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Applicant Comments to Hearing ExaminerLAW OFFICES CORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP TACOMA OFFICE ALBERT R. MALANCA MELISSA K. BRYAN SEATTLE OFFICE 1201 PACIFIC AVENUE, SUITE 2100 WARREN J. DAHEIM JOE CORDON, JR. DARRELL L. COCHRAN DAVID P. MOODY ONE UNION SQUARE MARx c. HoxeYWELL, P.s. BRADLEY c. DAMS SUITE 2100 600 UNIVERSITY POST OFFICE BOX 1157 WILLIAM E. BOLT STEPHANIE L. BLOOMFIELD , TACOMA, WASHINGTON 98401-1157 JOHN c. GUADNOLA AMANDA M o~HALLORAN SEATTLE, WASHINGTON 98101-4185 DONALD W. HANFORD DAVID H. JENSEN (2O6) 676-7500 (253) 620-6500 TIMOTHY J. WHITTERS JOAN C. FOLEY FACSIMILE (253) 620-6565 WILLIAM T. LYNN TIMOTHY L. AsHCRAFT FACSIMILE (206) 676-7575 KENNETH G. KI EFFER JULIE E. DICKENS - JAMES C. WALDO VALARIE ZEECK _ WARREN R. PETERSON (1926-1989) ROBERT G. HUTCHINS, P.S. THADDEUS P. MARTIN OF COUNSEL THOMAS L. FISHBURNE (1939-1980 MATTHEW W. STANLEY DIANNE K. CONWAY JOSEPH H. CORDON VALEN H. HONEYWELL (1916-2002) J. RICHARD CREATURA LAFCADIO DARLING W. WALLACE CAVANAGH, JR. DONALD S. COHEN MARLO DELANGE L. R. GHILAADUCCI, JR. .. ROBERT C. GRAYSON STEVEN REICH ELIZABETH PIKE MARTIN REPLY TO TACOMA OFFICE VICTORIA L. VREELAND STGNE GRI SSOM CHARLOTTE N. CHALKER JOHN R. CONNELLY, JR. S. SHAWN TACEY pONALD H. THOMPSON ALAN D. MACPHERSON BRUCE KRI EGMAN DALE L. CARLISLE, P.S. DiYect Dlal 'I'aCxne: (253) 620-6493 DIANE J. KERO GARY E. HOOD THOMAS J. GREENAN Direct Dial Saittle: (206) 676-6493 C. JAMES FRUSH PATRI CIA PEARSON LEWIS ELLSWORTH IItHil Pddres5: C1S~ ldW.NII . I BRADLEY A. NAKA SALVADOR A. MUNGIA ROBERT CALDWELL JONGWON YI WARREN E. MARTIN JEMIMA MCCULLUM EILEEN S. PETERSON J.D. SMITH F. MIKE SHAFFER LOREN A. COCHRAN BRADLEY B. JONES LINCOLN C. BEAUREGARD TERRY L. BRINK MAX E. JACOHS MARGARET Y. ARCHER SUE O'REILLY LINDA CJ LEE CASEY INGELS MICHAEL T. PFAU JOSHUA WEISS SANDRA J. ROVAI BRADLEY BUCKHALTER JAMES B. MEADE MICHELLE MENELY July 11, 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: Benum/Coyne Preliminary Plat Dear Mr. Examiner: Case Now Na~.t~~ .... ~..... Our firm represents Bob Benum and Bob Coyne (the "Applicants") with respect to the above referenced land use matter. The following comments are submitted on behalf of the Applicants in support of their Application for approval of the Benum/Coyne Preliminary Plat (the "Plat"). A reduced copy of the Site Plan for the Plat dated July 17, 2002 is attached to this letter/memorandum as Exhibit "A," which is incorporated and made a part hereof by this reference. GENERAL COMMENTS The Applicants are proposing a development plan for two (2) City of Yelm Tax Parcels (22717330100 and 64301200100) consisting of 28.02 acres to be divided into 108 single-family residential lots in the Benum/Coyne Preliminary Plat that includes: 1. Setbacks as follows; except with respect to Lot 23, which shall be as shown on the preliminary plat: a. Side yard setbacks o£ (i) a minimum on one side of five feet; and (ii) a total on both sides of twelve feet; ~ 1228465 v9J CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 2 b. Front xard setbacks o£ (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: a. Tract "A" is an open space tract consisting of 119,118 square feet, or 2.74 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 as shown on the Conceptual Landscaping Plan dated September 20, 2002 attached to this letter/memorandum as Exhibit "B," which is incorporated and made a part hereof by this reference. 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 14,570 square feet, or .33 acres, which is shaped like above-tie and lies adjacent to and north of Lot 52. Tract "B" will also be preserved in its natural condition for the owners and residents of the Plat. The existing vegetation shall be supplemented as shown on the Conceptual Landscaping Plan previously referenced. 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 64,635 square feet, or 1.48 acres, which will be utilized in conjunction with on-site public storm drainage facilities. A copy of the Preliminary Stormwater Site Plan [1228465 v9] CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 3 dated October 28, 2002 is attached to this letter/memorandum as Exhibit "C," which is incorporated and made a part hereof by this reference. 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 A reduced copy of a Conceptual Utility and Grading Plan dated July 17, 2002 is attached to this letter/memorandum as Exhibit "D," which is incorporated and made a part hereof by this reference. 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 this letter/memorandum as Exhibit "E," which is incorporated and made a part hereof by this reference. SEPA On January 30, 2003, the City of Yelm (the "City"), as lead agency, issued a Mitigated Determination of Non-Significance that was advance dated February 7, 2003 (the "MDNS"). A copy of the MDNS is attached as Exhibit "F," which is incorporated and made a part hereof by this reference. The MDNS's comment deadline was 5:00 p.m. February 21, 2003. The appeal deadline was 5:00 p.m. on February 28, 2003. On February 12, 2003, I sent an e-mail to the City Attorney, Brent Dille, on behalf of the Applicants commenting on and objecting to the MDNS. A copy of that e-mail is attached to this letter/memorandum as Exhibit "G," which is incorporated and made a part hereof by this reference. At the City Attorney's request, we sent a follow up second e-mail to another City Attorney, Mick Phillips, during Mr. Dille's vacation on March 4, 2003. The second e-mail more thoroughly expressed the Applicants' comments and objections. A copy of the second e-mail is attached to this letter/memorandum as Exhibit "H," which is incorporated and made a part hereof by this reference. As a result of my communications with the City's Attorney, the City requested a meeting with the Applicants. On