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04-0175 CORRE Clty of Yelm Community Development Department Invoice No. CDD-07-0247 INVOICE - - Customer Name Jim Seldon, John L Scott RE Date 11/1/2007 Address 11515 Canyon Road E, Suite A Order No City Puyallup State WA ZIP 98373 Rep John's Meadows Phone FOB SUB-04-0175-YL Item Description Unit Price TOTAL 1 1st and 2nd Review of John's Meadows $500 00 $500 00 by Dennis Baker of Geomatics pace: r ay mcna vc~a~w ~ Cash O Check O SubTotal Shipping & Handling Taxes WA TOTAL Office Use Only Clty of Yelm Community Development Department P O Box 479 Yelm, WA 98597 (360) 458-3835 THANK YOU G~omatics Land Surveying ~~~ P.O. Box 2550 ~'~=~-~~ ~®~a~o.~°® Yelm, WA 98597-2550 Bill To Gty oCYclm Community Uevclopment Depanmem Grant Bcck Drreclnr PO Box 479 Yelm WA 98591 Invoice Date Invoice # I 9/7/2007 684 P O No Terms ~ Geomatics No i { Duc on receipt ~ 1561 ~ -- - ---- ------ - ------- ----------- ---~---- , - ---r------~ I Item ~ Description i Hours i Rate 1I Amount ' _ _ _ _ _-~------~------ - t-- ----I Peer Revtew ~ first Review and Comment for John's Meadow SUB-04-0175-YL (Previously ~ 2 ~ 100 00 I 200 00 irewewed-unbdled) i ! i ~ j Peer Revtew ~ Second Review and Comment for John's Meadow SUB-04-0175-YL 3 ~ 100 00 ~ 300 00 t ~ j I ' I ~ i i ~ i ~ t ~ i I ~ ~ i I ~ r , { ~ I j ~ proved for Payment. I I _Date• j I ~ - Pro~ecY ~ f i j I t I ~~~~0 ~{/h'l~ Y __ ~ j ~ j , 1 I 1 ' t I ' I , I 1 t I I I I t , j ~ ~ ~ I i ` I II }ou have any questions please call , TOtaI $50000 I i -- -- - - ` - -- - --- - j Payments/Credits $0 00 I ? Balance Due $50000 ~---'--'--- ---- ---- --- --------'----------------~--- - ---`------I Phone # _ Fax # ~ E-mad j Web Site ~ - - ---- --- -'~-- ---------- ~- - -- --------.._. I --T--------'------ --- 1 ~ (360) 400.5263 I (360) 400-5264 ~ drb~Jgeomaucslandsurvcy mg com ~ ~rM~r~ geomaticslandsurveymg com ~ City of Yelm Community Development Department ]OS Yelm Avenue West P.O. Box 979 Yelm, WA 98597 September 12, 2007 M R Mastro Properties 510 Rainier Avenue South Seattle, WA 98144 On September 12, 2007, we received your check # 1123, in the amount of $1800 00, for our invoice CDD-07-0244, for 6 hydrant locks However, on September 4, 2007, we received payment from you for this invoice A copy of our receipt #50142 is enclosed Therefore, we are returning your check #1123 (enclosed) However, we had already stamped it to be deposited into our account before discovering you had already paid this invoice, so please void this check Sincerely, ~~ ~~-- ~~ R~Serta Allen, Administrative Assistant Department of Community Development (360) 958-3835 -- (360) 958-3199 FAX www n yelm wa us b~ e i a ~~ ~ r ; J m~C ». a ~, ~~ I if `1 ~ - r T t I J~1~If{~v,F~ 1 ~ :.`~:~iYFiif~ i~I~ _~~ ,F _yl F,~ ~'~: ~" I~ e '~ _ ym ,h ny ~ K 1~~ ~~~f ~~~ - qFq~~~ ~' A~ use" ~ L a i n ~~4. ~ Rc< ~, °3'i ~4 u ie F ~ ~ _ `` tr~'.,~`rf`~~ a~F'~AI ' ~ ut"~'a •__ i ~ <^ x n. I a i Sbl it it , ~a~^m U F { ~c 4 .~ ) . •~"Y "Fa ~ Ii r~ -3- _ e J=I~r :i y_r_ I I t i. ~-? ~~ ~1 i t G'^ t 4_f, ~, '~3' -~.~ Fa ~ ~F f~ . !* rI~ +~~ hx .. ~'ai.Y,t _Y..~. . ~• r ,may ~~ ~ ry ~~f o '~~ N~ t "r .J 'S ~' n% $ I~~~s~. ~"~, 61!~L.1 ~~ ..='~"i.~.. v'4 ~ y „'A n~ Clty of Yelm Community Development Department Invoice No CDD-07-0244 INVOICE - Customer Name Jim Seldon, John L Scott Real Estate Address 11515 Canyon Road East, Swte A City _ Puyallup State WA ZIP 98373 Phone Date 8/30!2007 Order No Rep John's Meadows FOB SUB-04-0175-YL Item Description Unit Pnce TOTAL 6 Hydrant Locks for John's Meadows $300 00 $1,800 00 SubTotal $1,800 00 Payment Details Shipping & Handling $0 00 O Cash Taxes WA O Check O TOTAL $1,800 00 Office Use Only City of Yelm Communlty Development Department P O Box 479 Yelm, WA 98597 (360) 458-3835 THANK YOU ,. g~p~~~D eturn Address itv of Yelm ami Merriman O BOY 479 elm, WA 98597 Thurstat Cuwuy Treasurer I:cal Estate Eae.tse/n~Taxp~td ~}l1y~ ~ IIY~~ ~1Ir~ lS ~ ( ~~ 1 W/ IA/ Depu~. Document title(s) (or transactions contained therein): 1 Right-of--Way Dedication Deed Reference Number(s) of Documents assigned or released: (on page ofdocuments(s)) Grantor(s) (Last name, first name, middle imhal) 1 Kathryn A Dotson Grantee(s) (Last name, first name, middle initial) 1 Crty of Yelm Legal Description (abbre~ iatcd: i.e. lot, bloc/., plat or section, to~r~nship, range) Parcel A ofBoundary Line AdJustment No BLA-04-0099-YL, as recorded January 19, 200 under recording number 3703811 and 3703812, records of Thurston County, Washington Assessor's Property Tax Parcel/Account Number 64303600600 3913198 Page 1 of 5 03/26/2007 02 19 PM Deetl Thurston County Washing/ on CITY OF YEL11 I IIIIIII III IIIIIIIIII IIIIII IIII IIIIIII IIIIII IIII IIII VIII VIII VIII VIII VIII IIII IIII After recording return to City of Yelm Tame Merrunan PO BoY 479 Yelm, WA 98597 RICHT-OF-WAY DEDICATION DEED FOR VALUABLE CONSIDERATION, receipt of ~~hrch__ rs hereby acl.no~~ ledged, the undersigned GRANTOR, h A ll, 1'~i ~ >~ ~ `: ! S r -'~i, grants and conveys to the CITI' OF YELAI, a municipal corporation of the State of ~~ashington, for use of the public forever for public sheet light-of-~~~ay proposes, all interest ut the followutg described property situated m the Crty of l"elm, Thurston County, Washington, TO WlT Parcel I'~\RC'I:I ;\ Of BOl'Nf~ \Rl LINE \DII~Sf\IPNT \U Bf -\-~)4-U')9-1"l. \S RECURDFD I-AN'L~ARI 19 20(»_ UN'D1=R RCCOIZDI\G NL~\-1BER 3711~S11 \~D .7i1;S12 RECORDS OF I HURS~I~ON C'OI~N f1 1\ -\SHING f0\~ APN 64303600600 Rieht-of-~i'av THAT PORTION OF PARCEL "A" OF BOUNDARY LINE ADJUSTMENT #04-0099-YL RECORDED UNDER RECORDING NUMBER 37038 ] 2, RECORDS OF THURSTON COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS BEGINNING AT THE MOST NORTHERLY CORNER OF SAID PARCEL .,A,> THENCE ALONG THE WEST LINE OF SAID PARCEL "A" SOUTH 42°24'58" WEST, 15 60 FEET, THENCE SOUTH 80°45'20" EAST, 13 07 FEET, THENCE SOUTH 45°08'49" EAST, 46 04 FEET, THENCE SOUTH 47°02'25" EAST, 105 68 FEET TO THE EAST LINE OF SA1D PARCEL "A", 3913198 Page 2 of 5 03/26/2007 02 19 PM Deetl Thurston County Washington CITY OF VELM I IIIII II III IIIIII IIII IIIIII IIII IIIIIII IIIIII IIII IIII IIIII VIII IIII) VIII VIII IIII IIII THENCE ALONG SAID EAST LINE, NORTH 42°24'59" EAST, 7 9S PEET TO THE NORTH LINE OF SAID PARCEL "A" AND THE SOUTHERLY RIGHT-OF-WAY MARGIN OF MIDDLE ROAD, THENCE ALONG SAID NORTH LINE, NORTH 47°02'2S' WEST, 105 6S FEET, THENCE CONTINUING ALONG SAID NORTH LINE, NORTI-f 4~°OS'49" WEST ~6 99 FEET TO THE POINT OF BEGINNING SITUATE IN THE C1T1' OF YELM, THURSTON COUNTI', 1ASHINGTON TOGETHER \VITH the right to make and maintain slopes fo1 cuts or fills upon the property adjacent to the specifically described, ut order that the sUeet o1 streets may be g1 ailed to the proposed grade lei el m a reasonable and proper manner IN \VITNESS \VIiEREOF \ ~ Cr_ ~ c t. , .2000 '% ~, ~" -; " i ~~ ii 2 /~%, i ~ • STA•fE OI~ WASHINGTON ) ss COUNTY OF TI IURSTON ) this utstrument has been executed this ~ day of On this day personally appeared before me ~~`~ /~^ /~~' /~ /~ ~(~''" to me kno~~~n [o be the individual(s) described wrthm and that executed the wnhm and foregoing instrument and acknowledged the set instrument to be the free and voluntary act and deed of said mdn idual for the uses and purposed hereto mentioned, and on oath stated that she/he is authorized to execute the sand mstniment GIVEN under my hand and official seal this `~.~~ day of //~~~^~ ~ , 200 / = JERI L. ~OETSCHEL ~-_ " ' NOTARY PUBLIC ; Notarl~Pubhc m and for`the State of Washington j STATE OF WASHINGTON ~ Residing at /C`/ Ca _ ~/c• l iI /ii r ~/ l~. ~' ~ My Comnlsslon Eapires Jury SA, 4008 ~ Mycommission expires ~? /~1- 7C'l'J' t ............................ 3913198 Page 3 of 5 03/26/2007 02 19 PM Deed Thurston Dounly Wash in9lon CITY OF VELM IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIVIIIVIIIVIIIVIIIVIIIIIIIIIII i Acce ted bytf e~I of Yelm, Washington thts2rS~ay of •'~ /~"`z Imo/ , 2005>/`~- .' i ~x~" , 1~~ NAME •7~~ / z-z STA"f>: OP WASHINGTON ) ss COUNTY OF TFIURS I'ON ) On thts day pet sonally appealed bcfole me l: ;~,~}- ~E(h to me knows to be the ~ p~ ~,~,«}~~ of Crty of Yelm, a muroclpal cotpotaUOn, olio executed the «tthm and lotegomg msuument and acknowledged the set instrument to be the hee and ~~olunlaty act and deed of satd colpolatton for the uses and proposed herein mentioned, and on oath stated that he she) is author tzed to e~ccute the Sald msu ument r GR~E'N under my hand and otlictal seal thts ' 11 day of 1))(~t-~ h , 200 i \~...~..aiiup /// .~`SgtON F ~q,~ // i _ . _ N's ~ Notary Public m and f r tote Statc of Was_fiington ,o G Restdmg at ~If i CQ L'• ~z4,n9~a,.1 ~e~n9t,~~~' My commtsslon expires C ~i 1 `! C~! 3913198 Page 4 of 5 03/26/2007 02 19 PM Deetl Thurston County Washingl on CITY OF YELM I IIIIIII III IIIIII IIII IIIIII IIII IIIIIII IIIIII IIII IIII VIII VIII VIII VIII VIII IIII IIII ADDITIONAL FIGHT-OF-WAY s BEING DEDICATED ~'o , ~ s ~ ~^ ~~ ~ C' , ~ F ~jo9 ~ F ~ //A/~ -Jr V n' OO 'v ~~ ~~ ~ ~ 569, J~' ,9,f~ ,, ~ _ ~ \ '~~- ~O S ~ / ~'9~~~s ~s ~50~99, 6~ ~9 13 07' E o . I \ Q6O 99 - ~ Q F -' ~~>> ~~9 9~~~ goo SCALE IN t "=30' ~ 99 0 30' 60" O~~J~ V' OF ~~1Sfj~ i N ~ ~ ~' ~ r~J '~ ~~ o ~~ 29278 ~ .,,ns RFClS PERf.~ Ci ~~~~AL LAt`D S~ E\f~IRES 6!09/07 Parametrlx ~~~ 1 ~5~~. ~9~ ~~~ 06~ 9>8F ~~ ~~~ %~~~ `1~ Exhibit 1 Dotson ROW Dedication 3913198 Page 5 of 5 03/26/2007 02 19 PM Deetl Thurston County Washington CITY OF YELM I IIIIIII III IIIIII IIII IIIIII IIII IIIIIII IIIIII IIII IIII VIII VIII VIII (IIII VIII IIII IIII xxzzx*xx*x*zxx* -COMM. JOURNAL- *z***xx*zzzzzxxxx** DATE SEP-27-2006 ***** TIME 01:19 xxx*xax* MODE = MEMORX TRANSMISSION START=SEP-27 01:15 END=SEP-27 01:19 FILE No.=889 STN COMM. KEY NAME STATION NAME/EMAIL ADDRESS/TELEPHONE N0. PAGES DURATION No. 001 OK S 94590154 012/012 00:03:23 -Yelm CDD - ***** DP-3520 ***x*xxxxxx*xx*xx*x*** -yelm CDD - ***** - 360 458 3144- ********* FAX TRANSMISSION CITY OF VELM COMM<)N1TY DEVELOPMENT DEPARTMENT PO BOX 479 -105 YELM AVE W YELM WA 98597 (360) 45&3835 FAX• (360) 038J744 TO: ~~a~r T'~,JJc~ DATE. ~ ~?7~Lp0(° ~a-ra n.F.. }-r'. 7C. FAX q. , `~ ¢ j ~ _ ~ ~ S ~ PAGES: ~_, mcludmg this cover sheet. FROM. p~~~~,,-"I.-n. ,~`~-Ile n, !' 1, _1.. SUBJECT: c, tc,lj -L, cl-~i/7~ Gr r~-,... F'~c..-l.. ~I~r2~'w> COMMENTS: -1kar~..c, ~Ka«vnery ~EC,s,,-c-~, Date: ~g~~ ~' IF YOU DO NOT RECEIVE ALL COPIES OR ~ryY COPY t5 NOT LEGIBLE. PLEASE CALL (360) 458-1835 ~s soon ws PossieLE. R\Tcmpl~W\BLANK PA%TRANSMI$$ION dw FAX TRANSMISSION CITY OF YELM COMMUNITY DEVELOPMENT DEPARTMENT PO BOX 479 -105 YELM AVE W YELM WA 98597 (360)458-3835 FAX: (360) 458-3144 TO: ~ 1a- ~ r ~ U'.~5 ~ Para ~t~e-~-s' ~x FAX #: 3~0-¢5~'-~1 s`f FROM: ~u I,cc~"fu' ~-"L ~ ~ ~v SUBJECT: ~ ~ -G ~, _G 17 COMMENTS: a7~z°"~ DATE: PAGES: ~, including this cover sheet. e>~ , ~~ , ~, P Lit ~ I~,~I , ri~ ~~ Q ~tiv r~.•e v~ ,~ ~~ c'. ~ cry ~.1~cc.l^~~ ~~c, ~f IF YOU DO NOT RECEIVE ALL COPIES, OR ANY COPY IS NOT LEGIBLE, PLEASE CALL (360) 458-3835 AS SOON AS POSSIBLE. R \Templales\BLANK FAX TRANSMISSION doc ~. ~~ OFFICE OF THE HEARING EXAMINER CITY OF YELM ~~~~~~® REPORT AND DECISION Date• ~ ~--~----'- CASE NO. Appeal of Mitigated Determination of Non-Significance SUB-04-0175- YL, APP-05-0112-YL APPELLANT Freestone DFF Yelm II LLC, Scott Gnffin SUMMARY OF REQUEST The appellant is appealing the issuance of Mitigating Measures 2(d) of the MDNS issued for the proposed Griffin Place subdivision SUMMARY OF DECISION Appeal granted PUBLIC HEARING After reviewing Planning and Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request as follows The hearing was opened on June 7, 2005, at 9 00 a m Parties wishing to testify were sworn in by the Examiner The following exhibits were submitted and made a part of the record as follows EXHIBIT "1" - Planning and Community Development Staff Report and Attachments regarding preliminary plat EXHIBIT " 2" - Planning and Community Development Staff Report and Attachments regarding SEPA appeal EXHIBIT " 3" - RCW excerpts TAMI MERRIMAN appeared, presented the Community Development Department Staff Report regarding the proposed preliminary plat, and testified that the site is located within -~- 1 '. ~ ~s' _ • capable of completion The lot owner cannot access the garage from a plat road Finally it is contrary to RCW 82 02 020 as the project consists of a plat of raw land and has nothing to do with the house parcel He referred to the Cobb and Benchmark cases The development did not create the driveway onto the road It was a preexisting impact Concerning a series of action, SEPA does recognize such, but the basis must be tied to the same act Neither the BLA nor the subdivision affect the driveway They have agreed to extend frontage improvements across the house property No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded 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, heard testimony, and taken this matter under advisement 2 Notice of the date and time of public hearing was posted on the protect site, mailed to the owners of property within 300 feet of the project site, and mailed to the recipients of the Notice of Application and SEPA determination on May 23, 2005 Notice of the date and time of the public hearing was published in the Nisqually Valley News in the legal notice section on May 27, 2005 3 By a Report and Decision of even date, the Examiner approved the applicant's preliminary plat of Griffin Place which proposes 50 single family residential lots on 17 45 acres During environmental review for the preliminary plat, the City of Yelm environmental official identified a number of significant adverse environmental impacts related to traffic, the flood hazard zone area, temporary erosion, and schools impact The environmental official imposed eight mitigating measures which, upon compliance, would reduce the environmental impacts below the level of a probable substantial environmental impact The applicant agreed to comply with all mitigating measures with the exception of measure 2(d) which reads The existing single family home may retain one driveway entrance on Middle Road, with a recorded agreement between the property owner, developer, and City that the driveway entrance be relocated to the new plat internal street no later than six years from the date of recording The agreement shall provide for driveway removal from Middle Road and restoration to City standards -3- .~ .~ 7 Chapter 197-11 of the Washington Administrative Code (WAC) sets forth the SEPA rules WAC 197-11-660 entitled "Substantive Authority and Mitigation" sets forth limitations on governments to condition or deny protects under SEPA This section provides as follows A Any mitigation measure must be based on policies, plans, rules or regulations formally designated by the legislative body (city council) B Mitigating measures must relate to specific adverse environmental impacts clearly identified in an environmental document and also stated in writing by the decisionmaker C The mitigation measures must be reasonable and capable of being accomplished 8 The resolution of this environmental appeal turns on whether the appellant's BLA/preliminary plat applications are interrelated and are being used as a means of circumventing the state and city subdiwsion codes The BLA and preliminary plat applications, having occurred almost simultaneously and involving the same ownership, are obviously interrelated However, the RCW specifically exempts the BLA from the subdivision process and Crispin, supra , specifically authorizes changes ~n boundaries of existing lots regardless of whether such changes are major or minor In the present case, two lots existed prior to the BLA and two lots exist subsequent to the BLA The applicant proposes subdivision of the larger parcel Increasing the size of one of two lots through the BLA process for the purpose of subdivision does not circumvent the Subdivision Act Had the site originally consisted of one lot with an existing house remaining on a plat lot, the City would have authority to terminate the access onto Middle Road and require access onto an internal plat road However, in the present case two lots exist, and the lot not part of the subdivision may retain its own access 8 While it is understandable that the City desires to eliminate individual accesses from collector roads, the retention of one existing driveway does not create a sigmficant adverse environmental impact Furthermore, conditions of approval regwre improvement of Middle Road to City standards across not only the plat frontage, but also the frontage of the excluded lot Any traffic impacts caused by retention of an existing driveway are mitigated by said improvements Appellant must also comply with all other traffic mitigation measures set forth in the MDNS to include payment of the Transportation Facility Charge The other mitigating measures imposed in the MDNS adequately mitigate the impacts of the subdivision The continuation of an existing access onto Middle Road for an existing single family lot maintains the status quo and does not create a significant adverse impact -5- DECISION The appeal of Freestone DFF Yelm II LLC is hereby granted and mitigation measured 2(d) is eliminated ORDERED this 24`" day of June, 2005 PHE K. CAUSSEAUX, R. Heanng Examiner TRANSMITTED this 24`h day of June, 2005, to the following APPELLANT Freestone DFF Yelm II LLC, Scott Griffin 6820 - 20~' St E Fife, WA 98424 ATTORNEY FOR APPELLANT William Lynn P O Box 1157 Tacoma, WA 98401 OTHERS Amy Head 8770 Tallon Lane NE Jean Carr 8870 Tallon Lane NE John H Dotson 10747 Mill Road SE City of Yelm Tami Merriman 105 Yelm Avenue West P O Box 479 Yelm, Washington 98597 Lacey, WA 98516 Lacey, WA 98516 Yelm, WA 98597 -7- The hearing examiner shall rewew said request in light of the record and take such further action as he deems proper The hearing examiner may request further information which shall be provided within 10 days of the request 2 APPEAL OF EXAMINER'S DECISION The final decision by the Examiner may be appealed to the city counal, 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 Murncipal 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 -9- OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO. SUB-04-0175-YL APPLICANT Freestone DFF Yelm II LLC, Scott Griffin SUMMARY OF REQUEST ~~~[] V fJ~ ~® Date: ~~ /y o ~ The applicant is requesting preliminary plat approval to allow subdivision of 17 45 acres into 50 single family residential lots 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 hearing was opened on June 7, 2005, at 9 00 a m Parties wishing to testify were sworn in by the Examiner The following exhibits were submitted and made a part of the record as follows EXHIBIT "1" - Planning and Community Development Staff Report and Attachments regarding preliminary plat EXHIBIT " 2" - Planning and Community Development Staff Report and Attachments regarding SEPA appeal EXHIBIT " 3" - RCW excerpts TAMI MERRIMAN appeared, presented the Community Development Department Staff Report regarding the proposed preliminary plat, and testified that the site is located within the R6 zone classification The site previously consisted of two parcels with the house on -1- the larger lot, but a BLA changed the lot configuration Proper notice was given Staff has conditioned the access for corner lots and wants the fencing restored on lot 28 The City also will require hydrant locks on all new fire hydrants to prevent water theft The project meets all City rules and regulations and the requirements of the Shoreline Management Act GRANT BECK appeared and presented the Community Development Department Staff Report regarding the environmental appeal The protect meets all conditions with the exception of the driveway access from the existing house The City considered the driveway access as part of the overall development The parcel containing the house was excluded from the subdivision requirements, but the City indicated it would treat both parcels as included in the same action and imposed SEPA conditions covering both The City expressed its willingness to take a longer term look and so regwred elimination of the driveway six years after the filing of the final plat They used the six year period based upon the concurrency requirement The house is not part of the subdivision pursuant to a series of activities taken by the applicant SEPA can look at cumulative impacts The house is part of the original parcel and traffic will increase upon development of the subdroision Staff ated a number of policies within the comprehensive plan to include traffic movement The condition is reasonable and capable of accomplishment even though the parcels are under different ownership There was agreement between property owners during the BLA process WILLIAM LYNN, attorney at law, appeared and introduced the appellant's case JEAN CARR, Parametrix, appeared and testified that they have reviewed the staff report and concur with conditions of approval except those set forth in the MDNS MR LYNN reappeared and testified that the central fact is that no change will occur in the house They will use the same driveway and create the same amount of traffic If the house changed in any way, the City could justify the condition However, it is not part of the plat and the property sold to the applicant did not include the house The City raised the issue from day one and the applicant took the other position He referred to the SEPA statute and the requirement for impacts of the proposal Impacts will occur across a substantial balance of the parcel, but not the parcel on which the home is located The action does not affect the drroeway A significant environmental impact must be disclosed in an environmental document A finding of fact in the MDNS does not qualify as that disclosure and therefore no disclosure gives rise to the improvement The MDNS measure is likewise not based on written policy The policy must be set forth in a written document, and the policies cited by the City do not require shutting down a drroeway The house is not a lot within a subdivision, but is already built and creating its own impacts If the subdivision abutted a neighbor's parcel the City couldn't require connection of the neighbor's driveway per the policy cited Furthermore, the mitigating measure is not capable of completion The lot owner cannot access the garage from a plat road Finally -2- it is contrary to RCW 82 02 020 as the project consists of a plat of raw land and has nothing to do with the house parcel He referred to the Cobb and Benchmark cases The development did not create the driveway onto the road It was a preexisting impact Concerning a series of action, SEPA does recognize such, but the basis must be tied to the same act Neither the BLA nor the subdivision affect the driveway They have agreed to extend frontage improvements across the house property No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded 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, heard testimony, and taken this matter under advisement 2 The SEPA responsible official issued a Mitigated Determination of Nonsigrnficance (MDNS) on March 21, 2005 An appeal of said MDNS was filed 3 Notice of the date and time of public hearing was posted on the project site, mailed to the owners of property within 300 feet of the project site, and mailed to the recipients of the Notice of Application and SEPA determination on May 23, 2005 Notice of the date and time of the public hearing was published in the Nisqualiy Valley News in the legal notice section on May 27, 2005 4 The applicant has a possessory ownership interest in an irregularly shaped, 17 45 acre parcel of property abutting the south side of Middle Road within the City of Yelm The applicant requests preliminary plat approval to allow subdivision of the site into 50 single family residential lots and four tracts 5 The site plan shows that the project excludes a single family residential home and lot abutting Middle Road near the center of the northern portion of the site which abuts Middle Road Said parcel measures 163 feet in width and 242 feet in depth The plat parcel to the east of said lot measures 179 feet in width and the plat parcel to the west of said lot measures 145 feet in width The preliminary plat map shows access provided a single access road extending south from Middle Road adjacent to the eastern property line of the excluded lot to near the center of the site where it terminates at a "T" intersection with another internal plat road The road extending west from the intersection eventually loops south and terminates in a cul-de-sac -3- adjacent to the eastern property line of the excluded lot The road extending west reaches the western property line of the plat parcel and can provide access to a future subdivision on the abutting parcel All plat lots will access onto the internal plat road Tracts B and C, located in the west-central portion of the site, will serve as storm drainage facilities, and Tract A, located to the south of Tracts B and C and the southern tier of lots, will serve as open space Tract D, located to the south of Tract A and including Yelm Creek, will be dedicated to the City as a nature preserve 6 Residential subdivisions abut the site to the northwest and across Middle Road to the northeast Yelm Creek abuts the parcel on the south and the Fort Stevens school property abuts the parcel on the southeast The project will fit well with existing development in the area 7 The site is located within the Medium Density Residential (R6) zone classification of the Yelm Municipal Code (YMC) Section 17 15 020(A) YMC authorizes single family residential dwellings on individual lots as outright permitted uses Section 17 15 050 YMC does not require a minimum lot size in the R6 classification, but Section 17 15 020(A)(1) YMC requires a maximum density of six dwelling units per gross acre and a minimum density of three dwelling units per gross acre Considering the entire 17 45 acre parcel, the density calculates to 2 87 dwelling units per acre, less than the minimum of three units per acre However, the applicant proposes to dedicate the 5 63 acre Tract D to the City which will reduce the size of the parcel to 11 82 acres The density will the meet the YMC requirements 8 All lots have a rectangular shape and will support a reasonably single family residential home Development on each lot can meet all setbacks, maximum building area sized coverage, and maximum development coverage as set forth in Section 17 15 050 YMC 9 Chapter 14 12 YMC requires a preliminary subdivision to set aside 5% of its gross area as usable open space Appropriate uses of such open space include environmental interpretation for education and foot paths/bicycle trails The code also requires 75% of the open space accessible to either the general public or all future residents of the plat The applicant's proposal to dedicate 5 63 acres of open space along Yelm Creek and to provide 1 48 acres in Tract A which the homeowners will hold in common ssatisfies the open space requirement 10 A mitigating measure in the Mitigated Determination of Nonsignificance issued pursuant to the State Environmental Policy Act (SEPA) requires the applicant to enter into a school mitigation agreement with the Yelm School District to offset the impacts on the district of school aged children residing in the site The entry of such -4- agreement will ensure that the plat makes appropriate provision for schools and school grounds 11 Chapter 15 24 YMC requires all new subdivisions to improve street frontages to current City standards The City identifies Middle Road as a neighborhood collector street which regwres a 16 foot travel lane, vertical curb, seven foot planter strip with street trees 35 feet on center, "No Parking" signs, a five foot wide sidewalk, and street lighting The applicant has agreed to install the road improvements along Middle Road not only across the plat frontage, but also across the excluded lot frontage The applicant will construct internal subdivision roads to local access standards and dedicate them to the City upon final plat approval Subdivision streets wdl have two, 11 foot travel lanes, two, seven foot parking lanes, a concrete rolled edge curb and gutter, six foot planter strip with street trees 35 feet on center, a five foot wide sidewalk on one side of the street, and street lighting The preliminary plat map shows compliance with Section 16 16 090 YMC which requires the street layout of new subdivisions to provide for the continuance of streets to ad~oming subdivisions The applicant has extended the internal plat road to the west property line The applicant will also mitigate impacts to the City transportation system by compliance with the transportation facility charge of $757 50 per peak hour trip The project also provides adequate parking both on and off site The plat makes appropriate provision for streets, roads, alleys, and other public ways 12 The City will provide both domestic water and fire flow to the site, and the applicant must pay a connection charge and also comply with a latecomers agreement for the cost of installing the water main within Middle Road Conditions of approval require installation of fire hydrant locks on fire hydrants to prevent theft of water The plat makes appropriate provision for water supplies and fire protection 13 The City will provide sanitary sewer service to each lot and the applicant must construct sewer lines in accordance with City standards Internal plat sewer lines will connect to an existing sewer main on Middle Road Once again, previous development constructed the sewer line and the applicant must comply with a latecomers agreement The plat makes appropriate provision for sanitary sewers 14 The applicant's stormwater management plan must comply with the adopted 1992 Department of Ecology's stormwater Manual which requires both treatment and control of stormwater runoff The applicant has submitted a conceptual design for the treatment and infiltration of stormwater runoff, and the Community Development Department has found the plan appropriate High ground water conditions will require the applicant to show it can provide three feet of vertical separation Compliance with adopted City standards will ensure that the plat makes appropriate provision for storm drainage -5- 15 The applicant must comply with Chapter 17 80 YMC, the landscaping standards, and landscape the perimeter of the site with Type 2 landscaping The applicant may substitute fencing for the landscape screen CONCLUSIONS 1 The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request 2 The proposed preliminary plat makes appropriate provision for the public health, safety, and welfare for open spaces, drainage ways, streets, potable water supplies, sanitary waste, parks and recreation, schools and sidewalks Therefore, the proposed preliminary plat should be approved subject to the following conditions 1 Those corner lots speafied below shall place driveways and fronts of houses as follows Lot 1 -Driveway faces Road B, house fronts Road B Lot 9 -Driveway faces Road B, house fronts Road B Lot 12 -Driveway faces Road A, house fronts Road A Lot 27 -Driveway faces Road A, house fronts Road A Lot 28 -Driveway faces Road B Cul-de-sac, house fronts Road B Cul-de- sac 2 The applicant shall provide specific fencing restrictions for lot 28 in the Covenants and Restrictions for the Homeowners Association, and on the face of the final plat, to provide for adequate sight distance 3 The South half of Middle Road shall be improved to City Standards for a Neighborhood Collector from the northwest property line to the Southeast property line, including the road frontage for the lot with the existing single family residence, created by BLA-04-0099-YL Additional right-of-way may be required for frontage improvements 4 Internal streets within the subdivision will be constructed per Yelm Development Guidelines for "Local Access Residential" 5 Internal Road B shalt connect to the subdivision in construction to the West Applicant shall insure that road elevations are met prior to civil plan submittal Internal Road C shall meet City of Yelm cul-de-sac design requirements -6- 6 The design of the entrance to Road A into the plat shall provide for a minimum 35-foot radws, and may require additional right of way 7 The applicant shall mitigate transportation impacts based on the new peak P M trips generated by the protect The Transportation Facility Charge (TFC) shall be based on 1 01 new peak P M trips per single family dwelling, payable at time of building permit issuance 8 The applicant shall protect the Flood Hazard Zone area, by assuring that encroachments shall not result in any increase of flood levels The flood hazard zone area, and the Shoreline turisdiction area shall be dedicated as open space Protective fencing shall be installed at the flood zone area during all construction 9 Tract D, the shoreline turisdiction area shall be dedicated to the City of Yelm 10 An easement through Tract A to allow the City of Yelm access to the shoreline area Tract D shall be created and recorded on the face of the plat 11 The applicant shall provide pedestrian access to the dedicated open space 12 Each dwelling unit with the subdivision shall connect to the City water system The connection fee and meter fee will be established at the time of building permit issuance 13 All conditions for cross connection control as required in Section 246-290- 490 WAC 14 The applicant shall pay the latecomer fee associated with the water line at the time of connection 15 All planting strips and required landscaping not located within 75' of a hose spigot shall be served by an irrigation system with a separate water meter and an approved backflow prevention device The applicant shall submit a final landscape and irrigation plan at the time of civil plan submission 16 Each dwelling within the subdivision shall connect to the City S T E P sewer system The connection fee and inspection fee will be established at the time of budding permit issuance 17 The applicant shall pay the latecomer fee associated with the existing sewer line at the time of connection 18 The applicant shall design and construct all stormwater facilities in accordance with the 1992 DOE stormwater Manual, as adopted by the City -~- of Yelm Best Management Practices (BMP's) are regwred during construction A 10-foot setback from all property Imes and easements are required for stormwater facilities 19 The applicant shall prepare a final stormwater plan to meet high ground water issues The plan shall be submitted with civil engineering plans and shall include an operation and maintenance plan 20 Within building setback areas for Lots 42 - 50, all fill material shall be structural fill as per IBC/IRC R401 2 21 All roof drain runoff shall be infiltrated on each lot utilizing individual drywalls 22 The stormwater system shall be held in common by the Homeowners Association The Homeowners Agreement shall include provisions for the assessment of fees against individual lots for the maintenance and repair of the stormwater facilities 23 The applicant shall submit a fire hydrant plan to the Community Development Department for review and approval as part of the civil engineering plans prior to final subdivision approval 24 The applicant shall submit fire flow calculations for all existing and proposed hydrants All hydrants must meet minimum City standards 25 The applicant shall be responsible for the installation of hydrant locks on all fire hydrants regwred and installed as part of development The applicant shall coordinate with the Yelm Public Works Department to purchase and install required hydrant locks Hydrant lock details shall be included in Civil Plan Submission 26 Street lighting and interior street lighting will be required Civil plan submittal shall include a lighting design plan for review and approval 27 Pnor to the submission final plat application, the applicant will provide the Community Development Department an addressing map for approval 28 The applicant shall comply with the mitigation requirements of the MDNS issued on March 21.2005 29 The applicant shall submit a final landscaping and irngation plan with the civil engineering plans to include the perimeter of the project site, planter strips, and stormwater facilities -a- 30 The applicant shall provide a performance assurance device in order to provide for maintenance of the required landscaping until the tenant or homeowners' association becomes responsible for landscaping maintenance The performance assurance device shall be 150 percent of the anticipated cost to maintain the landscaping for three years DECISION The request for preliminary plat approval for Griffin Place is hereby granted subject to the conditions contained in the conclusions above ORDERED this 24`h day of June, 2005 E K. CAUSS UX, Hearing Examiner TRANSMITTED this 24`h day of June, 2005, to the following APPLICANT Freestone DFF Yelm II LLC, Scott Gnffin 6820 - 20`h St E Fife. WA 98424 ATTORNEY FOR APPLICANT OTHERS Amy Head Jean Carr John H Dotson City of Yelm Tami Merriman 105 Yelm Avenue West P O Box 479 Yelm, Washington 98597 William Lynn P O Box 1157 Tacoma. WA 98401 8770 Tallon Lane NE 8870 Tallon Lane NE 10747 Mill Road SE Lacey, WA 98516 Lacey, WA 98516 Yelm, WA 98597 -9- CASE NO.: SUB-04-0175-YL NOTICE 1 RECONSIDERATION Any interested party or agency of record, oral or written, that disagrees with the decision of the hearing examiner may make a wntten 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 heanng 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 June 11, 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 above The heanng examiner shall rewew said request in light of the record and take such further -io- 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 -ii- VISITOR SIGN IN SHEET Please sign in and indicate if you wish to speak at this meeting or to be added to the marling list to receive future agendas and minutes ALL CITY HEARING EXAMINER MEETINGS ARE AUDIO TAPED. FOR INFORMATION ON OBTAINING A COPY PLEASE CALL YELM COMMUNITY DEVELOPMENT DEPARTMENT AT 360-458-3835 MEETING: YELM HEARING EXAMINER DATE: JUNE 7, 2005 TIME: 9 00 AM LOCATION: YELM CITY HALL COUNCIL CHAMBERS Hearing: 1. Griffin Place Subdivision -Case #SUB-04-0175-YL 2. Appeal of Certain Conditions of the Mitigated Determination of Nonsignificance for the Griffin Place Subdivision, APP-05-0112-YL NAME & ADDRESS MAILING LIST? /SPEAKER? (Indicate which public hearing by the assigned numbers above) ~1t1-IAr-~ 7 L~ ,~ n~ ~,o. ~c IIS7. 7A~wv~, j b~ ~ ~ ~ b° ~ -I~rny-I-I~izd 8~~o i~/la-,C~ex~e ~~~,~,~~ ~sll~ ~ 8~7bT~.ll~ Lam.,,-~.