Exhibit A1 Cushman Law LetterL l.E `7,L 1.1V1~: 11 V
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Mr. Grant Beck, Director
Con~n~unity Development Dept.
City of Yelm
105 Yelm Avenue West
Yelnl, WA 94597
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C)I,l Al1'1:1, 1C4\SI IING"ION 9Sj(71
(iGO~ ;~ i~ 9183
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August ? I , ?009
RL: Application for Minor Plat Amendment to Palisades West
Dear Mr. Beck:
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In follow- up to your telepl--one conversation with my paralegal Doreeaa Milward, o~> behalf of
Andrew & Cynthia Smith, we are submitting an application for a plat amendlnent to a-nend the
tiro conditions or "Notes" added by the City Council to the Palisades West final plat concernizlg
the water booster pump station and tl~e sewer roll seal, for the purpose of excluding the Smiths'
Lot 15 fi-onl these two conditions. "I~he proposed amended text is shown by underline as follows
{for reference;, attached as Lz-hibit A is a copy of the face page of the recorded plat):
No building permit shall be issued within this subdivision, except for Lot 15, until a
booster pump is installed by the developer and approved by the City of Yelm which
provides adequate fire flow per tl~e Internal Fire Cade and City of Yeln3 standards,
provided that a building permit nay be issued for a model llotne if a fire protection plan
is approved by the City of Yclzxt Fire Marshall and SI: Thuz•ston lire/TMS.
2- No certilzcate of occupancy for any habitable structure shall be issued, except for Lot 15.
until a sewer roll seal is installed by the developer and approved by the City of Yelzn.
flccording to RCW 58.I7.ZI5 (copy attached as Exhibit I3), plat amendments n7ay be initiated
by any interested person, but the applicatio-> needs to be signed by a majority of those persons
having an ownership interest i1~ the lots. ~ho prevent confusion or error later in t11e p~-occss, the
application form contains the signature of Steve Chamberlain, I~~III. LLC, indicating he agrees
with the proposed plat azrzendment.
I3ecausc this plat amendment application is probably I_u~usual, I want to identify the reasons why
it is needed and the support for why approval should be granted, as well as to clarify the
procedure which is to be used.
Grant Beck
August 21, 2009
Page 2
I'i-occdural Clarifications
Although you had discussed a $750 application fee, we see that Yelm's Developn~zent I~'ee
Schedule identifies that a minor amendment to a plat has a $350.00 application fee. Enclosed
with this application is a check for $350, for what we presume is a minor plat amendment.
• In a prior letter to the Smiths' builder, you had identified a Hearing Examiner process that
would be needed to initiate a plat amendment, but it is not clear to zrze why this application
for a minor plat an~endzncnt needs to first come before the Hearing Examiner in order to
provide a recommendation to the City Council. Because it was the City Council who added
the tw-o conditions as Notes to the final plat {attached as Exhibit C is an excerpt froze the
Council's 12/11/07 minutes), the assumption is that the Council would not need az~
Examiner's z-ecomn~endation to amend their own conditions. We reference the City's Code
regarding Decision-Makers at YMC 16.12.1 i 0 which states: "The final decision with regard
to each preliminary full subdivision shall be made by the hearing ex.aininer. The final
decision with regard to each final full subdivision shall be made by the city council..." l3ased
on that reading, once the matter is past the preliminary plat stage, the decisions are made by
the City Council. So while a Hearing Examiner would indeed hear requested amendments to
preliminary plats, once the: plat is final, it is under the purview- of the City Council.
Also refer to YMC 16.36.010: "No subdivision shall be altered except in accordance with
RCW 58.17.215. Na subdivision or plat thereof shall be modified or amended except with
the approval of the decision-maker vested by this title with the authority to grant original
approval of such subdivision..." We would interpret the City Council's added conditions on
the f nal plat to be construed as the "original approval."
• Further, a public hearing is neither required nor necessary. The requirement in RCW
58.17.215 states: "iJpon receipt of an application for alteration, the, legislative body shall
provide notice of the application to all owners of property within the subdivision ... 'I~he
notice shall either establish a date for a public hearing or ~~rvvide that a hearing tnay he
requested by a person receiving notice ...." (emphasis added). Chapter 16.36 YMC also
identifies no requirement for a public hearing to process or enact a plat amendnrzent, and
instead cites to the procedures provided in RCW 58.17215. The proposed amendments do
not involve boundary changes or any modification to public rights-of--way, sa there should be
minimal public interest. Because time is of the essence; the natter could be reviewed and
considered by the City Council using a public hearing process during one of its regularly-
scheduled meetings.
