Hard File ScannedOWENS DAMES, P.S.
Attorneys at Law
Frank J. Owens
Richard G. Phillips, Jr.
Brian L. Budsberg
Michael W. Mayberry
Kirk M. Veis
Matthew B. Edwards
Brent F. Dille
Arthur L. Davies (Retired)
Burton R. Johnson (1970)
Grant Beck, Director
City of Yelm
Community Development Department
P.O. Box 479
Yelm, WA 98597
=r ~~~~
~PF° ~ ~` ~~~~
April 12, 2006
RE: Yelm Commerce Group v. City of Yelm, et al
Dear Mr. Beck:
Street Address:
926 - 24`h Way SW
Olympia, Washington 98502
Mailing Address:
P. O. Box 187
Olympia, Washington 98507
Phone (360) 943-8320
Facsimile (360) 943-6150
The Court entered its order dismissing this matter on March 10, 2006. The 30 days within which
the petitioner had the opportunity to file an appeal have expired, and they have not filed an appeal.
Therefore, the litigation has concluded.
Therefore, I am closing my file. It has been a pleasure working with you on this case.
Very truly
MBE/ta
Enclosures
OWE~iS ~AyI~S, P.S.
Edwards
C:U4\MBE\YelmVClient\Beck 041206.wpd
~ECEIVEL~
JAN 19 200E
CASE TYPE 2
~~ f STo II COUNTY SUPERIOR COURT
CASE INFORMATION COVER SHEET
Case Number Case Title i C ~ V • C~-~f ~'f ~~lM +~" a~
Attorney Name ~uYicQ A• ~f'«~~~~ Bar Membership Number ~ S $3
Please check one category that best describes this case for indexing purposes. Accurate case indexing not only saves
time in docketing new cases, but helps in forecasting needed judicial resources. Cause of action definitions are listed
on the back of this form. Thank you for your cooperation.
APPEALIREVIEW
_ Administrative Law Review (ALR 2)
Appeal of a Department of Licensing Revocation (DOL 2)
Civil, Non-Traffic (LCA 2)
Civil, Traffic (LCI 2)
CONTRACTICOMMERCIAL
_ Breach of Contract (COM 2)
_ Commercial Contract (COM 2)
_ Commercial Non-Contract (COL 2)
_ Third Party Collection (COL 2)
MERETRICIOUS RELATIONSHIP
_ Meretricious Relationship (MER 2)
DOMESTIC VIOLENCEJANTIHARASSMENT
Civil Harassment (HAR 2)
Domestic Violence (DVP 2)
_ Foreign Protection Order (FPO 2)
Vulnerable Adult Protection (VAP 2)
JUDGMENT
_ Abstract Only (ABJ 2)
Foreign Judgment (FJU 2)
Judgment, Another County (ABJ 2)
_ Judgment, Another State (FJU 2)
Tax Warrant (TAX 2)
Transcript of Judgment (TRJ 2)
OTHER COMPLAINTIPETRION
Action to Compel/Confirm Private Binding Arbitration (MSC 2)
Change of Name (CHN 2)
_ Deposit of Surplus Funds (MSC 2)
Emancipation of Minor (EOM 2)
Injunction (INJ 2)
Interpleader (MSC 2)
_ Malicious Harassment (MHA 2)
_ Minor Settlement (No guardianship) (MST 2)
Petition for Civil Commitment (Sexual Predator)(PCC 2)
Seizure of Property from Commission of Crime (SPC 2)
Seizure of Property Resulting from a Crime (SPR 2)
_ Subpoenas (MSC 2)
PROPERTY RIGHTS
_ Condemnation (CON 2)
_ Foreclosure (FOR 2)
Land Use Petition (LUP 2)
Property Fairness (PFA 2)
Quiet Title (OTI 2)
Unlawful Detainer (UND 2)
TORT, MEDICAL MALPRACTICE
_ Hospital (MED 2)
_ Medical Doctor (MED 2)
_ Other Health Care Professional (MED 2)
TORT, MOTOR VEHICLE
_ Death (TMV 2)
Non-Death Injuries (TMV 2)
Property Damage Only (TMV 2)
TORT, NON-MOTOR VEHICLE
_ Asbestos (PIN 2)
_ Other Malpractice (MAL 2)
Personal Injury (PIN 2)
Products Liability (TTO 2)
_ Property Damage (PRP 2)
_ Wrongful Death (WDE 2)
WRR
Habeas Corpus (WHC 2)
Mandamus (WRM 2)
Restitution (WRR 2)
_ Review (WRV 2)
IF YOU CANNOT DETERMINE THE APPROPRIATE CATEGORY, PLEASE DESCRIBE THE CAUSE OF ACTION BELOW.
APPEAUREVIEW
Administrative Law Review-Petition to
the superior court for review of rulings
made by state administrative agencies.
Appeal of a Department of Licensing
Revocation-Appeal of a DOL revocation
(RCW 46.20.308(9)).
Lower Court Appeal-Civil-An appeal for
a civil case; excludes traffic infraction and
criminal matters.
Lower Court Appeal-Infractions-An
appeal for a traffic infraction matter.
CONTRACT/COMMERCIAL
Breach of Contract-Complaint involving
monetary dispute where a breach of
contract is involved.
Commercial Contract-Complaint
involving monetary dispute where a
contract is involved.
Commercial Non-Contract-Complaint
involving monetary dispute where no
contract is involved.
Third Party Collection-Complaint
involving a third party over a monetary
dispute where no contract is involved.
MERETRICIOUS RELATIONSHIP
Meretricious Relationship-Petition for
distribution of property from a
meretricious relationship (i.e., a stable,
marital-like relationship where both
parties cohabit with knowledge that a
lawful marriage between them does not
exist).
DOMESTIC
VIOLENCE/ANTIHARASSMENT
Civil Harassment-Petition for protection
from civil harassment.
Domestic Violence -Petition for
protection from domestic violence.
Foreign Protection Orders-Any
protection order of a court of the United
States, or of any state or territory, which
is entitled to full faith and credit in this
state.
Vulnerable Adult Protection-Petition for
protection order for vulnerable adults, as
those persons are defined in RCW
74.34.020.
JUDGMENT
Abstract Only-A certified copy of a
judgment docket from another superior
court, an appellate court, or a federal
district court.
Foreign Judgment-Any judgment,
decree, or order of a court of the United
States, or of any state or territory, which
is entitled to full faith and credit in this
state.
Judgment, Another County-A certified
copy of a judgment docket from another
superior court within the state.
Judgment, Another State-Any
judgment, decree, or order from another
state which is entitled to full faith and
credit in this state.
Tax Warrant-A notice of assessment by Foreclosure-Complaint involving termination of
a state agency creating a judgment/lien in ownership rights when a mortgage or tax
the county in which it is filed. foreclosure is involved, where ownership is not
Transcript of Judgment-A certified copy
of a judgment from a court of limited
jurisdiction to a superior court in the same
county.
OTHER COMPLAINT/PETITION
Action to Compel/Confirm Private
Binding Arbitration-Petition to compel
or confirm private binding arbitration.
Change of Name-Petition for a change
of name. If change is confidential due to
domestic violence/antiharassment see
case type 5 instead.
Deposit of Surplus Funds-Deposit of
money or other item with the court.
Emancipation of Minor-Petition by a
minor for a declaration of emancipation.
Injunction-Complaint/petition to require a
person to do or refrain from doing a
particular thing.
interpleader-Petition for the deposit of
disputed earnest money from real estate,
insurance proceeds, and/or other
transaction(s).
Malicious Harassment-Suit involving
damages resulting from malicious
harassment.
Minor Settlements-Petition for a court
decision that an award to a minor is
appropriate when no letters of
guardianship are required (e.g., net
settlement value $25,000 or less).
Petition for Civil Commitment (Sexual
Predator)-Petition for the involuntary civil
commitment of a person who 1) has been
convicted of a sexually violent offense
whose term of confinement is about to
expire or has expired, 2) has been
charged with a sexually violent offense
and who has been determined to be
incompetent to stand trial who is about to
be released or has been released, or 3)
has been found not guilty by reason of
insanity of a sexually violent offense and
who is about to be released or has been
released, and it appears that the person
may be a sexually violent predator.
Seizure of Property from the
Commission of aCrime-Seizure of
personal property which was employed in
aiding, abetting, or in the commission of a
crime, from a defendant following criminal
conviction.
Seizure of Property Resulting from a
Crime-Seizure of tangible or intangible
property which is the direct or indirect
result of a crime, from a defendant
following criminal conviction (e.g.,
remuneration for, or contract interest in, a
depiction or account of a crime).
Subpoenas-Petition for a subpoena.
PROPERTY RIGHTS
Condemnation-Complaint involving
governmental taking of private property
with payment, but not necessarily with
consent.
in question.
Land Use Petition-Petition for an expedited
judicial review of a land use decision made by a
local jurisdiction (RCW 36.70C.040).
Property Fairness-Complaint involving the
regulation of private property or restraint of land
use by a government entity brought forth by
Title 64 RCW.
Quiet Title-Complaint involving the ownership,
use, or disposition of land or real estate other
than foreclosure.
Unlawful Detainer-Complaint involving the
unjustifiable retention of lands or attachments to
land, including water and mineral rights.
TORT, MEDICAL MALPRACTICE
Hospital-Complaint involving injury or death
resulting from a hospital.
Medical Doctor-Complaint involving injury or
death resulting from a medical doctor.
Other Health Care Professional-Complaint
involving injury or death resulting from a health
care professional other than a medical doctor.
TORT, MOTOR VEHICLE
Death-Complaint involving death resulting from
an incident involving a motor vehicle.
Non-Death Injuries -Complaint involving
non-death injuries resulting from an incident
involving a motor vehicle.
Property Damage Only-Complaint involving
only property damages resulting from an
incident involving a motor vehicle.
TORT, NON-MOTOR VEHICLE
Asbestos-Complaint alleging injury resulting
from asbestos exposure.
Other Malpractice-Complaint involving injury
resulting from other than professional medical
treatment.
Personal Injury-Complaint involving physical
injury not resulting from professional medical.
treatment, and where a motor vehicle is not
involved.
Products Liability-Complaint involving injury
resulting from a commercial product.
Property Damages-Complaint involving
damage to real or personal property excluding
motor vehicles.
Wrongful Death-Complaint involving death
resulting from other than professional medical
treatment.
WRIT
Writ of Habeas Corpus-Petition for a writ to
bring a party before the court.
Writ of Mandamus-Petition for a writ
commanding the performance of a particular act
or duty.
Writ of Restitution-Petition for a writ restoring
property or proceeds; not an unlawful detainer
petition.
Writ of Review-Petition for review of the record
or decision of a case pending in the lower court;
does not include lower court appeals or
administrative law reviews.
Case Type 2 April 2001
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP, a
Washington non-profit corporation,
Petitioner,
v.
NO.
LAND USE PETITION
CITY OF YELM; PACLAND, INC.; and
WAL-MART STORES, INC.
This petition initiates an appeal of the City of Yelm Hearing Examiner's decision to
approve a site plan and State Environmental Policy Act ("SEPA") review for a Wal-Mart
project proposed for the City of Yelm. This is also an appeal of a subsequent affirmation
of the Examiner's site plan approval by the City of Yelm City Council.
This appeal is commenced pursuant to the Land Use Petition Act (LUPA), ch.
36.70C RCW. Pursuant to LUPA, petitioner alleges as follows:
I. NAME AND MAILING ADDRESS OF THE PETITIONERS
Yelm Commerce Group
P.O. Box 1616
Yelm, WA 98597
LAND USE PETITION - 1
Bricklin TTewman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (20G) 264-9300
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II. NAME AND MAILING ADDRESS OF PETITIONER'S ATTORNEYS
David A. Bricklin
Bricklin Newman Dold, LLP
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Telephone: (206) 264-8600
Facsimile: (206) 264-9300
III. NAME AND MAILING ADDRESS OF THE LOCAL JURISDICTION
WHOSE LAND USE DECISION IS AT ISSUE
City of Yelm
105 Yelm Avenue West
P.O. Box 479
Yelm, WA 98579
IV . IDENTIFICATION OF THE DECISION-MAKING BODY, TOGETHER
WITH A DUPLICATE COPY OF THE DECISION
The City of Yelm Hearing Examiner, Stephen Causseaux Jr., issued an approval of
the SEPA decision and site plan, Case No. SPR-OS-0091-YL-WAL-MART
SUPERCENTER, on November 1, 2005. A copy of the Hearing Examiner's Report and
Decision is attached hereto as Exhibit A.
The City of Yelm City Council denied an appeal of the site plan on December 28,
2005. The City of Yelm Resolution No. 460 Upholding the Hearing Examiner's Approval
of the Site Plan Review for the Construction of a Wal-Mart Supercenter is attached hereto
as Exhibit B.
V. IDENTIFICATION OF EACH PERSON TO BE MADE A
PARTY UNDER RCW 36.70C.040(2)(b)-(d)
PACLAND, Inc.
606 Columbia Street NW, Suite 106
Olympia, WA 98501
LAND USE PETITION - 2
Bricklin 1~Tewman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (20G) 264-8600
Fax (206)264-9300
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Wal-Mart Store, Inc.
2001 SE 10`h Street
Bentonville, AR 72712-6489
PACLAND, Inc. is identified by name and address in the Hearing Examiner's
written decision as the applicant for the site plan review. Wal-Mart Stores, Inc. is identified
by name and address in the Hearing Examiner's written decision as the owner of the
property at issue.
VI. FACTS DEMONSTRATING THAT THE
PETITIONER HAS STANDING
6.1 Yelm Commerce Group ("YCG") participated extensively during the City
review process for the proposed Wal-Mart project. YCG and its members provided
testimony and written evidence before the City of Yelm Hearing Examiner in the matter
being appealed. Members of YCG live in the City of Yelm where the project will be
located.
6.2 YCG is incorporated as anon-profit corporation under the laws of
Washington State. YCG was incorporated for the purpose of ensuring growth in the City
of Yelm that supports the community's vitality, to assist the City leadership in regulating
growth appropriate to Yelm's size, and to maintain a small town feeling in the City of Yelm.
YCG will be adversely affected by the approval of the site plan and the inadequate SEPA
review because the project will adversely affect YCG's ability to accomplish its corporate
objectives and will adversely affect its members by exposing them to increased traffic
congestion, increased traffic accidents and reduced pedestrian safety. The project will also
cause significant impacts to YCG and its members by creating urban blight in the City of
LAND USE PETITION - 3
$ricklin Newman Dold, LLP
Attorneys-at-Law
1007 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (206) 264-93W
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Yelm and by causing the demise of businesses owned and patronized by members of YCG.
In addition, the project may have significant impacts concerning stormwater and wetlands
which would create adverse impacts to resources which YCG and its members seek to
protect and which cause adverse flooding impacts to the detriment of YCG and its members.
6.3 The Hearing Examiner's decision has prejudiced or is likely to prejudice
YCG and its members because the site plan approval allows the project to proceed and
adversely affects the members of YCG as stated in ¶ 6.2.
6.4 The interests of YCG and its members are among those that the City of Yelm
and the Examiner were required to consider when the land use decision was made. In
making a threshold determination the City was required to consider the environmental impacts
the project would cause and which were of concern to the YCG. WAC 197-11-330. Similarly,
under the Yelm Municipal Code ("YMC") site plans must "conform to the standards,
provisions and policies of the city as expressed in its various adopted ...ordinances."
YMC 17.84.020. The intent of the YMC Chapter 17 (which contains the site plan criteria)
includes the need to "protect the health, safety and general welfare of the city's residents," and
"promote sound economic development and protect property values." YMC 17.03.020
(B & C). It was necessary for the City and Examiner to consider the interest of YCG and its
members to fulfill these goals.
6.5 A judgment in favor of the YCG would substantially eliminate or redress the
prejudice that is caused by the land use decision in this case. A judgment in this case
finding the Hearing Examiner's and City Council's decisions to be erroneous would result
LAND USE PETITION - 4
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 2648600
Fax (206) 2649300
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in a reversal of the decisions approving the project and reversal of the decision that the
project has only insignificant adverse environmental impacts, not warranting preparation of
an Environmental Impact Statement.
6.6 The petitioner has exhausted its administrative remedies to the extent required
by law. YCG representatives and members testified during the public hearing before the
Examiner and submitted written comments as well. The YCG and individual community
members appealed the Examiner's decision to the City of Yelm City Council pursuant to
YMC 2.26.150. That appeal was denied. The YCG's only recourse remains with this
Court.
VII. A SEPARATE AND CONCISE STATEMENT OF EACH
ERROR ALLEGED TO HAVE BEEN COMMITTED
7.1 The Examiner's decision is clearly erroneous because the Examiner failed to
consider that the City did not utilize the proper SEPA process for collecting adequate
information prior to the threshold determination.
7.2 The Examiner's decision is clearly erroneous because the Examiner failed
to consider that the City staff did not meet its duty to "independently evaluate" Wal-Mart's
information and the evidence before the Examiner demonstrated the need for an EIS.
7.3 The Examiner's decision is clearly erroneous because the Examiner failed to
consider that the City relied on inadequate and inaccurate information provided by the
applicant to make its threshold determination.