~ N~ ~--.. i o n ~/7 /1/.Y~2d. S. G. S ~~ .SC~DY of )s -}~L y~~ ~ Cs rs ~/r~S^%7.SuRn City of Yelm Community Development Department 105 Yelm Avenue West P.O. Box 479 Yelm, WA 98597 Case Number SUB-04-0175-YL Applicant Freestone DFF Yelm II LLC, Scott Griffin Agent Parametrix Request Subdivide 17.45 acres into 50 single family residential lots. Recommendation Approval with conditions Exhibit I Site plan dated March 7, 2005 Exhibit II Notice of Application & Comment Letters Exhibit III Mitigated Determination of Non-Significance & Comment Letters Exhibit IV Public Hearing Notice Proposal The applicant is proposing to subdwide approximately 17 45 acres into 50 single-family residential lots The property is zoned R-6 Medium Density Residential, which allows up to 6 dwelling units per acre The property was onginally two parcels of land approximately 8'/z acres and 10 acres in area, the larger of which was occupied by a single family dwelling A boundary Ime adjustment in January 2005 changed the parcel configurations, leaving the house on a small parcel and the 17 45 acre parcel proposed for this subdwision application Property Characteristics The property is located on Middle Road The property is identified by Assessor's Tax Parcel Number 64303600700 The subject property is bound on the northwest and across the street to the northeast by a residential subdivision, to the south by Yelm Creek and residential use properties, and to the southeast the Fort Stevens School property Notice of Application and Public Hearing Notice of this application was marled to state and local agencies, and property owners within 300 feet of the project site on January 24, 2005 Notice of the date and time of the public hearing before the Hearng Examiner was posted on the project site, mailed to the owners of property within 300 feet of the project site, and mailed to the reap~ents of the Notice of Application and SEPA Determination on May 23, 2005 Notice of the date and time of the public hearing was published in the Nisqually Valley News m the legal notice section on May 27, 2005 Concurrency Chapter 15 40 YMC requires the reviewing authority to determine that regwred urban infrastructure is available at the time of development Concurrency with sewer infrastructure is achieved pursuant to Section 15 40 020 (B)(1) YMC when the protect is within an area approved for sewer pursuant to the adopted sewer comprehensive plan for the city and improvements necessary to provde city standard facilities and services are present to meet the needs of the proposed development Concurrency with water infrastructure is achieved pursuant to Section 15 40 020 (B)(2) YMC when the protect is within an area approved for municipal water service pursuant to the adopted water comprehensive plan for the city and improvements necessary to provide city standard facilities and services are present Concurrency with transportation infrastructure is achieved pursuant to Section 15 40 020 (5)(c) YMC when the protect • Makes on-site and frontage improvements consistent with city standards and roads necessary to serve the proposed protect consistent with safety and public interest, • Makes such off-site facility improvements, not listed on the capital faalities plan, as are necessary to meet city standards for the safe movement of traffic and pedestrians attributable to the protect, • Makes a contribution to the faalities relating to capaaty improvements identified in the adopted six-year traffic improvement program, in the form of a transportation facility charge Concurrency with school infrastructure is achieved when the developer provides a letter from the local school district that the school faalities impacted by the proposed development are present, or are on an approved and funded plan, to assure that faalities will be available to meet the needs and impacts of the proposed development State Environmental Policy Act The City of Yelm SEPA Responsible Official issued a Mitigated Determination of Non- sigmficance based on WAC 197-11-158 on March 21, 2005 This determination is final and fulfils the City's responsibility for disclosure of potential, significant environmental impacts The Hearing Examiner may take action to deny or condition the proposal based on impacts identified in the environmental checklist or other environmental documents The Mitigated Determination of Non-significance was issued with the following conditions The developer shall mitigate transportation impacts based on the new residential P M peak hour trips generated by the protect The Transportation Faality 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 May 23, 2005 Page 2 of 10 • Prior to final subdvision approval, the developer shall complete the following transportation improvements o The South half of Middle Road shall be improved to City Standards for a Neighborhood Collector from the Northwest property line to the Southeast property line, including the road frontage for the lot with the existing single family residence Additional right-of-way may be regwred for frontage improvements o The developer shall construct internal streets to City Standards for Local Access Residential o The developer shall provide for the continuation of streets, by connecting internal streets to the residential subdivision to the west o The existing single family home may retain one driveway entrance on Middle Road, with a recorded agreement between the property owner, developer, and City that the driveway entrance be relocated to the new plat internal street no later than 6 years from the date of recording The agreement shall provide for driveway removal from Middle Road and restoration to City standards • The developer shall protect the Flood Hazard Zone area, by assuring that encroachments shall not result in any increase of flood levels The flood hazard zone area, and the Shoreline jurisdiction area shall be dedicated as open space Protective fencing shall be installed at the flood zone area during all construction • Temporary erosion control systems to be approved by the City of Yelm • The developer shall enter into an agreement with Yelm Community Schools to mitigate project impacts to the School District Lots Size and Setbacks The Yetm Zoning Code does not establish minimum or maximum lot sizes, although it does regwre standard yard setbacks of 15 feet from the front property line adjacent to local access road with a minimum 20 foot driveway approach, 5 feet from side property lines with a mirnmum of 12 feet between the two side yards, and 25 feet from the rear property Ime The setback for a flanking yard is 15 feet from the property Ime For traffic safety and clear sight distance, driveway locations on corner lots should be specified through the subdivision process and should become a condition of final subdivision approval The lots within the proposed preliminary subdivision appear to contain sufficient area to meet setback and lot coverage requirements, if conditioned as recommended Adjacent Land Uses and Zoning The property is bordered to the northwest and across the street to the northeast by a residential subdivision, to the south by Yelm Creek and residential use properties, and to the southeast a residential home on acreage May 23, 2005 Page 3 of 10 The plat as conditioned meets City of Yelm development requirements, and is a compatible use with surrounding properties Open Space The Growth Management Act establishes a goal for open space and recreation that states "encourage the retention of open space and development of recreational opportunities, conserve fish and wildlife habitat, increase access to natural resource lands and water, and develop parks' [RCW 36 70A 020(9)] Chapter 14 12 YMC provides gwdelines for the retention and creation of open space within the City This chapter regwres a minimum of five percent of the gross area of a new subdivision be dedicated as usable open space Appropriate uses of dedicated open space include • Environmental interpretation or education • Parks, recreation lands, or athletic fields • Footpaths or bicycle trails No more than five percent of any dedicated open spaces may be impermeable surfaces and open space must be sited so as to be suitable for its intended purpose and at least 75°l0 of the open space must be assessable to either the general public or all residents of the assoaated development Open space shall be dedicated at the time of final subdivision approval The property is bordered to the south by Yelm Creek and its assoaated wetlands and flood plain The applicant is proposing to dedicate the shoreline jurisdiction area and flood zone area as regwred open space Preserving the shoreline and flood zone will protect this area, as well as meet the open space requirement Schools New residential units create a demand for additional school services and facilities The Yelm School District requests that the applicant enter into an agreement with the school district for the payment of mitigation fees based on the protect's impact This request for a mitigation agreement between the applicant and the school district became a condition of the Mitigated Determination of Non-significance issued pursuant to the State Environmental Policy Act Transportation and Site Access The City of Yelm Development Gwdelmes and the concurrency regwrements of Chapter 15 24 YMC require all new subdivisions to improve street frontages to current City standards Middle Road is identified as a Neighborhood Collector Street, which requires a 16 foot travel lane, vertical curb, a 7-foot planter strip with street trees 35 feet on center and "No Parking" signs, a 5 foot sidewalk, and street lighting May 23, 2005 Page 4 of 10 SEPA Rules indicate a pro{ect is not categoncally exempt from threshold determination regwrements if it is a segment of a proposal that includes a serves of actions, physically or functional{y related to each other, some of which are categoncally exempt and some of which are not [WAC 197-11-305 (1)] The small parcel created by the boundary line ad{ustment should be included in the frontage improvements for this pro{ect Streets within the subdivision will be constructed to the local access standard and dedicated to the City upon final subdivision approval A local access street includes two 11 foot travel lanes, two 7 foot parking lanes, a concrete rolled edge curb and gutter, a 6 foot planter strip with street trees 35 feet on center, a 5 foot sidewalk on one side of the street, and street lighting Chapter 16 16 090 YMC requires that the layout of new subdivisions provide for the continuation of streets existing in ad{oining subdivsions and to provide for the continuation of new streets within the subdivision to ad{scent properties that have not been subdivided The plat, as proposed, meets this standard by connection to the residential subdivision to the west where a future street provision is in place The completed pro{ect will increase traffic and impact the City's transportation system Chapter 15 40, Concurrency Management, requires all development to mitigate impacts to the City transportation system A single family home generates 1 01 p m peak hour trips per unit The Transportation Faality Charge per unit is $757 50 and payable at time of building permit issuance. Parking Chapter 17,72 YMC regwres minimum parking ratio of two spaces per dwelling unit, which is typically met in subdivisions within a standard driveway On-street parking is allowed on both sides of local access residential streets Water System The City's Water Comprehensive Plan identifies the property as being within the water service area and the property is currently served by City water The current fee to connect to the City water system is $1,500 00 per Equivalent Residential Unit (each ERU equals 900 cubic feet of water consumption per month) There is an existing water main located on Middle Road Yelm Property Development installed this waterline for the Willow Glenn Phase I & II subdivisions, and created a latecomer agreement for these parcels The proposed subdivision would be required to connect to the City's water system and the projects internal roadways will be required to have a water main installed to serve fire hydrants and individual services Any existing well(s) on the property must be decommissioned per Department of Ecology standards and any water rights associated with these wells shall be dedicated to the City of Yelm May 23, 2005 Page 5 of 10 The City of Yelm is dedicated to providing the best quality water possible to its consumers Section 246-290-490, WAC, regwres that the City take measures to ensure that contamination does not occur as a result of cross contamination An irrigation meter may be installed for the purpose of irrigation A backflow prevention device will be required for all landscape irrgation connections between the irrigation system and the water meter This also includes any indmdual irrigation systems that may be located on any mdwidual lot within the subdiwson Identified in the 2002 City of Yelm Water Comprehenswe Plan is a requirement to install fire hydrant locks as part of the City's water conservation and accountability program In 2004, the City was also regwred to complete a vulnerability assessment in response to the new homeland security measures as a result of 9/11 Sewer System The City's Sewer Comprehenswe Plan identifies the property as being within the sewer service area The current fee to connect to the City sewer system is $5,417 00 per Equwalent Residential Unit (each ERU equals 900 cubic feet of water consumption per month) Any existing on-site sewage disposal system(s) shall be abandoned per Thurston County Health Department standards There is an existing sewer main located on Middle Road Yelm Property Development installed this sewerline for the Willow Glenn Phase I & II subdivisions, and created a latecomer agreement for these parcels Stormwater Quality and Quantity Impervious surfaces create stormwater runoff which, when uncontrolled and untreated can create health, safety, and environmental hazards The City of Yelm has adopted the 1992 Department of Ecology Stormwater Manual, which regwres all development to treat and control stormwater The applicant has submitted a preliminary stormwater report which includes a conceptual design for the treatment and infiltration of the stormwater The Community Development Department has reviewed this report and fmd that stormwater from the site can be managed appropriately through the conceptual plan This site is known to have high ground water which does fluctuate with the season All infiltration facilities should meet the regwrement of 3 feet of vertical separation from the known high ground water and shall be located outside the flood plain area Lot numbers 42 - 50 appear to have a large grade difference from the proposed street To assure that home foundations are outside of high ground water areas, structural fill is required May 23, 2005 Page 6 of 10 Stormwater facilities require continued maintenance to ensure they remain in proper working condition Street Lighting Adequate street lighting is necessary to provide safety to pedestrians, vehicles, and homeowners Street lighting is reviewed at the time of civil plan review in order to assure adequate lighting Subdivision Name and Addressing A subdivision name must be reserved with the Thurston County Auditor's Office prior to submitting for final subdivision approval Addressing and street naming within the subdvision will be assigned by the Community Development Department pnor to application for final subdivision approval Landscaping Landscaping and screening are necessary to provide screening between compatible and incompatible land uses, to safeguard privacy and to preserve the aesthetic assets of the City Chapter 17 80 YMC regwres all development to provide on site landscaping The site is adjacent to properties that are compatibly zoned Chapter 17 80 YMC requires that the perimeter of the site be landscaped with a Type II landscaping In residential subdivisions the City allows fencing to meet the landscaping requirement for the perimeter of the site Landscape requirements shall be installed and approved prior to application for final plat Landscaping is required in open space and above ground stormwater facilities Chapter 17 80 YMC regwres that at time of civil plan review and approval the applicant provide the Community Development Department a detailed final landscape and irrigation plan for approval Section 17 80 090 (F) YMC states that the owner/developer of any project requiring site plan review approval, subdivision approval, or short subdivision approval shall provide a performance assurance device in order to provide for maintenance of the requred landscaping until the tenant or homeowners' association becomes responsible for landscaping maintenance The performance assurance device shall be 150 percent of the anticipated cost to maintain the landscaping for three years Staff Recommendation Section 16 12 170 YMC requires written findings pnor to a decision on a preliminary subdivision The applicant has established that the proposed subdivision, if conditioned, adequately provides for the public health, safety and general welfare and for such open spaces, drainage ways, streets, potable water supplies, sanitary wastes, parks and recreation, schools, and sidewalks May 23, 2005 Page 7 of 10 That the public use and interest will be served by the subdivision of the property, if conditioned The subdivision, if conditioned, is in conformance with the Yelm-Thurston County Joint Comprehensive Plan, the City of Yelm Zoning Code, the City of Yelm Subdivision Code, the Shoreline Management Act and the Thurston County Shoreline Master Program, and the City of Yelm Development Gwdelines The Hearing Examiner should approve the preliminary subdivision with the following conditions Those corner lots specified below shall place driveways and fronts of houses as follows Lot 1 -Driveway faces Road B, house fronts Road B Lot 9 -Driveway faces Road B, house fronts Road B Lot 12 -Driveway faces Road A, house fronts Road A Lot 27 -Driveway faces Road A, house fronts Road A Lot 28 -Driveway faces Road B Cul-de-sac ,house fronts Road B Cul-de-sac 2 The applicant shall provide speafic fencing restrictions for lot 28 in the Covenants and Restrictions for the Homeowners Assoaation, and on the face of the final plat, to provide for adequate sight distance 3 The South half of Middle Road shall be improved to City Standards for a Neighborhood Collector from the northwest property line to the Southeast property line, including the road frontage for the lot with the existing single family residence, created by BLA-04- 0099-YL Additional right-of-way may be regwred for frontage improvements 4 Internal streets within the subdivision will be constructed per Yelm Development Gwdelines for "Local Access Residential" 5 Internal Road B shall connect to the subdivision in construction to the West Applicant shall insure that road elevations are met prior to civil plan submittal Internal Road C shall meet City of Yelm cut-de-sac design regwrements 6 The design of the entrance to Road A into the plat shall provide for a minimum 35-foot radius, and may regwre additional right of way The applicant shall mitigate transportation impacts based on the new peak P M trips generated by the protect The Transportation Facility Charge (TFC) shall be based on 1 01 new peak P M trips per single family dwelling, payable at time of bwlding permit issuance The applicant shall protect the Flood Hazard Zone area, by assuring that encroachments shall not result in any increase of flood levels The flood hazard zone area, and the Shoreline tunsdiction area shall be dedicated as open space Protective Penang shall be installed at the flood zone area during all construction Tract D, the shoreline turisdiction area shall be dedicated to the City of Yelm May 23, 2005 Page 8 of 70 10 An easement through Tract A to allow the City of Yelm access to the shoreline area Tract D shall be created and recorded on the face of the plat 11 The applicant shall provide pedestrian access to the dedicated open space 12 Each dwelling unit with the subdivision shall connect to the City water system The connection fee and meter fee will be established at the time of budding permit issuance 13 All conditions for cross connection control as regwred in Section 246-290-490 WAC 14 The applicant shall pay the latecomer fee associated with the water line at the time of connection 15 All planting steps and regwred landscaping not located within 75' of a hose spigot shall be served by an irrigation system with a separate water meter and an approved backflow prevention device The applicant shall submit a final landscape and irrigation plan at the time of avil plan submission 16 Each dwelling within the subdivision shall connect to the City S T E P sewer system The connection fee and inspection fee will be established at the time of bwlding permit issuance 17 The applicant shall pay the latecomer fee assocated with the existing sewer line at the time of connection 18 The applicant shall design and construct all stormwater facilities in accordance with the 1992 DOE stormwater Manual, as adopted by the City of Yelm Best Management Practices (BMP's) are regwred dunng construction A 10-foot setback from all property lines and easements are regwred for stormwater faalities 19 The applicant shall prepare a final stormwater plan to meet high ground water issues The plan shall be submitted with civil engineering plans and shall include an operation and maintenance plan 20 Within budding setback areas for Lots 42 - 50, all fill material shall be structural fdl as per IBC/IRC R401 2 21 Ali roof drain runoff shall be infiltrated on each lot utilizing individual drywells 22 The stormwater system shall be held in common by the Homeowners Assoaation The Homeowners Agreement shall include provisions for the assessment of fees against individual lots for the maintenance and repair of the stormwater faalities 23 The applicant shall submit a fire hydrant plan to the Community Development Department for review and approval as part of the avil engineering plans prior to final subdivision approval 24 The applicant shall submit fire flow calculations for all existing and proposed hydrants All hydrants must meet minimum City standards May 23, 2005 Page 9 of 10 25 The applicant shall be responsible for the installation of hydrant locks on all fire hydrants required and installed as part of development The applicant shall coordinate with the Yelm Public Works Department to purchase and install required hydrant locks Hydrant lock details shall be included in Civil Plan Submission 26 Street lighting and interior street lighting will be requred Civil plan submittal shall include a lighting design plan for review and approval 27 Prior to the submission final plat application, the applicant will provide the Community Development Department an addressing map for approval 28 The applicant shall comply with the mitigation requirements of the MDNS issued on March 21.2005 29 The applicant shall submit a final landscaping and irrigation plan with the avil engineering plans to include the perimeter of the protect site, planter strips, and stormwater faalities 30 The applicant shall provide a performance assurance device in order to provide for maintenance of the required landscaping until the tenant or homeowners' association becomes responsible for landscaping maintenance The performance assurance device shall be 150 percent of the antiapated cost to maintain the landscaping for three years Based on the Analysis and Conditions of Approval above, staff recommends that the Hearing Examiner approve SUB-04-0175-YL May 23, 2005 Page 10 of 10 RECEIVED JUN 0 $oS McCARTHI CAUSSEAUX & ROURKE City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 (360) 458-3835 (360) 458-3144 FAX Memorandum To: St en K Causseaux, Jr , Heanng Examiner From: Mernman, Assistant Planner Date: June 7, 2005 Re: Copy of Boundary Line AdJustment and Appeal Ftle for Gnffin Per your request, please find attached a copy of the Boundary Ltne AdJustment and Appeal files for Scott Gnffin, Freestone DFF Yelm II LLC These copies include all correspondence I have also included a copy of the sign to sheet for the Heazing today If you need anything further, please give me a call at (360) 458-8496. Taint Document 1 City of Yelm Community Development Department 105 Yelm Avenue West P.O. Box 479 Yelm, WA 98597 NOTICE OF PUBLIC HEARING YELM HEARING EXAMINER DATE: Tuesday, June 7, 2005, 9:00 a.m. PLACE: Yelm City Hall, 105 Yelm Ave. W., Yelm WA 1. PURPOSE: Public Hearing to receive comments regarding the proposed Gnffm Place Subdivision of 17 45 acres into 50 single family residential lots The project site is located on Middle Road, Yelm, WA, between Railway and Grove Road Case No SUB-04-0175-YL Applicant: Freestone DFF Yelm II, LLC 2. PURPOSE: Public Meeting to hear testimony from parties of record, regarding an appeal of certain conditions of the Mitigated Determination of Nonsignificance issued for the Gnffm Place Subdivision Case #APP-05-0112-YL Appellant: Freestone DFF Yelm II, LLC through William Lynn Applicant: Freestone DFF Yelm II, LLC The City of Yelm Hearing Examiner will hold a public hearing to receive comments on the proposed Griffin Place Subdivision, and to hear testimony from parties of record, regarding an appeal of certain conditions of the Mitigated Determination of Nonsignificance for the Griffin Place Subdivision The Hearing Examiner will make a decision on the matter within 10 days after the meeting Parties of Record may testify at the meeting on Tuesday, June 7, 2005. Any related documents are available for public review during normal business hours at the City of Yelm, 105 Yelm Ave W , Yelm, WA For additional information, please contact Tami Merriman at (360) 458-3835 The City of Yelm provides reasonable accommodations to persons with disabilities If you need special accommodations to attend or participate in this hearing, call the City Clerk, Agnes Bennick, at (360) 458-8404, at least 4 days before the meeting ATTEST City o elm ~ ~ ~t~/1YY1(~i~ 1 Agnes Bennick, City Clerk DO NOT PUBLISH BELOW THIS LINE Published in the Nisqually Valley News Friday, May 27, 2005 Marled to Adjacent Property Owners and Posted m Public Places~~Mlpn~y~M~y~~,~005 Date: ~-~Y~- ~~ Staff R port City of Yelm Community Development Department To Stephen K Causseaux, Jr ,Hearing Examiner / From Grant Beck, Director of Community Developmeryi~,_, Date May 18, 2005 VV Subject Appeal of Mitigated Determination of Non-Significance SUB-04-0175-YL APP-05-0112-YL Appellant Freestone DFF Yelm II, LLC Location Middle Road, Yelm, WA proposal Appeal Mitigation_ Measu_r_e_ 2(d)_of the MDNS issued for_ the proposed Griffin PPlace subdivision I. INTRODUCTION Freestone DFF Yelm II, LLC through William Lynn appeals mitigation measure 2(d) of a Mitigated Determination of Non-significance for a proposed 50 lot subdivision Specifically the requirement of removing one of the two existing driveway accesses for an existing home, and an agreement to move the other driveway access within 6 years II. BACKGROUND In 2004, the City held a presubmission conference for a subdivision of this site The engineering firm for the applicant was Parametrix Discussions were held regarding the existing home, and the removal of the driveways for the existing home based on the subdivision of the property After the original presubmission meeting, the applicant changed to Freestone, and they retained parametrix as the protect engineer In discussions with the engineer, the City agreed that based on a hardship by the property owner, one driveway could retain access on Middle Road with a recorded agreement that the driveway be removed within 6 years In July 2004, Freestone DFF Yelm ll, LLC applied for a boundary Ime adjustment between two parcels located on Middle Road The two parcels were approximately 8 5 and 10 acres in area, the larger of which was occupied by a single family dwelling The approved boundary line adjustment changed the parcel configurations, to keep the single family dwelling on a smaller lot, and leaving approximately 17 acres surrounding the single family dwelling ~~~~~~~ Date: ~9~-------'-'- ii • The City den+ed the boundary line adjustment, stat+ng that the new parcel did not meet Thurston County lot s+ze regulations for well and septic requrements, and did not meet dens+ty requirements At the appeal hearing, the appellant offered to connect the existing home to City water and sewer services The Hearing Examiner granted the appeal based on conditions that the home be connected to C+ty water and sewer services, and did not prohibit the City's request for frontage +mprovements as part of a future subd+ws+on Freestone then applied for a preliminary subd+vis+on on the larger piece The C+ty of Yelm rev+ewed the SEPA checkl+st and +ssued an MDNS on March 21, 2005 The MDNS +ncluded m+t+gat+ng measures to +nclude 2(d) wh+ch states "The existing single family home may reta+n one driveway entrance on Middle Road, with a recorded aareement between the nronerty owner, develonPr, anri City that tha rinvaway entrance be relocated to the new plat internal street no later than 6 years from the date of recording The agreement shall provide for driveway removal from Middle Road and restoration to City standards " III. ISSUES Section 16 16 050 Yelm Municipal Code (YMC) states that lots within a residential subdivision shall be des+gned so that lots adjacent to arterial and collector streets are not allowed direct access The director may approve may approve direct access as an exception to the above requirement upon written finding that A Sight distances comply with Yelm development standards for the posted speed plus 10 miles per hour, B The safety of the traveling public is not likely to be jeopardized, C The applicant is able to show to the satisfaction of the director that a significant hardship would exist if access is not approved, D No other practical and feasible access is available (Ord 436, 1992) In most circumstances the C+ty requires existing homes that remain as part of a subdivision to meet the above requirement May 23, 2005 Page 2 of 4 CI t • IV. ANALYSIS The appellant states 1 The condition is imposed on an existing single-family lot that is not part of the proposed subdivision Therefore, the City has no authority to impose any conditions The State Env~ronmenta! Policy Act states that if the proposal consists of a serves of actions that are individually exempt, but together may have a significant impact, the proposal rs not exempt The boundary line adjustment does not exempt the new parcel from review for impacts 2 The current use of the existing single-family home that is the subject of Mitigation measure 2(d} will not be altered by the approval of the subdivision, thus there is nn imnar} }n m~fina}a _. _ ._ . _ _ _ _ Based on SEPA, the existing home should be reviewed as part of the subdivision, and the addition of 50 single family homes surrounding this parcel creates an impact to the City's street system The existing driveway is located on a collector street, and near a sharp comer, where driveway access creates a hazard with the increase of vehicles based on residential development in the area These impacts are mitigated by street improvements, and removing residential accesses from arterial and collector streets 3 RCW 43 21C 060 permits mitigation measures for "specific adverse environmental impacts identified in the environmental documents " The City, in its MDNS identified that the location of the existing driveways on Middle Road, with the addition of the new trips onto Middle Road does create an impact This impact is mitigated by removing the driveway 4 RCW 43 21C 060 regwres conditions be based upon polices identified by local government as a basis, and that the policy be identified in writing The Crty of Yelm 2001 Comprehensive Transportation Plan Update Policy #15 Transportation System Management (TSM) Policy states To efficiently operate the transportation system through TSM Strategies These will include • Signal rnterconnectronsysterns • Turn lanes and pockets to move turning vehicles out of through traffic lanes • Access control for arterials and mayor collectors to minimize disruptions in traffic flow May 23 2005 Page 3 of 4 Section 16 16 050 YMC fdentffies measures to implement this policy by stating that lots within a residential subdivision shall be designed so that lots adjacent to arterial and collector streets are not allowed direct access 5 RCW & WAC requires that mitigation measures be reasonable and capable of being accomplished The existing home and parcel are not in appellant's ownership The appellant and current homeowner were aware of the City's requirement prior to the boundary Ime adjustment and subsequent sale of the property The existing home can be accessed by the new local access street that will be created 6 Mitigation measure 2(d) is arbitrary and capacious and contrary to law Tha mh~nni~nn_mca giro 7/iii ~c haccrf nn Cfi~fe anv! ! anal lnini~ nnr! noniilnhnnc . y_...... _~..~ „y,......... ... The existing home should be reviewed under SEPA as stated above The mitigation measure fs supported by the City of Yelm's wntten polices and regulations VI. CONCLUSION The mitigating conddwns of the Mitigated Determination of Non-signficance are appropriate and are based on identified potential significant adverse impacts attributable to the development, and conditions based on City regulations LIST OF EXHIBITS Appeal Notice and Letter Traffic Impact Analysis MDNS Map May 23, 2005 Page 4 of 4 ll c City of Yelm Community Development Department NOTICE OF APPEAL Fee Staff Decision - $50 00 Hearing Examiner Declslon - $100 00 (In addition, any professional service charges per Resolution #358) R ~ S 2005 A Closed record appeal may follow either an open record hearing or an open record administrative deasion on a protect permit application when the appeal is on the record, and no or limited new evidence or information is allowed to be submitted Appeals on Category I & II protect decisions are heard by the City Council Appeals on Category III & IV protect decisions as well as Category I & II decisions which have been appealed to the Cdy Council go to Supenor Court and follow the tudiaal review process set forth in RCW 366 70C A Notice of Appeal must be filed within 14 days of NoUCe of Flnal Ueaston - - - _ PROJECT CASE NUMBER BEING APPEALED SLPA: 0175 DATE OF NOTICE OF FINAL DECISION March 21, 2005 APPELLANT(S) Freestone DFF Yelm II, LLC through William L_vnn MadmgAddress Gordon, Thomas, Honeywell, etal P.O. Box 1157 City, State and Zip Tacoma, 1+'A 98401 Telephone 253-620-6416 EMAIL wlvnn@GTH-Law.com SPECIFIC ITEMS OF DECISION BEING APPEALED (attach additional sheet tl necessary) Set forth in the attached letter 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 subtect 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 apphcahorl } ag; ee to pay all fees of the City that apply to this application Signed ~. L ~~ /""' ~~ Dale ~ /~ ~~ 105 }'elm Avenue Rest PO Bos 479 }'elm, WA 98597 /800) 458-3144 F~tX ) wu~u, c~ Helm u~a us Date: J!'~~/-u~---- Fee Date Received _ ~ " By 7~ i Cam. File NO '~-' L tz{;c:'7v .~ • LAW OFFICES GORDON THOMAS HONEYWELL MALgNCA PETERSON ~ DAHEIM LLP TACOMq OFFICE 1201 PgCIF IC gVErvUE SUITE 2200 POST OFFICE BOq IISI T ACOMq WgSHINGTON 9B<01 115] 12531 620 6500 Fq C51M1LE 125316206565 REPLY TO TACOMA OFFICE WILLIAMT LYNN qTT OR NCY AT LqW DIRECT 12531 620 6a 16 12061 6]6 6<16 E MAIL lynnw~gih law tom Apn14, ?005 Grant Beck Community Development Director Gty of Yelm t n: v..t... n .,,,.,,,., xv,..-. P O Box 479 l'elm, \\',4 95597 RE SEPA Appeal Dear Mr Beck SEATTLE OFFICE ONE UNION SOU<RE 600 UNIVERSITY SUITE 2100 SEATTLE WASHINGTON 98101 <I65 ~ 2061 676 1500 FACSIMILE 12061 6]6 ]5]5 This letter provides the bads for the appeal of the 1\1DNS for the plat of Griffin Place The 1`9DNS nas Issued March 21, 200, and a copy Is attached to this letter The .Appellant challenges 1\91tlgauon measure 2(d) and alleges the follox+mg errors 1 The condrtlon Is unposed on unexlstmg sutgle-family lot that Is not part of the proposed subdl~ Islon Therefore, the Cuy has no authonty to unpose any condnlons 2 The current use of the extstmg single-fanuly home that Is the subject of ~11ugaUOn measure 2(d) ~~ Ill not be altered by the appro. al of the subdn Islon, thus there Is no Impact that may be "nuugated' under the authonty of RC\\r 4321C Chapter and the nnplementmg Gty code proxlslons \\'AC 197-11-660(d) ' Responslblhty for unplemenun~ nntlgauon measures may be unposed upon applicant only to the extent attributable to the Identified ads erse unpacts of ns proposal ' 3 RC\\r 43 21C 060 only pemuts the unposition of mlu~~atlon measures that nuUgate 'specific ad~eise emlronmental unpacts ~~hich are Identlfied m the emlronmental documents" prepared under SC-P4 ~4tttgauon measure 2(d) does not meet thts requirement 4 RCW 43 21C 060 also regwres that any condrtions be based upon policies identified by the local go~emment as a bads for the exercise of Its nuueauon authonty Moreover, under WAC 197-11-660(b), any such policy that Is relied upon must be Identlfied m ~~ sting A71ugauon measure 2(d) does not meet these requirements [l:00075 x I docl ~ GORDON THO\qAS HONEI\1-ELL• t,1ALANCA PETERSON ~ DgHEIM LLP April 4, 2005 Page 2 • 5 RCW 43 21C 060 and \\~AC 197-11-660(c) requues that nut~gaUOn measures be reasonable and capable of being accomplished For the reasons cited above, and for the addwonal reason that the subject property is not wthm the ownership and control of the Appellant, M~tigatton measure 2(d) does not meet this requirement 6 The Mtttgat~on measure 3(d) is arbitrary and capnc~ous and contrary to law Very truly yours, r ~v~k~~~-~ ~ ~ ~.~ Wilham T Lyitn , J \'/TL eam Attachments [ 1306075 r 1 docJ RAC ~~,/ ~i.M colvmitnvi~ sci-rooLS "~R~87pos _ Where all students can learn and grow ~~ Er1inQ Birkland Director of Facihties March 24, 2005 Mr. Grant Beck Community Development Director City of Yelm PO Box 479 Yelm, Washington 98597 RE SEPA #0175 Freestone DFF Yelm II LLC Dear Mr. Grant Yelm Community Schools requires mit>gat>on agreements for all subdivisions Please include the mitigation provision as part of the SEPA requirements. Should you have any questions please call me at 458-6128. S~incere-l~y, L Er ng~>I it land acihties Director Yelm Community Schools ~~~~~® Date: _jl~ u YELM COMMiJNITY SCHOOLS IS AN EQUAL OPPORTUNITY EMPLOYER AND FOI LOWS TITLE IX REQUIREMENTS ]07 First Street North, P O Box 476 Yeim, Washington 98597, (360) 458 6128, FAX (360) 458 6434 City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 (360) 458-3835 (360) 458-3144 FAX Memorandum To: SPRC From: Roberta Allen, Admmtstratwe Asststant Date: March 10, 2005 Re: SUB-04-0175-YL -Revised Site Plan for Gnffin Prehmmary Plat Attached ~s the revised site plan for the above referenced protect In addition, Jim, Grant, Gary and Tami, also attached ~s a Level II Traffic Impact Analysis Record Addendum Letter from Jake Traffic Engmeenng, Inc 1 \SUB Full Plat Subdrvts~on\04-0175 Gnnin Prelim Plat\Rev Ste Plan Memo doc BT/0 TAIIAN LANE NE LACEY, WA 98516L641 T 360 459 3609 F 360 459 0154 www parametnx coin March 8, 2005 PMX# 257-4812-001 Ms Taint Mernman Assistant Planner City of Yelm PO Box 497 Yelm, WA 98597 Re Griffin Subdroision Environmental Checklist Dear Taint ~~Ceiv~d LIAR 0 S 2005 We are submrttmg ten revised full-size and one reduced (11" x 17") plan sets wdh the additronal mfonnahon requested m your letter dated February 11, 2005 for the above referenced protect We have addressed your comments as follows • The preliminary plat maps have been revised to align Road B wrth the updated road location on the proposed adJacent plat to the west • The earthwork mformatron provided on the attached grading plans is correct The response on the environmental checklist should be revised to reflect 1,547 cubic yards of cut resulting from the proposal All excess material will be disposed of at an approved facility • Attached is a letter from Mark Jacobs addressing the sight distance m the north and west, including existing driveways Thank you for reviewing the revised plans We look forward to completing the review process and being scheduled for the public hearing If you have any questions, please call me at (360) 459-3609 Sincerely, cc Scott Griffin File o cadW812\02\con\030705 iesubmrttal coves letter doc Date: ~ ' ^ ^' °" '~&"`"'"~`C ~">e"'~O`.Pa g~~g~ ~.~ ~ '~~ ~'. rf.ce STATY RAF o bS = i,y iar~v a~Yn ~` C STATE OF WASHINGTON F~l~' F/~IF DEPARTMENT OF ECOLOGY ~ ~ PO Box 47775 • Olympia, Washmglon 98504-7775 • (360) 407.6300 February 8, 2005 Ms Taint Memman Community Development Department City of Yelm FO Box 479 Yelm, WA 98597 Dear Ms Memman _ '~ ~~'_ Your address Is In the ,,~ `~ -~ f~6sgteally - , watershed - ,~ Thank you for the opportunity to comment on the nonce of application for the Gnffin Subdivision - Preliminary Plat protect (Land Use Case No SUB-04-0175-YL) located at 16440 Middle Road Southeast as proposed by Freestone DFF We reviewed the apphcatton nonce and have the following comments WATER QUALITY: Margaret Hill (360) 407-0246 Erosion control measures must be m place pnor to any cleanng, grading, or construction These control measures must be effective to prevent stormwater runoff from carrying soil and other pollutants Into surface water or storm drains that lead to waters of the state Sand, silt, clay particles, and soil will damage aquatic habitat and are considered to be pollutants Any discharge of sediment-laden runoff or other pollutants to waters of the state is m violation of Chapter 90 48, Water Pollution Control, and WAC 173-201A, Water Quality Standards for Surface Waters of the State of Washmglon, and is subject to enforcement action Dunng consti uction, all rel"eases of oils, hydraulic t7uids, fuels, other petroleum products, paints, solvents, and other deletenous matenals must be contained and removed in a manner that will prevent their discharge to waters and soils of the state The cleanup of spills should take precedence over other work on the site Coverage under the National Pollution Discharge Elimination system (NPDES) and State Waste Discharge General Permit for Stormwater Discharges Associated with Construction Activities is required for construction sites which disturb an area of five acres or more and which have or will have a discharge of stormwater to surface water or a storm sewer If you have any questions or would like to respond to these comments please contact the appropriate reviewing staff listed above Department of Ecology Southwest Regional Office (AW Gnffin Subdivision Preliminary Plat) cc Margaret Hdl, WQ Freestone DFF (Applicant) ~~~~~~® Date: ~.---1'-~ • ga City of Yelm February 11, 2005 Mr Scott Griffin Freestone DFF Yelm II LLC P O Box 73669 Puyallup, WA 98373 Dear Mr Griffin Community Development Department 105 Yelm Avenue West P.O. Box 479 Yelm, WA 98597 The City_has performed a preliminary review of your environmental checklist, and requires further information before we can complete our environmental review The road connection to the new subdivision located on the west side of the property does not align Please have your engineer contact Skillings Connelly to acgwre the correct placement of the new road connection The amount of grading discussed in the environmental checklist does not correlate with the amount shown on the preliminary grading plan The Traffic Impact Analysis submitted does not discuss sight distance on Middle Road Please submit more detailed information on sight distance in the north and west directions, to include existing driveways Please submit the additional information above If you have any further questions, please feel free to give me a call Sincerely, _.~' Tami Merriman Assistant Planner cc Cathie Carlson, Parametnx ~~~~i~D Date: ~-~- (360) J58-3835 (360) J58-31 as FAX mmm ct yelm.waus ENGINEERING. PLANNING. ENVIRONMENTAL SCIENCES 8770 TALLON LANL NE ~'F~ LACEY, WA 76516-G641 ~~ ~~~~ T 3GOA593609 t 360.459.Oli4 e0 OS T R A N S M Y T T A L F O R M To Taml Merriman Date February 1, 2005 Crty of Yelm Protect Number 257-4812-001 PO Box 479 Yelm, WA 98597 Protect Name Griffin BLA We ate transmitting the following materials: Recortled orlglnal of the BLA Map and Declaration of BLA and Covenants for BLA04-0099-YL Comments: I sent a copy of each document to Ms Dotson and Scott Griffin and kept a copy for my file Glve me a call If you have any quesfions ~~~(~~~® pate: /~~"r~-h""' These are ^ PER YOUR REQUEST Sent Vla ®U S MAIL ^ FOR YOUR INFORMATION ^ GROUND SERVICE O FOR YOUR REVIEW AND APPROVAL ^ EXPRESS OVERNIGHT ® FOR YOUR FILES ^ COURIER ^ FOR YOUR ACTION ^ HAND DELIVERY/PICK UP Sincerely, cc Kathryn Dotson ~~ /~ Scott Griffin Cathie Carlson (Rev 07/04) urn Address of Yelm Ii Merriman Box 479 n, WA 98597 Document title(s) (or transactions contained therein): 1 Declaration of Boundary Line Adjustment BLA-04-0099-YL 2 3 Reference Number(s) of Documents assigned or released: (on page of documents(s)) Grantor(s) (Last name, Trst name, middle initial) 1 Dotson, Kathryn A, Trustee 2 3 Grantee(s) (Last name, first name, middle initial) 1 The Public 2 Legal Description (abbreviated: i.e. lot, block, plat or section, township, range) A portion of Section 19, T17N, R2E Assessor's Property Tax Parcel/Account Number 64303600700, and 64303600600 IIIIII VIII IIIIII IIII VIII VIII IIIIIII III VIII IIII IIII 07g 9/82005 03327P FREESTONE DFF YELI1 II L DEC s21 00 Thurston Co Lla DECLARATION OF BOUNDARY LINE ADJUSTMENT AND COVENANTS KNOW ALL MEN BY THESE PRESENTS That we the undersigned having a real interest in the tract of land described by the declaration, and do hereby declare the herein described adjustment of land certified as Boundary Line Adjustment Number 04-0099-YL , on the /y~' day of January, 20 05 , by the Planning Department, subject to the following covenants and conditions 1 That all subsequent deeds will contain provisions for pnvate roads in the manner described herein 2 That all maintenance of any private road described by this declaration shall be by the owners of the parcels having legal access therefrom or their hens, assigns, or successors, unless and until such roads are improved to the subdivision standards and dedicated to and accepted by the appropriate governmental jurisdiction 3 That any pnvate road will be subject to the further right of the grantor or his successor and of any telephone, electric, gas, water, or sewer company, public or private, to lay or cause to be laid and the right of ingress or egress for the purpose of maintaining telephone, electric, gas, water or sewer pipes, mains, or condwts across a described portion of such road 4 That with respect to any private road described by this declaration whether it remains pnvate or becomes a dedicated road, there is the additional right to make all necessary slopes for cuts and fills, and the rights to continue to drain said roads and ways over and across any lot or lots where the water might take a natural course upon reasonable grading pursuant to improvement for dedication of the roads and ways shown herein Following reasonable grading pursuant to improvement for dedication of the roads and ways shown herein, no drainage waters on any lot or lots shall be diverted or blocked from their natural course so as to discharge upon any public road rights-of-way or to hamper proper road drainage 5 That the adjusted legal description of each of the tracts being adjusted is attached hereto and incorporated by reference as though fully set out herein 6 That additional covenant, easements, restrictions, if any, solely for the benefit of the grantor, and his heirs, successors, and assigns enforceable only by such persons, are attached hereto either as exhibits or as previously recorded under Auditor's File Number and incorporated by reference as though fully set our herein That these covenants are for the mutual benefit of the grantor and his heirs, successors and assigns and are for the further purpose of compliance with the resolutions and regulations of the appropriate local governmental jurisdiction, and the local government and such persons are specifically given the right to enforce these restrictions and reservations by injunction or other lawful procedure and to recover any damages resulting from such violation DATED this ~~ day of ~oL /lit. c~ _ , 2005 l_V raptor Grantor Grantor Grantor Grantor Grantor E-23 IIIIIIIIIIIIIiiIIIIIII VIIIIIIIIIIIIIII IIIIIIIIIIIIIIII Thg 9/80^5 03327P Co Wa STATE OF WASHINGTON ) ss COUNTY OF THURSTON ) On this day personally appeared before to me known to be the individual- described in and who executed the within and foregoing instrument, and acknowledged that ~_ signed the same as ~n 1 r- free and voluntary act and purposes therein mentioned offiaal seal this 1 ~1'~ day of 20~~ -- No,ARy :- STATE OF WASHINGTON ) j ss COUNTY OF THURSTON ) ~= PUBUC F ' On this day personally appeared before me to me known to be the individual- described m and who executed the within and foregoing instrument, and acknowledged that signed the same as free and voluntary act and deed, for the uses and purposes therein mentioned GIVEN under my hand and offiaal seal this ,20_ day of NOTARY PUBLIC in and for the State of Washington residing at E-23 I IIIIII VIII IIIIII IIII VIII VIII IIIIIII III VIII IIII IIII 0919/82005 ©3327P FREESTONE DFF VELFI II L DEC y21 00 Thurston Co IJa 4.. NOTAR U C in and or the Sfate of Washington residing at ~ c ~~... turn Address ty of Yelm mi Merriman i Box 479 Im, WA 98597 Document title(s) (or transactions contained therein): I Boundary Line Adjustment Map BLA-04-0099-YL 2 3 Reference Number(s) of Documents assigned or released: (on page of documents(s)) Grantor(s) (Last name, first name, middle initial) 1 Dotson, Kathryn A, Trustee 2 3 Grantee(s) (Last name, first name, middle initial) 1 The Public 2 Legal Description (abbreviated: i.e. lot, block, plat or section, township, range) A portion of Section 19, T17N, R2E Assessor's Property Tax ParceUAccount Number 64303600700, and 64303600600 3703812 IIIIII VIIIIIIIIIIIIIVIIIVIIIIIIIIIIIIIVIIIIIIIIIII Thurston CoSZLIe - - ------ -- -- ----- --- - -- - ----- ---- -- - ----- - ~ Boundary Line Adjustment # Oy-OD99-yC. Boundary Line Adjustment Map LINE TABLE SEC. 19, T.17N, R.2E, W.M. I d~E 9~ I 'y,~ O~ k I ~hh ~p5 i LINE LENGTH BEARING L 1 105 68 N47'02 25 W L2 56 99 N45'08 49 W L3 241 51 542'24 58 W L4 162 65 N46'20 30 W L6 241 93 N42'24 58 E L 7 58 28 547'32 25 E L8 87 62 545'42 20 E ~ '111116"'6759' L2 Ll L7 L8 I R/W PER DRAINFIELD AFN 3535669 _W CCEANOUT o ? y n m `~° I .^_ m '' WELL v `O A HOUSE V N U Z m EW LINES 545'42'20"E ~ 218 12' _ L4 II ~~S o ~J\~oe ~~~'o ~ OJ~Op~oo~O f o~e~o ~ o a 1 ~o ~ ~aF 0~~~ 0 0`OG P~~P~ ~a ~o~¢ G~~ 0 ~ ~~ ~ o ~~ ~~ ~, I w ,~ o, oo OG~ ,`CEO ~ X000600 v 6 \~ 6 A„ ~~ F~ ~G NCO ~' - N51'08 b/ _ 382 61 ~~~ 0 ved for irding I ~ ~f Yalm j, ,tiV" OF ,~Fi ~T L h I 1 " = 200' ~ ! `A.