09 - WalMart ResponseBEFORE THE CITY COUNCIL
FOR THE CITY OF YELM
APPEAL OF THE HEARING EXAMINER'S
DECISION GRANTING SITE PLAN
APPROVAL FOR AWAL-MART
SUPERCENTER, SPR-OS-0091-YL
No. SPR-OS-0091-YL
WAL-MART' S RESPONSE BRIEF
I. INTRODUCTION
In August and September of 2005, the City of Yelm Hearing Examiner conducted a
three-day hearing on the application of Wal-Mart Stores, Inc. ("Wal-Mart") for Site Plan
Review for a new Wal-Mart store (the "Project"), and Yelm Commerce Group ("YCG")'s
appeal of the Mitigated Determination of Nonsignificance ("MDNS") issued by the City. The
Examiner concluded in a comprehensive 43-page Report and Decision ("Decision") that the
Project complies with all applicable City land use regulations and will not pose significant
environmental impacts.
Now, on appeal to the City Council, YCG and four Petitioners raise one narrow legal
issue: whether the Examiner erred in concluding that the Project complies with City and State
Growth Management Act ("GMA") transportation concurrency requirements. There is no legal
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or factual support for this argument. The Council should uphold the Examiner's Decision and
dismiss this appeal.
II. STATEMENT OF FACTS
Wal-Mart proposes to construct a new Wal-Mart store north of State Route 507 and east
of Grove Road in the City. The site is zoned Large Lot Commercial (C-3), where the Project is
permitted outright.
The Project includes extensive traffic improvements, including the following conditions
set forth in the MDNS:
• Frontage improvements along SR 507, including a sidewalk, planter strips, curb and
gutter, a drop lane on the north side of SR 507, and a west bound travel lane, a two
way left turn lane, and a full eastbound travel lane;
• Frontage improvements along the future SR 510 Yelm Loop, a major new roadway
planned for construction by the City, to include a sidewalk, planter strip, curb and
gutter, a northbound drop lane from the intersection to the northernmost entrance to
the site, a northbound lane, a two way left turn lane, and a southbound lane;
• A signal at the intersection of SR 507 and the future SR 510 Yelm Loop, including a
minimum 250-foot eastbound left turn lane;
• Optimization of the light at five corners (the intersection of Yelm Avenue East (SR
507), Bald Hills Road and Creek Street);
• Connection of the future SR-507/510 Bypass to 103rd Street (the "103rd Street
Connector") by constructing a new road with two 12-foot drive lanes and 4-foot
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shoulders; widening 103`d Street from the bypass road to the bridge over Yelm
Creek; and funding the purchase ofright-of--way for this connection; and
• Payment of a Transportation Facility Charge of $486,750 less any applicable credit
for provision of economic benefits to the City;
The last three of these mitigation measures were provided voluntarily by Wa1-Mart. Exhibit 30.
City Staff recommended approval of the Site Plan Review in a detailed Staff Report
issued on August 2, 2005. Exhibit 34. The City's Staff Report on YCG's MDNS appeal
concluded that the Project, as conditioned, will not result in probable significant impacts to the
environment. Exhibit 35.
A consolidated hearing on the Site Plan Review and MDNS appeal occurred on August
29, 30 and September 1, 2005. In a detailed Decision issued on November 1, 2005, the
Examiner dismissed the MDNS appeal and granted site plan approval as recommended by City
Staff. The Examiner denied four motions for reconsideration on November 18, 2005. This
appeal followed on November 28, 2005.
YCG and the Petitioners ("Appellants") have raised one issue on appeal: whether the
Project complies with City and State traffic concurrency requirements. Their argument is based
on a mischaracterization of applicable.law. The City Council should uphold the Examiner's
Decision and deny this appeal.
III. ARGUMENT
YMC 2.26.160 provides that "the city council review shall be based solely upon the
evidence presented to the hearing examiner, the hearing examiner's report, the notice of appeal
and submissions by parties." The Examiner's Decision correctly concluded, based on
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applicable law and the administrative record, that the Project complies with the City's
transportation concurrency requirements. The Notice of Appeal does not provide a basis for
overturning the Examiner's Decision.
