO DIPPED GALVANIZED POST WITH STAINLESS CHANNEL STEEL T'J~0 HOLE STRAPS CONCRETE j EXISTING GROUND .\ °. v. ~: v. c Z_ s w c ~: TO NEW ". TD STEP TANK ELECTRICAL PANEL ,,. DIRECT BURY CABLE DIRECT BURY CABLE ° 72' DIA. CITY OF YELM DEPT. OF PUBLIC WORKS REMOTE POST -RESIDENTIAL PUMP CONTROL PANEL INSTALLATION APPROVED DWG. N0. 7- 4 CITY ENGINEER DATE DES. DWN. CKD. GATE JEG PMX PMX MTO 4/11 /00 *PUMP CONTROL GARAGE PANEL WALL CONTRACTOR TO SHIM, ETC. TO ACCOUNT FOR DIFFERENT TYPES OF SIDING ~~ (CONTRACTOR TO FORM BOTH CONDUITS AS SHOWN FOR BOTH NI GARAGE WALL PUMP CONTROL PANEL 0 m ° 3/4" PVC o r CONDUIT ~w ~ OZ U 3/4' LB ~ ~ w w ~ ELECTRICAL o LINE FROM UNDER HOUSE CONDUIT -L TO STEP _ L~ TANK ~ - I ~--FOOTING/STEM TO STEP ~ ~ J WALL TANK *LOCATION OTHER THP.N GARAGE WALL OR REMOTE POST WILL BE CONSIDERED ON A CASE BY CASE BASIS. CONDUITS) TO ELECTRICAL PANEL STAINLESS STEEL TWO HOLE STRAPS AS REQUIRED TO SECURE CONDUIT TO WALL EXISTING GROUND IIA\~ N ~ I ~\ ~~ -_ TO STEP TANK 12" CITY OF YELM DEPT. OF PUBLIC WORKS TYPICAL PUMP CONTROL PANEL INSTALLATION ON EXISTING HOUSE APPROVED DwG. N0. CITY ENGINEER DATE 7- 5 PMX I PMX I MTO I 4/11/00 o ~ o z c~ o ~ ~ a (n Q ~ Y z o a J ~ n O O c W~ ~ w o m Q ~ p o 0 ~ w ~U U ~ o Z ~m U 0 W ~ ~ z ~ ~, z ~ ~ ~ U~ O p d U W W H-i ~ ~ p w z t~ W ~ O w Vl ?C .-. _ ~ ~ ¢ a ~ w p ~ a. Z Z Q U Q W~ O O W W Z vi O O V p W > Z r O U ~ ~~V X ~ ~a av,N w wo ~a oQw x ~~ w ~ ~ ~ ~ U Q m J O U ~ w Z O ~1 -> pZ ~ Y Z Z O O W Q N O~ a~ o Q dw O >,-, ~~Za ~ O ~~O ~ r -z~ ~ <a OQ ~`.N ~w ~ w Z ~ J ~ Z N w ~a 3 v ,.~---~ ~ J w F'i p iv Z ~, I > a O w a ~- U I ~ ~ o a > ~ ar w ~~ a~ w O pw Op w w ~ ~~ O> VO w 2 Z ~ a ~ ~~ LL Q W ~ N ~O w= USE 1" UNION TO CONNECT TESTING FIBERGLASS LID APARATUS FOR PRESSURE TESTING SERVIC WITH STEEL BOLTS AND NEOPRENE GASKET 20" MIN RISER HEIGHT TYPICAL WITH ALL NON-TRAFFIC BEARING TANKS 1' DIA.PVC HOSE AND LEAVE SUFFICIENT VALVE ASSEMBLY WIRE TO ALLOW FOR ORIENT BALL VALVE PUMP REMOVAL AS SHOWN. BALL VALVE SHAL1 BE WITH 12` BELOW ELECTRICAL SPLICE BOX WITH CORD GRIPS LID ALL CONNECTIONS SHALL BE WRAPPED WITH HEAT SHRINK TAPE 21" OR 24" PVC 30" DIA. RIBBED PVC RISER W/LID SLOPE GROUND AWAY FROM RISER GROMMETS NEOPRENE 14 GAUGE 6" FROM TOP OF RISER TO ~ ~ 18" FROM TOP RISER TO INSULATED OF ELECTRICAL CONDUIT TONING WIRE ~ EFFLUENT DISCHARGE INSTALL IN 3/4" EY CONDUIT SEAL TONING WIRE -INSTALL RISER N ~ ELECTRICAL CONDUIT TO-~ jIN RISER POWER SOURCE EFFLUENT DISCHARGE STANDARD INLET TEE 4"~ 2-PART EPOXY, USE C ~ ORIFICE ORENCO RISER TANK ADAPTOR FOR CONCRETE LUE EILD 3 5" ALARM M TANKS ON :_::.3.5" OFF u~ 3.5" REDUNDANT 1" PVC FLOAT ASSEMBLY AS SET OFF BY CITY OF YELM 0 4"p 1-1 /4" DIA. INLET HOLES AROUND ORIFICE PERIMETER OF VAULT Z_ ~ ~ 4" DIA. PVC FLOW `a~ INDUCER N PVC 810TUBE THE MATERIAL FOR DUPLEX, TRIPLEX, AND CLASS 1 DIVISION 1 INSTALLATIONS WILL VARY. THE CONTRACTOR SHALL MEET THE INTENT OF THE INSTALLATION REQUIREMENTS SHOWN IN THE TYPICAL STEP INSTALLATION. SUBMERSIBLE EFFLUENT ORENCO TURBINE 8 GPM 10 OSI 0511 PUMP WITH S.O. POWER CABLE AND i/8" BY-PASS ORIFICE IN THE DISCHARGE HEAD I CITY OF YELM I DEPT. OF PUBLIC WORKS TYPICAL SIMPLEX STEP TANK INSTALLATION APPROVED DWG. N0. CITY ENGINEER DATE 7- 9 JEG ~ PMX ~ TEW ~ MTO ~ 4/11 /00 Noy McCarthy ~' 7 Causseaux a'~~~ Rourke Inc., p.s. ._ Established 1977 November 16, 2004 TO: PARTIES OF RECORD RF: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YLRPP-04-0128-YL Stephen K. Causseaux, Jr goz Souch loth Scree Tacoma, Washingcon 984°5 Phone a;3-z~a-azo6 Facsimile z;; z~~-6439 The Examiner has received Request for Reconsideration dated November 8, 2004, in the above-entitled matter from CATHIE CARLSON of PARAMETRIX. This request is being sent to the above parties of record for their review and/or comments. If any party wishes to comment on this request, their comments must be submitted to the Examiner no later than December 2, 2004, (10 working days from mailing). The Examiner would also request that a copy of any comments be sent to Ms. Carlson so that she might be aware of such comments. The Examiner will make a determination on the request for reconsideration at the end of the above-stated time period. Very truly ours, STE EN K. CAUSSEAUX, JR. ., i i~L:i~lil~ LT.cillliic;i S KC/ca Enclosures cc: Parties of Record November 8, 2004 PMX# 257-4812-001 Stephen K. Causseaux, Jr., Hearing Examiner c/o City of Yeim P O Box 479 Yelm, WA 98597 Re: Appeal of Boundary Line Adjustment Denial BLA-04-0099-YL and APP-04-0128-YL Dear Mr. Causseaux: We are writing to request reconsideration of the conditions in your decision of the above-referenced appeal. Freestone DFF Yelm II LLC is unable to comply with Condition 1 prior to recording the Qoundary Line Adjustment for the following reason. The owner of the property, Kathryn Dotson, will not allow her property to be connected to City water and sewer until the purchase of her property has been completed. Freestone DFF cannot purchase the property until the BLA has been recorded. In order that the Boundary Line Adjustment may be recorded and to assure that the property will be connected to City water and sewer and all appropriate fees paid, we request that Freestone DFF Yelm II LLC be permitted to post a bond for these improvements. The amount of the bond would include the cost of the water and sewer connection and other fees associated with connecting the site to City water and sewer, including inspection fees, latecomers charges, and abandonment of the existing septic system and well The proposed amount of the bond is 150% of the total amount of these improvements. Freestone DFF Yelm 11 LLC will submit the total estimated cost to the City of Yelm for review and approval. We request that Freestone DFF Yelm II LLC be allowed a maximum 90 davs frn:n dale of rPc~~rdl~:~~ ofr~~o i?i)~„'~~~I;~~y~ I-i_~~~ r1 fl' Cftr.C•~}; t~. r,-~rnr.!r•jt_ ~ '.~ Il .,. Your consideration of our request is appreciated. Sincerely, PARAMETRIX Cathie Carlson v:Acad\4812\I 10804 HE modification request ENGINEERING . PLANNI 8770 TALLON LAND N~ LACEY, WA 98516-6641 T. 3(0.459.3609 F. 360.459.0154 www.paxamctrix.com Received Nov a 2004 ~/~ `' November 8, 2004 PMX# 257-4812-001 Stephen K. Causseaux, Jr., Hearing Examiner c/o City of Yelm P O Box 479 Yelm, WA 98597 Re: Appeal of Boundary Line Adjustment Denial BLA-04-0099-YL and APP-04-0128-YL Dear Mr. Causseaux: We are writing to request reconsideration of the conditions in your decision of the above-referenced appeal. Freestone DFF Yelm II LLC is unable to comply with Condition 1 prior to recording the Boundary Line Adjustment for the following reason. The owner of the property, Kathryn Dotson, will not allow her property to be connected to City water and sewer until the purchase of her property has been completed. Freestone DFF cannot purchase the property until the BLA has been recorded. In order that the Boundary Line Adjustment may be recorded and to assure that the property will be connected to City water and sewer and all appropriate fees paid, we request that Freestone DFF Yelm II LLC be permitted to post a bond for these improvements. The amount of the bond would include the cost of the water and sewer connection and other fees associated with connecting the site to City water and sewer, including inspection fees, latecomers charges, and abandonment of the existing septic system and well. The proposed amount of the bond is 150% of the total amount of these improvements. Freestone DFF Yelm II LLC will submit the total estimated cost to the City of Yelm for review and approval. We request that Freestone DFF Yelm II LLC be allowed a maximum 90 days from date of recording of the Boundary Line Adjustment to complete the improvements. Your consideration of our request is appreciated. Sincerely, PARAMETRIX ~`C~~I Gt`G~' Cathie Carlson o:\cad\4812\110804 HE modification request ~ ~ ~l ~° /~~,r~~~ 'y /~~t=vc1J-5Z~1 ~' L X i,.5 j~.~G- ~c~(G.~ his ~~~ ~ y~i ~`~ ;~~~ ~ -~~7`c~ C~~S ~~ ~ tJ / S~~ ~l-L''°' -~C~' /!4; o!ai~t~`.'.~i.~.% ~ S i~~l c ~ ~.5~"~5~:/~ ~i4~-~C- ow~~ Tip City of Yelm 4 Community Development Department 105 Yelm Avenue West P.O. Box 479 Yelm, WA 98597 wssH~NCTOr~ October 28, 2004 Kathryn Dotson 16440 Middle Road SE Yelm, WA 98597 J. Scott Griffin, Jr. Freestone DFF Yelm II LLC P.O. Box 73669 Puyallup, WA 98373 Dear Kathryn and Scott: Enclosed is a copy of the Hearing Examiner decision regarding the appeal of the City's denial of your application for a boundary line adjustment. The Examiner granted the appeal and approved the boundary line adjustment with the condition that the home site be connected to the City's sewer and water system. In order to complete and record the Boundary Line Adjustment, the connection to City services will need to be completed. Towards that end, the following issues need to be addressed as part of connection to sewer and water. • The sewer connection fee is currently $5,269.00 with a $145.00 inspection fee. A standard residential STEP system will be required to connect the residence to the sewer line located in Middle Road. • The water connection fee is currently $1,500.00 and a standard residential meter is $300.00 pre-tapped and pre-plumbed. The water main is located in Middle Road. • The property is subject to a sewer latecomers charge of $5,608.46, which is payable at the time of connection. • The property is subject to a water latecomers charge of $5,851.55, which is payable at the time of connection. • The existing drainfield will have to be abandoned pursuant to the requirements of the Thurston County Health Department. • The existing well must be decommissioned. (360) 158-3835 (360) 458-3149 FAX iaww.ci.yelm.u+aua I have enclosed for your information standard details for the water and sewer connections, including the standard STEP tank detail from the City of Yelm Development Guidelines. If you have any questions regarding the design or process for connecting the home site to the City water and sewer systems, please don't hesitate to contact the Community Development Department. Si ~nf Beck, Director partment of Community Development c. William Lynn, Gordon Thomas Honeywell Cathie Carlson, Parametrix October 28, 2004 Page 2 of 2 OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL APP-04-0128-YL APPELLANTS: Kathyrn Dotson 16440 Middle Road SE Yelm, iwF, 9897 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. Puyallup, WA 98373 SUMMARY OF REQUEST: Kathyrn Dotson and Freestone DFF Yelm II LLC appeal the denial of a boundary line adjustment between two parcels of land currently under the ownership of Ms. Dotson. SUMMARY OF DECISION: Appeal granted, subject to conditions. PUBLIC HEARING: After reviewing Planning and Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing cn the regues± as fo!!oU~s: The hearing was opened on October 12, 2004, at 9:00 a.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: EXHIBIT "1" - Planning and Community Development Staff Report and Attachments GRANT BECK appeared, presented the Community Development Department Staff -1- Report, and testified that the City finds that the BLA fails to meet the criteria for approval based upon the land use area requirements of the newly created lots. The application does not comply with the density or Health Department requirements. The underlying issue is how the property developments. The code requires a one acre minimum lot size for homes served by both an on-site well and septic system. The lots created do not meet the density requirements for maximum and minimum lots. WILLIAM LYNN, attorney at law, appeared on behalf of the appellant and testified that the issue is whether the City can impose new development regulations on a home where no changes are proposed. The initial decision referred to the Health Department and minimum density. Then, in the staff report, the City adds another reason which alleges an attempt to get around the subdivision code. The appellant owns two parcels of property consisting of ten and eight acres respectively. The house is piesently served by a looped driveway with the garage on the right side of the home. The City told the appellant that she would need to change the access point, but she can't do that and still access the garage. They desire to develop the balance of the property, but want to leave the house as it presently is. The City wants her to change the access from the street, but she cannot, and therefore proposes no changes. The City also required her to hook-up to sewer and water and make street frontage improvements. He doesn't believe the City can do that as the home creates no new impacts. They submitted a boundary line adjustment application to segregate her home from the balance of the parcel and will make no changes to that parcel. Concerning the Health Department issue, they have seen nothing from the Health Department saying that the BLA creates a problem. Normally, the Health Department makes the decision on septic and water, but staff never routed the request to the Department due to the existing structure. They want a chance to meet Health Department requirements. The Examiner could grant the appeal and impose a condition of meeting Health Department requirements. They could create easements for a reserve drainfield and could also meet the requirements by hooking up to sewer and water. They will agree to do that. The City is using the Health Department as a reason, but it is not valid. Concerning the density, they do not exceed the maximum density. They do not meet the density of three dwelling units per acre now. By shrinking the lot they actually come more into compliance. RCW 58.17.940;F; does r.ot prohibit a lot from exceedirg the n Minimum lot dimensions and area. The City contends the lot is too big, but the RCW doesn't prohibit it. In the Kristen v. Seattle case, the Supreme Court did not distinguish between large and small adjustments. They propose subdivision of the balance of the site and frontage improvements will be an issue. They are not foreclosing the discussion of improvements. KATHY CARLSON, appellant, appeared and testified that the proposed lot with the house contains 39,198 square feet. MR. BECK reappeared and testified that the Health Department issue would be resolved if the appellant connected to sewer and water. -2- No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded at 9:30 a.m. NOTE: A complete record of this hearing is available in the City of Yelm Community Development Department FINDINGS, CONCLUSIONS AND DECISION: FINDINGS: 1. The Hearing Examiner has admitted documentary evidence into the record, viewed the property, heard testimony, and taken this matter under advisement. 2. This request is exempt from review under SEPA. 3. Notice of this request was advertised in accordance with the Yelm Municipal Code. 4. The applicant has a possessory ownership interest in abutting, rectangular parcels of property, one of which contains ten acres and the other eight acres. The parcels abut Middle Road SE on the northeast and Yelm Creek on the southwest. Improvements on the site include a single family residential dwelling and outbuildings, most of which are on the larger lot. A circular driveway entering the site from Middle Road SE provides access to the single family dwelling. 5. The applicant submitted a request for a boundary line adjustment (BLA) which proposed to combine the parcels and create a 39,198 square foot lot which would support the existing single family dwelling and outbuildings. The applicant proposed the BLA to allow subdivision of the balance of the site into 41 single family residential lots, but exclude the newly created lot from the subdivision. The City denied the BLA by letter from Grant Beck, Community Development Director, to Scott Griffin, Caddis Construction, dated August 11.2004. ~Nilliam Lynn, attorney at law, timely filed an appeal of said denial on August 24, 2004. 6. Mr. Beck denied the BLA application in part because the newly created lot supporting the home violated Thurston County Health Department codes and Washington Administrative Code (WAC) standards which require a minimum lot size of one acre for those lots having both an individual well and on-site sewage disposal system. Furthermore, the 100 foot wide, protective well radius would not be contained within the boundaries of the proposed lot. Mr. Beck also denied the application as the newly configured lots do not meet the density requirements of the applicable Medium Density Residential (R6) zoning district of the Yelm Municipal Code (YMC). Mr. Beck also denied the BLA because the application represented -3- one of a series of actions designed to avoid City subdivision and development regulations requirements. 7. RCW 58.17 sets forth the State Subdivision Act, and RCW 58.17.040 provides exemptions from said act and provides in part: The provisions of this chapter shall not apply to... (6) A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots, or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which ccntains insufficient area and dimension to meet minimum requirements for width and area for a building site.... Section 16.28.010 YMC sets forth the City's criteria for BLAs in part as follows: Applications for boundary line adjustments within or outside of an approved subdivision shall be presented to the city planner. Upon finding compliance with minimum zoning, health, building and other land use regulations and with the Yelm comprehensive plan and upon finding that the adjustment will not adversely affect access, easements or drainfields, the planner shall issue a certificate of approval.... 8. The City asserts that the BLA creates a lot of insufficient area to meet minimum area requirements of the WAC and County health regulations which require a minimum one acre lot size for those lot using an on-site water source and on-site septic system. However, at the hearing the appellant offered to connect the proposed lot to City sewer and water which eliminates Health Department concerns. 9. Section 17.15.020(A)(1)YMO provides: A. Specific types of uses permitted in the Moderate-Density Residential District: 1. Any residential use, including single-family dwellings on individual lots, duplexes, and other multi-family dwellings, provided they do not exceed six dwelling units per gross acre and are not less than three units per gross acre. -~- Section 17.15.050(A) YMC provides: A. Minimum lot area: None.... The applicable Moderate Density Residential District (R-6) zone classification does not require a minimum or maximum lot area, but does require a maximum density of six dwelling units per acre and a minimum density of three dwelling units per acre. The City asserts that creation of a lot which does not meet maximum density violates the criteria for a BLA set forth in RCW 58.17.040(6). However, said section prohibits creation of lots with "insufficient area and dimension to meet minimum requirements for width and area for a building site". Said section does not prohibit creation of lots which do not meet minimum density requirements. However, the Examiner agrees ~.~ith Staff t"at the intent o{ tl~e BLA exemption is to prohibit creation of lots which do not comply with the requirements of the applicable zone. However, in the present case, the BLA creates no new lots and the density remains constant. The newly created lot meets the minimum density requirements assuming creation of other lots of the same size. Therefore, the BLA does not alter the density of the overall parcel. 10. The appellant fully intends to subdivide the larger lot and must meet all City development standards. The smaller lot with the home would not be included within the subdivision and not subject to subdivision requirements. However, it is reasonable for the City to consider frontage improvements across the newly created lot based upon the BLA and the requirement that the subdivision serve the public use and interest and make appropriate provision for the public health, safety, and welfare. CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The appellant has established that the proposed BLA falls within the exception set forth in RCW 58.17.040(6) and also complies with the requirements of Section 16.28.010 YMC. Therefore, the appeal should be granted and the application for boundary line adjustment approved subject to the following conditions: 1. The appellant shall connect the newly created, smaller lot to City sewer and water. 2. Approval of this BLA shall not prohibit the City from requesting frontage improvements across the smaller upon preliminary plat application for the larger lot. -5- DECISION: The appeal of Kathryn Dotson and Freestone DFF Yelm II LLC is hereby granted subject to the conditions contained in the conclusions above. ORDERED this 27'h day of October, 2004. STEPHEN K. CAUSSEAUX, JR. Hearing Exa=niner TRANSMITTED this 27`h day of October, 2004, to the following: APPELLANTS: Kathyn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. Puyallup, WA 98373 ATTORNEY FOR APPELLANTS: William Lynn Attorney at Law P.O. Box 1157 Tacoma, WA 98401 OTHERS: Denny Balascio 16422 Middle Road SE City of Yelm Tami Merriman 105 Yelm Avenue West P.O. Box 479 Yelm, Washington 98597 Yelrn, WA 98597 -6- CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL and APP-04-0128-YL NOTICE 1. RECONSIDERATION: Any interested party or agency of record, oral or written, that disagrees with the decision of the hearing examiner may make a written request for reconsideration by the hearing examiner. Said request shall set forth specific errors relating to: A. Erroneous procedures; B. Errors of law objected to at the public hearing by the person requesting reconsideration; C. Incomplete record; D. An error in interpreting the comprehensive plan or other relevant material; or E. Newly discovered material evidence which was not available at the time of the hearing. The term "new evidence" shall mean only evidence discovered after the hearing held by the hearing examiner and shall not include evidence which was available or which could reasonably have been available and simply not presented at the hearing for whatever reason. The request must be filed no later than 4:30 p.m. on November 8. 2004 (10 days from mailing) with the Community Development Department 105 Yelm Avenue West, Yelm, WA 98597. This request shall set forth the bases for reconsideration as limited by the -~- above. The hearing examiner shall review said request in light of the record and take such further action as he deems proper. The hearing examiner may request further information which shall be provided within 10 days of the request. 2. APPEAL OF EXAMINER'S DECISION: The final decision by the Examiner may be appealed to the city council, by any aggrieved person or agency of record, oral or written that disagrees with the decision of the hearing examiner, except threshold determinations (YMC 15.49.'! 50) in accordance w~`t~ Section 2.26. ~ 5G of the 'fe!m Municipal Code (YMC). NOTE: In an effort to avoid confusion at the time of filing a request for reconsideration, please attach this page to the request for reconsideration. -s- * (OR APPROVED EQUAL) ENVIRONMENT METER BOX LID TYPE MIDSTATES, BCF-1416 12RL CONCRETE *BROOKS SIDEWALK SERIES 36 CONCRETE CONCRETE OR FOG TITE B9H CONCRETE *BROOKS DRIVEWAY SERIES 36 CAST IRON & OTHER CONCRETE TRAFFIC COVER SERVICE SADDLE TRAFFIC OR ROMAC 202S OR AREAS FOG TITE 69H ROCKWELL 313 METER BOX *CARSON *CARSON ? EARTH SERIES 1419-B PLASTIC 1419 a ~ " ' PLASTIC READER LID 1 x 1 FORD GRIP JOINT '~' H CORPORATION STOP TYPE LLLLLLLLLLLLLLLL LLL LLLLLL LL4 ~ FB 1) D 1 ~ [F [ µ [ LLL~ L L LL L ~ LLL lL LL ILLL O LLL 14" LL LLL LLL 1" PLASTIC LINE (USE 200 PSI DR7 PHILLIPS DRfSCO PfPE 5100 LLL LL LL LL LL LL~.LLLLLLLLLLLLLL LL"`L LLLLLLL LLLL POLYETHYi.ENE PIPE) METER PVC VALVE 80X OR 4" DIA CHECK VALVE ,, . RISER. SEE NOTE BELOW. 19 1/2" 2~ SLOPE TO BOX 18" PVC CAP CURB a ° ~~ ~%~ b Q C O 0 v C D v VALVE 80X FOR SIDEWALK OR 7RAFFlC SETTINGS, SEE DWG. N0. 6-12 USE 4" DfA. SCFfEDULE 40 PVC WIThi CAP FOR OTHER INSTALLATIONS. 14 GAUGE fNSULATED COPPER TONING WIRE WRAPPED AROUND 7NE PfPE (SEE GENERAL NOTES N0. 7)- FORD B69-444-G, GRIP 22 ~/2 JOINT 8Y I.P THREADS. -I- ` 1" A1ALE ADAPTER r 3/4" X 1" X 12" BELL - REDUCER. ~- 1 "x ~ " FORD GRIP JOINT CORPORATION STOP TYPE FB 1101 SERVICE SADDLE NOTES: 1, STAINLESS STEEL INSERTS REQUIRED FOR ALL PACK JOINTS. 2. A.LL SERVICE SADDLES SHALL AND FITTINGS SHALL NAVE 1. P. THREADS. 12" 12" FORD VN 72-i5W 5/8"x 3/4" COPPER METER SETTER WI TN CHECK VALVE AND UNION NUT AND SWIVEL FOR CONNECTING 1 ° fRON PIPE CITY OF YELM, WASHINGTON DEPT. OF PUBLIC WORKS 5/8" SINGLE ~1ETER SERVICE APPROVED DWG. N0. PUBLIC WORKS DIRECTOR DATE 6 - DES. DWN. CKD. DATE TEW TEW DLM 3~15~00 SPLICE TO EXISTING 14 GAUGE TONING WIRE WITH BUTT CGNNECTORS AND HEAT SHRINK TAPE FINISH GRADE EXISTING - ~~~~~ PVC SWP z TO STEP TANK 12 CONNECT TO MIN. EXISTING PVC SERVICE LINE 2" x 1" REDUCER IF REQUIRED - 1" BALL VALVE, SL x SL SERVICE BOX -CARSON INDUSTRIES MODEL N0. 14198 WITH BOLTED HINGED COVER OR EQUAL COVER MARKING TO READ "SEWER" (USE IN NON-TRAFFIC AREAS) 14 GA. INSULATED COPPER TONING WIRE SPLICE TONING WIRE FOR SERVICE TO MAINLINE TONING WIRE AND WRAP SPLICE WITH HEAT SHRINK TAPE--i z STEP MAIN ~ o 1" SCHEDULE 40 PVC SWP PVC SWING CHECK VALVE SL x SL 1" BALL VALVE, SL x SL 1" PVC NIPPLE, SL x SL- 1" x MAIN DIA. PVC REDUCING TEE SLxSLxTH OR PIPE SADDLE - CITY OF YELM DEPT. OF PUBLIC WORKS TYPICAL 1" SERVICE CONf~ECTIOf~ APPROVED I DWG. N0. PUBLIC WORKS DIRECTOR DATE 7-2 PMX I PMX I MTO I 4/11/00 PL 1/4"x12"x12" HOT DIPPED GALVANIZED FORM CONDUITS TO POST OR CHANNEL. SEE 0 TYPICAL PUMP CONTROL PANEL DETAIL DRAWING #6. ~O~ PUMP CONTROL PANEL 3/16" PVC CONDUIT 4"x8" PRESSURE TREATED POST ~ 1/4"x3"x6" HOT ATTACH CONDUIT TO DIPPED GALVANIZED POST WITH STAINLESS CHANNEL STEEL TWO HOLE STRAPS CONCRETE EXISTING GROUND .~ v v.: v' v. b. Z_ v d CO v.' o. TO NEW ~. TO STEP TANK ELECTRICAL PANEL ' DIRECT BURY CABLE a.. _ :.. DIRECT BURY CABLE ° ~~p DIA. CITY OF YELM DEPT. OF PUBLIC WORKS REMOTE POST -RESIDENTIAL PUMP CONTROL PANEL INSTALLATION APPROVED DWG. N0. 7- 4 CITY ENGINEER DATE DES. DWN. CKD. DATE JEG PMX PMX MTO 4/11 /00 *PUMP CONTROL PANEL GARAGE CONTRACTOR TO GARAGE WALL WALL SHIM, ETC. TO ACCOUNT FOR PUMP *ONTROL DIFFERENT TYPES PANEL OF SIDING m ° 3/4" PVC (CONTRACTOR TO ~ o >- CONDUIT FORM BOTH CONDUITS iv Q ~ w ~ AS SHOWN FOR 80TH ~ ~ o z v ~ ~ „~ 3/4" LB CONDUITS) STAINLESS STEEL TWO w ~ HOLE STRAPS AS ~ ELECTRICAL REQUIRED TO SECURE o LINE FROM TO ELECTRICAL CONDUIT TO WALL UNDER HOUSE PANEL EXISTING GROUND CONDUIT TO STEP _ ~ - ~ _ ~ ? TANK Jam-FOOTING/STEM WALL ~~ `~' ~ ~ TO STEP --- . TANK TO STEP TANK " 12 *LOCATION OTHER THP,N GARAGE WALL OR REMOTE POST WILL BE CONSIDERED ON A CASE BY CASE BASIS. CITY OF YELM DEPT. OF PUBLIC WORKS TYPICAL PUMP CONTROL PANEL INSTALLATION ON EXISTING HOUSE APPROVED DWG. N0. CITY ENGINEER PMX DATE 7 - 5 DWN. CKD. DATE PMX MTO 4/11/00 o ~ z I o \ Y 3 ~ w \ (n o Q `t Y z ~ J o Q ~~ ~ Q o o Z m U W o ~ ~ z ~ I- ~ ~ Z 3 ~ UU 0 o ~ ~ r l ~1 w w ~--I .., ~ ~ ww C9 ~ O w vi X = O a ~ d d U D O J d Q U ~ Z Q ^ ~ ~ ~ C7 O w O ~ O ~ Z ~ O C7 cn d > Q U X j ~ d Q w0 wQ ~~ ~ Z ~~ 3w O wam c~~ t--ow zo ~ ~ H ~ d U Q Z H ~ _ Y ~¢ Q ~ ZOO W Q 0~ ~ r ~ O ` ~ ~ w d w ~ () -- d Z d U Z w r ~ 0 ~ c~Q ~w . ~ wZb~ ~ ~ ~ Z J N w ~- a 3 v ,.~ ~I ~ J F`~ ~ N _ ~,1 Z > a O w d U ~ I ~ ~ O O z ~ O ~ ~ U ~ NQC~ ~ arw- ~~ ~~~ ~ Z a ~~ a~ ~ W w O w O ~ w O> C 7~ o~ VO a \ ~ ~r ~ Q W ~ N ~O w 2 USE 1" UNION TO CONNECT TESTING - APARATUS FOR PRESSURE TESTING SERVI 20" MIN RISER HEIGHT TYPICAL WITH - ALL NON-TRAFFIC BEARING TANKS LEAVE SUFFICIENT ~ WIRE TO ALLOW F0 PUMP REMOVAL ELECTRICAL SPLICE BOX WITH CORD GRIPS ALL CONNECTIONS SHALL BE WRAPPED WITH HEAT SHRINK TAPE 21" OR 24" PVC RISER W/LID SLOPE GROUND AWAY FROM RISER 14 GAUGE 6" FROM TOP OF RISER TO ~ INSULATED OF ELECTRICAL CONDUIT TONING WIRE INSTALL IN 3/4" EY CONDUIT SEAL RISER-\ N ~ ELECTRICAL CONDUIT TO- \ POWER SOURCE STANDARD INLET TEE - ¢"q C ~ ORIFICE U UID ALARM LEVEL 3.5" ON :=:_.3.5" OFF ~ 3.5" REDUNDANT OFF 4"~ Z ORIFICE N AFFLE M THE MATERIAL FOR DUPLEX, TRIPLEX, AND CLASS 1 DIVISION 1 INSTALLAT10N5 WILL VARY. THE CONTRACTOR SHALL MEET THE INTENT OF THE INSTALLATION REQUIREMENTS SHOWN IN THE TYPICAL STEP INSTALLATION. FIBERGLASS LID WITH STEEL BOLTS AND NEOPRENE GASKET 1" DIA.PVC HOSE AND VALVE ASSEMBLY ORIENT BALL VALVE AS SHOWN. BALL VALVE SHALL BE WITH 12" BELOW LID 30" DIA. RIBBED PVC RISER WITH NEOPRENE GROMMETS 18" FROM TOP RISER TO ~ EFFLUENT DISCHARGE rTONING WIRE -INSTALL I IN RISER ~ EFFLUENT DISCHARGE 2-PART EPOXY, USE ORENCO RISER TANK ADAPTOR FOR CONCRETE TANKS 1" PVC FLOAT ASSEMBLY AS SET BY CITY OF YELM 1-1 /4" DIA. INLET HOLFS AROUND PERIMETER OF VAULT 4" DIA. PVC FLOW INDUCER PVC BIOTUBE SUBMERSIBLE EFFLUENT ORENCO TURBINE 8 GPM 1 D OSI 0511 PUMP WITH S.Q. POWER CABLE AND 1 /8" BY-PASS ORIFICE IN THE DISCHARGE HEAD I CITY OF YELM I DEPT. OF PUBLIC WORKS TYPICAL SIMPLEX STEP TANK INSTALLATION APPROVED DWG. NO. CITY ENGINEER DATE 7- 9 JEG~ PMX I TEW I MTO I 4/11/00 ~ a <.g ~~ ~ + ~ ~ ~ 'r .. u r. ~ ,...v.k. ann.. .~ ~t ~ ,._._ - .. .. T O p p _ fiietutr:4iacr- _. ___.. _,. _. i'tastmarSe (~naorseinern Fay c ~ Here p t~estriczed t3- : - ~~ ~~~ ~ dEndorsement F;-:R„i,. ~.. ~ ~ 7ntal Pnceann z F~,:..;_ '. ~ 4 ~n ~ -` m p p Sent T _~""..-"-. I~ Street Apt. No.; '------• - - - - ---------°----°-- or PO Box Na. ~'\ ~6 v 3 v City, Stade, Z1P+4 --_-.__---°^-..-----°. _-___..-.- ~~ ~..~~, ra,~ - 2~-3 ~ 3 L- Certified Mail Provides: (as~anaa) ZceZ aunf'ooes Wood Sd ^ A mailing receipt ^ A unique Identifier for your mailpiece ^ A record of delivery kept by the Postal Service for two years Important Reminders: ^ Certified Mail may ONLY be combined with First-Class Mail®or Priority Mail®. ^ Certified Mail is not available for any class of international mail. ^ NO INSURANCE COVERAGE IS PROVIDED with Certified Mail. For valuables, please consider Insured or Registered Mail. ^ For an additional fee, a Return Receiptmay be requested to provide proof of delivery. 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To obtain Retum Receipt service, please complete and attach a Return Receipt (PS Form 3811) to the article and add applicable postage to cover the fee. Endorse mailpiece "Retum Receipt Requested". To receive a fee waiver for a duplicate return receipt, a USPS® postmark on your Certified Mail receipt is regwred. ^ For an additional fee, delivery may be estricted to the addressee or addressee's authorized agent. Advise the cl~rk or mark the mailpiece with the endorsement "Restricted Delivery". ^ If a postmark on the Certified Mail receipt is desired, please present the arti- cle at the post office for postmarking. If a postmark on the Certified Mall receipt is not needed, detach and affix label with postage and mail. IMPORTANT: Save this receipt and present it when making an inquiry. Internet access to delivery information is not available on mail addressed to APOs and FPOs. OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL APP-04-0128-YL APPELLANTS: Kathyrn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. Puyallup, WA 98373 SUMMARY OF REQUEST: Kathyrn Dotson and Freestone DFF Yelm II LLC appeal the denial of a boundary line adjustment between two parcels of land currently under the ownership of Ms. Dotson. SUMMARY OF DECISION: Appeal granted, subject to conditions. PUBLIC HEARING: After reviewing Planning and Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request as follows: The hearing was opened on October 12, 2004, at 9:00 a.