~AS ,p 2 0 ~~ 0 100 200 ~ AL LAND HORIZONTAL DATUM \ EXPIRES 7/Za, NAD83/91 WASHINGTON STATE SOUTH ZONE ~ CERTIFICATION OF CONFORMANCE i I HfREBY CERTIFY THAT THfS 8OUNDARY LINE ADJUSTMENT CONFORMS WITH THE REQUIREMENTS OF THE PLATTING AND I SUBDIVISION ORDINANCE AS THE ADJUSTMENT DOES NOT ~ CREA N W LO CONTAINING INSUFFlCIEN7 LOT AREA A ME SI TO EET THE MINIMUM REQUIREMENTS FOR DT D R BUILDING SITES 1.z' ~ PLA ING DEPARTMENT DATE nLE OABtt00i5V-O]_BLA awq I OAIE )/3/Or _ _ _ _ _ ___ _______ _Parametrix IIIIII ~IIII IIIlII II~1 IIIII IIII~ ~IIIIII III ~IIII IIII III 01a/9 9 /82005 03627P FREESTONE DFF YELI1 II L BLRM y69 00 Thurston Co Wa Boundary Line Adjustment # ~~ - l)D ~1- yL LEGAL DESCRIPTIONS OF PARCELS BOUNDARY LINE ADJUSTMENT PARCEL "A" OF BOUNDARY LINE ADJUSTMENT # OBI ' OD97 ' Y L DESCRIBED AS FOLLOWS: THAT PORTION OF LOT 6, BLOCK 36, PLAT OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 9 OF PLATS, PAGE 43, RECORDS OF THURSTON COUNTY WASHINGTON, DESCRIBED AS FOLLOWS COMMENCING AT THE NORTHWEST CORNER OF LOT 8 IN BLOCK 36 OF SAID MCKENNA IRRIGATED TRACTS, THENCE ALONG THE SOUTHWESTERLY RIGHT OF WAY OF MIDDLE ROAD, THE FOLLOWING COURSES, SOUTH 45°42'20" EAST A DISTANCE OF 86 64 FEET, SOUTH 45°08'40" EAST A DISTANCE OF 212 18 FEET, SOUTH 45°33'40" EAST A DISTANCE OF 410 67 FEET, SOUTH 45°08'49" EAST A DISTANCE OF 67 59 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION, THENCE CONTINUING ALONG SAID RIGHT OF WAY, SOUTH 45°08'49" EAST A DISTANCE OF 56 99 FEET, THENCE SOUTH 47°02'25" EAST A DISTANCE OF 105 68 FEET, THENCE LEAVING SAID RIGHT OF WAY SOUTH 42°24'58" WEST A DISTANCE OF 241 93 FEET, THENCE NORTH 46°20'30" WEST A DISTANCE OF 162 65 FEET, THENCE NORTH 42°24'58" EAST A DISTANCE OF 241 51 FEET TO THE TRUE POINT OF BEGINNING TOGETHER WITH AND SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS, AND COVENANTS OF RECORD SITUATE IN SECTION 19, TOWNSHIP 17 NORTH, RANGE 2 EAST, W M ,CITY OF YELM, THURSTON COUNTY, WASHINGTON PARCEL "B" OF BOUNDARY LINE ADJUSTMENT # Q y- nQq Q - t/L DESCRIBED AS FOLLOWS. LOT 6, BLOCK 36, PLAT OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 9 OF PLATS, PAGE 43, RECORDS OF THURSTON COUNTY WASHINGTON, EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS COMMENCING AT THE NORTHWEST CORNER OF LOT 8 IN BLOCK 36 OF SAID MCKENNA IRRIGATED TRACTS, THENCE ALONG THE SOUTHWESTERLY RIGHT OF WAY OF MIDDLE ROAD, THE FOLLOWING COURSES, SOUTH 45°42'20" EAST A DISTANCE OF 86 64 FEET, SOUTH 45°08'40" EAST A DISTANCE OF 212 18 FEET, SOUTH 45°33'40" EAST A DISTANCE OF 410 67 FEET, SOUTH 45°08'49" EAST A DISTANCE OF 67 59 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION, THENCE CONTINUING ALONG SAID RIGHT OF WAY, SOUTH 45°08'49" EAST A DISTANCE OF 56 99 FEET, THENCE SOUTH 47°02'25" EAST A DISTANCE OF 105 68 FEET, THENCE LEAVING SAID RIGHT OF WAY SOUTH 42°24'58" WEST A DISTANCE OF 241,93 FEET, THENCE NORTH 46°20'30" WEST A DISTANCE OF 162 65 FEET, THENCE NORTH 42°24'58" EAST A DISTANCE OF 241 51 FEET TO THE TRUE POINT OF BEGINNING TOGETHER WITH THAT PART OF LOT 7 IN BLOCK 36 OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT RECORDED IN VOLUME 9 OF PLATS, PAGE 43, DESCRIBED AS FOLLOW S BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 7, THENCE NORTHWESTERLY ALONG THE NORTHERLY LINE OF SAID LOT 157 FEET, THENCE SOUTH 42°40'30" WEST 272 3 FEET, THENCE NORTHWESTERLY PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 218 FEET TO A POINT 10 FEET FROM THE WESTERLY LINE OF SAID LOT, THENCE SOUTHWESTERLY PARALLEL WITH AND ]0 FEET DISTANT FROM SAID WESTERLY LINE OF LOT TO THE SOUTHERLY LINE OF SAID LOT, THENCE SOUTHEASTERLY ALONG SAID SOUTHERLY LINE TO THE SOUTHEAST CORNER OF SAID LOT, THENCE NORTHEASTERLY ALONG SAID LOT TO THE POINT OF BEGINNING, EXCEPTING THEREFROM THAT PORTION DEED TO THE CITY OF YELM RECORDED MAY 28, 2003 UNDER AUDITOR'S FILE NO 3535669 TOGETHER WITH AND SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS, AND COVENANTS OF RECORD SITUATE IN SECTION 19, TOWNSHIP l7 NORTH, RANGE 2 EAST, W M ,CITY OF YELM, THURSTON COUNTY, WASHINGTON 1 OF 3 IIIIII~IIIIIIIIIIIIII~I~IIIVIIIIIIIIIIIII~~IIIIIIIIIII P^9 58~~SCos21Ja Bonndary Line Adjustment # ~ ~ - ~(~ 4 g ~ yL LEGAL DESCRIPTIONS OF PARCELS BOUNDARY LINE ADJUSTMENT I HEREBY CERTIFY THAT THE ABOVE LEGAL DESCRIPTIONS ARE ACCURATE AND IN COMPLIANCE WITH THE SUBDIVISION CODE. SAID DESCRIPTIONS ARE BASED UPON A SURVEY. SUBMITTED THIS 7~ DAY OF , 2004. KATH},EEN D. CASSOU, PLS #27133 8830 TALLON LANE, SUITE B LACEY, WA 98516 (360} 459-3609 20F3 IIIIIIIIIIII III III IIIIIIIIiI VIIIII II II III III 0~g 98006 03627P FREESTONE DFF YELM II L BLRM E69 00 Thurston Co Wa Boundary Line Adjustment # ~y - oD99- yL LEGAL DESCRIPTIONS OF PARCELS BOUNDARY LINE ADJUSTMENT ORIGINAL LEGAL DESCRIPTIONS OF RECORD (PER CHICAGO TITLE INSURANCE COMPANY A L T A COMMITMENT ORDER NO 2028518) (TAX PARCEL No. 64303600600) LOT 6 IN BLOCK 36 OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 9 OF PLATS, PAGE 43 (TAX PARCEL No.64303600700) THAT PART OF LOT 7 IN BLOCK 36 OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT RECORDED IN VOLUME 9 OF PLATS, PAGE 43, DESCRIBED AS FOLLOOWS BEGINNING AT THE NORTHEAST CORNER OF SAID LOTS 7, THENCE NORTHWESTERLY ALONG THE NORTHERLY LINEOF SAID LOT 157 FEET, THENCE SOUTH 42°40'30" WEST 272 3 FEET, THENCE NORTHWESTERLY PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 2l8 FEET TO A POINT 10 FEET FROM THE WESTERLY LINE OF SAID LOT, THENCE SOUTHWESTERLY PARALLEL WITH AND ]0 FEET DISTANT FROM SAID WESTERLY LINE OF LOT TO THE SOUTHERLY LINE OF SAID LOT, THENCE SOUTHEASTERLY ALONG SAID SOUTHERLY LINE TO THE SOUTHEAST CORNER OF SAID LOT, THENCE NORTHEASTERLY ALONG SIAD LOT TO THE POINT OF BEGINNING, EXCEPTING THEREFROM THAT PORTION DEED TO THE CITY OF YELM RECORDED MAY 28, 2003 UNDER AUDITOR'S FILE NO 3535669 ALL IN SECTION 19, TOWNSHIP 17 NORTH, RANGE 2 EAST, W M ,CITY OF YELM, THURSTON COUNTY, WASHINGTON 30F3 ~~~~~~ ~~~~~ ~~~~~~ ~~~~ ~~~~~ ~~~~~ ~~~~~~~ ~~~ ~~~~~ ~~~~ ~~~~ 019 9/82005 036277 FREESTONE DFF YELM II L BLRH y69 00 Thurston Co Lla Received JAN 2 S 2005 YELM COMMUNITY SCHOOLS Where all students can learn and grow Eriine Bvkland Director of Facilities January 26, 2005 Mr. Grant Beck Community Development Dlrector City of Yelm PO Box 479 Yelm, Washington 98597 RE SUB-04-0175-YL Griffin Subdivlslon Dear Mr. Grant: .~~ Date: ~-1-N- Yelm Community Schools requlres mttigatlon agreements for all subdrolsions Please include the mltlgatlon provlslon as part of the SEPA requ>rements. Should you have any questions please call me at-458-5128. Sincerely, ~- Erl ~I. trklan Fa tllttes D>rect Yelm Community Schools YELM COMMUNITY SCHOOLS IS AN EOUAL OPPORTUI4TY EMPLOYER AND FOLLOWS TITLE IX RF9ffiREMENTS ]07 Fvsc Street North P O Box 476, Yelm Washington 98597 (360) 458 6118, FAX (360) 458 6434 City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 (360) 458-3835 (360} 458-3144 FAX Memorandum To: SPRC From: Roberta Allen, Admmtstrarive Asststant Date: Janttary 24, 2005 Re: SUB-04-0175-YL - Protect Revtew Schedule for Gnffin Preliminary Plat Attached (s the apphcatwn packet for the above referenced protect After your moral review of the mformatton submitted, if you need add(twnal mformauon from the applicant, please let me know as soon as poss(ble The following (s [he tentative revlew schedule for the protect January 24, 2005 - Notice of Apphcahon distributed -begin I S day comment period February 9 -SPRC Environmental Revtew Department comments/mrtigaLOn regmrements for Env(ronmental Revtew February 14 - 8nvironmental Detertitmahon Issued by Planning Department Begin 14 day comment penod followed by 7 day appeal penod March 2 -Environmental Determmauon appeal lime expired March 16 & 23 -SPRC protect revlew Department comments/condrttons of approval for staff report Apnl l -Complete Staff report for public heanng April 5 -Public Hearing Notice to Paper/Maihng/Post s(te Apnl 18 -Public Heanng m front of Hearing Examiner May 2 -Heanng Examiner approval completed 1 \SUB Full Plal Subdrvaion\pq-0175 Gnffin Prclim Plat\Prq Rev Date Memo doc City of Yelrn Community Development Department PO BOX 479 YELM, WA 98597 360-458-3835 NOTICE OF APPLICATION Marled on January 24, 2005 PROJECT NAME AND LOCATION: Griffin Subdivision -Preliminary Plat 16440 Meddle Road SE LAND USE CASE: SUB-04-0175-YL An application submitted by Freestone DFF Yelm II LLC, P O Box 73669, Puyallup, WA 98373, for the above referenced protect was received by the Clty of Yelm on October 28, 2004 The Clty has determined the appllcatlon to be complete on January 20, 2005 The appllcatlon and any related documents are available for public review during normal business hours at the City of Yelm, 105 Yelm Avenue W , Yelm WA For additional information, please contact the Community Development Department at 360-458-3835 PROJECT DESCRIPTION Subdivide 17 45 acres into 50 single family lots ENVIRONMENTAL and OTHER DOCUMENTS SUBMITTED WITH THE APPLICATION An Environmental Checklist, a Preliminary Drainage Report, and a Traffic Impact Analysis were submitted with the application Additional Information or Protect Studies Requested by the City• No additional information Is requested at this time No preliminary determination of consistency with City development regulations has been made. At minimum, this protect will be subtect to the following plans and regulations City of Yelm Comprehensive Plan, Zoning Title (17), Critical Areas Ordinance (14 08), Storm Water Drainage Design and Erosion Control Manual (DOE), Uniform Building Code, State Environmental Policy Act (SEPA) Title (14), Road Design Standards, Platting and Subdivision Title (16), and the Shoreline Master Program The City of Yelm invites your comments early in the review of this proposal Comments should be directed to Tami Merriman, Community Development Department, P O Box 479, Yelm WA 98597, 360- 458-3835 THE 15-DAY PUBLIC COMMENT PERIOD ENDS AT 5.00 PM ON FEBRUARY 8, 2005. This notice has been provided to appropriate local and state agencies, and property owners within 300 feet of the protect site These recipients, and any others who submit a written request to be placed on the mailing list, will also receive the following items when available or If applicable Environmental Threshold Determination, Notice of Public Hearing and Notice of Final Decision If the proposed protect requires a City Council decision, it will be mailed to all those who participate in the public hearing and to anyone else requesting the decision in writing Additionally, there will be a 14-day public comment period if an environmental determination is issued Opportunities for appeal occur within twenty one (21) days after the date the environmental determination is issued City Council decision can be appealed through Superior Court Appeals of site plan review decisions may be filed within 14 days of Notice of Final Decision I \SUB Full Plat Subdivision\04-017> Gnffm Prelim Plat\Nonce ofApphmtion doc ', ~ `u~e,rnr ~ ~ ~ _ r ~ i --- 1r I ,~ ' ', Tract i x ° ' I ~rt3°~°1 ' I i a ~C~ ? :I ~< ~ I ~~ i I 1 _ \ r 8 8 w 8 ~ ~ ~ ' - - *4, .` PROJECT e ~ 3 \ i T3. i ! ' II ° maix+c aaw.a I'-" o ~ i I ~' ~ d ' 13 ' > e ~ .:aa ' I I ~ AA a i, iV If I ', Tract ~~ e _ _\' -'~ T~ I I psc~t~[irvprtsr~ ' ..cccss g _ _ - . o ~ ` ; , derv vncA ~ - 4 s ~ \ " l e ' ' SITE INFORMATION = 3 ', 50 5 k' b - _ - i ~ \ nartrtn Oal~ ra[[TVS uT rtu1 . ut (L 3'. .,r.i r w ,1 ~ ~ ~ ~_ _ „~ 9 I m ,~... 1 ~ i m " vIe ~" ~- - -^~.._ __ - <~ - z I I w.°u'r1J°w°~° mr.ur E _ a~ _e __ _ _ r _ I li . ' .r / ~ ~ - ' -~ l M \~ I am esnma n~runsw~ ~ 6 E d a I ~! - . II .alf s, a P~+ ~I N+W uV[ 1 mu aea ~ - m , .. n 1 .• _ I 1 / \ ~ I ~ \ ~ . n u~~~ a.n¢« aeeu .%1 ~ ' '- q L 1 ~ Iffff Ebstmc MRL ro Trflct a xa zs - (n s a3 = xz /Aa a unoam \ , i 1 I :%.eaMSl ° 4"a-s~-pn I 6I ~~ .A. a n I ;'~1 a x) i of lle ~ II ~ ~I ~ zar..c a-ems armn :t '~ - .. .. 11s I ~~ I II ~aroR w I , a m a 'I- ' 3x !I ' :n nr/'n ~g~~~~ II Iii ~u .w.. vn.oez 1 , ~ Ye 29 30 \ 31 I ~ G~- ' "1cy~ V'. ",ap ' a smw uuw¢ ~ ti a.v K aa » ~ ~ ~ _ -~ - - _ -:_ ~ _ . (I aeu mwr ,war , r w K ~ ~ ra, ~~ , yki~` , \_ ~ . ~; I as - - ~" ~~ - ~ ' wruxr rrczw.r. rwcr n eu a ! 6 z , ~ 35 A I', unrn wrongs was l ~ , e s ~' 1 , a a - ~ 3) \ 3e I .~ ~ snrx an a mr 8 nl ~~ ~ I ~ m a ~~~s~ `~ LEGAL DESCRIPTION mr 8 & ~ nomnnx~ m le ax h I ~_~t- ~~_u~- evm eveu a-m-nn t~ :. a 1 J J~ ~L ty 1 5 4 _,u~__~__~--- ~-~. vow a ore ~fas„~r ~d! SHEET INDEX i~•~~l _ ~ ~ _ ~ or-i ~iuwnr rou=omc v"`~~° 41•Oe` ', TYPICAL LOT SETBACKS SURVEY INFORMATION ~-' ^ '"°'T''nx05`~'°c ^^" Pfaliminary , rv0' rO :"`• .oa,zornv nrvM woern, •~ N Plat ess n rww+a wow ~r.o ~ ws 'w`co,10H: reu~~emva rvnve . aus T`; ~i. xn ~~ mo iwo a+ %.o,~°i ~. rcA wr w`pY°~`nw,°r uaeurnw I ono i~r nPO~Oaw .LOanrtn a wn war im a wwr ,m ~ z e arvnx ttcrwr ~e`wnc rrcmwa on.,m,.n«o.,,.n I , evs n wE~ a NL4O}° sm. rww. imu a~ Ms~ .pus MaM NttMAM srm..¢ ~ L ucr ~ runs xa 6 r,rt xxn sa .z vox ~I I rrnnsmx ro-a~ax%n ` ~ ~ro mu aemwer wx: ]fax Jr) aae uac. ~,~ mrrwrcx row } (auzr A c2cx_x auav .Oar waa Ma wwsrven wp x[Y~ani c~ N su [ r~icmn - 6 IYY,ree 1 PP 1e eturn Address ity of Yclm ami Mcrnman 0 13ox 479 elm, WA 985')7 llowment title(s) (or transactions contained therein): 1 Declaration of Boundary Lme Ad3ustment BLA-04-0099-YL 2 Reference Number(s) of Documents assigned or released: (on page of documeuts(s)) Grantm•(s) (Last name, first name, nnddle initial) 1 llotson, Kathi yn A, 'I~: uslcc 2 3 Grantee(s) (Last Hanle, first name, middle initial) 1 "fhc I'ubbc 2 Legal Ucsa•iplion (abbreviated: i.c. Iot, blocl., plat or section, township, range) n portion of Section 19• 'f 17N, R2L Assessor's Property Tax Parcel/Account Number 64303600700, and 64303600600 ~~~,~~~© pate: ~-~t-'"'~ I IIIIII VIII IIIIII (III VIII VIII (IIIIII III VIII (III (III 0 919/$2005 O3327P FREESTONE DFF YELM II L DEC $21 00 Thurston Co Wa DECLARATION OF BOUNDARY LINE ADJUSTMENT AND COVENANTS KNOW ALL MEN BY THESE PRESENTS That we the undersigned having a real interest in the tract of land described by the declaration, and do hereby declare the herein described adfustment of land certified as Boundary Llne Adfustment Number 04-0099-YL , on the /v-/'~ day of January, 20 OS , by the Planning Department, subfect to the following covenants and conditions 1 That all subsequent deeds will contain provisions for private roads in the manner described herein 2 That all maintenance of any private road described by this declaration shall be by the owners of the parcels having legal access therefrom or their hens, assigns, or successors, unless and until such roads are improved to the subdivision standards and dedicated to and accepted by the appropriate governmental funsd~chon 3 That any private road wtll be subject to the further right of the grantor or his successor and of any telephone, electric, gas, water, or sewer company, public or private, to lay or cause to be laid and the right of ingress or egress for the purpose of maintaining telephone, electric, gas, water or sewer pipes, mains, or conduits across a described portion of such road 4 That with respect to any private road described by this declaration whether it remains private or becomes a dedicated road, there is the additional right to make all necessary slopes for cuts and fills, and the rights to continue to drain said roads and ways over and across any lot or lots where the water might take a natural course upon reasonable grading pursuant to improvement for dedication of the roads and ways shown herern Following reasonable grading pursuant to improvement for dedication of the roads and ways shown herein, no drainage waters on any lot or lots shall be diverted or blocked from their natural course so as to discharge upon any public road rights-of-way or to hamper proper road drainage 5 That the adtusted legal description of each of the tracts being adfusted is attached hereto and incorporated by reference as though fully set out herein 6 That additional covenant, easements, restrictions, if any, solely for the benefit of the grantor, and his heirs, successors, and assigns enforceable only by such persons, are attached hereto either as exhibits or as previously recorded under Auditor's File Number and incorporated by reference as though fully set our herein That these covenants are for the mutual benefit of the grantor and his hens, successors and assigns and are for the further purpose of compliance with the resolutions and regulations of the appropriate local governmental jurisdiction, and the local government and such persons are specifically given the right to enforce these restrictions and reservations by injunction or other lawful procedure and to recover any damages resulting from such violation DATED this ~ day of ~G~ ~ - , 2005 1 ~ (~I/CAJ ~-. ' raptor Grantor Grantor Grantor Grantor Grantor L-23 I II~III III~I I~IIII III ~IIII ~~III IIII~II III VIII III III Tn~ 9 /82005 0332 7P soon Co Ua STATE OF WASHINGTON ) ss COUNTY OF THURSTON ) On this day personally appeared before to me known to be the mdiv+dual_ described in and who executed the within and foregoing +nstrument, and acknowledged that ~ signed the same as fir- free and voluntary act and purposes there+n mentioned off+c+al seal th+s 1 t-Is' day of zooms ' ~; NyTA'RY ' PUBLIC ., ~. ,, ~f WAS` ~• t ~~~iiirnurr~~t STATE OF WASHINGTON ) ss COUNTY OF THURSTON ) 4~ NOTAR • C in and or the State of Washington residing at ~a c .,.~„-. r^vc.•.,...-_.~~~~ c,.p._-S- a-~,--off. On this day personally appeared before me to me known to be the indwidual_ described in and who executed the within and foregoing instrument, and acknowledged that signed the same as free and voluntary act and deed, for the uses and purposes therein mentioned GIVEN under my hand and offiaal seal this 20 day of NOTARY PUBLIC in and for the State of Washington res+dmg at C-23 I IIIIII VIII IIIIII IIII II~1~ ~II~I ~~III~I 1~1 III~I ~II~ III 0 ~9 9 8005 03327P FREESTONE DFF YELn l:1 L DEL y21 00 Thurston Co Wa .eturn Address qty of Yclm anu Mc~ runnil O 13oa 479 chu, WA 98597 Uocumcnt htlc(s) (or transactions contained thcrem): l Boundary Lme Adjustment Map BLA-04-0099-YL 2 3 Reference Number(s) of llocuments assigned or released: (on page of docmnents(s)) Grantor(s) (Last name, first came, middle uut~al) 1 Dotson, Kathiyu A, Tiustce 3 Grantee(s) (Last name, first name, noddle initial) I "Ihc Public 2 Legal Uescripimn (ubbrcv~aled: ~.e. lot, block, plat or section, townsbq~, range) A poit~on of Section 19, T17N, RZE Assessor's Property Taa Parcel/Account Number 633 03 60 0 7 0 0, and 64303600600 ~~~t9~l~~~® Date: _~/~~~ I IIIIII VIII IIIIII IIII VIII VIII IIIIIII III VIII IIII IIII o~9 s8 oos oa6z~a FREESTONE OFF YELM II L BLHf'! $69 00 Thurston Go Wa h •. rt , I i p~ °0 OV~G P~P~ OP Go~~~ G~~ o ~~ ~~P ~" ~~ ° G~~ ~111116'~67 R/W PER ORAlNFlECO AFN 3535669 ~" CLEANOUT- v ~ v ~ y N Z S45 42'20"E !~ 218 12' - U,~S o 0~~ m p~o~a So~6 E~ LINE LENGTH Li 105 68 L2 56 99 L3 241 51 L4 162 65 L6 241 93 L7 5828 J`F/JL LJG L8 87 62 545'42 20 E -" c> 0 m `~° WELL ~ HOUSE m NEW LINES L4 j I 0~° ~ O Fes- ~~~; to O~ I °' ~' w III ~Z i -1 10 i i i O V o N w o ~ni^ oved for Fit; ording W N"khy- "7 N51'0 - F v 5'5933' ~ N51'08'57°W - 23 382 61 -_ 224 03' ~v" pF ,~6 ~" L 1 f Yelm j ~ „ _ 200' ~o `} o ~s R 27 3 EQ ~~ I 0 100 200 AL LANG s° i HORIZONTAL DATUM ~ rxPiRes 7/za/oa j NAD83f91 WASHINGTON STATE SOUTH ZONE i FOR YAUDITOR'S USE ONLY I I CER TI(ICATION OF CONFORMANCE I ~ I HEREBY CERTIFY THAT THIS BOUNDARY LINE ADJUSTMENT ~ CONFORMS WITH THE REQUIREMENTS OF THE PLATTING AND I SUBDIVISION ORDINANCE AS THE ADJUSTMENT DOES NOT 1 GREAT N W L0, CONTAINING INSUFFICIENT LOT AREA ' ~ A ME SI T0~ EET THE MINIMUM REQUIREMENTS FOR ~ IDT D F R BUILDING SITES -~ i 1 7cz~i i ~ING DEPARTMENT DATEDEPARTMENT DATE ~ EiIE 04813006v-01 9LA tlwq ~ ~ Un IE J/J/O4 _ __ _ _ __ _ _ _ ._ ,_ f?arametri_x I IIIIII VIII IIIIII IIII VIII VIII IIIIIII III VIII IIII IIII 019 9 //82005 03527P FREESTONE DFF YELM II L BLRM $69 00 Thurston Co Wa Boundary Line Adjustment # Boundary L1ne Adjustment Map LINE TABLE SEC. 19, T.47N, R.2E, W.M. .5~~~~ k5R 0~ h9 ~ • Ilouudar~' Linc Adjustment # D~ - nD ~~1- yL LEGAL DESCRIPTIONS OF PARCELS BOUNDARY LINE ADJUSTMENT PARCEL "A" OF BOUNDARY LINE ADJUSTMF.N'I' # O~~ - ~q l - Y L UESCRIBEll AS FOLLOWS: THA"f PORTION OF LO f 6, BLOCK 36, PLAT OF MCKENNA IRRIGATED TRAC"fS, ACCORDING TO TI1E PLAT'fHCREOF RECOIZDEll IN VOLUME 9 OF PLA fS, PAGE 43, RECORDS OF 11iURSTON COUNTY WASHINGTON, DESCRIBED AS FOLLOWS COMMENCING AT TFIE NORTIIW EST CORNER OF LOT 8 IN BLOCK 36 OF SAID MCKENNA iRIZIGATED "TRACTS, THENCE ALONG CHE SOU CIIWESTEKLY R[GITT OF WAY OP MIDDLE ROAD, TILE FOLLOWING COURSES, SOUTH 45°42'20" EAST A DISTANCE OF 86 64 FEET, SOUTH 45°08'40" EAST A DISTANCE OF 212 18 FCBT, SOUTH 45°33'40" EAST A DISTANCE OF 410 67 FEET, SOUTH 45°08'49" EAST A DISTANCE OP 67 59 FEET TO THE TRUE POWT OP BEGINNING OF THIS DESCRIP I ION, THENCE CONTINUING ALONG SAID RIG^"f OF WAY, SOUTH 45°08'49" EAST A DISTANCE OF 56 99 FEET, THENCE SOU"fII 47°02'25" EAST A DISTANCE OP 105 68 FEE"1', TIIENCE LEAVING SAID RIG[I f OF WAY SOU"fII 42°24'58" WEST A DISTANCE OP 241 93 FELT, TIIENCE NORTH 46°20'30" WEST A DISTANCE OF 162 65 FEET, TIIENCE NORTH 42°24'58" EAST A DIS fANCE OF 241 51 FEET "f0 THE TRUE POIN"f OF BEGINNING TOGETHER WITH ANU SUBJECT' TO EASEMEN 1 S, RESTRICTIONS, RESERVATIONS, AND COVENANTS OF RECORD SITUATE IN SECTION 19, TOWNSIBP 17 NORTH, RANGE 2 EAST, W M ,CITY OF YELM, TI [URSTON COUN I Y, WASHINGTON PARCEL "B" OF BOUNllARY LINE AUJUS'I MEN'f # Qy- nQQq - t/L llESC121BEU AS FOLLOWS: LOT 6, BLOCK 36, PLAT OF MCKENNA IRRIGATED TRACTS, ACCORDING TO THE PLAT' "fI ICREOF RECORDED IN VOLUME 9 OP PLATS, PAGE 43, RECORDS OF THURSTON COUN fY WASHINGTON, EXCEPTING TIIEREPROM TFIA"1' PORTION DESCRIBED AS FOLLOWS COMMENCING A C T[IH NORTH WEST CORNER OP LO f 8 IN BLOCK 36 OF SAID MCKENNA [IZRIGATCD TRAC fS, TIIENCE ALONG THE SOUTH WESTERLY RIGHT OF WAY OF MIDDLE ROAD, THE FOLLOWING COURSES, SOUTH 45°42'20" EAST A DIS fANCE OP 86 64 FEET, SOUTH 45°OS'40" EAST A DISTANCE OF 212 18 FEET, SOUTH 45°33'40" EAS I A DISTANCE OF 410 67 PEP.T, SOUTH 45°08'49" EAST A DISTANCE OF 67 59 FEET TO THE TRUE POINT OF BEGINNING OF T?IIS DESCRIPTION, THENCE CONTINUING ALONG SAID RIGHT OP WAY, SOUTI I 45°08'49" EAST A DISTANCG OI~ SG 99 FEET, TIIENCE SOUTI147°02'25" EAST A DISTANCE OF 105 68 FEET, THENCE LEAVING SAID RIGITT OP WAY SOUTH 42°24'58" WEST A DIS fANCL' OP 241 93 FEET, 'T'HENCE NOR"f1146°20'30" WEST A DISTANCE OF 1 G2 65 FEET, THENCE NORTH 42°24'58" EAST A DIS fANCB OF 241 51 FEET 7 O THE TRUE POINT OP BL-G?NNING TOGETHER WI1H THAT PART OF LOT 7 IN BLOCK 36 OP MCKENNA IRRIGATED TRACTS, ACCORDING T O THE PLAT RECORDED IN VOLUME 9 OF PLATS, PAGE 43, llESCRIBLD AS POLLO\VS BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 7, TIIENCE NORTHWESTERLY ALONG THE NORTHERLY LINE OF SAID LOT 157 PEET', T HENCE SOU fII 42°40'30" WEST 272 3 PEST, TIIENCE NORTI I W ESTERLY PARALLEL WITH TIIG NORTHERLY LINE OP SAID LO f 2 ] 8 TEE"f "1'O A POINT 10 FEET FROM TFIE WESTCIZLY LWE OF SAID LOT, TIIENCE SOUTIIWESTERLY PARALLEL WITH AND 10 PCCC DISTANT PROM SAID WESTERLY LINE OF LOl TO TIIE SOU"fIICRLY LINC OF SAID LOT, 1'HPNCB SOUTIIEAS'I ERL`I ALONG SAID SOU I IIEIZLY LINE 7 O TI-I I. SOUL IICAST COIZNEIZ OF SAID LOT, THENC E NORTi LEAS 1'ERLY ALONG SAID LO"f "CO THE POINT OF IEGINNING, EXCEPTING THEREFROM THAT POR"PION llEED TO TILE CI fY OP YELM KECOIZDED MAY 28, 2003 CINDER AUDITOR'S FILE NO 3535669 TOGETHER WITH AND SUBJECT I'O EASEMENPS, RESTRICTIONS, RESEKVA"I IONS, AND COVENANTS OF RECORD SITUATE IN SECTION 19, TOWNSHIP 17 NOR fII, RANGE 2 EAS"I, W M ,CITY OF YELM, TIIURSTON COUNTY, WASHINGTON 1 OF 3 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII o„9 SBoo °o52wa ® • BoundaryLwcAdjustmenl# ~Lf -~U4~`~/L- LECAL DESCRIP"I'lON5 OI+ PARCELS 60UNDARY LINE ADJUSTMENT I HEREBY CERTIFY THAT THE ABOVE LEGAL DESCItIPT[ONS ARE ACCURATE ANll IN COMPLIANCE WITH TIIE SUBU[VISION CODE. SAIU llESCKIPTIONS ARE BASED UPON A SURVEY. SUBMITTED THIS '~iJ DAY OF , 2004. ~. ~~~ KATH~EEN D. CASSOU, PLS #27133 1'ARAi IETRI% 8830 TALLON LANE, SUITE B LACEY, WA 98516 (360)459-3609 20P3 I I~IIII ~IIIIIII~II~IIIIIIII ~IIIIIIII~~I IIIIIIII ~~II IIII 0~~9/82005 03527P FREESTONE DFF YELM II L BLRM $69 00 Thurston Co Wa BoundaryLmeAiljushneut# oy - 0099- yL LEGAL DESCRIPTIONS OP' PARCELS 130UNllARY LINE ADJUSTMENT ORIGINAL LEGAL DESCRIPTIONS OF RECORD (PER CHICAGO TITLE INSURANCE COMPANY A L T A COMMITMENT ORDER NO 2028518) (TAX PARCEL No. 64303600600) LOT 6 IN BLOCK 36 OF MCKBNNA IRRIGATED TRACTS, ACCORllING TO fIIH PLAT TIIGREOF RECORDED IN VOLUME 9 OF PLATS, PAGE 43 (PAX PARCEL No.64303600700) THA"I PART OF LO 1' 7 IN BLOCK 36 OP MCKENNA IRRIGATED TRACTS, ACCORDING 'CO THE PLAT RECORDED IN VOLUME 9 OF PLATS, PAGE 43, DESCRIBED AS FOLLOOWS BEGINNING AT THE NORTHEAST CORNER OE SAID LOI S 7, fHENCE NORTHWESTERLY ALONG TIIE NORTHERLY LINEOP SAID LOT 157 FEET, THENCE SOU"fH 42°40'30" WES f 272 3 FEET, C(ILNCE NORTHWESTERLY PARALLEL WI'1 H THE NORTHERLY LING OE SAID LO C 218 FEET f0 A POINT 10 PHE'I' FILOM TIIE WESTERLY LINE OF SAID LOT', T[IENCE SOUTH WES1 CRLY PARALLEL WITH ANll 10 FEET llISTANT FROM SAIll WESTERLY LINE OF LO f T O TIIE SOU"I I IGRLY LING Oh SAID LO"C, 7IIENCE SOUTHEASTERLY ALONG SAID SOUTHERLY LINE T O T HE SOU'l I IEAST COItNL'R OF SAID LOT, THENCE NOR fHEASTERLY ALONG SIAD LOT TO TI{G POINT OF BEGINNING, EXCEPTING TI IEItEFROM THA f PORTION DEED TO TIIE CITY OP YELM I2GCORDL'll MAY 28, 2003 UNDER AUDITOR'S FILE NO 3535669 ALL IN SECTION 19, TOWNSHIP 17 NORTH, RANGE 2 EAST, W M ,CITY OF YELM, TIIURSTON COUNTY, WASHINGTON 30F3 III~IIIIII~IIII~IIII~III~II!lIII~(~IIIIIIIII~IIIIIIII~I 01~99~005 03527P FREESTONE DFF YELM II L BLAM $69 00 Thurskon Co Wa AUDITOR'S CERTIFICATE File for record at the request of this day of , 20 , at minutes past o'clock m ,and recorded in Volume of Large Lot Subdivisions on page , records of Thurston County, Washington Thurston County Auditor By Deputy 1:-23 8770 TALLON LANE NE ~jppp LACEY, WA 98516f~641 //~~ '1 360 459 3609 F 360.459 0154 Lam/ Www pammeCnz coin ~gy18 FO ~~Qs January 19, 2005 PMX# 257-4812-001 Mr Grant Beck Community Development Director City of Yelm PO Box 497 Yelm, WA 98597 , Re Gnffin Subdivision Application pear Grant We are submitting 10-revised full size and one reduced (11" x 17") plan sets with the additional information requested m your letter dated November 2, 2004 for the above referenced protect The following revisions have been made to the plans The preliminary plat maps have been updated to show the location of Yelm Creek At the pre-submission meeting for the project, the City indicated that based on the significant distance between the development and Yelm Creek (and the associated wetlands) that a wetland delineation would not be required As such, elevations and/or environmental information between the floodplam elevation and Yelm Creek mchidmg the ordinary high water mark has not been deterTnmed The distance beriveen Yehn Creek acrd the developed area of the site ranges behveen 367 and 438 feet, which is well beyond the 200-foot shoreline ~unsdichon of Yelm Creek The extra 167 to 238 feet beyond the 200-foot shoreline lunsdrehons provides ample room to account for mapping errors from the Thurston County Geodata site on the exact location of Yelm Greek Determtnmg the ordinary high water mask would not add any benefit or substance to the environmental review of the project The preliminary plat maps have been updated to show the 200-foot setback from the Creek and labeled as the shoreline ~unsdiction area The flood zone area is shown separately The preliminary plat maps have been updated to show wells and underground storage tanks within 200 feet of the site Copies of supporting maps from the DOE web site identifying wells and underground storage tanks have also been provided The City well is located approximately 500- to the southeast of the site and was not included on the updated maps I Ib ~ -t y+.~.~ ,P.ypC•L/(n~EC'SriZ Date: `~''~)/-(g_/i Mr Grant Beck January 19, 2005 Page 2 4 The preliminary plat maps have been updated to show dimensions of lots, streets, property borders, etc 5 A conceptual landscape plan for the street trees and stormwater facilities has been provided on sheet 5 of the plan set 6 The Boundary Lme AdJustment, which includes the protect parcel, has been recorded with Thurston County, therefore the legal description remains Parcel B of BLA 04-00-99YL Thank you for reviewing the revised plans We look forward to completing the review process and being scheduled for the public hearing If you have any questions, please call me at (360) 459-3609 Sincerely, iai~. '~,~~.~ Cathie Carlson cc Scott Griffin File o cad\4812\02\cort\011905 resubmutal cover lever doc January 11, 2005 Mr Grant Beck, Dvector City of Yelm Community Development Department P O Box 479 Yelm, WA 98597 Re Assignment of Savings Gnffm Place Subdw~swn Dear Grant ,o-,ad/,~,~.e~ Attached herewith is the cost estimate for the assignment of savings for the C'~„~,~;~ protect I included all of the costs that you md~cated m your a-mail of January 7, 2005 Please feel free to call should you have any questions Sincerely, ~`y'~~® Parametnx, Inc _~~~ Amy M Head, P E Parametnx, Inc 257-4812-001 Griffin Place ENGINEER'S ESTIMATE OF PROBABLE COST FOR EXISTING HOME UTILITY CONNECTION Item # Item Unit Quanta Unrt Price Total Cost CONSTRUCTION COSTS 1 Decommislon Existin Well LS 1 $1,500 00 $1,500 2 Decommislon Exlstln Se tic S stem LS 1 $1,500 00 $1,500 3 Water Service Extension to meter LF 40 $10 00 $400 4 Water Extension from Meter to Main LF 10 $10 00 $100 5 Sewer Service Extension to STEP Tank LF 40 $10 00 $400 6 Sewer Extension from tank to main' LF 45 $20 00 $900 7 STEP Tank and Pum EA 1 $3,000 00 $3,000 CITY FEES 8 Water Connection Fee LS 1 $1,500 00 $1,500 9 Water Meter Fee LS 1 $300 00 $300 10 Sewer Connection Fee LS 1 $5,417 00 $5,417 11 Sewer Ins ection Fee LS 1 $145 00 $145 LATECOMER FEES 12 Water LS 1 $5,85155 $5,852 13 Sewer LS 1 $5,608 46 $5,608 Sub Total $26,622 150% of Sub Total $13,311 Total Assigned Savings $39,933 • Includes cost to patch road for cut to main 1/11/2005 C \Documents and Sedings\Swtt\Local Setlmgs\Temporary Internet Fdes\OLK75E\Cost Estimate 1-07-05 BLA ---T- YELM -- ------------- ----------------------- ------ --------1---- - = "` q! ~ CITY OF I s °I OVJAX 9E53' RECEIPT No. 3 4 b 7 3 ~ z. 36Cd58-6aC3 i ~ p "~ THIRTY NINE THOUSAND NINE HUNDRED THIRTY THREE DOLLARS & 00 CENTS RECEw ED °POM DATE REC NO AMOUNT REF NC SCOTT GRIFFIN 01/18/05 34673 39,933.00 CHECK 3116 935 37TH PLACE E EATTLE, WA 98112 MZSCELLANEOUS RECEIPT GRETCHEN EVELOPER AGREEMENT - GRIFFIN PLACE DEVELOPER AGREEMENT This Agreement is made pursuant to the provisions of Sections 16 20 030 and 16 20 040 of the Yelm Municipal Code for the purposes of bonding m lieu of completion of required improvements and repairs described m the Exhibit A attached hereto and made a part hereof The undersigned does deposit in trust with the City of Yelm $39,933 00 and grants the City the full power and authority to hold and expend the deposited amount for the purpose of completing the required improvements and repairs described in said Agreement not completed by April 18, 2005, pursuant to said agreement It is understood and agreed that the City holds the certificate covering said account m its possession and agrees to hold the sum of $39,933 00 until release or partial release of this Agreement is received from the Community Development Department pursuant to the terms of the attached Exhibit, or demand made by the Community Development Department pursuant to Section 16 20 030 of the Yelm Municipal Code and the provisions of said attached Exhibit DATED this DATE day of January ~, 2005 D ELOPER EXHIBIT A Griffin Place ENGINEER'S ESTIMATE OF PROBABLE COST FOR EXISTING HOME UTILITY CONNECTION Item # Item Umt Quantity Unit Pnce Total Cost CONSTRUCTION COSTS 1 Decommision Existing Well LS 1 $1,500 00 $1,50 2 Decommision Existing Septic System LS 1 $1,500 00 $1,50 3 Water Service Extension to meter LF 40 $10 00 $400 4 Water Extension from Meter to Main LF 10 $10 00 $100 5 Sewer Service Extension to STEP Tank LF 40 $10 00 $400 6 Sewer Extension from tank to main' LF 45 $20 00 $900 7 STEP Tank and Pump EA 1 $3,000 00 $3,000 CITY FEES 8 Water Connection Fee LS 1 $1,50000 $1,50 9 Water Meter Fee LS 1 $300 00 $30 10 Sewer Connection Fee LS 1 $5,417 00 $5,41 11 Sewer Inspection Fee LS 1 $145 00 $14 LATECOMER FEES 12 Water LS 1 $5,85155 $5,852 13 Sewer LS 1 $5,608 46 $5,608 Sub Total $26,62 150% of Sub Total $13,311 Total Assigned Savings $39,933 OFFICE OF THE HEARING EXAMINER CITY OF YELM DECISION ON RECONSIDERATION CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YLRPP-04-0128-YL APPELLANTS Kathryn Dotson 16440 Middle Road SE -1'eim, v`vA 5x597 Freestone DFF Yelm II LLC J Scott Griffin, Jr P O Box 73669 Puyallup, WA 98373 ATTORNEY FOR APPELLANTS William t_ynn Attorney at Law P O Box 1157 Tacoma, WA 98401 The following exhibits were submitted and made a part of the record as follows: EXHIBIT " 2" - Request for Reconsideration dated November 8, 2004 EXHIBIT " 3" - Memorandum from Examiner circulating Request for Reconsideration dated November 16, 2004 EXHIBIT "4" - Response from City dated November 19, 2004 ~•• •~•+~T ~~-~• nE .~„ t a:~l ,.., ~, -5-.~'~.+ [larc!nh~r R; ?nO4 By Report and Deasion dated October 27, 2004, the Examiner granted the appeal of Kathryn Dotson and Freestone DFF Yelm II LLC of the City's denial of a boundary line adjustment (BLA) request On November 8, 2004, Cathie Carlson, Parametnx, timely filed a Request for Reconsideration which the Examiner circulated to parties of record on November 16, 2004 On November 19, 2004, the Examiner received a response to the reconsideration request from Grant Beck, Director, Community Development Department The Examiner also received a letter from William T Lynn, attorney at law, dated December 6, 2004 Based upon the reconsideration request and responses thereto, the following additional -z- ~p Date: _._,tp? ~.~ J-~---- findings are hereby made as follows Condition No 1 of the decision granting the appeal reads The appellant shall connect the newly created, smaller lot to City sewer and water The appellant asserts in its reconsideration request that it cannot comply with Condition No 1 due to the property owner's refusal to connect to City water and sewer until completion of the purchase of her property The applicant asserts that it cannot complete the purchase of the property until the BLA is approved and recorded The bppeliant therefore proposes to post a ba d rr~th the City ;n an amount eq~ ~~~ fo 150% of the total cost of-the connections The appellant desires a maximum of 90 days from the date of recording to complete the connections In his letter of December 6, 2004, Mr William Lynn advises that the improvements will meet Health Department requirements and offered an assignment of cash as opposed to a bond 2 It appears that Health Department regulations control the requrements for and timing of connection to sanitary sewers and public water Mr Lynn notes that the project would meet Health Department requirements by connecting only to sewers, but the appellant agreed to connect to both sewer and water Mr Beck notes that the City accepts financial guarantees only when circumstances outside the control of the developer prevent the completion of a project, and when the work remaining is minor and would not permit the development from basic functionality when not completed immediately 3 While Mr Beck correctly asserts that the circumstances of the purchase of the lot are not beyond the appellant's control, at the same time the appellant has proposed an assignment of funds for 150% of the cost of connection and a maximum of 90 day penod to complete the work It also appears that the applicant has agreed to connect the smaller lot :o :va*.e~ ~vh~ch NeYR~ Departmen± regulations would not require Wh4e the City's position is technically in accordance with its policies, the only issue prohibding compliance is the timing of the improvement (subsequent to the BLA) Such timing constraint does not affect the substance of the original decision nor does it create a risk for the City Therefore, the request for reconsideration should be granted and Condition No 1 modified as follows The appellant shall connect the newly created, smaller lot to City sewer and water, provided, however, that the appellant may make such connections within 90 days of the recording of the BLA Provided, further, that the appellant shall post an assignment of cash -2- ~i in an amount of 150% of the total amount of the estimated cost of the improvements Failure of the appellant to post the assignment or complete the protect as regwred will automatically render the BLA null and void DECISION The request for reconsideration is hereby granted as set forth above ORDERED this 7`h day of January, 2005 .CAUSSEAUX,JR. Heanng Examiner TRANSMITTED this 7`h day of January, 2005, to the following APPELLANTS Kathryn Dotson 16440 Middle Road SE Yelm, WA 98597 Freestone DFF Yelm II LLC J Scott Gnffin, Jr P O Box 73669 Puyallup, WA 98373 ATTORNEY FOR APPELLANTS William Lynn Attorney at Law P O Box 1157 TaCJlna, ~^dA 98;01 OTHERS: Parametnx Attn Cathie Carlson 8830 Talton Lane NE Lacey, WA 98516 City of Yelm Attn Tami Merriman/Grant Beck 105 Yelm Avenue P O Box 479 Yelm, Washington 98597 -3- CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL and APP-04-0128-YL NOTICE APPEAL OF EXAMINER'S DECISION The final decision by the Examiner may be appealed to the city council, by any aggrieved person or agency of record, oral or wntten that disagrees with the dec~sron of the hearing examiner, except threshold determinations (YMC 15 49.160) in accordance with Section 2 26 150 of the Yelm Municipal Code (YMC) NOTE: In an effort to avoid confusion at the time of filing a request for reconsideration, please attach this page to the request for reconsideration -4- LAW OFFICES ~~ J GORDON. THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP TACOMA OFFICE SEATTLE OFFICE 1201 PACIFIC AVENUE SUITE 2200 ONE UNION SQUARE POST OFFICE BO% II51 600 UNIVERSITY SUITE 2100 TACOMA WASHINGTON 96401-1151 SEATTLE WASHINGTON 98101-4185 12531 620-6500 1206) 676-7500 FACSIMILE (2531 620-6565 FACSIMILE (2061 616-1515 REPLY TO TACOMA OFFICE ~~ WILLIAMT LYNN ~' ' ATTORNEY AT LAW 'I ~ O[` ' DIRECT (253) 620 6416 F~ ~ .' (2061 616-6416 D E MAIL yllOw®gth-19W COfll p ~ J J , /~j,~ December 6, 2004 Stephen K Causseaux,Jr Heanngs Examiner P O Box 5767 Tacoma, WA 98405 RE Request for Reconsideration - Yelm Deaz Mr Causseaux This rs a response to the November 19`h, 2004 letter from Mr Beck which we received from Parametnx on December 3, 2004 The situation that prevents the appellant developer from making the tmprovements rs a true "Catch 22" He cannot buy the property until rt rs a lawful lot which, according to the dectston, cannot happen until water and sewer aze connected The property owner, m tum, will not allow these improvements to be made pnor to the sale of the property We believe this rs a situation outside of the developer's control We also note that the Health Department requirements would be met by the connection of the property to samtazy sewer only and even without public water In an effort appease the Crty, the appellant offered to connect to both sewer and water, and the Heanng Examiner incorporated those as conditions of approval It should be noted, however, that that condition actually goes beyond what is required to make the site a lawful building site Finally, we understand that the City has a preference for an assignment of cash as opposed to a bond Our cheat ~s willing to assign cash m order to obtain approval of the boundary tine adjustment We believe this approach protects both the City and the applicant Very tmly yours, ^, "~~~,~~( (e-~wt I William T Lynn WTL.gam cc Scott Gnffin Cathte Carlson Grant Beck [1292319 vl] ~QG~ ~`~`~' ADD Date: _/.~.s-/ate- WA ST 43 21C 060, Chapter supplementary--Conditioning or denial of governmental action Page 1 *3b021 WEST'S REVISED CODE OF WASHINGTON UNANNOTATED TITLE 43. STATE GOVERNMENT--EXECUTIVE CHAPTER 43.21C. STATE ENVIRONMENTAL POLICY Current with a1120041egtslatton 43.21C.060. Chapter supplementary-- Conditioning or denial of governmental action The policies and goals set forth m this chapter aze supplementary to those set forth m existing authorizations of all branches of government of this state, including state agencies, municipal and public corporations, and counties Any governmental action may be conditioned or denied pursuant to this chapter PROVIDED, That such conditions or denials shall be based upon policies identified by the appropriate governmental authority and incorporated into regulations, plans, or codes which are formally designated by the agency (or approprate legislative body, m the case of local government) as possible bases for the exercise of authority pursuant to this chapter Such designation shall occur at the time spemfied by RCW 43 21C 120 Such action may be conditioned only to tnitigate specific adverse environmental impacts which aze identified m the environmental documents prepared under this chapter These conditions shall be stated m writing by the decisionmaker Mitigation measures shall be reasonable and capable of being accomplished In order to deny a proposal under this chapter, an agency must find that (1) The proposal would result m significant adverse impacts identified m a final or supplemental environmental impact statement prepared under this chapter, and (2) reasonable mitigation measures are insufficient to mitigate the identified impact Except for permits and variances issued pursuant to chapter 90 58 RCW, when such a governmental action, not requiririg a legislative demsion, is conditioned or denied by a nonelected official of a local governmental agency, the decision shall be appealable to the legislative authority of the acting local governmental agency unless that legislative authority formally eliminates such appeals Such appeals shall be in accordance with procedures established for such appeals by the legislative authority of the acting local governmental agency CREDIT(S) [1983 c 117 ,¢ 3, 1977 ex s c 278 ¢ 2, 197! ex s c 109 § 6J Current with all 2004 legislation ~~~~ ll`¢3lS® Date: ____ y ~ ~"~ © 2005 W est„ a Thomson business No claun to anginal U S Govt works ~~ !~ , F , ® • 750 P 2d 651, 50 Wn App 723, Unlirritted v Kitsap County, (Wash App Drv 2 1988) *651 750 P 2d 651 50 Wn App 723 Court of Appeals of Washington, Division 2 UNLIMITED, a co-ownership consisting of the following mdmduals: Willfred $igott and Martha Btgott, husband and wife; Gary C. Warner and Kendra L. Warner, husband and wife, et al., Appellants, v. KITSAP COUNTY, a Washington municipal corporation; Kenneth Berg and Joan Berg, husband and wife; Shirley Carlson and John Doe Carlson, husband and wife, and Lloyd Berg and Jane Doe Berg, husband and wife, Respondents. No. 11308-2-II. March 4, 1988 Developers brought action challenging county's exaction of two property interests as condthon for issuance of planned unit development pemut The Superior Court, Pierce County, William L Brown, Jr , J , disrrussed actwn, and developers appealed The Court of Appeals, Worswtck, J, held that (1) county's exaction of commercial access easement to commerctally land-locked parcel as condthon to developer's planned unit development was invalid, and (2) requirement that developers dedicate step of property along southern pomon of its property for further extension of road as condhon for issuance of planned tout development penmt was invalid Reversed West Headno[es [i] Eminent Domain C^~ 2(1 2) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Talung, Police and Other Powers Distinguished 148k2(1) hi General, Interference with Property Rights 148k2(1 2) Relating to Zoning, Platuung, or Land Use Page 1 Property interest can be exacted without compensation only upon proper exercise of government police power, such power is properly exercised in zoning simahons where problem to be remedied by exaction arises from development under consideration, and exaction is reasonable and for legitttnate public purpose [2] Zoning and Planiiing f~382 6 414 ---- 414VIII Perrxnts, Certificates and Approvals 414VIII(A) In General 414k382 1 Maps, Plats, or Plans, Conditions and Agreements 414k382 6 Other Condmons or Agreements (Formerly 414k382 1) County's exaction of commercial access easement to commercially land-locked parcel as condition to developer's planned unit development was invalid, there was no expectation that owners of land-locked parcel would develop property at same time as planned unit development [3] Zoning and Planning 0382 2 414 ---- 414VIII Perttiits, Certificates and Approvals 414VIII(A) In General 414k382 1 Maps, Plats, or Plans, Conditions and Agreements 414k382 2 Streets, Improvements, and Utilities County's requirement that developers dedicate strip of property along southem portion of its property for further extension of road as condition for issuance of planned tout development pemut was invalid, absent showing that development would make road extension necessary *652 [50 Wn.App. 724] Joel H Paget, Craig E Schuman, Ryan, Swanson & Cleveland, Seattle, for appellants Reinhold P Schuetz, Deputy Pros Atty, Port Orchard, for Kitsap County John F Mitchell, Anna M Laurie, Sanchez, Paulson, Mitchell & Laurie, Bremerton, for Berg & Carlson WORSWICK, Judge © 2004 West, a Thomson business No claim to original U S Govt works t 750 P 2d 651, 50 Wn App 723~luruted v Kitsap County, (Wash App Drv 2®8) This litigation azose out of the exaction by Knsap County, without compensation, of two property interests as conditions for its issuance of a planned unit development perms[ The owners of the proposed development, who style themselves as "Unlumted," challenged these exactions in Supenor Court, and now appeal that court's disrriissal by sutiimary Iudgment of then petition for a writ of certioran and their related complaint for declaratory relief and damages We reverse, holding both exactions invalid Unluruted owns a 1 1/2-acre parcel of land immediately northwest of the Clear Creek Road/ Randall Way intersection in Silverdale This property is accessible from both Clear Creek Road and Randall Way The Bergs and Carlsons own an 8 5-acre parcel of property abutting Unlmuted's northern boundary, it is accessible only from Clear Creek Road and is now zoned only for residential use In 1972, the State condemned 2 acres of the Berg/Carlson property, together with general access nghts to Clear Creek Road, leaving only a 14-foot access to serve existing homes Therefore, the Berg/Carlson property is without any access of the kind that would be necessary for commercial development In 1977, Krtsap County adopted a comprehensive land use plan that called ultmiately for the extension of Randall Way To implement the plan, the County in early 1985 condemned a slap of property for the extension along Unlumted's southern (Randall Way) bomidary At the same tune, the County decided to curve Randall Way to the [50 WaApp. 