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HE Decision OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO.: SUB-05-0456-YL – TRUMP PRELIMINARY PLAT APP-05-0628-YL APPLICANT/APPELLANT: RDS Design, LLC 2365 48th Avenue SW Olympia, WA 98512 SUMMARY OF REQUEST: The applicant is requesting preliminary plat approval to allow subdivision of 3.22 acres into 18 single family residential lots. SUMMARY OF APPEAL: The appellant is appealing Mitigating Measures 2(d) issued for the proposed Trump plat. SUMMARY OF DECISION: Request granted, subject to conditions. 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 August 7, 2006, 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 TAMI MERRIMAN appeared, presented the Community Development Department staff report, and testified that the City has vacated Trump Street north between Longmire and Cullen and said parcel is now included as part of a plat. Staff has required off-street road improvements due to traffic impacts on both Cullens Street and Longmire Street. The City will work with the developer regarding the timing of the construction. The City desires a looped water system with connections at both ends. Improvements on the site include a modular home and a conventional home and the conventional home will remain. Staff recommends approval subject to conditions. Ms. Merriman then addressed the environmental appeal and testified that a subdivision to the north is widening Cullens Street from an area north of Coates Street. However, Longmire Street is very substandard. The code requires off-site improvements to roads on both sides of the plat. TRENT LOUGHEED appeared on behalf of the applicant and testified that the City has not shown that traffic generated by the plat causes the need for the improvement. The traffic will not increase the road classification and the road constitutes an existing deficiency. The City could perform an LID or use other means to widen the street. They are contesting the requirement to construct two, 12 foot wide, travel lanes plus curbing. He anticipates a cost of about $75,000 to perform the work for the two 12 foot wide lanes. SCOTT RITTER appeared and testified that most of the plat traffic will access Cullens Street as most homes are located in close proximity therewith. Only one new home is located near Longmire. Traffic generally will travel west to the SR-510 intersection. MS. MERRIMAN testified that the City does not require a Traffic Impact Analysis if the subdivision generates less than 20 vehicle trips during the p.m. peak period. This subdivision generates only 18 so they did not require a TIA. However, the City must review access to the site. Any additional increase in traffic on Longmire will create problems for a substandard street. Southeast of the plat the City is providing a connection from 1st Street to Coates which will provide an access to the State bypass loop. The City considered that the cost of the construction for Longmire would be off-set by no cost for the road vacation and acquisition of the property. Staff recommended no changes as they were proposing a new street. MR. LOUGHEED reappeared and testified that no traffic now travels towards Coates, and the City project will cause an increase in traffic to the east. GRANT BECK, Community Development Director, appeared and testified that we need to distinguish between a concurrency issue and SEPA which is a gray area. Underlying the project is the concurrency code. He referred to the traffic charge, frontage improvements, and Section 15.40.020(5)(B) of the code. On Longmire Street two cars cannot pass as the photographs clearly show. The pavement measures 14 to 15 feet in width at some locations in both directions from the site. The City has no vehicle counts on Longmire Street at present and does not know how many vehicles this project will contribute. The road has no speed limit signs, but the code provides a 25 mph limit if not signed. MR. RITTER reappeared and ascertained that the City had no records of accidents on Longmire Street. MR. LOUGHEED reappeared and testified that as a result of any project in the City someone will go on every street. No one spoke further in this matter and so the Examiner took the request under advisement. 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, viewed the property, heard testimony, and taken this matter under advisement. 2. Notice of the date and time of public hearing was published in the Nisqually Valley News in the legal notice section on Friday, July 28, 2006. 