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: EXHIBIT "1" - Planning and Community Development Staff Report and Attachments GRANT BECK appeared, presented the Community Development Department Staff -1- Report, and testified that the City finds that the BLA fails to meet the criteria for approval based upon the land use area requirements of the newly created lots. The application does not comply with the density or Health Department requirements. The underlying issue is how the property developments. The code requires a one acre minimum lot size for homes served by both an on-site well and septic system. The lots created do not meet the density requirements for maximum and minimum lots. WILLIAM LYNN, attorney at law, appeared on behalf of the appellant and testified that the issue is whether the City can impose new development regulations on a home where no changes are proposed. The initial. decision referred to the Health Department and minimum density. Then, in the staff report, the City adds another reason which alleges an attempt to get around the subdivision code. The appellant owns two parcels of property consisting of ten and eight acres respectively. The house is presently served by a looped driveway with the garage on the right side of the home. The City told the appellant that she would need to change the access point, but she can't do that and still access the garage. They desire to develop the balance of the property, but want to leave the house as it presently is. The City wants her to change the access from the street, but she cannot, and therefore proposes no changes. The City also required her to hook-up to sewer and water and make street frontage improvements. He doesn't believe the City can do that as the home creates no new impacts. They submitted a boundary line adjustment application to segregate her home from the balance of the parcel and will make no changes to that parcel. Concerning the Health Department issue, they have seen nothing from the Health Department saying that the BLA creates a problem. Normally, the Health Department makes the decision on septic and water, but staff never routed the request to the Department due to the existing structure. They want a chance to meet Health Department requirements. The Examiner could grant the appeal and impose a condition of meeting Health Department requirements. They could create easements for a reserve drainfield and could also meet the requirements by hooking up to sewer and water. They will agree to do that. The City is using the Health Department as a reason, but it is not valid. Concerning the density, they do not exceed the maximum density. They do not meet the density of three dwelling units per acre now. By shrinking the lot they actually come more into compliance. RCW 58.17.040(6) does not prohibit a lot from exceeding the minimum lot dimensions and area. The City contends the lot is too big, but the RCW doesn't prohibit it. In the Kristen v. Seattle case, the Supreme Court did not distinguish between large and small adjustments. They propose subdivision of the balance of the site and frontage improvements will be an issue. They are not foreclosing the discussion of improvements. KATHY CARLSON, appellant, appeared and testified that the proposed lot with the house contains 39,198 square feet. MR. BECK reappeared and testified that the Health Department issue would be resolved if the appellant connected to sewer and water. -2- No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded at 9:30 a.m. NOTE: A complete record of this hearing is available in the City of Yelm Community Development Department FINDINGS. CONCLUSIONS AND DECISION: FINDINGS: 1. The Hearing Examiner has admitted documentary evidence into the record, viewed the property, heard testimony, and taken this matter under advisement. 2. This request is exempt from review under SEPA. 3. Notice of this request was advertised in accordance with the Yelm Municipal Code. 4. The applicant has a possessory ownership interest in abutting, rectangular parcels of property, one of which contains ten acres and the other eight acres. The parcels abut Middle Road SE on the northeast and Yelm Creek on the southwest. Improvements on the site include a single family residential dwelling and outbuildings, most of which are on the larger lot. A circular driveway entering the site from Middle Road SE provides access to the single family dwelling. 5. The applicant submitted a request for a boundary line adjustment (BLA) which proposed to combine the parcels and create a 39,198 square foot lot which would support the existing single family dwelling and outbuildings. The applicant proposed the BLA to allow subdivision of the balance of the site into 41 single family residential lots, but exclude the newly created lot from the subdivision. The City denied the BLA by letter from Grant Beck, Community Development Director, to Scott Griffin, Caddis Construction, dated August 11, 2004. William Lynn, attorney at law, timely filed an appeal of said denial on August 24, 2004. 6. Mr. Beck denied the BLA application in part because the newly created lot supporting the home violated Thurston County Health Department codes and Washington Administrative Code (WAC) standards which require a minimum lot size of one acre for those lots having both an individual well and on-site sewage disposal system. Furthermore, the 100 foot wide, protective well radius would not be contained within the boundaries of the proposed lot. Mr. Beck also denied the application as the newly configured lots do not meet the density requirements of the applicable Medium Density Residential (R6) zoning district of the Yelm Municipal Code (YMC). Mr. Beck also denied the BLA because the application represented -3- one of a series of actions designed to avoid City subdivision and development regulations requirements. 7. RCW 58.17 sets forth the State Subdivision Act, and RCW 58.17.040 provides exemptions from said act and provides in part: The provisions of this chapter shall not apply to... (6) A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots, or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site.... Section 16.28.010 YMC sets forth the City's criteria for BLAs in part as follows: Applications for boundary line adjustments within or outside of an approved subdivision shall be presented to the city planner. Upon finding compliance with minimum zoning, health, building and other land use regulations and with the Yelm comprehensive plan and upon finding that the adjustment will not adversely affect access, easements or drainfields, the planner shall issue a certificate of approval.... 8. The City asserts that the BLA creates a lot of insufficient area to meet minimum area requirements of the WAC and County health regulations which require a minimum one acre lot size for those lot using an on-site water source and on-site septic system. However, at the hearing the appellant offered to connect the proposed lot to City sewer and water which eliminates Health Department concerns. 9. Section 17.15.020(A)(1)YMO provides: A. Specific types of uses permitted in the Moderate-Density Residential District: 1. Any residential use, including single-family dwellings on individual lots, duplexes, and other multi-family dwellings, provided they do not exceed six dwelling units per gross acre and are not less than three units per gross acre. -4- Section 17.15.050(A) YMC provides: A. Minimum lot area: None.... The applicable Moderate Density Residential District (R-6) zone classification does not require a minimum or maximum lot area, but does require a maximum density of six dwelling units per acre and a minimum density of three dwelling units per acre. The City asserts that creation of a fot which does not meet maximum density violates the criteria for a BLA set forth in RCW 58.17.040(6). However, said section prohibits creation of lots with "insufficient area and dimension to meet minimum requirements for width and area for a building site". Said section does not prohibit creation of lots which do not meet minimum density requirements. However, the Examiner agrees with Staff that the intent of the BLA exemption is to prohibit creation of lots which do not comply with the requirements of the applicable zone. However, in the present case, the BLA creates no new lots and the density remains constant. The newly created lot meets the minimum density requirements assuming creation of other lots of the same size. Therefore, the BLA does not alter the density of the overall parcel. 10. The appellant fully intends to subdivide the larger lot and must meet all City development standards. The smaller lot with the home would not be included within the subdivision and not subject to subdivision requirements. However, it is reasonable for the City to consider frontage improvements across the newly created lot based upon the BLA and the requirement that the subdivision serve the public use and interest and make appropriate provision for the public health, safety, and welfare. CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The appellant has established that the proposed BLA falls within the exception set forth in RCW 58.17.040(6) and also complies with the requirements of Section 16.28.010 YMC. Therefore, the appeal should be granted and the application for boundary line adjustment approved subject to the following conditions: 1. The appellant shall connect the newly created, smaller lot to City sewer and water. 2. Approval of this BLA shall not prohibit the City from requesting frontage improvements across the smaller upon preliminary plat application for the larger lot. -5- DECISION: The appeal of Kathryn Dotson and Freestone DFF Yelm II LLC is hereby granted subject to the conditions contained in the conclusions above. ORDERED this 27th day of October, 2004. STEPHEN K. CAUSSEAUX, JR. Hearing Examiner TRANSMITTED this 27th day of October, 2004, to the following: APPELLANTS: Kathyn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. Puyallup, WA 98373 ATTORNEY FOR APPELLANTS: William Lynn Attorney at Law P.O. Box 1157 Tacoma, WA 98401 OTHERS: Denny Balascio 16422 Middle Road SE City of Yelm Tami Merriman 105 Yelm Avenue West P.O. Box 479 Yelm, Washington 98597 -6- Yelm, WA 98597 CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL and APP-04-0128-YL NOTICE 1. RECONSIDERATION: Any interested party or agency of record, oral or written, that disagrees with the decision of the hearing examiner may make a written request for reconsideration by the hearing examiner. Said request shall set forth specific errors relating to: A. Erroneous procedures; B. Errors of law objected to at the public hearing by the person requesting reconsideration; C. Incomplete record; D. An error in interpreting the comprehensive plan or other relevant material; or E. Newly discovered material evidence which was not available at the time of the hearing. The term "new evidence" shall mean only evidence discovered after the hearing held by the hearing examiner and shall not include evidence which was available or which could reasonably have been available and simply not presented at the hearing for whatever reason. The request must be filed no later than 4:30 p.m. on November 8, 2004 (10 days from mailing) with the Community Development Department 105 Yelm Avenue West, Yelm, WA 98597. This request shall set forth the bases for reconsideration as limited by the -~- above. The hearing examiner shall review said request in light of the record and take such further action as he deems proper. The hearing examiner may request further information which shall be provided within 10 days of the request. 2. APPEAL OF EXAMINER'S DECISION: The final decision by the Examiner may be appealed to the city council, by any aggrieved person or agency of record, oral or written that disagrees with the decision of the hearing examiner, except threshold determinations (YMC 15.49.160) in accordance with Section 2.26.150 of the Yelm Municipal Code (YMC). NOTE: In an effort to avoid confusion at the time of filing a request for reconsideration, please attach this page to the request for reconsideration. -8- OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL APP-04-0128-YL APPELLANTS: Kathyrn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. Puyallup, WA 98373 SUMMARY OF REQUEST: Kathyrn Dotson and Freestone DFF Yelm II LLC appeal the denial of a boundary line adjustment between two parcels of land currently under the ownership of Ms. Dotson. SUMMARY OF DECISION: Appeal granted, subject to conditions. PUBLIC HEARING: After reviewing Planning and Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request as follows: The hearing was opened on October 12, 2004, at 9:00 a.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: EXHIBIT "1" - Planning and Community Development Staff Report and Attachments GRANT BECK appeared, presented the Community Development Department Staff Report, and testified that the City finds that the BLA fails to meet the criteria for approval -1- based upon the land use area requirements. The application does not comply with the density or Health Department requirements. The underlying issue is how the property developments. The code requires a one acre minimum lot size for homes served by an on- site well and septic system. The lots created do not meet the density requirements for maximum and minimum lots. WILLIAM LYNN, attorney at law, appeared on behalf of the appellant and testified that the issue is whether the City can impose new development regulations on a home where no changes are proposed. The initial decision referred to the Health Department and minimum density. Then in the staff report they add another reason which is an attempt to get around the subdivision code. The appellant owns two parcels of property consisting of ten and eight acres respectively. The house is presently served by a looped driveway with the garage on the right side of the home. The City told the appellant that she would need to change the access point, but she can't do that and still access the garage. They desire to develop the balance of the property, but to leave the house as it presently is. The City wanted her to change the access from the street, but she cannot and therefore proposes no changes. The City also required her to hook-up to sewer and water and make street frontage improvements. He doesn't believe the City can do that as the home creates no new impacts. They submitted a boundary line adjustment to segregate her home from the balance of the parcel and will make no changes to that parcel. Concerning the Health Department issue, they have seen nothing from the Health Department saying that the BLA creates a problem. Normally, the Health Department makes the decision on septic and water, but staff never routed the request to the Department due to the existing structure. They want a chance to meet Health Department requirements. The Examiner could overturn the ruling and impose a condition of meeting Health Department requirements. They could also create easements for a reserve drainfield and can also meet the requirements by hooking up to sewer and water. They will agree to do that. The City is using the Health Department as a reason, but it is not valid. Concerning the density, they do not exceed the maximum density. They do not meet the density of three dwelling units per acre now. By shrinking the lot they actually come more into compliance. RCW 58.17.040(6) does not prohibit a lot from exceeding the minimum lot dimensions and area. The City contends the lot is too big, but the RCW doesn't prohibit it. In the Kristen v. Seattle case the Supreme Court did not distinguish between large and small adjustments. They propose subdivision of the balance of the site and frontage improvements will bean issue. They are not foreclosing the discussion of improvements. KATHY CARLSON, appellant, appeared and testified that the proposed lot contains 39,198 square feet. MR. BECK reappeared and testified that the Health Department issue would be resolved if the appellant connected to sewer and water. No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded at 9:30 a.m. -2- NOTE: A complete record of this hearing is available in the City of Yelm Community Development Department FINDINGS, CONCLUSIONS AND DECISION: FINDINGS: 1. The Hearing Examiner has admitted documentary evidence into the record, viewed the property, heard testimony, and taken this matter under advisement. 2. This request is exempt from review under SEPA. 3. Notice of this request was advertised in accordance with the Yelm Municipal Code. 4. The applicant has a possessory ownership interest in abutting parcels of property one of which contains ten acres and the other eight acres. The parcels abut Middle Road SE on the northeast and Yelm Creek on the southwest. Improvements on the site include a single family residential dwelling and outbuildings most of which are on the larger lot. A circular driveway from Middle Road SE provides access to the single family dwelling. 5. The applicant submitted a request for a boundary line adjustment (BLA) which combined the parcels and also created a 39,198 square foot lot which would support the existing single family dwelling and outbuildings. The applicant proposed the BLA to allow subdivision of the balance of the site into 41 single family residential lots and exclude the newly created lot from the subdivision. The City denied the BLA by letter from Grant Beck, Director of Community Development Director, to Scott Griffin, Cattis Construction, dated August 11, 2004. William Lynn, attorney at law, timely filed an appeal of said denial on August 24, 2004. 6. Mr. Beck denied the BLA application finding that the newly created lot containing the home violated Thurston County Health Department codes and Washington Administrative Code (WAC) standards which an individual well and on-site sewage disposal system on lots measuring less than one acre in size. Furthermore, the 100 foot well radius would not be contained within the boundaries of the proposed lot. Mr. Beck denied the application as it does not meet the density requirements of the applicable Medium Density Residential (R6) zoning district of the Yelm Municipal Code (YMC). In the staff report, Mr. Beck also denied the BLA finding that such application is one of a series of actions designed to avoid subdivision requirements and the requirements of Yelm's development regulations. 7. RCW 58.17 sets forth the State Subdivision Act and RCW 58.17.040 provides exemptions from said act and provides in part: -3- The provisions of this chapter shall not apply to... (6) A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots, or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site. Section 16.28.010 YMC sets forth the criteria for BLAs as follows: Applications for boundary line adjustments within or outside of an approved subdivision shall be presented by the City Planner. Upon finding compliance with minimum zoning, health, building and other land use regulations and with the Yelm Comprehensive Plan and upon finding that the adjustment will not adversely affect access, easements or drainfields, the planner shall issue a certificate of approval.... 8. The City asserts that the BLA creates a lot which contains insufficient area to meet minimum area requirements per WAC and County Health Regulations which require a minimum one acre lot size for those lot using an on-site water source and on-site septic system. However, at the hearing the appellant offered to connect the proposed lotto City sewer and water which eliminates Health Department concerns. 9. Section 17.15.020(A)(1)YMO provides: A. Specific times of uses permitted in the Moderate-Density Residential District: Any residential use, including single-family dwellings on individual lots, duplexes, and other multi-family dwellings, provided they do not exceed six dwelling units per gross acre and are not less than three units per gross acre. Section 17.15.050(A) YMC provides: A. Minimum lot area: None.... Thus, the applicable Moderate Density Residential District (R-6) zone classification does not require a minimum lot area or maximum lot area, but does require a maximum density of six dwelling units per acre and a minimum density of three dwelling units per acre. The City asserts that creation of a lot which does not meet the minimum density violates the criteria for a BLA set forth in RCW 58.17.040(6). -4- However, said section prohibits creation of lots with "insufficient area and dimension to meet minimum requirements for which an area for a building site". Said section does not prohibit creation of lots which do not meet minimum density requirements. However, the Examiner agrees with Staff that the intent of the BLA exemption is to prohibit creation of lots which do not comply with the requirements of the applicable zone. However, in the present case, the BLA creates no new lots and the density remains constant. The newly created lot meets the minimum density requirements assuming creation of other lots of the same size. Therefore, the BLA does not alter the density of the overall BLA parcel. 10. The appellant fully intends to subdivide the larger lot and must meet all City development standards. The smaller lot with the home would not be included within the subdivision and not subject to such requirements. However, it is reasonable for the City to consider frontage improvements across the newly created lot based upon the BLA and the requirement that the subdivision serve the public use and interest and make appropriate provision for the public health, safety, and welfare. CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The appellant has established that the proposed BLA falls within the exception set forth in RCW 58.17.040(6) and also complies with the requirements of Section 16.28.010 YMC. Therefore, the appeal should be granted and the request for boundary line adjustment approved subject to the following conditions: The appellant shall connect the newly created smaller lot to City sewer and water. 2. Approval of this BLA shall not prohibit the City from requesting the imposition of frontage improvements across the smaller lot at a future preliminary plat hearing. DECISION: The appeal of Kathryn Dotson and Freestone DFF Yelm I I LLC is hereby granted subject to the conditions contained in the conclusions above. ORDERED this day of October, 2004. STEPHEN K. CAUSSEAUX, JR. -5- Hearing Examiner TRANSMITTED this day of October, 2004, to the following: APPELLANTS: Kathyrn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J. Scott Griffin, Jr. Puyallup, WA 98373 AGENT: William Lynn Attorney at Law P.O. Box 1157 Tacoma, WA 98401 City of Yelm Tami Merriman 105 Yelm Avenue West P.O. Box 479 Yelm, Washington 98597 -6- VISITOR SIGN IN SHEET Please sign in and indicate if you wish to speak at this meeting or to be added to the mailing list to receive future agendas and minutes. ALL CITY HEARING EXAMINER MEETINGS ARE AUDIO TAPED. FOR INFORMATION ON OBTAINING A COPY PLEASE CALL YELM COMMUNITY DEVELOPMENT DEPARTMENT AT 360-458-3835 MEETING: YELM HEARING EXAMINER DATE: OCTOBER 12, 2004 TIME: 9:00 AM LOCATION: YELM CITY HALL COUNCIL CHAMBERS Hearing: 1 NAME & ADDRESS Appeal of Staff Decision to Deny a Boundary Line Adjustment Case #APP-04-0128-YL MAILING LIST? /SPEAKER? (Indicate which public hearing by the assigned numbers above) ~oF T~ City of Yelm ~~ Community Development Department 105 Yelm Avenue West P.O. Box 479 YELM Yelm, WA 98597 WASHINGTON NOTICE OF PUBLIC MEETING YELM HEARING EXAMINER DATE: Tuesday, October 12, 2004, 9:00 a.m. PLACE: Council Chambers, City Hall, 105 Yelm Ave W., Yelm WA PURPOSE: Public Meeting to appeal City Determination to Deny a Boundary Line Adjustment, Case #BLA-04-0099-YL APPLICANT: J. Scott Griffin, Jr, Freestone DFF Yelm II LLC applicant, and Kathryn Dotson, Property Owner PROJECT LOCATION: 16440 Middle Street SE, Yelm, WA 98597 The City of Yelm Hearing Examiner will hold a public meeting to hear testimony from parties of record, regarding an appeal of City determination to deny a Boundary Line Adjustment for Case # BLA-04-0099-YL. The Hearing Examiner will make a decision on the matter within 10 days after the meeting. Parties of Record may testify at the meeting on Tuesday, October 12, 2004. Any related documents are available for public review during normal business hours at the City of Yelm, 105 Yelm Ave W., Yelm, WA. For additional information, please contact Tami Merriman at (360) 458-3835. The City of Yelm provides reasonable accommodations to persons with disabilities. If you need special accommodations to attend or participate in this hearing, call the City Clerk, Agnes Bennick, at (360) 458-8404, at least 4 days before the meeting. ATTEST: City of Yelm f /~ ~ ~,' Agn Bennick, City Clerk DO NOT PUBLISH BELOW THIS LINE Published in the Nisqually Valley News: Friday, October 1, 2004 Mailed to parties of Record and Posted in Public Places: Monday, September 27, 2004 (360) 458-3835 (360) 458-3144 FAX www.ci.yelm.wa.us ~~.~~ THE p'P~ S TAFF REPOR T City of Yelm YELM Community Development Department WA3NIN6TON To: Stephen K. Causseaux, Jr., Hearing Examiner From: Grant Beck, Director of Community Development Date: October 5, 2004 Subject: Appeal of Boundary Line Adjustment Denial BLA-04-0099-YL APP-04-0128-YL Appellant: Kathryn Dotson Freestone DFF Yelm II LLC 16440 Middle Road SE J. Scott Griffin, Jr. Yelm, WA 98597 Puyallup, WA 98373 Location: 16440 Middle Road SE Tax Parcel Numbers 64303600700 and 64303600600 Proposal: Appeal the denial of a Boundary Line Adjustment I. INTRODUCTION Kathryn Dotson and Freestone DFF Yelm II LLC appeal the denial of a boundary line adjustment between two parcels of land currently under the ownership of Ms. Dotson. II. BACKGROUND Katheryn Dotson owns two parcels of land between Middle Road and Yelm Creek approximately 8.4 and 10 acres in area. The larger of the parcels contains Ms. Dotson's residence, garage, on-site sewage disposal system, well, and several outbuildings. Access to the home is provided by a circular driveway with two access points on Middle Road. On January 14, 2004, apre-submission meeting was held with Darren Buck and bill Ostoruske regarding a potential subdivision of the Dotson parcels. The original site plan submitted with the pre-submission request did not include the area occupied by Ms. Dotson's home as part of the subdivision, did not show frontage improvements in front of the `home site' on Middle Road, and showed the two driveway access points from the `home site' to Middle Road. The City's position has consistently been, both during and after the pre-submission meeting, that the `home site' could not be separated from a subdivision of the underlying property and the `home site' lot would be required to connect to City water and sewer and that access to the lot must be consistent with the provisions of Yelm's adopted development regulations. The existing 10 acre parcel of land which contains the `home site' has always been part of the potential subdivision of the property and has been shown as being divided into residential lots. Middle Road is classified as a Neighborhood Collector. This type of street is designed to provide access from neighborhoods to an arterial. The design of a collector street includes no provisions for on-street parking or direct access from residential lots. Section 16.16.050 YMC states that lots within a residential subdivision shall be designed so that lots adjacent to arterial and collector streets are not allowed direct access. Subsequent to the pre-submission meeting, staff from the Community Development Department reviewed several proposals by Parametrix, Inc., a land use planning and engineering firm, to approve direct access to the `home site' from Middle Road as part of the subdivision of the property. The Community Development Department indicated that it would support the retention of a single access point to Middle Road from the `home site', providing it was the furthest driveway from the Fort Stevens Elementary School due to concerns with site distance and that the access would be removed within six years of the date of the final subdivision. When the application was submitted for the boundary line adjustment, the Department notified the applicant that it was the City's position that, if the boundary line adjustment were approved, the `home site' lot would still have to comply with Yelm's development standards as part of the upcoming subdivision. III. ANALYSIS 1. The proposed division creates a lot which contains insufficient area to meet minimum area requirements for a building site pursuant to State and County health regulations. The appeal confuses this simple issue by arguing that Thurston County can modify the standards found in the State and local health regulations or that through the further manipulation of the lot lines and granting themselves easements may bring the proposed adjustment into conformance with these area requirements. Section 21.2.5 of the Thurston County Health Code and Section 246-272-20501 WAC are perfectly clear regarding the minimum area requirements for an on-site sewage disposal system and require no further analysis by the Thurston County Health Department. At least one acre of property is required in order to meet minimum area requirements, which is not achieved by the proposed boundary line adjustment. October 6, 2004 Page 2 of 4 At this time, no information indicating that the boundary line adjustment meets the minimum land area requirements of the Health Codes has been provided to the City. 2. The proposed boundary line adjustment creates a lot which does not comply with the minimum land area requirements of the Zoning Code. The Yelm Zoning Code does not establish minimum lot sizes in the residential zoning districts, including the medium density zoning district (R-6), which is the designation of the Dotson parcels. Instead, the minimum land area requirements of the zoning code are regulated through the minimum and maximum density requirements, which is 3 units per acre to 6 units per acre in the R-6 district. The existing 10 acre parcel is legally non-conforming, but could be subdivided and achieve these densities, which is the intent of the appellant. It is not inconsistent to review both the minimum and maximum densities as minimum land area requirements under Section 58.17.040 (6) YMC as the size of a parcel created through a boundary line adjustment could, and does in this case, be of a size which is neither small enough to meet the minimum density nor large enough to be redeveloped to meet the minimum density. In effect, the proposed boundary line adjustment makes the parcel more non-conforming by decreasing the likelihood that it will ever meet density requirements. This issue would not arise if the `home site' is included in the proposed subdivision. 3. The boundary line adjustment is one of a series of actions designed to avoid subdivision requirements and the requirements of Yelm's development regulations. The existing Dotson parcels were not created under the provisions of the State Subdivision Act, Chapter 58.17 RCW as each lot is greater than five acres or 1/128th of a section. The use of a subsequent boundary line adjustment to create a lot that would be subject to the requirements of the Subdivision Act. In effect, a lot could be created that has no access, can not be served by on-site sewage disposal systems or a well and does not meet the findings for approval of a subdivision or short subdivision as found in Sections 58.17.060 and 110 RCW. Further, the boundary line adjustment is clearly a step in a series of actions designed to avoid the requirements for development of property in Yelm. Although the City has exercised the discretion available in Section 16.16.050 YMC by allowing a single driveway access to be maintained on Middle Road for a period of six years after the final subdivision is approved, the City Engineer could not in his professional judgment allow the access closest to the sharp curve with limited sight distance near an elementary school to remain as part of the development of the Dotson parcels. October 6, 2004 Page 3 of 4 IV. CONCLUSION The boundary line adjustment application is an attempt to piecemeal development in order to avoid development requirements and does not meet the provisions of Section 58.17.040 (6) and the denial should be upheld. October 6, 2004 Page 4 of 4 ~,~ --~ ~~~ J'~,~~~~9`'1 4~ ~ ~~ ~ ~!