7.4 The Examiner's decision is clearly erroneous because the Examiner failed to
consider evidence at the hearing that supported a finding that the project would have
LAND USE PETITION - 5
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (206) 26493W
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significant adverse land use impacts that could not be mitigated and therefore required an
Environmental Impact Statement ("EIS")
7.5 The Examiner's decision not to require an Environmental Impact Statement
is clearly erroneous because the proposal has probable significant adverse environmental
impacts which requires preparation of an EIS.
7.6 The Examiner's decision is clearly erroneous because the proposal does not
meet the requirements of all applicable City codes. YCC 17.84.020.C. In particular, Wal-
Mart failed to meet its burden of demonstrating that it had complied with the City's
transportation concurrency requirements
7.7 The Examiner's decision should be reversed because the Examiner
erroneously interpreted the law concerning the City's concurrency analysis.
VIII. A CONCISE STATEMENT OF FACTS UPON WHICH PETITIONER
RELIES TO SUSTAIN THE STATEMENT OF ERROR
8.1 Procedural Background
8.1.1 Pacland, Inc. applied (on behalf of Wal-Mart) to the City of Yelm for
approval of a site plan fora 187,460 square foot retail space. The proposal is fora Wal-
Mart "Superstore" which combines a typical Wal-Mart retail store with a large grocery
store. The Wal-Mart would also include a drive through pharmacy, food service,
automotive repair facility, outdoor garden center, and seasonal sales area. The project will
provide many of the same retail services that are provided by a combination of individual
retail outlets and food stores in the existing Yelm downtown area. The proposed
construction includes off street parking for 822 vehicles.
LAND USE PETITION - 6
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98]54
Tel. (206) 2648600
Fax (20G) 2G4-9300
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8.1.2 The proposed project is located in the City of Yelm on a site zoned
Large Lot Commercial, and is located adjacent to SR 507.
8.1.3 The proposal underwent review by City of Yelm Community
Development Department including SEPA review prior to presentation before the City of
Yelm Hearing Examiner for a final determination on the site plan. However, the City's
"Responsible Official" for environmental review decided that the project would not generate
significant adverse environmental impacts and, therefore, would not require preparation of
an Environmental Impact Statement. The Responsible Official issued a Mitigated
Determination of Non-Significance (MDNS) to document his decision not to require an EIS.
8.1.4 The applicant's request for a site plan approval and the appeal of the
MDNS were the subject of a hearing before the Yelm City Council Hearing Examiner
conducted from August 29, 2005 through September 1, 2005. On November 1, 2005, the
Hearing Examiner approved the site plan and rejected the MDNS appeal. See Exhibit A
hereto.)
8.1.5 YCG appealed the MDNS to the City Hearing Examiner, alleging that
the project had probable significant adverse impacts and that an EIS was required.
8.1.6 The MDNS decision was not subject to review by the City Council.
Only the Site Plan Approval was subject to review by the Council pursuant to YMC
2.26.150. YCG and individual citizens appealed the site plan approval to the City Council.
The Council denied that appeal. See Exhibit B hereto.)
LAND USE PETITION - 7
Bricklin Newman Dold, LLP
Attorneys-at-Law
100] Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (20G) 264-8600
Fax (206) 2649300
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8.2 Summary of Evidence Demonstrating Errors in City's Decisions.
8.2.1 YCG and the citizens of Yelm presented evidence at the Examiner's
hearing demonstrating that the Wal-Mart project will have probable significant adverse
impacts on Yelm's environment. For purpose of giving the other parties notice of our
claims, we incorporate by reference the post-hearing briefs we submitted to the Examiner.
8.2.2 The project will likely work a major transformation in the Yelm
commercial district forcing the closure of many business, shifting the commercial core from
its present location to the Wal-Mart site, and potentially leaving the heart of Yelm struggling
with urban blight for years to come.
8.2.3 There is no indication on either the submitted SEPA checklist or in
the MDNS that the Responsible Official evaluated the applicant's response regarding land
use and urban blight. The Responsible Official requested no additional information from
the applicant regarding urban blight or related land use impacts. At the hearing, the
Responsible Official acknowledged that he had made no assessment of the urban blight issue.
8.2.4 The applicant provided no supplemental information regarding urban
blight and related land use issues.
8.2.5 Evidence presented by Dr. Marlon Boarnet and numerous citizens
indicated that the project would have probable significant adverse impacts in the context of
land use and urban blight. Testimony indicated that the project would have three major
impacts:
a. It would effectively move the downtown core from its current
site to the site of Wal-Mart's proposal;
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 2G48G00
LAND USE PETITION - 8 Fax (206) 264-9300
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b. It would result in a transformation of
the land uses in the present downtown
core area; and
c. It would conflict with one of the
central tenets of the City's
Comprehensive Plan.
8.2.6 The City of Yelm will be detrimentally affected by tremendous
amounts of additional traffic generated by the project. As the citizens demonstrated, the
Wal-Mart traffic will negatively impact safety, the provision of a critical public service
(education), and even mental health.
8.2.7 Evidence presented at the hearing indicated that traffic volumes at
many City of Yelm intersections will increase astronomically as a result of the project. For
instance, waiting times at one intersection would increase from 28 seconds to 736 seconds
and at another intersection from 236 seconds to 940 seconds. As a result of congestion like
this, the level of service for many turning movements at these intersections will decline
significantly. Thousands of motorists will be caught in traffic jams each day. Based on this
evidence the project will result in probable significant adverse transportation impacts.
8.2.8 Most of the data revealing these impacts was buried in abstruse
appendices submitted by Wal-Mart's traffic consultant. The report appeared to be designed
to shed as little light as possible on the traffic issues. An EIS would have forced the
disclosure of this important information.
8.2.9 The City's SEPA analysis failed to consider alternative methods for
assessing level of service impacts and failed to consider the project's long-term
transportation impacts.
LAND USE PETITION - 9
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 2648600
Fax (206) 2649300
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8.2.10 The City's SEPA analysis failed to consider the project's traffic
impacts on future development potential in the City.
8.2.11 Calculations in the project's traffic analysis understated the impact that
the probable traffic congestion would have at the SR 507/SR 510 intersection.
8.2.12 The project traffic analysis failed to take into account the large number
of pedestrians (including school children) attempting to cross Yelm Avenue.
8.2.13 The City's SEPA analysis was based on incomplete information
regarding potentially significant groundwater impacts. The data available to the City
contained considerable uncertainty as to the groundwater level beneath the project's
proposed stormwater pond. Wal-Mart's consultants only guessed as to what the
groundwater levels would be during the wettest months of the year and during particularly
wet years. In addition, Wal-Mart's extrapolated groundwater levels did not match data
available on-site and adjacent to the site.
8.2.14 The City's SEPA analysis was based on incomplete information
regarding potentially significant impacts to wetlands on the project site. Wal-Mart's
wetland expert did his site investigation during the driest time of the year. The search for
wetland vegetation failed to take into account and acknowledge the land was subject to heavy
grazing. Wal-Mart's consultant failed to provide data sheets which are an integral part of
a wetland determination delineation.
8.2.1 S Given the foregoing and other evidence in the record, the Court should
find that there was not substantial evidence in the record to support the Examiner's findings
LAND USE PETITION - 10
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (206) 2649300
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and conclusions that the project would not have probable significant adverse environmental
impacts and would not require an EIS.
8.2.16 A site plan cannot be approved unless a proposal complies with the
City's transportation concurrency ordinance. According to Wal-Mart's own transportation
analysis, intersections along SR 507 do not satisfy the City's concurrency requirements.
8.2.17 The City's LOS standards are found in its Comprehensive
Transportation Plan. The LOS standard for "all commercial and light industrial zones" is
LOS D. Yelm Comprehensive Transportation Plan (Jul. 2001) at 2. The City makes an
exception and allows LOS F in the urban core under limited conditions. Those conditions
do not apply here. According to the Yelm Comprehensive Transportation Plan:
In the urban core, LOS F is recognized as an acceptable level
of service where mitigation to create traffic diversions,
bypasses, and alternate routes and modes of transportation are
authorized and being planned, funded and implemented.
8.2.18 There was not substantial evidence provided by Wal-Mart or the City
at the hearing that there are any "traffic diversions, bypasses, alternate routes or alternate
modes of transportation" that are being "planned, funded and implemented" that would
mitigate the current traffic congestion on Yelm Avenue
8.2.19 As acknowledged by testimony at the hearing multiple methods are
available to calculate LOS. The Examiner's (and staff's) use of only one available method
ignored congestion along Yelm Avenue that would result in LOS E or F at various additional
intersections as well as along the length of Yelm Avenue itself (using the "urban street
LOS" method).
LAND USE PETITION - 11
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (20~ 2648600
Fax (206) 2649300
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8.2.20 The City applied the wrong level of service standard to test traffic
concurrency on-the state roads that run through Yelm and which will be heavily impacted
by this project. The City applied its own level of service standards for the state routes yet
RCW 47.80.030 dictates that the level of service on the state routes be established by the
regional transportation planning organization. The City erred in not applying those more
stringent standards here.
IX. REQUEST FOR RELIEF
9.1 Petitioner Yelm Commerce Group requests the following relief:
9.1.1 An order requiring the City of Yelm to submit to the Court a certified
copy of the non-duplicative and relevant portions of the administrative record for judicial
review;
9.1.2 An order reversing the Hearing Examiner's approval of the site plan
and SEPA review;
9.1.3 An order directing the City to prepare an EIS;
9.1.4 An order reversing the City of Yelm's City Council decision
upholding the Hearing Examiner's decision to approve the site plan;
9.1.5 An award of petitioner's statutory attorney's fees and costs;
LAND USE PETITION - 12
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-5600
Fax (206) 2649300
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9.1.6 Any other relief deemed necessary by the Court.
Dated this ~ day of January, 2006.
Respectfully submitted,
BRICKLIN NEWMAN DOLD, LLP
By:
David A. Bricklin
WSBA No. 7583
Attorneys for Petitioner
YCG\Superior\Land Use Petition
LAND USE PETITION - 13
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (206) 264-9300
RECEIVED
OFFICE OF THE HEARING EXAMINER
NOV 0 2 1005
CITY OF YELM
REPORT AND DECISION
CASE NO.:
BRICKLIN NEWMAN GOLD. LLP
SPR-05-0091-YL - WAL-MART SUPERCENTER
APPLICANT: PACLAND, Inc.
606 Columbia Street NW, Suite 106
Olympia, WA 98501
PROPERTY OWNER: Wal-Mart Stores, Inc.
2001 SE 10`" Street
Bentonville, AR 72712-6489
APPLICANT'S
ATTORNEY: John C. McCullough
McCullough Hill Fisko Fretscmer Smith Dixon
2025 First Avenue, Ste. 1130
Seattle, WA 98121-2100
APPELLANT: Yelm Commerce Group
P.O. Box 1616
Yelm, WA 98597
APPELLANT'S
ATTORNEY: David A. Bricklin
Bricklin Newman Dold
1001 Fifth Avenue, Ste. 3303 ~ _ .
Seattle, WA 98154
SUMMARY OF REQUEST:
The applicant is requesting site plan review approval to allow construction of a Wal-Mart
supercenter store. The proposal includes a 187,400 square foot building housing mixed
retail (including the sale of groceries, dry goods, electronics, a drive through pharmacy,
food service, and an automotive repair facility). The proposal also includes a 14,000 square
foot garden center and associated parking. The property is located north of State Route
507 east of Grove Road and is identified by assessor tax parcels 64303101100,
64303101000, and 64303101101.
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EX+~ t8 lT ~
SUMMARY OF APPEAL:
The Yelm Commerce Group filed an appeal of the MDNS issued on June 7, 2005. Said
appeal was filed on June 30, 2005, citing probable significant adverse impacts on the
environment.
SUMMARY OF DECISION:
Request 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 hearings were conducted on August 29, August 30, and September 1, 2005.
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 No. Document Description
1 Site Plan Review Application
2 Site Plan
3 Design Guidelines Project Review Checklist
4 Title Reports
5 Perspective View
g Phase I Environmenta[ Site Assessment -Zipper, Zeman Associates, Inc.
7 Environmental Checklist
8 Revised Environmental Checklist
g Site Reconnaissance Report - TALASAEA Consultants, Inc.
10 Preliminary Drainage and Erosion Control Report - PACLANO -Bill Dunning
11 Traffic Impact Analysis - TRANSPO
11 a Traffic Impact Analysis - Appendix A -Traffic Counts
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11 b Traffic Impact Analysis - Appendix B -LOS Criteria and Definitions
11c Traffic Impact Analysis - Appendix C -LOS Worksheets
11d Traffic Impact Analysis - Appendix D -Trip Generation Worksheets
12 Water Supply Report - PACLAND -Bill Dunning
13 Geotechnical Engineering Evaluation -Zipper Zeman Associates, Inc.
14 Letter (Grant Beck to PACLAND) -Application Complete
15 Notice of Application
16 Letter (Grant Beck to PACLAND) -Requesting Additional Environmental Information
17 Letter (PACLAND to Grant Beck -Response to Request for Additonaf Envircnmental
Information
18 Letter (PACLAND to Grant Beck) -Truck Loading Noise Reduction Measures
19 Letter (TRANSPO to Grant Beck) -Impacts of Extending Y3 Roadway to 103t° Avenue
SE
Agency Comments
20 I Washington Department of Ecology -Erosion control measures during construction
21 Intercity Transit -Transit routes, connections, pedestrian access
22 Olympic Region Clean Air Agency -Demolition Permit/Asbestos
23 I Olympic Region Clean Air Agency -Notice of Ccnstruction
24 Letter (Knoll Lowney to Grant Beck) =SEPA Issues
25 Letter (Grant Beck to Knoll Lowney) -Response to SEPA Issues
26 Attachment -Letter (Brent Dille to City Council) -City Council receiving testimony
regarding big box development
27 Public Comment Letters -After application submitted
27a Paulette Slaeng
27b Frances Easley
27c Jann Shia
27d Dianne Bunnell
27e John Bowman
27f Rory B. Segner
27g Char Hayes
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27h Char Hayes
27i Helge Sandberg
27j Lisa M. Beverly
27k Catherine Alexander
271 Serlay
27m Valerie 8lauski
27n Ruth A. Jacobson
27o Eleonora Biemacka
27p Frances Oliver
27q N.Oliverio
27r Joanne Tarascio
27s Kitty McKim
27t J. Mason
27u Donald Pidock
27v Debra Mauer
27w Herb Hepburn
27x Robert E. Beowe
27y Ellen Calleja
27z Patricia Donnelly
27aa Emily Stackhouse
27ab Judy Allison
27ac Valentin Fyrst
27ad Kim Jones
27ae Rosalie Saecker
27af ~ Linda Powell
27ag ~ M Lancaster
27ah ~ Raymond Bell
27af ~ Alison Baker
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27aj Evom LeFarge
27a1 Marian Lancaster
27am Mary Thompson
27an Marcia McHattie
27ao James Edwards
27ap Barbara Wade
27aq Clare Wade
27ar Carrie Bellinger
27as Marjorie Leggett
27at Dale Rutherfcrd
27au Brian & Carol Cavanaugh
27au Carolyn GiaMarco
27aw Carolyn GiaMarco
27ax Carolyn GiaMarco
27ay Cordon's Garden, Center
• 27az William Hashim
27ba Edward Wiltsie
27bb Edward Wiltsie
27bc Edward Wiltsie
27bd Yelm Commerce Group
27be Yelm Commerce Group •
27bf Yelm Commerce Group
28 Public Comment Letters 8~ Responses- Before application submitted
28a Bettye Johnson
28b Grant Beck reply to Bettye Johnson 10/14/04 letter
28c Tom Foley
28d Geneme' Adendorff
28e Edward A. Wiltsie
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28f Grant Beck reply to Edward Wltsie 11/10/04 letter
28g Edward A. Wiltsie
28h Sara Foster
28i Grant Beck reply to Sara Foster 12/8/04 letter
28j Cathy Elledge (cc also sent to Thurston County Planning)
28k Grant Beck reply to Cathy Elledge 12/171041etter
281 Jan Ferrari (to Nisqually Valley News, cc to City of Yelm)
28m Amy Stark
28n Nancy Breidenthal
280 Edward A. Wltsie (to Nisqually Valley News)
28p Edward A. Wiltsie
28q Edward A. Wltsie
28r Louise Oliverio
29 Mitigated Determination of NonSignificance (MDNS) Cover Memo
30 Mitigated Determination of NonSignificance (MDNS)
31 Appeal of MDNS by Yelm Commerce Group
32 Notice of Public Hearing
33 Letter (Claudia M. Newman to John C. McCullough & Grant Beck) MDNS Appeal expert
witness list and specific issues to be raised
34 Staff Report To Hearing Examiner- Site Plan Review
35 Staff Report to the Hearing Examiner - SEPA Appeal
36 Letter (Nancy Bridenthal)
37 Postcard (Sara Foster)
38 Form Letter (Francesco Chiechi)
39 Form Letter (Illegible Name)
40 ~ Letter (Ruth E. Lucas)
41 ~ Letter (Robin L. Friend)
42 ~ Letter (John and Cheryl McCracken}
43 ~ Email (Adriene Brownfield)
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44 Letter (Heidi Smith)
