07 - Appeal to Council1
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Received
NOV 2 S 2005
EFO THE CITY CQIJNCIL
FQR THE CITY f}F YELM
IN AL-MART SUPERCENTER.
FILE NQ. SFR OS-0091-YL AND
AFL OS-0203-YL
L BACI~GRC)UND
Ylm Camerce Graup, Valentine Fryst, Bill Nichalls, d Tames Zuawski
{hereinafter "YCG") respectfully submit this appeal of e City of Yelm's I-earing
Ex iner's decisiaW to grant the Site Plan Appravai far the Wal-Mart praject. Tis',appeal
is submitted pursuant to City of Yelm Municipal Cade. YMC 2.26.150. e I-earing
Ex `.War's decisian was issued Navember 1, 2005. e case n ..bar designated by the
He g Examiner's C}ffice is SPR-OS-0091-YL-WAL-MART SCTPERCENTER,
The praject applicant in this case is PACLAND, Inc. ("PacLand"}. The applicatian
was submitted an behalf of the praperty awner, Wa1-M Stares, Inc. ("Wa1-Mart"} far a
prapased new Wal~Mart stare. Far purpases of this appeal, the petitianers maybe catztacted
APPEAL OF THE HEARING EXAI R' S DECISION TQ ~~C~ Ne D®id, ~.
APPROVE THE SITE FLAN FOR WAL-MART BY YELM ,~~,1;<~~i~ ~~~~;~ ~~,te;~~
CE?MMERCE GROtTP VALENTINE FRYST BILL sex~le,~~~,~9HP5~
NICHOLLS, AND TAMES ZUKQWSKI- 1 1'~~ ~'`°~~'``~"~3f"
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through their attorney, David Bricklin of Briclin Ne Doid, LLP, 1001 fourth
Avenue, Suite 3343, Beattie, WA 981.54, telephone {206) 264-8604, facsimile (24) 264-
9340, pursuant to YMC 2,26.150. An appeal fee of X154 is submitted with this appeal,
The petitioners are the Yelm Co erce Group ("YCG"} P.O. Box 1616, Yel, W A
45597. e petitioners were tlae appellants in the praceedings below and members of the
YCG testified at the hearing before the Ex incr.
After reviewing the Dep ent of Community Development's Staff Reprt and
examining available information on file with the application, the Examiner conducted a
public hearing on the request from August 24 to September ] , 2045.
Plan Approval is subject to appeal here.
e City Council's review is based solety upon the evidence presented to the bearing
examiner, the Hearing Examiner's report, the notice of appeal and submissions .lay the
parties. YCC 2.26.160. The City Council may adopt, amend and adopt, reject, reverse,
d ..end conclusions of law and the decision of the hearing examiner, or remind the
matter for further consideration.
APPEAL OF THE HEARING EXAMI RCS DECISION TO
APPROVE T SITE PLAN FOR WAL-MART Y ELM
COMMERCE GROUP, VAI..ENTI FRYST, BILL
NICHOLLS, A JAMES ~UKOWSKI- 2
i~LtOilkCpS-~C-L34F
10111 Pc arth fi$c=cnae , Suste 33Q3
ScattPe. ll'~'_~ ?#254
Pax (2t?t} ^C-4-~30(i
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II. ARGUMENT
A. Site Pl A nrov 1
The Ex iner's decision approving the site glen should be reversed because Wal-
Mart did not establish that it meets the requirements of alt applicable City codes.. I'CC
1.7.84,020. C, In particular, the Ex iner's decision is not supported by substantial evidence
to support his conclusion that Wal-Mart met its burden. of demonstrating that it had cc~nplied
with the City's transportation concurrency requirements.'
1. The nro~ect fails concurrenc;~ when the ccarrect concurrency standard
is plied
e Ex er's concurrency date `nation. was flawed because it was based on the
wrong concurrency s ..lord for the State Routes passim through the City. The' City's
concurreacy s :.lords are not applicable to State roads inside Yelm's bounlaries. State law
is explicit that the LOS standards for state roads are set by the applicable Regional
Transportation Pl °ng Organization (RT }. RCW 47.80.030.'°
In this instance the Thurston Regional Plat g Council {the applicable RT ; .)has
set the LOS for State roads in the southern part of Thurston County at LOS D. Testimony
of Bernstein (I~ay 2, Tape 3B, 43.Oq). However the Ex .finer accepted the concurrency
With respect to the site plan approval, Wal-Mart bore the burden of proof before the
~Ie °ng Ex 'per.
~ ere is an exception for ajar state routes (routes of statewide signific cep in
which case the LOS is set by the Washington State Deg ant of Tr portatic~n and
general concurrency rules do not apply. But ~e State Routes in Y'elm do not fall wit2in that
special classification.
APPEAL OF THE HEARING EXAMINER°S RECISION TO ,~~~~ Neiman I}otd, it.P
tltsom¢ps-at-L:tev
APPROVE THE SITE PLAN FOR WAL-MART V 'ELM ~~,z r=~,,,,~h ~~£,,,,{,s~t~ ;~,,~3
COMMERCE GROUP VALENTI FYST BILL s~ai`'s,"~~~'4~
a ~r~~. (zn~s) z~a-~sQC~
NICHOLLS, AND 3AMES ~UKOWSKI- 3 r'AT ~z`'> zca-~~c~k
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analysis that was based on LQS s lard of F. She, , Test .any of Shea, Day , Tape
3~, 35.40. This is the wrap LS s lord far the State Ratites, thus the conchrrency
determination is flawed.
