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10 - Motion to Dismiss SEPA1 2 3 4 5 6 7 8 9 la 11 12 13 14 15 16 17 18 14 I 2a 21 22 23 24 zs 26 27 28 SUPERIOR COURT OF WASHINGTON COUNTY OF THURSTON YELM COMMERCE GROUP, Plaintiff/Petitioner vs. CITY OF YELM; PACLAND, INC; and WAL-MART STORES, INC., Defendant/Respondent N0.06-2-00103-3 CIVIL NOTICE OF ISSUE (NTIS) Clexk's Action Required TO: THURSTON COUNTY CLERK and to all other parties listed herein: PLEASE TAKE NOTICE that an issue of law in this case will be heard on the date below and the Clerk is directed to note this issue on the calendar checked below. FRIDAY, March 10, 2006, 9:00 a.m. MOTION CALENDAR Bench/Judge Copies: Deliver to Superior Court, Building 2, Rm. 150. Filing Deadlines: Friday noon, preceding Friday noted, pursuant to LCR 5(b)(1) & (2). Confirmarion: E-mail to civlaw(a),co.thurston.wa.us, fax to (360) 753-4033, or call (360) 786-5423 by 12:00 noon three court days prior to the hearing date [LCR 16(f)(2)]. Court Address: 2000 Lakeridge Drive SW, Building 2, Olympia, WA 98502. ASSIGNED .Ii3DGE ®Judge Paula Casey D Judge Richard D, Hicks ^ Judge Richard A. Stroppy ^ Judge Gary R. Tabor © Judge Wm. Thomas McPhee ©Judge Chris Wickham CIVIL MOTIONS PROBATE ^ Default ^ Petition for Letters of Adnunistration/Guardianship ^ Discovery ^ Petition for Probate of Will and Letters Testamentary ® Summary Judgment/Dismi'ssal ^ Petition to Set Aside Property in Lieu of Homestead ^ Change Venue ^ Annual Report of Guardianship ^ Continue Trial ©Final Account ^ Show Cause ^ Other ^ Present Order ^ TRO /Preliminary Injunction © Contested Probate Motion f] Other: CIVIL NOTICE OF ISSUE `~ ~~~ 1 2 3 4 5 6 7' i 9 10 11 12 13 14 15 16 17 18 19 20 Z1 22 23 24 25 2b 27 28 CERTIFICATE OF SERVICE I certify that on March ~, 2006, I delivered as indicated below, a copy of this document to the attorney(s) of record for: ® Plaintiff/Petitioner ® Defendant/Respondent ®All Other Parties of Record. Le al Secret to Attorney F ~ Plaintiff/Petitioner ^ Def./Respondent © Other: Sign: PrintlType ew l3. Edwards WSBA #: 18332 (Jattorney) Address: Owens Davies P.S. P. O. Box i87 City, State, Zip: Olympia, WA 9$507 Attorney For: Plaintiff I~ Telephone: (360)943-8320 Date: LIST NAMES, ADDRESSES & TELEPHONE NUMBERS OF ALL PARTIES REQUIRING NOTICE Name: Courtney Flora & Jack McCullough _ _ ___- Name: Attorney For: Wal-Mart Stores, Inc. __ Attorney Far: WSBA #: 29847 WSBA #: Address: 2025 First Avenue, Suite 1130 Address: Seattle. WA 98121-2100 (Yia .4BC Leal Services) Telephone: 246-448-1$18 Telephone: Name: Ryan Vancil Name: Attorney For:, Yelm Commerce Group Attorney Far; WSBA #: 31913 WSBA #: Address: 1001 Fourth Avenue, Suite 3303.___ _ - Address: Seattle, WA 98154 (Yia ABCLe~al Services) Telephone: 206-264-8600 Telephone: Name: Pacland Inc. Name: Attorney For: NA Attorney For: WSBA #: NA WSBA #: Address: 606 Columbia Street NW, Suite 106 Address: O1 pia, WA 98501 /Nia USMaiI) CIVIL NOTICE OF ISSUE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 i7 18 19 20 21 22 23 24 25 26 27 28 ^ EXPEDITE ~ Hearing is set Date: March 10 2006 Time: 9:00 a.rn. Judge/Calendar:, Paula Casey SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY YELM COMMERCE GROUP, Petitioner, vs. CITY OF YELM; PACLAND, INC.; and WAL-MART STORES, IlVC. ~ NO. 06-2-00103-3 MOTION TO DISMISS LAND USE PETITION, TO EXTENT IT PURPORTS TO CHALLENGE ISSUANCE OF MDNS Respondents. I. MOTION AND RELIEF REQUESTED The City of Yelnr~ moves the Court for the entry of an order dismissing the petitioner's Land Use Petition, to the extent it is directed at the City of Yelm's Hearing Examiner's decision affirming the issuance of a Mitigated Determination ofNon-Significance {"MDNS"} under the State Environmental Policy Act {"SEPA") with respect to a proposed Wal-Mart Superstore. Dismissal is sought on the grounds that the petitioner failed to exhaust its administrative remedies, because it failed to appeal the hearing examiner's SEPA decision to the Yelm City Council. II. FACTS On November 1, 2005, the City of Yelm Hearing Examiner issued a report and decision affirming the issuance of an MDNS and approving a site plan for aproposed Wal-Mart Superstore. See Land Use Petition, Exhibit A. OWENS DAMES, P.S. 426 - 24th Way SW • P. O. Box 187 MOTION TO DISMISS LAND USE PETITION, TO EXTENT IT Olympia, Washington 98507 PURPOSES TO CHALLENGE ISSUANCE OP MDNS - 1 Phone: (360) 943-8320 Ca4WiBH1Ydm1P3dgslDismiss Portion of Appeal Mo[.wpd ,. f ^~ ~-` I(' --~ Facsimile: (360) 943-6150 ~.