45 Postcard (Gary/ and Pam Nichols)
46 Letter (Trujillo-Martin Family)
47 Letter (Jack and Marybelle Rice)
48 Letter (Vickie Rolland)
49 Letter (Edith J. Olson)
50 Letter (B.J. Figgins)
51 Letter (Karen L. Dougherty)
52 Letter (Garry and Pam Nichols)
53 Letter (Ernie and Sharol Grant)
54 Letter (Marion and Thomas True)
55 Letter (Dewey and Shirley Clawson)
56 Letter (House Farm)
57 Postcard (Harry and Shila Dine!briss)
58 Letter (Norma C. Chick)
59 Letter (Jack and Evelyn Fall)
60 Letter (Michael Rolland)
61 Postcard (Brenda Wells)
62 Letter (Fred and Cloe Poeschel)
63 Fact Sheet (U.S. v. Wal-Mart Stores, Inc.)
64 Court Case -Batavia NY
65 Letter (Dollar Up, LLC}
66 Powerpoint Printout -Bill Nichols
67 Email (Miriam Berta)
68 Packet of Information (V.L. Harper-Parsonson)
69 Traffic Data (Bill Nichols)
70 Written Testimcny (Jean Handley) and letter from Representative Tom Campbell
71 Letter (Nancy Breidenthal)
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72 Email (Jay Alexander to Valentin Fryst)
73 Email ("Clare" to "Lweleress(a.ywave.com")
74 Letter (Eleanor Israel)
75 Email (Walter Cedar Korte to "~ewe!ress(a.ywave.com")
76 Letter (Reni Storm)
77 Letter (Susan Marie Bodle)
78 Letter (Susan Freitag)
7g Email (Pat Gaytan to "iewe!ress(a ywave.com")
80 Letter (Evonne Laforge)
81 Letter (Bev Granger)
82 Letter to the Editor in Nisqually Valley News
83 Letter (Ron and Cheryl Abraham)
84 Letter (Teri Simpson)
85 Letter (Brian and Carol Cavanaugh)
86 Email ("Clare" to "Lewe!eress,7ywave.com")
87 Letter, 3 photos of traffic, and Stryker Brigade News (Barbara Kates)
88 Letter (Connie Anderson)
8g Rosalie D. Saecker
90 Report - Wal-Mart and County-Wide Poverty
91 Report -Everyday Low Wages
92 Letter (Mary Ann Stuart)
93 Resume of Dr. Marlon Bournet
94 Excerpt from Yelm Community Assessment
95 Excerpt from Yelm Comprehensive Plan
g6 Report -Impact of Big Box Grocers on Southern California
97 Report - Supercenters and the Transformation of the Bay Area Grocery Industry
98 Report -Research for Big Box RetaiVSuperstore Ordinance
gg Report -Impact of Wal-Mart Stores on Iowa Communitys: 1983-93
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100 Report -Retail Mix in Wisconsin's "Tiny Towns"
101 Report -The Economic Impact of Wal-Mart Supercenters on Existing Businesses in
Missippippi
102 Resume of William E. Reid
103 Memorandum (Gardner Johnson, LLC to PacLand)
104 Statement of Qualifications of Heidi Haslinger
105 Review and Commentary of TALASAEA Site Reconnaissance Report
106 Critical Areas Maps
107 Salmon Creek Drainage Basin
108 Revision of the National List of Plant Species that Occur in Wetlands
109 Data Form
110 Wetlands Research Program
111 Resume of William E. Spiels
112 Photos of Existirg Vegetation and Site Topography
113 Resume of Kathryn A. Jerkovich
114 Architectural Summary of Design
115 Renderings of Proposed Building
116 Design Guidelines Project Review Checklist
117 Resume of Robert Bernstein, P.E.
118 Comments on Intersection Capacity Analysis
119 Intersection Analysis
120 Urban Street LOS
121 Excerpts from 2004 WSDOT Annual Traffic Report
122 Resume of Erich Armbruster
123 Transpo's Updated LOS Calculations with 103rd Street Connection
124 Transpo's Traffic Mitigation Measures Exhibit
125 December 1994 letters referencing big box stores and Yelm's Comprehensive Plan's
EIS
126 Resume of Edward A. Wiltsie
127 Wiltsie Letter November 2004 regarding PACLAND's pre-application meeting
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128 Chart -Salmon Creek Basin Groundwater Monitoring -LRS-08
129 Chart -Olympia Airport 2001/2005 Precipitation
130 Chart -Salmon Creek Basin Groundwater Monitoring -LRS-01
131 Report -Interim Site Development Standards For New Development in Salmon Creek
Basin
132 Wiltsie Letter to Editor of Nisqually Valley News
133 Wiltsie Letter March 2005 regarding Mr. Beck's comments in Nisqually Valley News
134 Wiltsie Letter Aprit 2005 regarding Walmart Site Development Application
135 Wiltsie Letter April 27, 2005 to Editor of Nisqually Valley News
136 Resume of William E. Dunning
137 Resume of Charles T. Ellingson
138 PACLAND's Stormwater and Groundwater Exhibit
139 Groundwater elevation map
140 PACLAND's Groundwater Model Layout and Hydrograph
141 Letter (Cindy Anderson)
142 Letter (April L. DeNio)
143 Letter (Connie M. Parker}
144 Letter (Barbara Oudeon)
145 Letter (Dawn & Sven Akerman)
146 Letter (Frank W. Reynolds)
147 Letter (Robert L. Hastings)
148 Letter (Marcia McHattie)
149 Letter (John Paul Jones)
150 Letter (Desmond and Debbie Iverson - Yelm Child Care Center)
151 Letter (Robert Ernst}
152 Card (Ron Simmons)
153 Letter (Jess and Millie Peters)
154 Card (Unknown author}
155 Letter (Yvonne Starks)
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156 Letter (Virginia Wood)
157 Letter (William Elledge)
158 Letter (Jerry Jenkins)
159 Letter (Thomas Dewell)
160 Letter (Chris Nubbe)
161 Letter (Kelan Moynagh)
162 Letter (Cass Lovejoy)
163 Letter(Thea Lovejoy)
164 Letter (Aimee Ross and Pascal Dedard)
165 Letter (Kim McCrea)
166 Letter (Mark Stanley)
167 Letter (Linda Pflugmacher)
168 Letter (Amy Stark)'
169 Letter (Mayra Pena)
170 Letter (Guustaaf Damave)
171 (Batch of Letters submitted all at once
172 Letter (Linda Thompson)
173 Letter (Susan Howe)
174 Letter (Carolyn GiaMarco)
175 Aerial Photo with Site Plan
176 Aerial Photo of Flooding
177 Large Aerial Photo of Flooding
178 Aerial Photo showing streets
179 Letter to John McCullough and Grant Beck from Claudia Newman dated ,1uty ~i, ~uua
180 Final Environmental Impact Statement dated January 3, 1995
181 Comments on FEIS
182 Wal-Mart's Post-Hearing Brief submitted by John McCullough and Courtney Flora dated
September 16, 2005
183 Post-Hearing Opening Brief of Yelm Commerce Group submitted by David Bricklin date
September 16, 2005
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184 Staff Report re: Wal-Mart Closing Statements prepared by Grant Beck dated September
16, 2005
185 Yelm Commerce Group's Post-Hearing Reply Brief prepared by David Bricklin dated
September 23, 2005
Wal-Mart's Reply Brief submitted by John McCullough and Courtney Flora dated
186 September 23, 2005
Staff Report re: Response to Yelm Commerce Groups post hearing brief submitted by
187 Grant Beck dated September 23, 2005
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. A Notice of Public Hearing was mailed to the applicant, appellant, and parties of
record on July 22, 2005. This notice was also posted at City Hall and on the City of
Yelm web site on the same date, and published in the Nisqually Valley News on
July 29, August 12, and August 26, 2005.
3. Pac-Land Inc. and Wal-Mart Stores, Inc. (applicant), request site plan review
approval to allow construction of a Wal-Mart Supercenter store within the City of
Yelm. Following review under the State Environmental Policy Act (SEPA), the City
of Yelm Responsible Official (RO) issued a Mitigated Determination of
Nonsignificance (MDNS). The Yelm Commerce Group (appellant) timely filed an
appeal of the RO's threshold determination. For the reasons set forth hereinafter the
applicant has shown by a preponderance of the evidence that the project satisfies
all criteria set forth in the Yelm Municipal Code (YMC) for site plan review approval.
For the reasons set forth hereinafter the appellant has not met its burden of showing
that the RO's threshold determination was clearly erroneous.
4. The applicant submitted to the City a completed application for site plan review
approval to allow construction of a Wal-Mart Supercenter store on March 9, 2005.
Along with the application the applicant submitted the following studies and
environmental documents:
A. Environmental checklist (March, 2005).
B. Phase One Environmental Site Assessment prepared by Zipper Zeman
Associates, dated December, 2004.
C. Site Reconnaissance Report prepared by Talasaea dated January, 2005.
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D. Preliminary Drainage and Erosion Control Report prepared by Pac-Land
dated March, 2005.
E. Transportation Impact Analysis (TIA) prepared by The Transpo Group dated
March, 2005.
F. Water Supply Report prepared by Pac-Land dated November, 2004.
G. Geotechnica! Engineering Evaluation prepared by Zipper Zeman Associates
dated January, 2005.
Following review of the above, the RO requested additional information which the
applicant provided in May, 2005. The applicant also provided a revision to the
environmental checklist in May, 2005, and a revised TIA in August, 2005. Following
review of the above documents (except the revised TlA), the RO issued an MDNS
on June 7, 2005. On June 30, 2005, the appellant timely filed an appeal of the RO's
threshold determination and requested preparation of an Environmental Impact
Statement (ElS).
SITE PLAN REVIEW
5. The applicant proposes to locate the supercenter on a 17 acre, rectangular parcel
of property abutting the north side of State Route (SR) 507, east of its intersection
with Grove Road at the eastern boundary of the City. The west property line of the
parcel will abut a proposed SR-507/510 bypass loop around the north side of the
City and the east property line abuts the Yelm City Limits. The parcel abuts SR-507
for 796 feet and measures 870 feet in depth. Improvements on the site include a
mobile home, horse barn, and other horse/livestock buildings. The parcel has flat
topography and vegetation consists of pasture grasses, low growing vegetation, and
scattered fir trees. A swale crosses the northeast corner of the site in a
northwest/southeastdiroction. Adjacent uses include single family homes on large
parcels, vacant parcels, agricultural uses, and commercial uses. The site will have
one vehicular access onto SR-507 from a driveway located 175 feet from the east
property line, and one temporary and one permanent access from the future SR-
507/510 bypass. The applicant will construct a portion of the bypass north from SR-
507 to 103~d Avenue SE. Upon completion of the entire bypass the applicant will
close the southern access which will limit access to the northernmost driveway
located approximately 225 south of the north property line. Traffic signals will not
control either access, but a traffic signal will control the intersection of SR-507 and
the bypass.
6. The site plan shows a generally rectangular, 187,460 square foot building located
in the northern portion of the parcel which will house general mixed retail sales of
groceries, dry goods, and electronics. The building will also include a drive through
pharmacy, food service, automotive repair facility, outdoor garden center, and
seasonal sales area. Parking areas will provide 600 standard parking stalls, 202
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compact stalls, and 20 handicap accessible stalls for a total of 822 stalls. A large
majority of the parking stalls are located between the building and SR-507, although
rows of parking spaces also extend along both the east and west sides of the
building. Trucks will enter the site from the SR-507 access and travel north along
the east side of the building- to its rear. The rear or north side of the building will
have two truck wells equipped with seals to eliminate noise from loading/unloading.
Bale/pallet enclosures along with water storage tanks which provide fire flow are
located near the north property line. Truck maneuvering areas are located to the
northwest and northeast of the building. The seasonal sales and outdoor garden
areas are located at the southwest corner of the building. The architectural rendition
(Exhibit "115") shows pedestrian scale elements such as entryways, awnings, wood
columns with cultured stone bases, wainscoting, middle grill work, pilasters, and
banding of the mid-level of the building which breaks up the building mass. The
building facades use one or more methods of articulation to avoid blank walls. The
south and west facades incorporate awnings, overhangs, metal grills, cultured
stone, wainscoting, and color variations. The north and east facades include the
service areas and also incorporate the same features. The building shows an
articulated cornice around the entire parapet. The main pedestrian entryways into
the general merchandise area, food center, and garden center have a barn motif
which reflects the historic agricultural uses in the Yelm area. The building meets the
required 15 foot front, rear, and side yard setbacks as required by the Yelm
Municipal Code (YMC).
7. The site is located within the Large Lot Commercial (C3) zone classification as set
forth in Chapter 17.28 of the Yelm Municipal Code (YMC). Section 17.28.010 YMC
sets forth the intent of the C3 zone classification in part as:
A. Provide for the location of the facilities and services needed
by the traveling public;
B. Permit commercial uses and activities which depend more
heavily on convenient vehicular access than pedestrian
access;
C. Limit location to sites having safe and efficient access to
major transportation routes....
Section 17.28.050 YMC describes the site area for a C3 use in part:
Minimum size of any parcel to be subdivided or developed through
the binding site plan shall result in at least 75% of the site
remaining in one parcel or commercial pad....
Section 17.28.060 YMC requires setbacks of 15 from all property lines and Section
17.28.080 YMC authorizes a maximum height of structures of 55 feet. The Yelm
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City Council adopted C3 zoning for the site and area by Ordinance 555 in 1995.
Thus, the site has remained within the C3 zone classification for approximately the
past 10 years.. The C3 zone authorizes large, retail, commercial uses to include a
Wal-Mart Supercenter subject to obtaining site plan review approval.
8. Chapter 17.84 YMC sets forth the criteria for site plan review. Section 17.84.020(C)
YMC provides that a proposed site plan must:
...Conform to the standards, previsions and policies of the city as
expressed in its various adopted plans and ordinances including
the applicable sections of the shoreline master program for the
Thurston Region
The project satisfies concurrency requirements for sewer and water as both City
sewers and potable water are available to serve the site. The site plan shows one
25 foot diameter and one 20 foot diameter water storage tank adjacent to the north
property line vvhich will ensure concurrency for fire flow. As found hereinafter the
project meets the requirements for transportation concurrency as the applicant will
construct frontage improvements consistent with City standards, make appropriate
off-site street improvements, and pay a traffic facilities charge. The .applicant will
also provide office space within the facility for police and fire department usage, will
provide an emergency vehicle parking space, and will pay a fee to Thurston County
Fire Protection District No. 2 to mitigate impacts to the fire service.
9. As found hereinafter the applicant has properly considered critical areas to include
wetlands and aquifer recharge areas and will properly mitigate any impacts thereto.
10. Refuse areas around the building will be screened in accordance with the overall
architectural theme and will not be located between a public street and the front of
the building. A condition of approval requires the applicant to demonstrate that light
from the project will not exceed more than one lumen at the propefij lines. The
project satisfies the parking requirements of the YMC, and the applicant will install
Type 2 landscaping around the perimeter of the site which will provide visual
separation between the streets and parking areas. Because of the residential uses
,and zones abutting the north and east property lines, the applicant will install Type
1 landscaping along said property lines to provide a very dense sight barrier and
physical buffer. The Type 1 landscaping requirements include a 15 foot strip
wherein any combination of trees, shrubs, fences, walls, earthern berms, and other
design features will provide a sight obscuring screen. The site must also provide
Type 4 parking lot landscaping which requires 24 square feet of landscaping for
each parking stall. The project satisfies all criteria set forth in the Yelm Design
Guidelines as set forth on pages 12-22 of the Community Development Department
Staff Report (Exhibit "34") and as shown in Exhibit "116".
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11. Section 17.84.020 YMC provides that the Site Plan Review Committee consisting
of the city planner, city administrator, director of public works, and building official
reviews a site plan to determine its compliance with various adopted plans,
ordinances, and design guidelines. However, Section 15.49.160(6) YMC provides
that upon the filing of an appeal of a SEPA threshold determination, the review of
the underlying action (in this case site plan review) is combined with the
environmental appeal. Such means that the Examiner determines whether the
proposed site plan meets the requirements set forth in Section 17.84.020(C) YMC
as previously set forth. The applicant has satisfied its burden of showing that the
project satisfies all site plan review criteria for the reasons set forth above.
SEPA APPEAL
12. The RO issued and published a MDNS following review of the application and above
listed documents on June 7, 2005, pursuant to Section 197-11-158 of the
Washington Administrative Code (WAC). -The RO mailed the threshold
determination and environmental checklist to the Washington Department of
Ecology, the Nisqually Tribal Council, agencies with jurisdiction, and affected
agencies on June 7, 2005. The RO also mailed the MDNS to various county, state,
and regional agencies as set forth on Exhibit "29". On June 30, 2005, the appellant
timely filed an appeal of the threshold determination.
13. Our courts have explained the purpose of SEPA review as follows:
SEPA is a procedural statute designed to ensure that local
governments consider the environmental and ecological effects of
major actions to the fullest extent.. SEPA's purpose is to provide
decision-makers with all relevant information about the potential
environmental consequences o- their actions and to provide a
basis for a reasoned judgment that balances the benefits of a
proposed project against its potential adverse effects. Des Moines
v Puget Sound Regional Council, 98 Wn. App 23 at 36 (1999).