A. The Project complies with the City's transportation concurrency standards.
The City's Staff Report to the Hearing Examiner explains in detail how the Project
complies with all applicable City regulations and policies, including transportation concurrency
standards in the City's Comprehensive Plan and zoning code. Exhibit 34.
1. The City Council establishes level of service ("LOS") standards on City
arterials in order to satisfy GMA concurrency requirements.
The Growth Management Act ("GMA"), Chapter 36.70A RCW, requires jurisdictions
adopt a Transportation Element in their Comprehensive Plans that establishes level of service
("LOS") standards on locally-owned arterials, along with "specific actions and requirements for
bringing into compliance locally owned transportation facilities or services that are below an
established level of service standard." RCW 36.70A.070(6)(a)(iii)(D). Establishing LOS
standards and methodology is "simply an objective way to measure traffic." West Seattle
Defense Fund v. City of Seattle, CPSGMHB Case No. 94-3-0016, Final Decision and Order at
60. The GMA "does not dictate what it too congested." Id.
Local LOS standards are a tool for measuring congestion and expressing the City
Council's policy determination about the acceptable level of traffic congestion in the City. If a
proposed development would cause LOS to fall below the standard adopted in the
Comprehensive Plan, the City must prohibit that development unless "improvements or
strategies are in place at the time of development, or a financial commitment is in place to
complete the improvements or strategies within six years." RCW 36.70C.060(6)(b). This
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"concurrency" requirement applies only to locally-owned arterials. RCW
36.70A.060(6)(a)(iii)(D); RCW 36.70A.060(6)(b)
2. The City of Yelm has established a level of service of F in the urban core.
The City of Yelm recently adopted updates to its Comprehensive Plan that establish
LOS C in its residential zones and LOS D in its commercial and light industrial zones. In the
urban core, however, the Comprehensive Plan states that LOS F is acceptable if mitigation
measures are "being planned, funded and implemented":
In the urban core, LOS F is recognized as an acceptable level of service
where mitigation to create traffic diversions, bypasses, and alternate routes
and modes of transportation are authorized and being planned, funded and
implemented.
2001 Comprehensive Transportation Plan Update, City of Yelm. This decision is valid and
defensible under the GMA. ~
Appellants claim that the Examiner erroneously concluded that the LOS F standard
applies in the urban core because there are no mitigation measures being planned or
implemented by the City that will mitigate the current traffic congestion on Yelm Avenue.
Appellants' Brief at 5. This is not true.
Perry Shea, the City's transportation consultant and lead engineer on the Yelm Bypass
Project, testified that the City is actively moving forward on the Bypass Project, which has
progressed to the point ofright-of--way acquisition. This testimony was undisputed. Mr. Shea
further testified that the intent of the City's Comprehensive Plan is to allow LOS F conditions
its urban core until the Yelm Loop is operational, at which point the standard will become LOS
' City LOS standards and methodology cannot be challenged through an appeal of a specific development propose
Any challenge to a jurisdiction's concurrency management system must be brought within 60 days of adoption. of
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D. There is no evidence in the record that the Council has changed its mind and intends to
abandon the Bypass Project. In any event, the City is currently planning other transportation
improvements that will improve traffic flow in the urban core.