~ L.~ 1 2 3 4 S 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 26 27 28 On November 28, 2045, petitioner Yelm Commerce Group appealed the Hearing Examiner's approval of the site plan to the Yelm City Council. Edwards Declaration, Exhibit A. However, petitioner did not purport to appeal the Hearing Examiner's decision with respect to the MDNS. Petitioner explained its failure to appeal the Hearing Examiner's affirmance of the MDNS II as follows: The hearing examiner issued a decision on November 12, 2005. The hearing examiner's decision granted the request for Site Plan Approval, and upheld the MDNS decision. The MDNS decision is not subject to review by the City council. Cnly the Site Plan Approval is subject to appeal here. Id., p. 2,11. 12-16 (emphasis added). After holding a quasi judicial hearing, the Yelm City Council passed Resolution No. 460 upholding the Hearing Examiner's approval of the City plan review for the construction of the Wal-Mart Supercenter. Edwards Declaration, Exhibit B. The Ye1m Commerce Group filed its land use petition in this matter on January 18, 2006. ~ The land use petition purports to seek judicial review of both the Hearing Examiner's determination with respect to the MDNS, and the City Council's affirmance of the site plan approval. See Land Use Petition, ¶ 7.1-7.5 (seeking judicial relief with respect to MDNS decision), ¶ 7.6-7.7 (seeking judicial relief as to approval of site plan). The petitioner served its land use petition upon the City of Yelm on January 19, 2006. The City of Yehn has moved to dismiss the petition on the grounds that it was not timely served upon the City. The Court will need to address the merits of this motion only if it denies the City of Yelm's motion to dismiss the petition in its entirety based on lack of timely service. MOTION TO DISMISS LAND USE PETITION, TO EXTENT IT PURPOSES TO CHALLENGE ISSUANCE OF MDNS - 2 C:1[41MBE1Ye1mLPldgslnism~ss Portion ofAppeal Mot.wpd owENS DAVIES, p.s. 926 - 24th Way SW • P. O. Sox 187 Olympia, Washington 98507 Phone: (360) 943-8320 Facsimile: (36D} 943-6150 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. ANALYSIS The issue presented by this motion is whether petitioner had the right to appeal the Hearing Examiner's MDNS decision to the Yelm City Council. For the reasons set forth below, petitioners had the right to appeal the Hearing Examiner's MDNS decision to the Yelm Clty Councll. Because petitioner did not appeal the Hearing Examiner's MDNS decision, it failed to exhaust its administrative remedies. Therefore, the Court must dismiss the petition, insofar as it seeks judicial review of the MDNS decision. A. The petitioner had the right to ask the Yelm City Council to review the Hearing Examiner's decision with res ect to the MDNS. First, the petitioner had the right to ask the Yelm City Council to review the Hearing Examiner's decision with respect to the MDNS. Yelm Municipal Code § 15.49.160 sets forth the procedure for the appeal of SEPA decisions: A. Administrative appeal (e.g., "closed record appeal heraing") is an appeal of staff's final decision and is heard by the hearing examiner (includes Category I and II administrative permits for building, subdivision, and zoning code decisions, and also appeals of determinations of completeness, interpretation of consistency of project, and categorization of project). A notice of appeal shall be filed within 14 days of notice of fnal decision. B. Appeal of a hearing examiner decision (e.g., closed record appeal hearing} is heard by the city council pursuant to Chapter 2.26 YMC. C. Appeal of city council's final decision go to superior court and follow the judicial review process set forth in Chapter 36.70C RCW. D. Appeal of SEPA Threshold Decision. Except as noted in subsection (C){1} of this section, a SEPA appeal shall lie combined with the review of the underlying action. 