~~.. t /' ~, "~1. ~'"F LM 'h'ASMtNGTpN CITY OF YELM PD Box 479 Yelm WA 98597 360.458-3244 OFFICIAL USE ONLY Fee ~ ~~ ~ ~- Dale Received cry y By File No. °C.? ~ ~/ NOTICE OF APPEAL Fee: Staff Decision - $50.00 Hearing Examiner Decision - $100.00 (In addition, any professional service char es per Resolution #358) htz __ ~... !.. 1, /k~ . ~ .n. r A Closed record appeal may follow either an open record hearing or an open record administrative decision on a project permit application when the appeal is on the record, and no or limited new evidence or information is allowed to be submitted. Appeals on Category f & II project decisions are heard by the City Council. Appeals on Category III & IV project decisions as well as Gategory I & II decisions which have been appealed to the City Council go to Superior Court and follow the judicial review process set forth in RCW 366.70G. A Notice of Appea{ must be filed within 14 days of Notice of Final Decision. PROJECT CASE NUMBER BEING APPEALED BLA- 0 4- 0 0 9 9-YL DATE OF NOTICE OF FINAL DECISION August 1 , APPELLANT(S) Kathryn Dotson Freestone DFF Yelm II LLC Mailing Address i e co ri in, r. City, State and Zip a m, WA PO Box Telephone - uya up, (253) 896-1300 SPECIFIC ITEMS OF DECISION BEING APPEALED (attach additional sheet If necessary}:_ See attached I affirm that ail answers, statements and information contained in and submitted with this application are complete and accurate to the best of my knowledge. I also affirm that I am the owner of the subject site or am duly authorized by the owner to act with respect to this application. Further, I grant permission from the owner to any and all employees and representatives of the Ciry of Yelm and other governmental agencies to enter upon and inspect said property as reasonably necessary to process this application. I agree to pay all fees of the city which apply to this application. Signed Date z3 Signed - Date ~. ~ '~{--~d ~ *Successor to Caddis Construction GITY OF YELM Community Development Department GROUNDS FOR APPEAL Re: Scott Griffin Boundary Line Adjustment The following are the grounds far appeal for the Applicant's appeal of the City's August 11, 2004 decision in the Griffin Boundary Line Adjustment. 1. The City asserts that the proposed Boundary Line Adjustment violates the Thurston County Health Code and corresponding provisions of the Washington Administrative Code. This conclusion is erroneous for the following reasons: A. Those provisions are administered by the Thurston County Health Department which has not concluded, as the City has, that the proposed adjustment would violate the cited provisions; B. There are readily available alternatives to the cited minimum lot size requirements including minor increases in the size of the relevant parcel, the provision of an off-site easement for drainfield proposes, etc. The Applicant is ready, willing and able to modify its proposal to meet these requirements, and should have an opportunity to do so as opposed to having its application summarily denied; C. WAC 246-272-2501 states that a person proposing a development shall obtain approval from the local health officer prior to any development where the use of an on-site septic system is proposed. The City did not give the local health officer an opportunity to review, comment, and/or approve/deny the application; D. Additional soils work may confirm that the site has adequate area and soils along the western portion of the let for a reserve drainfield and, if so, the lot size may be satisfactory to the Health Department. Again, the Applicant should have had an opportunity to exhaust these alternatives prior to the City even considering denial of the Boundary Line Adjustment; E. As another alternative, the Applicant could connect the site to the City's water system which would likely affect the application of the Health Department's regulations; and F. The 100-foot well radius can be located within the boundaries of the proposed lot, andlor on adjacent property restricted by covenant. The Applicant can obtain or provide such a covenant and should be given the option to do so. 2. The next basis for denial of the Boundary Line Adjustment was that the proposal did not meet minimum density requirements for the medium density residential (R-6) zoning district and that the density requirement could not be achieved through any re- [1279874 v2] - 1 - division of the property due to the size of the parcel and the requirements of the subdivision code. This conclusion is erroneous for the following reasons: A. RCW 58.17.040(6) exempts from the requirements of the Subdivision Act: "A division made for the purpose of alteration by adjusting property fines, between a platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site" An adjustment meeting those requirements is exempt from local regulatory authority as well. The subject proposal is consistent with and falls within the express language of this exemption; B. More specifically, the proposed lots da contain sufficient area and dimension to meet minimum requirements for width and area. The exemption does not specify that created lots must meet minimum density requirements, and the City may not read such a requirement into the exemption language; C. In fact, the proposed Boundary Line Adjustment brings the subject property closer in conformance to any minimum density requirements by reducing the size of the parcel; D. Given the existing improvements that have been constructed on the property, the proposed lot is the smallest that could practically be designed to encompass the home and its accessory improvements. To require that the lot be smaller denies the Applicant its rights under the common (aw and statutory provisions regarding non-conforming uses and vested rights; E. The conclusion that the lot is too large to meet density requiremen#s is directly contrary to the first cited basis for the City's denial that the lot is too small; F. The applicable rules appear to conflict with respect to the size of the lot, with the Health Department regulations setting forth a minimum size and the Zoning Regulations setting forth a maximum size. The Health Department regulations address a matter of public health and have priority over and supersede the later-adopted zoning requirements; and G. The subject property can be re-developed in the future to bring it into greater conformi#y with minimum density requirements. 3. As the third basis for its decision, the City asserts that Ms. Dotson's parcels were not created through the subdivision process and thus the Boundary Line Adjustment process is not available. That is expressly contrary to RCW 58.17.040(6} which allows the adjustment between "platted or unplatted lots or bath". [~ 27se7a v2] - 2 - 4. The City's decision is otherwise contrary to law, including but not limited to RCW Chapter 58.17 and RCW 58.17.040(6) and the City of Seattle vs. Crispin, 149 Wn.2d 896, 71 P.3~~ 208 (2003). 5. The City's decision is arbitrary and capricious. DATE©this 23'~ day of August, 2004. Respectfully Submitted, CORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM W~~ f By: William T. Lynn WSBA No. 07887 1201 Pacific Ave., Suite 2100 PO Box 1157 Tacoma, WA 98401-1157 (253) 620-6416 h Z~sB~a v2~ _ 3 City of Yelm V/ \~V wwsN~wcroM August 11, 2004 Scott Griffin Caddis Construction P.O. Box 73669 Puyallup, WA 98373 Commr~nity Development Department 105 Yelm Avenue West P.U. Box 4?9 Yelm, WA 98597 Re: Griffin Boundary Line Adjustment Dear Mr. Griffin: The City of Yelm has completed its review of your application for a Boundary Line Adjustment between two parcels of land owned by Kathryn Dotson located on Middle Road. The City has determined that the proposal would create a lot which does not meet zoning and health code standards, and hereby denies the application. Section 58.17.040 (6) RCW exempts a division made for the purpose of aiteratian by adjusting boundary lines, which does not create any additional lot nor create any lot which contains insufficient area and dimension to meet minimum requirements for width and area for a building site from subdivision requirements. Section 16.28.010 YMC indicates a boundary line adjustment should be approved upon finding compliance with minimum zoning, health, building and other land use regulations and with the Yelm comprehensive plan and that the adjustment will not adversely affect access, easements or drainfields. Specifically, the proposal is inconsistent with the following health code and zoning code standards: Section 21.2.5 of the Thurston County Health Code and Section 246-272-20501 WAC indicate that the minimum lot size of a parcel that is served by an on-site sewage disposal system and a individual well is one acre under the most favorable sail conditions. Additionally, these sections of the health codes require the well radius be contained within the property lines of lot. {3C0) 45d-3d35 (3iA) 468-3)44 FAX erm~n.ci.~lm.wa.w The proposed lot which contains Ms. Dotson's home is served by an individual well and on-site sewage disposal system and is proposed to be Tess than one acre in size, The 100 foot well radius would not be contained within the boundaries of this proposed lat. The Yelm Zoning Code establishes both maximum and minimum density requirements in the Medium Density Residential (R-6) zoning district. The minimum density is 3 units per acre, which is not achieved through the creation of a lot less than one acre in area. Further, this requirement could not be achieved through any redivision of the property due to the size of the parcel and requirements of the subdivision code. Ms. Dotson's parcels were not created through the subdivision process found in Chapter 58.17 RCW, as the creation of parcels 5 acres or larger is exempt from the requirements of the State Subdivision Act. Allowing the creation of a parcel which would normally be subject to the standards of a subdivision or short subdivision from an exempt division circumvents the protections built into the land division process, such as the requirements of the health codes noted above, but also those related to access, connection to public services, and other policies of the Comprehensive Plan expressed through the City's development regulations. The decision to deny your application for boundary line adjustment may be appealed to the City of Yelm Hearing Examiner by filing a written appeal which clearly identifies the basis for the appeal and an appeal fee of $50.Oq to the Community Development Department no later than 14 days from the date of this letter. e ,~ Beck, Director unity Development Department August 9, 2004 Page 2 of 2 LAW cJFFIC£S CORDON. THOMAS. HONEI"WELL, MALANCA, PETERSON F~ I'~AI-IEIM LLP 1"P, C'OMh pFFICE 1201 PACIFIC AvEN UE. SUITE <?OC POST GFFICE BOX 1157 TPCGMP.. 4N P.SH1NCiT (:.~N 98401-1 1 4 7 1'x531 620-6806 F AC Slf+IILE 12531 6et7-65Et5 5EhTTLE OFFICE ONE Urd ICJ r~r sCUa~=E 6GG UNivERSiTV, S.VITE 2100 SEATTLE. 'NPSHINGI"014 9E101-4!235 ~2riet e7e-7560 F P.C~iIMILE r20t,I ii76-7S?°, REPLY TO TACOMA OFFICE WILLIAM T. LYNN ATTORNEY AT L.hW DIRECT r2B3'• 620•E-416 X067 ®76-£>:416 E-MAIL Iy RRW~gfh~BW_C0fil July 14, 2004 Tami Merriman flssisiant r fanner City of Yelm P. O. Box 479 Yelm, ~'A 98597 RE: Boundary Line Adjustment Application for Kathryn Dotson, Trustee Dear Ms. Merriman: Vti'e represent Caddis Construction, and your letter of Juty 19, 2004 concerning the above referenced boundary line adjustment has been referred to us for action. We are confident the City does not have the authority you assert in your letter. In the first place, the boundary line adjustment is exempt from the City's authority over subdivisions under the provisions of RCW 58.17.040(6). Such adjustments are simply not within the City's regulatory authority. Once the City concludes that the boundary line adjustment meets the description set forth in this statutory provision, the City may not deny, or impose conditions on any "approval". That is clear from the statute and has been made even more clear from the Supreme Court's decision in Seattle v. Crisper, 149 Wn.2d 896 (2003). There, the property owners simply adjusted their property tines by a series of deeds. The court held that was an exempt action, eat subject to later City review. As you know, Caddis Construction intends to purchase the larger parcel and submit a subdivision application. The City may not use its authority under the State Enviromr-ental Policy Act (SEPA) to assert control over property not owned by the applicant and not part of the application. The impacts of the proposed subdivision will be those relating to the residential development that will occupy the subdivided property. Impacts of the existing home, which will be in a separate ownership and which has access that will be unchanged. by the subdivision, will eat be within the City's SEPA authority. Case law from our State Supreme Court makes it clear that the City carulot exercise the authority you have asserted. In Burton ~~, Clark Coarrrty, 91 Wn. App. 505 (1998) the Court [1275887 vl.doc] CORDON, THOMAS, HONEYWELL MALANCA, PETER50N ~ DAHEIM LLP July 14, 2404 Page 2 reviewed a subdivision approval on which the County had imposed several road improvement requirements. The court identified four principles that relate to the imposition of conditions on land use actions. Two are particularly relevant here: that conditions may only be imposed to address a "public problem", and that the government must show that the development under consideration will create or make worse the identified problem. Here, the existing home and driveway will remain exactly as they are without the subdivision. The subdivision will not create any problems associated with the driveway, nor will the subdivision make any such problems worse. As a result, the City may not, within the bounds of the Constitution, impose restriction on access from that home. We are very confident of the position set forth in this letter and suggest that you review the City's authority with the City Attorney. Please feel free to have the City Attorney contact the undersigned to discuss this matter. Very truly yours, ~~~~ ~ William T. Lyn "J WTL:gam cc: Scott Griffin [1275887 vl.doc] o~ ~ City of YeZm 4 Community Development Depacrtment 105 Yelm Avenue West P.O. Box 479 Yelm, WA 9859? E L H,r,,cTON July 9, 2004 Scott Griffin Caddis Construction P.Q. Box 73669 Puyallup, WA 9$373 Re: Boundary Line Adjustment Application for Kathryn Dotson, Trustee Dear Mr. Caddis: The City has received your Boundary Line Adjustment for the Kathryn Dotson parcels, and is ready to proceed with the review. I would like to bring to your attention, that although the Boundary Line Adjustment may be approved, it does not prevent the new parcels from review of the future residential subdivision that has been discussed. Section 197-11-060(5} states that the Lead agency shat{ determine the appropriate scope and level of detail of environmental review to coincide with decision-making processes. Section 197-11-060(5)(d}(ii) states that a phased review is not appropriate when it would divide a larger system into exempted fragments. In other words, if the proposal consists of a series of actions that are individually exempt, but together may have a significant impact, the proposal is not exempt. In this project review, the boundary line adjustment is an exempt action, however, the resulting development of al{ the parcels must be reviewed for cumulative impacts. In regards to that review, the new smaller parcel would still be included in the environments! review of the subdivision process and the traffic impact analysis. Frontage improvements and driveway accesses will be considered for all parcels, whether the boundary line adjustment is completed or not. f:lsol ~r,a-aRS:, ~~so} ~rsB-sl•r•r rn.x a~uur<ci.rPlnt.u~a.us If you have any questions, please cali me at (360} 458-8496 Sincerely, .~---'"f ~f / L r Tami Merriman Assistant Planner cc: SPR Committee Kathryn Dotson Pararnetrix J~~Iy 9 200 Page 2 of 2 1f ~' off' °k xis ~~~ ~. '' ,..., ~•,~\.~, .I -~~~~ ~ . ~~ ~~. ~" Ia' LI4i WASh~hINGTON CITY OF YELM PO Box 479 Yelm WA 98597 360-458-3244 OFFICIAL USE ONLY Fee J ~~ Date Received By File No. ,~c~ -v'f-C~9~1- y~ APPLICATION FOR BOUNDARY LINE ADJUSTMENT Fee: $100.00 OR LARGE LOT SUBDIVISION Fee: $250.00, + $10.00/lot (In addition, any professional service charges per Resolution #358) X Boundary Line Adjustment Large Lot Subdivision NAME OF PROJECT Griffin BLA Owner of Parcel(s) X Purchaser of Parcel(s) Representative APPLICANT Scott Griffin. Caddis Construction Mailing Address P O Box 73669 City, State and Zip Puyallup WA 98373 Telephone (253) 896-1300 OWNER Kathryn Dotson, Trustee Mailing Address 16440 Middle Road SE City, State and Zip Yelm. WA 98597 Telephone SURVEYOR Parametrix Mailing Address 8830 Tallon Lane NE City, State and Zip Lacey WA 98516 Telephone (360) 459-3609 PROPERTY DESCRIPTION General Location southeast of Middle Road between Green Acres Ln and Railway Road Address of Site (if assigned) 16440 Middle Road SE Area of Project (in acres, if possible) 18.36 acres Area of entire contiguous ownership (if other than above) Section 19 Township 17N Range 2E Assessor's Tax Parcel Number(s) of property included in this application: 64303600700 and 64303600600 Zoning District R6 Moderate Density Residential Shoreline Designation (if applicable) n/a Comprehensive Plan/Sub-Area Plan Designation R6 Moderate Density Residential Type of on-site structures (give lot numbers) House and outbuildings on Lots A and B (SHOW LOCATION AND LABEL EACH STRUCTURE ON MAP) WHAT USES ARE PROPOSED FOR THE VACANT LOTS? The uses must be consistent with zoning. Single Family, on Lots Duplex, on Lots Multifamily, on Lots Commercial, on Lots Industrial, on Lots No uses are proposed. IF UNDECIDED, LOTS WILL BE REVIEWED FOR ONE SINGLE-FAMILY RESIDENCE PER LOT. Existing sewage disposal: None X Septic tank (date installed ) Sewer (SHOW ON MAP) Proposed sewage disposal: -None X Septic tank Sewer -Other Existing water supply: None X Individual well on lot(s) # A (SHOW ON MAP) Community Well -- Name of System or Owner Munici al Water S stem -- Name of Munici alit E-20 Proposed water supply: None X Individual Wells Community Well -- Name of System or Owner_ Municipal Water System -- Name of Municipality, Special areas on your project site: (Show checked areas on map) X Creek or Stream Yelm Creek River , (Name) Lake/Pond (Name) Cliffs (Name) Swamp/Bog Draw/Gully Has a portion of your project site ever flooded? No Do not know Yes, when? The southern portion of the side is mapped as a High Groundwater Hazard Area and Flood Zone (If yes, show area on map) BOUNDARY LINE ADJUSTMENTS ONLY Lot # A ,Lot Area in Square Feet 39 198 sf Lot # B ,Lot Area in Square Feet 760 324 sf Lot # ,Lot Area in Square Feet Lot # ,Lot Area in Square Feet Does the property being subdivided have city/county/state road frontage? No X Yes City of Yelm County State _ If yes, name of road Middle Road Right-of-Way width of road frontage varies If no, width and length of private road, easement or right-of-way: feet wide by feet long If property to be divided is accessed by a private road, how many other parcels have access by this road? _ (Include vacant parcels.) (FOR YELM TOWNHOUSE SHORT PLATS ONLY) 1. For existing townhouse units being short platted: Do the common walls meet building and fire codes? Yes No 2. For proposed townhouse units: Has the applicant submitted the following to the Site Plan Review Committee? Yes No (If no, your short plat will be held pending the submittal of those items listed below.) A) Building Plans. Typical front and side elevations and exterior architectural treatments of the proposed units. 6) Site Plans. Location of buildings in relation to property and lot lines, off-street parking areas, patio and service areas, including garbage disposal areas, landscaping, walls, fences, public and private streets, driveways, all common facilities, open space and walkways. In addition, lot size, percentage of ground coverage and open space shall be included as data on such plan. A topographic map shall also be submitted showing existing and proposed contours at two-foot intervals and which locates existing streams, lakes, marshes and other natural features. The requirement of the topographic map may be waived by the Site Plan Review Committee if it deems it not necessary. PLEASE PROVIDE A REDUCED SIZE COPY OF THE SITE PLAN AND/OR BLA, NOT ' LARGER THAN 11" X 17". None E-21 Boundary Line Adjustment #• Boundary Line Adjustment Map LINE TABLE SEC. 19, T.17N, R.2E, W.M. MIDDLE ~ ~ 5~` ~p5 '•~ 111.16'' 67.59 I R/W PER DRAINFIELD AFN 3535669 4i CLEANOUT ~ ~ ~ ~ ~ N I ^ ~ J 2 I S45'42'20 "E 1 I ' ~ 218.12' - G~5 0 0~~ m G ~a ~O ~ 0 LINE LENGTH BEARING L1 105.68 N47'02 25 W L2 56.99 N45'08 49 W L3 241.51 542'24 58 W L4 162.65 N46'20 30 W L6 241.93 N42 24 58 E L 7 58.28 547'32 25 E L8 87.62 S45'42 20 E 545-_42'20 'E o _--~._ 'L2 L1 L7 L8 m `~° WELL HOUSE m NEW LINES L4 I 0J\~~0 ~~~' oJ~~p.~~p~v I ~0 ~ ~~0 F 0~~ 0 0~~G ~~P~ I OP ~ ~~ o~ O '~ o° I ~ °~ ~~ ~ o I z .~e~ ~~~P ~Q I ~~ 0 ~ 5 9 I ~~~1 ~ N56'S9'33"W kh ~' N51'08'S7"W 382.61 ~ _ 224.03' 1 " = 200' 0 100 200 HORIZONTAL DATUM: \ NAD83/91 WASHINGTON STATE SOUTH ZONE CERTIFICATION OF CONFORMANCE 1 HEREBY CERTIFY THAT THIS BOUNDARY LINE ADJUSTMENT CONFORMS WITH THE REQUIREMENTS OF THE PLATTING AND SUBDIVISION ORDINANCE AS THE ADJUSTMENT DOES NOT CREATE ANY NEW LOTS CONTAINING INSUFFICIENT LOT AREA AND DIMENSIONS TO MEET THE MINIMUM REQUIREMENTS FOR WIDTH AND AREA FOR BUILDING SITES. PLANNING DEPARTMENT DATE FILE: 04812001 SV-02 _BIA. dwq DATE: 7/3/04 Parametrix w v cvs o ~+ w Q N51 '08'57"W 238.44' "-- N D ~~ c~E ..... ~ c ti~'oF WAS~;~~s ti~~~ ~~~t _~~- `b~.. o ~., \~ ` . ai ~aNO ~' EXPIRES 7/24/04 ,\ ~ , .:: _ r , ~• /' rs • •N eM1 ~i ~~ G i` ~ ~ O 4 E , ~ ~i /~ / ~ ~ c r - "f: ~~ a i /~ ~ ~ ~~ %~ j ~ e ~,~ ~? ~ t ~ N M1 k++.vj ~ r i .. , N • .,\ .~. ~.., i ,. •... Q M1 ~~ ..~ ,~ F- ~g L a ~w v_~ ~ ia. a 0 d' W z W J Q U 0 N O N W h O .` E R .. A Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage Article IV 17.5.3 Comply with all local and state requirements stipulated in the OSSP and the operational certificate issued for the system. SECTION 18 EXPANSIONS. The health officer shall require an on-site sewage system and a reserve area in full compliance with the new system construction standards specified in this article for an expansion of a residence or other facility. SECTION 19 ABANDONMENT. Persons permanently removing a septic tank, seepage pit, cesspool, or other sewage container from service shall: 19.1 Have the septage removed by a certified pumping firm; 19.2 Remove or destroy the lid; and 19.3 Fill the void with soil. SECTION 20 SEPTAGE MANAGEMENT. 20.1 Only pumping firms certified by the health officer as per subsection 23.3 of this article shall remove septage from an OSS. 20.2 A pumping firm removing septage from an OSS shall: 20.2.1 Transport septage or sewage only in vehicles clearly identified with the name of the business and approved by the health officer; 20.2.2 Record and report septage removal to the health officer; 20.2.3 Dispose of septage, or apply septage biosolids to land only in a manner consistent with applicable laws. SECTION 21 DEVELOPMENTS SUBDIVISIONS AND MINIMUM LAND AREA REQUIREMENTS. 21.1 A person proposing any development shall obtain approval from the health officer prior to any development where the use of OSS is proposed. Any new development proposing to use OSS shall be required to have an OSS which meets new construction standards. 21.2 The health officer shall require the following prior to approving any development: AMENDED June 1, 1999 4-53 Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage Article IV 21.2.1 Site evaluations as required under section 11 of this article. This may include information gained in a project review as noted in subsection 10.5 of this article; 21.2.2 Where a subdivision with individual wells is proposed: 21.2.2.1 Configuration of each lot to allow a 100-foot radius water supply protection zone to fit within the lot lines; or 21.2.2.2 Establishment, through protective or restrictive covenants, as appropriate, of a 100-foot protection zone around each existing and proposed well site. Such zones shall be shown on the final plat map. 21.2.3 Where a subdivision to be served by a community well or wells is proposed, all requirements of WAC 246-290 and WAC 246-291 shall be met. This will include wellhead protection when applicable. 21.2.4 Where preliminary approval of a subdivision is requested, provision of at least one soil log per proposed lot, unless the health officer determines existing soils information allows fewer soil logs; 21.2.5 Determination of the minimum lot size or minimum land area required for the development using Method land/or Method II: 21.2.5.1 METHOD I. Table VII, Single Family Residence Minimum Lot Size or Minimum Land Area Required Per Unit Volume of Sewage, shows the minimum lot size required per single family residence. For developments other than single family residences, the minimum land areas shown are required for each unit volume of sewage. TABLE VII MINIMUM LAND AREA REQUIREMENT SINGLE FAMILY RESIDENCE OR UNIT VOLUME OF SEWAGE Type of Soil Type (defined by section 11 of this article)' Water Supply 1A, 1 B 2A, 2B 3 4 5 6 Public 0.5 12,500 sq. 15,000 sq. 18,000 sq. 20,000 sq. 22,000 sq. acre2 ft. ft. ft. ft. ft. Individual, on or to each lot 1 acre2 1 acre 1 acre 1 acre 2 acres 2 acres AMENDED June 1, 1999 4-54 Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage Article IV When an OSS is proposed to be installed in soil types 1 B or 2 through 4 that are included in the list of Category I soil series in Chapter 17.15 of the Thurston County Code (Critical Areas Ordinance), pressure distribution is required, at a minimum. In addition, for those Category I soil series the minimum lot size restrictions found in Table 3 of Chapter 17.15 shall apply, and any lots less than 1 acre in size must be served by a public water system and an OSS meeting Treatment Standard 2. z Due to the highly permeable nature of type 1A soil, only alternative systems which meet or exceed Treatment Standard 2 can be installed. 21.2.5.2 METHOD II. A minimum land area proposal using Method II is acceptable only when the applicant: 21.2.5.2.1 Justi the: 21.2.5.2.1.1 21.2.5.2.1.2 21.2.5.2.1.3 21.2.5.2.1.4 Pies the proposal through a written analysis of Soil type and depth; Area drainage, and/or lot drainage; Public health impact on ground and surface water quality; Setbacks from property lines, water supplies, etc; 21.2.5.2.1.5 Source of domestic water; 21.2.5.2.1.6 Topography, geology, and ground cover; 21.2.5.2.1.7 limatic conditions; 21.2.5.2.1.8 Availability of public sewers; 21.2.5.2.1.9 Activity or land use, present, and anticipated; 21.2.5.2.1.10 Growth patterns; 21.2.5.2.1.11 Reserve areas for additional subsurface treatment and disposal; 21.2.5.2.1.12 Anticipated sewage volume; 21.2.5.2.1.13 Compliance with current planning and zoning requirements; AMENDED June 1, 1999 4-55 WAC 246-272-20501 Developments, subdivisions, and minimum land area requirements. (1) A person proposing the development shall obtain approval from the local health officer prior to any development where the use of OSS is proposed. (2) The local health officer shall require the following prior to approving any development: (a) Site evaluations as required under WAC 246-272-11001, excluding subsections (3)(a)(i) and (4)(d); (b) Where a subdivision with individual wells is proposed: (i) Configuration of each lot to allow a one hundred-foot radius water supply protection zone to fit within the lot lines; or (ii) Establishment of a one hundred-foot protection zone around each existing and proposed well site; (c) Where preliminary approval of a subdivision is requested, provision of at least one soil log per proposed lot, unless the local health officer determines existing soils information allows fewer soil logs; (d) Determination of the minimum lot size or minimum land area required for the development using Method land/or Method II: (i) METHOD I. Table VII, Single family residence minimum lot size or minimum land area required per unit volume of sewage, shows the minimum lot size required per single family residence. For developments other than single family residences, the minimum land areas shown are required for each unit volume of sewage. TABLE VII MINIMUM LAND AREA REQUIREMENT SINGLE FAMILY RESIDENCE OR UNIT VOLUME OF SEWAGE Type of Soil Type (defined by section 11001 of this chapter) Water Supply lA, 1B 2A, 2B 3 4 5 6 Public 0.5 acres 12,500 15,000 18,000 20,000 22,000 2.5 acre2 sq. ft. sq. ft. sq. ft. sq. ft. sq. ft. Individual, 1 acres 2 5 2 1 acre 1 acre 1 acre 2 acres 2 acres on each lot . acres 1 Due to the highly permeable nature of type 1 soil, only alternative systems which meet or exceed Treatment Standard 2 can be installed. 2 A conventional gravity system in type 1 soil is only allowed if it is in compliance with all conditions listed under WAC 246-272-1 1 501 (2)(h). One of these limiting conditions is a 2.5 acre minimum lot size. (ii) METHOD ~~. A minimum land area proposal using Method II is acceptable only when the applicant: (A) Justifies the proposal through a written analysis of the: (I) Soil type and depth; (II) Area drainage, and/or lot drainage; (III) Public health impact on ground and surface water quality; (IV) Setbacks from property lines, water supplies, etc.; (V) Source of domestic water; (VI) Topography, geology, and ground cover; (VII) Climatic conditions; (VIII) Availability of public sewers; (IX) Activity or land use, present, and anticipated; (X) Growth patterns; (XI) Reserve areas for additional subsurface treatment and disposal; (XII) Anticipated sewage volume; (X111) Compliance with current planning and zoning requirements; (XIV) Possible use of alternative systems or designs; (XV) Existing encumbrances, such as listed in WAC 246-272- 09001 (1)(c)(v) and 246-272-11001 (2)(a)(vii); and (XVI) Any other information required by the local health officer. (B) Shows development with public water supplies having: (I) At least twelve thousand five hundred square feet lot sizes per single family residence; (II) No more than 3.5 unit volumes of sewage per day per acre for developments other than single family residences; and (C) Shows development with individual water supplies having at least one acre per unit volume of sewage; and (D) Shows land area under surface water is not included in the minimum land area calculation; and (e) Regardless of which method is used for determining required minimum lot sizes or minimum land area, submittal to the health officer of information consisting of field data, plans, and reports supporting a conclusion the land area provided is sufficient to: (i) Install conforming OSS; (ii) Assure preservation of reserve areas for proposed and existing OSS; (iii) Properly treat and dispose of the sewage; and (iv) Minimize public health effects from the accumulation of contaminants in surface and ground water. (3) The local health officer shall require lot areas of twelve thousand five hundred square feet or larger except when a person proposes: (a) OSS within the boundaries of a recognized sewer utility having a finalized assessment roll; or (b) A planned unit development with: (i) A signed, notarized, and recorded deed covenant restricting any development of lots or parcels above the approved density with the density meeting the minimum land area requirements of subsection (2)(d) of this section; (ii) A public entity responsible for operation and maintenance of the OSS, or a single individual owning the OSS; (iii) Management requirements under WAC 246-272-08001 when installing a LOSS; and (iv) Extinguishment of the deed covenant and higher density development allowed only when the development connects to public sewers. (4) The local health officer may: (a) Allow inclusion of the area to the centerline of a road or street right of way in a Method II determination under subsection (2)(d)(ii) of this section to be included in the minimum land area calculation if: (i) The dedicated road or street right of ways are along the perimeter of the development; (ii) The road or street right of ways are dedicated as part of the proposed development; and (iii) Lots are at least twelve thousand five hundred square feet in size. (b) Require detailed plot plans and OSS designs prior to final approval of subdivision proposals; (c) Require larger land areas or lot sizes to achieve public health protection; (d) Prohibit development on individual lots within the boundaries of an approved subdivision if the proposed OSS design does not protect public health by meeting requirements of these regulations; and (e) Permit the installation of an OSS, where the minimum land area requirements or lot sizes cannot be met, only when all of the following criteria are met: (i) The lot is registered as a legal lot of record created prior to the effective date of this chapter; (ii) The lot is outside an area of special concern where minimum land area has been listed as a design parameter necessary for public health protection; and (iii) The proposed system meets all requirements of these regulations other than minimum land area. [Statutory Authority: RCW 43.20.050. 