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HE Decision re Appeal of MDNS,` CASE NO. CITY OF YELM REPORT AND DECISION APPELLANT: OFFICE OF THE HEARING EXAMINER Appeal of Mitigated Determination of Non-Significance SUB-04-0175- YL, APP-05-0112-YL Freestone DFF Yelm II LLC,-Scott Griffin 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" - RCVV 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- 8 the R6 zone classification. The site previously consisted of two parcels with the house on 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 project 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 required 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 subdivision. Staff cited 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 driveway. 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 driveway. 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 -2- :i ;f 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 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 oh 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 streef 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- The applicant timely filed an appeal of said mitigating measures on April 4, 2005. 4. In its appeal applicant asserts that the City improperly imposes the condition on an existing single family lot not a part of the plat and therefore not subject to mitigation requirements. The applicant further asserts that because the house presently exists and because it will not change its use, it creates no impacts which can be mitigated. The appellant also asserts that the single family home does not create a specific adverse environmental impact identified in an environmental document and that the City has no written policies upon which it can base its mitigation. Finally appellant asserts that the preliminary plat and lot are under separate ownership and therefore the mitigation measures are not reasonable and capable of being accomplished. 5. The City asserts that the present subdivisio ~ process consists of a series of actions by both the appellant and the property owner of the excluded lot. The City asserts that at a presubmission conference in 2004, it advised that to gain approval of a subdivision, the applicant would need to remove the driveways of the existing home. In 2004 the home was located on a ten acre parcel and the balance of the site (8.5 acres) was vacant. In July, 2004, the appellant with the operation of the homeowner submitted an application for a boundary line adjustment (BLA) which reduced the size of the lot supporting the single family dwelling to 39,198 square feet and increased the vacant parcel available for development to 17.45 acres. The City denied the BLA, but following the appellant's appeal, the Examiner approved the BLA in accordance with the decision of the Washington Supreme Court in the case of the City of Seattle v. Crispin, 149 Wn. 2d~ 896 (2003). The Court ruled that BLAs are exempt from the subdivision process and that RCW 58.17.040(6) does not restrict a BLA to minor boundary changes. The City designates Middle Road as a collector street which does not allow direct lot access. The City asserts that when the impacts of the proposed subdivision and exempted lot are considered together, the retention of the driveway creates a subistantial adverse environmental impact. 6. The Supreme Court decision in Seattle v. Crispin, supra., exempts BLAs from the subdivision process. Thus, while the appellant adjusted property lines for two existing lots of record, such did not constitute a subdivision of the property. The property proposed for subdivision and th'e parcel supporting the single family residential home are separate and distinct, were not created by the BLA process, and were created at some time in the past either prior to adoption of the State Subdivision Act or in accordance with the short plat process. While the appellant could have elected to include the single family lot within the subdivision, it did not. The Examiner knows of no authority under the State Subdivision Act, the Yelm Municipal Code (YMC), or the State Environmental Policy Act (SEPA) which authorizes the City to require the appellant to combine the two lots and subdivide them as one parcel. ', -4- i 1i 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 projects 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 subdivision 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 in 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 significant adverse environmental impact. Furthermore, conditions of approval require 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- CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. In reviewing a procedural determination by the environmental official the Examiner is bound by the following: A. RCW 43.21 C.075(3)(d): If an agency has a procedure for appeals of agency environmental determinations made under this chapter, such procedures shall provide that procedural determinations made by the responsible official shall be entitled to substantial weight. B. WAC 197-11-680(3)(a)(6): Agencies shall provide that procedural determinations made by the responsible official shall be entitled to substantial weight. 3. The case of Hayden v. Port Townsend, 93 Wn. 2d 870 (1980), holds that the Hearing Examiner's standard of review for a SEPA is "clearly erroneous". A finding is "clearly erroneous" when although there is evidence to support it, the Examiner is left with the definite and firm conviction that the environmental official made a mistake. The burden is on the appellant to show that the environmental official's decision is clearly erroneous. 4. The appellant has shown that the environmental official improperly considered the BLA and preliminary plat applications as a process for avoiding the requirements of the subdivision code. The BLA increased the size of the parcel available for subdivision, but did nothing to increase the adverse impacts of the preexisting lot. -6- es DECISION: The appeal of Freestone DFF Yelm II LLC is hereby granted and mitigation measured 2(d) is eliminated. ORDERED this 24`h day of June, 2005. PHE K. CAUSSEAUX, JR. Hearing Examiner TRANSMITTED this 24`h day of June, 2005, to the following: APPELLANT: Freestone DFF Yelm II LLC, Scott Griffin 6820 - ZOth St. E. Fife, WA 98424 ATTORNEY FOR APPELLANT: 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 -~- CASE NO.: Appeal of Mitigated Determination of Non-Significance SUB- 04-0175-YL, APP-05-0112-YL NOTICE 1. RECONSIDERATION: Any interested party or agency of record, oral or written, that disagrees with the decision of the hearing examiner may make a written request for reconsideration by the hearing examiner. Said request shall set forth specific errors relating to: A. Erroneous procedures; B. Errors of law objected to at the public hearing by the person requesting reconsideration; C. Incomplete record; D. An error in interpreting the comprehensive plan or other relevant material; or E. Newly discovered material evidence which was not available at the time of the hearing. The term "new evidence" shall mean only evidence discovered after the hearing held by the hearing examiner and shall not include evidence which was available or which could reasonably have been available and simply not presented at the hearing for whatever reason. The request must be filed no later than 4:30 p.m. on June 11.2005 (10 days from mailing) with the Community Development Department 105 Yelm Avenue West, Yelm, 1/VA 98597. This request shall set forth the bases for reconsideration as limited by the above. -a- -.r The hearing examiner shall review said request in light of the record and take such further action as he deems proper. The hearing examiner may request further information which shall be provided within 10 days of the request. 2. APPEAL OF EXAMINER'S DECISION: The final decision by the Examiner may be appealed to the city council, by any aggrieved person or agency of record, oral or written that disagrees with the decision. of the hearing examiner, except threshold determinations (YMC 15.49.160) in accordance with Section 2.26.150 of the Yelm Municipal Code (YMC). NOTE: In an effort to avoid confusion at the time of filing a request for reconsideration, please attach this page to the request for reconsideration. -9-