February 26, 2003, a meeting was held at our firm's Tacoma office and was attended by the following: [1228465 v9] GORDON, THOMAS. HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 4 Name Shelly A. Badger Grant Beck Brent F. Dille Richard G. "Mick" Phillips, Jr Bob Coyne Bob Benum Terry L. Brink Title Yelm City Administrator Community Development Director Yelm City Attorney Yelm City Attorney Co-Applicant Co-Applicant Applicants' Lawyer # The purpose of the meeting was to discuss the City's desire to require that the Applicant redesign the Plat to accommodate the future possible funding for the Y2-Y3 corridor's so-called "alternative route." Prior to and during the meeting, the Applicants offered to sell the Plat in its ~~ entirety to the City. However, during the meeting, the City rejected the idea of buying the Plat. Instead, the City proposed that it would develop a proposed alternative design of the Plat at its sole expense that would be designed to accommodate the "alternative route." Following the meeting, the City commissioned its engineer to develop two (2) alternative revised site plans for the Plat (the "Revised Site Plans"). After which, Mr. Beck met with the Applicants and discussed the Revised Site Plans. After the Applicants had an opportunity to thoughtfully consider the Revised Site Plans, I sent a third e-mail to Mr. Dille on April 22, 2003, explaining the reasoning for the Applicants' objections to them. A copy of the third e-mail is attached to this letter/memorandum as Exhibit "I," which is incorporated and made a part hereof by this reference. The following is a brief summary of the Applicant's objections to the Revised Site Plans: a. Significantly fewer lots; b. Too many flat lots, which are undesirable and more difficult to build on and sell; c. Loss of significant open space; d. The ill-conceived road design under the possible future overpass highway; and e. Significant reduction in the individual and average sizes of the lots. Since the processing of the Application had already been delayed due to the City's efforts to include inappropriate language in the MDNS and attempt to convince the Applicants to adopt [1228465 v9] CORDON, THOMAS, HONEYWELL - MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 5 one of the Revised Site Plans, I requested in the third e-mail that the SEPA process move forward without further delay. We also attached to the third e-mail a Pdf file consisting of the Applicants' engineer's ,r,,, cost estimate and realignment plan for the City's proposed mitigation to the intersection of Wilkensen Road Southeast and Canal Road Southeast. ~* After not receiving any response from the City, on May 6, 2003, I sent a fourth e-mail to Mr. Dille advising him of the Applicants' objections to the continuing delays caused by the City's non-action. A copy of our fourth e-mail is attached to this letter/memorandum as Exhibit "J," which is incorporated and made a part hereof by this reference. On May 7, 2003, we finally received a proposed revised MDNS (the "Proposed Revised MDNS"). A copy of the e-mail containing the Proposed Revised MDNS received from the a City's Community Development Director Grant Beck is attached to this letter/memorandum as Exhibit "K," which is incorporated and made a part hereof by this reference. On May 14, 2003, I responded to Mr. Beck's May 7, 2003 e-mail with a fifth e-mail suggesting a minor revision to the Proposed Revised MDNS. A copy of our fifth e-mail is attached to this letter/memorandum as Exhibit "L," which is incorporated and made a part hereof by this reference. On May 23, 2003, the City issued a revised MDNS (the "Revised MDNS"). A copy of the Revised MDNS is attached to this letter/memorandum as Exhibit "M," which is incorporated and made a part hereof by this reference. There was no comment deadline for the Revised MDNS. The appeal deadline for the Revised MDNS was 5:00 p.m. on June 6, 2003. No appeal was received by the City. On May 29, 2003, Mr. Beck left a voice mail message for me advising that the City had: (i) agreed to my suggested revision to the Proposed Revised MDNS; and (ii) arranged with the Examiner to hold the public hearing on the Plat on Friday, June 27, 2003. The Revised MDNS included three (3) mitigation measures. Two (2) of the mitigation measures required traffic mitigation and one (1) of the mitigation measures required the Applicants to enter into a school mitigation agreement with the Yelm School District. TRAFFIC MITIGATION The following cited Revised MDNS Finding Nos. 1, 2, and 3 pertain in relevant part to traffic mitigation. 1. This Mitigated Determination of Non Significance is based on the project as proposed and the impacts and potential mitigation measures reflected in the following environmental documents: [1228465 v9] CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 6 • Environmental Checklist (dated November 1, 2002, prepared by Apex Engineering) • Traffic Impact Analysis (dated October 18, 2002, prepared by Heath & Associates) • Preliminary Storm Drainage and Erosion Control Report (dated October 28, 2002, prepared by Apex Engineering) 2. The traffic impact analysis submitted as part of the subdivision application indicates that the project will generate 1034 vehicles per day of average weekday traffic, with a PM peak of 109 vehicles per hour. The project would not decrease the level of service at all but one of the intersections studied, including the following intersections: State Routes 507 and 510 (Yelm Avenue and First Street) Rhoton Road and N.P. Road ,. d N.P. Road and Wilkenson Road The two entrances into the subdivision and Wilkenson Road The level of service at Railway Road and First Street would decrease from LOS B to LOS C. The traffic impact analysis recommends that payment of the Transportation Facility Charge as required pursuant to Chapter 15.40 Yelm Municipal Code will mitigate traffic impacts identified in the report. 