94-09-025, § 246-272-20501, filed 4/15/94, effective 1/1/95.] ~' ra x --~. o _~~~~ i pp~~ ....,...,..LL_._..~......._._..E k.'NA._ ....,.. ._.. ...., d T t ~ s " ~~ _ ~ ~ V ~ti .. r. ? ._.,.._.~.~ , ~, ~ ,,~t_. , t ~: ~;. ~~ ~..~ ~~, ~~~ ~,~ ~~ 0 co . _. a j ~..---~ w. i i i ~~ i c~ ,~ i ~ .~ r ~ ~ ° i '`~ t .,,a ~ ~ .. ". ..._ ", ~ ,, ,: ~ li ~- r. x / t Il al.,, ~i'~ ~~w `h ~".fib ~ ,.,. ~' '~ . ~. ~ ~~ ~ r,, ~ a~ a ~+ Memorandum To: Grant Beck Gary Carlson Jim Gibson Tami Merriman City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 (360) 458-3835 (360) 458-3144 FAX From: Roberta Allen, Administrative Assistant Date: August 25, 2004 Re: APP-04-0128-YL Attached is the application packet for the above referenced project. ~'~~ I , s G` ~~ ~ ~~a~ 10 ~~~f2~ ~-n~.e 9/a~/al R:\Project Files\APP Appeal\04-0128 Griffin & Dotson\Proj Memo.doc a / ~~ THE p~~ ti~'~ !~ 4`fi' rcn ~ ~~, YELM WASHINGTON CITY OF YELM PO Box 479 Yelrn WA 98597 360-458-3244 NOTICE OF APPEAL Fee: Staff Decision - $50.00 Hearing Examiner Decision - $100.00 (In addition, any professional service charges per Resolution #358) OFF~I/CIAL USE ONLY Fee p Y ~ ~- Date Received ZtX: 3 %~' By Y L.. File No. 'U i : ° ~' .> ~' ~ ~ 1 ~~ ~~ r, ~~ AUG 2 ~ ?004 A Closed record appeal may follow either an open record hearing or an open record administrative decision on a project permit application when the appeal is on the record, and no or limited new evidence or information is allowed to be submitted. Appeals on Category I & II project decisions are heard by the City Council. Appeals on Category III & IV project decisions as well as Category I & II decisions which have been appealed to the City Council go to Superior Court and follow the judicial review process set forth in RCW 366.70C. A Notice of Appeal must be filed within 14 days of Notice of Final Decision. PROJECT CASE NUMBER BEING APPEALED BLA- 0 4 - 0 0 9 9 - YL DATE OF NOTICE OF FINAL DECISION August , APPELLANT(S) Kathryn Dotson Freestone DFF Yelm II LLC Mailing Address i e co ri in, r. City, State and Zip e m, WA PO Box 7 9 Telephone - uya up, (253) 896-1300 SPECIFIC ITEMS OF DECISION BEING APPEALED (attach additional sheet if necessary):- See attached I affirm that all answers, statements and information contained in and submitted with this application are complete and accurate to the best of my knowledge. I also affirm that I am the owner of the subject site or am duly authorized by the owner to act with respect to this application. Further, I grant permission from the owner to any and all employees and representatives of the City of Yelm and other governmental agencies to enter upon and inspect said property as reasonably necessary to process this application. I agree to pay all fees of the city which apply to this application. Signed Date 13 Signed J Date g.. ~~-~~ Y *Successor to Caddis Construction CITY OF YELM Community Development Department GROUNDS FOR APPEAL Re: Scott Griffin Boundary Line Adjustment The following are the grounds for appeal for the Applicant's appeal of the City's August 11, 2004 decision in the Griffin Boundary Line Adjustment. 1. The City asserts that the proposed Boundary Line Adjustment violates the Thurston County Health Code and corresponding provisions of the Washington Administrative Code. This conclusion is erroneous for the following reasons: A. Those provisions are administered by the Thurston County Health Department which has not concluded, as the City has, that the proposed adjustment would violate the cited provisions; B. There are readily available alternatives to the cited minimum lot size requirements including minor increases in the size of the relevant parcel, the provision of an off-site easement for drainfield proposes, etc. The Applicant is ready, willing and able to modify its proposal to meet these requirements, and should have an opportunity to do so as opposed to having its application summarily denied; C. WAC 246-272-2501 states that a person proposing a development shall obtain approval from the local health officer prior to any development where the use of an on-site septic system is proposed. The City did not give the local health officer an opportunity to review, comment, and/or approve/deny the application; D. Additional soils work may confirm that the site has adequate area and soils along the western portion of the lot for a reserve drainfield and, if so, the lot size may be satisfactory to the Health Department. Again, the Applicant should have had an opportunity to exhaust these alternatives prior to the City even considering denial of the Boundary Line Adjustment; E. As another alternative, the Applicant could connect the site to the City's water system which would likely affect the application of the Health Department's regulations; and F. The 100-foot well radius can be located within the boundaries of the proposed lot, and/or on adjacent property restricted by covenant. The Applicant can obtain or provide such a covenant and should be given the option to do so. 2. The next basis for denial of the Boundary Line Adjustment was that the proposal did not meet minimum density requirements for the medium density residential (R-6) zoning district and that the density requirement could not be achieved through any re- [1279874 v2] - 1 - division of the property due to the size of the parcel and the requirements of the subdivision code. This conclusion is erroneous for the following reasons: A. RCW 58.17.040(6) exempts from the requirements of the Subdivision Act: "A division made for the purpose of alteration by adjusting property lines, between a platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site" An adjustment meeting those requirements is exempt from local regulatory authority as well. The subject proposal is consistent with and falls within the express language of this exemption; B. More specifically, the proposed lots do contain sufficient area and dimension to meet minimum requirements for width and area. The exemption does not specify that created lots must meet minimum density requirements, and the City may not read such a requirement into the exemption language; C. In fact, the proposed Boundary Line Adjustment brings the subject property closer in conformance to any minimum density requirements by reducing the size of the parcel; D. Given the existing improvements that have been constructed on the property, the proposed lot is the smallest that could practically be designed to encompass the home and its accessory improvements. To require that the lot be smaller denies the Applicant its rights under the common law and statutory provisions regarding non-conforming uses and vested rights; E. The conclusion that the lot is too large to meet density requirements is directly contrary to the first cited basis for the City's denial that the lot is too small; F. The applicable rules appear to conflict with respect to the size of the lot, with the Health Department regulations setting forth a minimum size and the Zoning Regulations setting forth a maximum size. The Health Department regulations address a matter of public health and have priority over and supersede the later-adopted zoning requirements; and G. The subject property can be re-developed in the future to bring it into greater conformity with minimum density requirements. 3. As the third basis for its decision, the City asserts that Ms. Dotson's parcels were not created through the subdivision process and thus the Boundary Line Adjustment process is not available. That is expressly contrary to RCW 58.17.040(6) which allows the adjustment between "platted or unplatted lots or both". [1279874 v2] _ 2 4. The City's decision is otherwise contrary to law, including but not limited to RCW Chapter 58.17 and RCW 58.17.040(6) and the City of Seattle vs. Crispin, 149 Wn.2d 896, 71 P.3~d 208 (2003). 5. The City's decision is arbitrary and capricious. DATED this 23`d day of August, 2004. Respectfully Submitted, GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM W~.~ By: William T. Lynn WSBA No. 07887 1201 Pacific Ave., Suite 2100 PO Box 1157 Tacoma, WA 98401-1157 (253) 620-6416 [1279874 v2J _ 3 ~~ ~y THE P ~.~~ ~f~ y~ f~, ~~ ,~\ YELM WASHINGTON CITY OF YELM PO Box 479 Yelm WA 98597 360-458-3244 NOTICE OF APPEAL Fee: Staff Decision - $50.00 Hearing Examiner Decision - $100.00 (In addition, any professional service charges per Resolution #358) OFF~,I/CIAL USE ONLY Fee p U Date Received Zcx~ 'S By File No. 'O - ~ ~/ AUG 2 41004 A Closed record appeal may follow either an open record hearing or an open record administrative decision on a project permit application when the appeal is on the record, and no or limited new evidence or information is allowed to be submitted. Appeals on Category I & II project decisions are heard by the City Council. Appeals on Category III & IV project decisions as well as Category 18~ II decisions which have been appealed to the City Council go to Superior Court and follow the judicial review process set forth in RCW 366.70C. A Notice of Appeal must be filed within 14 days of Notice of Final Decision. PROJECT CASE NUMBER BEING APPEALED BLA- 0 4 - 0 0 9 9 - YL DATE OF NOTICE OF FINAL DECISION August , 4 APPELLANT(S) Kathryn Dotson Freestone DFF Yelm II LLC * Mailing Address i e co ri in, r. City, State and Zip a m, WA PO Box 7 Telephone - uya up, (253) 896-1300 SPECIFIC ITEMS OF DECISION BEING APPEALED (attach additional sheet if necessary):- See attached I affirm that all answers, statements and information contained in and submitted with this application are complete and accurate to the best of my knowledge. I also affirm that I am the owner of the subject site or am duly authorized by the owner to act with respect to this application. Further, I grant permission from the owner to any and all employees and representatives of the City of Yelm and other governmental agencies to enter upon and inspect said property as reasonably necessary to process this application. I agree to pay all fees of the city which apply to this application. Signed Date 13 Signed ~ ~ J Date Q. ~~-~d Y *Successor to Caddis Construction CITY OF YELM Community Development Department GROUNDS FOR APPEAL Re: Scott Griffin Boundary Line Adjustment The following are the grounds for appeal for the Applicant's appeal of the City's August 11, 2004 decision in the Griffin Boundary Line Adjustment. 1. The City asserts that the proposed Boundary Line Adjustment violates the Thurston County Health Code and corresponding provisions of the Washington Administrative Code. This conclusion is erroneous for the following reasons: A. Those provisions are administered by the Thurston County Health Department which has not concluded, as the City has, that the proposed adjustment would violate the cited provisions; B. There are readily available alternatives to the cited minimum lot size requirements including minor increases in the size of the relevant parcel, the provision of an off-site easement for drainfield proposes, etc. The Applicant is ready, willing and able to modify its proposal to meet these requirements, and should have an opportunity to do so as opposed to having its application summarily denied; C. WAC 246-272-2501 states that a person proposing a development shall obtain approval from the local health officer prior to any development where the use of an on-site septic system is proposed. The City did not give the local health officer an opportunity to review, comment, and/or approve/deny the application; D. Additional soils work may confirm that the site has adequate area and soils along the western portion of the lot for a reserve drainfield and, if so, the lot size may be satisfactory to the Health Department. Again, the Applicant should have had an opportunity to exhaust these alternatives prior to the City even considering denial of the Boundary Line Adjustment; E. As another alternative, the Applicant could connect the site to the City's water system which would likely affect the application of the Health Department's regulations; and F. The 100-foot well radius can be located within the boundaries of the proposed lot, and/or on adjacent property restricted by covenant. The Applicant can obtain or provide such a covenant and should be given the option to do so. 2. The next basis for denial of the Boundary Line Adjustment was that the proposal did not meet minimum density requirements for the medium density residential (R-6) zoning district and that the density requirement could not be achieved through any re- [1279874 v2] - 1 - division of the property due to the size of the parcel and the requirements of the subdivision code. This conclusion is erroneous for the following reasons: A. RCW 58.17.040(6) exempts from the requirements of the Subdivision Act: "A division made for the purpose of alteration by adjusting property fines, between a platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site" An adjustment meeting those requirements is exempt from local regulatory authority as well. The subject proposal is consistent with and falls within the express language of this exemption; B. More specifically, the proposed lots do contain sufficient area and dimension to meet minimum requirements for width and area. The exemption does not specify that created lots must meet minimum density requirements, and the City may not read such a requirement into the exemption language; C. In fact, the proposed Boundary Line Adjustment brings the subject property closer in conformance to any minimum density requirements by reducing the size of the parcel; D. Given the existing improvements that have been constructed on the property, the proposed lot is the smallest that could practically be designed to encompass the home and its accessory improvements. To require that the lot be smaller denies the Applicant its rights under the common law and statutory provisions regarding non-conforming uses and vested rights; E. The conclusion that the lot is too large to meet density requirements is directly contrary to the first cited basis for the City's denial that the lot is too small; F. The applicable rules appear to conflict with respect to the size of the lot, with the Health Department regulations setting forth a minimum size and the Zoning Regulations setting forth a maximum size. The Health Department regulations address a matter of public health and have priority over and supersede the later-adopted zoning requirements; and G. The subject property can be re-developed in the future to bring it into greater conformity with minimum density requirements. 3. As the third basis for its decision, the City asserts that Ms. Dotson's parcels were not created through the subdivision process and thus the Boundary Line Adjustment process is not available. That is expressly contrary to RCW 58.17.040(6) which allows the adjustment between "platted or unplatted lots or both". [1279874 v2] - 2 - 4. The City's decision is otherwise contrary to law, including but not limited to RCW Chapter 58.17 and RCW 58.17.040(6) and the City of Seattle vs. Crispin, 149 Wn.2d 896, 71 P.3`d 208 (2003). 5. The City's decision is arbitrary and capricious. DATED this 23`d day of August, 2004. Respectfully Submitted, GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON 8~ DAHEIM By: William T. Lynn WSBA No. 07887 1201 Pacific Ave., Suite 2100 PO Box 1157 Tacoma, WA 98401-1157 (253) 620-6416 [1279874 v2] _ $ _ Grant Beck From: Cathie Carlson [ccarlson@parametrix.com] Sent: Tuesday, August 17, 2004 4:14 PM To: Grant Beck Subject: RE: Appeal's Hearing Thanks » > "Grant Beck" <grantb@ci.yelm.wa.us> 8/17/2004 3:25:18 PM » > You were right the first time, it goes to the Examiner at an open record hearing. Once an appeal is filed, I would be contacting you regarding briefing schedules/hearing dates, as the Examiner is basically on-call and pretty flexible about dates, we would come up with the earliest date that fits everyone's schedule. The case number is the boundary line adjustment number... BLA-04-0099-YL. Grant -----Original Message----- From: Cathie Carlson [mailto:ccarlson@parametrix.com] Sent: Tuesday, August 17, 2004 3:10 PM To: gbeck@ywave.com Subject: Appeal's Hearing Whoops - If I would have read the appeals form I would have seen that the CC hears appeals - for some reason I was thinking that the HE heard them. So with that what kind of timeframe would you expect. Also on the appeal application it asks for a case number - got one for me or should I just use the date of the letter? Thanks Cathie 4 Grant Beck From: Cathie Carlson [ccarlson@parametrix.com] Sent: Tuesday, August 17, 2004 3:10 PM To: 'gbeck@ywave.com' Subject: Appeal's Hearing Whoops - If I would have read the appeals form I would have seen that the CC hears appeals - for some reason I was thinking that the HE heard them. So with that what kind of timeframe would you expect. Also on the appeal application it asks for a case number - got one for me or should I just use the date of the letter? Thanks Cathie Grant Beck From: Cathie Carlson [ccarlson@parametrix.com] Sent: Friday, August 20, 2004 8:29 AM To: Grant Beck Subject: Re: FW: Kay Dotson Ya - I'll forward the one you sent me to him. Thanks Cathie » > "Grant Beck" <grantb@ci.yelm.wa.us> 8/19/2004 9:57:31 PM » > Cathie - I assume you are dealing with this. Let me know if I need to respond. Grant From: Lynn, William [mailto:WLynn@gth-law.com] Sent: Thu 8/19/2004 1:29 PM To: 'Cathie Carlson'; Grant Beck Cc: scott@caddishomes.com Subject: RE: Kay Dotson Did you send the appeal form? -----Original Message----- From: Cathie Carlson [SMTP:ccarlson@parametrix.com] Sent: Tuesday, August 10, 2004 10:57 AM To: grantb@ci.yelm.wa.us Cc: scott@caddishomes.com; Lynnw@gth-law.com Subject: Re: Kay Dotson Grant, I looked on the Internet and on the 2002 Development Guideline CD for an appeal form, but couldn't find one. Could you either have someone send me an electronic file or fax me a form at 459-0154. 5 Just to clarify, the 14 day timeframe to file an appeal is calender days not working days. Therefore the deadline to file the appeal is on or before August 24th (if you count the day the letter was issued). Thanks Cathie »> "Grant Beck" <grantb@ci.yelm.wa.us> 8/9/2004 4:23:50 PM »> Cathie - I am not sure if you are still working on this project, but attached is a letter denying the Griffin BLA of the Kay Dotson parcels on Middle Road. If you have any questions or want to chat, give me a call. Grant Grant Beck, Director City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 360.458.8408 360.458.3144 (FAX) grantb@ci.yelm.wa.us 6 City of Yelm ~~ ~ Community Development Department 105 Yelm Avenue West P.O. Box 479 Yelm, WA 98597 _ ` WAiNINOTON ~ /~J~ '" 1 August 11, 2004 ~ / ~ P `~ l l Scott Griffin ~ ~`~ Caddis Construction P.O. Box 73669 Puyallup, WA 98373 Re: Griffin Boundary Line Adjustment Dear Mr. Griffin: The City of Yelm has completed its review of your application for a Boundary Line Adjustment between two parcels of land owned by Kathryn Dotson located on Middle Road. The City has determined that the proposal would create a lot which does not meet zoning and health code standards, and hereby denies the application. Section 58.17.040 (6) RCW exempts a division made for the purpose of alteration by adjusting boundary lines, which does not create any additional lot nor create any lot which contains insufficient area and dimension to meet minimum requirements for width and area for a building site from subdivision requirements. Section 16.28.010 YMC indicates a boundary line adjustment should be approved upon finding compliance with minimum zoning, health, building and other land use regulations and with the Yelm comprehensive plan and that the adjustment will not adversely affect access, easements or drainfields. Specifically, the proposal is inconsistent with the following health code and zoning code standards: Section 21.2.5 of the Thurston County Health Code and Section 246-272-20501 WAC indicate that the minimum lot size of a parcel that is served by an on-site sewage disposal system and a individual well is one acre under the most favorable soil conditions. Additionally, these sections of the health codes require the well radius be contained within the property lines of lot. i~ ~~ (3c0) 458-3835 (360) 458-3144 FAX murru.ci.yelm.maus The proposed lot which contains Ms. Dotson's home is served by an individual well and on-site sewage disposal system and is proposed to be less than one acre in size. The 100 foot well radius would not be contained within the boundaries of this proposed lot. The Yelm Zoning Code establishes both maximum and minimum density requirements in the Medium Density Residential (R-6) zoning district. The minimum density is 3 units per acre, which is not achieved through the creation of a lot less than one acre in area. Further, this requirement could not be achieved through any redivision of the property due to the size of the parcel and requirements of the subdivision code. Ms. Dotson's parcels were not created through the subdivision process found in Chapter 58.17 RCW, as the creation of parcels 5 acres or larger is exempt from the requirements of the State Subdivision Act. Allowing the creation of a parcel which would normally be subject to the standards of a subdivision or short subdivision from an exempt division circumvents the protections built into the land division process, such as the requirements of the health codes noted above, but also those related to access, connection to public services, and other policies of the Comprehensive Plan expressed through the City's development regulations. The decision to deny your application for boundary line adjustment may be appealed to the City of Yelm Hearing Examiner by filing a written appeal which clearly identifies the basis for the appeal and an appeal fee of $50.00 to the Community Development Department no later than 14 days from the date of this letter. ire ~t Beck, Director munity Development Department August 9, 2004 Page 2 of 2 a o~T"Ep~~ City of Yelm °' Community Development Department 105 Yelm Avenue West P.O. Box 479 YELM Yelm, WA 98597 WASHINGTON August 5, 2004 I ~~ l /~~ Scott Griffin ~ ~` Caddis Construction P.O. Box 73669 ' ,~ Puyallup, WA 98373 Re: Griffin Boundary Line Ad~ustm n ~ ~~ l Iw ~Z~S~O Z~cn~- ~~ ~~~~. Dear Mr. Griffin: ~v~~ The City has completed its review for the Boundary Line Adjustment on your property ~-~-~ located on Middle Road. The proposed property lines meet minimum City zoning, health, and building standards. The Declaration of Boundary Line Adjustment and Covenants must by signed by the property owner, and any person or entitythat has interest in the property. I am returning this document to you, to acquire Kathyrn Dotson's notarized signature. Please return the Declaration back to me with the required notarized signature, and I will forward the documents to Thurston County for recording. If you have any questions, please call me at (360) 458-8496. r Sincerely, Tami Merriman Assistant Planner -~ -~~ ~ ,~ U l~ G~ ~~ ~N .;-~'. r-- „_--/ ~f~~'~ ~ p~p~Ue (360) 458-3835 (360) 458-3144 FAX www.ci.yelm.wa.us LAW OFFICES CORDON. THOMAS. HONEYWELL. MALANCA, PETERSON F~ DAHEIM LLP TACOMA OFFICE 1 2 0 1 PACIFIC AVENUE . S U I T E 2 2 0 0 POST OFFICE BOX 1157 TACOMA, WASHINGTON 98401-I 157 1253) 620-6500 FACSIMILE 12531 620-6565 REPLY TO TACOMA OFFICE WILLIAM T. LYNN ATTORNEY AT LAW DIRECT (253) 620-6416 1206) 676-6416 E-MAIL lynnw®gth-law.com July 14, 2004 Tami Merriman Assisiant rianner City of Yelm P. O. Box 479 Yelm, WA 98597 SEATTLE OFFICE ONE UNION S Q U A R E 6 0 0 U N I V E R S I T Y . S U I T E 2 1 0 0 SEATTLE. 'NASHINGTON 98 10 1-4 1 8 5 12061 676-7500 FACSIMILE 12061 676-7575 RE: Boundary Line Adjustment Application for Kathryn Dotson, Trustee Dear Ms. Merriman: We represent Caddis Construction, and your letter of July 19, 2004 concerning the above referenced boundary line adjustment has been referred to us for action. We are confident the City does not have the authority you assert in your letter. In the first place, the boundary line adjustment is exempt from the City's authority over subdivisions under the provisions of RCW 58.17.040(6). Such adjustments are simply not within the City's regulatory authority. Once the City concludes that the boundary line adjustment meets the description set forth in this statutory provision, the City may not deny, or impose conditions on any "approval". That is clear from the statute and has been made even more clear from the Supreme Court's decision in Seattle v. Crispin, 149 Wn.2d 896 (2003). There, the property owners simply adjusted their property lines by a series of deeds. The court held that was an exempt action, not subject to later City review. As you know, Caddis Construction intends to purchase the larger parcel and submit a subdivision application. The City may not use its authority under the State Environmental Policy Act (SEPA) to assert control over property not owned by the applicant and not part of the application. The impacts of the proposed subdivision will be those relating to the residential development that will occupy the subdivided property. Impacts of the existing home, which will be in a separate ownership and which has access that will be unchanged by the subdivision, will not be within the City's SEPA authority. Case law from our State Supreme Court makes it clear that the City cannot exercise the authority you have asserted. In Burton v. Clark Count~~, 91 Wn. App. 505 (1998) the Court (1275887 vl.doc] GORDON, THOMAS. HONEYWELL MALANCA. PETERSON £~ DAHEIM LLP July ] 4, 2004 Page 2 reviewed a subdivision approval on which the County had imposed several road improvement requirements. The court identified four principles that relate to the imposition of conditions on land use actions. Two are particularly relevant here: that conditions may only be imposed to address a "public problem", and that the government must show that the development under consideration will create or make worse the identified problem. Here, the existing home and driveway will remain exactly as they are without the subdivision. The subdivision will not create any problems associated with the driveway, nor will the subdivision make any such problems worse. As a result, the City may not, within the bounds of the Constitution, impose restriction on access from that home. We are very confident of the position set forth in this letter and suggest that you review the City's authority with the City Attorney. Please feel free to have the City Attorney contact the undersigned to discuss this matter. Very truly yours, Cti~ William T. L WTL:gam cc: Scott Griffin [1275887 vl.doc] Grant Beck From: Cathie Carlson [ccarlson@parametrix.com] Sent: Wednesday, July 14, 2004 4:34 PM To: 'gbeck@ywave.com' Subject: Griffin BLA/Subdivision Hi Grant, Just checking in on the Griffin BLA to see if you need any additional information. Do you require a title report for a BLA? I'm assuming Scott turned it in on the same day he picked it up here - June 24th? Is review time for a BLA still running about 30 - 45 days? If so would you expect a decision by the first part of August (or sooner!)? Also I wanted to confirm that the preliminary plat road alignment on Denny's project that stubs out to the Dotson property is still the same. Our layout is based on that alignment, so as we finalize our application packet I want to make sure - I've had enough surprises on this one to last me a life time!! Thanks - talk to you soon. Cathie Grant Beck From: Postmaster@mail.parametrix.com on behalf of Cathie Carlson [ccarlson@parametrix.com] Sent: Monday, August 09, 2004 4:24 PM To: Grant Beck Subject: Re: Kay Dotson I am out of the office until August 17th and will reply to your e-mail as soon as I return. If you have questions or need help before that time, please contact Jean Carr at jcarr@parametrix.com or (360)459-3609. Thank-you. Grant Beck From: Cathie Carlson [ccarlson@parametrix.com] Sent: Tuesday, August 10, 2004 10:57 AM To: Grant Beck Cc: 'scott@caddishomes.com'; 'Lynnw@gth-law.com' Subject: Re: Kay Dotson Grant, I looked on the Internet and on the 2002 Development Guideline CD for an appeal form, but couldn't find one. Could you either have someone send me an electronic file or fax me a form at 459-0154. Just to clarify, the 14 day timeframe to file an appeal is calender days not working days. Therefore the deadline to file the appeal is on or before August 24th (if you count the day the letter was issued). Thanks Cathie 1 »> "Grant Beck" <grantb@ci.yelm.wa.us> 8/9/2004 4:23:50 PM »> Cathie - I am not sure if you are still working on this project, but attached is a letter denying the Griffin BLA of the Kay Dotson parcels on Middle Road. If you have any questions or want to chat, give me a call. Grant Grant Beck, Director City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 360.458.8408 360.458.3144 (FAX) grantb@ci.yelm.wa.us Grant Beck From: Cathie Carlson [ccarlson@parametrix.com] Sent: Tuesday, August 10, 2004 12:27 PM To: Grant Beck Subject: RE: Kay Dotson Thanks - I didn't go that far into the web site, I just pick the menu item from the home page. My auto reply was wishful thinking!! Actually I was out from Wed afternoon until today. Not anything fun, just work and trying to get my mother-in-laws house de-junked. She had a stroke a couple of weeks ago and can't go home until it's no longer a safety hazard! What is it about older people not wanting to through anything away? You need it - we probably have 2 or 3 of them! Thanks Cathie » > "Grant Beck" <grantb@ci.yelm.wa.us> 8/10/2004 11:05:23 AM »> www.ci.yelm.wa.us/ data/forms/AppealApp.pdf You get there by going to the CDD home page and then the menu item 'forms and publications' from there. You are correct about the timeframe. I recieved an autoreply that said you were out of the office until the 17th of August, are you back way too soon or haven't left yet? Is it a fun trip or work? Talk to you soon, Grant -----Original Message----- From: Cathie Carlson [mailto:ccarlson@parametrix.com] Sent: Tuesday, August 10, 2004 10:57 AM To: grantb@ci.yelm.wa.us Cc: Scott@caddishomes.com; Lynnw@gth-law.com 2 Subject: Re: Kay Dotson Grant, I looked on the Internet and on the 2002 Development Guideline CD for an appeal form, but couldn't find one. Could you either have someone send me an electronic file or fax me a form at 459-0154. Just to clarify, the 14 day timeframe to file an appeal is calender days not working days. Therefore the deadline to file the appeal is on or before August 24th (if you count the day the letter was issued). Thanks Cathie » > "Grant Beck" <grantb@ci.yelm.wa.us> 8/9/2004 4:23:50 PM »> Cathie - I am not sure if you are still working on this project, but attached is a letter denying the Griffin BLA of the Kay Dotson parcels on Middle Road. If you have any questions or want to chat, give me a call. Grant Grant Beck, Director City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 360.458.8408 360.458.3144 (FAX) grantb@ci.yelm.wa.us Grant Beck From: Cathie Carlson [ccarlson@parametrix.com] Sent: Tuesday, August 17, 2004 2:56 PM To: 'gbeck@ywave.com' Subject: Hearing Examiner Vacation I've been meaning to ask you, but keep forgetting. I heard that your HE is on vacation sometime in Sept? or early Oct? Even if we got the appeal submitted before the 24th, I can't imagine that there would be enough time to get a hearing scheduled (and surely not a decision) before his vacation so what can we expect for an approximate hearing time/date (assuming that he really is going on vacation)? Thanks Cathie 3 '~~o~ T~p~ City of Yelm 4 Commtinity Development Department 105 Yelm Avenue West P.O. Box 479 Y L Yelm, WA 98597 WpSNINGTON July 9, 2004 Scott Griffin Caddis Construction P.O. Box 73669 Puyallup, WA 98373 Re: Boundary Line Adjustment Application for Kathryn Dotson, Trustee Dear Mr. Caddis: The City has received your Boundary Line Adjustment for the Kathryn Dotson parcels, and is ready to proceed with the review. I would like to bring to your attention, that although the Boundary Line Adjustment may be approved, it does not prevent the new parcels from review of the future residential subdivision that has been discussed. Section 197-11-060(5) states that the Lead agency shall determine the appropriate scope and level of detail of environmental review to coincide with decision-making processes. Section 197-11-060(5)(d)(ii) states that a phased review is not appropriate when it would divide a larger system into exempted fragments. In other words, if the proposal consists of a series of actions that are individually exempt, but together may have a significant impact, the proposal is not exempt. In this project review, the boundary line adjustment is an exempt action, however, the resulting development of all the parcels must be reviewed for cumulative impacts. In regards to that review, the new smaller parcel would still be included in the environmental review of the subdivision process and the traffic impact analysis. Frontage improvements and driveway accesses will be considered for all parcels, whether the boundary line adjustment is completed or not. ~:tso~ .is~sess ~.