1. An appeal of a DS may occur before a final decision. The appeal shall be submitted in writing within 14 days after the date the DS is issued. The city MOTION TO DISMISS LAND USE FETITION, TO EXTENT IT PURPOSES TO CHALLENGE ISSUANCE OF MDNS - 3 C:\I41MBElYe1m1P]dgs1D'umiss Portion of Appeak Mot.upd OWENS DAVI1rS, P.S. 926 - 24th Way SW • P. O. Box 187 Olympia, Washington 98507 Phone: (364) 943-8320 Facsimile: (360) 943-6150 1 2 3 4 5 6 7 8 9 10 11, 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 26 27 28 council shall decide the appeal based upon the written record at a closed record appeal hearing. 2. For proj ects requiring a public hearing, anappeal of a DNS/1VIDNS shall be submitted within 21 days after the datethe DNS/MDNS is issued, and shall be heard as an open record appeal at the same hearing at which a final recommendation or decision on the underlying action will be made. If no hearing is required, the DNS/MDNS appeal shall be submitted in writing within 21 days after the datethe DNS/MDNS is issued. The City council shall decide the appeal based upon the written record at a closed record appeal hearing. (Emphasis added}. The emphasized language clearly provides that the petitioner had the right to appeal the Hearing Examiner's MDNS decision to the Yelm City Council. Based on the statement contained in its November 2$, 2005 appeal of the Hearing Examiner's decision to the City council, petitioner is expected to argue that YMC § 2.26.1 SO precluded it from appealing the Hearing Examiner's MDNS decision to the Yelm City Council. The Court should reject this argument. Title 2 of the Yelm City Code deals with "Administration and Personnel." Chapter 2.26 ~ governs the Hearing Examiner. Section 2.26.150 sets Earth rules governing appeals of Hearing Examiner's decisions that apply to all appeals except appeals from threshold determinations under SEPA: The f nal decision by the hearing 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 the following manner:... {Emphasis added). The intent of the foregoing paragraph, and especially the emphasized language, is clear. Section 2.26.150 sets forth the procedure for all appeals except threshold determinations. Section 15.49.160 governs appeals of SEPA threshold determinations. MOTION TO DISMISS LAND USE PETITION, TO EXTENT IT PURPOSES TO CHALLENGE ISSUANCE OF MDNS - 4 C:1341MF31ilYeImlPldgslAismiss Portion oFAppeal Mot.wpd OWENS DAVIES, P.S. 926 - 24th Way SW • P. O. Box 187 Dlympia, Washington 98507 Phone: (360) 943-8320 Facsimile: (360) 943-6150 i 2 3 4 S 6 7 8 9 10 I1 i2 13 14' 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner apparently would construe the emphasized language as providing for no appeal at all from the Hearing Examiner's decision. This ignores the plain language of the statute. The ~ statute explicitly references ~ 15.49.160 of the City Code, and that section explicitly provides for appeals of SEPA threshold determinations. Petitioner's construction of § 2.26.150 also makes no sense. Why would the City choose ~ to provide a right to appeal from the Hearing Examiner's decision on every issue but SEPA threshold determinations? In sum, after the Hearing Examiner issued his decision affirming the issuance ofthe MDNS for the Wal-Mart project, the petitioner had an available administrative remedy. If it desired to further challenge the MDNS, petitioner had the right, and the obligation, to appeal the Hearing i Examiner's decision to the Yelm City Council. B. Because petitioner failed to exhaust its administrative remedies, its land use petition must be dismissed to the extent it seeks judicial review of the MDNS decision. Because the petitioner failed to exhaust its administrative remedies, the Court should dismiss the Land Use Petition to the extent it seeks judicial review of the MDNS decision. The law on this point is crystal clear. In order to obtain judicial review under the Land Use Petition Act, the petitioner must first exhaust all administrative remedies. Westcoast, Inc. v. Srxohomish County, 104 Wn. App. 735, 