3. The City of Yelm Responsible Official issued an MDNS on June 5, 2006. The applicant filed an appeal of Mitigating Measure No. 2(d) on June 26, 2006. PRELIMINARY PLAT 4. The applicant has a possessory ownership interest in a generally rectangular, 3.22 acre parcel of property extending between the south side of NW Cullens Street and the north side of NW Longmire Street at the intersection of Van Trump Street between Coat Street and Yelm Avenue (SR-510) within the City of Yelm. The parcel abuts Longmire Street for 360 feet and NW Cullens Street for 336 feet. Improvements on the site include a site built single family residential dwelling located adjacent to Longmire Street and a modular home near Cullens Street. The applicant requests preliminary plat approval to allow subdivision of the site into 18 single family residential lots. 5. The preliminary plat map shows access provided via a road extending between Cullens Street and Longmire Street and a cul-de-sac extending west from said road and terminating near the east property line. A 2,193 square foot, pie shaped, open space area separates the end of the cul-de-sac from the east property line. The existing site built home will remain on lot 16, but development of the plat will require removal of the modular home. Lots 16-18 will access directly onto Longmire Street while all other lots will access onto the internal plat road. The house on lot 16 currently accesses onto Longmire Street. A 7,885 square foot stormwater tract is located at the northwest corner of the intersection of Longmire Street and the internal plat road. A 6,008 square foot open space tract adjacent to the stormwater tract will contain the underground storm gallery and also provide an open space area. The plat includes the vacated Stevens Street right-of-way within the western 25 feet of the plat. 6. Abutting uses include vacant parcels and single family residential dwellings to the east, south, and north, and the Yelm Family Medicine Clinic to the west. The site and abutting parcels are located within the Moderate Density Residential (R-6) zone classification of the Yelm Municipal Code (YMC). Section 17.15.020(A)(1) YMC authorizes single family residential dwellings as outright permitted uses in the R-6 classification. Section 17.15.050 YMC sets forth the density and lot development guidelines for the R-6 classification and provides no minimum lot area requirements. However, said section requires yard setbacks varying between 35 feet from arterial roads, a minimum of five feet on one side yard setback, and 25 feet from the rear yard. Said section also restricts building area coverage to 50%, minimum development coverage to 75%, and maximum height of structures to 35 feet. Furthermore, Section 17.15.020 YMC limits the density to six dwelling units per gross acre. The proposal of 18 dwelling units on a 3.22 acre parcel calculates to 5.6 dwelling units per acre. The rectangular lots having a minimum lot width of 48 feet provide a building envelope which will support a reasonably sized structure which can meet all setback requirements. The project therefore complies with the R-6 zone classification. 7. Chapter 14.12 YMC requires that a plat applicant dedicate a minimum of 5% of the gross area of the subdivision as usable open space. Open space uses may include environmental interpretation or education, parks, recreation lands, athletic fields, or foot paths/bicycle trails. Said section requires the plat to provide 7,013 square feet of open space and Tracts B and C provide 8,198 square feet. Compliance with Chapter 14.12 YMC will ensure that the plat makes appropriate provision for open spaces, parks and recreation, and playgrounds. 8. A mitigating measure in the MDNS issued pursuant to the authority of the State Environmental Policy Act (SEPA) requires the applicant to enter into a mitigation agreement with the Yelm School District to offset the impacts of school aged children residing in the plat on school services and facilities. Entry of the agreement will ensure that the plat makes appropriate provision for schools and school grounds. Mitigation measures in the MDNS require compliance with the City Transportation Facility Charge (TFC) of $757.50 per dwelling unit, improving the east half of Cullens Street to City neighborhood collector standards along the property frontage, improving the west half of Longmire Street to City local access residential standards across the property frontage, construction of interior streets to City local access residential standards, and improvement of Cullens Road to 12 foot wide drive lanes from the northwest corner of the property to SR-510 if the Cherry Meadows subdivision does not complete the widening prior to final plat approval. The MDNS also required the applicant to improve Longmire Street to two, 12 foot wide, drive lanes from Coates Street to SR-510, but for the reasons set forth hereinafter, such requirement violates RCW 82.02.020. Furthermore, the City has not shown that the improvement is roughly proportional to the impact. Adequate entering and stopping sight distance is available at the intersections of the internal plat road and Longmire Street and Cullens Street, and the internal roads will provide adequate parking for guests and residents. The plat makes appropriate provision for streets, roads, alleys, and other public ways. 9. The City of Yelm will provide both domestic water and fire flow to the site subject to the applicant paying current fees and providing a looped water system. The City will also provide sanitary sewer service to all lots subject to the applicant paying the fee connection. The plat makes appropriate provision for potable water supplies and sanitary waste. The applicant will construct curbs and gutters on both sides of the internal plat road and sidewalks on one side, and the same improvements along the north side of Longmire Street across the plat frontage. The four luminaries shown on the preliminary plat map along with the sidewalk will ensure safe walking conditions. 