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Continuance RequestLAW OFFICES GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON &DAHEIM LLP TACOMA OFFICE 1201 PACIFIC AVENUE, SUITE 2100 POST OFFICE BOX 1157 TACOMA, WASHINGTON 98401-1157 (253) 620-6500 FACSIMILE (253) 620-6565 WARREN R. PETERSON (1926-1989) THOMAS L. FI SHBURNE (1939-198]) VALEN H. HONEYWELL (1916-2002) REPLY TO TACOMA OFFICE Direct Dial 'Iaccna: (253) 620-6493 Direct Dial Saattle: (206) 676-6493 IIrail P~dlzss: tbrink.~gth-law.com ALBERT R. MALANCA WARREN J. DAHEIM JOE GORDON, JR. MARK G. HONEYWELL, P.S. WILLIAM E. HOLT JOHN C. GUADNOLA DONALD W. HANFORD TIMOTHY J. WHI TTERS WILLIAM T. LYNN KENNETH G. KIEFFER JAMES C. WALGO MATTHEW W. STANLEY J. RICHARD CREATURA DONALD 5. COHEN ROBERT C. GRAYSON VICTORIA L. VREELAND JOHN R. CONNELLY, JR. ALAN D. MACPHERSON DIANE J. KERO C. JAMES FRUSH BRADLEY A. MAXA SALVADOR A. MUNGIA WARREN E. MARTIN EI LEEN S. PETERSON F. MIKE SHAFFER BRADLEY B. JONES TERRY L. BRINK MARGARET Y. ARCHER LINDA CJ LEE MICHAEL T. PFAU SANDRA J. ROVAI JAMES B. MEADE SEATTLE OFFICE ONE UNION SQUARE 600 UNIVERSITY, SUITE 2100 SEATTLE, WASHINGTON 98101-4185 (206) 676-7500 FACSIMILE (206) 676-7575 OF COUNSEL JOSEPH H. GORDON W. WALLACE CAVANAGH, JR. L. R. GHILARDUCCI, JR. ELIZABETH PIKE MARTIN CHARLOTTE N. CRACKER DONALD H. THOMPSON GALE L. CARLISLE, P.S. THOMAS J. GREENAN LEWIS ELLSWORTH MELISSA K. BRYAN DARRELL L. COCHRAN DAVID P. MOODY BRADLEY G. DAMS STEPHANIE L. BLOOMFI ELD AMANDA M. O'HALLORAN DAVID B. JENSEN JOAN C. FOLEY TIMOTHY L. ASHCRAFT JULIE E. DICKENS VALARIE ZEECK THADDEUS P. MARTIN DIANNE K. CONWAY LAFCADIO DARLING NARLO DELANGE STEVEN REICH STONE GRISSOM S. SHAWN TACEY BRUCE KRI EGMAN GARY E. HOOD PATRICIA PEARSON ROBERT CALDW ELL JONGWON YI JEM IMA McCULLUM J.D. SMITH LOREN A. COCHRAN LINCOLN C. BEAUREGARD MAX E. JACOBS SUE O'REI LLY CASEY INGELS JOSHUA WEISS BRADLEY BUCKHALTER MICHELLE MEN ELY August 4, 2003 HAND DELIVERED Stephen K. Causseaux, Jr., Esq. City of Yelm Hearing Examiner Office of City of Yelm Hearing Examiner P. O. Box 5767 Tacoma, WA 98405 Re: Supplemental Letter/Memorandum Revised Benum/Coyne Preliminary Plat Dear Mr. Examiner: ~~ ~ ~ ~ ~ EXPLANATION FOR CONTINUANCE The public hearing scheduled for Friday, July 11, 2003 was continued at the mutual request of our clients, Bob Benum and Bob Coyne (the "Applicants"), and the City of Yelm (the "City"). The primary purpose of the continuance was to afford both the Applicants and the City an opportunity to attempt to resolve some of their differences related to the proposed so-called Y2/Y3 Transportation Corridor prior to the public hearing. The Applicants and the City met at the City of Yelm on Wednesday, July 2, 2003 for the purpose of determining whether there was reason to reasonably believe that some of the issues in dispute could be resolved by further discussions. The results of that meeting were sufficiently promising to justify the joint request for a continuance of the public hearing scheduled for July 11, 2003. [1235119 vl] CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP August 4, 2003 Page 2 POST-CONTINUANCE MEETING On July 11, 2003, instead of attending the public hearing that had been continued, a second meeting was held at our Tacoma office. During that meeting, we continued the discussions that focused on how to address the City's concerns and minimize the negative impacts to the plat to an extent that was tolerable to the Applicants. After: (i) numerous follow up e-mails; (ii) revisions to the Site Plan; (iii) additional fire flow studies by both the City and the Applicant; (iv) additional meetings; and (v) various telephone conferences, mutually agreeable revisions to the application were agreed to in principle. The changes in the application were possible due to creative and innovative land planning on the part of both the Applicants and the City. REVISED STAFF REPORT One and one half (1.5) business days before the public hearing scheduled for Monday, August 4, 2003, the City provided a draft Revised Staff Report that attempted to fairly summarize the changes to the