~so~ .rsa-31 •~•! FAX ,r,mr. c i. yP L m. rr u. u y If you have any questions, please call me at (360) 458-8496 Sincerely, Tami Merriman Assistant Planner cc: SPR Committee Kathryn Dotson Parametrix July 9 2004 Page 2 of 2 Boundary Line Adjustment # LEGAL DESCRIPTIONS OF PARCELS BOUNDARY LINE ADJUSTMENT PARCEL "A" OF BOUNDARY LINE ADJUSTMENT # AS FOLLOWS: DESCRIBED THAT PORTION OF LOT 6, BLOCK 36, PLAT OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 9 OF PLATS, PAGE 43, RECORDS OF THURSTON COUNTY WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF LOT 8 IN BLOCK 36 OF SAID MCKENNA IRRIGATED TRACTS; THENCE ALONG THE SOUTHWESTERLY RIGHT OF WAY OF MIDDLE ROAD, THE FOLLOWING COURSES; SOUTH 45°42'20" EAST A DISTANCE OF 86.64 FEET; SOUTH 45°08'40" EAST A DISTANCE OF 212.18 FEET; SOUTH 45°33'40" EAST A DISTANCE OF 410.67 FEET; SOUTH 45°08'49" EAST A DISTANCE OF 67.59 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE CONTINUING ALONG SAID RIGHT OF WAY, SOUTH 45°08'49" EAST A DISTANCE OF 56.99 FEET; THENCE SOUTH 47°02'25" EAST A DISTANCE OF 105.68 FEET; THENCE LEAVING SAID RIGHT OF WAY SOUTH 42°24'58" WEST A DISTANCE OF 241.93 FEET; THENCE NORTH 46°20'30" WEST A DISTANCE OF 162.65 FEET; THENCE NORTH 42°24'58" EAST A DISTANCE OF 241.51 FEET TO THE TRUE POINT OF BEGINNING. TOGETHER WITH AND SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS, AND COVENANTS OF RECORD. SITUATE IN SECTION 19, TOWNSHIP 17 NORTH, RANGE 2 EAST, W.M., CITY OF YELM, THURSTON COUNTY, WASHINGTON. PARCEL "B" OF BOUNDARY LINE ADJUSTMENT # AS FOLLOWS: DESCRIBED LOT 6, BLOCK 36, PLAT OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 9 OF PLATS, PAGE 43, RECORDS OF THURSTON COUNTY WASHINGTON, EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF LOT 8 IN BLOCK 36 OF SAID MCKENNA IRRIGATED TRACTS; THENCE ALONG THE SOUTHWESTERLY RIGHT OF WAY OF MIDDLE ROAD, THE FOLLOWING COURSES; SOUTH 45°42'20" EAST A DISTANCE OF 86.64 FEET; SOUTH 45°08'40" EAST A DISTANCE OF 212.18 FEET; SOUTH 45°33'40" EAST A DISTANCE OF 410.67 FEET; SOUTH 45°08'49" EAST A DISTANCE OF 67.59 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE CONTINUING ALONG SAID RIGHT OF WAY, SOUTH 45°08'49" EAST A DISTANCE OF 56.99 FEET; THENCE SOUTH 47°02'25" EAST A DISTANCE OF 105.68 FEET; THENCE LEAVING SAID RIGHT OF WAY SOUTH 42°24'58" WEST A DISTANCE OF 241.93 FEET; THENCE NORTH 46°20'30" WEST A DISTANCE OF 162.65 FEET; THENCE NORTH 42°24'58" EAST A DISTANCE OF 241.51 FEET TO THE TRUE POINT OF BEGINNING. TOGETHER WITH THAT PART OF LOT 7 IN BLOCK 36 OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT RECORDED IN VOLUME 9 OF PLATS, PAGE 43, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 7; THENCE NORTHWESTERLY ALONG THE NORTHERLY LINE OF SAID LOT 157 FEET; THENCE SOUTH 42°40'30" WEST 272.3 FEET; THENCE NORTHWESTERLY PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 218 FEET TO A POINT 10 FEET FROM THE WESTERLY LINE OF SAID LOT; THENCE SOUTHWESTERLY PARALLEL WITH AND 10 FEET DISTANT FROM SAID WESTERLY LINE OF LOT TO THE SOUTHERLY LINE OF SAID LOT; THENCE SOUTHEASTERLY ALONG SAID SOUTHERLY LINE TO THE SOUTHEAST CORNER OF SAID LOT; THENCE NORTHEASTERLY ALONG SAID LOT TO THE POINT OF BEGINNING; EXCEPTING THEREFROM THAT PORTION DEED TO THE CITY OF YELM RECORDED MAY 28, 2003 UNDER AUDITOR'S FILE NO. 3535669. TOGETHER WITH AND SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS, AND COVENANTS OF RECORD. SITUATE IN SECTION 19, TOWNSHIP 17 NORTH, RANGE 2 EAST, W.M., CITY OF YELM, THURSTON COUNTY, WASHINGTON 1 OF 3 Boundary Line Adjustment # LEGAL DESCRIPTIONS OF PARCELS BOUNDARY LINE ADJUSTMENT I HEREBY CERTIFY THAT THE ABOVE LEGAL DESCRIPTIONS ARE ACCURATE AND IN COMPLIANCE WITH THE SUBDIVISION CODE. SAID DESCRIPTIONS ARE BASED UPON A SURVEY. SUBMITTED THIS ~~ DAY OF , 2004. ~~ KATH EEN D. CASSOU, PLS #27133 PARR ETRIX 8830 TALLON LANE, SUITE B LACEY, WA 98516 (360) 459-3609 20F3 Boundary Line Adjustment LEGAL DESCRIPTIONS OF PARCELS BOUNDARY LINE ADJUSTMENT ORIGINAL LEGAL DESCRIPTIONS OF RECORD: (PER CHICAGO TITLE INSURANCE COMPANY A.L.T.A. COMMITMENT ORDER NO. 2028518) (TAX PARCEL No. 64303600600) LOT 6 IN BLOCK 36 OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 9 OF PLATS, PAGE 43. (TAX PARCEL No.64303600700) THAT PART OF LOT 7 IN BLOCK 36 OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT RECORDED IN VOLUME 9 OF PLATS, PAGE 43, DESCRIBED AS FOLLOOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOTS 7; THENCE NORTHWESTERLY ALONG THE NORTHERLY LINEOF SAID LOT 157 FEET; THENCE SOUTH 42°40'30" WEST 272.3 FEET; THENCE NORTHWESTERLY PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 218 FEET TO A POINT 10 FEET FROM THE WESTERLY LINE OF SAID LOT; THENCE SOUTHWESTERLY PARALLEL WITH AND 10 FEET DISTANT FROM SAID WESTERLY LINE OF LOT TO THE SOUTHERLY LINE OF SAID LOT; THENCE SOUTHEASTERLY ALONG SAID SOUTHERLY LINE TO THE SOUTHEAST CORNER OF SAID LOT; THENCE NORTHEASTERLY ALONG SIAD LOT TO THE POINT OF BEGINNING; EXCEPTING THEREFROM THAT PORTION DEED TO THE CITY OF YELM RECORDED MAY 28, 2003 UNDER AUDITOR'S FILE NO. 3535669. ALL IN SECTION 19, TOWNSHIP 17 NORTH, RANGE 2 EAST, W.M., CITY OF YELM, THURSTON COUNTY, WASHINGTON. 30F3 Grant Beck From: Cathie Carlson [ccarlson@parametrix.comj Sent: Tuesday, June 15, 2004 4:59 PM To: 'gbeck@ywave.com' Subject: Dotson Driveway Hi Grant, Just checking in to get your response to the figure showing the relocated driveway on Middle Road for the Dotson piece. Thoughts? Thanks Cathie Y Grant Beck From: Cathie Carlson [ccarlson@parametrix.com] Sent: Thursday, May 06, 2004 11:23 AM To: 'gbeck@ywave.com'; 'tmerriman@ywave.com' Subject: Fwd: Flood Plain ad e FLOOD PLAIN.pdf Grant, I spoke to Tami about the Middle Road Plat this morning. Once the surveyor's located the 333' flood plain elevation, we found that the flood plain location we discussed at the pre-sub was quiet a bit off. The attached PDF shows the lot layout we did after the presub but now with the "real" floodplain - as you can see we have a number of lots, at varying levels, that are in the flood plain. We'd like to fill the flood plain on all those lots plus another 1-~ - 1 to ensure compliance with Section 15.32.240 (a). I know under FEMA rules we can do fill in the flood plain and I've reviewed YMC Chapter 15.32 to look for any additional regs. All I could find is Section 15.32.110 that requires a development permit for all development including fill and Section 15.32.210 Subdivision proposals that requires the proposal to be consistent with the need to minimize flood damage. Which indicates to me that fill could be allowed. On the attached PDF, we also included a cross section of how the fill/excavation could work to ensure that what ever flood plain storage was lost due to fill that it was replaced with the same amount of excavation/storage. So my question's are - is this a viable approach, to fill those lots and excavate to provide for storage lost due to fill, and if so what information do you need from us? Thanks - give me a call if you have any questions or would like any additional info. Cathie » > Leland Leahy 5/6/2004 10:58:14 AM » > Leland Leahy Parametrix, Inc. 8830 Tallon Lane Lacey, WA 98516 (360) 459-3609 - Olympic Office 1 ~ ~ x ~~~ ~ 0 ~ c z 1 ~ 11 ~I II I I ~I ~ ~ n ~ D I lm~' y A w 0 m O 0 0 N O Z c.~ W W 0 w \ -~~ \o 1 1 m~ D ~\ r r 0 z m I ~ X L_ I ~ w ~ I ~- I I L _ r I ~ I L ~I I L - ~ ~- I ~ ~ I ~ L _ 4. ~-~ I I - ~ ~ I ~ ~ ~ ~ ~ I ~ ~ ~ ~ I ~ ~ I ~ ~ r ~ ~ ~ I ~ J \ I ~ ~ ~ ~ ~ ~~_ \ r-- I ~ L-~~ ~ I Z ~ ~ ~~~ 1 I ~ ~. ~_~. o L`~' J ~_~- ~ . 710678MAJ Supreme Court of the State of Washington Opinion Information Sheet Docket Number: Title of Case: File Date: Oral Argument Date: 71067-8 Chelan County, et al. v. Michael Nykreim and Lori Nykreim, et al. 07/25/2002 01/17/2002 SOURCE OF APPEAL ---------------- Appeal from Superior Court, Chelan County; 98-2-01064-3 Honorable John E. Bridges, Judge. JUSTICES Authored by Charles Z. Smith Concurring: Richard B. Sanders Faith E Ireland Bobbe J. Bridge Tom Chambers Dissenting: Gerry L. Alexander Susan J. Owens Charles W. Johnson Barbara A. Madsen COUNSEL OF RECORD ----------------- Counsel for Petitioner(s) John M. Groen Groen Stephens & Klinge Llp 2101 112th Ave NE Suite 110 Bellevue, WA 98004-2944 Counsel for Respondent(s) Susan E. Hinkle Deputy Prosecutor Chelan Co Pros. Office P.O. Box 2596 Wenatchee, WA 98807 Mark R. Johnsen Karr Tuttle Campbell 1201 3rd Ave. Suite 2900 Seattle, WA 98101-3028 Counsel for Respondent Intervenors) James C. Hanken Law Offices of James C Hanken 999 3rd Ave Ste 3210 Ste 3500 Seattle, WA 98104 Amicus Curiae on behalf of Building Industry association of Wa Kristopher I. Tefft Building Industry Association of Wa 111 W 21st Ave P.O. Box 1909 Olympia, WA 98507 Amicus Curiae on behalf of Pacific Legal Foundation Benjamin C. Waggoner Pacific Legal Foundation 10940 NE 33rd Pl Ste 109 Suite 109 Bellevue, WA 98004 Robin L. Rivett Pacific Legal Foundation 10360 Old Placerville Rd Suite 100 Sacramento, CA 95827 CHELAN COUNTY, a municipal corporation; ERIC GEBELEIN and REBECCA WAUD, husband and wife, and the marital community composed thereof; JOSEPH J. STRAUS and MARY SHIMA, husband and wife, and the marital community composed thereof; GARY KINCAID and JULIENNE KINCAID, husband and wife, and the marital community composed thereof; and DAVID BALE and MELISSA BALE, husband and wife, and the marital community composed thereof, Respondents, CLINE SWEET and K and wife, and the composed thereof; husband and wife, composed thereof; man, v. IRSTEN SWEET, husband marital community MEL SIMPSON and KIM SIMPSON, and the marital community and JOHN PETERSON, a single Plaintiffs, MICHAEL NYKREIM and LAURIE NYKREIM, husband and wife, and the marital community composed thereof; B. RICK WHITNEY ) and VICKIE WHITNEY, husband and wife, and ) the marital community composed thereof; and WILLIAM KELLY and JANE KELLY, husband ) and wife, and the marital community composed thereof, Petitioners. Number 71067-8 En Banc SMITH, J.-Petitioners (Michael K. Nykreim and Laurie A. Nykreim, husband and wife; B. Rick Whitney and Vickie L. Whitney, husband and wife; and William J. Kelly and Jane E. Kelly, husband and wife) seek discretionary review of a decision of the Court of Appeals, Division Three, which affirmed summary judgment by the Chelan County Superior Court in favor of Respondents (Chelan County; Eric Gebelein and Rebecca Waud, husband and wife; Joseph J. Straus and Mary Shima, husband and wife; Gary Kincaid and Julienne Kincaid, husband and wife; and David Bale and Melissa Bale, husband and wife) declaring void a bourin .e;,, l ~inc; t~' just 1~ r_~_. previously granted Petitioners by Chelan County and dismissing Petitioners' counterclaims for damages. The Court of Appeals held that the Respondents' challenge of the '~ l~r,d :rl :1 rig <r ~ ir~:~t n~°.r:t: decision was a ministerial act which was not time-barred under the Land Use Petition Act (LUPA), chapter 36.70C RCW, because LUPA applies only to quasi-judicial land use decisions. We granted review. We reverse the Court of Appeals. QUESTIONS PRESENTED The questions presented in this case are (1) whether LUPA applies only to quasi-judicial land use decisions and not to ministerial decisions, and if not, whether Respondents' challenge to the V-o:;a~.d t~,- ! one. <: 7L t.t ~ ... decision by the Chelan County Planning Director is time-barred because it was made more than one year after the 21 day deadline for filing petitions for judicial review of land use decisions under LUPA; and (2) whether Petitioners are entitled to damages under RCW 64.40.020 because Respondent Chelan County either knew or should have known the 1~ ~ ur~;~~r~y 1 ~n~.>.. ~ ~ i u> r~~~rit. was in violation of Chelan County ordinances. STATEMENT OF FACTS On July 1, 1997, Petitioners acquired, as tenants in common, a large parcel of land in Chelan County from James S. Kemptonl under a statutory warranty deed describing the property as the 'Northwest Quarter{2} of the Southeast Quarter of Section 27, Township 24 North, Range 17 E.W.M., Chelan County, Washington.' One tax parcel number, 24 17 27 000 050, was assigned to the property.3 The property, consisting of approximately 40 acres, is traversed in the upper northwest portion by Icicle Cascade Orchards County Road and Icicle Creek.4 On August 11, 1997, Petitioners filed an application for a ~;:>.~n~A~arry~ _i_-.t a;~ju~'_me:nt (BLA) with the Chelan County Planning Department and signed an acknowledgment with a statement of consent and waiver of claims agreeing to hold Chelan County harmless in any cause of action arising out of the BLA or recordation and consenting to the BLA proposed in the application.5 In their BLA application, Petitioners attached legal descriptions indicating the property consisted of three existing parcels, referring to them as 'Old Parcels A, B, and C.' 6 Old Parcel 'A' was described as 'That portion of the NW" of the SE" of Section 27, T24N, R17E W.M. Chelan County, Washington, lying Southerly and Southeasterly of the centerline of Icicle Creek.' Old Parcel 'B' was described as 'That portion of the NW" of the SE" of Section 27, T24N, R17E W.M. Chelan County, Washington, lying Southerly of the centerline of Icicle Creek County Road, also known as Cascade Orchard {sic} County Road and lying Northerly of the centerline of Icicle Creek.' Old Parcel 'C' was described as 'That portion of the NW" of the SE" of Section 27, T24N, R17E W.M. Chelan County, Washington, lying Northerly of the centerline of Icicle Creek County Road, also shown as Cascade Orchards County Road.' In their pleading Petitioners answer that they 'own property in the northwest quarter of the northeast quarter of Sec. 27 T24N, R17 E.W.M., not the northeast quarter of the southeast quarter.' This is consistent with the legal descriptions they provided with their application and with the legal description in the conveyance from James S. Kempton to Petitioners by statutory warranty deed dated July 1, 1997. This case is concerned only with this parcel. Aside from the reference in Petitioners' BLA application, there was no indication of record that the property had been previously divided as they asserted,? although the application included rough drawings depicting the 'Old Parcels' and the proposed 'New Parcels A, B, and C' with legal descriptions.8 Petitioners sought to revise the boundary lines to form three rectangular lots with parallel boundaries.9 New Parcel 'A' was described as 'That portion of the NW" of the SE" of Section 27, T24N, R17E W.M. Chelan County, Washington, described as follows: Beginning at the NW corner of the said subdivision, thence along the North line of the said subdivision North 88 53'38' East 609.84 feet, thence leaving the said North Line South 00 13'27' West 1330.66 feet to the South line of the said subdivision, thence South 89 25'05' West 605.93 feet to the SW corner of the said subdivision, thence North 00 03'35' East 1325.03 feet to the NW corner of the said subdivision and the end of this description.' New Parcel 'B' was described as 'That portion of the NW" of the SE" of Section 27, T24N, R17E W.M. Chelan County, Washington, described as follows: Beginning at the NW corner of the said subdivision, thence along the North line North 88 53'38' East 609.84 feet to the point of the beginning of this description, thence South 00 13'17' West 1330.66 feet to the South line of the said subdivision, thence along the said South line North 89 25'05' West 350.02 feet, thence North 00 13'29' East 1333.86 feet to the North line of the said subdivision, thence South 88 53'38' West 350.09 feet to the point of beginning and the end of this description.' New Parcel 'C' was described as 'That portion of the NW" of the SE" of Section 27, T24N, R17E W.M. Chelan County, Washington, described as follows: Beginning at the NW corner of the said subdivision, thence along the North line of the said Subdivision North 88 53'38' East 959.93 feet to the point of beginning of this description, thence South 00 13'29' West 1333.86 feet to the South line of the sad subdivision, thence North 89 25'05' East 350.04 feet to the NE corner of said subdivision, thence South 88 53'38' West 350.09 feet to the point of beginning and the end of this description.' On October 9, 1997, John W. Harrington, Jr., Administrator of the Chelan County Planning Department, approved the BLA application by signing a certificate of exemption and attaching a copy of the legal descriptions of new Parcels 'A,' 'B' and 'C' indicated by Petitioners in their application.l0 There was no public notice or hearing.ll Mr. Harrington relied on Section 200 of the Chelan County Subdivision Resolution in approving Petitioners' BLA application, concluding that the original parcel was divided into three existing legal lots because the location of the creek and road created separate legal lots.l2 Approval of a BLA is based upon a requirement that the lot line adjustment not create new lots.l3 In his declaration Mr. Harrington stated that the BLA application requesting three 'new' parcels did not create additional lots or building sites.l4 As a condition for approval of the BLA application, Mr. Harrington required Petitioners to execute and record notices to title for each lotl5 to clarify that three lots resulted from the BLA and that any future attempt to apply section 200 would require approval through the subdivision process.l6 The notices to title resulting from the BLA, prepared by Chelan County, were signed by Petitioners and filed on October 9, 1997.17 In May 1998 Petitioners applied for conditional use permits (CUPS) to construct 'three (3) single-family dwellings on a 33.5-acre lot outside an existing subdivision and within the Icicle Valley Design Review Overlay District.'18 The CUPS were set for hearing before the Zoning Adjuster on October 2, 1998.19 At an Icicle Valley Design Review Committee hearing on July 20, 1998 several neighbors of Petitioners, now Respondents who intervened in this case,20 raised concerns about the validity of the BLA and their belief that Petitioners intended to use the proposed structures for transient overnight rentals.21 Previously on August 4, 1998 Joseph J. Straus, a neighbor and an attorney who is now an Intervenor in this case, addressed a letter to 'Mr. James {sic} Harrington, Senior Staff Planner' asserting that the BLA was illegal and violated applicable Chelan County Code, Subdivision Code Section 302(8), RCW 58.17.040(2), boundary lot line adjustment criteria22 provided in a Chelan County BLA application and case law.23 Copies of the letter were sent to several Chelan County officials and the Icicle Valley Design Review Committee.24 The Chelan County Planning Department reviewed the transaction and on August 25, 1998 withdrew the certificate of exemption issued by the Planning Director on October 9, 1997, thus effectively revoking the BLA.25 A Planning Department staff report dated October 2, 1998 addressed to the Chelan County Zoning Adjustor concluded that the CUP proposal was not consistent with the Forest Resource Zoning District, the Icicle Design Review Overlay District, the Leavenworth Area Comprehensive Plan, and was 'detrimental and injurious to the public health, safety and welfare and to the area adjoining the proposed project.'26 On October 6, 1998 the Zoning Adjustor declined to assume jurisdiction until the CUP applications were reviewed by the Icicle Valley Design Review Committee pursuant to Section 11.39B.040 of the Chelan County Comprehensive Zoning Resolution.27 On December 11, 1998 Chelan County filed in the Chelan County Superior Court this complaint 'for declaratory judgment on the question of the propriety of Chelan County BLA 97-154 and the associated Notices to Title and Acknowledgments and Agreements and Statements of Consent and Waivers of Claims, given the applicable regulations of Chelan County and Washington State law.'28 A small group of neighbors, including Mr. Straus, filed a complaint in intervention on May 17, 1999.29 In response, Petitioners asserted affirmative defenses and counterclaims alleging that damages should be awarded them under chapter 64.40 RCW if the court found in favor of Chelan County because the County's action approving the BLA was arbitrary, capricious, unlawful and exceeded lawful authority which was known or should have been known by its agents.30 Under the Uniform Declaratory Judgments Act, chapter 7.24 RCW, 'Courts of record shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. An action or proceeding shall not be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.' RCW 7.24.010. Under RCW 7.24.020, '{a} person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.' A municipal corporation 'of any character whatsoever' is included in the definition of 'person' under RCW 7.24.130. On September 30, 1999 Petitioners moved the court for partial summary judgment to dismiss all claims brought by Respondents on June 16, 1999 and for final judgment.31 Respondents on October 4, 1999 similarly moved for summary judgment. On November 5, 1999 the Chelan County Superior Court, the Honorable John E. Bridges, granted Chelan County's motions for summary judgment, ruling that the County properly exercised its authority in revoking an erroneously approved BLA, and dismissed Petitioners' counterclaims for damages.32 On November 30, 1999 Petitioners filed an appeal to the Court of Appeals, Division Three, of the order granting Respondents' summary judgment motions.33 On May 25, 2000, the court granted interested parties leave to file briefs amicus curiae.34 On March 22, 2001, the Court of Appeals, the Honorable Frank L. Kurtz writing, affirmed the summary judgments of the Chelan County Superior Court, concluding that LUPA did not bar Respondents' action challenging the validity of the County's own BLA decision.35 The Court determined that although a BLA seems to fall within the definition of a 'land use decision' under LUPA, the Act applies only to quasi-judicial decisions and not to ministerial decisions such as the BLA in this case.36 The Court reasoned that because LUPA replaces the writ of certiorari for appeal of land use decisions and such writs are limited to review of only quasi-judicial decisions, LUPA is similarly limited and does not apply to BLA decisions.37 Petitioners sought review by this court. It was granted on October 2, 2001.38 DISCUSSION The central issue in this appeal is whether the Court of Appeals, Division Three, was correct in holding that the LUPA applies only to quasi- judicial land use decisions and not to ministerial decisions such as a ~,,,_,rt ~.rv . i :<-~ :7 x ; ~ ~st-~~ ~::~ ~t (BLA) decision by Chelan County. LUPA pertains to judicial review of all land use decisions with some exceptions noted in the statute.39 Prior to enactment of LUPA, an aggrieved person could challenge a county's land use decision through a writ of certiorari.40 In enacting LUPA in 1995, the Legislature replaced the writ of certiorari for appeal of land use decisions as stated in RCW 36.700.03041 and determined that LUPA 'shall be the exclusive means of judicial review of land use decisions,' with certain specific exceptions.42 LUPA's stated purpose 'is to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.'43 'A land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court The petition is timely filed if it is filed within twenty-one days of the issuance of the land use decision.'44 According to Petitioners, judicial review of the Chelan County BLA decision should have been barred because the County did not timely file a petition for review within 21 days under LUPA.45 Petitioners point out that the County's challenge on December 11, 1999 seeking declaratory relief from the October 9, 1997 BLA approval was filed nearly 14 months beyond the 21 day deadline.46 Respondents, to the contrary, maintain that LUPA does not apply in this case. They assert that LUPA is designed to allow appeals of only quasi-judicial decisions because those decisions provide interested parties with notice of the decisions and an opportunity to conform with LUPA's 21 day appeal period;47 and since no public notice or hearing is required for approval of a BLA under Chelan County ordinances, then the BLA decision was a ministerial act not subject to LUPA.48 Agreeing with Respondents, the Court of Appeals reasoned that although LUPA does not explicitly limit its application to quasi-judicial decisions, its language implicitly supports a conclusion that ministerial decisions are outside its scope.49 The court acknowledged that RCW 36.700.030(1) states LUPA 'replaces the writ of certiorari for appeal of land use decisions,' and noted that the writ of certiorari is granted 'when an inferior tribunal, board or officer, exercising judicial functions, has exceeded' its jurisdiction 'or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law.' 50 The court therefore reasoned that, because writs of certiorari apply only to quasi-judicial decisions, LUPA is similarly limited to quasi-judicial decisions.51 Petitioners contend that even if LUPA does not apply to ministerial land use decisions, Mr. Harrington's approval of the BLA application was not a purely ministerial act because he exercised discretion in interpreting and applying Section 200 and determining that the facts in this case met the substantive criteria for a BLA approval. 