3. Canal Road currently intersects Wilkerson [sic] Road at an angle of approximately 50 degrees, which does not provide safe sight distance for vehicles entering Wilkerson [sic] Road from Canal Road. An additional 1034 weekday trips added to Wilkerson [sic] Road, almost all of which will be traveling southbound past the intersection with Canal Road, is a significant impact to traffic safety which can be mitigated through the realignment of the Canal Road intersection. The following cited Revised MDNS Mitigation Measures 1 and 2 mitigate traffic impacts caused by the Plat. 1. The proposal will have a significant impact on the .~ transportation system of the City of Yelm which will be mitigated through the imposition of the Transportation Facility Charge as required in Chapter 15.40 Yelm Municipal Code. The proponent shall mitigate [1228465 v9] .a CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 7 transportation impacts based on the new residential p.m. ~~ peak hour trips generated by the project. The Transportation Facility Charge (TFC) shall be based on 1.01 new peak hour trips per residential unit. The proponent will be responsible for a TFC of $757.50 per dwelling unit which is payable at time of building permit. ,,,~ 2. Prior to final subdivision approval, the developer shall realign Canal Road with Wilkerson [sic] to meet City Standards for intersections, provided that the cost of improvement does not exceed the Transportation Facility Charge in condition 1 above and no additional right-of--way is required for the realignment. The TFC's for the project ,~ required pursuant to Mitigation Measure No. 1 above shall be waived, in their entirety, in the event that the for the "° [sic] cost of realignment described in this Mitigation ,~ Measure 2 is effected by the proponent. A copy of the Applicants' Traffic Impact Analysis dated October, 2002 is attached to this letter/memorandum as Exhibit "N," which is incorporated and made a part hereof by this reference. Adequate provision has been made for roads in compliance with RCW 58.17.110. SCHOOL MITIGATION The Applicant will be required to negotiate and consummate a so-called "voluntary agreement" with the Yelm School District (the "District") pursuant to Revised MDNS .Mitigation Measure 3, which will assure payment of mitigation to offset the impacts resulting from the Plat. Upon inquiry, I was advised by the District that the current per lot amount acceptable by the District is $1,645.00. A copy of an e-mail received from the District dated May 8, 2003 is ~~ attached to this letter/memorandum as Exhibit "O," which is incorporated and made a part hereof by this reference. Adequate provision for schools will be made when the Applicants enter into a School ~~ Mitigation Agreement with the District in compliance with RCW 58.17.110 and RCW 82.02.020. REQUESTED DENSITY IS APPROPRIATE '~' The Plat vested on November 4, 2002. A copy of the Notice of Complete Application dated November 22, 2002 is attached to this letter/memorandum as Exhibit "P," which is incorporated and made a part hereof by this reference. >.~ [1228465 v9] CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 8 ~-~ 1. 4 Dwelling Units Per Acre is Allowed Outright. The Applicant is requesting a Y~a density of 3.85 dwelling units per acre (108 lots - 28.2 acres = 3.85 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. A copy of Chapter 17.12 YMC is attached to this letter/memorandum as Exhibit "Q," which is incorporated and made a part hereof by this reference. The maximum ~~ density allowed in this instance is 1121ots (28.2 acres x 4 dwelling units per acre = 112 dwelling ,,~., units). OPEN SPACE Chapter 14.12 of the Yelm Municipal Code ("YMC") 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 onsite. Five percent (5%) of the site amounts to 61,028 square feet (28.02 acres x 43,560 square feet = 1,220,551.20 x 5% = 61,028). The Application provides two (2) open space tracts: (i) Tract "A" consists of 119,118 square feet; and Tract "B" consists of 14,570 square feet. The total of both open space Tracts is 133,688 square feet (119,118 square feet + 14,570 square feet = 133,688 square feet). Therefore, an adequate amount of open space has been provided to comply with Chapter 14.12 YMC. DELAYS RESULTING FROM THREATENED INVERSE CONDEMNATION On August 13, 2002, I sent a letter to City Administrator Shelly Badger advising the City of the Applicants' rights with respect to the City's threatened inverse condemnation. Since the City has not carried out its various threatened unlawful acts, the Applicants did not have to exercise their legal remedies described in our August 13, 2002 letter. A copy of that letter is attached to this letter/memorandum as Exhibit "R," which is incorporated and made a part hereof by this reference. The reason we are including this information in this letter/memorandum is to make the Examiner aware of the recurring efforts advanced by the City prior to and during the permitting process to: (i) influence; (ii) intimidate; and/or (iii) force the Applicants to succumb to the City's: (a) suggestions; (b) demands; and (c) threats. Although the City ultimately withdrew the unlawful language from the Revised MDNS, its acts and omissions associated with the subject Application have resulted in several months of *µ delay in the permitting process. The Applicants will be reviewing and considering the extent of the damages they have already suffered as a result of the significant delays. [1228465 v9] CORDON, THOMAS, HONEYWELL MALANCA. PETERSON £~ DAHEIM LLP July 11, 2003 Page 9 STAFF REPORT 1. Compliance with Regulatory Controls. In the staff report in the "Conclusion - and Staff Recommendation" section on page 15, Staff states that subject to Staff's proposed conditions that the requested approvals are consistent with applicable law including the: 1.1. City of Yelm's and Thurston County Joint Comprehensive Plan; 1.2. City of Yelm's Development Guidelines; 1.3. Shoreline Management Act and Shoreline Master Program for Thurston County; 1.4. City of Yelm's Subdivision Code; and 1.5. City of Yelm's Zoning Code. 2. Regulatory Requirements and Recommended Conditions. The Applicants ~, object to or have questions with respect to the following: (i) Findings; and (ii) proposed Recommended Conditions. 