application. After subsequent discussions and further revisions, the Applicants and the City both reached agreement on the finalized version of the Revised Staff Report. The Revised Staff Report modifies and supersedes much of what was included in the original Staff Report, but it does not excise from the public record many of the issues that gave rise to the dispute between the Applicant and the City with respect to the proposed Y2/Y3 Transportation Corridor. Therefore, during this August 4, 2003 public hearing, we are asking the Examiner to enter as an exhibit the Letter/Memorandum that we prepared to submit during the continued July 11, 2003 public hearing. LEGAL ARGUMENTS REMAIN VALID The legal arguments advanced in the Letter/Memorandum dated July 11, 2003 remain valid and applicable to whatever extent that they are not fully resolved by the Revised Staff Report. The fact that the Applicant has revised the Site Plan to accommodate the City's visions for a future state highway for which there is no funding, and no assurance of any future funding, is in no way an endorsement of the City's arguments set forth in the June 17, 2003 Staff Report. APPLICANTS ACTED VOLUNTARILY In our July 11, 2003 Letter/Memorandum there are sound legal arguments that support the Applicants' refusal to design the Plat to accommodate a very uncertain future. state highway [1235119 vl~ CORDON, THOMAS, HONEYWELL MALANCA, PETERSON ~ DAHEIM LLP August 4, 2003 Page 3 project. The Applicants' consent to cooperate with the City in finding a mutually acceptable resolution of some of their differences was consensual. In light of the foregoing, the record should reflect plainly that the Applicants' voluntarily resolved the dispute regarding the Y2/Y3 Transportation Corridor and that this case sets no precedent for others that may follow with respect to the legal issues addressed in our July 11, 2003 Letter/Memorandum. CITY ACTED VOLUNTARILY Likewise, the City also acted voluntarily in allowing the Applicants to: (i) utilize the City's adjacent off-site open space to satisfy its open space requirements; (ii) waive landscaping requirements because of the existing natural buffers; and (iii) modify an on-street parking requirement in return for numerous off street shared access driveways. Moreover, the City agreed to undertake the post utilities construction off-site road restoration. DENSITY The density under the revised Site Plan is 3.71 dwelling units per acre (104 lots _ 28.02 acres = 3.71 dwelling units per acre). Under the Low-Density Residential District (R-4) zoning classification, the density requested is below the maximum density allowed outright of 4.0 dwelling units per acre pursuant to YMC § 17.12.020 A.1 based on the Thurston County Assessor's estimate of the gross acreage of the subject property at 28.02 acres. However, the Applicants' surveyor is currently engaged in a survey of the subject property. When the survey is completed, the Applicants recognize that the density may require adjustment to a maximum of four (4.0) dwelling units per gross acre determined by the survey. The Applicants further acknowledge that in no event shall the density increase above 104 lots; and, if the density is required to be reduced, the lots eliminated shall be from those lots situated in Phase II within the proposed Y2/Y3 Transportation Corridor. OPEN SPACE Chapter 14.12 of the Yelm Municipal Code requires a minimum of five percent (5%) of the gross area of the site to be dedicated as open space, or pay a fee in-lieu-of providing open space. Because of the Applicants' willingness to construct the ten foot (10') wide asphalt pedestrian trail on the City's adjacent railroad right-of--way pursuant to the City's plans, the City recognized such improvement as satisfaction of the open space requirement of 61,028 square feet (28.02 acres x 43.560 square feet in an acre = 1,220,551.20 x 5% = 61,028). [1235119 vl] CORDON, THOMAS, HONEYWELL MALANCA, PETERSON F~ DAHEIM LLP August 4, 2003 Page 4 SCHOOL MITIGATION The Applicants will be required to negotiate and consummate a so-called "voluntary agreement" with