In fulfilling its responsibilities under SEPA, the RO reviews the environmental
checklist and supporting documents and issues a threshold determination as to
whether any probable significant adverse environmental impacts will result from the
proposed development. WAC 197-11-782 defines "probable" as "...likely or
reasonably likely to occur, as in `reasonable probability of more than a moderate
effect on the quality of the environment'." Probable is used to distinguish likely
impacts from those that merely have a possibility of occurring, and are remote or
speculative. If the RO determines that no such probable impacts will occur, the RO
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issues a Determination of Nonsignificance (DNS) (WAC 197-11-340). If the RO
determines that the proposal may have a probable significant adverse
environmental impacts, the RO issues a Determination of Significance (DS) (WAC
197-11-360) which requires preparation of an EIS. However, if the RO can specify
mitigation measures that would allow the issuance of a DNS, and the applicant
agrees to implement said measures, the RO can issue a MDNS (WAC 197-11-350).
Before requiring mitigating measures or issuing a DS, the RO must first consider
whether the development regulations of local, state, or federal jurisdictions and
enforcement thereof would mitigate an identified significant impact (WAC 197-11-
330; 197-11-660). The RO followed these procedures in issuing the MDNS in the
present case. The RO imposed mitigating measures pursuant to SEPA authority
following evaluation of the environmental checklist, supporting documents, and
applicable development regulations.
14. In making its threshold determination the RO considered Section 14.04.055 YMC,
a portion of the City's SEPA rules, which sets forth guidelines by which to measure
the significance of environmental impacts as follows:
A. The principal guide in measuring environmental impact will be consistency
with the land use designations of the comprehensive plan and the
development regulations designed to implement the plan.
B. The city adopted the plan recognizing the impacts of the planned increasing
urbanization within the UGA [Urban Growth Area) and adopted the
development regulations to provide the mitigation determined by the city
council to be necessary and appropriate to that growth and the resulting
impact.
C. The extent of departure from the comprehensive plan designated uses and
the extent of any variance from adopted development regulations shall be
considered in determining the extent of substantial environmental impact.
Said section provides that the City previously considered environmental impacts
during the adoption of the comprehensive plan and development regulations
(zoning). Said section further provides that the extent of any environmental impacts
are measured by the extent of departure from those uses authorized by the
comprehensive plan and any variances granted to requirements of the zoning code.
In the present case, the proposed Wal-Mart Supercenter meets all three guidelines
as set forth in Section 14.05.055 YMC, as it is consistent with the land use
designation of the comprehensive plan, is consistent with the C3 zone of the
development regulations, is located within the UGA, does not depart from the
designated uses contemplated by the comprehensive plan, and does not require
any variances from the adopted development regulations. The YMC clearly
-1~-
recognizes that previously adopted City plans and ordinances consider the
cumulative impacts of urbanization and that consistency with such plans and
development regulations are principal indicators of the lack of probable significant
environmental impacts. As previously found, both the comprehensive plan and the
C3 zone classification adopted in 1995 authorize large, retail, commercial uses such
as the Wal-Mart Supercenter on this parcel and in this area of the City.
15. Despite the above, the RO identified areas where the supercenter would create
significant impacts and imposed measures to mitigate said impacts. The MDNS
requires the applicant to implement the following mitigating measures:
A. Pay the City Transportation Facility Charge (TFC) based upon the traffic
engineer's estimate of 649 p.m. peak trips at the rate of $750 per trip for a
total of $486,750, subject to credits if the project creates a significant
economic benefit to the community. The MDNS sets forth a formula for
determining economic benefit and credits.
B. Construct the following transportation improvements:
1. Frontage improvements along SR-507 to include a sidewalk,
planter strips, curb and gutter, a drop lane on the north side
of SR-507, a westbound travel lane, atwo-way left turn
_ lane, and a full eastbound travel lane.
2. Frontage improvements along the future SR-507/510 Yelm
bypass to include a sidewalk, planter strip, curb and gutter,
a northbound drop lane from the intersection to the
northernmost entrance to the site, a northbound lane, atwo-
way left turn lane, and a southbound lane.
3. A traffic signal at the intersection of the SR-507 and- the
future SR-507!510 bypass and a minimum, 250 foot long,
eastbound, left turn lane.
4. Optimization of the traffic signal at the intersection of SR-
507/Bald Hills Road/Creek Street.
5. Connection of the future SR-507/510 bypass to 103`d Street
by constructing a new road with two, 12 foot wide, drive
lanes and four foot shoulders; widening 103`d Street from
the bypass road to the bridge over Yelm Creek; and funding
the purchase of right-of--way for said connection. The MDNS
acknowledges that mitigating measures 3, 4, and 5 (above)
provide for safe movement of traffic, but are not necessary
to mitigate potential significant impacts of the project.
C. Provide a secure, private space of at least 120 square feet within the buiiding
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for use by the Yelm Police Department and the Southeast Thurston
Fire/EMS, and provide one parking space dedicated for emergency vehicles.
D. Install security cameras covering the entire parking lot subject to approval of
the Yelm Police Chief and coordination with a potential city-wide video
system.
E. Pay a mitigation fee to Southeast Thurston Fire/EMS for replacement of
equipment required to fight a fire in a large, commercial structure.
F. Implement a stormwater plan that meets or exceeds the standards of the
1992 Department of Ecology stormwater Manual as adopted by the City.
The plan requires that the elevation of the bottom of the infiltration gallery
extend a minimum of six feet above the elevation of the high groundwater,
and wiring of the proposed pump system to an emergency generator of
sufficient size to provide stormwater treatment during extended power
outages. The stormwater system must also accommodate runoff from
required road frontage improvements unless a separate system is designed.
The final plan will include a maintenance and operation plan.
G. Submittal of a noise mitigation plan clearly showing that the use will meet the
noise standards set forth in Chapter 173-60 WAC. The plan shall include at
a minimum an eight foot tall, masonary wall along the northern and eastern
property lines which abut residential zones. Noise exceptions for warning
devices or intermittent safety equipment will not apply from 7:00 p.m. to 7:00
a.m.
H. Alighting plan that maintains a light level of .1 foot candle, five feet from the
edge of the property.
16. The appellant submitted both expert and lay testimony challenging the MDNS in four
areas:
A. Failure to identify or adequately study the site itself and adjacent off-site
areas for wetlands;
B. Storm drainage system inadequate to protect a critical aquifer and also
inadequate to prevent flooding due to high groundwater. System is also
inadequate as it requires pumping of stormwater, and other jurisdictions
prohibit pumping due to pump failures during power outages;
C. Failure of responsible official to consider the probability of the closure of
businesses resulting in urban blight in the downtown core following the
opening of the supercenter; and
p. Failure to identify and mitigate significant adverse impacts of Wa(-Mart traffic
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on City streets.
The appellants assert that due to the above unmitigated significant adverse
environmental impacts, the RO should have issued a DS and required preparation
of an EIS.
WETLANDS
17. Heidi A. Haslinger, Conservation Northwest, Inc., a wetland specialist, appeared on
behalf of the appellant and testified that while she had not visited the site, she
reviewed the National Wetlands Inventory Map. Said map shows that a wetland
might occur in the northwest/southeast trending swale in the northeast corner of the
parcel. She believes the Swale represents a typical drainage pattern in a wetland,
and that the area is a high groundwater flood zone as verified in 1996-1997 DOT
aerial photographs. She reviewed the applicant's expert's report and noted that the
expert found the on-site vegetation difficult to identify due to previous heavy
grazing. She asserts that the RO should require reassessment of the swale due to
uncertainties as to wetland indicators. See Exhibit "105".
18. The applicant submitted a Wetland Site Reconnaissance Report prepared by
William E. Shiels, Principal, Talasea Consultants, Inc. Mr. Shiels testified that he
performed an on-site analysis, walked the perimeter, and observed parcels off-site
in all directions. He noted that the National Wetland Inventory Map shows a wetland
touching the northeast corner of the site and extending to the northwest. He
therefore took a soil sample at the lowest elevation of the Swale but found no
evidence of hydrology. He evaluated the three tests for a wetland and found that the
swale clearly met none of said criteria. His study shows that while the swale could
have been a drainage feature in geologic times, it is not now created by flowing
water nor does it accommodate flowing water. The video submitted by a neighbor
of flooding in the swale confirms his. analysis as it shows standing water, not flowing
water. Thus, flooding in the swale is caused by elevated groundwater. He found no
soils with mottles and determined that all plants with the exception of a few were
upland.
19. The Examiner accepts Mr. Shiels' testimony as he is an extremely qualified wetlands
expert, having performed at least 1,000 evaluations. Mr. Shiels visited the site,
performed a number of tests to include a soils analysis in the suspect swale, but
found no evidence of wetland indicators. Ms. Haslinger had neither visited nor
conducted any evaluations of the site. While she looked at a map and evaluated Mr.
Shiels' report, she expressed only general concerns regarding the possibility of
wetlands vegetation and hydrology. Furthermore, neither Ms. Haslinger nor the
. appellant contend that compliance with the City's critical areas ordinances will not
adequately mitigate all adverse impacts to wetlands. The appellant's argument is
-20-
directed more toward code compliance and enforcement as opposed to inadequate
SEPA review.
STORMWATER
20. The Yelm City Council adopted the 1992 Department of Ecology's (DOE)
Stormwater Management Manual and requires storm drainage systems throughout
the City to meet its requirements. However, the applicant proposes an alternate
technology for the treatment of stormwater known as StormFilter by Stormwater
Management, Inc., which received a general use level designation as basic
stormwater treatment by DOE on January 26, 2005. The applicant's system
proposes to pump water from a water treatment gallery containing StormFilter
cartridges upslope to an infiltration gallery. As required by the N1DNS, the higher
location of the infiltration gallery will provide six feet of vertical separation between
the bottom of the gallery and the groundwater level during a high groundwater flood
event. The City does not allow the use of alternate technology unless a proponent
can show that such technology provides a higher degree of environmental
protection, and it that has the financial ability to maintain the system properly.
21. The storm drainage exhibits ("138", "140") show that both the parking lot and roof
stormwater cleansing detention areas and pumps are located beneath the parking
area in the northwest portion of the site. Pumps will move stormwater from the
treatment devices in the detention areas to an infiltration gallery located adjacent
to the intersection of the bypass and SR-507. The applicant's experts assert that
the infiltration gallery will measure six feet or more above a 100 year storm event
even if such occurs coincident with a large flood event.
22. Mr. Ed Wiltsie, professional engineer, testified on behalf of the appellant and
submitted copies of numerous letters written to the City regarding the proposed
stormwater system. He testified that the applicant has not shown that the infiltration
gallery maintains a six foot separation from high groundwater. He also testified that
pumps fail, and for that reason other jurisdictions have prohibited pumping and have
required water to reach infiltration galleries by gravity flow. He testified that
Thurston County has experienced a high faiCure rate with pumps and no longer
allows their use. Mr. Wiltsie also expressed concerns with the type of filter used in
the canister, as some types of filters add phosphorus to the soils.
23. William Dunning, professional engineer, and Charles Ellingson, hydroger~logist,
testified on behalf of the applicant. Mr. Ellingson testified that in a worst case
scenario, six feet of pervious soil would separate the groundwater from the bottom
of the infiltration gallery. He stated that the City's requirements concerning this
system are more rigorous than DOE's. He also testified that even if the pumps fail,
the untreated discharge will not pollute the groundwater.
-2~ -
24. The Examiner accepts the applicant's expert testimony and studies as accurate
based upon the presence of its experts on the site and their studies of groundwater
levels to include area wells and photographs of flooding in the area. The proposed
system exceeds the current requirements of DOE and apparently far exceeds the
requirements of the City. While disputes exist between the experts regarding the
provision of six feet of separation, a mitigating measure requires that the system
provide said separation. Furthermore, a mitigating measure requires wiring of the
pumps to a generator of sufficient size to continue pumping during extended power
outages. The applicant has confirmed it will use a DOE approved filter in the
StormFilter which will not introduce phosphorous into the groundwater. The RO was
not clearly erroneous in assuming compliance with mitigating measures and then
determining that the proposed storm drainage system will properly treat stormwater
runoff generated from the site such that it will not pollute the aquifer; that stormwater
runoff will not create flooding; and that the stormwater runoff will not create a
probable significant adverse environmental impact. Furthermore, previous uses of
the site include agriculture with livestock pasture and horse sales and trading.
stormwater likely infiltrated directly into the ground through significant amounts of
manure. However, residents of the area indicated no past or present problem with
the quality of their well water. The applicant's stormwater system should discharge
significantly cleaner water into the ground as compared with the previous use.
URBAN BLIGHT
25. Appellant asserts that the RO erred by not considering the effect of Wal-Mart's
economic competition on businesses in the City, specifically those in the downtown
core. Residents opposing the application also assert that the RO should have
considered socio-economic impacts such as Wal-Mart's business practices and
wage structure. Section 197-11-448 of the Washington Administrative Code (WAC),
a portion of the SEPA rules, provides in part as follows:
(2) The term "socio-economic" is not used in the statute or in
these rules because the term does not have a uniform
meaning and has caused a great deal of uncertainty. Areas
of environmental concern which must be considered are
specified in RCW 43.21 C.110(1)(F)[a section of the SEPA
statute]...
(3) Examples of information that are not required to be
discussed in an EIS are: Methods of financing proposals,
economic competition, profits and personal income and
wages, and social policy analysis (such as physical and
welfare policies in non-construction aspects of education
-22-
and communications). EISs may consider whether housing
is low, middle, or high income.
Thus, the SEPA rules do not require an ElS to discuss economic competition, socio-
economic issues, or wage structures. RCW 43.21 C.110(1)(F), cited by the above
WAC, lists the elements of the environment necessary for consideration in an ElS
as:
...public services and utilities (such as water, sewer, schools, fire
and police protection, transportation, environmental health (such
as explosive materials and toxic waste), and land and shoreline
use.
Said section does not require any consideration of competition impacts or socio-
economic issues.
26. Our courts have required an ElS to consider impacts on the physical environment
of a downtown area to include the possible closure of businesses and the resulting
blight of closed store fronts where large, retail malls locate in close proximity
thereto. In Barrie v. Kitsap County, 93 Wn. 2d 843 (1980), our Washington Supreme
Court ruled an ElS inadequate because it did not discuss the adverse effects of a
new shopping area in close proximity to downtown Bremerton. However, the Barrie
applicant also requested a zone reclassification from Kitsap County which it needed
in order to construct a 400,000 square foot, regional, retail shopping center just
north of the Bremerton city limits. The Court noted that the impacts of the shopping
center were not remote or speculative as evidenced by an indication that Sears
would move from downtown to the center. The Court ruled that the EIS overlooked
the real possibility of lost jobs and tax base in the Bremerton central business
district, and that the ElS should have pointed out that possibility. By contrast, the
present applicant proposes a 187,460 square foot business on a 17 acre parcel
zoned for such use since 1995. Furthermore,Yelm's comprehensive plan and
zoning code were adopted pursuant to GMA, and the City prepared an EIS to
assess the environmental impacts thereof.
27. In West 514 Inc v. Spokane County, 53 Wn. App 838 (1989), West 514 challenged
the lack of an ElS assessing the economic impacts of a large, regional shopping
mall in the Liberty Lake area on downtown Spokane. West 514 presented the
testimony of Greg Easton, a consulting economist who had previously reviewed the
impacts of large shopping malls on the downtown areas of Tacoma, Everett,
Olympia, and Seattle. He concluded that regional shopping malls cause a decline
in retail sales in the central business districts of cities. The Court of Appeals
addressed the issue as follows:
-23-
There is no doubt that a large mall in the Liberty Lake area will
compete economically with downtown Spokane as well as other
retail centers, but economic competition, in and of itself is not an
environmental impact and need not be discussed in an EIS. WAC
197-11-448(3). What is missing here is evidence that the proposed
mall is likely to have a significant adverse impact on the physical
environment of downtown Spokane. While loss of retail and
resulting blight is a possibility, West 514 did not establish the
probability or likelihood of this occurring in Spokane. 53 Wn. App
838 at 847.
As in West 514, the appellant presented an eminently qualified expert to address
the impacts of a Wal-Mart Supercenter on existing businesses in Yelm. The
applicant also presented an economic expert who assessed such impacts. For the
reasons set forth hereinafter, the appellant has not established that a Wal-Mart
Supercenter will create a significant adverse impact on the physical environment of
either the downtown business core or other commercial areas of the City.
28. Dr. Marlon Boarnet appeared on behalf of the appellant and testified regarding his
research into the impacts of Wal-Mart Supercenters on both large and small
communities. He also reviewed the City's 1995 Comprehensive Plan which supports
economic development, and the impacts of Wal-Mart on land use aesthetics and
planning. He found the City's business core ill defined with some retail, but no sense
of place. He noted that the Comprehensive Plan expresses a desire to build around
the downtown. If the City has a goal of improving the downtown area, Dr. Boarnet
believes that Wal-Mart will detrimentally impact said goal. He noted that the core of
the Yelm Avenue/First Street intersection consists of older, smaller buildings, and
that conventional strip malls such as the Nisqually Shopping Center are located in
the outer downtown area.