The applicable LQS s .lord. is LC? D. e project does not satisfy this
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can envy requirement because several turning avements on intersections along R 50'7
fall belaw LDS A. Accarding to Wal-Mart's own transpo flan alysis (the "TI"), the
following intersections do not pass canctirrency:
o. Intersection Name L4S in 2006 with Project
6 west YelmlMountain View Raad E
West YelmlCullens street F
9 West YelrnfLan ever Street E
l0 West Yelm/Salberg Street. F
l2 West YelfEdwards Street F
l3 West Ye Railroad Avenue F
l4 Yelm Ave/First St. E
25 East elmlSecond Street. F
16 East Yelm/Third Street p'
21 East YetmlPlaza Drive SE F
24 SR SO7fGrave Road F
25 SR 507/Qld cI~e Road SE F
26 SR 50'71Vail Road SE E
Tl, Table (pp. 25-26).3
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Consequently, the project flunks cancurrency and the Site Flan Approval gust b
reversed.
2. The t~ra~ect fails cancurreracy even if the City's LOS standards are
lobed
Even if the City's coucurrency standard is used, the praject fails these LOS
standards, tea. The City's LOS standards are fa ..din its Comprehensive Tr pcrtatian
Pl . e LOS s lard far "all ca ercial and light industrial zones" is LOS D. Yelm
Comprehensive Transpo flan Flan (Jul. 20Q1~ at . e City makes an exception and
allows LOS F in the urb ears under 1° `ted conditions. ass conditions da nab apply
here. Accc~r ° g to the Velm Caprehensive Transpartatian Plan;
Ira the urban care, LOS F is recognized as era acceptable level
of service where mitigation to create traffic diversions,
bypasses, d alternate ratites and males of transpartatian are
authorized and being pl ed, funded and implemented.
Id. at (emphasis supplied). There was no evidence provided by Wal-Mart or the City at
the hearing that there are any "traffic diversions, bypasses, alternate ratites ar alternate
modes of transpo tiara" that are being "pl ed, led and ` pleented" that 'would
mitigate the current traffic congestion on Yelm Avenue. Ce iniy, there is evidence that
the bypass is being "pl ed" and is loll funded. But there is no evidence of fall
funding ar that the bypass is being "implemented," Ce 'nly, there is na evidence that the
bypass will be in operation within six years. See RCW .'70A.07Q()(b). Thus., even
under the City's LOS standards, the result would be the same as under the LOS D st' lard
established by the urston Regional Fl `rag Council.
APPEAL
OF TfIE
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APPRO Y L: f ~l i E C LALY FR YY AL'"MART D ELiYI x9ctomec~s-ac-T_aw
'!QL?1 F'unxeth Avenue , Smrz 33fl3
COMMERCE GROUP VALENTINE FRYST BILL sea~e. `~~`~ ~~'~~
~~, ~mm~~~ ~~~-s~cro
NICHOLLS, AND JAMES Z~UK{)WSKI- S F'°`Y ,zz> `~~-'"`m
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Finally, the description of the Guy's LOS standard fails to specify what m od is
the length of Yelm Avenue itself (using the "urban street LOS" method. The use €~f only
one LOS determination method is arbitr and lacks any support in the record
Ongoin„~SEPA Com Ip lance
If the Council remands this matter because of the cone ..envy issues discussed.
above, the Council should consider also directing the City staff to re-examine its.. SEPA
information or analysis may be vacated at any time,
At Wal-Mart's and the City's urging the Ex 'ner imposed the wrong standard on
YCG for SEPA review. It was not YCG's burden to prove with certainty the magnitude of
impacts that will result from Wal-Mart's project. Assessing impacts with greater certainty
is the job of the applicant via an EIS. e YCG met its burden by demonstrating that the
City failed to collect the information it needed to make a threshold date `anon d that
the information presented to the Examiner demonstrated that there may be sighificant
adverse environmental impacts.
APPEAL OF THE HEARING EAMI R' S DECISION TO Brickt~z~ N an Dotd,
t~ttattTC}rs-at-raa.•
APPROVE TkIE SITE PLAN FOR WAL-MART Y YEL 3~~ r~:,~x~ ~F~„uE,s,,;t~ ~sos
COMMERCE GROUP, VALENTINE FRYST, BILL rsi ~zt}~ ~~~'~~~,
NICHOLLS, AND JAMES ~UKOWSKI- ''~~ ~z~s~)'`=-~-~3~~
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e City staff did nat meet its duty to "independently evaluate" Wal-1Vart's
infarmatian and the evidence befare the Ex `ner demanstrated the need far an ,EIS.
erefare, if the Cauncil remands the cancurrency issue, it else shauld request the
Responsible Official to re-examine the threshold date. °natian in light of the issues raised
at the hearing.
III. CONCLUSION
Far the foregoing reasons, the YCG respectfully requests that the Council decay the
Site Plan Approval in this matter.
Dated this ~' day of November, 2005.
Respectfully submitted,
ICKLIN WAN DOLI3, LLP
By
x,
'YELI~I COMMERCE GROUP
..,..;
Gre~~ary May
i"CG1Yelzxs !'isy Coauacil Appeal
APPEAL C}F THE HEARING EXAMINER' S DECISION TQ ncktln ~~~ ~~~d, L t.,P
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COMMERCE GRQUF, VALENTINE FRI'ST, BILL Tel. t'-t3E) z~ a-~~~>
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