2.1 Finding 4 on pagL 7: The Applicants point out that Finding Number 4 on page 7 of the Staff Report is interesting information with respect to the Yelm Comprehensive Transportation Plan, but it is not applicable to this Application. The following is a replication of Finding 4 on page 7: Finding - The Yelm Comprehensive Transportation Plan establishes the following policy regarding right-of--way .. . To retain existing right-of--way and to identify, acquire, and preserve rights-of--way. The City intends to use the recommendations rom this Transportation Plan to identify current and uture _.. transportation system needs. The City will identify specific transportation system needs. The City will identi~specific '"" transportation corridors and alignments and locate and ,, protect needed rights-o~y as soon as possible. Some methods that will be used to acquire and preserve rights-of- wax include: • Requiring dedication ofrights-of--way as a condition '"~ development when the need for such rights-o~y is linked to the development: • Requesting donations o ri hts-o~y to the public; [1228465 v9] GORDON, THOMAS, HONEYWELL MALANCA, PETERSON F~ DAHEIM LLP July 11, 2003 Page 10 • Purchasin~~rights-o~y by paving fair market value; and • Acquiring development rights and easements from property owners. The City also seeks to protect rights-of--way from Y encroachment by any structure, substantial landscaping, or other obstruction to preserve the integrity of a comprehensive plan recommendation. Protection methods „~ that may be used include a minimum setback requirement or property, improvements to preserve suf acient ri ht-of- way to allow for expansion of roadways; and development ,.* of sped ac guidelines regarding the installation and maintenance o~y landscaping within the public right-of- ~. (Emphasis added.) There are four (4) methods described in the Yelm Transportation Plan for acquiring and preserving rights-of--way. The following is a brief discussion of the non-applicability of each of those methods: COMPREHENSIVE TRANSPORTATION PLAN 1. "Requiring dedication of rights-of--way as a condition for development when the need for such rights-of-way is linked to the development." This method does not apply because there is no connection or link to the development. The Y2/Y3 Transportation Corridor was planned without regard towards this Application. There is no applicable law that would support a claim that the impacts resulting from the construction of the plat proposed by this Application would justify the construction of the Y2/Y3 Transportation Comdor. Plus, the City is not asking for dedication of aright-of--way as a condition for development. Therefore, since no requirement of dedication as a condition of development is being sought, this method cannot apply. 2. "Requesting donations of rights-of--way to the public" - To the best of my knowledge, no request for a donation has been made by the City, and no offer of donation by the y:~ Applicants has been advanced. Moreover, the Applicants are unwilling to consensually donate any property to the Y2/Y3 Transportation Corridor. Therefore, this method does not apply either. 3. "Purchasing rights-of--way b~payin~ fair market value" - No offer to purchase the subject property sought for the possible development of the Y2/Y3 Transportation Corridor ,.~ has been made by the City. Moreover, the Applicants are unwilling to consensually sell only a portion of their property to the City because of the devastating affect an elevated state highway ~° would have on the marketing of the remainder parcels. Moreover, no offer to purchase under the [1228465 v9] GORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 11 threat of condemnation has been advanced by the City either. Thus, this method also does not apply. 4. "Acquiring Development Rights and Easements from Property Owners" - To the best of my knowledge, the Applicants have not been asked to grant any development right or easements to the City. Nor would our clients be willing to do so consensually, if asked. Accordingly, this method along with each of the others simply is not applicable to this Application. We also point out that the last paragraph in proposed Finding No. 4 on page 7 is not applicable because: (i) the first part of the second sentence applies to preservation of existing rights-of--way for future "expansion of existing roadways"; and (ii) the second part of the second m sentence applies to guidelines regarding the "installation and maintenance of landscaping within a public right-of-way." There is simply nothing included in the proposed Finding No. 4 on page 7 that provides a basis for the proposed conditions of approval on page 8. In light of the foregoing, the Applicants respectfully request that the foregoing Finding be deleted in its entirety since it has no relevance to this Application. 