Mr. Shea and Wal-Mart's traffic engineer, Erich Armbruster of Transpo, Inc., testified
that Wal-Mart is required to construct a road connecting the future SR-507/510 Bypass to 103rd
Street (the "103rd Street Connector"). The 103rd Connector, which was requested by the City
and the Washington Department of Transportation to relieve congestion in the urban core, will
create an alternative route for traffic that will divert trips from Yelm Avenue. In fact, Transpo's
analysis concluded that the 103rd Connector will improve LOS, reduce delays and decrease
Project-generated traffic on Yelm Avenue by 20 percent. Exhibit 123. It will also decrease
background traffic on Ye1m Avenue. Finally, it will reduce projected delays at side streets at
Yelm Avenue, such as the intersection of Yelm Avenue/NE Creek St., where delay would
decline from 940 seconds to 140 seconds. Exhibit 123. It is undisputed that this mitigation
measure is being funded and implemented, and that it will improve traffic flow on Yelm
Avenue. It represents a traffic diversion, bypasses, and alternate routes and modes of
transportation are authorized and being planned, funded and implemented
Appellants do not acknowledge the 103rd Connector, but they concede that the Bypass is
being planned and funded. Appellants contend, however, that "there is no evidence of full
funding," or that the Bypass will be operational in six years. Appeal at 5. But the clear
language of the Comprehensive Plan requires that transportation improvements must be
authorized and in the process of "being planned, funded and implemented." It does not say that
the Comprehensive Plan. or development regulation; it cannot be challenged by appealing aproject-level decision.
RCW 36.70A.290.
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these improvements must be in place within six years for the LOS F standard to apply.
Appellants confuse the language in the Yelm Comprehensive Plan with that in the Growth
Management Act, which defines "concurrent with development" to mean that "improvements
strategies are in place at the time of development, or that a financial commitment is in place to
complete the improvements or strategies within six years." RCW 36.70C.060(6)(b). There is
no such definition in the Yelm Comprehensive Plan. The local government is entitled to set its
own adequacy standards, as the Ye1m City Council has done in its Comprehensive Plan.
The City's Comprehensive Plan is clear that LOS F is the applicable standard in the
urban core. It is undisputed that the Project meets this standard.
B. State Regional Transportation Planning Organizations establish Level of service
standards on state highways for planning and monitoring purposes.
Appellants also claim that the Examiner's concurrency determination was flawed
because it was based on the "wrong concurrency standard" for State Routes. Appeal at 3.
Appellants argue that all projects that seek development approval in the City must meet LOS
standards set by Regional Transportation Planning Organization ("RTPO"). Appellants are
wrong as a matter of law.
As previously noted, the GMA requires cities to establish level of service standards for
locally-owned arterials, along with specific actions and requirements for bringing locally-ownec
facilities into compliance with those standards. RCW 36.70A.070(6)(a)(iii)(D). Locally-
established LOS standards, and the methodology used to measure them, reflect a legislative
determination about what level of traffic congestion is acceptable. The GMA vests local
jurisdictions with the sole discretion to make that determination.
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In 1998, the State Legislature amended the GMA to require local Comprehensive Plans
to "reflect" level of service standards for state highways that are established by regional
transportation planning organizations ("RTPOs") under RCW 47.80.030. Although RCW
47.80.030 requires RTPOs to establish LOS standards on State Routes, it does not provide that
these standards somehow "trump" locally-established standards. In fact, the GMA makes clew
that LOS standards established by the RTPO are to be used solely for monitoring, planning, an.
inter jurisdictional coordination:
The purposes of reflecting level of service standards for state highways in the local
comprehensive plan are to monitor the performance of the system, to evaluate
improvement strategies, and to facilitate coordination between the county's or city's six
year street, road, or transit program and the department of transportation's six-year
investment program.
RCW 36.70A.070(6)(b).
On State Routes, therefore, LOS standards serve a completely different purpose than
locally established standards. The Central Puget Sound Growth Management Hearings Board
recently confirmed that "the purpose for purpose for including state LOS standards at the local
level is for monitoring, evaluating and facilitating coordination between the state and local
plans. Providing information to the state for its further analysis and assessment is the driver
behind this section of the GMA." See Jody L. McVittie v. Snohomish County ("McVittie VIII';
CPSGMHB Case No. 01-3-0017, Final Decision and Order, January 8, 2002 at 11.