725] south rather than extending rt straight as called for by the comprehensive plan, so the condemned slap ran only from the intersection to the curve Later m 1985, Unhrinted subnutted an apphcahon for a rezone and a planned unit development, intending to cons[mct a convenience store on the eastern half of its property Still later in 1985, the County informed Unlunited that rt now planned ultimately to extend Randall Way farther west, suggesting, however, that it did not intend [o condemn the necessary property AC the heanng examiner's hearing on Unlmnted's application, a Berg/Cazlson representative requested that the Berg/Carlson property be given a commercial access to Randall Way across Unluruted's property as a conddion for approval *653 The County's desire to obtain more of Unlirxuted's property for the western extension of Randall Way was also made known to the heanng examiner The examinee recommended Page 2 approval of Unlinuted's apphcahon, but did not include either exaction as a condmon The Berg/Carlson interests appealed the heanng examiner's decision to the Kttsap County Board of Coimrussioners At the Board's public heanng, they argued that commercial access to then property was necessary to allow cuculahon of increased traffic anticipated from the future commercial development of then property and surrounding properties The County Engineer and Public Works Departrnent also recommended commercia] access from Randall Way to the Berg/Carlson property to prevent serous traffic flow problems based on anticipated future development of the area The Board approved Unlirmted's apphcahon subject to two addttional conditions (1) that Unlunited dedicate a 50-foot public nght-of--way for commercial access to Randall Way from the Berg/ Carlson property, and (2) that Unlumted dedicate a strip of property along the southem portion of its property for the future extension of Randall Way along the entue lengili of Unlunited's property to the west (see sketch) Unlirtuted would not be compensated for X50 Wn.App. 727] either dedication The necessary short plat requued by the development was approved and the planned unit development pemut was issued after Unlirm[ed agreed to these conditions under protest TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE The arbihary and capacious test applies to out review, and the precise issue before us is whether the Kitsap County Corruriissioners were arbihary and capacious in exacting these conditions Miller v Port Angeles, 38 Wash App 904, 691 P2d 224, review denied, 103 Wash 2d 1024 (1984), Johnson v Mt Vernon, 37 Wash App 214, 679 P 2d 405 (1984), Murphy v Seattle, 32 Wash App 386, 647 P 2d 540 (1982) We hold that they were [1] A property interest can be exacted without compensation only upon a proper exercise of government police power Such power is properly exercised m zonntg situations where the problem to be remedied by the exaction arses from the development under consideration, and the exaction is reasonable and for a legitimate public purpose Unless these requirements are met, the exaction is an unconsti[uhonal taking Nollan v Ca&forma Coastal Comm'n, 493 U S ----, 107 S Ct 3141, 97 L Ed 2d © 2004 West, a Thomson business No claim to ongutal U S Gov[ works ~ 750 P 2d 651, 50 Wn App 723~Unlumted v Kitsap County, (Wash App Drv 2®8) 677 (1987), Miller v Port Angeles, supra, Gerla v Tacoma, 12 Wash App 883, 533 P 2d 416,revtew denied, 85 Wash 2d 1011 (1975) Cf RCW 82 02 020, RCW 58 17 110, Kenart & Assoc v Skagtt Cy, 37 Wash App 295, 680 P 2d 439,revtew denied, 101 Wash 2d 1021 (1984) [2] The requirement of a commercial access to serve the Berg/Carlson property does not even remotely satisfy these requirements There is no expectation that the Berg/Carlson property is to be developed at the same time as Unlmuted's development or, for that matter, any tune soon Even if there was, the exaction serves no *654. public mterest, let alone a reasonable one The public has no mterest m the commercial development of the Berg/Carlson property, and i[ is manifestly unreasonable for Kitsap County to exact a commercial access easement to this commercially land-locked parcel as a condition [o Unlmnted's planned unit development Page 3 [3] [50 Wn.App. 728] There is nothmg m the record before us to show that Unlunited's development will make extension of Randall Way necessary To the contrary, the record discloses that the County has no munediate plans for an extension Rather, rt m[ends to hold the exacted property until some undefined future tune when Randall Way can be extended to connect oath other, as yet unbuilt, roads This uncompensated exaction, too, is mvahd Miller v Port Angeles, supra See also J & B Dev Co v Ktng Cy, 29 Wash App 942, 949, 631 P 2d 1002, (1981), affil, 100 Wash 2d 299, 669 P 2d 468 (1983) We fmd without meat all contentions other than those discussed m this opuuon Reversed REED, C J ,and ALEXANDER, J ,concur © 2004 West, a Thomson busmess No claicti to ongmal U S Govt works .i ~. • 49 P 3d 860, 146 Wn 2d 685, Benchmark Land Co v City of Battle Ground, (Wash 2002) *860 49 P 3d 860 146 Wn 2d 685 Supreme Court of Washington, En Banc The BENCHMARK LAND COMPANY, an Oregon lirriited liability company, Respondent, v. CITY OF BATTLE GROUND, Washington, a municipal corporation of the State of Washington, Petitioner No. 70659-0. July 11, 2002 City required developer to make improvements to street adJmmng development as conditron to issuance of development pertrttt Developer brought action tinder Land Use Pehhon Act (LUPA) and sought damages The Superior Court, Clark County, Barbara Johnson, J , did not resolve damages claims, but entered Judgment for developer on LUPA claim On remand, the Court of Appeals, 94 Wash App 537, 972 P 2d 944, affirmed The Supreme Court granted city's pehhon for revtew and remanded The Court of Appeals, 103 Wash App 721, 14 P 3d 172, adhered to its ougmal dectston City filed second pehhon for revtew The Supreme Court, Ireland, J , accepted revtew and held that evidence was insufficient to support city's decision requiring developer to make improvements [o street Affirmed on other grounds Sanders, J , filed an opinion concumng m the result West Headnotes [1] Zoning and Planning f°;- 561 414 --- 414X Judicial Revtew or Relief 414X(A) In General 414k561 Review m General Judicial review of land use decisions is governed by Land Use Petition Act (LUPA) West's RCWA 36 70C 130 [2] Zoning and Planning Ga564 414 ---- 414X Judtctal Review or Relief 414X(A)In General 414k563 Nature and Form of Remedy 414k564 Appeal Page I By petitioning under Land Use Petition Act (LUPA), a party seeks Judtcral review by asking the superior court to exercise appellate Jurisdiction West's RCWA 36 70C 130 [3] Adinintstrahve Law and Procedure f~683 15A ---- 15AV Judtctal Revtew of Adixnnistrahve Decisions 15AV(A) In General 15Ak681 Fttrther Revtew 15Ak683 Scope In reviewing an admuustrahve decision, the Supreme Court stands m the same position as the superior court [4] Conshtuhonal Law 046(1) 92 ---- 92II Construction, Operation, and Enforcement of Constitutional Provisions 92k44 Detemunation of Conshtuhonal Questions 92k46 Necessity of Detemtmahon 92k46(1) In General Supreme Court will not reach a conshmhonal issue if it can decide a case on other than conshtuhonai grounds [5] Adnumstrahve Law and Procedure 0791 15A ---- 15AV Judtctal Revtew of Administrative Decisions 15AV(E) Particular Questtons, Review of 15Ak784 Fact Questions 15Ak791 Substantial Evidence "Substantial evidence" is a sufficient quantity of evidence to persuade afair-minded person of the troth or correctness of the order [6] Adrrnrnstrahve Law and Procedure f^:~-'749 15A ---- ISAV Judicial Review of Admtmstrahve © 2005 Thomson/West No claim to original U S Govt works 49 P 3d 860, 146 Wn 2d 685, Benchmark Land Co v City of Battle Ground, (Wash 2002) Page 2 Decistons 15AV(D) Scope of Review in General Douglas Kendall, Washington, DC, Christine 15Ak749 Presumptions Gregoire, Atty Gen ,Roger Wynne, Asst Atty Gen , Seattle, arriicus curiae on behalf of Assn of Wash [Sae headnote text below] Cities [6] Appeal and Ertor G~900 30 ---- 30XVIReview 30XVI(G) Presumptions 30k900 Nature and Extentin General Supreme Court views uiferences in a light most favorable to the party that prevailed in the highest forum exercising fact-finding authority [7] Zoning and Planrung x382 2 414 ---- 414VIII Permits, Certificates and Approvals 414 V III(A) In General 414k382 1 Maps, Plats, or Plans, Conditions and Agreements 414k382 2 Streets, Improvements, and Utilities Evidence was insufficient to support city's decision requiring developer to make unprovements to street adJommg development as condition to issuance of development permit, street did not meet city roadway standards even before the development was proposed, and traffic studies found that the subdivision would have little to no unpact on safety and operations on the sechan of roadway developer was requued to improve West's RCWA 36 70C 130(1)(c) *861 [146 Wn.2d 687] William D Kamerier, Olympia, for Petitioner Leanne M Bremer, Vancouver, Ronald Franz, Seattle, for Respondent Bob Sterbank, Federal Way, amicus curiae on behalf of Wash Assn of Wash Attys Brent Boger, Vancouver, Timothy Hams, Robin Rivett, Russell Brooks, Bellewe, amicus curiae on behalf of Pacific Legal Foundation Greg Overstreet, Olympia, John Groen, Bellewe, Jodi Slavrk, Olympia, amicus curiae on behalf on Bmlding Industry Assn of Wash Pamela Loginsky, Olympia, amicus curiae on behalf of W ash Assn of Prosecuting Attys IRELAND, J The City of Battle Ground sought revtew of the Court of Appeals' decision that the Ctty unconshtuhonally took property belonging to Benchmark Land Company [146 Wn 2d 688] by requumg Benchmark to make unprovements to an existing street bordering its proposed subdivision as a condition to approving its plat apphcahon Fmdmg that the City's condition for subdivision approval does not satisfy the substantial evidence standard of chapter 36 70C RCW, we hold that the City's condition is invalid as applied to Benchmark Given the holding, H is unnecessary to reach the constitutional issue FACTS In November 1994, Benchmark Land Company filed a preliminary plat apphcahon with the City of Battle Ground for a subdivision known as Melrose Park Benchmark sought to develop a 20 25-acre site in the city into 56 single-family, residential lots Melrose Park is bordered on the east by North Parkway Avenue and on the south by Onsdorff Boulevard Benchmark imhally proposed to make unprovements to both North Parkway and Onsdorff, and its original plat map included entrances to Melrose Park from both streets However, before the planning comrmssion considered Benchmark's application, the city engineer suggested that the outlet to North Parkway be elunuiated Benchmark reconfigured its plat map accordingly, but did not remove the proposed unprovements to North Parkway from the revised map *862 The plannuig commission considered the proposed plat of Melrose Park in March and April 1995 At its April meeting, the commission voted to recommend approval to the crty council When the city council considered the matter on May 15, 1995, the council voted to approve the preliniinary plat Neither the planniig commission nor the crty council entered written findings reflecting its decision © 2005 Thomson/West No clatm to original U S Govt works 49 P 3d 860, 146 Wn 2d 685, Benchmark Land Co v City of Battle Ground, (Wash 2002) Following the city council's approval, Benchmazk began development actrvrties, including work on the street Improvements to North Parkway However, Benchmark discovered that the Improvements would be more costly than anticipated In August 1995, Benchmark rescinded its offer to make the improvements [146 Wn 2d 689[ Nonetheless, m January 1996, the city council adopted written findings of fact on its previous decision, approving the Melrose Park subdivision subJect to "constructton of Parkway Avenue and Onsdortf Boulevazd, including half- width improvements as proposed by the applicant [Benchmark] " Clerk's Papers (CP) at 178 Thus, the City required Benchmark to improve North Parkway, which borders but has no direct access to Melrose Park The City maintains the improvements are required by ordinance (FNl) At issue is a code provision requimg proposed subdivisions, as a condition of plat approval, to construct half-width road inprovements "to that portion of an access street which abuts the parcel being developed " Former Battle Ground Mumcipal Code (BGMC) 12 16 180 "Access road" is defined as "a public street providing vehicular access to the boundary of a parcel of real property being proposed for development " Former BGMC 12 16 020(A) PROCEDURAL HISTORY Benchmark brought an acnon in superior court under the Land Use Petition Act (LUPA), chapter 36 70C RCW, challenging die City's condition of plat approval that required Benchmark to make unprovements to North Pazkway The superior court remanded the matter to the Crty "for consideranon of whether the traffic impacts of the proposed prelixnniary plat of Melrose Pazk support a requirement of half street improvements to North Parkway Avenue " CP at 377-78 On remand, both the City and Benchmark conducted traffic studies, which were presented to the planning corrunission The results of the traffic studies are sutmnanzed below [146 Wn.2d 690] The City hued Lancaster Engineering to study traffic impacts of the proposed subdrvtsion Lancaster's report noted that North Parkway has one travel lane m each direction "with no curbs, paved shoulders, sidewalks, or bike paths " Page 3 CP at 488 The report found that "with the additton of site tttps from the Melrose Pazk Subdivision, there will be adequate capacity at the mtersectron of Parkway and Onsdorff " CP at 499 Lancaster found that the extshng street was substandard "Parkway Avenue does not meet current safety and efficiency standards for width and lane configuration as specified by the Battle Ground Transportation Plan " Id Lancaster concluded as follows "Improving the roadway to meet current standards would mitigate the deficiency that would result from additronal vehicular, bicycle, and pedestrian traffic due to the subdivision " Id (emphasis added) Benchmark hued The TRANSPO Group, Inc to study the traffic impacts caused by Melrose Pazk in examtnnig the existing streets m the vicuuty of the subdivision, TRANSPO noted that "[t]he 700-foot sectron of NE 132nd Avenue [North Parkway] which borders the site is consistent with other sections of NE 132nd Avenue from Mam Street to NE 142nd Avenue " CP at 505 TRANSPO's analysis detennuied that the traffic volume increase on North Parkway due to the proposed development would be approximately 14 percent TRANSPO concluded as follows "An increase of this magmmde *863 would be virtually indistmgmshable to the average motorist and has no [e]ffect on overall intersection and roadway level of service " CP at 511 TRANSPO also stated that the protect would have "little to no impact on safety and operations" on North Parkway Id TRANSPO did not find off-site improvements to be necessary as a result of Melrose Park Nonetheless, the commission de[emiined that the development's impacts on North Parkway Justified requiring Benchmark [o make the street unprovements The city council agreed at its February 1997 open meeting, and the council issued the following written decision [146 Wn.2d 691] 1 The Crry of Battle Ground shall not require additional dedication of land from the applicant to widen North Parkway Avenue north of Onsdorff Boulevard [ (FN2)] 2 Taking into consideration all of the impacts on North Parkway, the respective conclusions of the two traffic engineers and the facts subrmtted to the Planning Coinnussron and reflected in the record and in the Findings of Fact of the Planning Comtntssion, and further noted by die members of the Crty Council, it is reasonable and proportional to require the applicant to make standard half-street improvements to North ~ 2005 Thomson/West No claun to original U S Govt works 49 P 3d 860, 146 Wn 2d 685, Benchmark Land Co v City of Battle Ground, (Wash 2002) Parkway Avenue only as it fronts Mehose Park Subdivision, consisting of pavement, curbs, gutter, bike lane, sidewalk, and stonnwater drainage facthty, together with associated striping and stgnage CP at 582 (emphasis added) Benchmark again pursued }edictal review and sought damages under federal and state law Pursuant to CR 54(b), the court allowed Benchmark to proceed with its damages claims, but entered final }udgment on rts LUPA claim In its order following remand, the court ordered, ad}edged, and decreed as follows [T]hat the City has not brought forth substantial evidence of an "essential nexus" between possible Impacts which tray be caused by the Melrose Park Subdrvtsion and half-street improvements to North Parkway Avenue, and [T]hat the Crty has not brought forth substantial evidence of "rough proportionality" between possible impacts which may be caused by the Melrose Park Subdivision and half-sneer improvements to North Parkway Avenue, and [T]hat the City's decision of February 6, 1997 that Benchmark be required to,rnter aka, constmct half-street unprovements to North Parkway Avenue as a condition of approval of [146 Wn.2d 692] the Melrose Park Subdivision is not supported by substanhalevtdence CP at 655-56 The Ctty appealed The Court of Appeals applied a Nollan/Dolan analysts (FN3) "where the City requires the developer a5 a condition of approval to incur substantial costs inrproving an ad}otmng street " Benchmark Land Co v Ctty of Battle Ground, 94 Wash App 537, 548, 972 P 2d 944 (1999) The corer held that the Ctty failed to show "an impact and a solution roughly proportional to the impact " Id at 552, 972 P 2d 944 Accordingly, the court affirmed the superior court's ruling that the conditron was mvaltd This Court at 138 Wash 2d 1008, 989 P 2d 1140 (1999) granted the City's pehhon for review and remanded to the Court of Appeals for reconsideration in fight of Crty of Monterey v Del Monte Dunes at Monterey, Ltd, 526 U S 687, ] 19 S Ct 1624, 143 L Ed 2d 882 (1999) On remand, the Court of Appeals adhered to its original decision, stating as follows Page 4 *864 Although Del Monte Dunes defines "exactions" as "dectstons condmonntg approval of development on the dedication of property," we emphasize the suntlanty of exacting land and money If the government in Nollan and Dolan had exacted money rather than land and then purchased land to solve the problems, the same questions would arse was the money exacted for and used to solve a problem connected to the proposed developments (Nollan) And was [he amount of money exacted roughly proporhonalto the development's impact on the problems (Dolan Surely tf the issues for an exaction of money are the same as for an exaction of land, the test must be the same a showing of "nexus" and "proportionality " Benchmark, 103 Wash App at 727, 14 P 3d 172 [146 Wn.2d 693] The City filed rts second pehhon for review one day late Tlus Court granted ds motion for extension of tune to file the petition and accepted review at 143 Wash 2d 1018 (2001) Amict curiae memoranda m support of the City were submitted by the Association of Washington Cities and the Washington State Association of Municipal Attorneys jointly) and the Washington Association of Prosecuting Attorneys Aimci curiae memoranda in support of Benchmark were submitted by the Building Industry of Washington and Pacific Legal Foundation ANALYSIS Standard of Review [1][2][3] Judtcral review of land use dectstons u governed by the LUPA, chapter 36 70C RCW Girton v Crty ojSeattle, 97 Wash App 360, 362, 983 P 2d 1135 (1999) "By petitioning tinder LUPA, a party seeks }edictal review by asking the superior court [o exercise appellate }urtsdtctron " Sunderland Family Treatment Servs v Crty of Pasco, 107 Wash App 109, 117, 26 P 3d 955 (2001) When reviewing the underlying administrative dectston, this Court "stands m the same position as the superior court " Wenatchee Sportsmen Assn v Chelan County, 141 Wash 2d 169, 176, 4 P 3d 123 (2000) RCW 36 70C 130 Under RCW 36 70C 130, an appellate court may grant relief from a land use dectston if the petitioner © 2005 Thotnson/West No claun to original U S Govt works 49 P 3d 860, 146 Wn 2d 685, Benchmark Land Co v City of Battle Ground, (Wash 2002) tames its burden of establishing at least one of the following six standards (a) The body or officer that made the land use dectston engaged to unlawful procedure or failed to follow a prescribed process, unless the enor was harmless, (b) The land use demsron rs an erroneous interpretation of the law, afrer allowing for such deference as is due the construction of a law by a local Iunsdrehon wrth expertise, [146 Wn.2d 694] c) The land use dectston is not supported by evidence that is substantial when viewed m light of the whole record before the court, (d) The land use decision is a clearly erroneous apphcahon of the law to the facts, (e) The land use dectston is outside the authority or lmtsdichon of the body or officer making the dectston, or (~ The land use decision violates the constitutional rights of the party seeking relief RCW 36 70C 130(1) [4] The Crty asserts errors by the Court of Appeals as to subsechotts (c) and (f) However, rt is a fundamental principle that this Court will not reach a conshmhonal issue if tt can decide a case on other than constitutional grounds Senear v Daily Journal- Am, 97 Wash 2d 148, 152, 641 P 2d 1180 (1982) The instant case can be fully resolved under subsection (c) of the statute Therefore, we do not reach the constitutional Issue under subsection (f) SubstankadEindence [5] Issues raised under subsection (c) challenge the sufficiency of the evrdence "[S]ubstantial evrdence is 'a sufficient quantity of evrdence to persuade afan- mmded person of the truth or conecmess of the order' Cuy of Redmond v Cent Puget Sound Growth Mgmt Hearings Bd, 136 *865 Wash 2d 38, 46, 4S4 P 2d 1091 (1998) To view preceding link please click here (quoting Callecod v Wash State Patrol, 84 Wash App 663, 673, 929 P 2d 510 (1997) [6] "We view Inferences in a fight most favorable to the party that prevailed in the highest forum Page 5 exercising fact-finding authority " Schofield v Spokane County, 96 Wash App 581, 588, 980 P 2d 277 (1999) In this case, we view the record and inferences m a fight most favorable to the City because the Crty prevailed before the city council [7] As a condition of development approval, the Crty required Benchmark to incur the costs of improving streets bordering Melrose Park The Ctty argues that tts requirement is supported by substantial evidence We disagree [146 Wn.2d 695] North Parkway did not meet Ctty roadway standards even before the development was proposed The required expenditure for street ~jt tmprovements was no[ directly related m the traffic generated by the development See Miller v City of Port Angeles, 38 Wash App 904, 910, 691 P 2d 229 (1984) Rather, the required improvements would relieve a preexisting deficiency In addrhon, the traffic studies found that the subdivision would have little to no impact on safety and operations on the section of roadway Benchmark was required to improve In its traffic report, Lancaster stated that Melrose Park "will probably not result in the generation of any school walking or biking trips on Parkway north of Onsdorff because the schools are located to the south and west of the subdivision " CP at 498 TRANSPO's traffic impact analysts notes that "[n]ew developments along NE 132nd Avenue [Parkway Avenue] have not been provided with direct driveway access to the roadway Thus no tmprovements have been implemented along this section of roadway from Mam Street [o NE 142nd Avenue to accommodate these developments " CP at 505 "The section of site frontage along NE 132nd Avenue is not inconsistent with other sections of NE 132nd Avenue or other area roadways " CP a[ 511 The increase in traffic volumes on North Parkway due to Melrose Park "are far less than the typical day to day fluctuation of traffic and would be virtually indtshngutshable to the average driver in the area" CP at 507 "There is no rnfonnahon indicating that there are any unusual safety condmons near the proposed protect site that would contribute to accident occunence " CP at 510 TRANSPO concluded that the intersection of ©2005 Thomson/West No clam to original U S Govt works 49 P 3d 860, 146 Wn 2d 685, Benchmark Land Co v City of Battle Ground, (Wash 2002) Onsdorff and Parkway is "operating at acceptable levels of service and will continue to do so with development of the proposed protect " CP at 511 [146 Wn 2d 696] SUMMARY Based on the record before us, we detemine that there is not substantial evidence, as required by RCW 36 70C 130(1)(c), to support the City's decision to require Benchmazk Co make improvements to North Pazkway as a condition of development approval Having found that the issue can be resolved on a nonconshtuhonal basis, we affirm the Court of Appeals' decision on alternate grounds and affirm the superior court's luting that the City's condition is invalid under the statute ALEXANDER, C J , SMITH, MADSEN, BRIDGE, CHAMBERS, and OWENS, JJ ,concur JOLINSON, J , concurs in result only SANDERS, J (concurring) I agree with the maJonty that conditioning plat approval on offsne road improvements under these cucumstances is unlawful However, I write separately to articulate why I think that is the conect result The inaJonty rests its conclusion on the c1alm that conditioning plat approval on offsne road Improvements is not supported by substantial evidence, a ground recognized for reversal under RCW 36 70C 130(1)(c), the Land Use Pehhon Act The trial court articulated the evidentiary deficiency as the failure of the munimpahty to proffer substantial evidence of an "essential nexus" between the possible Impacts which may be caused by the *866 subdrvtston and the half-street improvements to North Parkway Avenue, as well as the failure to demonstrate a "rough proportionality" between the impacts and the exaction Malonty at 863 I agree this is the evidentiary deficiency However, I [brit] n is also unportant to note exactly why rt is the legal burden of the city to prove this The Court of Appeals opiuon m this proceeding articulated the view that the requirement stems from the Fifth Amendment to the [146 Wn.2d 697] Untted States Constitution as construed m Nollan v California Coastal Commission, 483 U S 825, 834, 107 S Ct 3141, 97 L Ed 2d 677 (1987) and Dolan v City of Tigard, 512 U S 374, 386, 114 S Ct 2309, Page 6 129 LEd2d 304 (1994) (F1V1) Although the maJonry opinion does not find rt necessary to reach the constitutional Issue, choosing Instead to dispose of the case on narrower state law grounds, I think rt Imght be helpful to more precisely articulate exactly what those narrower state law grounds ate Specifically, I hunk RCW 82 02 020 unposes that requirement In relevant part this statute provides (NJo county, city, town, or other municipal corporation shall Impose any tax, fee, or charge, eether direct or tndrrect, on the development, subdivision, classification, or reclassification of land This section does not prohibit voluntary agreements with counties, cities, towns, or other municipal cotporahons that allow a payment in lieu of a dedication of land or to mitigate a direct Impact that has been tdentfed as a consequence of a proposed development, subdrvtston, or plat No county, city, town, or other municipal corporation shall require any payment as part of such a voluntary agreement which the county, city, town, or other municipal corporation cannot establish Is reasonably necessary as a direct result of the proposed development or plat RCW 82 02 020 (emphasis added) The threshold question under this statute Is therefore whether the required construction of offsne street Improvements is a "tax, fee, or charge, either direct or indirect " We have previously recognized that a tax may be in cash or "kind " San Telmo Assocs v Ctty of Seattle, 108 Wash 2d 20, 24, 735 P 2d 673 (1987) And of course the prohibition In [146 Wn 2d 698] RCW 82 02 020 includes but is broader than taxes because "whether a payment is characterized as a tax or a regulatory fee,' it is prohibited unless specifically excepted R/L Assocs , Inc v City of Seattle, 113 Wash 2d 402, 409, 780 P 2d 838 (1989) Considering the somewhat narrower question of whether plat approval conditioned on the payment of fees for road Improvements were properly considered taxes, we expressed the vtew in Hdks Homes, Inc v Snohomish County, 97 Wash 2d 804, 808, 650 P 2d 193 (1982) that they were We there cited with © 2005 Thomson/West No claim to original U S Govt works 49 P 3d 860, 146 Wn 2d 685, Benchmark Land Co v Ctty of Battle Ground, (Wash 2002) Page 7 approval the Oregon case of Haugen v Gleason, 226 required under the ordinance absent proof that rt rs Or 99, 104, 359 P 2d 108 (1961) whch necessary to anhgate a "direct impact" of the characterized a tax as an rmposmon unposed "to development Of course proof that these offsrte road accomplish desired public benefits which cost unprovements are necessary because of [he "duet[ money " unpact" of the plat rs supply absent With these principles m mind RCW 82 02 020 exempts from its otherwise broad prolubmon against "any tax, fee, or chazge, either direct or induect, on the development, subdrvrsron, classification, or reclassification of land" requued payments which are "reasonably necessary as a direct result of the proposed development or plat " RCW 82 02 020 T}us rs a statutory requirement to establish a nexus between the development and the problem as well as a lumtahon that the developer's required confrrbuhon to the solution of the problem be proportionate to his contribution to the problem itself Of course this deficiency cannot be cured by a local ordinance which unposes a tax, fee, or charge without statutory authorization or otherwise conflicts with the general laws of the state, t e , RCW 82 02 020 Therefore even tf former Battle Ground Mumcrpal Code 12 16 180 authorized the sub3ect condrhon rt would be invalidly applied to the extent its application violated RCW *867 82 02 020 To view preceding link please click here or unposed a statutorily unauthorized tax This ordinance does not requne that result, however Although subsection A of the ordinance purports to requne a "half-width road utrprovement shall be constructed to the applicable standards set out in tlns chapter to that pomon of an access street which abuts the parcel being developed, as a requirement of approval of a final plat or final short plat," [146 Wn.2d 699] subsection C of the same ordinance expressly provides "that the developer may voluntarily agree to mitigate such duet[ impacts in accordance with the provisions of RCW 82 02 020 " Tlus seems to be a round-about recognition that such mitigation rs not For these reasons I concur in the malonty's result (FNl) The unhal section of former chapter 12 16 of the Battle Ground Mumcrpal Code states as follows "It rs the purpose of this chapter to establish rmnunum standards for public and private streets hereinafter constmcted or improved by another as a condmon of city approval of a development or by the city " Former Battle Ground Municipal Code 12 ] 6 010 (FN2) Benchmark's azgument that the City requued the developer to dedreate land in order to make street unprovements rs without meat A 30-foot right-of--way over [he half of North Parkway bordering Melrose Park existed before Benchmark applied for plat approval Although Benchmark initially proposed to dedreate an addrtwnal five feet of right-of--way in order to make the half-width unprovements, the city council expressly detemuned that Benchmark was not requued to dedreate any land beyond the preexisting right-of- way to make such unprovements (FN3) The court analyzed the regulatory takings claun under the "essential nexus" standard announced m Nollan v Cal Coastal Comm'n, 483 U S 825, 107 S Ct 3141, 97 L Ed 2d 677 (1987) and the "rough proportionality" standard set forth in Dolan v Ctty of Tigard, 512 U S 374, 114 S Ct 2309, 129 L Ed 2d 304 (1994) (FNl) The Court of Appeals oprmon on the constitutional issue has merited scholarly praise from Professor Wtllram Stoebuck See 17 William B Stoebuck, Washington Practice, Renl Estate Property Law § 5 5, at 25 (Supp 2001) © 2005 Thomson/West No claun to original U S Govt works 829 P Zd 169, 64 Wn App 45I, Cobb v Snohonush County, (Wash App Div 1 1991) Page I *169 829 P 2d 169 414 ---- 64 Wn App 451 414II Vahdrty of Zoning Regulations 414II(B) Regulatrons as to Partrculaz Matters Court of Appeals of Washington, 414k86 Perrmts and Cernficates Drvtston 1 Larry COBB, Robert Hale, and R/L ASSOCtates, Inc., Appellants, v. SNOHOMISH COUNTY, Respondent. No. 24680-1-I. Nov 4, 1991 As Amended on Denial of Reconsideration Feb 28, 1992 County code sechon requiring that developers agree to share m cost of unproving road systems unpacted by proposed land development protects in order to recewe preliminary plat approval fell within voluntary agreement exception to statute generally bamng mumcrpal corporations from requumg developers to pay fee, tax or charge, agreements provided for in code were "voluntary" wrthin meanutg of statute, even though approva] of development was condrtroned upon agreement's execution West's RCWA 82 02 020 Rewew Denied June 3, 1992 Developer brought action challenging valtdrty of county code sechon requumg that developers agree to share in cost of unproving road systems unpacted by proposed developments as condmon of preliminary plat approval The Superior Court, Snohormsh County, John F Wilson, J, ordered county to grant developer's application for prehrmnary plat approval upon payment of pro rata share of proposed left rum lane Developer appealed The Court of Appeals, Pekehs, J, held that (1) county code sechon fell within voluntary agreement exception to statute generally barring municipal corporations from requumg developers to pay fee, tax or charge, (2) word "voluntary," wttlun meanutg of voluntary agreement exception, means that developer has choice of eithez paying for those reasonably necessary costs which aze directly attributable to developer's protect or losing prehrmnary plat approval, (3) sole lane of traffic impacted by development would be at level of traffic service "C," rather than higher level "D," and, thus, only obligation which county could impose on developer was that developer agree not to protest formation of road mrprovement distirct, and (4) developer's request for attorney fees was premature Reversed and remanded Grosse, C J ,filed oprmon concurring m the result Agid, J ,filed concurring and dissenting opinion West Headnotes [1] Zoning and Planning f^~86 [2] Zoning and Plannnrg G°~382 4 414 ---- 414VIII Perrmts, Certificates and Approvals 414 VIII(A) In General 414k382 1 Maps, Plats, or Plans, Condmons and Agreements 414k382 4 Fees, Bonds, and in Lieu Payments Developer may enter into voluntary agreement with local government to pay fee which local government has established rs reasonably necessary as direct result of proposed development of plat under exception to general prohibition against local governments' imposing taxes, fees or charges on developers West's RCWA 82 02 020 [3] Zoning and PlanrungC.~382 4 414 ---- 414VTII Pemuts, Certificates and Approvals 414VIII(A) In General 414k382 1 Maps, Plats, or Plans, Condmons and Agreements 414k382 4 Fees, Bonds, and in Lieu Payments Word "voluntary," within meaning of voluntary agreement exception to general statutory bar prolubihng mtunctpal corporations from requumg developers to pay fee, tax or charge, means that developer has choke of either paying for those reasonably necessary costs which are duectly attributable to developer's protect or losing preliminary plat approval West's RCWA 82 02,020 [4] Zoning and Planning C^r~382 2 © 2004 West, a Thomson business No claim to original U S Govt works 829 P 2d 169, 64 Wn App 451, Cobb v Snohotntsh County, (Wash App Dtv 1 1991) 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382 1 Maps, Plats, or Plans, Conditions and Agreements 414k382 2 Streets, Improvements, and Utalihes Sole lane of traffic unpacted by development would be at level of ttaffic service "C," rather than higher level "D," and, thus, only obligation which county could unpose on developer under ordinance requiring developers to share in cost of unproving road systems irripacted by development prolects was that developer agree not to protest formation of road unprovement distnct West's RCWA 82 02 020 [5] Zonnng and Plannuig C^:-382 4 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382 1 Maps, Plats, or Plans, Conditions and Agreements 414k382 4 Fees, Bonds, and m Lieu Payments [See headnote text below] [5] Zoning and Planning 0610 414 ---- 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)lIn General 414k608 Arbittary, Capacious, or Unreasonable Action 414k610 Decisions of Boards or Officers Under statute providing voluntary agreement exception to general prohibition barring mumcipalihes from requiring developers to pay fee, tax or charge, it was incumbent upon county to show that reginred improvements were reasonably necessary to nuhgate daect inrpact of development, and decision was reviewed under arbitrary and capricious standard West's RCWA 82 02 020 [6] Zomng and Plannuig f°~729 414 ---- 414X Judicial Review or Relief 414X(D) Detemnnation 414k729 Costs Request for attorney fees by developer, who successfully challenged application of county code Page 2 provision requiring that developers share in cost of improving road systems affected by proposed land development prolects, was premature where developer reserved damages issues, on remand, if developer prevailed m action for damages and trial court m its discretion awarded attomey fees and costs, developer should also receive award of fees and costs incurred on appeal West's RCWA 64 40 020 *170 [64 Wn.App. 452] Richard B Sanders and Sanders Law Office, Bellevue, for appellants Seth R Dawson, Pros Atty, and Evelyn Sue Tanner, Deputy Pros Atty , Drew Nrelsen and Nrelsen, Nielsen & Leach, Everett, for respondent PEKELIS, Judge Larry Cobb, Robert Hale, and R/L Associates, Inc (Cobb), challenge the validity of Title 26B of the Snohorrush County Code (SCC) which requires that developers share m the cost of unprovmg road systems inipacted by proposed land development prolects Cobb contends that the ordinance unposes unauthorized taxes, fees or charges on developers, violates substantive due process, and effects a taking of private property wtthout lust compensation *171 [64 Wn.App.453] I A SCC Tule 26B On May 11, 1982, the Snohomish County Council adopted a revised road ordinance, SCC Title 26B, in an effort to address those problems associated with the increasing demand placed on county roads by intensified land use and rapid population growth Former SCC 26B 50 010 The declared purpose of the ordinance is to "ensure that public health, safety and welfare will be preserved by having adequate roads to new and existing developments by regmring all land development prolects in unuicorporated Snohomish county to pay for a proportionate share of the cost of road improvements due to such land developments " Former SCC 26B 50 020 To effectuate this purpose, the ordinance requires that developers agree to perform certain remedial measures before receiving land use approval from the County Former SCC 26B 52 010 Developers are required, upon request, to prepare a comprehensive © 2004 West, a Thomson business No claun to original U S Govt works 829 P 2d 169, 64 Wn App 451, Cobb v Snohomish County, (Wash App Dtv 1 1991) traffic study detailing the immediate and long-term effects of the proposed development on the level of traffic service (LOS) of the sunoundmg road system (FNl) Former SCC 26B 53 030(f), see also former SCC 26B 52 010(1) The ordinance incorporates the LOS cntena outlined in the Highway Capacity Manual, a grade published by the Transportation Research Board Former SCC 26B 51 010 The cntena are based on the unused capacity of the particular lane in question, and may range from "A" (little or no traffic delays) to "E" (very long traffic delays) Under Chapter 26B 55, developers may have to agree to contribute to certain road improvements in order to obtain protect approval In general, the greater the expected traffic delay following a project's completion, the greater the obhgahon[64 Wn.App 454] imposed upon the developer Thus, where a project will be served by a road system of LOS A or B, the developer has no obligation to make off-srte road improvements At most, the developer may be required to perform frontage road improvements of dedicate an addthonal nght-of--way Former SCC 26B 55 020 Where a project will be served by a toad system of LOS C, the developer is obligated to agree not to protest forinahon of a road improvement district (RID) and also may be required to perform frontage road improvements or dedicate an addthonal nght-of- way Former SCC 26B 55 030 In contrast, "developers whose projects will be served by a road system which will be at level of sernce D follovng completion of the development shall incur obligations [o mitigate the duec[ impact of said development " This is to be done by executing a valid written voluntary agreement with the county m which the developer agrees to pay a proportionate share of the cost of mitigation improvements Former SCC 26B 55 040(1) The proposed development will not be approved until all necessary funding is cointrittted and the project is under contract or constmchon Former SCC 26B 55 040(2) B COBB'S SC/BDIVISION In December 1987, Cobb applied to the County for preliminary plat approval to subdrvtde a 5 07 acre parcel of property into 18 single family lots The proposed subdrvtston, named "Zeroth Village", was located north of 234th Street S W and west of State Highway 99 (SR 99) Cobb was a contract purchaser of part of the property and an agent for the owners of Page 3 the rernatmng portions Pursuant to SCC 26B 53, Cobb furnished the County Department of Public Works (DPW) with a traffic study detading, inter aba, the impacts of the subdrviston on the 234th Street S W /SR 99 intersection The study concluded that [t]he mtersechon of 234th St S W and Htghway 99 would operate at the C/D "'172 range as indicated by the attached analysts Traffic movements with proposed subdivision traffic all operate at LOS C It is only those movements approaching Htghway 99 from the east and Htghway 99 southbound left [64 Wn App. 455 turn movements that would operate at LOS D The proposed subdrviston would not contnbute any vehicles to these movements Although the DPW found Cobb's study generally acceptable, rt took the position that the question of whether the development duectIy impacted traffic conditions was deterriuned by charactenzahon of the entire 234th Street S W / SR 99 mtersechon Since this mtersechon as a whole would operate at LOS D, Cobb was asked to submit a mitigation proposal pursuant to fornrer SCC 26B 55 040(1)(a) Cobb and the DPW entered into negotiations to determine [he appropnate fee to rmtigate the direct impact of the development on the mtersechon m question but were unable to reach an agreement on the coned formula to be applied Thus, under former SCC 26B 55 070(2), the matter was brought before a heanng exainer to decide on the coned impact mitigation measures to be undertaken as a condmon of plat approval At the hearing the DPW claimed that because Cobb's development would result m adding ve}ucles to an mtersecnon which was already at LOS D, lus proportionate share should be based upon full improvement of the entire mtersechon It thus asked the hearing examiner to reject Cobb's mitigation offer, which was based supply on a proportionate share of the estttnated $10,000 cost of a left tutu lane for the west leg of 234th/SR99 mtersechon, [he only leg his development would duectly affect The hearing exauuner found Cobb's traffic ttnpact mitigation offer unacceptable, deteimtnuig that, as the DPW contended, only full improvement of the entire intersection from LOS D to LOS B or better satisfied the mitigation requirement Additionally, the hearing exarmner noted that because the State Department of Transportation had no plans for major signaltzahon or road improvements, Cobb's offer for the 234th Street © 2004 West, a Thomson business