Reasons and Support far the Requested Plat Amendments
• On 9117108, the City of Yc1in issued building permit No. BLD-08-0326-YL for the Sn-iith
residence. 'T'his permit was based on the application submitted 915108 by the Smiths'
contractor, Dan Lee, of Triance Homes. lylze application identifies the building owner as
Andrew & Cynthia Smith, and Dan Lee signed the form as "Contractor°'s Agent." On the
same date as $14,419.39 in permit fees were received and this Building Permit was
Grant Beck
August 21, 2009
Page 3
concurrently issued, the City additionally received $2,G75.00 as Lot 1 ~'s school mitigation
fund contribution. {Copies of application, building permit, and receipt are attached as
Exhibit D.) This building pern-zit issued 9117/08 clearly was not for a model home, which
was the only exception allowed undez° plat condition Note #1 {quoted above), a condition that
had already been established on or before 2112108 when the Palisades West final plat was
recorded. Although we now know that Chore had been some tu~derstandings exchanged
between the City and the developer, our clients were not involved in those conversations.
They had no idea that the City wasn't supposed to have issued their building permit until
after the water booster pump and sewer seal were installed. Ottr clients' construction
financing was premised upon the standard procedure that if construction was properly
completed, then an occupancy permit would be issued.
By the time the Smith house was finished being bulb in April 2009, the economy had
completely changed. 'I'lie owner of the remaining lots in Palisades West was not able to
obtain the financing he had anticipated, and therefore has been unable to install the water
booster pump and sewer roll seal (which we understand will cost about $400,000). Tl-zere are
now multiple liens against all of the lots in Palisades West, except for Lot 15 owned by the
Snriths, who have continued making their loan payments, even though they are prevented
from moving into their completely_finished home. The likelihood of these water and sewer
improvements being made in the near future grows zxzore remote with each passing month.
• In Apri12009, the Smiths and their builder worked to understand and resolve any potential
issue regarding fire flow, since water volume for fire protection is the purpose of the booster
pump. On 416109, the SE Thurston Fire & CMS wxote a letter {copy attached as Exhibit E)
outlining a very plausible plan for fire protection of the Smith residence, complete with two
diffez•ent workable options. Fire Chief Rita I Itztchesozz and Deputy Chief Mark King explain
that the close proximity of the fire station equates to a quick 3-minute response time, and that
there is currently a hydrant on site which provides 500 gallons per minute, and a secondary
hydrant at the main road. If the first responder laid a supply line using the secondary
hydrant, that would double up the gallons-per-zxzinute volume. Alternatively, a tender
response could provide the full fire flow gpm during which tune a second tender would refill
and return, repeating this process as necessary.
As for the sewer roll seal, it has been explained that its purpose is to prevent aback-up of
effluent during tunes of high-volume use. While an entire new subdivision of homes added
to the system might trigger the need for this upgrade, the contribution of one home's sewage
usage does not. There would be no adverse effect on the City's sewer utility due to tl~e
addition of the Smith home in advance of the sewer roll seal installation.
• While it is most unfortunate that Mr. Chamberlain has so far not received the funding to
make these improven~tents, the fact is d-zat the Smith residence can be granted occupancy
without any adverse impacts to "public use and interest" as that term is used in RCW
58.17.2I5.
Grant. Beck
August 21, 2009
Page 4
In weighing the factors to decide this matter, we ask the City to give due consideration to the
consequences: If the proposed amendments are approved,. the Smiths will be able to move
into their home; no fiit•ther houses in Palisades West will be able to be constructed until the
water booster pump and sewer seal are installed. As e~cplained above, there will be no
adverse impacts to the City due to the addition of this. residence. if denied, the Smiths face a
financial catastrophe, and the City still does not get the booster pump and sewer seal
installed. Moreover, without the Smith Family residency, there would be no presence at all
to sustain the Palisades West neighborhood through this economic slump, thus lessening any
chances the area may have for inclusion in the first wave of recovery. Attached as Exhibit F
is a 4119109 letter from the Smiths explaining Their predicament. Simply put, there is no
benefit to the City to deny the proposed plat amendment.
In summary, the Smiths have a beautiful, well constructed llousc that meets all building code
requirements, yet they are not allowed to move into it. Not only are they financially obligated to
continue making monthly payanents on a house they can't Iive ~in, they also must continue to rent
temporary accommodations for their family until this matter is resolved. While it is hoped that
tl~e water az~.d sewer upgrades for the Palisades West plat can be built soon, there is no indication
that they can. If this standstill is allowed to continue much longer, the Smiths will suffer
disastrous consequences, and City still gains nothing. We respectfully ask that Yehn act quickly
to approve the requested plat amendments. Thank you.
Very truly yours,.. _.
~' .
n .Cushman ~-~
BDC/dm
Enclosures
cc w/ encl: Andrew & Cynthia Smith
Brent Dille, Yelm City Attorney
Steve Chamberlain, 1~ H l , LLC
Dan Lee, Triance Homes