10. The applicant will construct the stormwater drainage facilities to City standards which include the 1992 Department of Ecology Stormwater Manual. Compliance with said criteria will ensure that the plat makes appropriate provision for drainage ways. 11. The project must satisfy the requirements of Chapter 17.80 YMC which addresses landscaping. Said chapter requires Type 2 landscaping around the perimeter of the site or in the alternative a fence. 12. A neighbor requested that the applicant rename the internal plat road. However, such is within the discretion of the applicant and the City to include emergency service providers. ENVIRONMENTAL APPEAL 13. On June 5, 2006, the City of Yelm Responsible Official issued an MDNS pursuant to SEPA review imposing nine mitigating measures. The appellant, RDS Design LLC, timely filed an appeal of one MDNS mitigating measure on June 26, 2006. The challenged mitigating measure reads as follows: 2d. Longmire Street shall be improved to provide two 12 foot drive lanes from Coates Road to the SR-510 (Yelm Avenue) and overlaid with a 2 inch, Class B overlay of asphalt. The Responsible Official bases the above mitigating measure on the following finding: The City of Yelm has adopted a concurrency management system as required by the Growth Management Act. Chapter 15.40 YMC (Concurrency Management) is designed to ensure that the improvements required to support development are available at the time of development. A concurrency determination may be issued for a proposal as it relates to transportation issues when: the development provides on-site frontage improvements; the project makes off-site improvements as necessary to provide for the safe movement of traffic; and the project makes a contribution to projects identified [in] the six year transportation improvement program in the form of a Transportation Facilities Charge. At the hearing the Responsible Official testified that the SEPA mitigating measure and concurrency overlap as Chapter 15.40 YMC, entitled “Concurrency Management”, also requires the improvement. Specifically, Section 15.40.020(B)(5)(b) YMC provides: B. With respect to each of the public facilities identified above, concurrency shall be established and determined as follows: (5)(b) The project makes such off-site facility improvements, not listed on the capital facilities plan, as are necessary to meet city standards for the safe movement of traffic and pedestrians attributable to the project… The City asserts that Longmire Street is presently a substandard street and that the subdivision will increase traffic on Longmire Street in both directions. At present two cars cannot pass without leaving the pavement as shown by photographs in the record. 14. Section 2.26.090 YMC grants the Examiner authority to determine appeals from decisions made by a City official on various land use actions. 15. RCW 43.21C.075, entitled “Appeals”, provides that where an agency authorizes an environmental appeal under SEPA, the agency: d. Shall provide that procedural determinations made by the responsible official shall be entitled to substantial weight. Our Washington Supreme Court interpreted the “substantial weight” requirement in Wenatchee Sportsman v. Chelan County, 141 Wn. 2d 169 (2000), as follows: A decision to issue an MDNS may be reviewed under the clearly erroneous standard…A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the record is left with the definite and firm conviction that a mistake has been committed…For the MDNS to survive judicial scrutiny the record must demonstrate that environmental factors were considered in a manner sufficient to amount to prima facia compliance with the procedural requirements of SEPA and that the decision to issue an MDNS was based on information sufficient to evaluate the proposal’s environmental impact….141 Wn. 2d 169 at 176. The question presented by the appeal is whether the City based its mitigating measure “on information sufficient to evaluate the proposal’s environmental impact.” The City must also show that the mitigating measure does not violate RCW 82.02.020; does not violate the rough proportionality test set forth by the United States Supreme Court in Nolan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and that it made an individualized determination that improvement of Longmire Street is necessary to mitigate an impact of the development, and that the mitigating measure is proportionate to the impact caused by the subdivision. For the reasons set forth hereinafter, the City has not met any of the tests set forth above. 