2.2 Finding_5 on page 7: Since the foregoing finding is not applicable to this Application, the Applicants also respectfully request that Finding No. 5 on page 7 also be deleted in its entirety. The following is a replication of Finding 5 on page 7: Finding -The Shea Group prepared for the City of Yelm an analysis of the proposal as it relates to the 510/507 Loop. The analysis includes two alternative subdivision layouts that address the issue of the 510/507 Loop corridor. The first maintains the corridor in open space to be purchased when funding is acquired. This proposal provides 90 lots and requires less roadway, stormwater piping and a smaller stormwater infiltration pond than the applicant's proposal. The second provides 102 lots and recognizes the right-of--way lines as property boundaries and allows the areas north and south of the right-of--way to function as neighborhoods after the right-of--way necessary for the 510/507 Loop is purchased. - The information contained in the foregoing finding is totally irrelevant to this Application. The City has no legal authority to impose its will on the Applicants by attempting to force them to `~~ redesign their plat to accommodate a potential future elevated highway for which there is no funding or certainty whatsoever. [1228465 v9) GORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 12 In a newspaper article published on February 17, 2003, after interviewing Yelm City Administrator Shelly Badger, News Tribune reporter Debby Abe, when referring to the Y2/Y3 Transportation Corridor, wrote: "If the state or federal government ever provides funding, the City's long-range plans call for an alternate route to go around Yelm's downtown and connect Highways 510 and 507." A copy of that article is attached in its entirety as Exhibit "S," which is incorporated and made a part hereof by this reference. ., Moreover, the Applicant points out that the adoption of either the two (2) proposed revised site plans would be devastating to the financial feasibility of the project. In the one scenario, there would be a loss of 18 lots, which is a 17% loss of density. In the other scenario, there are supposedly 106 lots, which would only be a loss of 2 lots. However, according to the Applicant's engineer, several of the proposed lots under that scenario are simply not buildable because of their size and configuration, especially corner lots. Many other lots are made more .n~ expensive to develop and undesirable because of pipe stem or flag lot accesses. Plus, the overall widths and square footages of the lots are reduced to a degree that gives rise to marketing concerns in a rural environment. 2.3 Conclusion on page 8: The Applicants respectfully request that the conclusion on page 8 that states the following be deleted in its entirety: Conclusion -Accommodating the future 510/507 Loop right-of- way through phasing protects the integrity and functionality of the future neighborhoods and provides time to fund the acquisition of the corridor. The applicants have no legal obligation to set aside any portion of their property for a possible future use that is unfunded and uncertain. Although the Applicants have no desire to sell their property in its current undeveloped condition, they offered to do so as an accommodation to the City. The City rejected the offer. It is also instructive to note that on: (i) August 2, 1999, the Canal Estates :N preliminary plat was approved; and (ii) April 13, 2001, the City approved the final plat of CANAL ESTATES. A copy of the Canal Estates preliminary plat approval is attached as "Exhibit "T," which is incorporated and made a part hereof by this reference. A copy of the ,~ CANAL ESTATES final plat is attached as Exhibit "U," which is incorporated and made a part hereof by this reference, A review of the CANAL ESTATES final plat and the Y2/Y3 Transportation Corridor map shows that no set aside or special accommodation was required. A copy of a Y2/Y3 Transportation Corridor project location map is attached as Exhibit "V," which is ~,~, incorporated and made a part hereof by this reference. It appears that approximately one-third of the 26 lots would be affected if the Y2/Y3 Transportation Corridor project is ever funded and undertaken. [i228465 v91 CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 13 Finding No. 10 of the approval of the CANAL ESTATES plat, states in relevant part the following: The preferred alternative for the Y-3 transportation corridor runs from east to west along the southern property line and 120' deep. The route is currently being analyzed through an environmental assessment with the final adoption of the transportation corridor to occur in the late summer or early fall of 1999. Because the comdor is not adopted at this time, the City can not require the developer to alter the site lay-out to accommodate the future right- , of-way. Staff has reviewed the lay-out with consideration of the future Y-3 comdor and believes that through traffic control (one-way street) that the infrastructure constructed for the project will not have to be physically altered. The future acquisition of right-of--way for the Y-3 corridor will include lots 1-9. Acquisition of right-of--way can not begin until the corridor is adopted by the City Council and funding is available. The foregoing language presumes that the adoption of a transportation plan in conjunction with a comprehensive plan provides lawful authority to "require the developer to alter the site lay-out to accommodate the future right-of-way." In Perry Shea's Technical Memorandum dated May 13, 2003 attached to the Staff Report, he cites RCW 36.70A.070 as authority for such a requirement, which is repeated below: The transportation element section of the Washington State GMA reads: "Local jurisdictions must adopt and enforce ordinances which prohibit development approval if the development causes the level of service on a transportation facility to decline below standards adopted in the transportation element of the comprehensive plan, unless transportation improvements or strategies to accommodate the impacts of development are made concurrent with development. " (RCW 36.70A.070) RCW 36.70A.070 refers to the duty of local jurisdictions to require developers of property to mitigate the impacts of their projects in order to assure that the level of service of an -°~ affected transportation facility does not decline to an unacceptable