29. ~ The appellant sent Dr. Boarnet a list of 175 businesses located in Yelm, and Dr.
Boarnet pulled the data of said businesses from Dunn and Bradstreet. He then
determined that 18 of the 175 businesses would compete directly with Wal-Mart,
and that the stores most vulnerable are grocery, pharmacy, apparel, lawn and
garden, and building materials. William Reed, the applicant's expert, identified 50
stores in the downtown core area, seven or eight of which he believes would directly
compete with Wal-Mart. Thus, Dr. Boarnet finds that 10.3% of all businesses in
Yelm will directly compete with Wal-Mart while Mr. Reed finds that 16% of the
downtown core businesses will directly compete. Assuming that all businesses
identified by both experts fail and that the building spaces are not released, such
would not amount to "urban blight" as interpreted by the courts. Nine of ten
businesses would remain open according to Dr. Boarnet, and more than eight of ten
businesses would remain open according to fVlr. Reed.
-24-
30. Dr. Boamet testified that Wal-Mart would cause urban blight in downtown Yelm, and
based his testimony in part on a study of the impact of Wal-Mart stores on Iowa
communities between 1983 and 1993 (Exhibit "99"). However, said study addressed
the impacts of a discount, general merchandise store opening in "a small-to-medium
sized town with little population growth". While the City of Yelm is small, it is
experiencing substantial population growth as are Thurston County, Pierce County,
and Western Washington as a whole. Thus, the conclusions of said report are
suspect as to its applicability to Yelm. Even so, the report concludes that the
opening of a discount store creates both positive and negative impacts on a
stagnant community. Dr. Boamet also relied upon a study entitled "The Economic
Impact of Wal-Mart Supercenters on Existing ,Businesses in Mississippi". Said study
concluded that a Wal-Mart supercenter captures a substantial percentage of the
market in the categories of general merchandise, food sales, and building materials.
However, furniture stores faired extremely well. The study also concluded that:
Rule-Of--Thumb 1: Local merchants that sell merchandise different
from the supercenter or other big box stores tend to fare well and
may gain sales as the additional traffic generated by the big stores
spills over into their stores.
Rule-Of--Thumb 2 is not so pleasant: Local merchants that sell the
same merchandise of the big stores will probably face a reduction
in sales because of the difficulty in competing with major chains.
The study makes recommendations for local merchants facing direct competition
from a supercenter such as developing a new merchandising strategy, providing
services not offered by the supercenter, and by offering personalized service. The
study then makes recommendations of how to successfully compete against a
supercenter in the areas of marketing, service, customer relations, and continually
improving the efficiency of the business. Based upon the Mississippi study, when
businesses in direct competition with Wal-Mart alter their methods, they can
succeed. Such is apparently the opinion of some merchants in Yelm who will face
head-to-head competition with Wal-Mart. No representatives from Safeway, QFC,
Rite-Aid, or .True Value Hardware appeared at the hearing. or wrote letters
expressing concerns. Furthermore, Gary Vallandingham testified that he works for
the shopping center which houses Sunbirds, and that while Sunbirds' business will
suffer, it will not be devastating. Finally, a local pharmacist testified that he had no
problems with Wal-Mart if it were constructed subsequent to the opening of the
507/510 bypass. Such would address his main concern -traffic.
31. Dr. Boamet co-authored a study entitled Supercenters and the Transformation of
the Bay Area Grocery Industry' Issues Trends. and Impacts. The study assessed
-25-
the impacts of supercenters to include Wal-Mart moving into the San Francisco Bay
area of California. A section entitled "Implications for the Grocery Industry" (Page
21 of 104) assesses the impacts of supercenters on the total US grocery market
and specifically traditional supermarkets.
In the same period [between now and 2009], the share of
traditional supermarkets in the grocery sector is expected to
decline, from 86% today to 74% in 2009. The Merrill Lynch report
anticipates that most of this decline will be .born by smaller,
independent grocers (Agnee 2002).
Testimony at a hearing expressed concerns regarding the ability of QFC and
Safeway to compete with Wal-Mart. However, Dr. Boarnet's study indicates that
smaller, independent grocers and not national chains such as QFC and Safeway
will bear the brunt of Wal-Mart's competition. Furthermore, said report shows that
while some chains are closing stores in response to Wal-Mart competition, others
have built customer loyalty, provided private label merchandise (as does Safeway),
and chosen to offer more high end goods and services (QFC). Thus, the appellant
has not presented evidence that any of the anchor tenants of any of the strip
shopping malls will close.
32. In the section entitled "Wal-Mart in Rural Communities" (Page 64 of 104), Dr.
Boarnet reiterates the findings of the Mississippi study:
The evidence that has been assembled about Wal-Mart's impact
in rural areas has been fairly consistent: Communities that had a
Wal-Mart or other discount retailer saw a considerable rise in both
their retail sales activity and their sales tax revenues, and on some
occasions also saw an increase in overall employment. Shops and
firms that directly competed with the discount retailer (for instance,
lower-end apparel shops or merchants that sold general
housewares) tended to lose a significant amount of business and
sometimes were forced to close. Merchants that offered. non-
competing goods and services, however-such as higher end
restaurants and shops, specialty stores and furniture-saw their
fortunes rise considerably as they benefited from the increased
flow of customers that Wal-Mart attracted.
Said section points out that businesses which cannot successfully compete with
Wal-Mart do close. However, the study does not support a conclusion that the Ye{m
commercial area will suffer blight from a wholesale closure of businesses or that
buildings housing stores which do close will remain vacant.
-25-
33. The applicant's expert, Gardner Johnson, LLC, agrees with Dr. Boarnet that several
businesses will directly compete with Wal-Mart. However, Gardner Johnson could
not conclude that said businesses would fail. The Gardner Johnson study shows
that Yelm businesses presently do well despite a high level of retail sales "leakage"
to nearby shopping areas such as Lacey and Spanaway, both of which have Wal-
Mart stores. Said study estimates that Yelm residents spend 40% of their dollars
elsewhere. Furthermore, the study points out that Rite Aid, Safeway, and QFC, are
all located in downtown Yelm and carry the same products as other downtown
businesses. However, no evidence was presented that these national chains have
adversely impacted downtown businesses. Businesses in the downtown area are
also located near the intersection of Yelm Avenue and. First Street, and therefore
will maintain high visibility and will not lose retail location interest.
34. Gardner Johnson also reviewed Dr. Boarnet's studies which found negative impacts
in isolated, rural, midwest and southern communities where Wal-Mart stores were
constructed or expanded. However, Gardner Johnson refers to more recent studies
which suggest that such concerns do not typically arise in communities experiencing
increases in population and economic growth. Gardner Johnson finds that the City
does not match the profile of a depressed or declining community susceptible to
negative impacts from Wal-Mart. The Examiner agrees with the Gardner Johnson
analysis for the reasons set forth above. The RO was not clearly erroneous in not
considering the economic impacts of Wal-Ntart on Yelm businesses in the downtown
area.
TRANSPORTATION
35. The universal concern expressed by City residents and the appellant in both
testimony and fetters was the impact of Wal-Mart traffic on already. congested City
streets especially SR-507 and SR-510. Residents and the appellant assert that the
new vehicle trips generated by the Wal-Mart Supercenter will increase travel time
through the City, travel time from one point to another within the City, and waiting
time to access both state highways from side streets. Concerns also include
additional time on school buses for students attending Yelm public schools and
increased response times by emergency vehicles. The Director of Transportation
for the Yelm School District submitted a letter expressing concerns regarding school
buses, but emergency providers did not express concerns. In determining both
transportation concurrency as required under GMA and the allegation of an
unmitigated significant adverse environmental impact, the RO must consider
previous legislative actions taken by the Yelm City Council pursuant to GMA to
include adoption of comprehensive plans (transportation), development regulations
(zoning), acceptable levels of service within the city limits, and the method of
calculating said levels of service.
-27-
36. The City of Yelm adopted its comprehensive plan and development regulations
pursuant to GMA and meets the definition of a "GMA city". Therefore, in considering
the environmental impacts of traffic generated by the Wal-Mart Supercenter, the RO
first had to consider RCW 43.21C.240, a portion of the SEPA statute, which
addresses site specific, project environmental review under GMA; WAC 197-11-
158, aSEPA rule; and RCW 36.706, entitled "Local Project Review". RCW
43.21 C.240 provides in part:
A comprehensive plan, sub-area plan, or development regulations
shall be considered to adequately address an impact if the county,
city, or town through the planning and environmental review
process under Chapter 36.70A RCW [GMA] and this chapter, has
identified the specific adverse environmental impacts and:
(b) The legislative body of the county, city, or town
has designated as acceptable certain levels of
service, land use desionations, development
standards, or other land use planning required or
allowed by Chapter 36.70A RCW.
The RO Essued the MDNS pursuant to WAC 197-11-158 which authorizes
consideration of the environmental analysis, protections, and mitigating measures
set forth in the City's zoning code, comprehensive plan, and other rules and
regulations adopted pursuant to GMA. WAC 197-11-158 requires the RO to identify
the specific environmental impacts of a site specific project and determine whether
such impacts have been:
(ii) Adequately addressed in the comprehensive plan, sub-area
plan, applicable development regulations, or other local,
state, or federal rules or laws by:
(A) Avoiding or otherwise mitigating the impacts; or
(B) The legislative body of the GMA county/city
designating as acceptable the impacts
associated with certain levels of service, land
use designations, development standards, or
other land use planning required or allowed by
Chapter 36.70A RCW.
-28-
royal of the project on
sub-area plan,
p to conditi°n rehensive plan,
then requires the R lianCe with said
Said section ation measures inThe RO P equired comp acts not
compliance vuith the mitig ulations. environmental imp
zoning, and othef rules and reg ~ measures in the MDNS issued for
but also identified additionaatagverse
documents °Sed mitig
adequately addressed and imp
the project. 01 ,our Court of Appeals discussed
109 Wn• ApP (20 )
In Moss v. Ci of Bellingham, as follows:
37. ration of GMA and SEPA assa9e °f
the integ reform were sown With p re wires
re ulatory GMA) in 1990. The GMA q after
The seeds °f SEP ement Act ( designated only
the Growth Manag L1GAs) tO be olic change
Urban Growth Areas ( this fundamental P Y ration of
EIS. In 1995,
preparation of an en the Legislature enacted the lnteg
to fruition wh •n and Environmental eks'to aA°~d
came ement Plann~ 9 ration Act se
Growth Manag ation of
ccordin9 tO Professor Settle thesnand substantive mitig
A a secondary role to (~)
duplicative environmentalass fining SEPA, tans and their
meet projects by sis in p stematic
develop .local
comprehensive envir i m acastat ments and (h~ egh
more acts t
progra-~matic environmenenvironmental imp state, and federal
mitigation of adverse and other local,
ment regulations 6 at 15.
develop 109 Nln. APP
environmental taws ntal Polic Act, Profess GMA Local
of The Washin ton State Substant e mitigation authority f°r
The author as follows:
ettle, discusses limit ~ ~ (2E e) at
S was th
governments in Section istation, °sition
strongly implicit in the leg
...A prima-"Y concern, acts and imP
ad hoc analysis of environ ole tapermits essenro~lme tal
SEPA s s stematic envi
of substantive conditi° ehe cove and Y state,
e licate more comp elation under other locaes that
d p sis and substantive regthe legislation assum
impact anaiY articular, ted under
meet regulations adOp rammatic
and federal laws• In p the prog
rehensive plans and develop GMA) and rO °Sed GMA
comp Management Act ( re ared for p P
the Growth sis and
vironmentat impact statements p p s ecific
en often will provide sufFiciactSaforY p
plans and regulations
ive regulation of envi la Sand regulations.
substant I With GMA p and
projects that comp Y authorizing,
' ration adds a new section t° SEPA
The 19951e9is
-29'
i
in some cases arguably requiring, local governments planning
under GMA to dispense with ad hoc environmental impact analysis
and substantive mitigation under SEPA that would essentially
replicate analysis and regulation of environmental impacts under
local GMA plans and regulations or other local, state, and federal
laws....
As part of the adoption process of the 1995 Comprehensive Plan and Development
Regulations which authorized the C3 zoning for the Wal-Mart parcel, the City of
Yelm prepared an EIS, which along with the Comprehensive Transportation Plan,
considered increases in traffic congestion and mitigation measures therefor. In its
SEPA evaluation the RO had to consider the mitigation measures and plans
previously adopted by the City Council to include acceptable traffic congestion.
38. The City of Yelm Comprehensive Plan and Joint Plan with Thurston County adopted
pursuant to GMA by the Yelm City Council on February 22, 1995, provides in
Chapter VI(A), entitled "Transportation":
...The policies of the Yelm Comprehensive Transportation Plan are
to be effective in the Urban Growth Area. The City and the County
support the Regional Transportation Plan, and the Yelm
Comprehensive Transportation Plan is consistent with the 1993
Regional Transportation Plan. The Regional and City transportation
plans are incorporated herein by reference....
In Section VI(C) entitled "Levels of Service (LOS)", the comprehensive plan reads:
The City of Yelm is bisected by two state highways in the urban
core which operate at or near failed levels of service, when
measured on the A-F scale used by the Thurston Regional
Planning Council for intersection and turning movements.
It is the policy of Yelm to disperse rather than to concentrate traffic
through the urban core to promote a free flow of traffic throughout
the community.
It is the policy of Yelm to adopt levels of service for concurrency
and planning purposes which will promote development of
transportation alternatives, both routes and methods of transport,
rather than continue to enlarge the existing arterials.
For concurrency purposes, the following standards shall apply in
the Urban Growth Area:
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1. In all residential zones, LOS C.
2. In all commercial and light industrial zones, LOS
D.
3. In the urban core LOS F is recognized as an
acceptable level of service where mitigation to
create traffic diversions, bypasses, and alternate
routes and modes of transportation are
authorized- and being planned, funded, and
implemented.
Development standards shall identify the method of LOS measurement and
implementation....
Subsection VI(E) entitled "Implementation of Transportation Plans" provides in part:
Transportation planning and development in the Urban Growth
Area is a joint exercise of responsibility between the City, the
County and the State. Yelm will be responsible for planning and
implementation of the policies of the City's Transportation Plan
within the incorporated Urban Growth Area...
The Transportation plans adopted herein have been reviewed for
consistency with land use plans and are in aid and support of the
land use plans. Where changes in land use or transportation occur,
this Plan shall be specifically reviewed to assure consistency,
conformance, and concurrency and that the goals continue to be
met.
As previously found, the proposed Wal-Mart Supercenter is consistent with the land
use plans of the comprehensive plan and the development regulations. In making
its threshold determination, the RO had to consider the Transportation Element of
the Comprehensive Plan in accordance with the SEPA/GMA integrated rules to
include adopted levels of service. Professor Settle addresses adopted levels of
service in Section 18.01(2)(e) of The Washington State Environmental Policy Act
as follows:
Subsection (4) of RCW 43.21 C.240 apparently does not merely
authorize, but compels agencies to abstain from imposing
mitigation measures where a project's specific adverse
environmental impacts have been (a) "avoided or otherwise
mitigated" or (b) designated as acceptable in GMA plans or
development regulations...Although the language of RCW
-31-
43.21 C.240(4)(b) is unclear, it seems to say that "levels of service"
and other standards of acceptable environmental quality
designated in GMA plans and regulations preempts SEPA
substantive authority. Thus if a GMA comprehensive plan and
development regulation designates a level of service defining
acce table traffic con estion the local overnment would be
precluded from using SEPA substantive authority to mitigate traffic
impacts if they would not exceed the designated "level of service".
This apparently would be so even if the local government did not
adopt the GMA plan and regulation as SEPA policies and even if
local SEPA policies would have called for mit~aation of traffic
im acts....
Perry Shea, Shea and Associates, the City's traffic consultant, testified that the City
previously adopted a means of measuring level of service (LOS) by computing the
LOS of all movements of an intersection and then averaging said movements to
obtain an overall intersection LOS. In addition, the City requires a proponent's traffic
engineer to identify the worst movement and the amount of delay for said
intersection. The City has also adopted a policy to maintain the traffic flow on its two
major roads, Yelm Avenue and First Street, and will accept long delays on side
streets at unsignalized intersections to ensure continuation of said flow. Thus, in
making the threshold determination and imposing traffc mitigation measures, the
RO had to consider the City's adopted plans, regulations, and policies along with
the requirements of the integrated SEPA/GMA process. The RO properly imposed
traffic mitigation measures and was nct clearly erroneous in its threshold
determination.
39. All testimony and exhibits addressing traffic within the City agree that the City
presently has significant traffic congestion problems and has had such congestion
problems since at least the 1980s. Said congestion is caused by the intersection of
two State highways in the center of the downtown area. SR-510 provides access
to Yelm from unincorporated Thurston County, and the cities of Lacey, Olympia, and
Tumwater; traverses a portion of the City in an east/west direction; and is known as
Yelm Avenue. SR-507 provides access to Yelm from unincorporated areas and the
- cities of Rainier, Tenino, Centralia, and Chehalis to the south. SR-507 also provides
access from unincorporated Pierce County, McKenna, Roy, Fort Lewis, McChord
Air Force Base, and the Spanaway area (south of Tacoma) to the north. SR-507
enters Yelm from the south, intersects with SR-510 at a right angle, turns east, and
eventually enters Pierce County. SR-510 terminates at said intersection. South of
the intersection with SR-510, SR-507 is known as First Street, but after the
intersection and the turn to the east, SR-507 becomes Yelm Avenue. First Street
continues to the north beyond the SR-510 intersection as a local City street. The
1/Val-Mart parcel abuts the north side of Yelm Avenue (SR-507) at the eastern edge
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of the City. Perry Shea testified that a significant amount of traffic on both State
highways passes through Yelm to other destinations.