the Yelm School District pursuant to the Revised MDNS Mitigation Measure No. 3, which payment of mitigation fees will off-set the impacts of the Plat. TRAFFIC MITIGATION Pursuant to the Revised MDNS Mitigation Measure Nos. 1 and 2, the Applicants shall be required to either: (i) pay Transportation Facility Charges of $757.50 per dwelling unit; or (ii) realign Canal Road with Wilkenson Road to meet City standards for intersections. GENERAL COMMENTS The Applicants development plan includes: 1. Setbacks per the applicable code which requires: a. Side yard setbacks o£ (i) a minimum on one side of five feet; and (ii) a total on both sides of twelve feet; b. Front yard setbacks of: (i) fifteen feet on local streets, with a twenty foot minimum driveway approach; (ii) twenty-five feet on collector streets; and (iii) thirty-five feet on arterial streets; c. Rear yard setbacks of twenty-five feet; d. Street side setbacks of fifteen feet; 2. Maximum building coverage of fifty percent; 3. Public streets; 4. Public storm sewers; 5. Public sanitary sewer; 6. Street lighting; 7. Concrete sidewalks on one side of the public streets; 8. Three (3) tracts: [1235119 vl] CORDON, THOMAS, HONEYWELL MALANCA, PETERSON F~ DAHE[M LLP August 4, 2003 Page 5 a. Tract "A" is an open space tract consisting of 34,720 square feet, or .80 acres, which lies adjacent to and northwest of the Burlington Northern Railroad right-of--way and includes on the northwest boundary an existing thirty-foot Olympic Pipeline easement. Tract "A" will be preserved in its natural condition for the owners and residents of the Plat. The existing vegetation shall be supplemented pursuant to a Landscaping Plan to be provided by the Applicants. Maintenance of Tract "A" shall be by the homeowners' association to be formed. b. Tract "B" is a second smaller open space tract consisting of 8,293 square feet, or .19 acres, which lies adjacent to and west of Lot 104. Tract "B" will also be preserved in its natural condition for the owners and residents of the Plat. The existing vegetation shall be supplemented pursuant to a Landscaping Plan to be provided by the Applicants. Maintenance of Tract "B" shall also be by the homeowners' association to be formed. c. Tract "C" is a public storm drainage tract consisting of 67,869 square feet, or 1.56 acres, which will be utilized in conjunction with on-site public storm drainage facilities. A copy of the Preliminary Stormwater Site Plan dated October 28, 2002 is attached to the July 11, 2003 Letter/Memorandum as Exhibit "C." 9. Utilities to be served by the following utilities purveyors: UTILITY Water Sanitary sewer Power Gas Telephone PURVEYOR City of Yelm City of Yelm Puget Sound Energy Puget Sound Energy Yelm Telephone Company 10. A Shoreline Development Plan because of the Plat's proximity to the Central Power Canal that borders and is adjacent to the Plat on the north boundary. A copy of the Shoreline Development Plan dated July 17, 2002 is attached to the July 11, 2003 Letter/Memorandum as Exhibit "E." [1235119 vl] GORDON, THOMAS, HONEYWELL MALANCA, PETERSON F~ DAHEIM LLP August 4, 2003 Page 6 SUMMARY The Applicants have established in the record that: (i) a density of 3.71 units per acre is allowed outright by YMC § 17.12.020 A.1.; (ii) the Application complies with all of the required findings set forth in RCW 58.17.110; (iii) the Application complies with the City of Yelm's Comprehensive Plan, Subdivision Code, Development Regulations and Environmental Regulations; and (iv) the Application complies with all applicable local and state regulatory requirements. The Applicants respectfully request that the Examiner: (i) consider the comments made and the issues raised in this Letter/Memorandum together with our July 11, 2003 Letter/Memorandum; and (ii) approve the Application for the Plat as submitted and as clarified by this Letter/Memorandum. Res ectfully submitted by, _____~_ Terry L. Brink TLB:bf Enclosures cc: Bob Benum Bob Coyne Jim Crippen, P.E., Apex Engineering PLLC Grant Beck, Community Development Director, City of Yelm Brent F. Dille, Esq. City Attorney [1235119 vl]