52 Several Washington Court of Appeals cases cited by Petitioners, R/L Associates, Inc. v. Klockars and Cox v. City of Lynnwood, characterized BLAB as quasi- judicial acts.53 The Court of Appeals, however, distinguished those cases on the procedural posture of each.54 In R/L Associates, R/L applied to the City of Seattle for a boundary lot adjustment proposing to shift a lot line running horizontally to bisect its parcel vertically.55 The Director of Land Use and Construction rejected R/L's application.56 R/L appealed the Director's decision to the City Hearing Examiner who affirmed the decision.57 The Court of Appeals, Division One, concluded in this case that the BLA decision in R/L was quasi-judicial, as was the decision in Cox.58 In that case the Court of Appeals, Division One, determined that the City of Lynnwood's denial of Mr. Cox's BLA application was a quasi-judicial act and not a ministerial act because Lynnwood looked beyond the provisions of its own code, thus constituting a policy decision and not a ministerial act.59 The Court of Appeals determination in this case that LUPA is the exclusive means of review of only quasi-judicial decisions relies upon Washington case law which predated LUPA (enacted in 1995) and its own post- LUPA decision in Larsen v. Town of Colton decided in 1999.60 That determination is questionable. Before LUPA, a line of Washington cases held that an improperly approved building permit is void and may be rescinded by the agency which erroneously issued it.61 Those cases were based upon holdings that a building permit issued in violation of law or under mistake of fact conferred no vested right in the applicant.62 In the 1923 case of Nolan v. Blackwell, a building permit for a wood structure was erroneously issued in a zone that allowed only brick buildings.63 The applicant began construction and continued even after the city inspector informed him the permit had expired and was canceled. He then sought to enjoin the city and its officers from interfering with his occupancy and use of the completed building.64 This court held that an improperly issued building permit conferred no rights and ordered the building demolished.65 Similarly in Roanoke Associates this court held that the defendant had no vested right to continue construction even though the building permit was issued two years previously.66 Roanoke Associates reaffirmed the rule that no rights vest where the application submitted or the permit issued does not conform to zoning ordinances or building codes.67 Although not binding on this court, some Court of Appeals cases have discussed the appropriate remedy an aggrieved property owner should seek.68 Radach v. Gunderson and City of Mercer Island v. Steinmann concluded that an injunctive remedy for a zoning violation is proper when a governmental agency issues an invalid building permit.69 Those cases remained consistent with precedent in holding that a governmental agency is not precluded from enforcing zoning ordinances even if its officers improperly issued building permits contrary to the ordinances.70 Analogizing those cases to this case, the Court of Appeals concluded that this case is similar to an action for injunctive relief seeking to prevent a zoning violation.71 Petitioners argue that cases decided prior to LUPA are no longer applicable to land use decisions.72 In response, the Court of Appeals relied upon Larsen v. Town of Colton, its own decision the Respondents claim resolved the conflict between LUPA and cases predating it.73 In Larsen, the Tiltons owned two adjacent residential lots: on one lot was a single-family home and an attached garage, and on the other lot they proposed to build another garage in which Mr. Tilton could pursue his hobby of restoring old vehicles.74 A building permit was issued on February 5, 1997. The Tiltons' neighbor, Mr. Larsen, became aware of the building permit on May 6, 1997 and filed a complaint for injunctive relief.75 On reconsideration and later on appeal, the Tiltons asserted that Mr. Larsen's only remedy for relief was under LUPA and his failure to file for review within the 21 day appeal period invalidated the superior court's decision because it did not have subject matter jurisdiction.76 Although acknowledging that 'LUPA is the exclusive means of obtaining judicial review of land use decisions,' the Court of Appeals in Larsen also noted that LUPA requires an aggrieved person to file a petition for review within the 21 day limitation period.77 The court predicated its decision on the standing provision of LUPA, determining that because the building inspector was not required to consider the Larsens' interests, the Larsens were not an 'aggrieved person' under LUPA and thus not required to comply with its provisions.78 After deciding LUPA did not apply, the court in Larson focused on the timeliness of the Larsens' declaratory action.79 Relying on Brutsche v. City of Kent,80 the court held that a reasonable time for initiating a declaratory action is "determined by analogy to the time allowed for appeal of a similar decision as prescribed by statue, rule of court, or other provision. " 81 Such a bright line rule, the court noted, "will serve the public interest by giving decision makers, land owners, and citizens a clear deadline by which a land use decision, if not appealed, is final. " 82 But addressing the due process concern raised by the superior court,83 the court characterized land use decisions as either quasi-judicial or ministerial.84 It suggested that a short limitation period has merit in appeal of a quasi-judicial decision, as opposed to a ministerial decision in which an aggrieved person may not have notice or actual knowledge of the decision before the appeal period deadline.85 In allowing the Larsens' complaint for injunctive relief to proceed, the court reaffirmed the rule announced in pre-LUPA decisions. Respondents contend Larsen and the preceding cases stand as an exception to LUPA when a governmental agency erroneously issuing a land use decision has the legal right to revoke the act at any time.86 In accord with this argument, the Court of Appeals extended the Larsen theory of land use decisions to LUPA. In acknowledging due process problems when applying Brutsche's rule to ministerial decisions, the court in Larsen concluded actual or constructive knowledge should be the triggering event for a reasonable time period.87 It did not, however, directly address this concern in a LUPA context because it concluded LUPA was not applicable. Even though concluding the land use decision in that case was ministerial, the court in Larsen did not negate the appeal limitation rule, as did the Court of Appeals in this case in concluding that the ministerial distinction governed application of LUPA.88 The court in Larsen sought finality, ruling that commencement of an action contesting a building permit one week after actual or constructive knowledge was within a reasonable time, as opposed to Brutsche, in which initiation of an action was considered untimely 73 days after a zoning ordinance was passed. Larsen, in any event, does not advance Respondents' arguments for two reasons. First, the due process concern in Larsen focused on the ability of an aggrieved party, who did not have notice or knowledge of a ministerial land use decision, to challenge within a reasonable time. In this case, Chelan County, because of approval of the BLA on October 9, 1997 by its Planning Director, had knowledge of its own decision for 14 months prior to filing this declaratory judgment action on December 11, 1999.89 Second, even if we were to consider Larsen as controlling authority, this case is timed-barred because appeal of the BLA decision was not brought within a 'reasonable time.' The Intervenors had knowledge of the BLA at least on August 4, 1998 when Intervenor Straus sent a letter to Chelan County officials challenging the propriety of the BLA. Applying that date for purpose of notice, neither Intervenors nor Chelan County brought this declaratory judgment action within a 'reasonable time from the date of approval of the BLA on October 9, 1997.' Respondents ask this court to adopt and extend the ministerial/quasi- judicial distinction in Larsen to this case, a distinction this court has not previously made in the LUPA context and does not now make. This case, however, is more analogous to Wenatchee Sportsmen Association v. Chelan County which addressed the issue whether 'a party's failure to timely appeal a county's approval of a site-specific rezone bar{s} it from challenging the validity of the rezone in a later {action}.'90 In 1996, Chelan County improperly rezoned property to allow residential subdivisions inconsistent with the County's interim urban growth area regulation (IUGA).91 In 1998, the County later approved a plat application for residential development.92 Wenatchee Sportsmen Association filed a LUPA petition challenging approval of the 1998 plat application, arguing that the residential development outside of the IUGA violated the Growth Management Act, chapter 36.70A RCW. This court concluded that, although the residential project constituted impermissible urban growth outside of the IUGA, a challenge of the rezone should have been raised in a timely LUPA action within 21 days of the 1996 action and not in the later challenge of the 1998 plat approval.93 The court stated: Under LUPA '{a} land use petition is barred, and the court may not grant review unless the petition is timely filed .' The petition is timely filed if it is filed within 21 days of the issuance of the land use decision Because RCW 36.70C.040(2) prevents a court from reviewing a petition that is untimely, approval of the rezone became valid once the opportunity to challenge it passed. It was too late for {Wenatchee Sportsmen Association} to challenge approval of the rezone in a LUPA petition filed in 1998 If there is no challenge to the decision, the decision is valid, the statutory bar against untimely petitions must be given effect, and the issue of whether the zoning ordinance is compatible with IUGA is no longer reviewable.{94} (Emphasis added). Under Wenatchee Sportsmen Association, approval of the BLA in this case, despite its questionable legality, 'became valid once the opportunity to challenge it passed.'95 Under this court's rationale in Wenatchee Sportsmen, the superior court should have dismissed Respondents' declaratory relief action because it was time-barred under the 21 day appeal time limit of LUPA. Although the proceeding in Wenatchee Sportsmen is denominated a writ of certiorari, it is also referred to in the same section of the code as an 'appeal' and a definite time limit is provided. Compliance with such time limit is essential for the court to acquire jurisdiction.'96 Applicability of LUPA 'When statutory language is plain and unambiguous, the statute's meaning must be derived from the wording of the statute itself.'97 'If the language of a statute is clear on its face, courts must give effect to its plain meaning and should assume the Legislature means exactly what it says.'98 'In ascertaining the legislative intent in the enactment of a statute, the state of the law prior to its adoption must be given consideration. But where . a statute is plain and unambiguous, it must be construed in conformity to its obvious meaning without regard to the previous state of the common law.'99 This court is 'obliged to give the plain language of a statute its full effect, even when its results may seem unduly harsh.'100 The Court of Appeals agrees that a BLA 'modifies real property' within the definition of a 'land use decision,' but it relies on the ministerial/quasi-judicial distinction to negate application of LUPA.101 This distinction is not consistent with the intent and express language of LUPA. Review of Land Use Decisions A plain reading of the language of LUPA leads to a conclusion that it applies to both ministerial and quasi-judicial land use decisions. Under LUPA a land use decision is defined as: (1) a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on: (a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used {102} Prior to amendment of Chelan County's current Subdivision Resolution, 103 there were no clearly defined procedures for consideration and review of BLA decisions, although BLA applications were available. Charged with the duty to consider and approve or deny BLA applications, John W. Harrington, Jr., Planning Director, was the Chelan County officer with the highest authority to make a final determination on Petitioners' BLA application. During Mr. Harrington's tenure as Planning Director, he interpreted Section 200 of the Chelan County Subdivision Resolution to allow creation of separate parcels within a single parcel when the parcels are separated by a public road or a stream in excess of 20 cubic feet per second mean annual flow.104 He also concluded that because no new lots were created, the proposed BLA fit within the exemption from subdivision requirements under Section 302 of the Chelan County Subdivision Resolution.105 Respondents sought review, arguing that the Chelan County Planning Director, Mr. Harrington, misinterpreted Section 200 in approving Petitioners' BLA application. The Court of Appeals agreed, stating 'the language concerning parcels separated by a road or stream relates to the definition of land 'as a unit for determining subdivision,' and does not create 'lots' based on the location of a road or stream.'106 The court also observed that Old Parcel B and C did not meet minimum zoning area and dimension requirements. The Court concluded that any mechanism dividing property into separate parcels must comply with chapter 58.17 RCW relating to plats, subdivisions and dedications and that the interpretation of Section 200 by Mr. Harrington under which he created three new parcels did not meet the requirements of RCW 58.17.040(6).107 The Respondents' declaratory judgment action challenging the validity of the BLA and Mr. Harrington's interpretation of county ordinances is the kind of action contemplated for review under LUPA. RCW 36.70C.130(1)(b) grants relief if the 'land use decision is an erroneous interpretation of the law' or 'is a clearly erroneous application of the law to the facts.'108 This court has previously indicated that ministerial land use decisions are reviewed under LUPA. To determine whether a project permit included site-specific rezones, this court in Wenatchee Sportsmen relied on RCW 36.70B.020(4), which reads:109 (4) 'Project permit' or 'project permit application' means any land use or environmental permit or license required from a local government for a project action, including but not limited to building permits, subdivisions permits or approvals required by critical area ordinances, site-specific rezones . Building permits are subject to judicial review under LUPA. Historically, actions on building permits have been characterized by this court as ministerial determinations,110 which answers the question whether LUPA applies to ministerial land use decisions. In addition, LUPA's scope of review includes both quasi-judicial and ministerial decisions. RCW 36.70C.120 reads in part: (1) When the land use decision being reviewed was made by a quasi- judicial body or officer judicial review of factual issues . shall be confined to the record created by the quasi-judicial body or officer, except as provided in subsection (2) through (4) of this section. (3) For land use decisions other than those described in subsection (1) of this section, the record for judicial review may be supplemented by evidence of material facts that were not made part of the local jurisdiction's record. (Emphasis added.) Subsection (1) considers that some land use decisions will be determined by a quasi-judicial body or officer. However, subsection (3) indicates that LUPA contemplates that some land use decisions may be made by other bodies or officers. Exclusive Means of Judicial Review RCW 36.700.030(1) states that 'This chapter replaces the writ of certiorari for appeal of land use decisions and shall be the exclusive means of judicial review of land use decisions, except that this chapter does not apply to {enumerated exceptions not relevant to this case}.' (Emphasis added.) While LUPA states that it replaces the writ of certiorari, it does not limit judicial review to quasi-judicial land use decisions. In fact it expressly states that LUPA 'shall be the exclusive means of judicial review of land use decisions.' (Emphasis added.) The common law writ of certiorari has been codified in chapter 7.16 RCW as the writ of review, which generally grants review of only quasi- judicial determinations.lll The Court of Appeals reads LUPA to include that same limitation. However, LUPA makes no reference to chapter 7.16. RCW. Reading LUPA together with chapter 7.16 RCW to ascertain legislative intent is not consistent with rules of statutory interpretation.112 'In ascertaining the legislative intent in the enactment of a statute, the state of the law prior to its adoption must be given consideration. But where a statute is plain and unambiguous, it must be construed in conformity to its obvious meaning without regard to the previous state of the common law.'113 Construing the express language of RCW 36.700.030(1) ('{t}his chapter replaces the writ of certiorari for appeal of land use decisions and shall be the exclusive means of judicial review of land use decisions') (emphasis added) according to its obvious meaning without regard to previous common law or, in this case, chapter 7.16. RCW, all land use decisions are subject to LUPA unless specifically excluded under RCW 36.700.030.114 Finality Respondents rely on the ministerial/quasi-judicial distinction in arguing that a county cannot be prevented from revoking an improperly issued land use approval under res judicata or in the interest of administrative finality. They maintain that res judicata applies only in the quasi-judicial context and never applies to purely ministerial approvals.115 However, language used by this court referring specifically to land use decisions and a plain reading of LUPA leads to a contrary conclusion.116 Applying LUPA and following this court's decision in Wenatchee Sportsmen in this case is consistent with this court's stringent adherence to statutory time limits. This court has also recognized a strong public policy supporting administrative finality in land use decisions. In fact, this court has stated that '{i}f there were not finality {in land use decisions}, no owner of land would ever be safe in proceeding with development of his property To make an exception would completely defeat the purpose and policy of the law in making a definite time limit.'{117} Following this policy of finality of land use decisions, this court in Wenatchee Sportsmen Association held that an untimely petition under LUPA precluded collateral attack of the land use decision and rendered the improper approval valid.118 The express language in LUPA also supports finality in land use decisions. RCW 36.70C.040(2), (3) and (4) read: (2) A land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served . (3) The petition is timely if it is filed and served within twenty-one days of the issuance of the land use decision. (4) For the purposes of this section, the date on which a land use decision is issued is: (c) {T}he date the decision is entered into the public record. (Emphasis added.) The language in LUPA is clear: A petition for judicial review of a land use decision is barred unless timely filed within 21 days of issuance of the decision. This declaratory judgment action was filed by Chelan County on December 11, 1998, 14 months after Petitioners' BLA application was approved by the Chelan County Planning Director and recorded on October 9, 1997. Dismissal of this action is consistent with the express purpose of LUPA, which states: The purpose of this chapter is to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review. {119} To allow Respondents to challenge a land use decision beyond the statutory period of 21 days is inconsistent with the Legislature's declared purpose in enacting LUPA. Leaving land use decisions open to reconsideration long after the decisions are finalized places property owners in a precarious position and undermines the Legislature's intent to provide expedited appeal procedures in a consistent, predictable and timely manner.120 As amici curiae point out, if this court allows local government to rescind a previous land use approval without concern of finality, innocent property owners relying on a county's land use decision will be subject to change in policy whenever a new County Planning Director disagrees with a decision of the predecessor director.l21 They also assert that land use decisions from this court emphasize the need for property owners to rely on an agency's determinations with reasonable certainty.122 Standing Under LUPA standing to bring a land use petition is limited to the applicant or property owner to whom the land use decision is directed or a person aggrieved or adversely affected by the land use decision.l23 Respondents maintain that LUPA does not contemplate an appeal of a land use decision by the same governmental agency that issued it. They contend that LUPA applies when the property owner or an aggrieved person seeks judicial review of a quasi-judicial decision.124 Although Respondents correctly assert that property owners or aggrieved persons have standing to bring a land use appeal under LUPA, they apparently overlook the fact that LUPA defines person as 'an individual or governmental entity or agency.'125 A governmental agency such as Chelan County is thus a person under LUPA. The next issue is whether Chelan County is an aggrieved person. 'A person is aggrieved or adversely affected when all of the following conditions are present:'126 (a) The land use decision has prejudiced or is likely to prejudice that person; (b) That person's asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision; (c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and (d) The petitioner has exhausted his or her administrative remedies to the extent required by law. Applying the facts of this case to each condition, we reasonably conclude that Chelan County is an aggrieved or adversely affected person under LUPA. Observing that there is no case law interpreting the 'prejudice or is likely to prejudice' requirement in LUPA, 127 the Court of Appeals, Division One, compared the LUPA standing provision to the Administrative Procedure Act (APA) provision concerning standing.128 The prejudice requirement in the APA is a codification of the injury-in-fact requirement.l29 After review of Washington land use cases, the court derived some general principles which seem applicable in this case. 'In general, parties owning property adjacent to a proposed project and who allege that the project will injure their property have standing.'130 '{A} party need not show a particular level of injury in order to establish standing' to bring an action under LUPA.131 As neighbors of Respondents alleging injury to their property because of the BLA and proposed development, Intervenors in this case might satisfy the prejudice requirement. Contrary case law directly discussing standing under LUPA, however, suggests that Intervenors do not have standing. An interest sufficient to support standing to sue, however, must be more than simply the abstract interest of the general public in having others comply with the law.132 Intervenors maintain that their 'sole interest in this matter is to preserve the protections of the zoning in the district in which they are located.'133 Without alleging more specific injuries adversely affecting them or their property, Intervenors in this case have not established that they are prejudiced within the meaning of an 'aggrieved person' under LUPA.134 Generally, cases discussing 'injured parties' in the context of land use decisions refer to parties other than government entities. However, recently this court decided Skamania County v. Columbia River Gorge Commission, in which one government entity challenged the land use decision of another government entity.135 In Skamania, under the Columbia River Gorge National Scenic Area Act, the Columbia Gorge Commission was charged with ensuring compliance with the Act and related county ordinances for land uses within Scenic Areas.136 Skamania County's ordinances required applicants for land uses within the Scenic Area to submit their applications to the County's Department of Planning and Community Development. Upon approval by the Department director, the Commission then reviewed the decision to ensure compliance. Absent an appeal by the applicant or 'interested party' within the Act's statutory limit of 30 days from the date of issue, the decision becomes final.137 More than one year later, a group of concerned citizens brought to the attention of the Gorge Commission that the County's decision was in violation of the Act and County ordinances.138 As a result, the Commission challenged the land use decision. Since the Commission had the duty to ensure compliance with the Act, this court concluded it was 'undeniably an 'entity' that {was} 'adversely affected' by a final county land use decision in conflict with the Act.'139 The more definitive issue in this case is whether a governmental entity, Chelan County, can be prejudiced or injured by the erroneous interpretation and application of law of its own agent, its Director of Planning. Similar to the dispute in Skamania, the dispute in this case is over the interpretation of the Chelan County Code by the Chelan County Planning Director and his approval of the BLA and subsequent revocation by Chelan County. Chelan County disagreed with Mr. Harrington's interpretation and contingent BLA approval and challenged it by filing a declaratory action 14 months later, arguing that the improper BLA created three building sites instead of two building sites and was thus in violation of County Codes and zoning ordinances.140 Underlying this challenge is the County's interest in protecting the integrity of its County Codes and zoning ordinances. The inability to enforce its own laws clearly prejudices Chelan County. We thus conclude the land use decision by Mr. Harrington prejudiced or was likely to prejudice Chelan County. Comparing the standing provisions of the APA, RCW 34.05.530, with the standing provisions of LUPA, RCW 36.70C.060, the conditions for establishing standing are quite similar in language. They both involve the injury-in-fact requirement. A judgment in favor of Chelan County permitting it to rescind the BLA approval would set aside the action of its agent, Mr. Harrington, who authorized the BLA contrary to County Codes and zoning ordinances, thus satisfying the third condition. The second condition involves the 'zone of interest test.'141 '{A}lthough the zone of interest test serves as an additional filter limiting the group which can obtain judicial review of an agency decision, the 'test is not meant to be especially demanding. " 142 'The test focuses on whether the Legislature intended the agency to protect the party's interest when taking the action at issue.'143 As did the county in Skamania, Chelan County in this case has an interest in enforcing and protecting the integrity of its County Codes and zoning ordinances. In acting upon Petitioners' BLA application, the Chelan County Planning Department required that the Chelan County zoning codes be taken into account.l44 Having authority to review and approve BLA applications, Mr. Harrington as Director of Planning considered the interests of Chelan County when he granted the BLA request of Petitioners. To have standing to bring a petition under LUPA, a party must exhaust administrative remedies.145 The appeal must be from a final governmental decision.146 'The doctrine of exhaustion of administrative remedies is well established in Washington. In general, agency action cannot be challenged on review unless all rights of administrative appeal have been exhausted.'147 Under Chelan County procedures for approval of a BLA, Mr. Harrington, Planning Director, served as the decision maker with authority to make a final determination. His approval of Petitioners' BLA was not administratively appealable. Thus any administrative remedies available to Chelan County were 'exhausted' because there was nothing from which an administrative appeal could be taken. Damages We do not address Petitioners' claim for damages because our decision is in their favor. SUMMARY AND CONCLUSIONS The decision of the Chelan County Planning Director in approving the .~;t~z~ ~~,~y -;F, i ,.zs~ ~r~~r,~t application of Petitioners on October 9, 1997, with recordation on that date, constituted a land use decision by Chelan County. LUPA, chapter 36.70C RCW, enacted by the Legislature in 1995, pertains to judicial review of all land use decisions (with some exceptions not material here). The Act replaced the writ of certiorari for appeal of land use decisions and determined that LUPA 'shall be the exclusive means of judicial review of land use decisions.' Under LUPA a land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court 'within twenty- one days of the issuance of the land use decision.' Chelan County, after determining that its own planning director on October 9, 1997 had erroneously approved the boi_~.r:a~;ry l_r~.~ %3dj~_~~trn~-prat. requested by Petitioners based upon the County's later conclusion that the planning director had misinterpreted the County's ordinances, on August 25, 1998 withdrew the certificate of exemption (authorizing the beu~d3ry Li..ne ~:. aju.si:,rt~~:.: ) and denied the conditional use permits after Petitioners applied for conditional use permits in May 1998. Chelan County then on December 11, 1998 filed in the Chelan County Superior Court this declaratory judgment action challenging the propriety of the ;;c; it ~i~;r; l i.ns .x j .~ t n:~~_~: t:. granted by its own planning director on October 9, 1997. A ruling in favor of the County was appealed to the Court of Appeals, Division Three, which affirmed the decision. The Court of Appeals concluded that LUPA applies only to quasi- judicial decisions and not to ministerial decisions; that the decision by the planning director was ministerial and LUPA therefore does not apply to this action. The court thus concluded that this action by Chelan County, not being subject to LUPA, did not require appeal 'within twenty-one days.' The court approved the action for declaratory judgment which was not brought by Chelan County until 14 months after the October 9, 1997 decision of its planning director. The Court of Appeals was in error in its conclusion. LUPA does not distinguish between quasi-judicial decisions and ministerial decisions. LUPA does indeed apply to this land use decision, the Act being the 'exclusive means of judicial review of land use decisions' (with exceptions not material in this case). It therefore makes no difference whether the >,>ti~z-<~r~r- 1~_e~ ~~',~~:r~:~E~nt_ decision by the Chelan County Planning Director was quasi-judicial or ministerial. An appeal from that action may be brought only under LUPA and within the 21 day time limit specified in the Act. Chelan County, not having met the 21 day time limit for appeals, cannot under LUPA bring this action before the Superior Court 14 months after the decision of its own planning director. Despite the k;~~~undry ~-,_e ~'°.~ ~r-E:~r:':.: decision of its planning director, the County still has the authority to act upon future applications by Petitioners for necessary permits under Chelan County ordinances. The Court of Appeals, Division Three, was in error in concluding that the ~~rnd ~1.~ 1 n~ ~ ~~tzstr r-i` decision by the Chelan County Planning Director on October 9, 1997 was a ministerial act not covered by LUPA and thus not subject to the 21 day limit for appeals because LUPA applies only to quasi-judicial land use decisions. We reverse the Court of Appeals. 1 Clerk's Papers at 219. 2 Contrary to the recorded deed, Respondents contend that James S. Kempton granted the northeast quarter to Petitioners. 3 Clerk's Papers at 219-21. 4 See id. at 343-44. 5 See id. at 342-49. ' >un; pry e ~~ ~~' :tm<'rlt. number 97-154. 6 Id. at 346. 7 See Chelan County v. Nykreim, 105 Wn. App. 339, 20 P.3d 416 (2001). 8 Clerk's Papers at 342-47. 9 Id. 10 Clerk's Papers at 244-46. Certificate of Exemption, CE 1997-7. Mr. Harrington is otherwise referred to throughout this opinion as Director of the Chelan County Planning Department. 11 See id. 12 John W. Harrington, Jr. stated in his declaration that '{t}here was no question whatsoever that the application of Chelan County Subdivision Resolution, Article II, Section 200, resulted in three existing legal lots or three existing building sites within the original 40 acre parcel. This was the interpretation of that ordinance during my entire tenure at Chelan County.' Clerk's Papers at 188-89. 13 See RCW 58.17.040(6); Chelan County Subdivision Resolution, Article III, Section 302. 14 Clerk's Papers at 189. 15 Id. at 188-89. 16 Id. 17 Id. at 230-35. 18 Clerk's Papers at 44-48. Applications for CUPs: 98-13, 98-14, and 98- 15. 19 Id. at 42. 20 Intervenor Respondents are four married couples who own property upstream from Petitioners' property: Eric Gebelein and Rebecca Waud; Joseph J. Straus and Mary Shima; Gary Kincaid and Julienne Kincaid; and David Bale and Melissa Bale. 21 Clerk's Papers at 412-13. 22 Id. at 427. The criteria read: The adjustment must meet all of the following criteria: The adjustment does not create an additional lot, tract, parcel, site or division of land. The adjustment does not result in creation of any lot, tract, parcel, site or division which contains insufficient area and dimensions to meet the minimum requirements of the zone in which the lots affected are situated. The adjustment does not involve the relocation of building sites, existing or anticipated easements, utilities, septic tanks and drainfields or other features. 23 See Clerk's Papers at 419-25. 24 Id. 25 Id. at 236. 26 Id. at 48 (finding that the proposed project's dwelling units of 11 acres exceeded the maximum allowable density in the forest resource zoning district, one dwelling unit per 20 acres). 27 Id. at 242. 28 Id. at 376 29 Clerk's Papers at 360. 30 Id. at 372-75. 31 Id. at 358-59, 127-28. 32 See Clerk's Papers at 10-13. The court's order stated, in pertinent part, that 'the proposed ~li~ pry i ,c; .~ cc:ilt was not a minor boundary adjustment but rather a substantial change in the configuration of the property lines, and that none of the resulting parcels would comply with the 20 acre zoning density, and the Court having further determined that the Notices to Title were invalid and incapable of rectifying the improper Bo~nci::~ry Li.:<<~ r:dj::st:nent, and the Court having further found that the County's authority to revoke the I Fund: r y ~~ f_c ~~ st.rr ,:~~: is not precluded based on theories of vested rights, equitable estoppel, contract or Land Use Petition Act .' 33 Id. at 7-8. 34 Briefs amicus curiae were filed by the Building Industry Association of Washington, the Washington Land Title Association, the Washington Association of Realtors, and the Washington State Farm Bureau. 35 Chelan County v. Nykreim, 105 Wn. App. at 360. 36 Id. at 361. 37 Id. at 361-62. 38 Order granting review. 39 RCW 36.70C.010-.030. 40 See Harris v. Hornbaker, 98 Wn.2d 650, 658 P.2d 1219 (1983); Responsible Urban Growth Group v. City of Kent, 123 Wn.2d 376, 868 P.2d 861 (1994); Chaussee v. Snohomish County Council, 38 Wn. App. 630, 689 P.2d 1084 (1984); R/L Assocs., Inc. v. Klockars, 52 Wn. App. 726, 763 P.2d 1244 (1988). 41 RCW 36.70C.030(1) reads: {T}his chapter does not apply: (a) Judicial review of: (i) Land use decisions made by bodies that are not part of local jurisdiction; (ii) Land use decisions of a local jurisdiction that are subject to review by a quasi-judicial body created by state law, such as the shoreline hearings board or the growth management hearings board; (b) Judicial review of applications for a writ of mandamus or prohibition; or (c) Claims provided by any law for monetary damages or compensation. . 42 RCW 36.70C.030(1) (emphasis added). 43 RCW 36.70C.010. 44 RCW 36.70C.040. 45 Br. of Pet'r at 19-22. 46 Id. 47 Id. 48 Chelan County required compliance with a two step process. First, the requesting party must send a completed application to the Chelan County Planning Department with a recording fee. Second, the BLA application states, '{u}pon determination that the proposed adjustment meets the criteria in Step 1, and contains the information called for in Step 2, the form will be forwarded to the Chelan County Auditor for recordation.' See Clerk's Papers at 221. 