40. Prior to issuing the MDNS and imposing the mitigation measures set forth
hereinabove, the RO required the applicant to submit a Transportation Impact
Analysis (TIA) (Exhibit "11") for the Wal-Mart Supercenter. The applicant engaged
The Transpo Group, a qualified transportation engineering firm, to prepare the
analysis. Prior to commencing work, The Transpo Grcup met with the City and the
Washington State Department of Transportation (DOT) to determine the scope of
the analysis to include the method of calculating the LOS, the background traffic
increase, and the intersections to study. DOT and the City required the engineer to
study 41 intersections within the City, which essentially included all intersections
along SR-507 and SR-510.
41. The Transpo Group submitted a TIA dated March, 2005, which estimated that the
superstore along with the garden center would generate 7,998 new vehicle trips on
a daily basis, 649 of which would occur during the p.m. peak period. The TlA also
anticipated that the supercenter would attract 132 trips into the site from vehicles
already using adjacent roadways. Thus, the TIA anticipates 781 vehicle trips (390
trips in and 391 trips out) during the p.m. peak period. The TIA anticipates that 39%
of new trips will come from the east on SR-507, and that 61 % of the traffic will come
from the north, west, and south on Yelm Avenue and First Street. The TlA
calculated the average LOS of all intersections as required, and determined that the
operation of the Yelm AvenuelFirst Street intersection would reduce frem LOS C to
LOS D as would the Yelm Avenue/bald Hill Road/Creek Street intersection. While
no intersection would fall below an average of LOS D, the worst movement analysis
shows that many movements at unsignalized intersections would either decrease
to or remain at LOS F, and that some intersection movements would realize
substantial increases in delay. At one such intersection, Yelm Avenue/Plaza Drive
East, the worst traffic movement would increase in delay from 236 seconds to 940
seconds. At another intersection, SR-507/Grove Road, the delay would increase
from 27.9 seconds to 736 seconds.
42. Because of the significant increase in side street delays, DOT and the City RO
required as a mitigating measure in the I~1DNS that the applicant construct a portion
of the proposed SR-507/SR-510 bypass from SR-507 north to 103`d Street. The RO
also required preparation of a supplemental TIA to show the impacts of such
connection. The revised TIA (Exhibit "123") shows that major Wal-Mart traffic
impacts will occur at intersections along Yelm Avenue between the superstore and
the intersection with First Street, and that the connection to 103~d Street would
mitigate side street delays at said locations.
43. The supplemental TIA shows that approximately 20% of vehicle trips to and from
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Wal-Mart will use the 103` Avenue connection to access destinations north of Yelm
Avenue and will not impact Yelm Avenue traffic. The T1A still anticipates that 39%
of Wal-Mart traffic will access the site from the east and 13% of the traffic will
access from Bald Hills Road SE and Morris Road. Thus, with the 103r° connection,
72% of Wal-Mart traffic will not impact Yelm Avenue beyond its intersection with
Bald Hills Road. An additional 3% of said traffic will turn from Yelm Avenue prior to
its intersection with First Street, and thus 25% of Wal-Mart traffic will travel through
the Yelm Avenue/First Street intersection which Perry Shea testified is the main City
traffic problem. From said intersection 10% will turn south on SR-507 and 15% will
continue west on SR-510. The 103`d Avenue connection will not improve the LOS
or the delays at said intersection. The operation of the Yelm Avenue/Bald Hill
Road/Creek Street intersection will also remain at LOS D but the delays will reduce
from 52 seconds to approximately 41 seconds. The improvement will also reduce
delays at unsignalized cross streets to include the intersection of Yelm Avenue and
Plaza Drive SE which will have a lesser delay than at present without the project.
44. Appellant asserts that the City does not have jurisdiction to establish a level of
service F for the urban core. Appellant asserts that the Thurston Regional Planning
Council has authority to establish levels of service for highways of statewide
significance which include SR-507 and SR-510. Appellant further asserts that the
Planning Council has established a LOS of D for both SR-507 and SR-510.
However, the City Council adopted the City of Yelm 2001 Comprehensive
Transportation Plan Update and reaffirmed LOS F for the urban care. The Examiner
has no authority through SEPA or otherwise to overturn an action of the City
Council. Furthermore, the LOS in the urban core to include the SR-507/510
intersection as determined by the City's methodology calculates to LOS D. Finally,
the City calculates LOS by using traffic counts during the worst 15 minutes of the
peak period, whereas DOT determines LOS by using the average of traffic counts
during a two hour peak period. According to Mr. Shea, DOTs method of measuring
LOS would result in a higher level of service for the intersection.
45. Appellant asserts that the LOS F concurrency standard as adopted by the City
Council does not apply to the SR-507/510 intersection or at any intersections within
the urban core as the City has no traffic diversions, bypasses, or alternate routes
presently planned, funded, or implemented. Appellant presented a letter from
Representative Tom Campbell advising of the lack of funding for the proposed SR-
507/510 bypass. Appellant also asserts that voters wil( approve Initiative 912 which
.will eliminate gas taxes passed by the legislature, and that such will eliminate State
_ :funding for the bypass. However, Mr. Shea testified that the Federal Highway
Administration (FHA) prepared an Environmental Assessment (EA) and issued a
Finding of No Significant Impact (FONSI) for the northern bypass around the City
known as the Y3 project. The Y3 project extends from SR-510 west of the City
around the northern portion of the City to SR-507 near the east City limits at the
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Wal-Mart site. The EA and FONSI allowed the City and DOT to obtain funds for the
project ($33 million dollars). Mr. Shea testified that the bypass is currently in design
and leading up to right-of-way acquisitions. In public hearings on preliminary plat
applications, the Examiner has imposed conditions of approval at the City's request
to either maintain in open space portions of plats identified as future bypass right-of-
way or delay issuance of building permits for lots within said right-of-way until the
balance of the subdivision lots have received permits. Mr. Shea testified that the
project is not on hold and could be completed within five to seven years. Therefore,
at the present time, the Y3 project qualifies as a traffic bypass presently planned,
funded, and implemented. Thus, even if the LOS of urban core intersections are
reduced to "F", the project meets the concurrency standards adopted by the City
Council.
46. Appellant presented testimony from Ntr. Robert Bernstein, a qualified traffic
engineer. Mr. Bernstein noted that the applicant's traffic engineer took traffic counts
for the TlA during the months of January and February which statistically have the
lowest volumes. In determining his calculation of the LOS of the SR-507/510
intersection, he increased the traffic counts by 20%. Such caused the LOS of said
intersection to decrease to LOS E or F. However, according to Perry Shea, historic
traffic counts taken throughout the year within the City of Yelm do not vary. In fact,
the difference between traffic counts taken in July and January differed by only 12
vehicles during the peak period. The traffic counts taken in January and February
are accurate for the entire year and confirm the LOS D average operation.
47. Mr. Bernstein asserts that the location of the Wal-Mart driveway on SR-507 near the
east end of the parcel is unsafe as it is located at the bottom of a hill and has sight
distance issues. However, the City and DOT performed an extensive review of the
access to include sight distance, and DOT issued an access permit. Furthermore,
DOT, the City, and FHA approved the traffic signal location. No safety concerns are
present at either proposed driveway.
48. Mr. Bernstein asserts that the applicant did not perform an analysis of the traffic
beyond 2006 and therefore did not consider future cumulative impacts. The
applicant did, however, consider a background traffic growth rate of 4%, at least
double the historic traffic increases for the City. The applicant also performed a
study to ensure that the design of the project will fit the future bypass. Furthermore,
planning for the future is the City's responsibility and the City has identified traffic
improvement projects in its Six Year Transportation Plan (2006-2111) ~to include the
SR-510/Yelm Loop (Y3), the SR-507 southern loop road, and the widening of Yelm
Avenue West. The City is now planning under a Corridor 2030 Plan. The corridor
plan assumes large store, commercial development in this area of the city based
upon the C3 zone classification. The applicant satis red its responsibilities by fitting
the project with future City plans and considering background growth.
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49. Mr. Bernstein noted that the applicant performed no analysis of the overall SR-
507/510 corridor operation which would have considered such factors as average
traffic speed, and also did not perform a queue analysis. Mr. Bernstein asserts that
significant queuing at an intersection affects the LOS calculation because it limits
the number of cars that can proceed through the intersection. He believes that the
applicant should also have performed a traffic demand analysis of the intersection.
Mr. Bernstein testified that he traveled from Yelm High School to the Bald Hills
intersection and estimated the overall road corridor to operate at LOS E and F due
to his speed of ten to 11 miles per hour. He recommended a rigorous analysis of the
corridor prior to the City moving forward on any project. The applicant did not
perform a queuing analysis, a corridor analysis, or a demand analysis as neither
DOT nor the City required such. However, computer models used in the TIA
estimated queuing and the engineer performed some model analysis. Furthermore,
performing the analyses recommended by Mr. Bernstein would only serve to
confirm what the City has known since the 1980s -that severe congestion exists
in the downtown core. The City Council has determined to accept such congestion
until alternate routes around the downtown area are established. Furthermore, even
if the analyses shows that the average LOS reduces to F, the City Council has
accepted such LOS since the Y3 project is underway.
50. Mr. Bernstein also noted that since the TlA shows no pedestrian crossing analysis,
it did not determine the impact on the traffic stream of pedestrians crossing the
road. The TlA provides neither mid-block nor unsignalized crossing estimates nor
pedestrian counts. The City and DOT once again did not require either specific
pedestrian counts or crossing time evaluation. However, the model used by The
Transpo Group includes a default pedestrian consideration which it used. The City
asserts that the signal timing incorporates the pedestrian crossing analysis. Again,
even if such analysis reduces the LOS to F, such is acceptable.
51. Mr. Shea testified that from at least the late 1980s the City has had concerns
regarding traffic congestion and decided to mitigate said congestion by dispersing
traffic as opposed to concentrating it through the urban core. The City believes that
such will promote a free flow of traffic throughout the community.
It is the policy of Yelm to adopt levels of service for concurrency
and planning purposes, which will promote development of
transportation alternatives, both routes and methods of transport,
rather than continue to enlarge the existing arterials (2001
Comprehensive Transportation Plan Update).
According to Mr. Shea, the City will mitigate congestion by constructing the bypass
route and by creating other alternate routes through the City. Wal-Mart will construct
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the portion of the Y3 bypass between SR-507 and 103~d Street.
52. A number of speakers expressed concern regarding increased travel times for
students on Yelm School District buses and increased response time by emergency
service providers as a result of the increased traffic. Additional bus travel times may
likely occur and on occasion emergency vehicles even using their sirens and lights
may experience delays. However, in determining the level of service and congestion
acceptable, the City Council is deemed to have considered such impacts as well as
the impacts of additional time in vehicles for school teachers, business owners, and
customers. Several speakers and the appellant's expert, Mr. Bernstein, testified that
the City should very carefully consider any new project which would generate traffic
on City streets. However, a map of the City will show that at present, traveling from
one portion of the City to another almost always requires accessing either Yelm
Avenue or First Street. Thus, prohibiting development impacting said roads would
essentially place a building moratorium in the City. Such is within the jurisdiction of
the City Council. Furthermore, Mr. Shea testified that many vehicles on both SR-507
and SR-510 travel through Yelm to other designations. Thus, even if the City
declared a moratorium, traffic on said state highways would continue to increase.
Thus, while Yelm might impose a moratorium, other cities and counties would
continue to grow, with commercial and residential development which would use
said state highways. Thus, the answer to traffic congestion on SR-507 and SR-510
is likely regional in nature. Such is akin to prohibiting development within the City
of Gig Harbor due to traffic congestion on SR-16 which crosses the Narrows Bridge.
53. RCW 43.21 C.075 entitled "Appeals" provides that where an agency authorizes an
environmental appeal under SEPA, the agency:
(d) Shall provide that procedural determinations made by the
responsible official shall be entitled to substantial weight.
Our Washington Supreme Court interpreted the "substantial weight" requirement in
WenatcheA Sportsmen v. Chelan County, 141 Wn. 2d 169 (2000), as follows:
A decision to issue an MDNS may be reviewed under the clearly
erroneous standard...A finding is clearly erroneous when, although
there is evidence to support it, the reviewing court on the record is
left with the definite and firm conviction that a mistake has been
committed... For the MDNS to survive judicial scrutiny, the record
must demonstrate that environmental factors were considered in
a manner sufficient to amount to prima facia compliance with the
procedural requirements of SEPA and that the decision to issue an
MDNS was based on information sufficient to evaluate the
proposal's environmental impact....141 Wn. 2d 169 at 176.
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Had the Examiner served as the responsible official he may have required the TIA
to include analyses of the overall corridor, queuing, and pedestrian crossings.
However, the Examiner is not left `wvith the definite and firm conviction that a
mistake has been committed", especially considering adoption of a level of service
standard and other traffic standards by the City Council pursuant to GMA. Applying
the °substantial weight" criteria, the City's environmental analysis provides sufficient
information to identify the proposal's probable significant environmental impacts,
and the MDNS adequately mitigates said impacts to less than substantial.
CONCLUSIONS:
The Hearing Examiner has jurisdiction to consider and decide the issues presented
by this request.
2. ~ The applicant has established that the request for site plan review approval satisfies
the criteria set forth in Chapter 17.84 YMC.
3. The appellant has not shown that the Responsible Official was clearly erroneous in
its issuance of the MDNS. The MDNS provides sufficient information to evaluate
the Wal-Mart Supercenter's environmental impacts.
4. The environmental appeal of the Yelm Commerce Group should be denied.
5. The PACLAND, Inc. request for site plan review approval should be granted subject
to the following conditions:
1. The conditions of the Mitigated Determination of Non-significance are
hereby referenced and are considered conditions of this approval.
2. The applicant shall connect to the City water system. The cost to connect
shall include a fee of $1,500.00 per Equivalent Residential Unit (900 cubic
feet per month), subject to change. The number of ERU's will be
calculated on water usage based on the design capacity of the new facility
and the proposed portables. The applicant shall provide proposed water
usage calculations in the civil plan submission. Water connection fees are
paid at building permit issuance. The water line near the intersection of
Grove Road and SR 507 shall be extended at the applicant's expense to
serve the property. The applicant may apply for a latecomer's agreement
to recover the cost of extending the water line.
3. The civil plan submission shall include fire flow calculations and
demonstrate that the fire flow requirements of the International Fire Code
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have been met at the site. If water storage tanks are utilized to provide
required fire flow, they shall meet the standards of the Yelm Design
Guidelines, shall include backflow prevention pursuant to State Health
Regulations, and shall include a maintenance and operations plan
approved by the Community Development Department. All fire hydrants
installed as part of the development shall. include hydrant locks approved
by the Development Review Engineer and the Public Works Director.
4. The applicant shall connect to the City S.T. E.P. sewer system. The cost
to connect shall include a fee of $5,417.00 per ERU with a $145.00
inspection fee per connection, subject to change. The number of ERUs
required will be determined by approved water consumption calculations
submitted as part of the civil plans. Sewer connection. fees are paid at
building permit issuance. The sewer line near the intersection of Middle
Road and 100th Way shall be extended at the applicants expense to
provide service to the property. The applicant may apply for a latecomers
agreement to recover the cost of extending the sewer line. Approved
grease interceptors or oil interceptors shall be provided on all side sewers
serving areas which include the potential for introduction of fats, oils, and
greases into the sewer system. All S.T.E.P. tanks shall be designed to
the specifications of the City of Yelm Development Guidelines, including a
maximum depth to the tank invert of 6 feet below finish grade.
5. Upon completion of the onsite installation pursuant to the City's
Development Guidelines, the S.T.E.P. sewer equipment, appurtenances
and lines shall be conveyed to the City, and an easement provided for
maintenance.
6. The applicant shall design and construct all stormwater facilities in
accordance with the conditions of the Mitigated Determination of Non-
. significance. A final stormwater report shall be included in the civil plan
.... submission.
7. Parking shall be provided in accordance with the City of Yelm
Development Guideline standards based on one space for every 250
- square feet of gross floor area. The project shall provide:
/ A minimum of 806 total parking spaces (9 feet by 20 feet minimum
standard)
/ A maximum 202 of the total spaces shall be compact stalls (8 feet by
16 feet).
/ Shopping cart return areas shall not be located in required parking
spaces.
-39-
/ 16 accessible spaces pursuant to the Washington State Amendments
to the Building Codes.
/ A minimum of 4 loading areas.
8. The civil plans shall include a complete detailed landscape plan in
accordance with Chapter 17.80 YMC, including provisions for irrigation
and for maintenance of landscaping.
/ A Type I landscape buffer is required along the north and east property
lines.