No claim to ongmal U S Govt works 829 P 2d 169, 64 Wn App 451, Cobb v Snohorrush County, (Wash App Dtv ] 1991) SW/SR 99 intersection was infeasible On appeal, the Snohonsh County Council upheld the hearing examiner's decision Cobb then brought an action m [64 Wn.App. 456] Snohormsh County Superior Court, requesting that SCC Title 26B be declared invalid as an unconstitutional tax The heal court denied Cobb's motion for declaratory relief on the grounds that rts "interpretation of SCC Title 26B that the maximum exaction required from an applicant cannot exceed the pro rata cost of roadway unprovements attributable to an applicant's proposed protect" rendered the ordinance constitutional The teal court ordered the County to grant Cobb's applicarion for preliminary plat approval upon payment of his pro rata share of the proposed left tum lane In essence, the trial court adopted Cobb's rruhgahon offer which the hearing examiner had relec[ed The cotut gave Cobb the choice of paying a flat $25 fee or an exaction based on a revised calculation of Cobb's proportional share He paid the $25 fee under protest Cobb appeals, challenging both the validity of SCC Title 26B on its face and as applied to his request for preliminary plat approval of tus proposed subdivision II [1] Cobb contends first that SCC Title 26B is nothing more than a scheme for imposing taxes, fees, or charges on developers in violation of RCW 82 02 0?0 RCW 82 02 020, provides in relevant part [N]o county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the constmchon of reconstruction of residential buildings, commercial buildings, industnal buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, elassificahoq or reclassification ofland Laws of 1982, 1st Ex Sess , ch 49, § 5 (effective July 1, 1982) *173 Early cases interpreting this statute focused on "whether a development fee consamted an unauthorized tax or a valid regulatory scheme, as that distinction was explained m Hdhs Homes, Inc v Snohomish Cy , 97 Wn 2d 804, 809, 650 P 2d 193 Page 4 (1982)" R/L Associates v Seattle, 113 Wash 2d 402, 408, 780 P 2d 838 (1989) However, as R/L (64 Wn,App. 457J Associates To view preceding link please click here makes clear, the "Cax/regulahon distinction" is no longer relevant because the statutory prohibition against "taxes, fees, or charges" is so all-encompassing it applies to all development fees unless specifically excepted R/L Assocs, 113 Wash 2d at 409, 780 P 2d 838 [2] Accordingly, if SCC Trtle 26B required developers to pay a fee, tax, or charge even if that were specifically used for payment of off-sne road improvements, it would run afoul of RCW 82 02 020 However, RCW 82 02 020 also creates an exception for "voluntary agreements that allow a payment in lieu of a dedication of land or to mitigate a direct Impact that has been identified as a consequence of a proposed development, subdivision, or plat " (Emphasts added) In other words, a developer may enter into an agreement with local government to pay a fee which local government has established is "reasonably necessary as a direct result of the proposed development or plat " RCW 82 02 020, see also Southwick, Inc v Lacey, 58 Wash App 886, 895, 795 P 2d 712 (1990), Comment, Subrhvision Exactions m Washington The Controversy Over Imposing Fees on Developers, 59 Wash L Rev 289, 298(1984) It is apparent that Snohomish County has attempted m SCC Title 26B to comply with the "voluntary agreement" exception in RCW 82 02 020 On their face, the negotiated agreement provisions in former SCC 26B 55 040 mirror the requirements for the voluntary agreement exception within the statute The provisions provide a scheme which allows the developer to agree to pay for its share of reasonably necessary unprovements to roads directly impacted by the proposed development See, e g , former SCC 26B 55 040(1)(c) and (d), see also former SCC 26B 55 080 [3] Cobb asserts that the agreements provided for m former SCC 26B 55 040 are not "voluntary" within the meaning of RCW 82 02 020 because approval of the proposed development is conditioned upon the agreement's execution We disagree Wtthm the context of RCW 82 02 020, the word "voluntary" means precisely that the developer has the choice of either (I) paying for those reasonably [64 Wn.App. 458] necessary costs which are directly atmbutable to the developer's protect or (2) losing preliminary plat approval The fact that the developer's choices may not be between perfect options does not render the © 2004 West, a Thomson business No claim to ongmal U S Govt works 829 P 2d 169, 64 Wn App 451, Cobb v Snohomish County, (Wash App Drv 1 1991) agreement "involuntary" under the statute Comment, 59 Wash L Rev at 298, See generally, Settle, Washington Land Use and Environmental Law and Practice 114-115 (1983) (FN2) Moreover, Cobb does not claun that he has an absolute right to receive plat approval, he clearly does not The county is authorized to withhold approval if appropriate provisions have not been made for the public health, safety, and general welfare RCW 58 17 110, see also, Southwtck, Inc v Lacey, 58 Wash App 886, 892-93, 795 P 2d 712 (1990), Mtl[er v Port Angeles, 38 Wash App 904, 909, 691 P 2d 229 (1984), review dented 103 Wash 2d 1024 (1985) In adopting SCC Title 26B, Snohomish County had declared that new developments have the potential of unpacking traffic in such a way as to create serious health, safety and welfare problems The purpose of former SCC 26B 55 040 is to make appropriate provisions for nuhgating the duect unpact of new developments on existing roads *174 Accordingly, we conclude that the voluntary agreement scheme contemplated by SCC Title 26B is not violative of RCW 82 02 020 The ordinance properly permits voluntary agreements between developers and the county for payment of a fee to mitigate the direct unpact of the traffic problems of the county In so deciding, however, we do not reject Cobb's challenge to the specific provisions of the ordinance as applied to his proposed subdivision Cobb conectly contends that the traffic his development would contribute, [64 Wn.App. 459] when properly calculated under the ordinance itself, does not Iushfy application of the LOS D provisions [4] Under the statute, it was incumbent upon the County to show that the requued unprovements were "reasonably necessary" to nuhga[e the duect unpact of the development Southwtck, Inc, 58 Wash App at 895, 795 P 2d 712 This decision is reviewed under the arbitrary and capricious standard Southwtck, Inc , 58 Wash App at 895, 795 P 2d 712 (citing Pentagram Corp v Seattle, 28 Wash App 219, 228, 622 P 2d 892 (1981)) [5] Here, SCC Title 26B expressly incorporates the Highway Capacity Manual's defuntions relating to traffic design, traffic flow and traffic operation According to the manual, the LOS within an in[erseckion relates to the unused capacity of the traffic lane in question within the mtersechon, not the entue mtersechon itself Page 5 While Cobb's development contributed some traffic to LOS C traffic lanes, It contributed none whatsoever to the LOS D traffic lanes The anal court apparently recognized this and thus attempted to coned the hearing examiner's enor by hnuhng Cobb's obhgahon to the propornonate cost of the left turn lane of the intersection However, the trial court's mling is also unproper Because the lane Impacted by Cobb's development would be at LOS C, not D, under former SCC 26B 55 030, the court had no authority to require mitigation at all The only obhgahon which the County could mmpose on Cobb was that he agree not to protest the formation of a RID Accordingly, we hold that while the rmhgahon scheme provided for m SCC Title 26B does not on its face violate RCW 82 02 020, both the hearuig examiner's and the trial court's application of SCC Tale 26B to Cobb's plat was arbitrary and capacious Therefore, Cobb's $25 payment is [o be refunded and the plat approval granted m conformance with the requaements of former SCC 26B 55 030, not 040 (FN3) [64 Wn.App.460] III [6] Cobb has requested attorney fees on a number of grounds Attorney fees may not be awarded m the absence of statutory authority or an applicable egmtable or contract provision Blue Sky Advocates v State, 107 Wash 2d 112, 122, 727 P 2d 644 (1986) We conclude that the only possible ground on which he would be entitled to attorney fees here would be under RCW 64 40 020, which provides m part (1) Owners of a property interest who have filed an apphcahon fox a pemut have an action for damages to obtain relief from acts of an agency which are arbitrary, capacious, unlawful, or exceed lawful authority, or relief from a fadure to act within time Iunlts established by law Provided, That the action Is unlawful or m excess of lawful authority only if the final decision of the agency was made with knowledge of ds unlawfulness or that rt was in excess of lawful authority, or rt should reasonably have been known to have been unlawful or m excess of lawful authority *175 (2) The prevailing parry in an action brought pursuant to this chapter may be entitled to reasonable costs and attorney fees (Emphasis added ) © 2004 West, a Thomson business No claun to original U S Gov[ works 829 P 2d 169, 64 Wn App 451, Cobb v Snohonush County, (Wash App Dtv 1 1991) However, because Cobb has reserved the dainages issue under this statute, his request for attorney fees is premature On remand if Cobb prevails m lns action for damages and the trial court in its discretion awards attorney fees and costs, Cobb should also receive an award of fees and costs incurred in this appeal in such sum as the mal court shall detearitne reasonable Accordingly, we reverse and remand for further proceedings consistent with an interpretation of Cobb's obligations under former SCC 26B 55 030 and lus claim for damages [64 Wn.App, 461] GROSSE, Chief Judge (concuning) I concur in the result reached m the lead opinion, but write separately to state my view that it is unnecessary m this case to decide the rssue of the validity of the ordinance AGID, Judge (concurring and dissenting) While I concur m the result reached m the lead opinion with respect to the erroneous mterpretahon of Title 26B of the Snohormsh County Code (SCC), I disagree with its conclusion that agreements under former SCC 26B 55 040 are "voluntary" agreements under RCW 82 02 020 I therefore write separately to address this issue RCW 82 02 020 was enacted by the Legislature in 1982 as part of comprehensive legislation that included the grant of authority to certain local governments to impose additional sales and real estate transfer taxes Along with this addinonal taxing authority, the Legislature unposed a prolubrtion of certain development fees This amendment was the first to confront the imposition of fees as a condition to development, even though there had been other proposals before the Legislature to expand or lirriit municipalities' authority to impose such fees (Citations oiriitted) R/L Assocs , Inc v Seattle, 113 Wash 2d 402, 406-407, 780 P 2d 838 (1989) In R/L Assocs , the Supreme Court recognized that earlier cases had "resisted a literal application of RCW 82 02 020" 113 Wash 2d at 408, 780 P 2d 838 In deterrninuig that henceforth the statute must be shictly applied, the court observed that Page 6 the [earlier] cases implicitly recognized the importance of the statute as a source of local government's authority to econonncally burden development, bu[ gave the statute a nanow constmchon and limited application However, m the light of the Legislature's clear intent as embodied in the statute's language, and the circumstances surrounding its enactment, we find that such a construction is not warranted, and will apply the statute according to its plain and unambiguous terms R/L Assocs , 113 Wash 2d at 409, 780 P 2d 838 Thus, our first task is to deteimine, in the context of this case, what those "plain and unambiguous terms" are [64 Wn.App. 462[ In order to properly analyze RCW 82 02 020, we must first clarify what it is and is not It is apparent that it is not an enabling statute It confers no authority on municipalities to impose conditions on development or chazge fees in the absence of independent authority pemntting the imposition of conditions for which the fee is a substitute The statute is fast and foremost a taxing statute It begins by declaring that Except only as expressly provided in [three statutes not relevant here], the state preempts the field of imposing taxes upon [various commodthes and activities] Except as provided in RCW 82 02 050 through 82 02 090, no county, city, town, or other municipal corporatton shall impose any tax, fee, or charge, either direct or indirect, on the constmchon or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, *176 or reclassification of land However, this section does not preclude dedications of land or easements within the proposed development or plat which the county, city, town, or other municipal corporation can demonstrate are reasonably necessary as a direct result of the proposed development or plat to which the dedication of land or easement is [o apply RCW 82 02 020 As a first principle, then, the statute is a prolubrtion on direct or indirect taxes, fees, or charges on development activity except that on-site dedications and easements which are permitted by other statutes are not prohibited by RCW 82 02 020 © 2004 West, a Thomson business No claim to original U S Govt works 829 P 2d 169, 64 Wn App 451, Cobb v Snohomish County, (Wash App Div 1 1991) While generally prohibiting what have come to be known as development fees or exactions, RCW 82 02 020 then enumerates certain exceptions which include "voluntary agreements that allow a payment in heu of a dedtcahon of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat " (Emphasis added) The voluntary agreement provisions of RCW 82 02 020 do not themselves grant authority to require developer exactions Rather, they "allow" the local goverunent and the developer to enter Into an agreement to pay a fee as an alteinahve to dedicating land or complying with a tmhgation requirement which that government may impose [64 Wn.App. 463] as a result of authority granted by another statute or ordinance (FN 1) The county cites us to no independent authority which would permit tt to require Cobb to constmct or Contribute to the constmchon of a left turn lane at the intersection of State Highway (SR) 99 and 234th Street S W (FN2) Thus, the firs[ problem with former SCC 26B 55 040 is that tt exceeds the limited authority of RCW 82 02 020 by imposing "voluntary" fees as a condmon of protect approval where the county has no independent authority to impose a condmon for off-sne unprovements The ordinance simply pronounces that, where the protect is found to tmpact roads which are at LOS D or E, the developer shall form a Road Improvement District (RID) to fund "full improvements" (FN3) or enter into a "voluntary agreement" to pay for some or all of the [64 Wn.App. 464] improvements In the absence of independent authority to require the developer to build the improvements, the county cannot use RCW $2 02 020 as part of a bootstrap operation to supply that authority and then require payment of a fee as a substitute for construction of improvements it cannot require m the first place The second major problem with the ordinance arises from Its apparent misapprehension of the meaning of the word "voluntary" as it is used m RCW 82 02 020 As noted above, the statute *177 does not prohibit voluntary agreements with counties, cities, [owns, or other municipal corporations that allow a payment m heu of a dedication of land or to tnthgate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat The word "voluntary" is not defined in the statute Where there is no statutory defuuhon, the court must Page 7 give a word Its ordinary and usual meanuig State v Standtfer, 110 Wash 2d 90, 92-93, 750 P 2d 258 (1988) The word "voluntary" is defined as "proceeding from the will[,] produced in or by an act of choice [,] performed, made, or given of one's own free will [,] acting of oneselfj,] not constrained, impelled or influenced by another" Webster's Tlurd New International Dtctronary 2564 (1986) In order to be voluntary, an agreement must at least present the parties with a viable choice However, under the Snohotmsh County ordinance at issue here, former SCC 26B 55 040, the only option given the perrrut applicant is to pay a fee or have the requested permit application dewed This is not a choice It is tantamount to a contract of adhesion where, if the appltcant wants the pernut, there is no choice but to accept the terms that are dictated by local government officials The pemut applicant is not acting of }us or her own will "not constrained [or compelled] by another" when paying a fee solely to avoid denial of the requested land use approval [64 Wn.App. 465] This is not to say that, in the context of obtainuig development pernuts, the statutory provision allowing voluntary developer agreements Is meaningless On the contrary, there are numerous instances in which an applicant, legttunately required under another statute to dedicate land, reduce the size of a proposed development, or take other steps to mitigate impacts, will voluntarily choose to pay a fee instead Should the applicant determine that a dedtcahon of land would detract from the appearance of or reduce the market for its protect, it may choose to pay a fee rather than dedicate the land which the local government can legitimately requue pursuant to RCW ch 58 17 In order to Imhgate Impacts on an environmentally sensitive area, a developer may choose to contribute funds to addmonal drainage facilities or Improvement of an off-site stream or wetland Both the mumcipahty and protect applicants may agree that It is mutually beneficial for the developers to pay into a fund to purchase a large amount of open space to be developed into a park rather than accepting dedications of small areas of open space which are not amenable to such desirable Irrlprovements as ball fields, playgrounds and the tike While perhaps not entuely desirable from the applicant's viewpoint, these are true choices because the local government has clear authority to require the applicant to dedicate the land or triingate the mtpact Former SCC 26B 55 010(4) and 040 purport to ©2004 West, a Thomson business No claim to original U S Govt works ;. 829 P,2d 169, 64 Wn App 451, Cobb v Snohormsh County, (Wash App Drv 1 1991) Page 8 allow the county, as they did m this case, to decide that the only feasible method "of accomplishing the regmred road work" is payment of a fee Under such circumstances, the other "choice" provided by the ordinance, formation of an RID to fund the full cost of the improvement, becomes illusory, and the developer rs left to pay the fee or face denial of its proposal Such agreements are not "voluntary" within the meaning of RCW 82 02 020 and exceed the authority granted to the county to unpose fees Former SCC 26B SS 040 Is therefore invalid on this ground as well [64 WaApp. 466] I recognize that another drvrsnon of this court has defined "voluntary" m the context of RCW 82 02 020 In a manner that would arguably permit Snohonsh County to rmpose fees under the statute Southwick, Inc v Lacey, SS Wash App 886, 79S P 2d 712 (1990) However, a review of the conditions to which Southwick was objecting in that case clearly distinguishes a from this one In that case, the developer was objecting to requtements that rt make unprovements to the streets and sidewalks both on site and unmednately adjacent to its expanded cemetery and funeral home complex, provide plans for and install ttnprovements in water service to its project, increase the flow of water to the property and install sprinklers and a fire alarm system on the prenuses All of these aze *178 Improvements to the property itself or are requied to facnli[ate services to the project which the City of Lacey could rmpose pursuant to the zonurg, bmlding and fie codes already m effect (FN4) The Cnty neither retied upon RCW 82 02 020 for authority to rmpose these requirements nor authorized payment of a fee m lieu of building the requied unprovements Thns alone distinguishes Southwmk from this case because, as noted above, Snohomish County had no authority independent of RCW 82 02 020 to requie Cobb to Improve the intersection in question In addition, I question fire rn[erpretahon the Southwick court gave to the word "voluntary" in the statute It relied upon the dissent in Chrobuck v Snohomish Cy, 78 Wash 2d 858, 889, 480 P 2d 489 (1971), in which the issue was entiely different (FNS) At issue there was the assertion that the [64 Wn.App. 467] county could not enter into a conconutant zoning agreement with a property owner because to do so would brad the county to exercrse Its zoning power in a particular way, thus unpehrussibly " 'bargaining away Its regulatory police power' " Chrobuck, 78 Wash 2d at 888, 480 P 2d 489 (quoting State ex rel Myhre v Spokane, 70 Wash 2d 207, 216, 422 P Zd 790 (1967)) (FN6) The issue in Chrobuck and Myhre was whether the local government could enter into an agreement to grant a rezone without committing an ultra vises act That is far from the issue here, : e , whether an agreement to pay a fee to offset the cost of an off-site unprovement is voluntary when the county lacks independent authority to require constmchon of the improvement m question Thus, while I have no quarzel with the indices of vahdlty of a concormtant zoning agreement set out m Chrobuck, reliance on those factors ns not relevant to or persuasroe in deternnning whether an agreement Is voluntary under RCW 82 02 020 Finally, former SCC 26B SS 040 does not comply wnh the requirement of RCW 82 OZ 020 that fees, where permnssible, "rrningate a died unpact that has been Identified as a consequence of a proposed development" Tlus statutory phrase reflects the Legislature's adoption of the "nexus" requirement Imposed by case law on governmental exactions and conditions Nollan v Cahforvrta Coastal Comm'n, 483 U S 825, 107 S Ct 3141, 97 L Ed 2d 677 (1987) Simply stated, there must be a nexus, a died connection, "between the condition and the original purpose of the building restriction" Nollan, 483 U S at 837, 107 S Ct at 3149 Where the exaction or other condition does not rmtigate an impact of the development, a [64 WaApp. 468] is an unlawful exercrse of the police power Unlimited v Krtsap Cy, SO Wash App 723, 727, 750 P2d 6Sl,revrew denied, ]I1 Wash 2d 1008 (1988), coed with approval m Presbytery of Seattle v Kmg Cy, 114 Wash 2d 320, 336 n 30, 787 P 2d 907, cert denied, 498 U S 911, 111 S Ct 284, 112 L Ed 2d 238 (1990) The Snohomish County ordinance applies to "[d]evelopers whose projects wall be *179. served by a road system which will be at level of service [LOS] D following completion of the development" Where the road system itself ns at LOS D, the developer Is then requied to "tttrtigate the died impact of Bard development" Former SCC 26B SS 040(1) Tlus language allows Snohomish County to Impose the requiements of the ordinance whether or not the died unpact of the development causes the road system in question to be at LOS D Exactions on this basis are not perrrrrtted by the terms of RCW 82 02 020 The statute requies that any exactions be unposed m order to mitigate an impact of the development If the road system Is LOS D with or without the project, there is no unpact to be tnthgated, and the nexus requiement of the statute rs © 2004 West, a Thomson business No claim to original U S Govt works 829 P 2d 169, 64 Wn App 451, Cobb v Snohomish County, (Wash App Dtv 11991) not satisfied The problem is illustrated by the Facts of flits case Cobb's proposal ~s for 18 lots whrch vnll add 9 peak hour hips to an mtersectton rn which the ex~stmg peak hour [rips total 2,622 Its maxrmum unpact will be to add two lefr-tuning vehicles to a lefr turn lane which rs now and wrll contmue to be at LOS C Where, as here, there rs no showmg that the project wrll contribute to a worsenrrrg of the level of service, RCW 82 02 020 does not perrrut unposrtron of fees to offset the costs of mrhgahon measures There singly rs no stgmficant unpact to mrtigate In summary, m the absence of another statute or ordmance pernittmg the county to require mrhgahon of the irnpacts of the project, a nexus between those unpacts and the mitigation measures bemg imposed, and a trne chorce offered to the project proponent to pay a fee rather than constmct unprovements or dedicate land to satisfy the legrhmate requirement that rt mitigate the direct impacts of [64 Wn.App. 469] development, the county is wrthou[ authonty to require a developer to pay a fee To mle otherwrse rs to effectively waste the word "voluntary" out of RCW 82 02 020 The Supreme Court has unequivocally held [hat the statute must be interpreted "according to ass plain and unambiguous teens", IUL Assocs , 113 Wash 2d at 409, 780 P 2d 838 Tlus approach to the statute gives the word "voluntary" its ordinary meaning and furthers the intent of the Legislature that local government's power to exact fees from developers be lunrted to those circumstances in which the Legislature has affinnahvely granted authonty to do so (F'Nl) Former SCC 26B 51 080 defines a "road system" as "[T]hose existing or proposed county roads (rf any) which are located in the development site and/or between the development site and the nearest state highway or lighways, projected to be utilized by ten percent or more of the traffic generated by the development " (FN2) We disagree with Cobb's assearon that Ivy Club Investors Ltd Partnership v Kennewick, 40 Wash App 524, 699 P 2d 782, review denied 104 Wash 2d 1006 (1985) holds that a fee rs not voluntary rf the proposed development rs conditioned upon its payment Although the court characterized the park fees in that case as involuntary, tt did so within the context of the Page 9 Htlks Homes tax/fee test, rejected m R/L Associates Ivy Club, 40 Wash App at 529, 699 P 2d 782 There is no mdication that the court's charactenzahon was based on an analysrs of the voluntary agreement exception m RCW 82 02 020 (FN3) Cobb also clarms that SCC Title 26B unconstrtutronally depnves hun of substantive due process and effects a takrrrg wrthout Lust compensation We have rejected Cobb's clamvs msofar as they are based on the assertion that SCC Title 26B rs mvahd on its face as a tax, fee, or charge To the extent Cobb also asserts that former SCC 26B 55 040(2) can result m the developer havmg to pay mote than the developer's pro rata cost rf the County rs unwrllmg to contribute fundmg, we decline to address thrs claun Because our holdmg takes Cobb's development outside the LOS D Category, we need not and do not decrde whether the LOS D requirements under former SCC 26$ 55 040 are conshtutwnal (FNl) For example, RCW 58 17 110(2) pemits the local government to require "[d]edication of land to any public body as a condrhon of subdrvrston approval" Srrrnlarly, under the authonty of the State Environmental Policy Act, applicants may, under circumstances dictated by the statute, be required to comply with conditions unposed by local government to "mitigate specific adverse environmental impacts" of a proposal RCW 43 21C 060 These conditions may include reconfiguration of lots, preservation of open space, unprovement of utilities and numerous other conditions for which an applicant may prefer to pay a fee for off-site nuhgatron measures rather than srgmficandy change the configuration of the development (FN2) We note that this project was not found to require an environmental unpact statement under SEPA, and no srgmficant adverse environmental unpacts associated with the roads m question were identified winch would penmt the county to require rmhgahon under RCW ch 43 21C Nor could fees be imposed in this case under RCW 82 02 050 et seq, whrch does perrrrrt local governments to require developers to pay unpact fees to finance then proportional share of "new facilities needed to serve new growth and development", RCW 8202050(1)(b), because that statute was not enacted until 1990 *179_ (FN3) Of the four options under former SCC 26B 55 040(1), only one does not involve an © 2004 West, a Thomson business No claunto onginal U S Govt works • ! 829 P 2d 169, 64 Wn App 451, Cobb v Snohonush County, (Wash App Drv 1 1991) agreement to pay a fee Subsection (b) allows formation of an RID for "full [rather than a proportionate share] improvements" to the road or roads in question However, an RID was clearly unpossible here because SR 99 is a state road Which the Department of Transportation did not want unproved, and the cost of funding the entire lefr tour lane greatly exceeded the fee It is also not at all clear that formation of an RID under these circumstances was feasible since Cobb's protect represented such a small proportion of the properties that would have to consent to the RID (FN4) For example, the Umfonn Building, Mechanical and Fire Codes, together with applicable code standards, wtuch must be adopted by every municipality in Washington, RCW 19 27 031, provide independent authority to require adequate sprinkler, fire alarm and water systems Cities of all classes are granted legislative authority to adopt ordinances to provide standards for constmchon and maintenance of streets, sidewalks, gutters and associated unprovements on site RCW 35 22 280 {first class cities), RCW Page 10 35 23 440 (second class cities), RCW ch 35 70 (thud class cities), RCW 35 27 370 (towns), RCW 35A 11 020 (optional mumcipal code cures) (FNS) The matonty in Chrobuck did not reach the Issue of the validity of the concomitant zonuig agreement on which the Southwtck opuuon is based because they reversed the rezone on other grounds This issue was addressed only in Justice Neill's dissent Chrobuck, 78 Wash 2d at 874, 887, 480 P 2d 489 (FN6) A concomitant zonuig agreement is a contract between the govenung body of the mumcipahty and the applicant for a rezone which conditions approval of the rezone on the agreement of the applicant to comply with conditions on its use and development of the property Myhre, 70 Wash 2d at 209, 422 P 2d 790 The conditions agreed to must be permissible exercises of the police power authorized by statute or ordinance Id at 215-217, 422 P 2d 790, Besselman v Moses Lake, 46 Wash 2d 279, 280 P 2d 689 (1955) ©2004 West, a Thomson business No claun to original U S Govt works • 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Dtv 2 1998) *343 958 P 2d 343 91 WnApp 505 Court of Appeals of Washington, Division 2 Lance BURTON, a Washington resident, Appellant, v. CLARK COUNTY, a municipal corporation; and the Board of County Commissioners, a Clark County agency, Respondent. Lance BURTON, a Washington resident, Respondent/ Cross-Appellant, v. CLARK COUNTY, a muntcipal corporation; and the Board of County Commissioners, a Clark County agency, Appellant/ Cross-Respondent. Nos 20372-3-II, 21866-6-II. July 10, 1998 County conditioned approval of three-lot short plat on landowner's dedication of road right-of--way Landowner appealed The county hearing examtner approved the short plat without the exacted road County appealed The Board of County Commissroners reversed Landowner appealed The Superior Court, Clazk County, Thomas Lodge, J, reversed the Board and reinstated the hearing exaiivrier's order County appealed The Court of Appeals, Morgan, J , held [hat evidence did not sustain finding of rough proportionality between problems created by the proposed development and the exaction of the road, as the record was devmd of any evidence from which to infer when, tf ever, the exacted road would be constructed Affirmed West Headnotes [1] Conshtuttonal Law 0280 92 ---- 92XII Due Process of Law 92k279 Exercise of Power of Eminent Domain 92k280 In General Fifth Amendment's Takings Clause applies to the states through the Fourteenth Amendment's Due Process Clause U S C A Const Amends 5, 14 [2] Ermnent Domain C~ 1 Page 1 148 ---- 148I Nature, Extent, and Delegation of Power 148k1 Nature and Source of Power The government may "take" private land for public use with or without formal condemnation proceedings U S C A Const Amends 5, 14 [3] Eminent Domain <~2 1 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Distinguished 148k2 I In General (Formerly 148k2(1)) [3] Eminent Domain a2 3 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Dishngwshed 148k2 3 Municipal Corporations and Local Government in General, Annexation of Terrttory (Formerly 148k2(1)j [3] Eminent Domain C~2 10(5) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Dts[ingmshed 148k210 Zoning, Planning, or Land Use, Bmlding Codes 148k2 10(4) Zoning and Permrts 148k2 10(5) In General (Formerly 148k2(1)) Government may "take" private land for public use by a physical act such as invading and occupying the land, by a legislative act such as enacting a statute, ordinance or regulation, or by aquasi-Judicial act such as denying or conditioning a development permit U S C A Const Amends 5, 14 © 2005 Thornson/West No claim to original U S Govt works '~ ' ^ 958 P 2d 343, 91 Wn App 505, Burton v Clark County; (Wash App Div 2 1998) [4] Eminent Domain C~2 1 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Distinguished 148k2 1 In General (Formerly 148k2(1)) [4] EininentDomamG'210(1) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Distinguished 148k210 Zoning, Planning, or Land Use, Building Codes 148k2 10(1) In General (Formerly 148k2(1)) The effect of government's conduct in taking pnvate land for public use may be to prevent the landowner, permanently or [emporartly, from exclusively possessing the land, or from using the land m any econommcally productive way, or from using the land in some, but not all, economically productive ways USCA Const Amends 5, 14 [5] EminentDoinainC.~210(1) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Distinguished 148k210 Zoning, Planning, or Land Use, Building Codes 148k2 10(1) In General (Formerly 148k2(I)) Even though the government [nay "take" pnvate land with or without formal condemnation proceedings, it can justify its conduct as a proper exercise of its police power, for which lust compensation is not required, if i[ shows that it is merely restrtcttng, but not eliminating, the use of such land USCA Const Amends 5, 14 [6] Eminent Domain f^~295 Page 2 148 ---- 148IV Remedies of Owners of Property, Inverse Condemnation 148k294 Evidence 148k295 Presumptions and Burden of Proof Assurmng that a claiinant has shown governmental conduct that will be a taking if not justified, the government bears the burden of justifying its conduct as a proper exercise of the police power, at leas[ when its conduct is quasi-~udictal to nature U S C A Const Amends 5, 14 [7] Etninent Domain C~2 10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Distingwshed 148k210 Zoning, Plamning, or Land Use, Bmlding Codes 148k2 10(7) Exactions and Conditions (Formerly 1481Q(1 2)) When the government conditions aland-use pemv[ and seeks to justify its action as proper exercise of ponce power for which lust compensaton is not required, then government must identify a public problem or problems that the condition is designed to address, and if the government can tdenhfy only a private problem, or no problem at all, the government lacks a legitimate state interest or legitimate public purpose in regulating the protect U S C A Const Amends 5, 14 [8] Eminent Domain C^~2 10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Pohae and Other Powers Dtstmguished 148k210 Zornng, Planrung, or Land Use, Building Codes 148k2 10(7) Exactions and Condmons (Formerly 148k2(1 2)) When the government conditions aland-use permit and seeks to justify ds action as proper exercise of police power for which lust compensation is not required, government must show that the development for which a pemut is sought wtll create © 2005 Thomson/West No claim to onginal U S Govt works • 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Drv 2 1998) or exacerbate the identified public problem U S C A Const Amends 5, 14 [9] Ermnent Domain .°f: 2 10(7) lab ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Talung, Police and Other Powers Distinguished 148k210 Zoning, Plamm~g, or Land Use, Building Codes 148k2 10(7) Exactions and Conditions (Formerly 148k2(1 2)) Government may not use the perrriitting process as a vehicle fox solving public problems not created or exacerbated by any project U S C A Const Amends 5, 14 []0] ErnnientDomainG°G~210(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Distinguished 148k210 Zoning, Planting, or Land Use, Building Codes 148k2 10(7) Exactions and Condrhons (Formerly 148k2(1 2)) When the government conditions a land-use perimt and seeks to justify its action as proper exercise of police power for w}uch lust compensation is not requued, government must show that its proposed condition '343 or exaction tends to solve, or at leas[ to alleviate, the identified public problem U S C A Cons[ Amends 5, 14 [I I] Eminent DomainC~210(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Distinguished 148k210 Zoning, Planning, or Land Use, Building Codes 148k2 10(7) Exactions and Conditions (Formerly 148k2(1 2)) Page 3 Assuming that the government may sometunes rely on the future as well as the present when attempting to establish nexus and rough proportionality as to project's impact and government's proposed restricrions, then at a minimum, government may not rely on the future unless the record furnishes a bans for uifering what the foreseeable future holds U S C A Const Amends 5, 14 [12] Eminent Domain C- 2 10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Distinguished 148k210 Zoning, Planning, or Land Use, Bwlding Codes 148k2 10(7) Exactions and Conditions (Fornerly 148k2(1 2)) Evidence established reasonable relationship between problems created by proposed three-lot residential development and county's conditions on approval of short plat, as element for establishing proper exercise of police power for which just compensation was not requued, county sought dedication of road tight-of--way so county could connect two dead-end roads, county identified as problems traffic cuculahoq traffic congestion, and emergency vehicle access, and proposed development would exacerbate those problems by adding about 30 vehicle tnps per day on neighborhood roads U S C A Const Amends 5, 14 [13] EmmentDomainf°~210(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking, Police and Other Powers Distinguished 148k210 Zoning, Planning, or Land Use, Building Codes 148k2 10(7)Exactionsand Conditions (Formerly 148k2(1 2)) Evidence did not sustain finding of rough proportionality between problems created by proposed three-lot residential development and county's condmons on approval of short plat, as element for establishing proper exercise of police power for which just compensation was not requued, © 2005 Thomson/West No claun to ongmal U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Drv 2 1998) county sought dedication of road right-of--way so county could address traffic ciculatron, traffic congestion, and emergency vehicle access, but record was devoid of any evidence from which to ud'er when, tf ever, the exacted road would be constmcted, so that tt was uncertain whether problems would ever be addressed U S C A Contt Amends 5, 14 [14] Ermnent Domain f°~316 148 ---- 148IV Remedies of Owners of Property, Inverse Condemnation 148k316 Costs Claunant was not entitled to award of attorney fees m eminent domain proceeding, though claimant argued for damages and attorney fees in a teal beef, as claimant never alleged a claim for damages or attomey fees in any of lis pleadings and the trial court declined to consider the argument raised m claunant's trial brief [15] Certioranf°~3 73 ---- 73I Nature and Grounds 73k3 Avadabihty of Relief m Original Proceeding [See headnote text below] [15] CertiorartG'71 73 ---- 73I1 Proceedings and Detemunatron 73k71 Costs In action seeking writ of certiorari, superior court may not entertain a claim for damages or attomey fees that the tribunal below lacked Iurisdictron to award *345 [91 Wn.App. 508] Mark Alan Erikson, Vancouver, for AppellanUCross-Respondent Christopher Horne, Clazke Co Deputy Pros Atty , Vancouver, for RespondenUCross-Appellant MORGAN, Judge Clark County (the County) conditroned Its approval of a three-lot short plat on the landowner's dedicating a right-of--way and building a road, curbs and stdewalks The landowner obJected The resulting Page 4 Issue is whether the condttron is a taking of private property without lust compensation, or a proper exerase of the county's police power Lance Burton owns a small parcel of land m unutcotporated Clark County It is 0 78 acre in area and trapezoidal in shape It Is zoned for residential lots of not less than 6,000 square feet each Its boundaries aze 305 feet long on the west, 100 feet on the north, 233 feet on the east, and 125 feet on the south It adjoins a subdivision on the west, another subdivision on the north, a parcel of raw land on the east, and high- *346 voltage electrical transrmsston lines on the south The undeveloped parcel to the east is owned by one Maddux, but the record shows little else about rt Two nearby streets are Northeast 65th Street and Northeast 20th Avenue Northeast 65th Street generally runs east and west Its eastern end deadends into Burton's western boundary, fomvng what the county considers to be a temporary cul-de- sac Northeast 20th Avenue generally inns north and south Its southern end deadends into the northern boundary of Maddux's parcel, a few feet east of Burton's northeast corner Since the mid-1980's, county [91 Wn App 509] planners have wanted to connect the two toads by extending them across Burton's property, and also across the northwest corner of Maddux's property (FNl) Figure 1 Illustrates the area TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE *347 [91 Wn.App. 510] On May 5, 1994, Burton applied to short plat lus parcel into three wedge- shaped residential lots He proposed that each lot open onto the cul-de-sac a[ the east end of Northeast 65th Street He did not want to dedicate right-of--way or bmld a road Figure 2 illustrates his plan TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE *348 Before Burton submitted tus application, he and the County Informally discussed whether he would be required to connect Northeast 65th and Northeast 20th, and the effect such a connection would have on the lots he desied to create The County suggested a reconfiguration, shown in Figure 3, that would glue hum three lots with the nnmtntlm 6,000 square feet each, yet still connect Northeast © 2005 Thomson/West No claim to original U S Govt works ® • 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Drv 2 1998) 65th wrth Northeast 20th TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE [91 Wn.App. SllJ Burton rejected this reco~gurahon, m part because he thought the two southern lots would be smaller than other lots in the neighborhood, and thus hard to sell On Lune 28, 1994, the county planning duector recommended approval of Burton's application--but only if Burton would extend Northeast 65th Street across his property by dedicating a right-of--way and installing a road, curbs and sidewallcs (FN2) The planning duector stated 2 Before approval of the final plat, and except to the extent modified by the Director of Public Works or other duly authorized publtc official pursuant to law, the applicant shall make the following road dedications and improvements [91 Wn.App. 512J a A 50 foot wide right-of--way shall be dedicated to the County through the site for the extension of N E 65th Street This right-of--way shall be surveyed and designed to eventually connect with N E 20th Avenue b N E 65th Street shall be bmlt through the site with a 32 foot wide paved surface with curbs and sidewalks c Plans and profiles shall be prepared by an engineer, licensed m the State of Washington, and submitted to the County for approval prior to road constmchon [ (FN3)] *349 Hereafter, we refer to these requirements as "the exacted road " Burton appealed to the county hearing examiner who, on September 22, 1994, found an "essential nexus" between the exacted road and the county's need for "street connectivity " The examiner Bard The connechvrry of streets rs a legrtunafe County interest Connechvrty increases public safety by provrding alternative means for access and egress Connectivity also reduces trip distances and thereby helps reduce pollution, Page 5 makes rt easier for pedestrians and bicyclrsts to go from one point to another more directly, and provides for less isolation between neighborhoods Therefore, there rs an essential nexus between tlus street exaction and the need for street connectivity within the County, and m pamcular, within this area [ (FN4)] The heating examiner also found that the exacted road was roughly proportional to Burton's development, because it was "the rrummum necessary to allow the local street to go through " (FNS) The examiner said [T]he nature of this street dedication and improvement requirement is roughly propomonal to the proposed three lot residential development because each of the three lots will duectly benefit from the road Residents will have better emergency access and police and fire safety