standard. That language has r, no relevance to the instant situation where the City wants to force the developer to make accommodations for a possible future state highway improvement that may or may not ever come to fruition. It is tantamount to the City saying to a nearby or adjacent property owner in [1228465 v9j CORDON, THOMAS, HONEYWELL -° MALANCA, PETERSON ~ DAHEIM LLP July 11, 2003 Page 14 unincorporated Thurston County, "Someday we may annex your property so we want you to comply with our rules when you develop your property." ~° The other sad scenario is to consider the abuse that our clients have suffered to „~, date because of the City's bullying over this issue. The City somehow expects that it can force our clients to do what it commands our clients to do with their own privately owned property to suit the City's desires even though the Application before the Examiner fully complies with all ,,,~, lawful regulatory requirements. 2.4 Proposed Conditions of Approval 6.A. on page 8: The Applicants ri~ respectfully request that the proposed conditions of approval identified as 6.A. on page 8 repeated below be deleted in their entirety: Proposed Conditions of Approval - r The proposal should be conditioned for consistency with the Comprehensive Plan as it relates to transportation and, specifically, the 510/507 Loop. The following potential conditions would address the proposal's inconsistency with the Comprehensive Plan by phasing the development or building within the development to maximize the time for funding he acquisition of right-of--way before having to purchase buildings along with land within the corridor. 6.A. The applicant shall design the plat so that the phase line runs through the site from east to west. Phase 1 shall be fully contained and functional south of the Y3 corridor. Phase 2 shall be completely independent of Phase 1, fully contained and functional north of the Y3 corridor. Figure 12 of the Shea Group Memorandum (Exhibit VI) illustrates acceptable Phasing. Alternative 6.A. The applicant shall design the plat so that it minimizes impacts to the neighborhoods upon public purchase of the right-of--way necessary for the Y3 corridor. Figure 13 of the Shea Group Memorandum (Exhibit V) illustrates acceptable design, with the condition that lots within the Y3 corridor are the last to obtain building permits in the development, [1228465 v9~ CORDON, THOMAS, HONEYWELL MALANCA, PETERSON F~ DAHEIM LLP July 11, 2003 Page 1.5 Alternative 6.A. No building permit shall be issued for any lot identified on Exhibit VII as being impacted or partially impacted by the Y3 corridor until building permits have been issued for every lot outside the corridor. No building permit for those lots identified on Exhibit VII as being impacted should issue until building permits have been issued for every lot shown on Exhibit VII as being partially impacted. The argument advanced by the proposed conditions is that there is legal authority arising out of the "Comprehensive Plan as it relates to transportation and, specifically, the 510/507 Loop." As is demonstrated above, there is simply no such authority that justifies the proposed conditions. A review of applicable Growth Management Act ("GMA") provisions revealed that _, while the GMA may impact the proposed development, the impacts arising out of the GMA may give rise to takings compensation. Under RCW 36.70A.010, the legislature: Finds that uncoordinated and unplanned growth, together with a lack of common goals expressing the public's interest in the conservation and the wise use of our lands, pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state. It is in the public interest that citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning. Further, the legislature finds that it is in the public interest that economic development programs be shared with communities experiencing insufficient economic growth. r The GMA lists planning goals for the "purpose of guiding the development of comprehensive plans and development regulations." RCW 36.70A.020. Among others and in no order of "" priority, such goals include transportation, protection of private property rights, and assurance of adequate public facilities and services to support development. Public facilities include 36.70A.030. Definitions, (12) "Public facilities" include streets, roads, highways, sidewalks, "` street and road lighting systems, traffic signals, domestic water systems, storm and sanitary >-~ sewer systems, parks and recreational facilities, and schools. According to the Washington Supreme Court, local discretion in developing 9~ comprehensive plans and development regulations tailored to local circumstances is bounded by the goals and requirements of the GMA. See King County v. Central Puget Sound Growth Management Hearings Bd., 142 Wash.2d 543, 14 P.3d 133 (2000). The GMA establishes a general framework in which local governments are required to plan in accordance with certain [1228465 v9] GORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 16 guidelines; the GMA does not have site-specific effect at a project level. Timberlake Christian Fellowship v. King County, 114 Wn. App. 174, 61 P.3d 332 (2002). According to the Washington Attorney General's office, the GMA does not prohibit adoption of plans and regulations that may negatively affect private property interests. RCW 36.70A.280, see Op. Atty. Gen. 1992, No. 23 attached as Exhibit "W," which is incorporated and made a part hereof by this reference. However, private property shall not be taken for public ,.,~ use without just compensation; such rights shall be protected from arbitrary and discriminatory actions. RCW § 36.70A.020(6). Although a developer may be required to set aside land for infrastructure necessary to support new development under RCW 36.70A.070 and the project may have to be designed to meet certain