/ Type II landscaping is required along the west and south property lines
and adjacent to buildings.
/ Type III landscaping is required with all frontage improvements.
/ Type IV landscaping is required in all parking areas.
9. The 'Welcome to Yelm' sign located in the southwest corner of the
propefij shall be moved at the applicant's expense to a location approved
by the Community Development Department. The landscaping plan shall
include the proposed new location of the.sign.
10. The building elevations. included as part of the site plan review application
are consistent with the Yelm Design Guidelines for the gateway district
and are approved as submitted. Any changes to the approved building
elevations shall be submitted to the site plan review committee for review
and approval.
11. The landscape buffer along the frontages of SR 507 and SR 510 Yelm
Loop shall provide parking lot screening according to the design
guidelines applicable to the gateway district. The screening shall
incorporate a combination of the following design elements:
/ Screen walls of river rock no less than 3 feet in height and segments
not less than 20 feet in length.
/ Landscaping typical of type II
/ Decorative fence or trellis
/ Appropriate transit facilities for Intercity Transit along the SR 510 Yelm
Loop frontage.
The landscaping plan shall include the plan for parking lot screening
information.
12. The intersection. of SR 507 and the SR 510 Yelm Loop shall include
corner enhancements consistent with the Design Guidelines for the
-40-
gateway district that include the following elements:
/ Landscaping enhancements
/ A structural element designed to enhance the intersection and create
an attractive entry into the City of Yelm such as the relocated
`Welcome to Yelm' sign or a clock tower.
The landscaping plan shall include the plan for corner enhancement.
13. Refuse collection and trash compaction areas shall be designed to contain
all refuse generated on site and deposited between collections. Deposited
refuse shall not be visible from outside the refuse enclosure. Screening shall
be of a material and design compatible with the overall architectural theme
of the asscciated structure, shall be at least as high as the refuse container,
and shall in no case be less than six-feet in height with a gate enclosure.
The fence shall be a solid material such as wood or masonry, and shall be
designed per the City of Yelm Development guidelines. Building plans shall
include architectural details of the enclosure. If floor drains are utilized in the
refuse collection area, they shall be tied to the S.T. E.P. sewer system, and
a roof shall be provided over the entire collection area.
14. The civil plan submission shall include a fire access plan showing all required
fire lanes and a striping plan for fire lanes.
15. The civil plan submission shall include a plan, including provisions for a
financial guarantee, for maintenance of the property should the use
discontinue. The plan shall include the maintenance of the stormwater
system, perimeter and parking lot landscaping and the building. The plan
shall also provide provisions far enforcement of the maintenance plan which
does not financially burden the City of Yelm.
16. There shall be no outdoor storage or display of merchandise which is not
screened from public rights-of--way or adjacent residentially zoned properties.
The landscaping plan shall include details for screening all outdoor display
areas, including the garden center. There shall be no outdoor storage in
cargo containers, trailers, or storage containers which have not been
included in the landscaping plan and approved by the site plan review
committee.
17. There shall be no overnight recreational vehicle parking on the site.
18. The site plan is effective for eighteen (18) months from the date of this
approval. If application for a building permit is not made within the eighteen
-41-
month period, the approval shall automatically terminate. The applicant may
request asix-month extension of the approval, if the request is made in
writing prior to the expiration date of this approval.
DECISION:
The appeal of the Yelm Commerce Group of the Yelm Responsible Official's decision to
issue a Mitigated Determination of Nonsignificance is hereby denied.
The application of PACLAND, Inc., for site plan review approval to allow construction of a
Wal-Mart Superstore is hereby granted subject to the conditions contained in the
conclusions above.
ORDERED this 1St day of November, 2005.
EN K. CAUSSEAUX,
Hearing Examiner
TRANSMITTED this 1St day of November, 2005, to the following:
APPLICANT: - PACLAND, Inc.
606 Columbia Street NW, Suite 106
Olympia, WA 98501
PROPERTY OWNER: Wal-Mart Stores, Inc.
2001 SE 10`~ Street
Bentonville, AR 72712-6489
APPL{CANT'S
ATTORNEY: John C. McCullough/Courtney Flora
McCullough Hill Fisko Fretscmer Smith Dixon
2025 First Avenue, Ste. 1130
Seattle, WA 98121-2100
APPELLANT: Yelm Commerce Group
P.O. Box 1616
Yelm, WA 98597
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APPELLANT'S
ATTORNEY:
David A. Bricklin
Bricklin Newman Dold
1001 Fifth Avenue, Ste. 3303
Seattle, WA 98154
City of Yelm
Grant BecklTami Merriman
105 Yelm Avenue Wesf
P.O. Box 479
Yelm, Washington 98597
OTHERS:
See Attached Mailing List
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CASE NO.: SPR-05-0091-YL - WAL-MART SUPERCENTER
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 14, 2005 (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
-44-
above. The hearing examiner shall review said request in fight 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.
-45-
Mr. Chris Nubbe Ms. Cindy Teixeira Ms. Carolyn GiaMarco
Box #-lolder PMB 377 Nisqually Valley News PO Box 2456
1001 Cooper Pt. Rd. SW S_te 140 PO Box 597 910 Algiers Drive
Olympia, WA 98502 Yelm, WA 98597 ~ Yelm, WA 98597
Mr. Roger Geflenbeck ~ Ms. Marcia McHattie
City of Tumwater Rev. Dr. Richard Banach PO gox 1103
PO Box 1013 13033 Military Road SE
555 Israel Road Rainier, WA 98576
Tumwater, WA 98501 ~ Rainier, WA 98576
Ms. Renee' Zahn Ms. Christine Hartman Ms. Tischia O'Farrior
9333 Bridge Road SE PO Bcx 806 16415 Pleasant Beach Drive
Yelm, WA 98597 Tenino, WA 98589 Yelm, WA 98597
Mr. Bill Nicholls Mr. Robert Hastings Ms. Heidi Smith
PO Box 2107 PO Box 3029 22021 Elbow Lake Road
Yelm, WA 98597 Yelm, WA 98597 Yelm, WA 98597
Ms. Susan Swartz Ms. Karen Dougherty . Ms. Fern Reese
PO Box 68 16942 Holly St. SE 12907 Vail Road SE
Rainier, WA 98576 Yelm, WA 98597 Yelm, WA 98597
Ms. Nadine Chantry Ms. Barb Vear M. Alison Barker
33906 102nd Ave S PO Box 278 Roy 15330 McKee Lane SE
Roy, WA 98580 WA, 98580 Yelm, WA 98597
Ms. Gloria Winnick Mr. Robert Patrick Mr. James Zukowski
PO Box 1776 PO Box 858
18717 Sorenson Road 17043 Lake Point Drive 14801 Fox Hill Road SE
Yelm, WA 98597 Yelm, WA 98597 Yelm, WA 98597
Mr. Don McCulloch Mr. Eugene Ballard Ms. Nancy Ballard
19341 Cougar Mt. Airport Rd SE 17114 153rd Ave SE 17114 153rd Ave SE #18
Yelm, WA 98597-9080 Yelm, WA 98597 Yelm, WA 98597
Ms. Jean Handley Ms. Linda Powell Ms. Heather Macy
PO Box 1657 PO Box 891 4305 Fir Tree Road SE
Yelm, WA 98597 Yelm, WA 98597 Olympia, WA 98501
Ms. Nikki Simolke Ms. Cathy Elledge Ms. Myrtle Kinney
21928 Hobson Road PO Box 184 17338 154th Way
Yelm, WA 97597 McKenna, WA 98558 Yelm, WA 98597
City of Yelm
Resolution No. 460
A RESOLUTION UPHOLDING THE HEARING EXAMINER'S APPROVAL OF THE SITE
PLAN REVIEW FOR THE CONSTRUCTION OF A WAL-MART SUPERCENTER (SPR-
05-0091-YL ANA APL-05-0203-YL)
WHEREAS, the Yelm City Council held a closed record hearing on December
28, 2005, regarding an appeal by the Yelm Commerce Group, Valentine Fyrst, Bill
Nicholls, and James Zukowski of the Hearing Examiner's approval of a site plan review
for the construction of a Wal-Mart supercenter in Yelm; and
WHEREAS, the Council considered the appeal, responses to the appeal filed by
the City of Yelm Community Development Department and Wal-Mart, a reply by the
Yelm Commerce Group, et. al., the Hearing Examiner's decision, reconsideration
requests filed by James Zukowski, Bill Nicholls, Valentine Fyrst, and Ed Wiltsie, and the
Hearing Examiner's decision on reconsideration; and
WHEREAS, the Council reviewed the record before the Hearing Examiner prior
to the closed record hearing, including audio from the three days of public hearing and
a!I written materials submitted to the Hearing Examiner as part of the record, an index of
which is included in the Hearing Examiner's report and decision; and
WHEREAS, the City Council adopts the following Findings of Fact and
Conclusions of Law in the matter of the Yelm Commerce Group's appeal:
Findings of Fact
1. PACLAND, Inc, on behalf of Wal-Mart Stores, Inc. made application to the City of
Yelm fora site plan review approval for the construction of a Wal-Mart
supercenter in Yelm.
2. Grant Beck, the Yelm Community Development Director and SEPA Responsible
Official issued a Mitigated Determination of Non-significance on June 7, 2005
and this determination was timely appealed by the Yelm Commerce Group.
3. Pursuant to Chapter 15.49 YMC, the Yelm Hearing Examiner held a duly
advertised open record hearing on the Yelm Commerce Group's appeal of the
MDNS. Pursuant to Chapter 15.49 YMC and Chapter 36.708 RCW, the open
record hearing included the underlying land use permit, a site plan review
approval. At the open record hearing, held on August 29th, 30th, and September
1gt, 2005, the Examiner accepted oral and written testimony on the site plan
review application and the appeal of the MDNS and expert testimony regarding
the appeal of the MDNS.
4. The Examiner issued on November 1, 2005, a report and decision which upheld
the issuance of the MDNS and approved the site plan review application, with
conditions as recommended by the Community Development Department. Four
requests for reconsideration were filed by James Zukowski, Valentine Fyrst, Bill
Nichols, and Ed Wiltsie on November 14, 2005. The Examiner denied the
reconsideration requests on November 18.
City of Yelm Resolution 460
E~t~ I BtT !~
5. On November 28, 2005, the Yelm Commerce Group, Valentine Fryst, Bill
Nicholls, and James Zukowski filed an appeal of the Hearing Examiner's decision
to approve the site plan review application for the construction of a Wal-Mart
supercenter in Yelm. The sole basis for the appeal is whether the proposed
development meets concurrency requirements for the City of Yelm as they relate
to transportation. The Hearing Examiner's action to uphold the Responsible
Official's SEPA Determination was not appealed to the City Council pursuant to
Sections 2.26.150 and 15.49.160 YMC.
6. Section 36.70A.070 (6)(b) RCW does not require the City of Yelm adopt an
Ordinance relating to concurrency management which mandates the City prohibit
development approval if a development causes the level of service on any state
owned transportation facility to decline below the level of service standards
adopted for the purpose of gauging the performance of the system pursuant to
Section 36.70A.070 {6}(a}(iii)(C).
7. Section 36.70A.070 (6)(b) RCW does not prohibit the City of Yelm from
establishing concurrency requirements for local project review for state owned
transportation facilities, and the City of Yelm has established level of service
standards for concurrency management purposes for State Routes 510 and 507
within Yelm and it's urban growth area.
8. The Yelm Comprehensive Transportation Plan establishes the following level of
service standards for concurrency purposes:
1. In all residential zones, LOS C
2. In all commercial and light industrial zones, LOS D
3. In the urban core LOS F is recognized as an acceptable level of service
where mitigation to create traffic diversions, bypasses, and alternate
routes and modes of transportation are authorized and being planned,
funded, and implemented.
9. Alternate routes., in the form of the Y-2 and Y-3 transportation improvement as
identified in the Yelm Comprehensive Transportation Plan are a primary project
for the City, Washington State Department of Transportation, Thurston County,
and the Thurston Regional Planning Council. A corridor has been established,
an environmental document approved with a Finding of No Significant Impact,
the SR 510 Yelm Loop (Y-3) is currently in design, including additional
environmental work which will lead to the access process and right of way
acquisition.
The work completed to date shows that alternate routes are being planned, being
funded, and being implemented.
10. The level of service standard in the urban core of Yelm is °F" pursuant to the
Yelm Comprehensive Transportation Plan.
11. The City has consistently utilized the average intersection level of service
methodology for signalized and unsignalized intersections for concurrency
City of Yelm Resolution 460
management purposes, which is an industry standard and consistent with other
jurisdictions in Thurston County.
12. Utilizing average intersection level of service for signalized and unsignalized
intersections is an appropriate methodology for evaluating concurrency with the
established levels of service for the transportation system.
Conclusions of Law
A. This matter comes before the City Council on an appeal filed by the Yelm
Commerce Group, Valentine Fyrst, Bill Nicholls, and James Zukowski of the
issuance of a site plan review approval by the Yelm Hearing Examiner. The
Hearing Examiners action to uphold the Responsible Official's SEPA Threshold
Determination was not appealed to the City Council.
B. The Yelm Community Development Department and Yelm Hearing Examiner
applied the correct level of service calculation methodology for concurrency
purposes pursuant to Chapter 15.40 YMC and Section 36.70A.070 (6)(b) RCW.
The proposal meets concurrency requirements, including a level of service "F" in
the Yelm urban core.
C. The Hearing Examiner's decision was supported by substantial evidence
submitted through the land use hearing process, particularly by the expert
testimony of the City's transportation consultant, Perry Shea of Parametrix, Inc.
NOW, THEREFORE, BY IT RESOLVED by the City Council of the City of Yelm,
Washington, that the Hearing Examiner's approval of a site plan review for the
construction of a Wal-Mart supercenter is upheld and the Hearing Examiner's report and
decision is hereby adopted.
PASSED and signed in authentication on this 28th day of December, 2005
Attest:
%~ -'fit/ ~-
Agn P. Bennick, City Clerk
City of Yelm Resolution 460
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP,
Petitioner,
NO.
v.
CITY OF YELM; PACLAND, INC.; and
WAL-MART STORES, INC.
SUMMONS
TO THE RESPONDENTS:
A lawsuit has been started against you in the above-entitled Court by Yelm
Commerce Group, petitioner. Petitioner's claim is stated in the written Land Use Petition,
a copy of which is served upon you with this Summons.
In order to defend against this lawsuit, you must respond to the Land Use Petition
by stating your defense in writing, and serve a copy upon the undersigned attorney for the
petitioner within 20 days if service of this Summons is made upon you within the State of
Washington, or within 60 days if service is made upon you outside of the State of
Washington, excluding the day of service, or a default judgment may be entered against you
without notice. A default judgment is one where the petitioner is entitled to what it asks for
because you have not responded. If you serve a notice of appearance on the undersigned
attorney, you are entitled to notice before a default judgment may be entered.
You may demand that the petitioner file this lawsuit with the Court. If you do so,
the demand must be in writing and must be served upon the petitioner. Within 14 days after
SUMMONS - 1
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 2648600
Fax (206)264-9300
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you serve the demand, the petitioner must file this lawsuit with the Court, or the service on
you of this Summons will be void.
If you wish to seek the advice of an attorney in this matter, you should do so
promptly so that your written response, if any, may be served on time.
This Summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the
State of Washington.
Dated this ~ U day of January, 2006.
Respectfully submitted,
BRICKLIN NEWMAN DOLD, LLP
- 1~
By:
David A. Bricklin
WSBA No. 7583
Attorneys for Yelm Commerce Group
YCG\Superior\summons
SUMMONS - 2
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (206) 2G4-9300
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~~cF
/qN1~ ~~®
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP, a
Washington non-profit corporation,
Petitioner,
v.
NO.
DECLARATION OF SERVICE
CITY OF YELM; PACLAND, INC.; and
WAL-MART STORES, INC.
STATE OF WASHINGTON )
ss.
COUNTY OF KING )
I, DANIEL P. DRAHEIM, under penalty of perjury under the laws of the State of
Washington, declare as follows:
I am the legal assistant for Bricklin Newman Dold, LLP, attorneys for Yelm
Commerce Group, petitioner herein. On the date and in the manner indicated below, I
caused the Land Use Petition and Summons to be served on:
DECLARATION OF SERVICE - 1
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (206) 264-9300
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City of Yelm
105 Yelm Avenue West
P.O. Box 479
Yelm, WA 98579
[ ] By United States Mail
~By Legal Messenger
[ ] By Facsimile
[ ] By Federal Express/Express Mail
[ ] By E-Mail
PACLAND, Inc.
606 Columbia Street NW, Suite 106
Olympia, WA 98501
~By United States Mail
[ ] By Legal Messenger
[ ] By Facsimile
[ ] By Federal Express/Express Mail
[ ] By E-Mail
Wal-Mart Store, Inc.
2001 SE 10`h Street
Bentonville, AR 72712-6489
~By United States Mail
[ ] By Legal Messenger
[ ] By Facsimile
[ ] By Federal Express/Express Mail
[ ] By E-Mail
DATED this ~ day of , 200, at Seattle, Washington.