will therefore be enhanced Furthermore, this connection will reduce trip distances[91 Wn.App. 513] because residents will now be able to travel north along 20th Avenue to reach 68th Skeet, instead of having to go west along N E 65th Street in order to access N E 68th Street The exactron is roughly proportional m scope to the proposed three lot partition because the road extension rs the muumum necessary to allow the local street to go through The County rs merely requesting the extension of one local street duectly through [the] property This will serve the site and provide a connection for future development to the east The County is not asking for multiple road connections, nor are they asking for the connection to occur m an indirect manner (FN6) Concluding that the county had made an "individualized detemnnahon that the requued dedication rs related both m nature and extent to the impact of the proposed development," (FN7) the exammner upheld the exaction of the road Burton appealed to the Board of County Corrurussioners, which affirmed Burton then appealed again to the superior court, which mled that the county had "failed to make an individualized deternunahon that [the exacted road] related both in nature and extent to the unpacts from the proposed development, as requued to demonstrate 'rough proportronahty' under the holding in Dolan v City of Tigard, 512 U S 374, 114 S Ct 2309, 129 L Ed 2d 304 (1994) " (FN8) The court concluded that the exacted road eves an unconshtuhonal taking of private © 2005 Thomson/West No clarm to original U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Div 2 1998) property, that the road-related condmons should be "reversed and deleted" from the plat, and that the case should be "remanded for proceedings and deteminahon consistent with this [o]rder " (FN9) *350 The parties then resumed to the hearing exarnliner He [91 Wn.App. 514] held more hearings, during which the county presented a new staff report, dated April 16, 1996, asserting that Burton's proposed development would generate an additional thirty auto traps per day on nearby roads On July 31, 1996, the examiner held that "a court of law has found that the proposed dedication and improvement requmed by the County road standards is not roughly proportional to the unpact caused by the development," and that [p]lanning staffs additional analysts submitted during the remand merely demonstrates that the proposed street extension would not be drsstrmlar or disproportionate to the cost of unprovements requued to serve strmlazly sized lots m other subdivisions in the neighborhood This is not the relevant comparison for purposes of the rough proportionality test in Dolan T'he comparison under Dolan must be between the Impacts caused by the proposed development and the nature and extent of exaction that rs being unposed For this reason, the Hearings Examiner reject[s] staffs supplemental findings because they fall to Justify [the exacted road] [ (FN10)] Based on these holdings, the hearing examiner entered an order approving Burton's short plat without the exacted road The County appealed to the Board of County Comrmssioners, which reversed the examuner's order and re-exacted the road Burton then appealed a second tune [o the superior court, wlich reversed the Board and reinstated the examuner's order approving the plat without the exacted road [91 Wn.App. 515] I [1] The main Issue is whether the federal Takings Clause prohibits the County from exacting a road vnthout Just compensation The Takings Clause appears in the Fifth Amendment to the United States Constitution It provides that private property shall not be taken for public use without Just compensation (FNII) Its purpose Is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and Justice, should be borne by Page 6 the public as a whole " (FN12) It applies to the States through the Fourteenth Amendment's Due Process Clause (FN13) [2][3][4] The government tray "take" private land {FN14) for public use with or without formal condemnation proceedings (FN15) The nature of Its conduct may be a physical act such as invading and occupying the land, (FN16) a legislative *351 act such [91 Wn,App. 516] as enacting a statute, ordinance or regulation, (FN17) or a quasr-Judretal act such as denying or condihomng a development permit (FN18) The effect of its conduct may be to prevent the landowner, permanently or temporarily, (FN19) from exclusively possessing the land, (FN20) from using the land in any econorrrtcally productive way, (FN21) or from using the land in some, but not all, economically productive ways (FN22) At present, it appears that the party claittung a taking has the burden of showing govemmental conduct that will constitute a taking if not Justified as a valid exercrse of the police power (FN23) [5][6] Even though the Government may "take" private land with or without formal condemnation proceedings, it can Justify its conduct as a proper exercrse of Its police power, if it shows that rt is merely restricting, brit not eliniinahng, the use of such land (FN24) As the Umted States Supreme Court [91 Wn.App. 517] has stated, "[A]]1 property m dis country is held under the implied obligation that the owner's use of it shall not be inJurious to the commumty [citation omitted], and the Takings Clause [does] not transform that principle to one that requues compensation whenever the State asserts its power to enforce it" (FN25) As the Nebraska Supreme Court has sirmlarly stated, "In the exercise of the police power, public authority is empowered to requue everyone so to use and enjoy lus own property as not to interfere with the general welfare of the commumty in which he hues " (FN26) Assumling that a claimant has shown governmental conduct that will be a taking rf not Justified, the govemment bears *352 the burden of Justifying ds conduct as a proper exercrse of the police power, at least when its conduct is quasr-Judicial m nature (FN27) In two recent cases, the United States Supreme Court has considered whether govemmental conduct was a proper exercrse of the police power In the fast case, Nollan v Cal forma Coastal Commessron, (FN28) [91 Wn.App. 518] the Nolians acquired a California oceanfront lot located between Fana County Pazk, a public beach to the north, and the Cove, a public beach to the south The lot was © 2005 Thomson/West No claim to original U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clazk County, (Wash App Drv 2 1998) drvrded into two parts by an eght-foot-high seawall, its upland part was bounded by a road on the east and the seawall on the west, while its beach part was bounded by the seawall on the east and the Pacific Ocean on the west The lot's upland part was the site of a dilapidated bungalow, which the Nollans wanted to replace with a modem three bedroom house When they sought the necessary pemut, however, the Calrfomia Coastal Cornnnssion requued that they dedicate an easement for public use across the beach part of then lot The purpose of the easement, according to the uuhal report of the Comrmssron's staff, was to "make tt easier for the public to get to Fana County Park and the Cove " (FN29) The Nollans appealed Co the superior court, arguing that they could not be forced to dedicate a public easement along ffie beach, "absent evidence that then proposed development would have a duect adverse unpact on public access to the beach " (FN30) Agreeing, the superior court remanded for a heazing on that Issue On remand, the Commrsston found that "the new house would increase blockage of the view of the ocean" from the street, that the new house would "prevent the public 'psychologically from realizing a stretch of coastline exists nearby that they have every right to vtsrt; "and that the new house would "burden the publri.'s ability to traverse to and along the shorefront " Based on these findings, the Comnussion concluded that rt could and should exact from the Nollans, without compensation, "additional lateral access to the public beaches m the form of an easement across then property " (FN31) The Nollans appealed through the state court system [91 Wn.App. $19] and ulturiately to the Umted States Supreme Court That Court found no "essential nexus" between the exacted easement and any public problem created or exacerbated by the new house Tlrus, rt concluded that the Comrmssron could not exact the easement wrhout compensation In the other case, Dolan v City of Tigard, (FN32) Dolan operated a 9,700 square-foot store with a gravel parking lot The store was located on 1 67 acres in the cenual business drstnct of Trgard, Oregon A creek traversed the site's southwest comer and western boundary Dolan applied for a pernut to double the size of her store, pave a 39-space parking lot, and build another wrnmereral building for rental to complementary businesses The city refused the necessary pemnts unless Dolan would dedreate (a) the creek's floodplam for use as a drainage and flood control azea, (b) the creek's floodplam for use as a public recreational area; and (c) "an addrhonal Page 7 15-foot strrp of land adjacent to the floodplam as a pedeshran/brcycle pathway " (FN33) Dolan appealed, clairrung "that the crty has not identified any 'special quantifiable burdens' created by her new store that would justify the particular dedreahons requued from her which are not required from the public at large " (FN34) After various proceedings in the state court system, the case reached the Umted States Supreme Court Tha[ Court posed *353 the question, "[W]hat is the required degree of connection between the exactrons Imposed by the crtyand the projected impacts of the proposed development " (FN35) It then answered by saying We thrnk the "reasonable relahonslnp" test adopted by a majority of the state courts Is closer to the federal constitutional norm than either of those previously discussed But we do not adopt a as such, partly because the term "reasonable relahonslup" seems confusingly sunilar to the term "rational ]91 Wn.App. 520] basis" which describes the mmrnral level of scmtiny under the Equal Protection Clause of the Fourteenth Amendment We thuds a term such as "rough proportionality" best encapsulates what we hold to be the requirement of the Fifth Amendment No precise mathematical calculation rs requued, but the crty must make some sort of individualized determuiahon that the required dedication u related both m nature and extent to the impact of the proposed development [ (FN36)] Applying this answer, the Court upheld as a valid exercrse of the police power the floodplam easement for purposes of drainage and flood control It stmck, as not "roughly propomonal," the floodplam easement for purposes of public recreation and the addrtional 15-foot easement for a pedestrian-bike path [7] In our vrew, Nollan, Dolan, and then Washington progeny stand for at least four propositions First, when the government condrhons a land-use pemut, tt must identify a public problem or problems that the condrhon rs designed to address If the govemment can Identify only a private problem, or no problem at all, the govenunent lacks a "legttrmate state interest" or "legrtunate public purpose[ ]" in regulating the project (FN37) Thus, the Nollan Court characterized a "condrhon for abridgement of property rights through the police power" as "a 'substantial advanc[ing]' of a legtturiate state interest " (FN38) The Dolan Court said thaC [o ©2005 Thomson/West No claun to original U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Drv 2 1998) evaluate Dolan's takings claim, a had to "detemune whether the 'essential nexus' exists between the 'legitunate state interest' and the pemut condition [91 Wn.App 521] exacted by the city" (FN39) And this court previously said, about an easement exacted solely to allow the commercial development of private land [T]he exaction serves no public interest, let alone a reasonable one The public has no interest in the commercial development of the Berg/Carlson property, and it is manifestly unreasonable for Kitsap County to exact a commercial access easement to this commercially land-locked parcel [[ (FN40)] [8][9] Second, the government nmst show that the development for which a permit is sought will create or exacerbate the identified public problem (FN41) T}us is the same as to say that there must be a relationship ("nexus") between the development and the identified public problem, that the necessary relahonslup will exist if the development will create or exacerbate the tdenhfied problem, but that the necessary relationship will not exist if the development will not adversely Impact the identified public problem Thus, the Nollan Court rejected an easement that would have unproved public access to the *354 beach, even though the Commission's staff report said unproved public access was needed, because the Nollans' protect, replacing a bungalow with a new house, would not make the tdenhfied public problem, lack of public access, any worse than before (FN42) Siuulazly, the Dolan court rejected Tigard's exaction of a floodplain easement that would have etdianced the public's recreational opportunities, even though such opportunities were needed, because Dolan's protect, a larger retail outlet, [91 Wn.App. 522[ would not make the identified public problem, the public's lack of recreational opportunities, any worse than before (FN43) These holdings are consistent with the fundamental purpose of the Takings Clause, which is not to bar government from requiruig a developer to deal with problems of the developer's own makuig, but which is "to bar Government from forcing some people alone to bear public burdens which, in all fauness and tushce, should be borne by the public as a whole " (FN44) [10] Thud, the government must show that its proposed condition or exaction (which m plain terms is Lust the government's proposed solution to the identified public problem) tends to solve, or at least to alleviate, the identified public problem In other words, the government must show a relationship Page 8 ("nexus") between the proposed solution and the identified problem, and such relattonslup cannot exist unless the proposed solution has a tendency to solve or alleviate the identified problem Thus, the Nollan Court rejected the exaction of an easement along the beach, even though the Nollans' new house would exacerbate the inability of passersby to see the ocean from the road, because allowing people to walk on the beach had no tendency to restore the view from the road Interestingly, however, the Nollan Court would have allowed the exaction of "a viewing spot on theu property for passersby with whose sighting of the ocean rhea new house would interfere," (FN45) because an exaction of that type would have tended to restore the view from the road The Dolan Court likewise rejected the [91 Wn.App. 523] exaction of an easement for a pedesfrian/bilce path, because the fact-finding adxninistrahve tribunal had faded to find that such an easement would have (as opposed to could have) a tendency to solve or alleviate traffic congestion Both cases represent the idea that government acts arbifranly and urahonally, and thus outside the scope of its police power, when d mandates a solution (t e , a condition or exaction) that has no tendency to solve the identified problem (FN46} Fourth, the government must show that its proposed solution to the identified public problem is "roughly proportional" to that part of the problem that is created or exacerbated by the landowner's development Thus, as already seen, the Dolan Court *355 posed the question, "[W]hat is the requued degree of connection between [1] the exactions imposed by the city and [2] the protected impacts of the proposed development " (FN47) It answered by saying that the requued connection was a "reasonable relationship" best described by the term "rough proportionality," and that the government "must make some sort of indrviduahzed detenninahon that the requued dedication is related both in nature and extent to the unpact of the proposed development " (FN48) The Washington Supreme Court rnled similarly in Sparks v Douglas County, (FN49) where it noted that a regulatory exaction must be "reasonably calculated to prevent, or compensate for, adverse public impacts ojthe proposed development " (FN50) The purpose, once again, is "to bar Government from forcing some people alone to bear public burdens which, m all fauness and tushce, should be [91 Wn.App 524] borne by the public as a whale," (FN51) while at the same time leaving government free to requue a developer to rectify public problems insofaz as the developer has created such problems © 2005 Thomson/West No claim to original U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Drv 2 1998) When combined, these four propositions boll down to two relationships a relahonslup between the protect and the identified public problem, and a relahonshup between the identified public problem and the proposed solution to that problem The requued relationship between protect and problem is shown by establishing the first and second propositions set forth above, while the requued relationship between problem and solution is shown by estabhsliing the thud and fourth propositions set forth above The ultunate goal is to show that the proposed condition or exaction (i e , the proposed solution to an identified public problem) is reasonably related to all or part of an identified public problem that anses from (i e , is created or exacerbated by) the development protect Unless the government makes this showing, rt lacks a "legitimate state interest" or a "legitiniate public purpose" in unposing the condition or exaction [ll] We assume that the government may sometnnes rely on the future as well as the present when attempting to establish these relationships (FN52) At a unmmum, however, rt may not rely on the future unless the record furmshes a basis [91 Wn.App. 525] for uifemng what the foreseeable future holds (FN53) Thus, m Unhmrted v Kttsap County, (ITI54) where the county wanted to exact an easement m favor of a parcel known as the Berg/ Carslon property, we rejected the exaction because the county "intends Yo hold the exacted property until some undefined future tune when Randall Way can be extended to connect with other, as yet unbudt, roads," (FN55) and because "[t]here is no expectation that the Berg/Carlson property is to be developed at the same tune as Unlnmted's development, or, for that matter, any tune soon " (F`N56) And in Simpson v North Platte, (FN57) a case cited m Dolan, the Nebraska *356 Supreme Court rejected a similar exaction The Simpson landowners wanted to construct afast-food restaurant, but the city would not issue the necessary pemuts unless they dedicated a right of way through then land "[N]one of the real estate for [the road] ha[d] been acquired by the City nor [was] there any indication as to when, if ever, such real estate [would] be acquned by the City " (FN58) Rejecting the easement, the court stated [N]o protect was inunediately contemplated whereby the street would be constructed nor is there any evidence regarding what the particular project would involve Furthermore, there is no evidence to indicate that the constmchon of the project would create such additional traffic as to requue going forward with the proposed street Page 9 protect As the evidence indicates, no other adjacent property owner would be requued to dedicate any land for a public street miless a building pemut is sought, nor would any other land now be acquned for a public street in the area It is difficult, if not unpossible, to see how this is X91 Wn.App. 526] anything more than a 'land bankuig' operation which is clearly m violation of Neb Const art I, section 21 [ (FN59)] Turning to the facts of this case, we address two questions (1) Does the record show a reasonable relahonslup between protect and problemv (2) Does the record show a reasonable relationslp between problem and solution [12] We can gmckly dispose of the relationship between protect and problem The county identifies three problems that it claims Burton's protect will exacerbate It emphasizes traffic cuculahon, for it wants to rnutunize "pocket neighborhoods" that lack access to adjoining neighborhoods I[ also identifies, as related problems, traffic congestion and emergency vehicle access The last, emergency vehicle access, has vanous facets, including (a) whether police and £ne personnel can gmckly reach the homes $urton intends to build, and (b) whether fire [rocks responding to one of the homes can quickly ruin around if called to another emergency elsewhere Each identified problem is public, as opposed to pnvate Moreover, each will be exacerbated by Burton's project to at least a slight degree Burtons project will bung more residents to the neighborhood and generate about 30 vehicle trips per day on neighborhood roads Tlus means an increase m the need for adequate traffic cuculahon m and out of the neighborhood, m the congestion on neighborhood roads (with or without better cuculahon), and in the likelihood that police and fue amts will be called to and from the neighborhood m emergency situations The record shows a reasonable relationship between project and problem [13] The relahonslup between problem and solution requues more attention The reason is [ha[ the record shows nothing about when, if ever, the road being exacted from Burton will extend across the Maddux's pazcel and coanect with Northeast 20th Avenue To ascertain the results of that omission, we discuss (a) the effects of the exacted road ]91 Wn.App. 527] when and if it ever connects with Northeast 20th Avenue, (b) the effects of the exacted road if it never connects with Northeast 20th Avenue, and (c) the factual question of when, if ever, the © 2005 Thomson/West No claim to ongmal U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Drv 2 1998) exacted road will connect with Northeast 20th Avenue When and if the exacted road connects with Northeast 20th Avenue, rt will tend to allevtate the identified public problems Traffic will be able to circulate to the east as well as to the west, not all traffic wdl have to use the roads to the west, police and fire vehicles will be able to enter the neighborhood from either direction, and fue trucks will be able to exit the neighborhood without needing to rum azound Moreover, the exacted road will tend to allevtate the identified public problems in a way that is "roughly proportional" to the project's effect on those problems, Even though Burton's protect will exacerbate the tdenhfied problems to only a small degree, the exacted road is only a small part of the solution to those problems, which is the creation of an overall street grid as the area changes from rural to urban *357 If the road never coanects with Northeast 20th Avenue, it wall lack any tendency to solve or allevtate any of the identified public problems It well not better traffic cuculation, for traffic wdl not be able to circulate to the east and north It will not lessen ttaffic congestion, because all traffic, including that generated by the development, wtll still be forced to use the roads to the west It wdl not Improve police and fire ingress, because all emergency vehicles well still have to come from the west It well not unprove fue truck egress, for tt will deadend at Burton's eastern property line with a temporary stub not much dtfferenC from the one that exists today at Burton's west property line It will, in short, be a road to nowhere The cmctal question, then, is this If the exacted road Is built across Burton's parcel, when, if ever, will rt extend across Maddux's parcel and connect with Northeast 20th Avenues Like any other question of fact, it may be answered [91 WnApp 528] directly or cucumstanhally, (FN60) It is not answered here, however, because the record is devoid of any evidence from which to infer when, If ever, the exacted road will cross Maddux's parcel and connect with Northeast 20th Avenue One county staff report said only that the exacted road "shall be surveyed and designed to eventually connect with N E 20th Avenue" (FN61) (Emphasis added) Another county staff report said only that Northeast 65th Street was intended "for eventual connection with NE 20th Avenue " (FN62) (Emphasis added) The county's public woiks director found only that Burton should build the exacted road "so that rt can Page 10 eventually connect to NE 20th Avenue " (FN63) The hearing exanuner did not find that the exacted road would ever connect with Northeast 20th Avenue, much less when rt rmght connect, although he did find that "a future street plan has not been adopted for this area " (FN64) The Board of Comimsstoners found only that the exacted road was needed "for potenttal future connection to NE 20th Avenue " (FN65) (Emphasis added) Even taken in the light most favorable to the county, none of this evidence provides a basis for reasonably inferring that the exacted road will connect with Northeast 20th Avenue in the foreseeable future, and without such an Inference, the exacted road lacks any tendency to solve or even alleviate the public problems that the county identifies We conclude that the county has failed to bear Its burden of showing that the [91 Wn.App. 529] exacted road rs a reasonable exercise of Its police power, and that the examiner was correct when, after he heard the case on remand, he approved the plat without the exacted road II Another issue is whether the cotinty violated Burton's tight to substantive due process We need not reach this issue, because Burton's federal takings claim is disposihve (FN66) In passing, we observe that the ideas inherent in the federal Takings Clause may be the same as those m the "three-prong test" that deterimnes whether a regulation violates substantive due process (FN67) *358. III [14][15] The last issue Is whether Burton is entitled to [91 Wn.App. 530[ damages and reasonable attorney's fees He Is not, because he never alleged a claim for damages or reasonable attorney's fees in any of lus pleadings (FN68) Moreover, be tmhally sought a writ of certiorari, and in that type of action the superior total may not entertain a claim for damages or fees that the tribunal below lacked jurisdiction [o award (FN69) The parties' remainuig arguments lack merit or need not be reached We affirm the examiner's order approving the plat without the exacted road SEINFELD and ITCTNT, JJ ,concur (FNl) The planners were relying in part on Clark County Code 12 OS 370 It provides ~ 2005 Thomson/West No claim to original U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clazk County, (Wash App Dtv 2 1998) Street extensions Where a public or private road has been constmcted or created in such a inanner as to be able to be extended or widened m accordance with adopted road plans or this chapter, then (1) All residences, buildings or structures shall be constmcted to such a position on the property that they will not interfere with the extension or widening of the roadway to adjacent areas and shall be so situated that such extension will make orderly and planned development for additional road installations to meet the reasonable minimum requirements of good and safe traffic cuculahoq consistent with applicable zoning setbacks, and, (2) Right-of--way or private easements necessary to such extension or widening and falling within parcels being developed, shall be granted or created as a condition of development approval Clark County Code 12 OS 370 is subject to, and thus has no impact on, the conshmhonal analysis that follows (FN2) Although we express this proposition m positive terms m the text, we cou]d just as well express d m negative terms as follows The county planning director recommended demal of Burton's application unless he would extend Northeast 65th Street across his property by dedicating aright-of- way and installing a road, curbs and sidewalks (FN3) Clerk's Papers (No 21866-6-II) at 77 (FN4) Clerk's Papers (No 21866-6-I1) at 65 (FNS) Clerk's Papers (No 21866-6-II) at 67 (FN6) Clerk's Papers (1Vo 21866-6-II) at 66 (FN7) Clerk's Papers (No 20372-3-II) at 85 (FNS) Clerk's Papers (No 20372-3-In at 741 (FN9) Clerk's Papers (No 20372-3-II) at 741-42 At this juncture, Burton and the county each filed a notice of appeal from the superior court's ruling Simultaneously, each also sought further proceedings before the hearing examiner The result, as the county puts n, was that the action "developed branches," County's opemng beef at 6, one m this court and one in the tribunals below When the "branch" in the tribunals below finished-- mother wards, after the examiner, the Board, and the superior cotirt had each considered this case a second lime--Burton and the county filed more notices of appeal to this court Page 11 In proceeding as they did, the pames violated RAP 7 2 and 8 3, which are intended to keep a case from "develop[ing] branches" m the absence of an appropriate order of the appellate court (See also CR 54(b) and RAP 2 2(d), which are intended to keep a case from "develop ling] branches" in the absence of an approprtate order of the trial court ) Consequently, we elect to treat each party's first notice of appeal as abandoned or, m what amounts to the same flung, as subsumed in its second notice of appeal (FN l0) Clerk's Papers (No 21866-6-II) at 479 (FNl l) U S Const amend V (FN12 }First Engdtsh Evangelical Lutheran Church v Los Angeles County, 482 U S 304, 318-19, 107 S Ct 2378, 96 L Ed 2d 250 (1987) (cuing Armstrong v United States, 364 U S 40, 49, 80 S Ct 1563, 4 L Ed 2d 1554 (1960)), Dolan v Ctty of Tigard, 512 U S 374, 384, 114 S Ct 2309, 129 L Ed 2d 304 (1994) (also citing Armstrong, 364 U S 40, 80 S Ct IS63, 4 L Ed 2d 1SS4), Nollan v Cahforma Coastal Comm'n, 483 U S 825, 835 n 4, 107 S Ct 3141, 97 L Ed 2d 677 (1987) (also citing Armstrong, 364 U S 40, 80 S Ct 1563, 4 L Ed 2d 1554) See also Eastern Enter v Apfel, 524 U S 498, ----, 118 S Ct 2131, 2146, 141 L Ed 2d 451 (1998} *358_ (FN13) Dolan, 512 U S at 383, 114 S Ct 2309, Webb's Fabulous Pharmacies, Inc v Beckwith, 449 U S 155, 160, 101 S Ct 446, 66 L Ed 2d 358 (1980), Chicago, Burlington & Quincy R R Co v aty of Chicago, 166 U S 226, 241, 17 S Ct 581, 41 L Ed 979 (1897), Sintra, Inc v City of Seattle, 119 Wash 2d I, 13, 829 P 2d 765, cert dented sub nom Robinson v Ctty of Seattle, 506 U S 1028, 113 S Ct 676, 121 L Ed 2d 598 (1992) (FN14) We refer only to private land because we have no occasion to consider how the Takings Clause affects property other than land Cf Phillips v Washington Legal Found, 524 US 156, ----, 118 S Ct 1925, 1933, 141 L Ed 2d 174 (1998) (FN15) First English, 482 U S at 316, 107 S Ct 2378 ("While the typical taking occurs when the goverxunent acts to condemn property in the exercise of its power of eminent domain, the entue dochme of inverse condemnation is predicated on ®2005 Thomsoii/West No claim to original U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clark Coun the proposition that a taking may occur without such formal proceedings ") See also Stntra, Inc v City of Seattle, 131 Wash 2d 640, 656, 935 P 2d 555 (]997), Stntrn, 119 Wash 2d at 13, 829 P2d 765 y, (Wash App Drv 2 1998) Page 12 598, 854 P 2d 1, Gutmont v Seattle, 77 Wash App at 80, 896 P 2d 70 {FN22) Dolan, 512 U S at 384-85, 114 S Ct 2309, Nolan, 483 U S at 834-35, 107 S Ct 3141 (FN16) Eg, Loretto v Teleprompter Manhattan CATV Corp , 458 U S 419, 102 S Ct 3164, 73 L Ed 2d 868 (1982), Griggs v Allegheny County, 369 U S 84, 82 S Ct 531, 7 L Ed 2d 585 {1962), United States v Causby, 328 U S 256, 261, 66 S Ct 1062, 90 L Ed 1206 (1946), United States v Cress, 243 U S 316, 37 S Ct 380, 61 L Ed 746 (1917) See also Eastern Enter, 524 U S at ----, 118 S Ct at 2145, Lucas v South Carolina Coastal Council, 505 U S 1003, 1015, 112 S Ct 2886, 120 L Ed 2d 798 (1992), Sparks v Douglas County, 127 Wash 2d 901, 907, 904 P 2d 738 (1995), Cuimont v Clarke, 121 Wash 2d 586, 597, 854 P 2d 1 (1993), Bert dented sub nom Dept of Community Dev v Gutmont, 510 U S 1 ] 76, 114 S Ct 1216, 127 L Ed 2d 563 (1994), Gutmont v City of Seattle, 77 Wash App 74, 80, 896 P 2d 70, review denied, 127 Wash 2d 1023, 904 P 2d 1157 (1995) (FN17) Eg, Eastern Enter, 524 US 498, 118 S Ct 2131, Dolan, 512 U S 374, 114 S Ct 2309, Lucas, 505 U S 1003, 112 S Ct 2886, Loretto, 458 U S 419, 102 S Ct 3164, Kaiser Aetna v United States, 444 U S 164, 100 S Ct 383, 62 L Ed 2d 332 (1979), Pennsylvania Coal Co v Mahon, 260 U S 393, 43 S Ct 158, 67 L Ed 322, 28 A L R 1321 (1922) (FN18) E g, Dolan, 512 U S 374, 114 S Ct 2309, Nollan, 483 U S 825, 107 S Ct 3141, Sparks, 127 Wash 2d 901, 904 P 2d 738 (FN19) E g , First English, 482 U S at 318-19, 107 S Ct 2378, Srntra, 131 Wash 2d at 656-57, 935 P 2d 555 (FN20) Lucas, 505 U S at 1015, 112 S Ct 2886, Gutmont v Clarke, 121 Wash 2d at 597, 854 P 2d I See, e g Loretto, 488 U S 419, 102 S Ct 3164, Kaiser Aetna, 444 U S 164, 100 S Ct 383, Griggs, 369 U S 84, 82 S Ct 531, Causby, 328 U S at 261, 66 S Ct 1062, Portsmouth Harbor Land & Hotel Co v United States, 260 U S 327, 43 S Ct 135, 67 L Ed 287 (1922), Cress, 243 US 316,37SCt 380 *358_ (FN21) Lucas, 505 U S at 1015-18, 112 S Ct 2886, Gutmont v Clarke, 121 Wash 2d at (FN23) See Eastern Enter, 524 U S at ----, 118 S Ct at 2146, Christianson v Snohomish Health Dist, 133 Wash 2d 647, 660, 946 P 2d 768 (1997), Gutmont v Seattle, 77 Wash App at 81, 896 P 2d 70 (FN24) PruneYard Shopping Ctr v Robins, 447 U S 74, 81, 100 S Ct 2035, 64 L Ed 2d 741 (1980) (State, in exercise of its police power, may adopt reasonable restrictions on private property so long as restiichons do not amount to taking without lust compensation), Goldblatt v Town of Hempstead, 369 U S 590, 592, 82 S Ct 987, 8 L Ed 2d 130 (1962), Mugler v Kansas, 123 U S 623, 664-65, 8 S Ct 273, 31 L Ed 205 (1887), Sparks, 127 Wash 2d at 907, 904 P 2d 738, Unlimtted v Kusap County, 50 Wash App 723, 727, 750 P2d 651, review dented, 111 Wash 2d 1008 (1988) ("property interest can be exacted without compensation only upon a proper exercise of government police power") (FN25) Keystone Bituminous Coal Assn v DeBenedmus, 480 U S 470, 492, 107 S Ct 1232, 94 L Ed 2d 472 (1987) (quoting Mugler, 123 U S at 664-65, 8 S Ct 273) See also Christianson, 133 Wash 2d at 666, 946 P 2d 768 (Talmadge, 7 , concumng) ("the most fundamental, and perhaps least controversutl, aspect of the police power" is "the absolute right of society to protect and preserve public health"), Presbytery of Seattle v King County, 114 Wash 2d 320, 329 n 13, 787 P 2d 907 (1990) If the statement in the text were not true, the government would have to pay compensation even to enlmn a landowner from maintaining a public nuisance See United Steelworkers v United States, 361 U S 39, 60, 80 S Ct 177, 4 L Ed 2d 169 (1959) ("Begmrung at least as early as the sixteenth century the English courts have issued mlunchons to abate public nuisances" (Frankfurter, J, concuning)), Pine Ctry v Munch, 42 Mmn 342, 44 N W 197, 198 (1890) (a municipal corporation may resort to a court of equity to aid in enforcing its public duties to preserve the health of its inhabitants) (FN26) Simpson v Ctty of North Platte, 206 Neb 240, 292 N W 2d 297, 300 (1983) (quoting McQuilhn, Municipal Corporations § 32 04 (3d © 2005 Thomson/West No clean to anginal U S Govt works 958 P 2d 343, 91 Wn App 505, Button v Clark County, (Wash App Dtv 2 1998) Page 13 ed 1977)) Stmpson rs quoted and relied on in (FN40) Unlimited, 50 Wash App at 727, 750 P 2d Dolan See also Sparks, 127 Wash 2d at 914, 904 651 P 2d 738 (FN27) Dolan, 512 U S at 391 n 8, 114 S Ct 2309, Christianson, 133 Wash 2d at 660, 946 P 2d 768, cf RCW 82 02 020 (no county shall exact a cash development fee "which the county cannot establish is reasonably necessary as a duect result of the proposed development or plat") (emphasis added) (FN28) 483 U S 825, 836, 107 S Ct 3141, 97 L Ed 2d 677 (1987) (FN29) Nollan, 483 U S at 828, 107 S Ct 3141 (FN30) Nollan, 483 U S at 828, 107 S Ct 3141 (FN31) Nollan, 483 U S at 828-29, 107 S Ct 3141 *358_ (FN32) 512 U S 374, 114 S Ct 2309, 129 L Ed 2d 304 (1994) (FN33) Dolan, 512 U S at 380, 114 S Ct 2309 (FN34) Dolan, 512 U S at 385-86, 114 S Ct 2309 (FN35) Dolan, 512 U S at 375, 114 S Ct 2309 (emphasis added) (FN36) Dolan, 512 U S at 391, 114 S Ct 2309 (emphasis added) (FN37) Nollan and Dolan use the term "legitimate state interest " Dolan, 512 U S at 386, 114 S Ct 2309, Nollan, 483 U S at 841, 107 S C[ 3141 A number of Washington cases use the term "legitimate public purpose." Christianson, 133 Wash 2d at 661, 946 P 2d 768, Presbytery, 114 Wash 2d at 330, 787 P 2d 907, Unlimited, 50 Wash App at 727, 750 P 2d 651 The two terms are synonymous for present purposes (FN41) Luxembourg Group, /nc v Snohomish County, 76 Wash App 502, 505, 887 P 2d 446, review denied, 127 Wash 2d 1005, 898 P 2d 307 (1995), Unlzmited, 50 Wash App at 727, 750 P 2d 651 (FN42) We also note the Nollan Court's comment, "Had Cahforma supply requued the Nollans to make an easement across their beachfront available to the public on a permanent basis m order to increase public access to the beach, rather than condrttoning their petrrut to rebuild their house on then agreeing to do so, we have no doubt there would have been a taking " Nollan, 483 U S at 831, 107 S Ct 3141 Essentially, this is a negative formulation of the proposthon m the text It says that the government may not use the pemutting process as a ve}ucle for solving public problems not created or exacerbated by any pro3ect (FN43) We also note the Dolan Court's comment, "Wtdtout question, had the city supply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than condthonutg the grant of her pernnt to redevelop her property on such a dedication, a taking would have occutxed " Dolan, 512 U S at 384, 114 S Ct 2309 As in the previous footnote, this is a negative formulation of the proposthon in the text It says that the government may not use the perrmthng process as a vehicle for solving public problems not created or exacerbated by any protect (FN44) Dolan, 512 U S at 384, 114 S Ct 2309, Nollan, 483 U S a[ 835 n 4, 107 S Ct 3141 See also Tnmen Dev Co v King County, 124 Wash 2d 261, 273, 877 P 2d 187 (1994) (quoting RCW 82 02 020) (no county shall exact cash development fees "which the county cannot establish is reasonably necessary as a direct result of the proposed development or plat") (FN38) Nollan, 483 U S at 841, 107 S Ct 3741, see also Nollan, 483 U S at 834, 107 S Ct 3141 (quoting Agins v Tiburon, 447 U S 255, 260, 100 S Ct 2138, 65 L Ed 2d 106 (1980) ("land use regulation does not effect a taking if tt'substanhally advance[s] legitimate state interests' and does not 'den[y] an owner economically viable use of his land' ")) (FN39) Dolan, 512 U S at 386, 114 S Ct 2309 (FN45) Nollan, 483 U S at 836, 107 S Ct 3141 (FN46) Nollan summarized taus by stating that if the govemment can constitutionally prohibit, it can constitutionally condition, but "constitutional propriety disappears if the condition substituted for the prolnbihon utterly fails to further the end advanced as the 3ushficahon for the prohibition " Nollan, 483 U S at 837, 107 S Ct 3141 © 2005 Thomson/West No claim to original U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Drv 2 1998) *358_ (FN47) Dolan, 512 U S at 375, 114 S Ct 2309 (FN48) Dolan, 512 U S at 391, 114 S Ct 2309 (FN49) 127 Wash 2d 901, 907, 904 P 2d 738 (1995) (FN50) Sparks, l27 Wash 2d at 907, 904 P 2d 738 (emphasis added) Later in its opuion, the Sparks court again noted that "local government must demonstrate that the exaction a unposes is 'roughly proportional' to the impact of the development" Sparks, I27 Wash 2d at 912, 904 P 2d 738 (emphasis added) (IN51) Dolan, 512 U S at 384, 114 S Ct 2309, Nollan, 483 U S at 835 n 4, 107 S Ct 3141 (FN52) The extent to which the government may rely on future events is not well settled As the Washington Supreme Court noted in Sparks, a case involving the exaction of easements for the widening of certain roads But the fact that the dedications m this case were unposed, in part, to accommodate anhctpated future improvement of the roads makes application of the Dolan standard less certain It is not clear whether, under Dolan, mumcipahhes may take into account future developments and then anhctpated cumulative unpacts Sparks, 127 Wash 2d at 914, 904 P 2d 738 (FN53) Because the record can never give a basis for infemng what the non-foreseeable future holds, the word "foreseeable" maybe redundant (FN54) 50 Wash App 723, 750 P 2d 651 (1988) (FN55) Unhmated, 50 Wash App at 727, 750 P 2d 651 (FN56) Unlimited, 50 Wash App at 727, 750 P 2d 651 (FN57) 206 Neb 240, 292 N W 2d 297 (1983) (FN58) Simpson, 206 Neb 240, 292 N W 2d at 300 (FN59) Simpson, 206 Neb 240, 292 N W 2d at 301 (FN60) We assume, for example, that the question could be answered by the county's statement that it Page 14 will condemn and constmct a road across Maddux's parcel if, after a certain period, Maddox has not done so, by a combination of Maddux's statement that she intends to develop soon and the county's statement that it will exact a road when she applies for a pemit to develop, by evidence showing that in the experience ofreputab]e and qualified urban planners, "mfill" parcels lilce Maddux's are usually developed wittun a certain tune after the urbanization process starts, or in a variety of other ways (FN61) Clerk's Papers (20372-3-II) at 96 (FN62) Clerk's Papers (20372-3-II) at 30 (FN63) Clerk's Papers (20372-3-II) at 125-26 (FN64) Clerk's Papers (20372-3-II) at 716 (FN65) Clerk's Papers (20372-3-II) at 10 (FN66) See Guimont v Clarke, 121 Wash 2d at 594, 854 P 2d 1, Jones v Kmg County, 74 Wash App 467, 477-78, 874 P 2d 853 (1994) (FN67) The three-prong test involves "(1) whether the regulation is awned at achieving a legitunate public purpose, (2) whether rt uses means that are reasonably necessary to achieve that purpose, and (3) whether rt is unduly oppressive on the land owner " Christianson, 133 Wash 2d at 661, 946 P 2d 768, Guimont v Clarke, 121 Wash 2d at 609, 854 P 2d 1 Rephrased to include all governmental conduct, instead of 3ust one specific type of such conduct (the enactment of a regulation), the fist prong is the same as asking whether governmental conduct (i a ,the government's proposed solution to a perceived problem) is awned at a public problem, as opposed to a private one Presbytery, 114 Wash 2d at 330, 787 P 2d 907 Strrnlazly rephrased, the second prong is the same as asking whether governmental conduct tends to solve the identified public problem Presbytery, 114 Wash 2d at 330, 787 P 2d 907 The thud prong is at least azguably the same as asking whether the government's proposed solution is roughly proportional to that part of the identified public problem that the developer's pro3ect will create or exacerbate Because the fiord prong's purpose "is to prevent excessive police power regulations [i e , a specific form of governmental conduct] that require the landowner 'to shoulder an econormc burden, which in 3ushce and fairness, the public should rightfully bear,' Christianson, 133 ©2005 Thomson/West No claim to original U S Govt works 958 P 2d 343, 91 Wn App 505, Burton v Clark County, (Wash App Drv 2 1998) Page 15 Wash 2d at 664, 946 P 2d 768, it would seem that governmental conduct is not "unduly oppressive" if rt goes no farther than to require the developer to rectify pubic problems of the developer's own creation See generally Christzanson, 133 Wash 2d at 667, 946 P 2d 768 (Talmadge, J , concumng), Orson Corp v State, 109 Wash 2d 621, 646, 747 P 2d 1062 (noting, vnthout approval, that "commentators have also pointed out that the regulatory takings doctrine and the longstanding substantive due process test seem analytically identical"), cert denied, 486 U S 1022, 108 S Ct 1996, 100 L Ed 2d 227 (1988) Regazding the propriety of substantive due process as a overall concept, see Eastern Enter, 524U S at ----, 118 S Ct at 2153 (section IV-D of plurality opunon), Lochner v New York, 198 U S 45, 25 S Ct 539, 49 L Ed 937 (1905) *358_ (FN68) Burton did azgue for damages and fees in a trial brief He now claims that }us argument was litigated and decided by the trial court without oblechon from either party In fact, however, the teal court declined to consider his argument, saying he would have to pursue it in a separate proceeding Report of Proceedings (Oct 27, 1995) at 36 (FN69) Punton v City of Seattle Public Safety Comm'n, 32 Wash App 959, 970, 650 P 2d 1138 (1982), review denied, 98 Wash 2d 1014 (1983), overruled on other grounds by Danielson v City of Seattle, 108 Wash 2d 788, 742 P 2d 717 (1987), see also Cohn v Department of Corrections, 78 Wash App 63, 69-70, 895 P2d 857 (1995) (superior court lacked authority to award fees where admuustrahve board rt was reviewing lacked authority to award fees), cf Price v Fanners Insurance Co , 133 Wash 2d 490, 946 P 2d 388 (1997) © 2005 Thomson/West No claun to onguial U S Govt works ~. 