development requirements, we could not find any law that would mandate sufficient ~~, land to be set aside for a state highway without just compensation. On a related tangential issue, the Washington Supreme Court may find eminent domain for future speculative projects to be suspect. In State ex rel. Washington State Convention & Trade Ctr. v. Evans, 136 Wn.2d 811, 842-43 (1998), the court noted the following (emphasis added): So too a New York State Commission report published in 1972 reiterated the nearly universal view that courts have taken a "dim view of control of private property by the government for the sole purpose of making a profit by resale ... [and] not only deem it highly improper but also question the constitutionality of the state using the power of eminent domain to take for a future speculative use." 2A Nichols on Eminent Domain, sec. 706[7][d], at 7-186 (quoting Report, New York State Commission on Eminent Domain 46, 47 (1972)). Accord E. L. Strobin, Aruiotation, Right to Condemn Property in Excess of Needs for a Particular Public Purpose, 6 A.L.R.3d sec. 6[b] at 311 (In general, American courts have viewed recoupment schemes with disfavor.); Robert H. Freilich & Stephen P. Chinn, Transportation Comdors: Shaping and Financing Urbanization Through Integration of Eminent Domain, Zoning and Growth Management Techniques, 55 UMKC L. Rev. 153, 205 (1987) ("The exercise of excess condemnation solely for recoupment purposes has consistently met with judicial disapproval."). In light of the foregoing comments regarding the influence of the GMA in the instant r case, we want to emphasize two (2) things: (i) the purpose and restrictions of the GMA; and (ii) the City's police power. [1228465 v9] GORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 17 Purpose and Restrictions of GMA. First, the overall purpose of the GMA is to deal with growth and related issues, including transportation. However, the GMA specifically requires private property interests be considered and compensation paid for property taken for a public purpose. The City primarily does not want to become embroiled in takings litigation. Despite being dated, the 1992 AG opinion points out what a city would not want to be required to defend. Also attached is an excellent ,,,,~ description of the landmark Dolan case. See Exactions For Transportation Corridors After Dolan V. City Of Tigard, 29 Loy. L.A. L. Rev. 247 (1995) attached as Exhibit "X," which is incorporated and made a part hereof by this reference. City's Police Power. Second, it may be important to recognize the limitations of the City's police power. According to one set of commentators: In order for a police power exaction to be upheld, it must be shown that it confers a special benefit (benefit over and above that conferred on the general community) on the developer. Courts have adopted three tests for determining special benefit: (1) the 'specifically and uniquely attributable' test; (2) the 'reasonable relationship' test; and (3) the 'rational nexus' test. The 'specifically and uniquely attributable' test has evolved in Illinois and holds that the needs for the exaction be specifically and uniquely attributable to that particular development. A majority of jurisdictions have adopted the 'reasonably related' test. This test holds that so long as the exaction is 'reasonably related' to the needs created by the development, the action will be upheld. A middle ground has ,;, emerged in the 'rational nexus' test, promulgated in a number of jurisdictions. In Wald Corp. v. Metropolitan Dade County, the °" court adopted a moderate 'rational nexus' approach which looks to ,~, the benefits conferred upon the development and requires a balancing of the prospective needs of the community against the ~' property rights of the developer. Robert H. Freilich & Stephen P. Chinn, Transportation Corridors: Shaping and Financing `~ Urbanization Through Integration of Eminent Domain, Zoning and Growth Management ,.,~ Techniques, 55 UMKC L. Rev. 153, 172-73 (1987). The Washington Supreme Court considered a case that involved a similar situation. The developers purchased several tracts of land for the purpose of developing it and reselling it. Several years later, the State declared that the developers' land was within the boundaries of a highway project and that it intended to acquire the developers' land for the highway. Because of ~~., the devastating effect on the value of the developer's property after the State announced its [1228465 v9] w CORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 18 ~° intention, the developers filed an inverse condemnation action. A year later, the State ,,g commenced a condemnation action. After the two proceedings were consolidated, the trial court awarded the developers the depressed value of the property. The Washington Supreme Court reversed and remanded the case holding that just compensation required valuation at a time art. earlier than the trial date. The Court's decision considered the fact that the marketability of the land was adversely affected by the State's surveys, public announcements, and hearings. Lange `" v. State of Washington, 86 Wn.2d 585 (1976). The Lange court defined property as used in the constitutional phrase as follows: Propertv is a thing consists [sic] not merely in its ownershia and possession, but in the unrestricted right of use, enjoyment and °~' disposal. Anythin~ which destroys any of these elements of ;„, property, to that extent destroys the propert i~ The substantial value of property lies in its use. If the right of use be denied, the value of the Propertv is annihilated and ownership is rendered a ~~ barren right. (Emphasis added.) The foregoing makes clear the emphasis that Washington's highest court places on a property owner's right to have the unrestricted lawful use of his or her land. Although we could