NIEL P. RAHEI
YCG\Superior\Decsv
DECLARATION OF SERVICE - 2
Bricklin Newman Dold, LLP
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (206) 2649300
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Received
NOV 2 8 2005
BEFORE THE CITY COUNCIL
FOR THE CITY OF YELM
IN RE: WAL-MART SUPERCENTER
FILE NO. SPR OS-0091-YL AND
APL OS-0203-YL
APPEAL OF THE HEARING
EXAMINER'S DECISION TO
APPROVE THE SITE PLAN FOR
WAL-MART BY YELM
COMMERCE GROUP, VALENTINE
FRYST, BILL NICHOLLS, AND
JAMES ZUKOWSKI
I. BACKGROUND
Yelm Commerce Group, Valentine Fryst, Bill Nicholls, and James Zukowski
(hereinafter "YCG"} respectfully submit this appeal of the City of Yelm's Hearing
Examiner's decision to grant the Site Plan Approval for the Wal-Mart project. This appeal
is submitted pursuant to City of Yelm Municipal Code. YMC 2.26.150. The Hearing
Examiner's decision was issued November 1, 20(}5. The case number designated'by the
Hearing Examiner's Office is SPR-OS-0091-YL-WAL-MART SUPERCENTER.
The project applicant in this case is PACLAND, Inc. ("PacLand"}. The application
was submitted on behalf of the property owner, Wal-Mart Stores, Inc. ("Wal-Mart"} for a
proposed new Wal-Mart store. For purposes of this appeal, the petitioners maybe contacted
APPEAL OF THE HEARING EXAMINER'S DECISION TO Bricklin Newman Dold, LLP
Attorneys-at-I.aw
APPROVE THE SITE PLAN FOR WAL-MART BY YELM ,~o, Fouah Avemae, sn;te 3303
COMMERCE GROUP, VALENTINE FRYST, BILL T ~ ~~~j 6a~-~~o
NICHOLLS, AND JAMES ZUKOWSKI- 1 T'~zY c~~'~4 ~3`~,
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through their attorney, David Bricklin of Bricklin Newman Dold, LLP, 1001 Fourth
Avenue, Suite 3303, Seattle, WA 98154, telephone (206) 264-8600, facsimile (206) 264-
9300, pursuant to YMC 2.26.150. An appeal fee of $150 is submitted with this appeal.
The petitioners are the Yelm Commerce Group ("YCG") P.O. Box 1616, Yel, W A
98597. The petitioners were the appellants in the proceedings below and members of the
YCG testified at the hearing before the Examiner.
After reviewing the Department of Community Development's Staff Report and
examining available information on file with the application, the Examiner conducted a
public hearing on the request from August 29 to September 1, 2005.
The Hearing Examiner issued a decision on November 1, 2005. The Hearing
Examiner's decision granted the request for Site Plan Approval, and upheld the MDNS
decision. The MDNS decision is not subject to review by the City Council. Only the Site
Plan Approval is subject to appeal here.
The City Council's review is based solely upon the evidence presented to the hearing
examiner, the Hearing Examiner's report, the notice of appeal and submissions by the
parties. YCC 2.26.160. The City Council may adopt, amend and adopt, reject, reverse,
and amend conclusions of law and the decision of the hearing examiner, or remand the
matter for further consideration.
APPEAL OF THE HEARING EXAMINER'S DECISION TO
APPROVE THE SITE PLAN FOR WAL-MART BY YELM
COMMERCE GROUP, VALENTINE FRYST, BILL
NICHOLLS, AND JAMES ZUKOWSKI- 2
Bricklin Newman Dold, i .i •p
Attorneys-zc-Iaw
1001 Fourth Avenue,Suim 3303
Seattle, \L'A 98154
Tel. (2016) 264-8600
Pax (206) 2649300
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II_ ARGUMENT
A. Site Plan Approval
The Examiner's decision approving the site plan should be reversed because Wal-
Mart did not establish that it meets the requirements of all applicable City codes:::. YCC
1.7.84,020. C. In particular, the Examiner's decision is not supported by substantial evidence
to support his conclusion that Wal-Mart met its burden of demonstrating that it had complied
with the City's transportation concurrency requirements.'
1. The project fails concurrency when the correct concurrency standard
is applied
The Examiner's concurrency determination was flawed because it was based on the
wrong concurrency standard for the State Routes passing through the City. The City's
concurrency standards are not applicable to State roads inside Yelm's boundaries. State law
is explicit that the LOS standards for state roads are set by the applicable Regional
Transportation Planning Organization (RTPO). RCW 47.80.030.2
In this instance the Thurston Regional Planning Council (the applicable RTO) has
set the LOS for State roads in the southern part of Thurston County at LOS D. Testimony
of Bernstein (Day 2, Tape 3B, 43:09). However the Examiner accepted the concurrency
' With respect to the site plan approval, Wal-Mart bore the burden of proof before the
Hearing Examiner.
2 There is an exception for major state routes (routes of statewide significatlce) in
which case the LOS is set by the Washington State Department of Transportation and
general concurrency rules do not apply. But the State Routes in Yelm do not fall within that
special classification.
APPEAL OF THE HEARING EXAMINER'S DECISION TO Bricklin Newman Doll, LLP
APPROVE THE SITE FLAN FOR WAL-MART BY YELM ,oo, r~ urth A~ ~~t s,~u 3303
COMMERCE GROUP, VALENTINE FRYST, BILL i ~i ~`~ i a9-s~
NICHOLLS, AND JAMES ZUKOWSKI- 3 r~.~ ~zc~> zc.,-~sca
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analysis that was based on an LOS standard of F. See, ~, Testimony of Shea, Day 3, Tape
3A, 35:40. This is the wrong LOS standard for the State Routes, thus the concurrency
determination is flawed.
The applicable LO5 standard is LOS D. The project does not satisfy this
eoncurrency requirement because several turning movements on intersections along SR 507
fall below LOS D. According to Wal-Mart's own transportation analysis (the "TIA"), the
following intersections do not pass concurrency:
Na. Intersection Name LO5 in 2006 with Project
6 West Yelm/Mountain View Road E
8 West Yelm/Cullens Street F
9 West Yelm/Longmeyer Street E
10 West Yelm/Solberg Street F
12 West Yelm/Edwards Street F
1.3 West Yelm/Railroad Avenue F
14 Yelm Ave/First St. E
15 East Yelm/Second Street F
16 East Yelm/Third Street F
21 East YelmlPlaza Drive SE F
24 SR 507/Grove Road F
25 SR 507/Old McKenna Road SE F
26 SR 507/Nail Road SE E
TIA, Table 6 (pp. 25-26).3
3 Of the failing intersections, several of them would not have been failing but for the
project or decreased from LOS E to LOS F because of the project: Intersections No.; 9, 10,
14, 24, 25, and 26.
APPEAL OF THE HEARING EXAMINER'S DECISION TO $rickiin Newman Dold, LLP
APPROVE THE SITE PLAN FOR WAL-MART BY YELM ,on, F„~;, R~ ucr s~~ j~o3
COMMERCE GROUP, VALENTINE FRYST, BILL Tel. (~20~'.n6~49-~~
NICHOLLS, AND JAMES ZUKOWSKI- 4 ''~~ c~~ z~~-~3~,
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Consequently, the project flunks concurrency and the Site Plan Approval must be
reversed.
2. The_,proiect failsfails, concurrency even if the City's LOS standards are
employed
Even if the City's concurrency standard is used, the project fails those LOS
standards, too. The City's LOS standards are found in its Comprehensive Transportation
Plan. The LOS standard for "all commercial and light industrial zones" is LOS D. Yelm
Comprehensive Transportation Plan (Jul. 2001) at 2. The City makes an exception and
allows LOS F in the urban core under limited conditions. Those conditions do not apply
here. According to the Yelm Comprehensive Transportation Flan:
In the urban core, LOS F is recognized as an acceptable level
of service where mitigation to create traffic diversions,
bypasses, and alternate routes and modes of transportation are
authorized and being planned, funded and implemented.
Id. at 3 (emphasis supplied). There was no evidence provided by Wal-Mart or the City at
the hearing that there are any "traffic diversions, bypasses, alternate routes or alternate
modes of transportation" that are being "planned, funded and implemented" that ~":;would
mitigate the current traffic congestion on Yelm Avenue. Certainly, there is evidence that
the bypass is being "planned" and is partiallX funded. But there is no evidence of full
funding or that the bypass is being "implemented." Certainly, there is no evidence that the
bypass will be in operation within six years. See RCW 36.70A.070(6}(b). Thus, even
under the City's LOS standards, the result would be the same as under the LOS D standard
established by the Thurston Regional Planning Council.
APPEAL OF THE HEARING EXAMINER'S DECISION TO Bricklin Newman Dold, LLP
APPROVE THE SITE PLAN FOR WAL-MART BY YELM A"~~mt~-at-z.a"
1001 Fautth Avenue , Suitc 3303
COMMERCE GROUP VALENTINE FRYST BILL
~ Seattle, l`"A 98151
Tel. (206) 26486(Hl
NICHOLLS, AND JAMES ZUKOWSKI- 5 rzY (2~,~~ 2fi~-~3"°
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Finally, the description of the City's LOS standard fails to specify what method is
to be used to calculate LOS. As acknowledged by testimony see, e.g_, testimony of
Arbruster, Day 3, Tape 2A, 25:30) multiple methods are available to calculate LOS. The
Examiner's (and staff's) use of only one available method ignored congestion along Yelm
Avenue that would result in LOS E or F at various additional intersections as well as along
the length of Yelm Avenue itself (using the "urban street LOS" method). The use of only
one LOS determination method is arbitrary and lacks any support in the record.
B. Ongoing SEPA Compliance
If the Council remands this matter because of the concurrency issues discussed
above, the Council should consider also directing the City staff to re-examine its SEPA
decision. The City's SEPA "Responsible Official" has continuing authority and
responsibility to re-evaluate environmental issues and the threshold determination. See,
e.g_, WAC 197-11-340(3). A threshold determination based upon inadequate or incorrect
information or analysis may be vacated at any time.
At Wal-Mart's and the City's urging the Examiner imposed the wrong standard on
YCG for SEPA review. It was not YCG's burden to prove with certainty the magnitude of
impacts that will result from Wal-Mart's project. Assessing impacts with greater certainty
is the job of the applicant via an EI5. The YCG met its burden by demonstrating that the
City failed to collect the information it needed to make a threshold determination and that
the information presented to the Examiner demonstrated that there may be significant
adverse environmental impacts.
APPEAL OF THE HEARING EXAMINER'S DECISION TO Brickiin Newman Dald, I.L.P
APPROVE THE SITE PLAN FOR WAL-MART BY YELM ~~~ F~uni,`a ~;;u ~~;~~33os
COMMERCE GROUP, VALENTINE FRYST, BILL r~i ~ ~ 2"(,~p8(,SC~'
NICHOLLS, AND JAMES ZUKOWSKI- 6 r•~r ~z~~~2(r1-9300
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The City staff did not meet its duty to "independently evaluate" Wal-Mart's
information and the evidence before the Examiner demonstrated the need for an EIS.
Therefore, if the Council remands the concurrency issue, it also should request the
Responsible Official to re-examine the threshold determination in light of the issues raised
at the hearing.
III. CONCLUSION
For the foregoing reasons, the YCG respectfully requests that the Council deny the
Site Plan Approval in this matter.
Dated this 28`~ day of November, 2005.
Respectfully submitted,
BRICKLIN NEWMAN DOLD, LLP
Tr ~ ~ rFf ,' ~ \.
By:
David A. Bricklin
WSBA No. 7583
Attorneys for Yelm Commerce Group,
Valentine Fryst, Bill Nicholls, and
James Zukowski
YELM COMMERCE GROUP
f... ,~ -7,: ~
~'" ~ r
,~ ~~
Gregory May
YCG\YeUn Ciry Comteil Appeal
APPEAL OF THE HEARING EXAMINER' S DECISION TO Bricklin NevV'man Doid, LLP
Attorneys-at-Ia~v
APPROVE THE SITE PLAN FOR WAL-MART BY YELM ,~» Foart64!+venue,Su;te3303
Seatticj lX~'A 98154
COMMERCE GROUP, VALENTINE FRYST, BILL F~`~ ~'°~~?rte 3~
NICHOLLS, AND JAMES ZUKOWSKI- 7
City of Yelm
V/ \t~ Community Development Department
105 Yelm Avenue West
P.O. Box 479
YELM Yelm, WA 98597
WASHINGTON
NOTICE OF PUBLIC HEARING
YELM HEARING EXAMINER
DATES: Monday, August 29, 2005, 9:00 A.M.
Tuesday, August 30, 2005, 9:00 A.M.
Thursday, September 1, 2005, 9:00 A.M.
PLACE: Yelm Community Services
624 Crystal Springs Road NW
Yelm, WA 98597
PURPOSE: A consolidated Public Hearing on Wal-Mart
Case Numbers APL-05-0203-YL and SPR-05-0091-YL. A consolidated hearing on a site plan
review application and an appeal of the issuance of a Mitigated Determination of Non-
significance.
The site plan review application proposal by PACLAND, Inc. is to construct a Wal-Mart
Supercenter comprised of an 187,400 square foot retail building and 14,000 square foot garden
center and associated parking and stormwater systems. The project is located approximately
1,000 feet east of Grove Road, north of State Route 507.
The Yelm Commerce Group appealed the issuance of a Mitigated Determination of Non-
significance.
The City of Yelm Hearing Examiner will hold a public hearing to receive comments on the
proposal. The anticipated order of the hearing will include opening comments by the City, Wal-
Mart, and the Yelm Commerce Group followed by public comment from any interested party on
Monday with expert testimony by witnesses for the applicant and appellant on Tuesday and
Thursday. Testimony from the general public will be accepted throughout the entire three days
of the hearing, but is encouraged to be presented on Monday, August 29.
Testimony may be given at the hearings or through any written comments. Comments must be
received by the close of the public hearing. Written comments may be submitted to the City of
Yelm at City Hall, 105 Yelm Avenue West, or mailed to: City of Yelm, PO Box 479, Yelm WA
98597.
Any related documents are available for public review during normal business hours at City Hall
and on the City of Yelm web site at www.ci.yelm.wa.us. For additional information, please
contact Grant Beck 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
Agne`s~~ennick, City Clerk
DO NOT PUBLISH BELOW THIS LINE
Published in the Nisqually Valley News:
Friday, July 29, 2005
Friday, August 12, 2005
Friday, August 26, 2005
Posted in Public Areas: Friday, July 29, 2005.
JUN-30-05 03:34Pi1 FR01~-Bricklin Newman Oold. LlP 206 264 9300 T-597 P.003/003 f-985
G'ommunity Ueve[opment
Department
NOTICE OF APPEAL
Fee: Staff Decision - $50.00
Hearing Examiner Decision - $100.00
(In addition, any professional service ~Q
charges per Resotutton #358) ?~
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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 1 & II project decisions are
heard by the City Council. Appeals on Category Ill & IV project decisions as weU as Category l 8~ II
decisions which have been appealed to the City Council go bn Superior Court and follow the judicial
review process set forth in RCW 366.700. A NoticQ of Appeal must be tiled within 14 days of
Notice of Final Decision.
f'R Ei;7' CASE NUMBER BEINGi rPPEALED SPR-O~Ot19i-YL
PATE OP NOTICE OF FINAL DECISION June 7.2p45
APPELLANT(S) Yetm Commerce Group
Mailing Address P.p. Box 1616
City, State and Zip Yetrtt, WA 98597
telephone 360-894-3462 ~ ~MAtL
SPECIFIC !TENS OF DECISION BEING APPEALED (attach additional sheet if rtecesaaly):
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 that apply to this application.
Signed Date
Appellant's Attorney: David A. Bricklin, Bricklin Newman Dold, LLP, 1001 Fourth
Avenue, Suitt= 3303, Seattle, WA 98154. Telephone: 206-264-8600,
Facsimile: ZO -264-83 , E-mail: Bricklin ~ b d-law.com
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JUN-30-05 03:34PM FROM-Bricklin Nawman Dold, LlP 206 264 9300 T-59T P.0021003 F-985
SPECIFIC TI'EMS OF DECISION BEING APPIrAIED
The Yelm Conztnerce Group appeals the MitigatedDetermination ofNon-Significance issued
for the proposed Wal-Mart Supercenter on the following grounds:
1. The project will have a probable significant adverse impact on the environment.
2. The proposed mitigation measures will not t1educe the significant adverse impacts tv
a ]eve] of non-significance.
3. Without limitation to the generality of the foregoing, the Yelm Commerce Group
identities the following areas of the environutcnt where significant adverse impacts are probable:
traffic (including inconsistencies with the City's Transportation Plan and concunency requirements),
~oundwater (quantity and quality, including impacts to designated aquifer recharge areas), land and
shoreline use (including urban decay and inconsistency with the City's Comprehensive Plan),
floodplain, aesthetics and open space, stotmwatcr, Yelm Creek, wetlands, air quality, conservation
and renewable resources, public services and utilities, light, and glaze. The cumulative effect of
these impacts also is significant.
4. There are significant gaps in the relevant information and there is scientific
uncertainty concerning the significance of various impacts. The City should havc obtained the
missing information before malting its threshold determination.
YCG1Naiee of Appeal