691 P 2d 229, 38 Wn App 904, Miller v City of Port Angeles, (Wash App Dtv 2 1984) *229 691 P 2d 229 38WnApp 904 Court of Appeals of Washington, Division 2 John Z. MILLER and Mary E. Miller, husband and wife, Respondents, v. The CITY OF PORT ANGELES, a municipal corporation of the State of Washington; Sam Haguewood, in his capacity as Mayor of the City of Port Angeles, Carole Broadman• Harold Suck: Dorothy Duncan. John Hordyk Werner Quasi: and Robert Polhamus, in their capacities as City Councilmen of the City of Port Angeles, Appellants. No 6481-2-H. Nov 19,1984 Review Denied March 1, 1985 Developers brought action seeking writ of review of city's condmons to rts approval of subdivision plat, declaratory Judgment mvahdahng the conditions, and damages The Superior Court, Clallam County, Jay W Harmlton, J , by summary Judgment order cemfied appealable, found that disputed conditions were unconshtuhonal special assessments, and violated agreement between city and developers Damage clauns were dismissed Both parties appealed The Court of Appeals, Worswick, Acting C J ,held [hat (1) city acted reasonably by requirutg developers to widen adjacent roads as condition to approval of subdivision plat, (2) requirement that developers widen roads did not amount [o unconstitutional taz or assessment for road unprovements, (3) requirement that developers provide their share of improvement costs with respect to roads before there was any guarantee city would be able to raise the rest of the money was not unconshtuhonally vague, (4) crty could require widening of roads although one of the roads was outside of city's Jurisdiction, and (5) agreement between developers and city was mvahd and unenforceable Affirmed m part, reversed in part, remanded with directions West Headnotes [1] Appeal and Error f~80(4) 30 ---- 30III Decisions Reviewable Page 1 301II(D) Finality of Determination 30k75 Final Judgments or Decrees 30k80 Deternunahon of Controversy 30k80(4) Necessity for Accounting or Inquest of Damages Judgment of lability is not ordinarily appealable until damages have been awazded CR 54(b) [2] Appeal and Error G°~366 30 ---- 30VIITransfer of Cause 30VII(B) Pehhon or Prayer, Allowance, and Certificate or Affidavit 30k366 Certificate as to Grounds Trial court properly certified summary Judgment orders appealable although damages had not been awarded where there was no Just reason for delay of appellate review and issues would otherwise be heard on piecemeal basis CR 54(b) [3] Environmental Law C°~670 149E ---- 149EXIII Judicial Review or Intervention 149Ek668 Trine for Proceedings 149Ek670 Periods Applicable (Formerly 199k2515(5) Health and Environment) Thirty-day limit for contesting deterninahon that environmental mipact statement is required applied to developers' claims that city acted in bad faith m requiring prepazahon of environmental impact statement prior to development of subdivision West's RCWA 43 21C 080 [4] Zoning and Planning 0606 414 ---- 414X Judiaal Review or Relief 414X(C) Scope of Review 414X(C)1 In General 414k606 Perrmssions or Certificates, Decisions Relating To [See headnote text below] ~ 2004 West, a Thomson business No claun to original U S Govt works 691 P 2d 229, 38 Wn App 904, Miller v City of Port Angeles, (Wash App Drv 2 1984) [4] Zonmg and Planning C^~610 414 ---- 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)1 In General 414k608 Arbrtrary, Capacious, or Unreasonable Action 414k610 Decisions of Boards or Officers Decision by city to grant, deny or unpose conditions upon proposed plat is adrrumstrahve or quasi-Judicial m nature, review is luntted to detemunmg whether n satisfies constitutional requirements and is not arbitrary and capacious West's RCWA 58 17 110, 58 17 180 [5] Zonmg and Planning «685 414 ---- 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)3 Presumptions 414k680 Burden of Showing Grounds for Review 414k685 Permissions or Cemficates To succeed with then position that development would not create any additional problems on two roads and therefore no condition whatever concerning roads should have been imposed by city, developers had to show that city's actions were willful and umeasonnig, or without consideration or in disregard of facts and ctrcumstances of the case West's RCWA 58 17 110, 58 17 180 [6] Zonmg and Planning °G~382 2 4l4 ---- 414VIII Pertmts, Certificates and Approvals 414VIII(A) In General 414k382 1 Maps, Plats, or Plans, Conditions and Agreements 414k382 2 Streets, Improvements, and Uhhhes Before approving a subdrvisioq local government must consider adequacy of access to and within proposed subdrviston, and is empowered to conddwn approval of the plat upon adequate access West's RCWA 58 17 110 [7] Zomng and Planning C^~382 2 414 ---- 414VIII Penmts, Certificates and Approvals Page 2 4l4VIII(A) In General 414k382 1 Maps, Plats, or Plans, Conditions and Agreements 414k382 2 Streets, Improvements, and Uhhhes City acted reasonably by requirutg developers to widen adJacent roads as condmon to approval of subdivision plat where roads which would receive most of traffic from proposed subdivision would no[ be adequate to handle it and were already hazardous because [hey were narrow and had no shoulders West's RCWA 58 17 l10 [8] Mumcipal Corporations fs~405 268 ---- 268IX Public Improvements 268IX(E) Assessments for Benefits, and Special Taxes 268k405 Nature of Assessment or Tax City's requirement that developers widen roads adJacent to subdivision as condmon to approval of subdivision plat did not amount to unconshtuhonal [ax or assessment for road improvements, where, although burden of improving the roads was not imposed upon all adJacent property owners, need for urtprovements arose directly from the development, and developers were not required to pay more than then share of the costs West's RCWA 58 17 110 [9] Mumcipal Corporations 0405 268 ---- 268L{ Public Improvements 268IX(E) Assessments for Benefits, and Special Taxes 268k405 Nature of Assessment or Tax Where fees unposed by government body are intended pnmanly to regulate development of a speafic subdivision and not simply to raise revenue, they will not be considered taxes [10] Zonmg and Planning X382 2 414 ---- 414VIII Pemuts, Certrficates and Approvals 414VIII(A) In General 414k382 1 Maps, Plats, or Plans, Condmons and Agreements 414k382 2 Streets, Improvements, and Utilities Widening streets and installing controls for safety of pedestnans and vehicle traffic are regulatory ~ 2004 West, a Thomson business No claun to onginal U S Gov[ works 691 P 2d 229, 38 Wn App 904, Miller v City of Port Angeles, (Wash App Div 2 1984) measures within proper exercise of city's ponce power, and it can require that costs of the measures be borne by those who created the need West's RCWA 58 17 l10 [1l] Zomng and Planning 0382 414 ---- 414VIII Pertntts, Certificates and Approvals 414VIII(A) In General 414k382 Conditions Attached to Permission, in General Condthons imposed on special use peimits are upheld if they do not offend any provision of zoning ordinance, do not require legal conduct on part of peimittee, are in the *229 public interest, are reasonably calculated to achieve some legitimate oblechve of zoning ordinance, and are not unnecessarily burdensome or onerous to landowner [12] Zoning and Planrung x382 2 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382 ] Maps, Plats, or Plans, Conditions and Agreements 414k382 2 Streets, Improvements, and Uhhties City's requirement that developers provide then share of improvement costs with respect to roads adjacent to subdivision before there was any guarantee city would be able to raise rest of the money was not unconshtuhonally vague due to possibility of improvements and ultimate costs remained uncertain, however, developers were entitled to assurance if they did not get improvements they were helping [o finance, they would get [heir money back [13] Zoning and Planning C^.~382 2 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382 1 Maps, Plats, or Plans, Condthons and Agreements 414k382 2 Streets, Improvements, and Utilities City could require widening of roads adjacent to subdivision as condmon to approval of subdrvtsion plat, although one of the roads was outside of city's Iurisdiction where city conditioned that requirement on annexation or consent of government having Iurtsdtchon [14] Zoning and Planiing G°~381 5 Page 3 4l4 ---- 414VIII Permits, Certrficates and Approvals 414VIII(A) In General 414k378 Grounds for Grant or Denial 414k381 5 Maps, Plats, or Plans, Confoimity to Regulations City is required and empowered to make sure that subdivision developments are not inconsistent with [he public health, safety and welfare and that they comply with requirements of State Environmental Policy Act, n cannot avoid this responsibility and it cannot contract away its ponce power Wests RCWA 58 17 110 [15] Zoning and Planning f:~382 6 414 ---- 414VIII Pemuts, Cerhficates and Approvals 414VIII(A) In General 414k382 1 Maps, Plats, or Plans, Conditions and Agreements 414k382 6 Other Conditions or Agreements (Formerly 414k382 1) Agreement between developers and city was invalid and unenforceable to extent that rt could be read as prohibiting city from imposing additional conditions on development no matter what sort of development was produced West's RCWA 58 17 110 [16] Zonuig and Planning G~353 1 414 ---- 414VII Adrrunistration in General 414k353 Powers, Dunes, and Liabilities 414k353 1 In General (Formerly 4I4k353) Imposition of conditions of a subdivision involves discretionary governmental acts and is protected by discretionary immunity [17] Zomng and Planning f°~353 1 414 ---- 414VII Admuustrahon in General 414k353 Powers, Dunes, and Liabilities © 2004 West, a Thomson business No claim to original U S Govt works 691 P 2d 229, 38 Wn App 904, MIller v City of Port Angeles, (Wash App Dtv 2 1984) Page 4 414k3S31 InGeneral seeking a writ of review, a declaratory Judgment invalidating the condrttons, and damages The writ (Formerly 414k353) was Issued by strpulation and a return was made in due cowse Developers could not recover damages from city after city Imposed conditions to approve of subdivision plat, as city's actions were protected by discretionary Immumty [38 Wn.App. 905] *231 Wllham R Hickman, Seattle, Craig D Knutson, City Atty , Port Angeles, for appellants Clyde R Cory, Jr , Bellevue, for respondents WORSWICK, Acting Cluef Judge We are called upon to decide whether the Ctty of Port Angeles has power to unpose certain conditions on a real estate development The challenged conditions involve the improvement of two roads, one of which Is outside the CIty We hold the conditions valid, but that one must be clanfied John and Mary Mtller own 13 4 acres m the southern outskirts of Port Angeles The property was annexed to the Ciry in 1973 after the Millers and the City had entered Into a contract wtuch Imposed conditions on the development of an Imhal 24 lots After annexation, the Millers developed those lots for single family residences In 1978, they subrrutted a prelurinary plat for the development of 144 multrfarmly amts on the rest of the property The CIty determined that an Environmental Impact Statement was requved The EIS protected an additional 778 velvcle trips X38 Wn App 906] per weekday on adtacent roads This would result in a 22 percent increase m traffic on Golf Course Road which runs along the west side of the property and a 360 percent increase on Melody Lane to the south The EIS predicted that accidents would increase on these already hazardous roads As a consequence,the Crty attached conditions [o Its approval of the plat (FN1) Condition 1 a *232 requved that the north side of Melody Lane be widened and that curbs, gutters and sidewalks be provided Since Melody Lane was a [38 Wn.App. 907 county road, this condrhon was to apply only if the road was annexed to the Crty or the county agreed to the unprovements condrhon 1 b requved the Millers to contribute about $60,400 to a Golf cowse Road Arterial Improvement Fund, armed at vnproving a pomon of that road north of the development The Millers brought action m Superior Court [1][2] Beyond that, the record Is a procedwal quagmire Two different Judges parncipated over a two-year penod Pleadings were amended, multiple motions were made and defvirtive mlings were announced, a year went by before one of these mhngs found its way into an order It well suffice for present purposes to note that, by summary Judgment orders cernfied appealable under CR 54(b), (FN2) the "trial court" held that the disputed conditions were really special assessments and were unconstitutional because they were not unposed on all property abutting the road It also found the conditions m violation of the 1973 agreement It held that the Melody Lane condrtwn was ultra vves Damage claims based on allegations of negligence and wrongful requirement of an EIS were dismissed The Millers were X38 Wn.App. 908] allowed to pursue their damage clauns for breach of contract, subtect to lirruts as to the penod of time involved Further proceedings were stayed pending this appeal by both parties *233 A multitude of issues Is raised concerning the validity of the condrttons, the Ciy's right to require improvements of a county road, the effect of [he 1973 agreement, and the Ciy's exposwe to liability for damages We hold that the conditions are vabd, that the CIty has the qualified power to requve Improvement of a county road, that the 1973 agreement does no[--and could not--affect the Ciy's power, and that the City Is not liable for damages However, we hold that one condition must be clanfied [3] At the outset, we observe that the Issues raised here were properly dectded by summary tudgment for there aze no relevant material facts m dtspute Wilson v Sternbach, 98 Wash 2d 434, 656 P 2d 1030 (1982) Ttus is so notwithstanding the Millers' claim that the CIty acted m bad fatth m requvmg preparation of an EIS They argued that the City's actions stemmed from a desire to discowage the development, or at least delay rt until neighborhood opposition could be organized They base this supposmon on the friendly relations between a certain City councilman and an architect who had lost the bid on the subdivision This argument, in addition [o being purely speculative, is barred by the Millers' failure to contest within the statutory 30-day time hrrut the threshhold deternunation that an EIS was requved RCW © 2004 West, a Thomson business No claun to original U S Govt works 691 P 2d 229, 38 Wn App 904, Miller v City of Port Angeles, (Wash App Div 2 1984) 43 21C 080, Hayden v Port Townsend, 93 Wash 2d 870, 613 P 2d 1164 (1980), Oden Inv Co v Seattle, 28 Wash App 161, 622 P 2d 882 (1981) The Millers' basic position is that their development would not create any additional problems on the two roads and therefore no conditions whatever concemmg roads should have been imposed We disagree [4][5] A decision to grant, deny or unpose conditions upon a proposed plat is adttunistrahve or quasi-judicial m nature Review is limited to determining whether it satisfies constrtutwnal requirements and is not arbitrary and capncious [38 Wn.App 909 RCW 58 17 180, (FN3) Lechelt v Seattle, 32 Wash App 831, 835, 650 P 2d 240 (1980) To succeed with their position, the Millers had to show that the City's actions were willful and umeasoniig, or without consideration of or in disregard of the facts and cucumstances of the case West Hdl Gnzens for Controlled Dev Density v King Cv Council, 29 Wash App 168, 627 P 2d 1002 (1981) They have not done so [6][7] Under RCW 5817110, (FN4) before approving a subdivision a local government is required to make sure that appropna[e provisions have been made for the public health, safety and general welfare It must consider the adequacy of access to and within the proposed subdivision, and rt is empowered to condition approval of the plat upon adequate access Lechelt v Seattle, supra The infonnahon collected in the environmental review process indicated that the roads which would receive most of the traffic from the subdivision simply were not adequate to handle rt Melody Lane and Golf Course Road were already hazardous because they were narrow and had no shoulders, and because passing sight distances were restricted by [he rolling terrain The EIS predicted an increase m traffic accidents as a result of the vehicular trips generated by the project In addition, the fire departrnent pointed out that because the development was farther than the recommended distance from the nearest fire station, Golf Course Road *234 would have to be widened to pennit a reasonable [38 Wn.App. 910] response time The increased traffic was also expected to increase police response rime Against this showing, the Millers presented the City Council with only the testimony of the coordinator for the EIS and of a Bellevue traffic engineer that the roads had the capacity to handle the increased traffic However, d was also noted m the EIS that unstable flow, congestion and intolerable delay can occur well Page 5 below capacity A need for the improvements was clearly demonstrated, dvectly related to the traffic which would be generated by the development The City acted reasonably to meet that need The condmons were not arbitrary and capncious [8] The Millers next contend that, because the burden of improving the roads was not imposed upon all adjacent property owners, the conditions were unconstitutional Thts posrtton is based on the argument that the conditions amounted to a tax or assessment for road unprovements We disagree [9][10] Not all requirements for payment by a government body are taxes Where the fees are intended prunanly to regulate the development of a specific subdivision and not simply to raise revenue, they will no[ be considered taxes Hillis Homes, Inc v Snohomish Cy, 97 Wash 2d 804, 650 P 2d 193 (1982) Widening streets and installing controls for the safety of pedestrians and vetucle traffic are regulatory measures within the proper exercise of [he City's police power, and it can require that the cost of these measures be borne by those who created the need See State ex re! Myhre v Spokane, 70 Wash 2d 207, 216, 422 P 2d 790 (1967), Gerla v Tacoma, 12 Wash App 883, 533 P 2d 416 (1975) [] 1] The need for the improvements arose directly from the development Moreover, the Millers were not required to pay more than then share of the cost They were regwred to improve only the side of Melody Lane that abutted their property Thev contnbuhons to the Golf Course Road Artenal Improvement Fund amounted to only 18 percent of the projected total, the remainder to be supplied from the municipal street fund, an LID composed of other abutting [38 Wn.App. 911] owners, and matching federal funds On these facts, we fail [o see how [he City acted unfauly in carrying out its responsibilities under RCW 58 17 110 (FNS) [12] The Millers also argue that the condition pertaining to Golf Course Road was unconshtuhonally vague because the possibility of the improvements and the ultimate cost remained uncertain (FN6) We are not persuaded Constmchon costs can rarely be (mown precisely m the plannuig stages and the fact that actual expenditures may vary, even substantially, from the estimates is not enough to invalidate the condmons See Pacific Cy v Sherwood Pactftc, Inc, 17 Wash App 790, 567 P 2d 642 (1977) ~ 2004 West, a Thomson business No claim to onginal U S Govt works 691 P 2d 229, 38 Wn App 904, Miller v Ctty of Port Angeles, (Wash App Dtv 2 1984) However, inasmuch as the Millers are being required to provrde then share of the *235 unprovement costs before there is any guarantee the Crty will be able to raise the rest of the money, they are entitled to some assurance that if they do no[ get the unprovements they are helping to finance, they will get their money back We believe that is what the Ctty intended, but condmon 1 b does not clearly say so Paragraph 6 provides [38 Wn App. 912] "vt If the moneys deposited by the developer into the Golf Course Road Arterial Improvement Fund are not expended a[ the end of seven (7) years from the effective date of Ordinance No 2094 (August 18, 1980), they shall be returned to the developer, in accordance wrth Section 4 of Ordinance No 2094 The Millers argue that under this language, all or part of then money can be spent in obtaining financing, whether or no[ the unprovements are undertaken These admimstrahve costs are not directly related to the problems generated by the development and cannot be charged to the Millers Should the improvements not be accomplished, then money must be returned, and paragraph 6 should say so explicitly This is an easily conected enor, however, and does not require invalidation of condthon 1 b Under circumstances such as these, an appellate court tray return the case ro the agency or governing body to permit n to coned the oversight Skold v Johnson, 29 Wash App 541, 553, 630 P 2d 456 (1981) See also Barrie v Kitsap Cy, 93 Wash 2d 843, 613 P 2d 1148 (1980), and Washrngton Publre Employees Assn v Comm College Dist 9, 31 Wash App 203, 642 P 2d 1248 (1982) [13] The Millers next contend that even tf such conditions could be unposed under proper circumstances, they cannot involve property outside the local government's Jurisdiction We disagree The Crty was required to consider effects of the development outside its tenitory and mmgate them f possrble Save our Rural Envrronment v Snohomrsh Cy, 99 Wash 2d 363, 662 P2d 816 (1983), Cathcart-Maltby Clearvrew Community Council v Snohomrsh Cy, 96 Wash 2d 201, 634 P 2d 853 (19$1), Save A Valuable Envrronment v Bothell, 89 Wash 2d 862, 576 P 2d 401 (1978) Under the rule established by these cases, Port Angeles had only two alternatives It had to find a way to rmtigate the effects on the two roads, or it had to deny the Millers' application It is more sensible to pertmt a mumcipahty to deal positively with problems like Page 6 these than [o require tt to avoid the problems by [38 Wn.App. 913] denying the developments Therefore, we hold that a Ctty may properly require an improvement outsrde of t[s territorial Jurisdiction if it conditions that requirement on annexation or the consent of the government having Jurisdiction [14][15] Finally, the Millers contend that the City was prevented by the 1973 agreement from imposing any additional conditions on their development Our response is short The Crty is required and empowered to make sure that subdrviston developments are not inconsistent with the public health, safety and welfare and that they comply with the requirements of SEPA RCW 5817110, Loveless v Yantis, 82 Wash 2d 754, 765, 513 P 2d 1023 (1973) It cannot avoid this responsibility and it cannot contract away its police power Raymond Lumber Co v Raymond Lrght & Writer Co, 92 Wash 330, 159 P 133 (1916), Terrace Ncrghts Sewer Drst of Yakrma Cy v Young, 3 Wash App 206, 473 P 2d 414 (1970) If and to the extent that the 1973 agreement can be read as prohibiting the Crty from imposing addrhonal condmons no matter what sort of development the Millers produced, it was invalid and unenforceable (FN7) [16][17] Because we hold the conditions valid, we need not discuss damages However, we feel compelled to note that damages suitply would not be recoverable m this case The imposmon of conditions on *236. a subdivision involves discretionary governmental acts and is protected by discretionary tmmumty See Northwest Land & /nv Co , Inc v Bellrngham, 31 Wash App 742, 644 P 2d 740 (1982) The City's actions here fully satisfy the criteria for governmental immunity set forth m Bender v Seattle, 99 Wash 2d 582, 664 P 2d 492 (1983) (FN8) Its land use policies were involved It was acting [38 Wn.App. 914] under explicit statutory authority, and it carefully balanced the risks and advantages of its actions The orders disrrussing the Millers' claims are affirmed The orders preserving any such clamis for trial are reversed Remanded with directions that the City clarify the conditions consistent with this opinion PETRIE and HICKS, J7, concur (FNl) There were 8 condmons in all The Millers did not object to the other 7, involving pedesman walkways, storm drains, waste disposal, open space and landscaping ~ 2004 West, a Thomson business No claun to original U S Govt works 691 P 2d 229, 38 Wn App 904, Miller v City of Port Angeles, (Wash App Dtv 2 1984) Pertinent parts of the drsputed condrtions, 1 a and 1 b, provided "a Melody Lane shall be improved to a width of 28 feet with curb, gutter and sidewalk on the north side Improvements shall include provisions for storm drainage and be subJect to approval by the Port Angeles Public Works Department (This condition is subJect to approval by the Clallam County Comrmssion or by acgmsition of title to Melody Lane by the Ctty through an annexation petition by residents of Melody Lane, whichever is fast) [sic ] "b Golf Course Road from Melody Lane to the south boundary of Highway 101 shall be improved and upgraded, including street alignments at intersections of Third, Fourth and Fitch Streets, m accordance wnh specifications of the Department of Public Works The developer of Uplands No 4 Subdivrsion shall make monetary contributions toward the cost of providing the requued unprovements to Golf Course Road, by contributing to a special "Golf Course Road Artena] Improvement Fund" m accordance wuh the following procedures "r The total cost, m July, 1980, dollars, for the necessary improvements to Golf Course Road is estimated to be $340,036, which includes constmchon of the street, curbs, and sidewalk on one side m accordance with the City of Port Angeles, Washington State Department of Transportation, and Amencan Public Works Association specifications and standards "u The percentage of total cost to be borne by Uplands No 4 development is $60,424 90 Tlus figure is determined by dividing the 778 average trips (ADTs) generated by the development of Uplands No 4, as descnbed in the EIS, by the total average daily tnps (ADTs) after constmction of Uplands No 4 (4,378 ADTs), as descnbed m the EIS, and multiplying that percentage (18%) by the total cost necessary to construct Golf Course Road "ni The total cost to be borne by each dwelling unit m Uplands Division 4 is $416 66 This figure is determined by drnding the total share borne by Uplands No 4 ($60,424 90) by the total number of dwelling onus (144) Thus, for construction proposed in Uplands No 4, Phase II (24 amts), the total contnbuhon is $9,999 84 " (FN2) All orders were certified to be final and appealable under CR 54(b), which provides Page 7 "When more than one claim for relief is presented in an action, whether as a claini, counterclaun, cross-claun, or thud-party claret, or when multiple parties are involved, the court may direct the entry of a final Judgment as to one or more but fewer than all of the clauns or pames only upon an express detemunahon in the Judgment, that there is no Just reason for delay and upon an express duechon for the entry of Judgment " A Judgment of habrhty rs not ordinanly appealable until damages have been awarded Bowrng v Board ojTrustees of Green River Comm College Drst X, 85 Wash 2d 300, 534 P 2d 1365 (1975) However, it is appropnate for us to consider all of the issues now, rather than hearing the case on a piecemeal basis See Schrffman v Hanson Excavatrng Co ,Inc , 82 Wash 2d 681, 513 P 2d 29 (1973) We agree with the trial court's certification that there is no Just reason for delay of appellate review m this case See Doerflrnger v New York Lrfe /ns Co , 88 Wash 2d 878, 567 P 2d 230 (1977) (FN3) RCW 58 l7 180 provides in pertinent part "Any decision approving or disapproving any plat shall be reviewable for unlawful, arbitrary, capncwus or corrupt action or nonaction by wnt of review before the supenor court of the county in w}uch such matter is pending " (FN4) RCW 58 17 110 provides, in relevant part "The city, town, or county legislative body shall inquue into the public use and interest proposed to be served by the establishment of the subdivision and dedication It shall detemm~e if appropnate provisions aze made for, but not limited to, the public health, safety, and general welfare, for open spaces, drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, saes fot schools and schoolgrounds, and shall consider all other relevant facts and determine whether the public interest will be served by the subdivision and dedication " *236_ (FNS) We would also point out that the condmomng of plat approval is analogous to the imposition of conditions on special use pernnts In that context, the conditions are upheld if they (1) do no[ offend any provision of the zonuig ordinance, (2) do not require illegal conduct on the ©2004 West, a Thomson business No claun to onginal U S Govt works 691 P 2d 229, 38 Wn App 904, Mdler v City of Port Angeles, (Wash App Dtv 2 1984) part of the pemuttee, (3) are m the public interest, (4) are reasonably calculated to achieve some legitimate obJechve of the zoning ordinance, and (5) are not tmnecessanly burdensome or onerous [o the landowner Gerln v Tacoma, 12 Wash App a[ 889, 533 P 2d 416 Those requiements are satisfied here (FN6) Paragraphs 4 and 5 of Condttion 1 b provided '4v For dwelling amts developed pursuant to later approval, the cost per amt shall be detemm~ed by adjusting the cost figure in [he calculation above The cost figure increase shall be de[emiined by use of the Engineering News Record Constmchon Cost Index, using July, 1980, as the base period, and $340,026 as the base cost If the road has already been constmcted, then the actual cost of construction shall be used to detemm~e the per-amt cost "v The remaining funds required for improving Golf Course Road will have to consist of Municipal Arterial Street Funds, moneys derived from an LID , and other approved sources These funds Page 8 shall also be placed into the Golf Course Road Arterial Improvement Fund " (FN7) That agreement is innocuous and can easily be read as contemplating nothing more than the immediate 24-lot development We prefer, however, to rest our decision on broader grounds (FN8) The criteria suggested by Bender are "(1) Does the challenged act necessarily involve a basic governmental policy, program, or obJechve~ (2) Is the act essential to the realization or accomplishment of that polrcy, as opposed to one which would not change the course or diechon of the policy, ~ (3) Does the act, require the exercise of basic policy evaluation, Judgment, and expertise of the governmental agency involved ~ (4) Does the agency possess the regmsue constitutional, statutory, or lawful authority and duty to do or make the challenged act, or decision" (5) Is there actual evidence that the agency consciously balanced the risks and advantages Bender v Seattle, 99 Wash 2d at 588-89, 664 P 2d 492 © 2004 West, a Thomson business No claim to original U S Govt works MEMOR~ND UM City of Yelm Community Development Department To Stephen K, Caussea//utc, Jr, Hearing Examiner From Grant Beck, DirectoV~~ Date November 19, 2004((((((............~~~,,, Subt Request for Reconsideration -APP-04-0128-YL (BLA-04-0099-YL) The Community Development Department opposes the request for reconsideration of the Examiner's decision regarding an appeal of the denial of a boundary line adiustment The request is to allow the developer to bond for improvements required for the completion of the boundary line adjustment It is the policy of the City to accept a financial guarantee only when circumstances outside the control of the developer prevent the completion of a project under construction and only when the work remaining is minor and would not prevent the development from basic functionality if not complete immediately In this case, the 'development' being kept from completion is the purchase of the property, according to the request for reconsideration Further, the conditions which require connection to City services are required for the new lot to be consistent with minimum area requirements It is the City's practice for all financial guarantees of the nature being requested to require 150% of the total amount of the improvement to be deposited with the City in it's trust fund Bond's have not been accepted as a form of financial guarantee except for road protects which require the Washington State Department of Transportation's approval Finally, the applicant has already applied for a subdivision of the property subtect to the boundary line adtustment and that application has been determined to be incomplete, in part because the application does not accurately depict the property as it exists at this time c Cathie Carlson, Parametrix 8770 Talon Lane NE Lacey, WA 98513-6641 City of Yelm Community Development Department Invoice No. CDD-04-111 - Customer Name Parametrix Attn Candace Address 8770 Tallon Lane NE City Lacey State WA ZIP 98516 Phone INVOICE - Date 11/10/2004 Order No Rep SUB-04-0175-YL FOB Griffin Subdivision Item Description Umt Price TOTAL 22 Photocopies $0 10 $2 20 SubTotal $2 20 Payment Details Shipping & Handling $0 00 O Cash Taxes WA Q Check ~ TOTAL $2 20 Office Use Only City of Yelm Community Development Department P O Box 479 Yelm, WA 98597 (360) 458-3835 THANK YOU aTlO TAIlAN IaNC NI: IACEY, WA 9$516b641 T 360 459 36°9 F 360 459.0154 www paramc4ta coin Received NOV S 2004 November 8, 2004 PMX# 257-4812-001 Stephen K Causseaux, Jr ,Hearing Examiner c/o City of Yelm P O Box 479 Yelm, WA 98597 7 Date: ~-~~ `~_ Re Appeal of Boundary Lme AdJustment Denial BLA-04-0099-YL and APP-04-0128-YL Dear Mr Causseaux We are writing to request reconsideration of the conditions m your decision of the above-referenced appeal Freestone DFF Yelm II LLC is unable to comply with Conddion 1 prior to recording the Boundary Lme Adjustment for the following reason The owner of the property, Kathryn Dotson, well not allow her property to be connected to City water and sewer until the purchase of her property has been completed Freestone DFF cannot purchase the property until the BLA has been recorded In order that the Boundary Lme Adjustment may be recorded and to assure that the property will be connected to City water and sewer and all appropriate fees paid, we request that Freestone DFF Yelm II LLC be permitted to post a bond for these improvements The amount of the bond would include the cost of the water and sewer connection and other fees associated with connecting the site to City water and sewer, including inspection fees, latecomers charges, and abandonment of the existing septic system and well The proposed amount of the bond is 150% of the total amount of these improvements Freestone DFF Yelm II LLC will submit the total estimated cost to the City of Yelm for review and approval We request that Freestone DFF Yelm II LLC be allowed a maximum 90 days from date of recording of the Boundary Lme Adjustment to complete the improvements Your consideration of our request is appreciated Sincerely, PARAMETRIX 'J /J X21 Cathie Carlson G o kadkl812\I 10804 nE rtwdficauon request City of Yelm Community Development Department 105 Yelm Avenue West P.O. Box 479 Yelm, WA 98597 November 2, 2004 Scott Griffin Freestone DFF Yelm II LLC P O Box 73669 Puyallup WA 98373 Re Griffin Subdivision Application Dear Mr Griffin Oh October 28, 2004, the City received your application for Preliminary Plat and has determined that the application is incomplete The following items must be submitted or completed before this application can be processed 1 The preliminary plat maps must show the location of Yelm Creek, and its ordinary high water mark 2 The preliminary plat maps must show the 200-foot shoreline jurisdiction area and the flood zone area separately 3 The preliminary plat maps must show wells and septics on or within 200-feet of the site Please be sure to show the City's well and radius located to the southeast of this property 4 The preliminary plat maps must show dimensions of lots, streets, property borders, etc 5 A conceptual landscape plan must be submitted with application 6 The legal description is incorrect The boundary line adjustment is not complete, therefore Parcel B of BLA-04-0099-YL does not exist We cannot process this application until the boundary line adjustment is complete and recorded pursuant to the letter from Grant Beck, ~ dated October 28, 2004, or that the property identified as Parcel B of BLA-04-0099-YL is 5 incorporated a part of the subdivision application u ~`yJ If you have any questions, please feel free to caH me at (360) 458-8408 Sihcerely, Grant Beck Community Development Director cc Cathie Carlson, Parametrix (360) 458-3835 (360) 458-3744 FAX www ci yelm wa us ENGINEERING. iLANNING. ENVIRONMENTpI SCIENCES 8770 TALLON LAN L' NE LACEY, WA 98516-664] T 360.459.3609 F 3G0.459.Oli4 w wpuamevu coin T R A N S M I T T A L F O R M To Tami Mernman, Assistant Planner Date October 28, 2004 City of Yelm Pro/ect Number 257-4812-001 105 Yelm Avenue W. Protect Name Griffin Place Yelm, WA 98597 We are transmitting the following materials: Preliminary Plat application for Griffin Place Comments: The Preliminary Plat application for Griffin Place Is attached, together with 1 Check In the amount of $2,150 2 10 folded copies of plans 3 1 reduced 11x17 copy of plans 4 Environmental Checklist 5 Adtacent property owners mailing labels 6 Two copses of Traffic Impact Analysis prepared by JTE, Inc 7 Preliminary Drainage Report, prepared by Parametrix Please contact me If you need any additional Information ~Gp~ ~~~D D2t~: These are ^ PER YOUR REQUEST Sent Vla ^ U S MAIL ^ FOR YOUR INFORMATION ^ GROUND SERVICE ® FOR YOUR REVIEW AND APPROVAL ^ EXPRESS OVERNIGHT ^ FOR YOUR FILES ^ COURIER ^ FOR YOUR ACTION ®HAND DELIVERY/PICK UP S/in/~cerely, // cc Scott Griffin (~~/j~~~~u'//"/f~//~/Z/j{/ o\cad\257-4812-001/02/corres/prellmplat Candace Cramer transmittal doc (Rev 07104) City of elm Community Development Department 105 Yelm Avenue West P.O. Box 479 Yelm, WA 98597 October 28, 2004 Kathryn Dotson 16440 Middle Road SE Yelm, WA 98597 J Scott Griffin, Jr Freestone DFF Yelm II LLC P O Box 73669 Puyallup, WA 98373 Dear Kathryn and Scott Enclosed is a copy of the Hearing Examiner decision regarding the appeal of the Cty's denial of your application for a boundary line adjustment The Examiner granted the appeal and approved the boundary line adjustment with the condition that the home site be connected to the City's sewer and water system In order to complete and record the Boundary Line Adjustment, the connection to City services wdl need to be completed Towards that end, the following issues need to be addressed as part of connection to sewer and water. • The sewer connection fee ~s currently $5,269 00 with a $145 00 inspection fee A standard residential STEP system wdl be regwred to connect the residence to the sewer line located in Middle Road • The water connection fee is currently $1,500 00 and a standard residential meter is $300 00 pre-tapped and pre-plumbed The water main is located in Middle Road • The property is subject to a sewer latecomers charge of $5,608 46, which is payable at the time of connection • The property is subject to a water latecomers charge of $5,851 55, which is payable at the time of connection • The existing drainfield wdl have to be abandoned pursuant to the regwrements of the Thurston County Health Department • The existing well must be decommissioned (360) JSd-3835 (360) 45d-3744 FAX mmm ctyelm moue OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO. APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YLRPP-04-0128-YL APPELLANTS Kathyrn Dotson 16440 Middle Road SE Yelm, i,~J:, 98597 Freestone DFF Yelm II LLC J Scott Griffin, Jr Puyallup, WA 98373 SUMMARY OF REQUEST Kathyrn Dotson and Freestone DFF Yelm II LLC appeal the denial of a boundary line adtustment between two parcels of land currently under the ownership of Ms Dotson SUMMARY OF DECISION Appeal granted, subtect to conditions PUBLIC HEARING After reviewing Planning and Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing cn ±he rar~~ec4 ~c fnllcUic The hearing was opened on October 12, 2004, at 9 00 a m Parties wishing to testify were sworn in by the Examiner The following exhibits were submitted and made a part of the record as follows EXHIBIT "1" - Planning and Community Development Staff Report and Attachments GRANT BECK appeared, presented the Community Development Department Staff -1- • • No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded at 9 30 a m NOTE A complete record of this hearing is available in the City of Yelm Community Development Department FINDINGS. CONCLUSIONS AND DECISION FINDINGS 1 The Hearing Examiner has admitted documentary evidence into the record, viewed the property, heard testimony, and taken this natter under advisement 2 This request is exempt from review under SEPA 3 Notice of this request was advertised in accordance with the Yelm Municipal Code 4 The applicant has a possessory ownership interest in abutting, rectangular parcels of property, one of which contains ten acres and the other eight acres The parcels abut Middle Road SE on the northeast and Yelm Creek on the southwest Improvements on the site include a single family residential dwelling and outbuildings, most of which are on the larger lot A circular driveway entering the site from Middle Road SE provides access to the single family dwelling 5 The applicant submitted a request for a boundary line adtustment (BLA) which proposed to combine the parcels and create a 39,198 square foot lot which would support the existing single family dwelling and outbuildings The applicant proposed the BLA to allow subdivision of the balance of the site into 41 single family residential lots, but exclude the newly created lot from the subdivision The City denied the BLA by letter from Grant Beck, Community Development Director, to Scott Griffin, Caddis Construction dated August 11 2004 lNilliam Lynn, attorney at law, timely filed an appeal of said denial on August 24, 2004 6 Mr Beck denied the BLA application in part because the newly created lot supporting the home violated Thurston County Health Department codes and Washington Administrative Code (WAC) standards which regwre a minimum lot size of one acre for those lots having both an individual well and on-site sewage disposal system Furthermore, the 100 foot wide, protective well radius would not be contained within the boundaries of the proposed lot Mr Beck also denied the application as the newly configured lots do not meet the density requirements of the applicable Medium Density Residential (R6) zoning district of the Yelm Municipal Code (YMC) Mr Beck also denied the BLA because the application represented -3- • r • Section 17 15 050(A) YMC provides A Minimum lot area None The applicable Moderate Density Residential District (R-6) zone classification does not require a minimum or maximum lot area, but does require a maximum density of six dwelling units per acre and a minimum density of three dwelling units per acre The City asserts that creation of a lot which does not meet maximum density violates the criteria for a BLA set forth in RCW 58 17 040(6) However, said section prohibits creation of lots with "insufficient area and dimension to meet minimum requirements for width and area for a bwlding site" Said section does not prohibit creation of lots which do not meet minimum density requirements However, the Examiner agrees v:ith Staff that the intent of the BL.4 exempr~on is to prohibit creation of lots which do not comply with the requirements of the applicable zone However, in the present case, the BLA creates no new lots and the density remains constant The newly created lot meets the minimum density requrements assuming creation of other lots of the same size Therefore, the BLA does not alter the density of the overall parcel 10 The appellant fully intends to subdivide the larger lot and must meet all City development standards The smaller lot with the home would not be included within the subdivision and not subject to subdivision requirements However, it is reasonable for the City to consider frontage improvements across the newly created lot based upon the BLA and the regwrement that the subdivision serve the public use and interest and make appropriate provision for the public health, safety, and welfare CONCLUSIONS 1 The Hearing Examiner has turisdiction to consider and decide the issues presented by this request 2 The appellant has estab~ished that the proposed BLA falls within the exception set forth m RCW 58 17 040(6) and also complies with the requirements of Section 16 28 010 YMC Therefore, the appeal should be granted and the application for boundary line adjustment approved subtect to the following conditions 1 The appellant shall connect the newly created, smaller lot to City sewer and water 2 Approval of this BLA shall not prohibit the City from requesting frontage improvements across the smaller upon preliminary plat application for the larger lot -5- CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL BLA-04-0099-YL and APP-04-0128-YL NOTICE 1 RECONSIDERATION Any interested party or agency of record, oral or written, that disagrees with the decision of the heanng 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 heanng examiner and shall not include evidence which was available or which could reasonably have been available and simply not presented at the hearing for whatever reason The request must be filed no later than 4 30 p m on November 8, 2004 (10 days from mailing) with the Community Development Department 105 Yelm Avenue West, Yelm, WA 98597 This request shall set forth the bases for reconsideration as limited by the -~- • (OR APPROVED EOVAL) MIDSTATES BCF-1416 12RL SERVICE SADDLE ROMAC 2025 OR ROCKWELL 313 METER BOX z a w .