16. The City did not require a Traffic Impact Analysis (TIA) due to the limited traffic generated by the subdivision, and relied on previous studies which showed that where two accesses are available to a project, the traffic would generally split on a 50/50 basis. However, a site visit shows that Cullens Street appears to meet arterial standards and has a centerline stripe, whereas Longmire Street appears more of a substandard residential road with uncontrolled access. The City acknowledges that Longmire Street is already substandard and that construction of the road as required would eliminate an existing deficiency. The City performed no analysis of the cost associated with the off-site improvements, nor made an individualized determination that the improvement is necessary to mitigate traffic impacts of the development. 17. In Benchmark Land Company v. City of Battleground, 146 Wn. 2d 685 (2002), the Washington Supreme Court overturned the City’s requirement that a plat applicant improve a 700 foot length of road bordering the site. The Court noted: North Parkway did not meet City roadway standards even before the development was proposed. The required expenditure for street improvements was not directly related to the traffic generated by the development…Rather, the required improvements would relieve a preexisting deficiency. 146 Wn. 2d 685 at 695. The Court also noted that traffic studies determined that subdivision traffic would have little or no impact on safety or road operations. In the present case no TIA was performed to determine impacts on Longmire Street by plat traffic, and the City presented no evidence of unusual safety conditions near the proposed project site. 18. Division II of the Washington Court of Appeals also considered the same Benchmark Land Company v. City of Battleground case at 103 Wn. App 721 (2000). The Court of Appeals found that the requirement to improve North Parkway was an exaction which violated the Nolan and Dolan standards. The Court held: Although the condition exacted here was money, not land, we conclude that the Dolan proportionality test applies. The City, as in Nolan and Dolan, did not restrict the development of the property by limiting the number of residences, requiring wider streets in the property, requiring dedicated open space, imposing height limits or other similar conditions. Instead, the City required the developer to address a problem that existing outside of the development property – an adjoining street in need of improvement and the development did not cause this project; at most it only aggravated it. 103 Wn. App 721 at 727. The Court went on to determine that the decision forced “some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole”. “It is this attempted transfer of a public burden that calls for a Dolan proportionality test.” Here, the mitigating measure and Section 15.40.020(B)(5) YMC as applied by the City require appellant to correct an existing deficiency on a public road. However, the City did not perform a Nolan/Dolan analysis. 19. In an unreported Division II Court of Appeals decision entitled DeTray et al v. City of Lacey et al, the Court once again addressed frontage improvements on an existing, substandard road. The Court held: Nevertheless, under RCW 82.02.020 it is the City’s burden to show that the conditions it imposes are reasonably necessary as a direct result of the particular, proposed development…Specifically, the statute requires that development conditions be tied to a specific, identified impact the development will have on a community…and in general, under RCW 82.02.020, a developer cannot be held responsible for correcting a preexisting deficiency…. It is the City’s burden to show that the need for the proposed frontage improvements is not due to a pre-existing deficiency. Under Benchmark and RCW 82.02.020, the City has failed to meet that burden…and that the City made no effort to show whether the alleged increase in pedestrian and bike traffic will be nominal or significant, or that traffic from the development will somehow increase the need for widening of the already deficient road. Even reading the facts in the light most favorable to the City, it did not show that the need for improvements arises out of the development and was not a preexisting condition. In the present case, the City’s evidence consisted of a finding that Longmire Street is an existing substandard road and that concurrency requirements in the YMC required its improvement. However, prior to imposing such a condition, our courts require that the required improvements satisfy RCW 82.02.020 and the above tests. See also Isle Verde v. City of Camas, 146 Wn. 2d 740 (2002), where the Washington Supreme Court found a violation of RCW 82.02.020 as the City of Camas did not perform an individualized determination showing that the plat needed to provide a 30% open space set aside to mitigate an impact of the development. The Court held: We reject the City’s argument that it satisfies its burden under RCW 82.02.020 merely through a legislative determination “of the need of subdivisions to provide for open space set asides…as a measure that will mitigate a consequence of subdivision development.” 