49 Chelan County v. Nykreim, 105 Wn. App. 339, 360-61, 20 P.3d 416 (2001). 50 Id. at 361 (quoting RCW 7.16.040 which reads, 'A writ of review {certiorari} shall be granted by any court, except a municipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy of law'). 51 Id. 52 Suppl. Br. of Pet'r at 11. 53 Br. of Pet'r at 9 (citing R/L Assocs., Inc. v. Klockars, 52 Wn. App. at 729; Cox v. City of Lynnwood, 72 Wn. App. 1, 11, 863 P.2d 578 (1993). 54 Nykreim, 105 Wn. App. at 354-55. 55 R/L Assocs., Inc. v. Klockars, 52 Wn. App. at 728. 56 Id. 57 The trial court, upon a writ of certiorari, affirmed and dismissed the writ. The Court of Appeals, Division One, affirmed. 58 Nykreim, 105 Wn. App. at 354-55. 59 Cox v. City of Lynnwood, 72 Wn. App. at 11. 60 See Nolan v. Blackwell, 123 Wash. 504, 506, 121 P. 1048 (1923); Eastlake Community Council v. Roanoke Assocs., Inc., 82 Wn.2d 475, 481, 513 P.2d 36 (1973); Larsen v. Town of Colton, 94 Wn. App. 383, 973 P.2d 1066 (1999). 61 See Nolan v. Blackwell, 123 Wash. at 506; Eastlake Community Council v. Roanoke Assocs., 82 Wn.2d at 481. 62 See Nolan v. Blackwell, 123 Wash. at 506; Hull v. Hunt, 53 Wn.2d 125, 331 P.2d 856 (1958); Steele v. Queen City Broad. Co., 54 Wn.2d 402, 341 P.2d 499 (1959); Radach v. Gunderson, 39 Wn. App. 392, 695 P.2d 128 (1985). 63 See Nolan v. Blackwell, 123 Wash. at 504-05. 64 Id. 65 Id. 66 Eastlake Cmty. Council v. Roanoke Assocs., 82 Wn.2d at 481-82. 67 Id. 68 See Radach v. Gunderson, 39 Wn. App. at 400; City of Mercer Island v. Steinmann, 9 Wn. App. 479, 513 P.2d 80 (1973). 69 Id. 70 Id. 71 Nykreim, 105 Wn. App. at 362. 72 Br. of Pet'r at 26-28. 73 Nykreim, 105 Wn. App. at 362. 74 Larsen v. Town of Colton, 94 Wn. App. at 385. 75 Id. at 387. 76 Id. at 388. 77 Id. at 389-90 (citing RCW 36.70C.030(1), .040(3). 78 Id. at 390-91. 79 Id. at 392. 80 78 Wn. App. 370, 380, 898 P.2d 319, review denied, 128 Wn.2d 1003 (1995). 81 Larsen, 105 Wn. App. at 392 (finding the action in Brutsche commenced 73 days after enactment of the zoning ordinances was untimely under the reasonable-time-by-analogy analysis) (quoting Brutsche, 78 Wn. App. at 376) . 82 Id. (citing Concerned Organized Women & People Opposed to Offensive Proposals, Inc. v. City of Arlington, 69 Wn. App. 209, 217-18, 847 P.2d 963, review denied, 122 Wn.2d 1014, 863 P.2d 73 (1993); City of Federal Way v. King County, 62 Wn. App. 530, 538, 815 P.2d 790 (1991); and Deschenes v. King County, 83 Wn.2d 714, 717, 521 P.2d 1181 (1974)). 83 Id. at 393 ('As the superior court recognized, applying Brutsche's bright-line rule to this situation would allow a landowner to avoid any judicial review by obtaining a building permit and waiting 30 days before beginning construction'). 84 Id. at 393. 85 Id. 86 Br. of Resp't at 16-18. 87 Larsen v. Town of Colton, 94 Wn. App. at 393. 88 Id. at 392-93. 89 See Clerk's Papers at 244, 376. 90 Wenatchee Sportsmen Assn v. Chelan County, 141 Wn.2d 169, 175, 4 P.3d 123 (2000). 91 Id. at 174. 92 Id. 93 Id. at 181-82. The 1998 plat application conformed to the zoning requirements notwithstanding the rezone approval later characterized as improper. 94 Id. at 180-82 (citations omitted). 95 Id. at 181. 96 Id. 97 State v. Johnson, 104 Wn. 2d 179, 181, 703 P.2d 1052 (1985). 98 State v. Chapman, 140 Wn.2d 436, 450, 998 P.2d 282 (2000) (citing State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997)). 99 State ex rel. Madden v. Public Utility Dist. No. 1 of Douglas County, 83 Wn.2d 219, 222, 517 P.2d 585 (1973) (citation omitted). 100 Geschwind v. Flanagan, 121 Wn.2d 833, 841, 854 P.2d 1061 (1993) (citing State v. Pike, 118 Wn.2d 585, 591, 826 P.2d 152 (1992). 101 Nykreim, 105 Wn. App. at 361. 102 RCW 36.70C.020(1) (emphasis added). 103 In 2000 Chelan County amended the Subdivision Resolution to establish clear procedures for application, review, consideration, and appeals of BLA. Now appeals under Section 980 provides for quasi-judicial review of an administrator's decision to the Chelan County Hearing Examiner within 21 days from the date of the written decision. It limits standing to the applicant, the owner of the property on which the subdivision is proposed, any owner entitled to special notice under RCW 58.17.090, or any aggrieved property owner who will suffer direct or substantial impacts from the proposed short division. See Chelan County Resolution Number 2000-128 amended by Resolution Number 2000-200 (Dec. 26, 2000). 104 Section 200 reads: 'Land, as a unit for determining subdivision, means all contiguous real property in one ownership, but not including parcels of record prior to the adoption of this ordinance and not including parcels separated by a public road or stream in excess of 20 cubic feet per second mean annual flow. A parcel shall be considered of record if recorded in the office of the Chelan County Auditor and if the disposition of said parcel is in conformance to the subdivision regulation in force at the time of the filing.' 105 Chelan County Code required property owners to proceed under Subdivision Resolution, Article I, Section 100, when dividing land into two or more parcels or tracts in the unincorporated areas of Chelan County. RCW 58.17.040(6) provides: 'A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots or both, which does not create any addition lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for building site{.}' (Emphasis added.) Similar to RCW 58.17.040, Section 302 exempted BLA between lots from subdivision laws. Section 302 adopted the definition of 'lot' contained in RCW 58.17.020(9): {A} fractional part of divided lands having fixed boundaries, being of sufficient area and dimension to meet minimum zoning requirements for width and area. The term shall include tracts or parcels.' Article II, Section 200 of the Chelan County Subdivision Resolution used the same definition. 106 Nykreim, 105 Wn. App. at 350. 107 Id. 108 RCW 36.70C.130(1)(d). 109 RCW 36.70B.020(4) (emphasis added). 110 See State ex rel. Craven v. City of Tacoma, 63 Wn.2d 23, 385 P.2d 372 (1963); Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 960-61, 954 P.2d 250 (1998). 111 Ch. 7.16 RCW. 112 State ex rel. Madden v. Pub. Util. Dist. No. 1 of Douglas County, 83 Wn.2d 219, 222, 517 P.2d 585 (1973). 113 Id. 114 Black's Law Dictionary 673 (4th ed. 1968) (defining exclusive as '{a}ppertaining to the subject alone, not including, admitting, or pertaining to any others'). 115 Br. of Resp't at 14-15. 116 Skamania County v. Columbia River Gorge Comm'n, 144 Wn.2d 30, 49, 26 P.3d 241 (2001); Wenatchee Sportsmen Assn v. Chelan County, 141 Wn.2d 169, 175, 4 P.3d 123 (2000); Deschenes v. King County, 83 Wn.2d 714, 716, 521 P.2d 1181 (1974). 117 Skamania County v. Columbia River Gorge Commission, 144 Wn.2d at 49, (alterations in original) (quoting Deschenes v. King County, 83 Wn.2d at 716-17). 118 Wenatchee Sportsmen Assn v. Chelan County, 141 Wn.2d at 181-82. 119 RCW 36.70C.010 (emphasis added). 120 See id. 121 Br. of Amici Curiae of Building Industry Association of Washington, Washington Land Title Association, Washington Association of Realtors, and Washington State Farm Bureau at 11-12. 122 West Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 51, 720 P.2d 782 (1986). 123 RCW 36.70C.060 (emphasis added). 124 Br. of Resp't at 20-21. 125 RCW 36.70C.020(3). 126 RCW 36.70C.060(2). 127 Suquamish Indian Tribe v. Kitsap County, 92 Wn. App. 816, 828, 965 P.2d 636 (1998). 128 Id. at 829 (RCW 34.05.530). 129 Id. 130 Id. at 829-30. 131 Id. at 832. 132 Biermann v. City of Spokane, 90 Wn. App. 816, 820, 960 P.2d 434 (1998), review denied, 137 Wn.2d 1004 (1999) (citing Vovos v. Grant, 87 Wn.2d 697, 699, 555 P.2d 1343 (1976)). 133 Intervenor Plaintiffs' Reply in Support of Plaintiff's Motion for Partial Summary Judgment at 3. 134 Biermann v. City of Spokane, 90 Wn. App. at 820 (finding a sufficient interest to merit standing where Appellant's health, safety and comfort were directly affected by proposed construction of garage). 135 Skamania County v. Columbia River Gorge Comm'n, 144 Wn.2d 30, 26 P.3d 241 (2001). 136 Id. at 43-45. See 16 U.S.C. sec. 544. 137 Id. at 48-50. 138 The director's decision was entered on May 19, 1997. On July 27, 1998 the Gorge Commission ordered the County to resolve the violation. 139 Id. at 47. 140 Petitioners' property lies in the Forest Resource Zoning District. The resulting lots created by the proposed BLA was less than the minimum lot size, 20 acres as required by the Forest Resource district. 141 See Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787, 797, 920 P.2d 581 (1996). 142 Id. at 797 (citing Clarke v. Sec. Indus. Assn, 479 U.S. 388, 399, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987)). 143 Id. (citing St. Joseph Hosp. v. Dept of Health, 125 Wn.2d 739, 739- 40, 887 P.2d 891 (1995)). 144 A BLA application was approved after the Planning Director was satisfied that all BLA criteria were met, including compliance with all requirements and regulations of the Zoning Code of Chelan County. Clerk's Papers at 243-44, 427. 145 RCW 36.70C.060(2)(d); Ward v. Board of County Commis, 86 Wn. App. 266, 270-71, 936 P.2d 42 (1997). 146 RCW 36.70C.020(1); Estate of Friedman v. Pierce County, 112 Wn.2d 68, 79, 768 P.2d 462 (1989). 147 Ward v. Board of County Commis, 86 Wn. App. at 271 (citing South Hollywood Hills Citizens v. King County, 101 Wn.2d 68, 73, 677 P.2d 114 (1984). 725152MAJ Supreme Court of the State of Washington Opinion Information Sheet Docket Number: 72515-2 Title of Case: City of Seattle V Rory Crispin and Jane Doe Crispin File Date: 06/19/2003 Oral Argument Date: 03/13/2003 SOURCE OF APPEAL Appeal from Superior Court of King County Docket No: 97-2-05538-5 Judgment or order under review Date filed: 12/10/1999 JUSTICES Authored by Charles W. Johnson Concurring: Faith Ireland Barbara A. Madsen Bobbe J Bridge Gerry L Alexander Richard B Sanders Susan Owens Tom Chambers Mary Fairhurst COUNSEL OF RECORD ----------------- Counsel for Petitioner(s) David Joseph Smith Attorney at Law 135 Lake St S Ste 100 PO Box 616 Kirkland, WA 98083-0616 Counsel for Respondent(s) Darby Nicole Ducomb Seattle City Attorneys Office 600 4th Ave 10th Fl Seattle, WA 98104-1850 Roger D. Wynne Seattle City Atty Office 600 4th Ave Fl 10 Seattle, WA 98104-1850 Amicus Curiae on behalf of West Beach Condominium Associa John E. Keegan Attorney at Law 1501 4th Ave Ste 2600 Seattle, WA 98101-1664 Richard L Settle Attorney at Law 1111 3rd Ave Ste 3400 Seattle, WA 98101-3264 Amicus Curiae on behalf of Master Builders Association John Maurice Groen Groen Stephens & Klinge LLP 2101 112th Ave NE Bellevue, WA 98004-2944 Amicus Curiae on behalf of Building Industry Association Of Was John Maurice Groen Groen Stephens & Klinge LLP 2101 112th Ave NE Bellevue, WA 98004-2944 Amicus Curiae on behalf of Pacific Legal Foundation John Maurice Groen Groen Stephens & Klinge LLP 2101 112th Ave NE Bellevue, WA 98004-2944 IN THE SUPREME COURT OF THE STATE OF WASHINGTON THE CITY OF SEATTLE, a municipal corporation, Respondent, v. No. 72515-2 En Banc RORY CRISPIN and JANE DOE CRISPIN, husband and wife and the marital community composed thereof, Petitioners. Filed June 19, 2003 JOHNSON, J.--Rory Crispin seeks reversal of an unpublished Court of Appeals opinion affirming a decision that a tax lot he purchased was not created in compliance with chapter 58.17 RCW, the state statute on lot boundary adjustments and a Seattle ordinance governing the division of land. Crispin argues the Court of Appeals decision conflicts with the language of the statute and with prior decisions of this court. Finding the lot was exempt from the requirements of the statute, we reverse. FACTS This case arises from property located adjacent to 47th Avenue S.W. in West Seattle. Between 1928 and 1968, there were a variety of deed transfers that resulted in legally carving out 10 separate properties. In the late 1960s, the then owners of the property combined the 10 parcels of land into three tracts, lots A, B, and C, through another deed transfer. Four apartment buildings were built on the lots. In 1970, the owners of the parcels received three building permits and again changed the boundaries of the three tracts. At this time, two buildings were on the north parcel, and one building was on each of the southwest and southeast parcels.l Before 1972, the city of Seattle (the City) did not regulate land divisions of four lots or less. Similarly, Washington law governing subdivisions only applied to plats creating five or more lots. Laws 1969, 1st Ex. Sess., ch. 271, sec. 2(1); see also RCW 58.17.020(1). Until 1972, properties could be subdivided in the City without the need for any governmental permission. In May 1972, the City passed an ordinance that required any person who sought to divide land into two, three, or four lots for the purpose of sale to submit an application to the City for approval. Seattle Ordinance 1010272 (May 24, 1972). The penalty for failure to comply with the city ordinance was that the new lots would be deemed 'illegal.' Seattle Ordinance 101027, sec. 42. No building permits would be issued for such lots, nor could the lots be sold or transferred. Essential to triggering the subdivision law was that the division of lots would result in more lots, tracts, parcels, or sites than previously existed. Later in 1972, the owners of the lots converted the four apartment buildings into condominiums. In complying with the State Condominium Act, chapter 64.34 RCW, a licensed surveyor signed off on the final survey creating the condominiums in September 1972 and realigned the property boundaries.3 It was at this time the City officially recognized the property as three separate tax lots. Of the three lots, one was left vacant and became known as tax lot 164.4 The four apartment buildings, now condominiums, were located on the other two lots. In 1982, Seattle created the 47th Street S.W. water main local improvement district (LID) and assessed $23,480.40 on tax lot 164, assuming the lot would be suitable for a multiunit development after the installation of the water main. The owner of tax lot 164, Terry Gilmour, did not challenge the assessment, and it was approved in March 1985. Payment of the $23,480.40 was to be made in 10 annual installments. Subsequently, Gilmour failed to pay the assessment and real estate taxes on the property. In 1990, King County foreclosed on tax lot 164 for the unpaid real estate taxes. In January 1990, Crispin bought the vacant lot at auction for $493. At the tax sale/auction, the property was sold as is and the county made no guaranty as to the condition of the title to the lot. In June 1990, the City brought a foreclosure action for the unpaid LID assessment on tax lot 164. When informed of this, Crispin undertook a due diligence investigation to see if the property warranted payment of the assessment. During this investigation, Crispin spoke to the City's Department of Construction and Land Use (DCLU), the Seattle city attorney's office, and searched the records at the City's engineering department. He found that the property was zoned for multifamily use and was potentially Sbuildable.' Neither the city attorney's office nor the DCLU claimed the property was created illegally in 1972. Satisfied with the results of his investigation, Crispin paid the amount necessary to stop the foreclosure. In 1991 the residents of the surrounding neighborhood hired a land use consultant, Kevin Weare, to block the development of lot 164. At the time Weare became involved, the city government considered all three lots legally created and buildable. Weare contended that tax lot 164 had never been legally created under the City's subdivision ordinance. Originally, DCLU rejected Weare's contention and issued a letter dated July 8, 1991 stating that lot 164 had been legally created in the latter part of 1972. Having failed to convince the DCLU, Weare next turned to the city council for support. Soon after, the group opposing development of lot 164 enlisted the help of the Seattle city attorney's office. In 1992, the city attorney's office, which had originally told Crispin that the engineering department had determined lot 164 'buildable,' changed its position and claimed that tax lot 164 did not comply with Seattle Ordinance 101027 and was, therefore, illegal. After the city attorney's office changed its position, the group wrote to the DCLU director asking the department to ensure that no building or development permits would be issued until the property was properly subdivided. DCLU complied. In 1997, at Crispin's request, the DCLU issued a formal interpretation that tax lot 164 was not a legal building site because the lot was not created in compliance with state and city subdivision laws. Crispin appealed the interpretation to the city hearing examiner asserting that DCLU improperly applied the law. The examiner dismissed the appeal and Crispin did not seek further review at that time. During this time, the City continued to bill Crispin for the LID assessment. The assessment evidently was based on lot 164 being 'buildable.' After the 1997 interpretation, Crispin failed to make the final LID payment, and the City brought another foreclosure action. At this time, Crispin counterclaimed for declaratory relief arguing lot 164 had been legally created in 1972 by virtue of a boundary line adjustment which did not need city approval. The trial court granted the City's motion for summary judgment dismissing Crispin's claim. Crispin appealed and the Court of Appeals affirmed. ANALYSIS The primary issue in this case concerns whether the division of land that created tax lot 164 qualified as a boundary line adjustment for purposes of the exemption from the subdivision statutes set forth in RCW 58.17.040(6). Crispin asserts that, because tax lot 164 was a division made for the purpose of alteration by adjusting boundary lines and did not create additional lots, it is exempt from the requirements of chapter 58.17 RCW governing land division, which the City's ordinance mirrors, and is, thus, a legal lot. The City claims the creation of tax lot 164 neither complied with applicable subdivision regulations nor qualified as an exemption under RCW 58.17.040(6). Moreover, the City claims since Crispin failed to seek a timely review of the DCLU's decision concerning the lot through the Land Use Petition Act (LUPA), chapter 36.70C RCW, he is now barred from asking this court to review the issue through this non-LUPA action. Chapter 58.17 RCW regulates the subdivision of land in Washington. Section .020(1) defines subdivision as '{t}he division or redivision of land into five or more lots, tracts, parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership. .' A '{s}hort subdivision is the division or redivision of land into four or fewer lots, tracts, parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership.' RCW 58.17.020(6). (emphasis added). The subdivision act provides that '{no} building permit shall be issued for any lot .divided in violation of this chapter or local regulations adopted pursuant thereto.' RCW 58.17.210. Specifically at issue in this case is RCW 58.17.040 which states the provisions of this chapter shall not apply to: (6) A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site; (Emphasis added.) Before the 1972 adjustment there were three lots, each with at least one building. After the adjustment there were still three lots, now with two buildings on two, and one left vacant. Crispin argues that RCW 58.17.040(6) does not condition lot boundary adjustments on the degree of change, only that there must not be new lots created. In light of this, he claims the Court of Appeals holding conflicts with this court's decision in Island County v. Dillingham Development Co., 99 Wn.2d 215, 662 P.2d 32 (1983), which interpreted this statutory exemption. We agree. In Dillingham, Island County brought suit against land developers claiming the boundary adjustments in that case resulted in an illegal subdivision because the owners never received permission to make the adjustments. We disagreed and held a reconfiguration of boundary lines without the creation of additional lots was a boundary line adjustment that did not require approval under state or local subdivision laws. Dillingham, 99 Wn.2d at 223. We relied on the exemption in RCW 58.17.040, the same statute applicable in the present case. The land owner in Dillingham had adjusted the boundaries of an old plat to combine what had been substandard lots into fewer, larger lots that met the current zoning requirements. After the adjustment, the lots could then be sold. We held the reconfiguration was a boundary line adjustment exempt from the subdivision process. The interpretation of the statute we adopted in Dillingham established that boundary line adjustments which do not result in the creation of any additional lots are exempt from the platting requirements of local planning commissions and are exempt under the specific language of RCW 58.17.040. Here, the City argued, and the Court of Appeals agreed, that R/L Associates, Inc. v. Klockars, 52 Wn. App. 726, 763 P.2d 1244 (1988), was controlling. In Klockars, the Court of Appeals held some boundary adjustments which do not result in additional lots still fall outside the exemption in RCW 58.17.040(6). Klockars involved two lots with a building straddling the line between them. Because of this, both lots were unsuitable for further development. The owner sought to adjust the boundaries to situate the existing building on one lot and free up the second lot for development. The Court of Appeals held the adjustment created a new site and was therefore outside of the exemption because the statute is only intended to apply to minor boundary changes, not to changes that result in increased development or density otherwise regulated by the applicable land use code. Klockars, 52 Wn. App. at 732 (emphasis added). We find no support in the statute for this distinction. Klockars directly conflicts with our holding in Dillingham. Despite the sizeable change to the plat, we held that the adjustments in Dillingham fell under the exemption set forth in RCW 58.17.040(6). This conclusion is based on the specific statutory language which states as long as there are no 'new' lots created, the reconfiguration is exempt. The Court of Appeals in this case followed the Klockars approach even though the 1972 adjustment which created lot 164 did not produce any new lots. The Court of Appeals found the changes 'substantial' and therefore the lot boundary adjustment created an illegal lot. However, as we recognized in Dillingham, the statute does not support the distinction the Court of Appeals draws between adjustments that are minor compared with substantial. Nor would such a rule be workable, and would perhaps be unconstitutional. We have recognized that the regulation of land use must proceed under an express written code and not be based on ad hoc unwritten rules so vague that a person of common intelligence must guess at the law's meaning and application. See Burien Bark Supply v. King County, 106 Wn.2d 868, 725 P.2d 994 (1986). As can be seen from the record in this case, the City itself issued conflicting interpretations on the legal status of the lot. Under the Court of Appeals approach, the final decision would rest on the determination of whether the boundary adjustment was substantial or not. Such a result conflicts with the specific language of RCW 58.17.040(6). The City also argues that Crispin's failure to appeal the 1997 interpretation should not allow him to relitigate the issue, since a proper LUPA appeal was not pursued. However, the issue before us today is whether the 1972 adjustment was a legal boundary line adjustment. Under LUPA, all land use decisions must be appealed within 21 days of the final determination. However, a director's interpretation or opinion is not a land use decision. See Smoke v. City of Seattle, 132 Wn.2d 214, 937 P.2d 186 (1997). A director's interpretation does nothing to change the status of property. Director's opinions are more of an advisory opinion; they are not land use decisions. As we noted in the Smoke case, 'An interpretation is '{a} decision by the Director as to the meaning, application or intent of any provision of Title 23, Land Use Code, or Title 24, Zoning and Subdivisions, as it relates to a specific piece of property. " Smoke, 132 Wn.2d at 223 (quoting Seattle Municipal Code 23.88.020(A)). This interpretation, in and of itself, is not a land use decision and therefore LUPA requirements do not apply.5 CONCLUSION Tax lot 164 is a legally created lot with the statutory exemption under RCW 58.17.040(6) and in accord with our previous decision in Dillingham. As in Dillingham, the reconfiguration of boundaries resulted in no new lots. Three lots existed before the adjustment and three lots existed after the adjustment. The fact that a buildable site was created does not prevent application of the boundary line adjustment exemption found at RCW 58.17.040(6). The Court of Appeals decision is reversed. WE CONCUR: 1 At the time the apartment buildings were erected, the three parcels looked like: 2 Seattle Ordinance 101027, sec. 5 provides that 'Any person desiring to divide land situated within the City of Seattle into two, three or four lots for the purpose of sale or lease, shall submit an application for approval of a short subdivision to the Administrator{.}' 3 According to RCW 64.32.100, at the time condominiums are created a survey map of the surface must be submitted to the county auditor. Also, a set of plans of the building or buildings showing the vertical and horizontal boundaries, the dimensions of the condominiums, value, number of bedrooms and bathrooms, and square footage must be submitted. All plans need to either be signed by a registered architect, professional engineer, or land surveyor certifying that the plans accurately depict the location and dimensions of the condominiums as built. 4 Breakdown of the three lots after the 1972 adjustment. 5 The City's LUPA claim is misplaced because the hearing officer's ruling was not a land use decision. Furthermore, the City did not timely identify the issue for our review as required by RAP 10.3(a) or RAP 10.3(b). Additionally, RAP 13.4 states that if a responding party to a petition for review seeks review of an issue not raised in the petition, then that party must raise the new issue in its answer. Here, the City failed to raise the LUPA issue in its answer to Crispin's petition for review; therefore, the City is additionally foreclosed from raising the issue. 97 Wn. App. 670, DYKSTRA v. SKAGIT COUNTY [No. 42998-1-I. Division One. October 11, 1999.] HENRY K. DYKSTRA, ET AL., Appellants, v. SKAGIT COUNTY, Respondent. [1] Judgment -Summary Judgment -Review -Role of Appellate Court. An appellate court reviews a summary judgment order by engaging in the same inquiry as the trial court. [2] Building Regulations -Land Use Regulations -Due Process -Substantive Due Process - Test. A local land use decision does not violate a property owner's right of substantive due process unless the decision (1) is irrational, arbitrary, and capricious, (2) utterly fails to serve a legitimate governmental purpose, or (3) is tainted by improper motive. [3] Administrative Law -Agency Authority -Ultra Vires Act -What Constitutes. An act by an administrative agency is ultra vires when the agency wholly lacks legal authority to perform the act or the act is in direct violation of an existing statute. [4] Building Regulations -Building Permit -Denial -Prior Erroneous Enforcement - Effect. A local governmental entity's prior granting of land use permits in violation of the applicable land use regulation does not render the subsequent denial of a land use permit arbitrary and capricious. The prior erroneous enforcement of the regulation does not vest a subsequent property owner with a substantive due process right to the continued erroneous enforcement of the regulation. Nature of Action: The co-trustees of a testamentary division of property sought judicial review of the county's denial of their application to develop the lots. The application was denied on the basis that the parcels did not meet the minimum lot size under the applicable zoning regulation. The county had erroneously enforced the regulation in the past and granted exemptions to other owners of substandard lots Superior Court: The Superior Court for Skagit County, Oct. 1999 DYKSTRA v. SKAGIT COUNTY 671 97 Wn. App. 670 No. 94-2-01483-1, Susan K. Cook, J., on April 30, 1998, entered summary judgment in favor of the county. Court of Appeals: Holding that denial of the land use permit did not violate the plaintiffs' substantive due process rights, the court affirms the judgment. Wilmar Henson Williamson; and Stuart W. Carson, for appellants. Thomas L. Verge, Prosecuting Attorney, and Paul Hewson Reilly, Deputy, for respondent. ELLINGTON, J. -Appellants are co-trustees of a testamentary division of property in Skagit County. The property devised constituted 15 acres, which was divided into seven lots. Appellants wish to develop these lots, but Skagit County denied their applications because the lots are located in an Agricultural District where the minimum lot size is 40 acres. Appellants claim they are entitled to develop substandard lots under express provisions of the subdivision and zoning codes, and that their substantive due process rights were violated because the County had previously granted exemptions to other owners of substandard lots. These code provisions do not permit development, however, and prior inconsistent or erroneous enforcement does not confer rights upon Appellants. We affirm. Facts A codicil to the will of Jeannette Dykstra divided approximately 15 acres of land in rural Skagit County into 672 DYKSTRA v. SKAGIT COUNTY Oct. 1999 97 Wn. App. 670 seven lots, pursuant to RCW 58.17.040(3). Appellants, including Henry Dykstra, (Dykstras) are co-trustees. The will was admitted to probate on December 6, 1993, and an order of distribution was approved on April 11, 1994. In mid-1994, Dykstras applied to the Skagit County Department of Planning and Community Development permit center for a review of soil evaluations and designs for on-site sewage disposal. By letter dated June 7, 1994, the Planning Department denied the permit applications because the parcels did not meet the County's agricultural zoning minimum of 40 acres. The County's letter directed Dykstras' attention to this court's decision in Estate of Telfer v. Board of County Commis, 71 Wn. App. 833, 862 P.2d 637 (1993), and to a memorandum by Chief Civil Deputy Prosecuting Attorney John Moffat discussing the case. In Telfer, real property was left by will to three sons of the deceased, who sought to subdivide the property without meeting the requirements for a short plat. San Juan County denied the application. This court reversed, holding that under RCW 58.17.040(3), the will itself need not divide the property into separate, discrete parcels, and the devisees were entitled to divide the property without complying with short plat requirements. Telfer, 71 Wn. App. at 836-37. In dicta, the court stated: "[W]e emphasize that our holding is not to be understood as intimating that the parcels resulting from the division are exempt from any other land use regulations." Telfer, 71 Wn. App. at 837. The memorandum from the Skagit County deputy prosecutor emphasized this aspect of the opinion, concluding that if parcels created by testamentary devise are substandard, the County is free to deny development permits. Dykstras appealed denial of the development permits. The Skagit County Hearing Examiner upheld the denial, and Dykstras appealed to superior court. On Skagit County's motion, all claims were dismissed on summary judgment in 1995 except the due process claim. No appeal was taken from that order. In 1998, Dykstras sought summary judgment on the substantive due process claim. The Oct. 1999 DYKSTRA v. SKAGIT COUNTY 673 97 Wn. App. 670 court denied Dykstras' motion, and instead granted summary judgment in favor of Skagit County. Dykstras now appeal the 1998 summary judgment ruling. Discussion A. Standard of Review [1] In reviewing a summary judgment order, an appellate court engages in the same inquiry as the trial court. Friend v. Friend, 92 Wn. App. 799, 802, 964 P.2d 1219 (1998). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. B. Substantive Due Process, § 1983.«1» Dykstras claim Skagit County acted arbitrarily and capriciously in refusing to issue permits for development on their substandard lots, permits to which Dykstras claim to be entitled as a matter of right. Dykstras also claim the County violated "substantive due process and fair warning" requirements, and "vested rights," by refusing to continue a previous practice of exempting testamentary lots from other requirements of the code. [2] Under 42 U.S.C. § 1983, "substantive due process is denied if a local jurisdiction makes a land use decision irrationally, arbitrarily, and capriciously, its decision utterly fails to serve a legitimate governmental purpose, or was tainted by improper motive." Cox v. City of Lynnwood, 72 Wn. App. 1, 9, 863 P.2d 578 (1993) (citing Robinson v. City of Seattle, 119 Wn.2d 34, 62, 830 P.2d 318 (1992)). «1» 42 U.S.C. § 1983 states in pertinent part: Every person who, under color of any statute, ordinance, regulation ... of any State ...subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... . 674 DYKSTRA v. SKAGIT COUNTY Oct. 1999 97 Wn. App. 670 C. Skagit County Code«2» and Development of Substandard Testamentary Lots Dykstras' property is located within Skagit County's Agricultural District, which restricts development to lots of 40 acres or more.«3» Dykstras argue, however, that other provisions of Skagit County's subdivision and zoning codes expressly allow development of their seven substandard lots, Dykstras claim that because their substandard lots "comply" with two code sections, the County was required to issue the permits. Dykstras point to SCC 14.12.030(4), part of the subdivision code, which provides: This chapter shall apply to the division of land into five (5) or more lots, tracts, parcels or sites for the purposes of sale, lease or development. The provisions of this chapter shall not apply to: (4) Divisions made by testamentary provisions, or the laws of descent[.] As the plain language of this provision indicates, the subdivision ordinance does not apply to divisions of land made by testamentary devise. In this, it complies with RCW 58.17.040 and Telfer. Dykstras' lots are thus created by the will itself, not by compliance with the subdivision code. Dykstras next look to the general provisions of the zoning code. SCC 14.04.190(5) provides: When any person owns or acquires contiguous pieces of «2» The Skagit County Code provisions have changed since Dykstras applied for their permits in 1994. In some instances, the Dykstras have cited the incorrect, amended version of the code. Our discussion will consider the provisions then in effect. «3» SCC 14.04.110(5) provides: "Dimensional Requirements, (a) "Minimum lot size: 1/16 of a section of land or larger, or 40 acres (gross area) or larger if the land is not capable of description as a fraction of a section of land." This provision was repealed when the Comprehensive Plan was adopted. Oct. 1999 DYKSTRA v. SKAGIT COUNTY 675 97 Wn. App. 670 property involving descriptions setting forth lots which would be substandard under the provisions of this chapter, the Planning Department and the Assessor shall combine such property in the following manner: (d) Exceptions: .Any lot divided by short plat or other legal means after March 1, 1965, need not be combined or aggregated. (Emphasis added). Dykstras correctly assert that their substandard lots need not be aggregated or combined because they were divided by "other legal means." From this premise, Dykstras argue that their substandard lots can be developed under another general provision of the zoning code, SCC 14.04.190(11), which states: "Not more than one (1) dwelling unit shall be allowed on any lot, except by legal means as provided in this Ordinance." (Emphasis added). Dykstras argue that since their lots are created by "other legal means" as that term is used in the aggregation section, they may develop one residential unit per lot regardless of the lot size. Dykstras' interpretation conflates several unrelated sections of the code. A plain reading of SCC 14.04.190(11) reveals it creates a simple limitation: not more than one dwelling is allowed on any lot, unless some exception applies. (No such exception has been identified here.) The ordinance does not grant a right to develop at least one dwelling unit on every lot. Similarly inapplicable is the aggregation section, which makes no reference to development rights and does not exempt Dykstras from other applicable land use regulations. Its likely purpose is to limit the life span of nonconforming lots "grandfathered" under previous regulations by providing that in the event adjacent lands come under the same ownership, the lots are aggregated for development purposes. This purpose is the exact contrary of the interpretation proposed by Dykstras. Dykstras urge us to read these sections in isolation from 676 DYKSTRA v. SKAGIT COUNTY Oct. 1999 97 Wn. App. 670 other provisions, particularly those associated with the agricultural zone requirements. Essentially, Dykstras have extracted from the zoning code all references to "legal lots" or lots created by "other legal means." It is apparent, however, that no development rights are conferred by any of these sections. Dykstras' lots are legally created, but are nonconforming substandard lots. Because the lots do not meet the most basic of Agricultural District requirements (i.e., 40-acre minimum size), development rights do not follow. Further, as discussed in the Hearing Examiner's decision, in an Agricultural District, residential use is accessory to the principal use, not an outright permitted use.«4» Dykstras intend to use the lots for residential purposes, a use which is not permitted except in conjunction with agricultural uses as their property is now zoned. This further demonstrates the importance of considering the zoning code in its entirety. In their reply brief, Dykstras raise yet another argument for allowing development of substandard testamentary lots. They ask this court to consider the code definitions of "legal lot of record" and "lot certification process." We decline to consider these issues, raised for first time in the reply brief, because there was no opportunity for the opposing party to respond. RAP 10.3(c). In any event, nothing in the definitions enhances Dykstras' arguments here.«5» In sum, the various isolated code sections relied upon by Dykstras do not expressly (or impliedly) allow development of Dykstras' substandard lots. There was nothing irrational or arbitrary in the County's denial of development permits. «4» See SCC 14.04.110(2)-(3). SCC 4.04.030(2)(a) defines accessory use as "incidental and subordinate to the primary use and located on the same lot as the primary use." SCC 14.04.030(68) defines permitted use as: "Any use authorized or permitted alone or in conjunction with another use in a specified zone and subject to the limitations of the regulations of such zone." a5» As in other arguments, Dykstras ignore the effective date of these code provisions. Their applications were made in 1994. These provisions are from the 1997 code amendments. Oct. 1999 DYKSTRA v. SKAGIT COUNTY 677 97 Wn. App. 670 D. Past Exemptions Dykstras also contend that Skagit County's denial of their permits violated their substantive due process rights because the County had previously granted exemptions to other owners of substandard lots. [3, 4] The County does not deny it exempted substandard testamentary lots created before the Telfer decision, but asserts it was in effect engaging in an ultra vires act. "Ultra vires acts are those done wholly without legal authorization or in direct violation of existing statutes." Department of Labor & Indus, v. Kantor, 94 Wn. App. 764, 778-79, 973 P.2d 30 (1999) (citations omitted). Governmental entities are not precluded from enforcing ordinances even though they may have been improperly enforced in the past. As the court stated in City of Mercer Island v. Steinmann, 9 Wn. App. 479, 483, 513 P.2d 80 (1973): The governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance. The public has an interest in zoning that cannot thus be set at naught. The plaintiff landowner is presumed to have known of the invalidity of the exception and to have acted at his peril. (quoting Zahodiakin Eng'g Corp. v. Zoning Bd. of Adjustment, 8 N.J. 386, 396, 86 A.2d 127 (1952)). In Buechel v. Department of Ecology, the Supreme Court cited Mercer Island with approval, stating: "The proper action on a land use decision cannot be foreclosed because of a possible past error in another case involving different property." Buechel, 125 Wn.2d 196, 211, 884 P.2d 910 (1994) (holding that Board's denial of permit and variance, despite its previous grant of permit in similar situation, was not arbitrary and capricious). More recently, the Supreme Court applied this rationale in the context of water rights. See Department of Ecology v. Theodoratus, 135 Wn.2d 582, 957 P.2d 1241 (1998) (where Department originally acted ultra vires in measuring a water right, Department did not act arbitrarily and capriciously in abandoning unlawful practice and switching to new practice). 678 DYKSTRA v. SKAGIT COUNTY Oct. 1999 97 Wn. App. 670 Skagit County granted permits for testamentary lots created before the decision in In re Estate of Telfer, 71 Wn. App. 833, 862 P.2d 637 (1993), and denied permits to those created afterwards. Dykstras argue that the County should have legislated the new policy rather than simply implement its attorney's reading of Telfer. But new legislation is not necessary for enforcement of existing code provisions. The statement in Telfer that caused the change in the County's practice may be cautionary dicta, but it is accurate: [WJe hold that the estate is entitled to divide the property into no more than three discrete parcels without meeting the requirements for a short plat. Although the issue is not directly presented, and was not argued, we emphasize that our holding is not to be understood as intimating that the parcels resulting from the division are exempt from any other land use regulations. Telfer, 71 Wn. App. at 837. Sound policy supports the Telfer court's caution. While the legislature in RCW 58.17.040(3) gave effect to testamentary devise of real property without the burdens of the short plat process, it gave no indication whatsoever that an exemption from local short plat requirements carried with it other unstated exemptions from land use regulations generally. As noted by the Telfer court, there may be no prejudice to local land use policies in allowing the creation of new parcels without satisfaction of short plat requirements.« 6» But if testamentary devise of nonstandard parcels creates automatic development rights, without regard to the provisions of the local land use code, then nothing whatsoever will exist to preserve lot size requirements or use restrictions in any area. Fundamental principles of land use «6» See Telfer, 71 Wn. App. at 835 ("No persuasive reason is advanced why the Legislature would choose to let a person do by will what he cannot do while living, or would permit heirs to do what the decedent could not have done in his lifetime. On the other hand, the County in its brief did not identify any adverse impact on its land use policies and at oral argument was unable to do so."). Oct. 1999 STATE v. JOHNSON 679 97 Wn. App. 679 regulation would be easily subverted. Nothing in the statute suggests the legislature intended to exempt lots created by testamentary devise from the other land use regulations of the County, and we decline to so hold. We agree with the County that Planning Department officials had been engaged in an informal, illegal act, which they corrected after the Telfer opinion was published. No new legislation was necessary to effect the change in enforcement practices, only an understanding of the correct interpretation of the existing code. Dykstras cannot claim any vested right because they did not apply for development permits until several months after Skagit County had aligned its enforcement practices to comply with its code. See Friends of the Law v. King County, 123 Wn.2d 518, 522, 869 P.2d 1056 (1994). To the extent Dykstras' argument is in the nature of an estoppel claim, it fails for the same reason. See Buechel, 125 Wn.2d at 211. The trial court correctly denied Dykstras' due process claims. Affirmed. KENNEDY, C.J., and WEBSTER, J., concur. Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage Article IV 21.2.1 Site evaluations as required under section 11 of this article. This may include information gained in a project review as noted in subsection 10.5 of this article; 21.2.2 Where a subdivision with individual wells is proposed: 21.2.2.1 Configuration of each lot to allow a 100-foot radius water supply protection zone to fit within the lot lines; or 21.2.2.2 Establishment, through protective or restrictive covenants, as appropriate, of a 100-foot protection zone around each existing and proposed well site. Such zones shall be shown on the final plat map. 21.2.3 Where a subdivision to be served by a community well or wells is proposed, all requirements of WAC 246-290 and WAC 246-291 shall be met. This will include wellhead protection when applicable. 21.2.4 Where preliminary approval of a subdivision is requested, provision of at least one soil log per proposed lot, unless the health officer determines existing soils information allows fewer soil logs; 21.2.5 Determination of the minimum lot size or minimum land area required for the development using Method land/or Method II: 21.2.5.1 METHOD I. Table VII, Single Family Residence Minimum Lot Size or Minimum Land Area Required Per Unit Volume of Sewage, shows the minimum lot size required per single family residence. For developments other than single family residences, the minimum land areas shown are required for each unit volume of sewage. TABLE VII MINIMUM LAND AREA REQUIREMENT SINGLE FAMILY RESIDENCE OR UNIT VOLUME OF SEWAGE Type of Soil Type (defined by section 11 of this article)' Water Supply 1 A, 1 B 2A, 26 3 4 5 6 Public 0.5 12,500 sq. 15,000 sq. 18,000 sq. 20,000 sq. 22,000 sq. acre2 ft. ft. ft. ft. ft. Individual, on or to each lot 1 acre2 1 acre 1 acre 1 acre 2 acres 2 acres AMENDED June 1. 1999 4-54 JUN-04-2004 FRI 09 35 RM PRRAMETRIX FRX N0. 360 459 0154 ,. _ . .. i l ENOINtl~tRINO . ~LANNINO ~ RNVIgONMMNYwL rC1atNGLt sago T~CLON IANE. SUtTE D L1CEY.VI~ASHINGTON 9IIS16-664t T. 360.459.3609 !. 360.459.ot54 ~ www.p-lamalrr><.rom ~ P. Ol ,~-~ 1 ~~~ .sus ~:,"5~7 ~ ~. F A X T R A !N S M! T T A L. i FAX: 36o-a59-o~54~~ PHONE; 360-459-3609 To: rt~-~ ~c~~ o~.ta: lP ~~ d ~ F om- s~nt By: t~~ (~ ~ ~SCSn Project Number: Phone: P~oject Name: Fax: cc: ~ ~ ~ ~~~ TPtal Pages: ^ URGEN7 (] FOR REVIEW ^ PER YOt1R~FiEC1UEST [] PLEASE REPLY ^ FOR YOUR FILES BACKUP COPY WILL NOT BE SENT Cottiments/Message: .. ~ i ~` ' ~ /~ K ~~5~~ ~slc 3~ I ~ ~/r/~~~ I ., TAii tustmlle la COnfldenbm and may also De 3ttomeypn~ItAylQ. If ~ ~ ora not the Intt:ntlad )etlp{an1 or {ha poraon reapoMabla br tis tllStrlbution. pioasa call us tolled {mmetl~ateiy at 380.4683609 nna return tie a~ln0i to us via tAe U.S. Pocta{ Serves Thank you. to«. o7b3) r i _J04 FRI 09 36 AM PARAMETRIX FAX N0. 360 459 0154 P. 02 `r I ~ocaoo d Tree Proposed Access Close & Revegetate~ r Existing Access Existing Access ___w____ Proposed ` Access ~ 6" Cottonwood , 12"Cherry ~~ ~~ 8" Triple Willow = "F~ ' 12"Hemlock ,~ 12"Hazelnut ~ Tree Schedule: 2-Cottonwood Remove & Replace 1-Cherry Transplant 1-Triple Willow Remove & Replace 1-Hemlock To Remain 1-Hazelnut To Remain '~~~~ ~ ~ ~:.~~; at:sa;:~;a<. ~ "- '' ~ ~~~~~e:, ;.~.y I 'Y 114~I~~(y~.~~ ~j ~~"~i ~n'l Y d :, r r 'RF' , ~' r a .~~:. y. Y~.( ~ 1 I I 1 _ ` I „~" t I I 1 I I _ 1 L y, 'I 1 '~ i I J ~- '---- ----------------J Presubmission Meeting January 14, 2004 These comments are preliminary in nature and are not intended to represent final comments and or requirements for the City of Yelm. Until a complete application is made, the Community Development Department can only attempt to inform the applicant of general requirements as they appear in the form presented by the applicant at the time of pre-submission. Proponent: Darren Buck and Bill Ostoruske Representative: Cathie Carlson Project Proposal: Subdivide approximately 8.4 acres into 34 single-family lots and 12 townhouse lots. Project Location: SE Middle Road 6430360070 Zoning Moderate Density Residential (R-6), Chapter 17.15 Density - 6 units per acre -Maximum number of lots allowed is 50, based on the approximate acreage of 8.4. Actual acreage to be determined by a licensed surveyor. Setbacks: Landscaping Front yard - 15' from R-O-W, with a 20' driveway approach. Rear Yard - 25' Side yard -minimum 5', Flanking Yard - 15' total both sides 12' Chapter 17.80 YMC codes requires landscaping for new and expanded development to screen incompatible uses, to soften the hardscape between parking lots and buildings as well as streets and parking lots, to provide shade in parking lots, and to ensure storm water treatment and storage areas are aesthetic. Type II landscaping is intended to provide visual separation of uses from streets, and visual separation of compatible uses so as to soften the appearance of streets, parking areas, and building elevation. This landscaping is used around the perimeter of a site, and adjacent to buildings. Type II landscaping is used around the perimeter of the site to provide visual separation between compatible uses. For a residential subdivision, a 6-foot board fence is acceptable. Type II landscaping is characterized by an 8 foot landscape strip between uses and a 5 foot strip around buildings of any combination of evergreen and deciduous trees (with no more than 50 percent being deciduous), shrubs, earthen berms and related plant materials or design features may be selected; provided, that the resultant effect is to provide partial screening and buffering between uses and of softening the appearance of streets, parking and structures. • Type III landscaping is intended to provide visual relief where clear sight is desired. This landscaping includes street trees and vegetation required with frontage improvements and landscaping to provide an attractive setting and overstory canopy. Type III landscaping is typified by a six foot landscaping strip with street trees for a large overstory canopy along streets and pedestrian corridors and grass or other approved vegetation for groundcover. Earthen berms with grass or other vegetative groundcover and other design features may be worked into landscaping provided the resultant effect of providing apedestrian-friendly environment and visual relief where clear site is required can be achieved. • Type IV landscaping is intended to provide visual relief and shade in parking areas. • Type V landscaping is required in storm water retention areas. The floor and slopes of any stormwater retention/detention area shall be planted in vegetation that is suitable and will thrive in hydric soils. The landscaping of the stormwater facility shall be incorporated with all on-site landscaping. A conceptual landscaping plan is required with the application for Preliminary Plat. Final landscaping and irrigation plan is required as element of civil construction drawings, with installation prior to final plat approval. Traffic Chapter 15.40 YMC, Concurrency Management. The City has adopted a Transportation Facility Charge (TFC) of $750.00 per pm peak trip. The Ordinance provides a default table that the applicant can use to determine new pm trips generated by the proposed use. A single family home generates 1.01 pm peak trips per unit, which is equivalent to a $757.50 TFC. The TFC is payable at time of building permit issuance. For developments creating more than 20 new trips in to the traffic system, a traffic impact analysis is required. If the applicant feels the proposed use would not generate the default number of trips as designated in the TFC Ordinance, an analysis prepared by a Traffic Engineer can be submitted to the City for review and consideration. The subdivision code, Chapter 16.16.060 YMC requires every subdivision of 25 or more housing units to provide more than one vehicular access from an arterial or collector street. Access to collector streets shall be limited to one access in 300 feet. All lots shall be served by a street built to applicable city standards, with a minimum of 20-feet of road frontage. The subdivision code, Chapter 16.16.090 requires that the layout of streets shall provide for continuation of streets existing in adjoining subdivisions. The proposed street connection meets this requirement. State Environmental Policy Act. (SEPA) A SEPA Environmental checklist is required, including a Transportation Impact Analysis (TIA) The TIA will be used to identify traffic impacts resulting from the project and improvements necessary to address safety issues (acceleration and deceleration lanes.) Yelm School District requires applicants to mitigate impacts to the School District from residential growth. Each developer must negotiate an agreement with the School District. As of April 2002, mitigation fees per single-family residential unit are $1,625.00. Open Space Chapter 16 YMC. Subdivision and Chapter 14.12 YMC Open Space All residential developments are required to provide 5% of the gross area in open space. For this development, the flood zone area should be dedicated as open space. Open space shall be dedicated and have the following attributes and characteristics: Environmental interpretation or other education; Park, recreational land, or athletic fields; Off-road footpaths or bicycle trails; or Any other use found by the City to further the purposes of this chapter. Other Thurston County Health Department Review may be required if any wells and/or septic systems are located on or within 100' of property. All wells and septic systems within 100' of the property must be shown on preliminary plat drawings. Any existing wells and septic must be abandoned, and any water rights deeded to the City. ORCAA: Buildings containing asbestos and/or lead paint are potential environmental and health hazards. State and federal laws regulate the demolition of buildings containing asbestos and/or lead paint. State law (Chapter 173-425 WAC) defines land clearing burning as outdoor burning of trees, stumps, shrubbery, or other natural vegetation from land clearing projects. Olympic Region Clean Air Authority (ORCCA) issues land clearing permits for burning. The applicant shall contact the ORCAA, 2940-B Limited Lane NW, Olympia, WA 98502, (360) 586-1044 to secure any necessary permit(s) for the removal of materials containing asbestos and/or lead paint, and for land clearing burn permits. Prior to issuance of a city building permit the applicant shall demonstrate compliance with any ORCAA requirements, and prior to any demolition, proof of compliance with ORCAA and a City demolition permit is required. Application/Process Development of the site as a residential subdivision requires Preliminary and Final Plat Approval, including Environmental Review. Preliminary Plat approval requires a public hearing before the Hearing Examiner. The environmental determination and preliminary plat are reviewed concurrently and can be completed in 16 to 18 weeks. Preliminary Plat approval is valid for 5 years. Preliminary subdivision approval typically contains conditions of approval that the applicant must complete prior to receiving final subdivision approval or permits for construction. Following land use approval the applicant is required to submit civil construction drawings to the Community Development Department for review and approval, and satisfy all conditions of preliminary subdivision approval. Upon satisfactory completion, the applicant submits the final documentation for final plat approval. Final Plat approval takes approximately 6-8 weeks from the time the City receives a completed application packet. MEMORAND UM City of Yelm Community Development Department Engineering Division Pre-Application Meeting Date January 14, 2004 Civil Comments These comments are preliminary in nature and are not intended to represent final comments and or requirements for the City of Yelm. Until a complete application is made, the Community Development Department can only attempt to inform the applicant of general requirements as they appear in the form presented by the applicant at the time of pre-submission. Proponent: Darren Buck and Bill Ostoruske Project: 34 Lot Subdivision with 12 Townhomes Project Location: 16440 SE Middle Road Yelm, WA 98597 Water The proposed site is currently located in the City of Yelm's water system service area. An existing 10" water main is located in Middle Road. This project will be required to connect to this water main. This project will also be required to install a min. of 8" water mains along all new proposed roadways within the subdivision. Each lot will be required to have a water meter, water meter setter and water meter service. Residential water connections are based on a consumption rate of 240 gallons per day and are charged at a rate of $1,500 per a residential connection (fee subject to change) inside city limits. Each residential unit would be charged for one connection. This fee is payable at building permit issuance. Irrigation Meter: An irrigation meter shall be installed for the purpose of irrigation. An approved backflow prevention device will be required for all landscape irrigation connections. Cross Connection Control: Washington State Department of Health, in WAC 246-290-490 states that all group A water systems with 1000 or more connections are required by the department of health to develop and implement a cross control connection program. This program requires all commercial buildings and irrigation systems to have a back flow prevention device installed on the water services. A list of approved devices can be located at the above referenced Washington Administrative Code. Sewer The proposed site is currently located in the City of Yelm's STEP sewer system service area. There is an existing 6" sewer main located in Middle Road. This project will be required to connect to this sewer main. This project will also be required to install sewer mains along all new proposed roadways within the subdivision. The sewer main sizes will be reviewed on the preliminary plat application. Each lot will be required to have a step connection box and step sewer service. Residential sewer connections are based on a consumption rate of 240 gallons per day and are charged at a rate of $5,269.00 per a residential connection (fee subject to change) inside city limits. Each residential unit would be charged for one connection. An inspection fee of $145.00 per a STEP sewer system will also be required. These fees are payable a building permit issuance. Fire All projects need to have fire protection for the buildings. When reviewing proposals or projects for compliance with the 1997 Uniform Fire Code (UFC) the following need to be addressed: Does the proposal have fire hydrant coverage? To meet this requirement the building must have coverage by fire hydrants. All parts of the buildings must be within 300' of a fire hydrant. Another means of meeting fire code may be by installing a fire sprinkler system in each residence. stormwater Developments with over 5,000 square feet of impervious surface are required to provide stormwater facilities pursuant to the 1992 DOE stormwater Manual. If stormwater mitigation is required the types of stormwater mitigation may be wet ponds, bioswales and filter strips. The stormwater disposal is typically 100% infiltration. There is 2 ways to accomplish this: open ponds and underground galleries. The open ponds are depressions that store stormwater and allow it to perk back into the underground aquifer. Note: This site is known to have high ground water due to the proximity of Yelm Creek. The storm water code requires 3' of separation from the infiltrative surface to the winter- time high ground water level. Street Improvements Frontage improvements shall be consistent with Yelm's Development Guidelines. These improvements may consist of asphalt widening, curb and gutter, landscape planter, street trees, sidewalk and street lighting. Middle Road is classified as a "Neighborhood Collector." This roadway requires a 16' paved asphalt section, concrete curb and gutter, planter island, 5' sidewalk and street lighting. This street classification also does not allow on street parking. Internal plat roads will be classified as a "Local Access Residential." This roadway requires paved traffic lanes, paved parking lanes, concrete curb and gutter, planter island, 5' sidewalk and street lighting. This street classification allows on street parking. The site plan entrance to the east appears needs to have the entering and stopping site distance measured. As presented, the distances appear to be shorter than required. ADA Requirements The American Disabilities Act required that facilities are ADA accessible. Facility improvements will have to meet current code. Review of these improvements will be determined upon further review of the civil and architectural plans. ~~' ~~ THr, AA`q~ I~ ~: ~ ~~~ WASHINGTON CITY OF YELM PO Box 479 Yelm WA 98597 360-458-3244 Presubmission Meeting Request Form FPP~ Nine OFFICIAL USE ONLY Fee N/A Date Received By File No. A presubmission conference is an opportunity for applicants, developer(s) and/or consultants to meet with city staff to discuss preliminary studies or sketches of a proposed project. At the conference the staff will make available information relating to the proposed development. The intent is to identify and eliminate as many potential problems as possible in order for the project to be processed without delay. The conference should take place prior to detailed work by an engineer or surveyor, however a site drawing must be submitted that has sufficient information to allow for evaluation. Discussion topics will include such things as Yelm's Comprehensive Plan, street design, storm runoff and retention, Shoreline Master Program, zoning, availability of sewer and water, development concepts, other requirements and permits, and the environmental impact. Staff notes are prepared and available to review. There is no charge for this meeting. Meetings are held each Wednesday. This request form should be submitted by 5:00 p.m. at least one week before the preferred meeting date. MEETING DATE REQUESTED January 14, 2004 3:00 pm (a Wednesday) Time (afternoon only) APPLICANT Darren Buck & Bill Ostoruske OWNER Kathryn Dotson ADDRESS 6108 49th St Ct. West University Place. WA 98467ADDRESS 16440 SE Middle Rd TELEPHONE (253) 297-2000 or (253) 381-2468 TELEPHONE REPRESENTATIVE (if any) Cathie Carlson OCCUPATION Planner _ ADDRESS 8830 Tallon Lane SE Olympia WA 98516 TELEPHONE (360) 459-3609 General location of the project South side of Middle Rd lust east of Prairie Creek Subdivision Section 19 Township 17 Range 2E Assessor's Tax Parcel Number 6430360070 Type of Project (Subdivision, Annexation, Zone Change, etc..) Subdivision Total acreage 8.4 Proposed Density 5.5 gross Proposed Land Use: Single-family Duplex Multi-family Mobile Home Park Commercial Industrial Brief description of project Single Family subdivision with approximately 34 lots for single family detached housing and 12 lots for single family attached homes (Townhouses) Please attach six copies of a site plan drawing not larger than 11" X 17" and forward to Yelm City Hall. E-1