- a 3 1°x 1" FORD GRIP JOINT CORPORA710N STOP TYPE FH 1101 1 ° PLASTIC LINE (USE 200 PSI J DR7 PHILLIPS DRISCO PIPE'S100 POLYETHYLENE PIPE) VALVE BOX OR 4' D1A PVC RISER SEE NOTE BELOW 27 SLOPE TO BOX 18' e ~ CURB e /~~\~~ a s a a e e VALUE BOX FOR SIDEWALK OR TRAFFIC SETTINGS, SEE OWG NO 6-12 USE 4" DIA SCHEDULE 40 PVC WITH CAP FOR 07HER INSTALLATIONS 14 GAUGE INSULATED COPPER TONING WIRE WRAPPED AROUND 7HE PIPE (SEE GENERAL NOTES NO 7)- y FORD B61-444-G, GRIP pZ 1~2 JOINT BY I P THREADS 1 ° A1ALf ADAPTER - 3/4" X 1" X 12" BELL REDUCER ~ 1"x 1° FORD GRIP JOINT CORPORATION STOP TYPE FB 1101 SERVICE SADDLE NOTES 1. STAINLESS STEEL INSERTS REQUIRED FOR ALL PACK JOINTS. 2 ALL SERVICE SADDLES SHALL AND FITTINGS SHALL HAVE lP THREADS METER BOX SIDEWALK SERIES 36 CONCRETE CONCRETE OR CONCRETE "BROOKS DRIVEWAY SERIES 36 CAST IRON & OTHER CONCRETE TRAFFIC COVER TRAFFIC OR AREAS FOG TITE B9H •CARSON "CARSON EARTH (SERIES 1419-8 (PLASTIC 1419 1111 1B 14 METER CHECK VALVE 19 1/2° PVC CAP 12" 12" FORD VH 72-i5W 5/8"x 3/4° COPPER METER SETTER Wt TH CHECR VALVE AND UNION NUT AND SIMNEL FOR CONNECTING 1" IRON PIPE CITY OF YELM, WASHINGTON DEPT OF PUBLIC WORKS 5/8" SINGLE METER SERVICE APPROVED DWG NO PUBLIC WORKS DIRECTOR DATE G- DES DWN CKD DATE TEW TEW DLM 3~ 1 S~OO PL 1/4"x12"x12° HOT DIPPED GALVANIZED FORM CONDUITS TO POST OR CHANNEL SEE TYPICAL PUMP CONTROL PANEL DETAIL DRAWING ;y6 rO~ pUMP CONTROL I I PANEL PVC CONDUITS III 4"x8' PRESSURE TREATED POST ~ 1/4'x3"x6" HOT ATTACH CONDUIT TO DIPPED GALVANIZED POST WITH STAINLESS CHANNEL STEEL TWO HOLE STRAPS CONCRETE EXISTING GROUND 1 ~ i Z ~ ~~ N V IO v - ~ TO NEW TO STEP TANK ELECTRICAL PANEL ° DIRECT BURY CABLE DIRECT BURY CABLE ~ 12' DIA. DEPT OF PUBLIC WORKS REMOTE POST -RESIDENTIAL PUMP CONTROL PANEL INSTALLATION APPROVED OwG NO CITY ENGINEER DATE ~- PMX I PMX I MTO 4/11 EDCE OF 2' WATER TIGHT HOUSE CAP TYPICAL IN PROTECTED AREAS NON-PROTECTED AREAS (LAWNS, ETC ) 2'-0" TAIL REQUIRE SERVICE BOXES (CARSON OR RICH) ABOVE "' - GROUND I ~ EXISTING GROUND FROM _ HOUSE ""'""~ 14 GA COPPER TONING WIRE WRAP ONCE AROUND CLEAN OUT STANDPIPE NEW 4" PVC SEWER TOP OF STEP TANK PVC C O LINE (TYP) (3034) TEST TEE 2% SLOPE TO TANK BAFFLE FERN CO COUPLING OR APPROVED EQUAL FERNCO COUPLING OR APPROVED EQUAL CITY KS TYPICAL CONNECTION APPROVED DWG NO CITY ENGINEER DATE ~- / DES DWN CKD DATE PMX PMX MTO 4/11/00 • u "`STAFF REPORT City of Yelm Community Development Department To Stephen K Causseaux, Jr , Heanng Examiner / From Grant Beck, Director of Community Development Date October 5, 2004 Subject Appeal of Boundary Line Adjustment Denial BLA-04-0099-YL APP-04-0128-YL Appellant Kathryn Dotson Freestone DFF Yelm II LLC 16440 Middle Road SE J Scott Gnffin, Jr Yelm, WA 98597 Puyallup, WA 98373 Location 16440 Middle Road SE Tax Parcel Numbers 64303600700 and 64303600600 Proposal Appeal the denial of a Boundary Line Adjustment I. INTRODUCTION Kathryn Dotson and Freestone DFF Yelm II LLC appeal the denial of a boundary line adjustment between two parcels of land currently under the ownership of Ms Dotson II. BACKGROUND Katheryn Dotson owns two parcels of land between Middle Road and Yelm Creek approximately 8 4 and 10 acres m area. The larger of the parcels contains Ms Dotson's residence, garage, on-site sewage disposal system, well, and several outbuildings Access to the home is provided by a circular driveway with two access points on Middle Road On January 14, 2004, apre-submission meeting was held with Darren Buck and bdl Ostoruske regarding a potential subdivision of the Dotson parcels. The original site plan submitted with the pre-submission request did not include the area occupied by Ms Dotson's home as part of the subdivision, did not show frontage improvements in front of the 'home site' on Middle Road, and showed the two driveway access points from the 'home site' to Middle Road. The City's position has consistently been, both during and after the pre-submission meeting, that the `home site' could not be separated from a subdivision of the underlying property and the 'home site' lot would be regwred to connect to City water and sewer and that access to the lot must be consistent with the provisions of Yelm's adopted • development regulations The existing 10 acre parcel of land which contains the 'home site' has always been part of the potential subdivision of the property and has been shown as being divided into residential lots Middle Road is classified as a Neighborhood Collector This type of street is designed to provide access from neighborhoods to an artenal The design of a collector street includes no provisions for on-street parking or direct access from residential lots Section 16 16 050 YMC states that lots within a residential subdivision shall be designed so that lots adjacent to artenal and collector streets are not allowed direct access Subsequent to the pre-submission meeting, staff from the Community Development Department reviewed several proposals by Parametnx, Inc , a land use planning and engineering firm, to approve direct access to the 'home site' from Middle Road as part of the subdivision of the property The Community Development Department indicated that it would support the retention of a single access point to Middle Road from the 'home site', prow i s nveway from the Fort Stevens Elementary School due to concerns with site distance and that the access would be removed within ~x years of the date of the final subdivision When the application was submitted for the boundary line adjustment, the Department notified the applicant that it was the City's position that, if the boundary Ime adjustment were approved, the 'home site' lot would still have to comply with Yelm's development standards as part of the upcoming subdivision III. ANALYSIS The proposed division creates a lot which contains insufficient area to meet minimum area requirements for a building site pursuant to State and County health regulations The appeal confuses this simple issue by argwng that Thurston County can modify the standards found in the State and local health regulations or that through the further manipulation of the lot lines and granting themselves easements may bang the proposed adjustment into conformance with these area requirements Section 21 2 5 of the Thurston County Health Code and Section 246-272-20501 WAC are perfectly clear regarding the minimum area requirements for an on-site sewage disposal system and require no further analysis by the Thurston County Health Department At least one acre of property is required in order to meet minimum area requirements, which is not achieved by the proposed boundary Ime adjustment October 6, 2004 Page 2 of 4 • At this time, no information indicating that the boundary line adjustment meets the minimum land area requirements of the Health Codes has been provided to the City 2 The proposed boundary Ime adjustment creates a lot which does not comply with the minimum land area requirements of the Zoning Code The Yelm Zoning Code does not establish minimum lot sizes in the residential zoning districts, including the medwm density zoning district (R-6), which is the designation of the Dotson parcels Instead, the minimum land area requirements of the zoning code are regulated through the minimum and maximum density requirements, which is 3 units per acre to 6 units per acre in the R-6 district The existing 10 acre parcel is legally non-conforming, but could be subdivided and achieve these densities, which is the intent of the appellant It is not inconsistent to review both the minimum and maximum densities as minimum land area requirements under Section 58.17 040 (6) YMC as the size of a parcel created through a boundary Ime adjustment could, and does in this case, be of a size which is neither small enough to meet the minimum density nor large enough to be redeveloped to meet the minimum density In effect, the proposed boundary Ime adjustment makes the parcel more non-conforming by decreasing the likelihood that it wdl ever meet density regwrements This issue would not arise if the 'home site' is included in the proposed subdivision 3 The boundary Ime adjustment is one of a series of actions designed to avoid subdivision requirements and the regwrements of Yelm's development regulations The existing Dotson parcels were not created under the provisions of the State Subdroision Act, Chapter 58 17 RCW as each lot is greater than five acres or 1/128fh of a section The use of a subsequent boundary Ime adjustment to create a lot that would be subject to the regwrements of the Subdivision Act In effect, a lot could be created that has no access, can not be served by on-site sewage disposal systems or a well and does not meet the findings for approval of a subdivision or short subdivision as found in Sections 58 17 060 and 110 RCW Further, the boundary line adjustment is clearly a step in a series of actions designed to avoid the regwrements for development of property m Yelm Although the City has exercised the discretion avatlable m Section 16 16 050 YMC by allowing a single driveway access to be maintained on Middle Road for a period of six years after the final subdivision is approved, the City Engineer could not in his professional judgment allow the access closest to the sharp curve with limited sight distance near an elementary school to remain as part of the development of the Dotson parcels October 6, 2004 Page 3 of 4 • IV. CONCLUSION The boundary line adjustment application is an attempt to piecemeal development in order to avoid development regwrements and does not meet the provisions of Section 58 17 040 (6) and the denial should be upheld OMober 6, 2004 Page 4 of 4 .y o~ p~ THE p~~ r I 1 ' YELM WASHINGTON CITY OF YELM OFFICIAL USE ONLY PO BOX 479 Fee ~ Date Received ?tx- j =~ Yelm WA 98597 File No ~C~ - ~ y L 360-458-3244 NOTICE OF APPEAL Fee Staff Decision - $50 00 Hearing Examiner Decision - $100 00 (In adddion, any professional service char es er Resolution #358 ~~F' , ~~,~~G AUG 2 4 P004 A Closed record appeal may follow either an open record hearing or an open record administrative decision on a proled permit application when the appeal is on the record, and no or limited new evidence or intortnation is allowed to be submitted Appeals on Category I & II protect decisions are - heard by the Cdy Council Appeals on Category III & IV protect decisions as well as Category 1811 decisions which have been appealed to the Cdy Council go to Superior Court and follow the ludiaal review process set forth in RCW 366 70C A Notice of Appeal must be filed within 14 days of Notice of Final Deasion. PROJECT CASE NUMBER BEING APPEALED BLA- 0 9 - 0 0 9 9 -YL DATE OF NOTICE OF FINAL DECISION August , APPELLANT(S) Kathryn Dotson Freestone DFF Yelm II LLC MailmgAddress i e co ri in, r. City, State and Zip a m, W O ox Telephone - uya up, (253) 896-1300 SPECIFIC ITEMS OF DECISION BEING APPEALED (attach additional sheet dnecessary) _ 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 cdy which apply to this application Signed Date J3 Signed ~ Date Q ~~y-~0 y *Successor to addis Construction CITY OF YELM Community Development Department GROUNDS FOR APPEAL Re: Scott Griffin Boundary Llne Adiustment The following are the grounds for appeal for the Applicant's appeal of the City's August 11, 2004 decision +n the Griffin Boundary Line Adjustment. 1 The City asserts that the proposed Boundary Line Adtustment violates the Thurston County Health Code and corresponding provisions of the Washington Administrative Code This conclusion is erroneous for the following reasons: A. Those provisions are administered by the Thurston County Health Department which has not concluded, as the City has, that the proposed adtustment would wolate the cried provisions; B. There are readily available alternatives to the sled minimum lot size requirements inc{uding minor increases in the size of the relevant parcel, the provision of an off-site easement for drainfield proposes, etc. The Applicant is ready, willing and able to modify its proposal to meet these requirements, and should have an opporturnty to do so as opposed to having its application summarily denied; C. WAC 246-272-2501 states that a person proposing a development shall obtain approval from the local health officer pnor to any development where the use of an on-site septic system is proposed. The City did not give the local health officer an opportunity to rewew, comment, and/or approve/deny the application, D Additional soils work may confirm that the site has adequate area and sods along the western portion of the lot for a reserve drainfield and, if so, the lot size may be satisfactory to the Health Department. Again, the Applicant should have had an opportunity to exhaust these alternatives pnor to the City even considering denial of the Boundary Lme Adtustment; E. As another alternative, the Applicant could connect the site to the Guy's water system which would likely affect the application of the Health Department's regulations; and F The 100-foot well radius can be located within the boundaries of the proposed lot, and/or on adtacent property restricted by covenant. The Applicant can obtain or prowde such a covenant and should be given the option to do so. 2. The next basis for denial of the Boundary Lme Adjustment was that the proposal did not meet minimum density requirements for the medwm density residential (R-6) zoning district and that the density requirement could not be achieved through any re- h2~seia ~sl - 1 - division of the property due to the size of the parcel and the requirements of the subdivision code. This conclusion is erroneous for the following reasons. A RCW 58.17.040(6) exempts from the regwrements of the Subdivision Act "A division made for the purpose of alteration by adjusting property Imes, between a platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a budding site" An adjustment meeting those regwrements is exempt from local regulatory authority as well. The subtect proposal is consistent with and falls within the express language of this exemption; B. More specifically, the proposed lots do contain sufficient area and dimension to meet minimum requirements for width and area. The exemption does not specify that created lots must meet minimum density requirements, and the C'dy may not read such a requirement into the exemption language; C. In fact, the proposed Boundary Lme Adjustment brings the subject property closer in conformance to any minimum density requirements by reducing the size of the parcel; D Grven the existing improvements that have been constructed on the property, the proposed lot is the smallest that could practically be designed to encompass the home and its accessory improvements. To require that the lot be smaller denies the Applicant its rights under the common law and statutory provisions regarding non-conforming uses and vested rights; E. The conclusion that the lot is too large to meet density regwrements is directly contrary to the first cited basis for the City's denial that the lot is too small; F. The applicable rules appear to conflict with respect to the size of the lot, with the Health Department regulations setting forth a minimum size and the Zoning Regulations setting forth a maximum size. The Health Department regulations address a matter of public health and have prionty over and supersede the later-adopted zoning requirements; and G The subject property can be re-developed in the future to bring it into greater conformity with minimum density requirements. 3. As the third basis for its decision, the City asserts that Ms. Dotson's parcels were not created through the subdivision process and thus the Boundary Line Adjustment process is not available That is expressly contrary to RCW 58 17.040(6) which allows the adjustment between "platted or unplatted tots or both". liz~sa~a~2j - 2 - 4. The City's decision is otherwise contrary to law, including but not limited to RCW Chapter 58.17 and RCW 58.17 040(6) and the Crty of Seattle vs. Cnspin, 149 Wn 2d 896, 71 P 3rd 208 (2003) 5 The Cty's decision is arbitrary and capricious DATED this 23`° day of August, 2004. Respectfully Submitted, GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON 8~ DAHEIM By. I,~~. I William T. Lynn WSBA No. 07887 1201 Pacific Ave., Suite 2100 PO Box 1157 Tacoma, WA 98401-1157 (253)620-6416 I~z~sa7a Uzi - 3 - City of Y~Cm Community Development Department 105 Yelm Auenue West P.O. Bos 479 Yelm, WA 98597 August 11, 2004 Scott Gnffin Caddis Construction P.O. Box 73669 Puyallup, WA 98373 Re. Gnffin Boundary Line Adtustment Dear Mr. Gnffin The City of Yelm has completed its rewew of your application for a Boundary Line Adjustment between two parcels of land owned by Kathryn Dotson located on Middle Road The City has detenrnned that the proposal would create a lot which does not meet zoning and health code standards, and hereby denies the application Section 58 17040 (6) RCW exempts a division made for the purpose of alteration by adjusting boundary Imes, which does not create any additional lot nor create any lot which contains insuffiaent area and dimension to meet minimum regwrements for width and area for a budding site from subdivision requirements Section 16 28 010 YMC indicates a boundary line adjustment should be approved upon finding compliance with mirnmum zonng, health, building and other land use regulations and with the Yelm comprehensive plan and that the adiustment wdl not adversely affect access, easements or drainfields Specifically, the proposal is inconsistent with the following health code and zoning code standards: Section 21 2 5 of the Thurston County Health Code and Section 246-272-20501 WAC indicate that the minimum lot size of a parcel that is served by an on-site sewage disposal system and a mdiwdual well is one acre under the most favorable sod conditions Additionally, these sections of the health codes require the well radius be contained within the property lines of lot (2C0~1583835 (2i8) 158.2!11 FAX mmmsL>el~nma.w The proposed lot which contains Ms. Dotson's home is served by an individual well and on-site sewage disposal system and is proposed to be less than one aae in size The 100 foot well radius would not be contained within the boundaries of this proposed lot The Yelm Zoning Code establishes both maximum and minimum density requirements in the Medium Density Residential (R~) zornng district The mirnmum density is 3 urnts per acre, which is not achieved through the creation of a lot less than one acre in area Further, this regwrement could not be achieved through any rediwsion of the property due to the size of the parcel and regwrements of the subdivision code Ms Dotson's parcels were not created through the subdivision process found in Chapter 58.17 RCW, as the creation of parcels 5 acres or larger is exempt from the regwrements of the State Subdivision Act Allowing the creation of a parcel which would normally be subject to the standards of a subdivision or short subdiwsion from an exempt division circumvents the protections bwlt into the land division process, such as the requirements of the health codes noted above, but also those related to access, connection to public services, and other policies of the Comprehensive Plan expressed through the City's development regulations The decision to deny your application for boundary line adjustment may be appealed to the Cdy of Yelm Hearing Examiner by filing a written appeal which clearly identifies the basis for the appeal and an appeal fee of $50 00 to the Community Development Department no later than 14 days from the date of this letter e ,~ Beck, Director iunity Development Department August 9, 2004 Page 2012 LAw OFFICES • CORDON THOMAS HONEYWELL MALANCA PETERSON & DAHEIM LLP I ACOMn OFFICE 1201 PACIFIC Av[NUE SUITE 2200 POST OFFICE BO>< 1159 TACOMA WnSMINGTON 96<OI 1157 12531 620 6500 FACSIMILE 125316206565 $EATiLE OFFICE ON[ UNION $OUNRE 600 UNrvER51TV QUITE 2100 SEATTLE Nn SN1rv GTON 98101 •165 12061 6T6 J500 F nC 51 MILE 12061 696 )SJS REPIV TO TACOMA OFFICE WILLIAM T LYNN ATTORN[T AT 4Aw DIRECT (2531 6206x16 12061 696 6116 E MAIL IynnwQ p,h lew tom July 14, 2004 Taint Memman As;iilam i=iariner City of Yelm P O Box 479 Yelm, WA 98597 RE Boundary Line AdJustment Application for Kathryn Dotson, Trustee Dear Ms Memman W'e represent Caddis Construction, and your letter of July 19, 2004 concerning the above referenced boundary line adJustment has been referred to us for action We are confident the City does not have the authonty you assert in your letter In the first place, the boundary line adJustment is exempt from the City's authonty over subdivisions under the provisions of RCW 58 17 040(6) Such adJustments are simply not Wlithin the City's regulatory authonty. Once the City concludes that the boundary line adJustment meets the description set forth in this statutory provision, the Crty may not deny, or impose conditions on any "approval". That is clear from the statute and has been made even more clear from the Supreme Court's decision in Seatrle v Crispin, 149 Wn.2d 896 (2003) There, the property owners simply adJusted their property lines by a series of deeds The court held that was an exempt action, not subJect to later Gty review As you know, Caddis Constmction intends to purchase the larger parcel and submit a subdivision application The City may not use its authority under the State Environmental Policy Act (SEPA) to assert control over property not owned by the applicant and not part of the application The impacts of the proposed subdivision will be those relating to the residential development that will occupy the subdivided property Impacts of the existing home, which Will be m a separate ownership and which has access that will be unchanged by the subdivision, will not be within the City's SEPA authority Case law from our State Supreme Court makes it clear that the City cannot exercise the authonty you have asserted. In Burton v Cfork Counlt, 91 Wn App 505 (1998) the Court liz7sss~.i aDEI GORDON THOMAS HONEYWELL MALANCA PETERSON & DAHEIM LLP July 14, 2004 Page 2 reviewed a subdrv~s~on approval on which the County had imposed several road improvement requvements The court identified four pnnciples that relate to the ~mposrtion of condmons on land use actions. Two are particularly relevant here that conditions may only be imposed to address a "public problem", and that the government must show that the development under consideration Hill create or make worse the ~dent~fied problem Here, the existing home and dnveway will remain exactly as they are without the subdlvis~on The subdivision will not create any problems associated with the dnveway, nor will the subdivision make any such problems worse As a result, the Ctty may not, within the bounds of the Conshtut~on, impose restnction on access from that home. We are very confident of the posmon Set forth m this letter and suggest that you review the City's authonty with the aty Attorney Please feel free to have the City Attorney contact the undersigned to discuss this matter Very t~ru~ly yours, C'~1--, Wtlllam T L WTL gam cc Scott Gnffin (1275887 vl docJ City of Yelm Community Development Department 105 Yelm Avenue West P.O. Bos 479 Yelm, WA 98597 July 9, 2004 Scott Griffin Caddis Construction P O. Box 73669 Puyallup, WA 98373 Re Boundary Line Adjustment Application for Kathryn Dotson, Trustee Dear Mr Caddrs The City has reserved your Boundary Lrne Adtustment for the Kathryn Dotson parcels, and is ready to proceed with the review I would Irke to bring to your attention, that although the Boundary Lrne Adjustment may be approved, it does not prevent the new parcels from review of the future residential subdivision that has been discussed Section 197-11-060(5) states that the Lead agency shall determine the appropriate scope and level of detail of environmental review to coincide with decision-making processes Section 197-11-060(5)(d)(ir) states that a phased review is not appropriate when it would divide a larger system into exempted fragments In other words, if the proposal consists of a series of actions that are rndrvidually exempt, but together may have a significant impact, the proposal is not exempt In this protect review, the boundary line adjustment is an exempt action, however, the resulting development of all the parcels must be reviewed for cumulative impacts In regards to that review, the new smaller parcel would still be included in the environmental review of the subdivision process and the traffic impact analysis Frontage improvements and driveway accesses will be considered for all parcels, whether the boundary line adjustment is completed or not ~reol rya-ae•r. racal Asa-zi~i rnx u•uno r~ rdm um un C~ G If you have any questions, please call me at (360) 458-8496 Sincerely, ~li7Z~ ~~~~2~~~~'L Tami Merriman Assistant Planner cc SPR Committee Kathryn Dotson Parametrix Jui~ g 200a Page 2 0l 2 Oq TIU: j, ~Y, ' ~,,~ ~; ~. ~'i:I.Ai WA51 ~1NGTON CITY OF YELM PO Box 479 Yelm WA 98597 360-458-3244 OFFICIAL USE ONLY IFee /;J ~7'~~1 ~.J / I Date Received By Fde No 13~/~ -v'-l-lX?~9t- yL APPLICATION FOR BOUNDARY LINE - ADJUSTMENT Fee 5100 0o OR LARGE LOT SUBDIVISION Fee 5250 00, + 510 00/lot (In addition, any professional service charges per Resolution #358) X Boundary Line Adjustment Large Lot Subdivision NAME OF PROJECT Griffrn BLA Owner of Parcel(s) X Purchaser of Parcel(s) Representative APPLICANT Scott Griffin. Caddis Construction Marling Address P O Box 73669 City, State and Zip Puvalluo. WA 98373 _ Telephone (2531896-1300 OWNER Kathryn Dotson. Trustee Mailing Address 16440 Middle Road SE City, State and Zip Yelm, WA 98597 Telephone SURVEYOR Parametnx Mailing Address 8830 Talton Lane NE City, State and Zip Lacev. WA 98516 Telephone (3601459-3609 PROPERTY DESCRIPTION General Location southeast of Middle Road between Green Acres Ln and Railway Road Address of Site (if assigned) 16440 Middle Road SE Area of Project (in acres, if possible) 18 36 acres Area of entire contiguous ownership (if other than above) Section 19 Township 17N Range 2E Assessor's Tax Parcel Number(s) of property included in this application 64303600700 and 64303600600 Zoning Distract R6 Moderate Density Residential Shoreline Designation Qf applicable) Na Comprehensive Plan/Sub-Area Plan Designation R6 Moderate Density Residential Type of on-site structures (give lot numbers) House and outbuildings on Lots A and B (SHOW LOCATION AND LABEL EACH STRUCTURE ON MAP) WHAT USES ARE PROPOSED FOR THE VACANT LOTS? The uses must be consistent with zoning, Single Family, on Lots Duplex, on Lots Multifamily, on Lots Commercial, on Lots Industrial, on Lots No uses are orooosed IF UNDECIDED, LOTS WILL BE REVIEWED FOR ONE SINGLE-FAMILY RESIDENCE PER LOT. Existing sewage disposal -None X Septic tank (date installed ) -Sewer (SHOW ON MAP) Proposed sewage disposal -None X Septic tank Sewer -Other Existing water supply None X Individual well on lot(s) # A (SHOW ON MAP) Community WeII -- Name of System or Owner Munici al Water S stem -- Name of Munici alit E-20 Proposed water supply None X Indroidual Wells Community Well -- Name of System or Owner Muniapal Water System -- Name of Municipality Special areas on your protect site (Show checked areas on map) None X Creek or Stream Yelm Creek River (Name) (Name) Lake/Pond (Name) Swamp/Bog Cliffs Draw/Gully Has a portion of your protect site ever flooded? No Do not know Yes, when't The southern Dortion of the side is mapped as a High Groundwater Hazard Area and Flood Zone (If yes, show area on map) BOUNDARY LINE ADJUSTMENTS ONLY Lot # A ,Lot Area in Square Feet 39,198 sf Lot # B ,Lot Area in Square Feet 760.324 sf Lot # ,Lot Area in Square Feet Lot # ,Lot Area in Square Feet Does the property being subdivided have citylcounty/state road frontage? No X Yes City of Yelm County State _ If yes, name of road Middle Road Right-of-Way width of road frontage varies If no, width and length of private road, easement or right-of-way feet wide by feet long If property to be divided is accessed by a private road, how many other parcels have access by this roads (Include vacant parcels ) (FOR YELM TOWNHOUSE SHORT PLATS ONLY) For existing townhouse units being short platted Do the common walls meet bwlding and fire codes Yes No For proposed townhouse units Has the applicant submitted the following to the Site Plan Review Committees _ Yes _ No (If no, your short plat will be held pending the submittal of those items listed below ) A) Bwldino Plans Typical front and side elevations and exterior architectural treatments of the proposed units B) Site Plans Location of buildings in relation to property and lot lines, off-street parking areas, patio and service areas, including garbage disposal areas, landscaping, walls, fences, public and private streets, driveways, all common facilities, open space and walkways In addition, lot size, percentage of ground coverage and open space shall be included as data on such plan A topographic map shall also be submitted showing existing and proposed contours at two-foot intervals and which locates existing streams, lakes, marshes and other natural features The regwrement of the topographic map may be waived by the Site Plan Review Committee if d deems it not necessary PLEASE PROVIDE A REDUCED SIZE COPY OF THE SITE PLAN AND/OR BLA, NOT LARGER THAN 11" X 17". E-2I Boundary Line Adjustment #_ Boundary Line Adjustment Map LINE TABLE SEC. 19, T.17N, R.2E, W.M. S~do~0~p9~ 5n5 yap 1N1 I6'~67 PER ORAINFlELD J535669 ~' CLEANOUT~ a i~ ~ rn ~ N 545'42'20"E I - 21B 12' -~~5. V ~~0~0 0`~~~~0 ~~~o ~0 0 m LINE LENGTH BEARING L1 105 68 N47'02 25 W L2 56 99 N45'08 49 W L3 241 57 542'24 58 W L4 162 65 N4670 30 W L6 241 93 N42'24 58 E L 7 58 28 547'32 25 E L8 87 62 545'42 20 E L8 NOUSE "W LINES 1 p ~ \ ~~ ~` 04, l 0 6~~G Q-~P1 OP o' O~ ~ 47 0 ~~ ~~P ~, I w 1 0,00 oG.E- ,`~O ~ ~ 0000 a ~~ o-~ X60 ~~, I~\GP ~pd~o,~60 o :~ o ~~ e 12 ~Q~ ~~P ~Q~ ~G~ N56'S9'33°W A' , 382 67' ~ N51'08'S7'W _ - 224 03' ~ ~~ = 200 ~ 100 200 HORIZONTAL DATUM \ NAD83/91 WASHINGTON STATE SOUTH ZONE CERTIFICATION OF CONFORMANCE I HEREBY CERTIFY THAT THIS BOUNDARY LINE ADJUSTMENT CONFORMS WITH THE REQUIREMENTS OF THE PLATTING AND SUBDIVISION ORDINANCE AS THE ADJUSTMENT DOES NOT CREATE ANY NEW LOTS CONTAINING INSUFFICIENT LOT AREA AND DIMENSIONS TO MEET THE MINIMUM REQUIREMENTS FOR WIDTH AND AREA FOR BUILDING SITES PLANNING DEPARTMENT DATE FILE D~BIp001SV-01_BU E.y DniE )/J/Dt Parametr(x 0 0 - 238 44' Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage 17 5 3 Comply with all local and state requirements stipulated in the OSSP and the operational certificate issued for the system SECTION 18 EXPANSIONS. The health officer shall require an on-site sewage system and a reserve area in full compliance with the new system construction standards specified in this article for an expansion of a residence or other facility SECTION 19 ABANDONMENT. Persons permanently removing a septic tank, seepage pit, cesspool, or other sewage container from service shall 19 1 Have the septage removed by a certified pumping firm, 19 2 Remove or destroy the lid, and 19 3 Fill the void with soil SECTION 20 SEPTAGE MANAGEMENT. 20 1 Only pumping firms certified by the health officer as per subsection 23 3 of this article shall remove septage from an OSS 20 Z A pumping firm removing septage from an OSS shall 20 2 1 Transport septage or sewage only m vehicles clearly identified with the name of the business and approved by the health officer, 20 2 2 Record and report septage removal to the health officer, 20 2 3 Dispose of septage, or apply septage biosolids to land only in a manner consistent with applicable laws SECTION 21 DEVELOPMENTS, SUBDIVISIONS. AND MINIMUM LAND AREA REQUIREMENTS. 21 1 A person proposmg any development shall obtain approval from the health officer prior to any development where the use of OSS is proposed Any new development proposing to use OSS shall be required to have an OSS which meets new construction standards 21 2 The health officer shall require the following prior to approving any development AMENDED June 1 1999 4-53 Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage 21 2 1 Site evaluations as required under section 11 of this article This may include information gamed in a protect review as noted in subsection 10 5 of this article, 21 2 2 Where a subdivision with individual wells is proposed 21 2 2 1 Configuration of each lot to allow a 100-foot radius water supply protection zone to fit within the lot lines, or 21 2 2 2 Establishment, through protective or restrictwe covenants, as appropriate, of a 100-foot protection zone around each existing and proposed well site Such zones shall be shown on the final plat map 21 2 3 Where a subdivsion to be served by a community well or wells is proposed, all regwrements of WAC 246-290 and WAC 246-291 shall be met This will include wellhead protection when applicable 21 2 4 Where preliminary approval of a subdivision is requested, provision of at least one sod log per proposed lot, unless the health officer determines existing soils information allows fewer soil logs, 21 2 5 Determination of the minimum lot size or minimum land area requred for the development using Method land/or Method II 21 2 5 1 METHOD I. Table VII, Single Family Residence Minimum Lot Size or Minimum Land Area Required Per Umt Volume of Sewage, shows the minimum lot size regwred per single family residence For developments other than single family residences, the minimum land areas shown are required for each unit volume of sewage TABLE VII MINIMUM LAND AREA REQUIREMENT SINGLE FAMILY RESIDENCE OR UNIT VOLUME OF SEWAGE Type of Sod Type (defined by section 11 of this article)' Water Supply 1A, 1 B 2A, 2B 3 4 5 6 0 5 12,500 sq 15,000 sq 18,000 sq 20,000 sq 22,000 sq Public acre' ft ft ft ft ft Individual, on or to 1 acre 1 acre 1 acre 1 acre 2 acres 2 acres each lot AMENDED June 1, 1999 4-54 Thurston County Board of Health Rules and Regulations Governing Disposal of Sewage When an OSS is proposed to be installed in soil types 1 B or 2 through 4 that are included in the Itst of Category I sod serves in Chapter 17 15 of the Thurston County Code (Critical Areas Ordinance), pressure distribution is required, at a minimum In addition, for those Category I soil series the minimum lot size restrictions found in Table 3 of Chapter 17 15 shall apply, and any lots less than 1 acre in size must be served by a public water system and an OSS meeting Treatment Standard 2 ~ Due to the highly permeable nature of type 1A soil, only alternative systems which meet or exceed Treatment Standard 2 can be installed 21 2 5 2 METHOD II A minimum land area proposal using Method II is acceptable only when the applicant 21 2 5 2 1 Justifies the proposal through a written analysis of the 21 2 5 2 1 1 Soil type and depth; 21 2 5 2 1 2 Area drainage, and/or lot drainage, 21 2 5 2 1 3 Public health impact on ground and surface water quality, 21 2 5 2 1 4 Setbacks from property lines, water supplies, etc, 21 2 5 2 1 5 Source of domestic water, 21 2 5 2 1 6 Topography, geology, and ground cover, 21 2 5 2 1 7 lunatic conditions, 21 2 5 2 1 8 Availability of public sewers, 21 2 5 2 1 9 Activity or land use, present, and anticipated, 21 2 5 2 1 10 Growth patterns, 21 2 5 2 1 11 Reserve areas for additional subsurface treatment and disposal, 21 2 5 2 1 12 Anticipated sewage volume, 21 2 5 2 1 13 Compliance with current planning and zoning requirements, AMENDED June 1, 1999 4-55 WAC 246-272-20501 Developments, subdivisions, and minimum land area requirements. (1) A person proposing the development shall obtain approval from the local health officer prior to any development where the use of OSS is proposed (2) The local health officer shall require the following prior to approving any development (a) Site evaluations as required under WAC 246-272-11001, excluding subsections (3)(a)(i) and (4)(d), (b) Where a subdivision with individual wells is proposed (i) Configuration of each lot to allow a one hundred-foot radius water supply protection zone to fit within the lot lines, or (u) Establishment of a one hundred-foot protection zone around each existing and proposed well site, (c) Where preliminary approval of a subdivision is requested, provision of at least one soil log per proposed lot, unless the local health officer determines existing sods information allows fewer sod logs, (d) Determination of the minimum lot size or minimum land area required for the development using Method land/or Method II. (i) METHOD I. Table VII, Single family residence minimum lot size or minimum land area required per unit volume of sewage, shows the minimum lot size required per single family residence. For developments other than single family residences, the minimum land areas shown are required for each unit volume of sewage TABLE VII MINIMUM LAND AREA REQUIREMENT SINGLE FAMILY RESIDENCE OR UNIT VOLUME OF SEWAGE Type of Sotl Type (defined by section 11001 of this chapter) Water Supply lA, IB 2A, 2B 3 4 5 6 Public 0 5 acre) 12,500 15,000 18,000 20,000 22,000 2 5 acre2 sq ft sq ft sq ft sq R sq ft Individual, 1 acres 2 5 2 1 acre 1 acre I acre 2 acres 2 acres on each lot acres 1 Due to the highly pcrmeablc nature of type I sod, only almmavve systems which inter or cncccd Tmatmcm gtandard 2 can be mstailcd Z A convenuonal gravity system m type I sad is only allowed r(e is m compliance wuh all condemns fisted under WAC 246-272-I 1501 (2)(h) Onc of these bmemg condemns is e 2 5 acre minimum lot sae • (n) METHOD II A mirnmum land area proposal using Method II is acceptable only when the applicant (A) Justifies the proposal through a wntten analysis of the (I) Soil type and depth, (II) Area drainage, and/or lot drainage, (III) Public health impact on ground and surface water~quality, (IV) Setbacks from property lines, water supplies, etc ; (V) Source of domestic water, (VI) Topography, geology, and ground cover, (VII) Climatic conditions; (VIII) Availability of public sewers, (IX) Activity or land use, present, and anticipated, (X) Growth patterns; (XI) Reserve areas for additional subsurface treatment and disposal; (XII) Anticipated sewage volume, (X111) Compliance with current planning and zoning regwrements, (XIV) Possible use of alternative systems or designs; (XV) Existing encumbrances, such as listed in WAC 246-272- 09001 (1)(c)(v) and 246-272-11001 (2)(a)(vu), and (XVI) Any other information required by the local health officer. (B) Shows development with public water supplies having (I) At least twelve thousand five hundred square feet lot sizes per single family residence, (II) No more than 3 5 unit volumes of sewage per day per acre for developments other than single family residences, and (C) Shows development with individual water supplies having at least one acre per unit volume of sewage; and (D) Shows land area under surface water is not included in the minimum land area calculation, and (e) Regardless of which method is used for determining required minimum lot sizes or minimum land area, submittal to the health officer of information consisting of field data, plans, and reports supporting a conclusion the land area provided is sufficient to (i) Install conforming OSS, (u) Assure preservation of reserve areas for proposed and existing OSS, (iu) Properly treat and dispose of the sewage; and (ro) Minimize public health effects from the accumulation of contaminants in surface and ground water. (3) The local health officer shall require lot areas of twelve thousand five hundred square feet or larger except when a person proposes: (a) OSS within the boundaries of a recognized sewer utility having a finalized assessment roll; or (b) A planned unit development with (i) A signed, notarized, and recorded deed covenant restricting any development of lots or parcels above the approved density with the density meeting the minimum land area requirements of subsection (2)(d) of this section, (u) A public entity responsible for operation and maintenance of the OSS, or a single individual owning the OSS, (iu) Management requirements under WAC 246-272-08001 when installing a LOSS, and (iv) Extinguishment of the deed covenant and higher density development allowed only when the development connects to public sewers (4) The local health officer may (a) Allow inclusion of the area to the centerline of a road or street right of way in a Method II determination under subsection (2)(d)(u) of this section to be included in the minimum land area calculation if (i) The dedicated road or street right of ways are along the perimeter of the development, (ii) The road or street right of ways are dedicated as part of the proposed development, and (III) Lots are at least twelve thousand five hundred square feet In size (b) Require detailed plot plans and OSS designs prior to final approval of subdivision proposals, (c) Require larger land areas or lot sizes to achieve public health protection, (d) Prohibit development on Individual lots within the boundaries of an approved subdivision If the proposed OSS design does not protect publlc health by meeting requirements of these regulations, and (e) Permit the Installation of an OSS, where the minimum land area requirements or lot sizes cannot be met, only when all of the following criteria are met: (i) The lot is registered as a legal lot of record created prior to the effective date of this chapter, (ii) The lot is outside an area of special concern where minimum land area has been listed as a design parameter necessary for publlc health protection, and (iIi) The proposed system meets all requirements of these regulations other than minimum land area [Statutory Authority RCW 43 20 050 94-09-025, § 246-272-20501, filed 4/15/94, effective 1/1/95 ] SEP-24-2004 FRI 02 59 PM PARAMETRIX FAX N0. 360 459 0154 P, Ol GNOINOERWO. PLANNING . 6NVIRONMRNT~I eC1ENCRE Be3a 1kLLON IdNE, St11T8 8 LACBY, WAS$ W CTON Aa516-6a/ l T 360•+59.3609 F Sao.IS9.0151 wwwpR~meo-a.mm F A X T R A N S M I T T A L FAX: 360-459~Ot 54 /PHONE: 360-469-3609 To' //~ ~ ^, ',,_ Date 1/ Z ~'/0 ~- //,1, ,~/< ~! ~l'/ 1~' ~"" From: %) _/~ /~, ~.lw- `UQY`1 Project Number Phone Protect Name. ccX ~~~ ' 3~~ Total Peges ^ URGENT ~] FOR REVIEW ^ PER YOUR REOUE5T ^ PLEASE REPLY ^ FOR YOUR FILES 6AOKUP COPY WILL NOT BE SENT Comments/Message: / ~I ~.~ v, ~ ~~~y;~ V L 2f Sf 0~ pate: ~~/ TNS taceimlle Is confldanual and may elao be a0omey pmllerJetl II you are nm the mlentle0 rodpieN or me person r9epof191b1a for im distnbuhon, please call w collect Immedialay al 380•a69d80D and re[um me orlpinal to ue vla vla U 5 Po9ufl Sarvico TTanN you (Rav o'Iro]1 -24-200~R~ 02;59 PM PARIETRIX ,„~,,.M'""" o>,~le usaiWeala b~kid uWW~ ~ ~~ r .~ ~~ S~ ~{ y ~ E~ ~ , 4 5~5 ~ 8 ,~~ 8~ $ ~ ~ ~~ $~i ~~Sg~Yg`~~7~y~~~5 ~~~ ~ r~~l ~~y ~ ~5~g ~ 2 ~yg $ {9 i~ .t ~ g ~ S E 3p`g ~~1 ~1 X.c e ~ -- ~ . - .,J w y~~ / ~ ~~ ' _~-- r - ~ - , ~ h 11 ___..----' _ _ _ -- '~'-- _ ' 4 a~ .. g ;3 ~ 1 ,4~~ t .~ ~ ~ ~ 1~ ~~~ 1 ~. ~ 1 a 1~ 1! 1 ~.-.-_ ~d ~ ~ ~ , ~~~ a t~` ~ ~ '~ x h ", __ ~ to F `,~ `~ ~- ~~ -• ¢ ~ ` 1 y L~ W 1 d r-- a } il n a R ~y ~ ~ M i ~ ~~ S t ~ ` ~~ s 1 ~ 1 r 1 ~ y '~ w` i ~ i i 1 ~ 1 ;py i`Qnt r ~ ~ pi ~ pJ. 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Grant Beck From• Cathie Carlson [ccarison@parametrix com] Sent: Thursday, May 06, 2004 11 23 AM To• gbeck@ywave com, tmerriman@ywave com Subject Fwd Flood Plain A obe FLOOD PLAIN pdf Grant, I spoke to Tami about the Middle Road Plat this morning Once the surveyor's located the 333' flood plain elevatron, we found that the flood plain location we discussed at the pre-sub was quiet a bit off The attached PDF shows the lot layout we did after the presub but now wrth the "real" floodplain - as you can see we have a number of lots, at varying levels, that are in the flood plain We'd like to fill the flood plain on all those lots plus another '-2 - 1 to ensure compliance with Section 15 32 290 (a) I know under FEMA rules we can do fill in the flood plain and I've reviewed YMC Chapter 15 32 to look for any additional regs All Z could find is Sect~_on 15 32 110 that requires a development permit for all development includrng fill and Section 15 32 210 Subdivrsron proposals that requires the proposal to be consistent with the need to minimize flood damage Which rndicates to me that fill could be allowed On the attached PDF, we also included a cross section of how the fill/excavation could work to ensure that what ever flood plain storage was lost due to fill that it was replaced with the same amount of excavation/storage So my question's axe - is this a viable approach, to fill those lots and excavate to provide for storage lost due to fill, and rf so what information do you need from use Thanks - give me a call if you have any questions or would like any additional info Cathie »> Leland Leahy 5/6/2009 10 58 19 AM »> Leland Leahy Parametrix, Inc 8830 Ta11on Lane Lacey, WA 96516 (360) 959-3609 - Olympic Office gQpG~~r~f~© /~-- Date: I i x i I I I I I I I I ~_~ L-J L-J L_J L_J ~_- - ~ ~,~~~ ~ ~ I II I~- -~ C_J L_J L_J L J L_J ~_J L__~a~~ FLOOD PLAIN EL 333 0 Ti ~ I I ~~ I , _ _ _ - - I I - - I _-- I-- ,, I REAR LOT LINE AREA (1:1 FILL FF 334.0 - ~ - FLOOD ZONE EL 333 0 i - - EX GROUND 1~~ _ _ _ ~``~ ~~\~~ ~ FILL CREEK - - _ . - - - - 3 1 SLOPE _ - - - EXCAVATED AREA ~~ APR-16-2004 FRI 04 16 PM PRRAMETRIX FAX N0. 360 459 0154 P, Ol IIIGINEERINO . 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