not find any case in Washington that was directly on point with the instant case, we found a very similar case in the Maryland Court of Appeals. The following is the case summary: r CASE SUMMARY PROCEDURAL POSTURE: Appellee developer submitted a subdivision plan with residential lots within aright-of--way for the proposed relocation of a state route. Because the plan did not comply with Howard County, Md., Code § 16.113(b)(2) that such road right-of--ways be reserved, appellant county did not approve it. The local planning appeals board affirmed, but the Circuit Court for Howard County (Maryland) reversed. The county sought review. ~~ OVERVIEW: The county argued that the reservation of a right- of-way in a subdivision for a proposed state road constituted a valid exercise of police power and was not an unconstitutional taking of property without compensation. The county further argued that the ordinance did not deprive the developer of all beneficial use of the property and that possible diminution in value of the property did not render the regulation a taking. The ,~ developer asserted that Howard County, Md., Code § 16.113(b)(2) [1228465 v9] GORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP July 11, 2003 Page 19 constituted an unconstitutional taking of property without y compensation because there was no time limitation on the reservation of the property and there were no benefits or payments to the developer. The court affirmed that § 16.113(b)(2) ~~ constituted an unconstitutional taking and not merely a valid exercise of police power. The court found that the ordinance could be upheld if there was a reasonable nexus between the exaction and the proposed subdivision. Because the duration of the reservation was unlimited and did not permit the developer any effective use of the property placed in reservation, the court held that the ordinance constituted and unconstitutional taking without just compensation. (Emphasis added.) OUTCOME: The court affirmed the lower court judgment that the ordinance was an unconstitutional taking of the developer's property. Howard County v. JJM, Inc., 301 Md. 256 (1984). The Howard County court was disturbed by the facts that: (i) the duration of the reservation of the land was unlimited; and (ii) there was no obligation or requirement that the reserved property ever be acquired by the state. Id. at 281. The court also cited a voluminous number of cases that supported its holding that since the subject property already had sufficient access to public roads, there was not a sufficient nexus ~£ between the proposed plat and the right-of--way to be reserved through the property. The Howard County case is distinguished from the instant case in one important respect. ,,R,~ Howard County had a statute requiring developers to "reserve within a proposed subdivision such part(s) of the right-of--way for a new state road designated on the general plan and included '' in the state's twenty-year highway needs inventory which is located within the subdivision." In ~~ the instant case, there is no such statute. The only authority offered by the City of Yelm is an unsupported and erroneous claim that the transportation plan element of the City's Comprehensive Plan justifies the imposition of the proposed conditions. For the foregoing reasons, the Applicants cannot agree to the unlawful attempts of the City to: (i) restrict the use of their property; or (ii) diminish the value of their property by reducing density; and, (iii) render the finished lots less desirable and marketable by threatening to take the property for an ~~ unfunded and uncertain proposed future project. [1228465 v9] CORDON, THOMAS. HONEYWELL MALANCA, PETERSON F~ DAHEIM LLP July 11, 2003 Page 20 A complete copy of the Howard County case is attached as Exhibit "Y," which is incorporated and made a part hereof by this reference. SUMMARY The Applicants have established in the record that: (i) a density of 3.85 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; (iv) the City does not have lawful authority to "require the developer to alter the site lay-out to accommodate the future right-of-way"; and (vi) 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; 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 [1228465 v9] EXHIBIT LIST Exhibit "A" Site Plan dated July 17, 2002 Exhibit "B" Conceptual Landscaping Plan dated September 20, 2002 Exhibit "C" Preliminary Stormwater Site Plan dated October 28, 2002 Exhibit "D" Conceptual Utility and Grading Plan dated July 17, 2002 Exhibit "E" Shoreline Development Plan dated July 17, 2002 Exhibit "F" Mitigated Determination ofNon-Significance dated February 7, 2003 Exhibit "G" E-mail to City Attorney Brent Dille dated February 12, 2003 Exhibit "H" Second e-mail to City Attorney Mick Phillips dated March 4, 2003 Exhibit "I" Third e-mail to City Attorney Brent Dille dated Apri122, 2003 Exhibit "J" Fourth e-mail to City Attorney Brent Dille dated May 6, 2003 Exhibit "K" E-mail received from Grant Beck dated May 7, 2003 Exhibit "L" Fifth e-mail to Grant Beck dated May 14, 2003 responding to his May 7, 2003 e-mail Exhibit "M" Revised MDNS dated May 23, 2003 Exhibit "N" Traffic Impact Analysis dated October, 2002 Exhibit "O" E-mail received from Yelm School District dated May 8, 2003 Exhibit "P" Notice of Complete Application dated November 22, 2002 Exhibit "Q" Chapter 17.12 YMC Exhibit "R" Letter to Ms. Badger dated August 13, 2002 Exhibit "S" News Tribune Article dated February 17, 2003 Exhibit "T" Approval of CANAL ESTATES preliminary plat dated August 2, 1999 Exhibit "U" Final Plat of CANAL ESTATES dated April 13, 2001 Exhibit "V" A copy of a Y2/Y3 Transportation Corridor project location Exhibit "W" Attorney General's Opinion letter No. 23, 1992 Exhibit "X" Loyola Law Review Case 1995 Exhibit "Y" Howard County v. 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