The Thurston Regional Planning Council ("TRPC") has established a LOS D for state
roads in south Thurston County. This means that the State uses the LOS D standard to monitor
the performance of the system, to evaluate improvement strategies, and to facilitate
of transportation improvements and strategies on state highways that run through the City of
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Yelm. It does not mean that proposed development in the City has to "meet" this standard in
order to comply with the City's concurrency management system. If that were the case, the
State could divest the City of its land use planning and permitting authority by establishing
overly stringent LOS standards that no development could meet.Z As the Board noted in
McVittie VIII, "there is no financing or implementation `hook' for binding the state to undertake
any given state road project, critical or otherwise." Id. For that reason, the GMA requires the
RTPO to establish LOS standards on state highway for planning purposes-not to gauge
whether proposed development should be approved.
In sum, state LOS standards do not "trump" locally-established LOS standards; they
serve an entirely different purpose of facilitating improvements and inter jurisdictional
coordination. The relevant standard here is the locally-established standard of LOS F in the
urban core, and the record clearly demonstrates that the City standard has been met.
C. The City properly determined that the Project will meet concurrency standards.
Relying on a misinterpretation of state law, the Appellants then misinterpret the
documents in the record to argue that the project "flunks" concurrency by causing levels of
service to fall below LOS D. But the chart excerpted on page 4 of Appellants' brief cites the
LOS standard for the "worst movement" rather than the "overall intersection" standard the City
relies on to assess concurrency. The TIA itself notes that "overall intersection LOS ... is the
basis for comparison to the City's LOS standard and concurrency determination" and that the
"worst movement LOS ... is provided for contextual purposes only." Again, the City has the
2 This different function ofstate-established LOS standards is illustrated by Mr. Shea's testimony that the RTPO
measures LOS based on a two-hour peak pm standard that results in much lower trip counts than the 15-minute
peak used. by the City.
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ultimate discretion to establish concurrency standards and measurement methodologies.
Appellants cannot dictate the City's methodology for measuring LOS.
The Transpo Group, Wal-Mart's traffic consultant, prepared the Traffic Impact Analysis
("TIA") for the Project after numerous meetings with the City and its consultant, Mr. Shea.
During these meetings, the City explained that it measures LOS based on overall intersection
operations rather than individual turning movements or arterial segments.3 Mr. Shea testified
that this is because the City Council wants to facilitate east-west traffic movement on Yelm
Avenue; accordingly, it has decided to accept increased delays on minor legs at unsignalized
intersections. If the City were to prioritize traffic movements on minor legs, the movement of
through traffic on Yelm Avenue would be impaired. This is well within the City's discretion
under the GMA, and it is consistent with policy decisions made in adjoining jurisdictions.
D. Appellants' SEPA argument is not properly before the Council.
Finally, although Appellants have not appealed the Examiner's Decision upholding the
MDNS, they ask the Council to "direct City staff to re-examine its SEPA decision." Appeal at
6. This request is inappropriate. Only the Responsible Official can reconsider the MDNS
decision. The Council has no jurisdiction over matters that are not properly before it on appeal.
The Council should disregard this argument.
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' The City also directed Transpo to analyze forty intersections in its TIA-more than the City has ever required in a
traffic study, and. to apply a conservative four percent growth. rate to its assumptions, which is far larger than the
two percent growth rate the City is currently experiencing. Finally, the City directed. Transpo to determine whether
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IV. CONCLUSION
There is no basis for the City Council to overturn the Hearing Examiner's Decision
approving the Site Plan Review. The Project complies with all applicable City standards. Wal-
Mart requests that the Council uphold the Examiner's Decision.
DATED this 13th day of December, 2005.
MCCULLOUGH HILL, PS
J
By:
John C cCullough, WSBA No. 12740
Courtney E. Flora, WSBA No. 29847
Attorneys for Wa1-Mart Stores, Inc.
Project mitigation would be consistent and coordinated. with the Yelm Bypass, proposed to be completed in 2010.
The TIA demonstrated that the Project, as mitigated, would comply with City LOS standards. Exhibit 11.
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