146 Wn. 2d 740 at 761 CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The applicant has shown that the proposed preliminary plat satisfies all bulk regulations of the R-6 zone classification. 3. The proposed preliminary plat makes appropriate provision for the public health, safety, and general welfare for open spaces, drainage ways, streets, roads, alleys, other public ways, potable water supplies, sanitary waste, parks and recreation, playgrounds, schools and school grounds, and safe walking conditions. 4. For the reasons set forth in the findings above, the Responsible Official was clearly erroneous in requiring the appellant to improve Longmire Street to City standards between SR-510 and Coates Road without an individualized analysis and a showing of compliance with RCW 82.02.020. 5. The request for preliminary plat approval is hereby granted subject to the following conditions: 1. The conditions of the Mitigated Determination of Non-significance are hereby referenced and are considered conditions of this approval. 2. 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. 3. The civil plans shall include: How all conditions for cross connection control as required in Section 246-290-490 WAC will be met. The installation of the watermain shall include a “Loop” connection between Cullens Road and Longmire Street. All planting strips and required landscaping located in any open space and stormwater tract, and along Cullens Road and Longmire Street shall be served by an irrigation system with a separate water meter and an approved backflow prevention device. 4. 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 building permit issuance. 5. The applicant shall pay a fire protection impact fee pursuant to Section 15.40.020(B)(6) YMC. The impact fee for 2006 is $0.216 per square foot of new development, and is payable at building permit issuance. (fee subject to change). 6. 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 required during construction. A 10-foot setback from all property lines and easements are required for stormwater facilities. The final stormwater plan shall be submitted with civil engineering plans and shall include an operation and maintenance plan. All roof drain runoff shall be infiltrated on each lot utilizing individual drywells. 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. 7. 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. The applicant shall submit fire flow calculations for all existing and proposed hydrants. All hydrants must meet minimum City standards. The applicant shall be responsible for the fee for 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 the required hydrant locks. 8. Street lighting is required. The Applicant shall contact Intolight to provide a lighting design plan for review and approval. 9. Prior to the submission final plat application, the applicant will provide the Community Development Department an addressing map for approval. 10. Prior to the submission of final plat application, a subdivision name must be reserved with the Thurston County Auditor’s Office. 11. The applicant shall provide a minimum of five (5) percent of the gross land area as qualified open space. 12. The applicant shall submit a final landscaping and irrigation plan with the civil engineering plans to include the perimeter of the project site, planter strips, open space improvements, and stormwater facilities. 13. 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 of the Trump Subdivision is hereby granted subject to the conditions contained in the conclusions above. The appeal of MDNS Mitigating Measures 2D is hereby granted. The matter is returned to the Responsible Official for further action in accordance with this decision. ORDERED this 8th day of September, 2006. _____________________________________ STEPHEN K. CAUSSEAUX, JR. Hearing Examiner TRANSMITTED this 8th day of September, 2006, to the following: APPLICANT/APPELLANT: RDS Design, LLC 2365 48th Avenue SW Olympia, WA 98512 AGENT: Scott Ritter 2365 48th Drive SW Tumwater, WA 98512 Trent Lougheed 1700 Cooper Point Road SW #B2 Olympia, WA 98502  Mike Boiter 5516 75th St. W, Ste. A Lakewood, WA 98499 City of Yelm Tami Merriman 105 Yelm Avenue West P.O. Box 479 Yelm, Washington 98597   CASE NO.: SUB-05-0456-YL – TRUMP PRELIMINARY PLAT APP-05-0628-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: Erroneous procedures; Errors of law objected to at the public hearing by the person requesting reconsideration; Incomplete record; An error in interpreting the comprehensive plan or other relevant material; or 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 September 18 , 2006 (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 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.