16 P.3d 30 (2000); Ward v. Board of County Commissioners of Skagit County, 86 Wn. App. 266, 936 P.2d 42 (1997). Here, the petitioner had an administrative remedy. It had the right to appeal the Hearing Examiner's MDNS decision to the Yelm City Council. The petitioner simply failed to make use of that remedy. MOTION TO DISMISS LAND USE PETITION, TO EXTENT IT PURPOSES TO CHALLENGE ISSUANCE OF MDNS - 5 C:1I41MBF.1Yelm\PidgslDismiss Portion oiAppeal Mos.wpd OWENS DAVIES, P.S. 926 - 24th Way SW • P. O. Box 187 Olympia, Washington 98507 Phone: (360) 943-8320 Facsimile: (360) 943-6150 1 2 3 4 5 6 7 8 9 1p 11 12i 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2$ Because the petitioner did not exhaust its administrative remedies, it is not entitled to obtain judicial review. The Court should dismiss the portion of its appeal in which it asks the Court to review the Hearing Examiner's decision to affrm the issuance ofthe MDNS. (See Land Use Petition, ~ 7.17.5. of plaintiff s complaint). DATED this ~ day of March, 206. OWI~NS DAV,I~S, P.S. Ma e wards, WSBA No. 18332 Attorneys for defendant City of Ye1m MOTION TO DISMISS LAND USE PETITION, TO EXTENT TT PURPOSES TO CHALLENGE ISSUANCE OF MDNS - 6 C:1341MBE1YcImlPldgsSllismiss Ponion of Appeal Moi.wpd OWENS DAVIES, P.S. 926 - 24th Way SW ~ P. d. Box 187 Olympia, Washington 98507 Phone: (360) 943-8320 Facsimile: (360) 943-6150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ' 18 19 20 21 22 23 24 25 26 27 28 n EXPEDITE ', ®Hearing is set Date: March 10, 2006 w_ Tirne: 9:00 a.m. Judge/Calendar: Paula Casey ~_ SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY YELM COMMERCE GROUP, Petitioner, vs. CITY OF YELM; PACLAND, INC.; and WAL-MART STORES, INC. Respondents. ~ NO.Ob-2-00103-3 DECLARATION OF MATTHEW B. EDWARDS IN SUPPORT OF 'MOTION TO DISMISS LAND USE PETITION, TO EXTENT IT PURPORTS TO CHALLENGE ISSUANCE OF MDNS 1. My name is Matthew B. Edwards. Tam over 18 years of age and competent to testify as to all matter set forth herein. 2. Attached to this declaration as Exhibit A is a true and correct copy of petitioner Yelm Commerce Group's appeal of the Hearing Examiner's approval of the site plan dated November 28, 2005. 3. Attached to this declaration as Exhibit B is a true and correct copy of Resolution. No. 460. I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DECLARATION OF MATTHEW B. EDWARDS IN SUPPORT OF MOTION TO DISMISS LAND USE PETITION, TO EXTENT IT PURPORTS TO CHALLENGE ISSUANCE OF MDNS - I C:1t A1MB6\Yclm\PldgslDx MBE Dismiss Portion ofAppea3 Mot.wpd OWENS DAVIES, P.S. 926 - 24th Way SW • P. O. Box 187 03ympia, Washington 9$507 P6or~e: (360) 943-8320 Facsimile: (360} 943-6150 1 2 3 4 5 6 7 8 9 10 11 12 13' 14 1S 16 17 18 19 20 21 22 23 2~ 25 26 27 28 DATED this ~ day of March, 2006, at Olympia, Washington. OWENS DABS, P.S. Matthew B. Edwards, WSBA No. 18332 Attorneys for City of Yelm DECLARATION OF MATTHEW F3. EDWARDS IN SUPPORT OF MOTION TO DISMISS LAND USE PETITION, TO EXTENT IT PURPORTS TO CHALLENGE ISSUANCE OF MDNS - 2 C:Si4VNBE\YeIm1P]dgslDcc MBE Dismiss Portion of Appeal Mot.wpd OWENS DAVIES, P.S. 926 - 24th Way 5W • P. O. Box 187 Olympia, Washington 98507 Phone: (360) 943-8320 Facsimile: (364) 943-6150 1 2 3 5 ~[OV 2 8 X005 6 ~ BEFORE THE CITY COUNCIL g FOR THE CITY OF YELM 9 10 IN RE: WAL-MART SUFERCENTER APPEAL OF THE HEARING EXAMINER'S DECISION TO :- 11 FILE NO. SPR 05-0091-YL AND APPROVE THE SITE PLAN FOR APL OS-0203-YL WAL-MART BY YELM 12 COMMERCE GROUP, VALENtI`INE 1 ~ FRYST, BILL NICHOLL5, ANI~3 JAMES ZUKOWSKI 1~ i S I. BACKGROUND i6 1~ Yelm Commerce Group, Valentine Fryst, Bill Nicholls, and James Zu~COwski 1 g (hereinafter "YCG") respectfully submit this appeal of the City of Yehu.'s Heariaag 19 Examiner's decision to grant the Site Plan Approval for the Wal-Mart project. This] appeal 20 is submitted pursuant to City of Yelm M~xnicipai Code. YMC 2.26.150. The Hearing 21 Examiner's decision was issued November 1, 2005. The case number designated~by the 2z 23 Heariang Examiner's Office is SPR-OS-0091-YL-WAL-MART SUPERCENTER. 24 The project applicant in this case is PACLAND, Inc. ("PacLaud"). The appkZCation 2S was submitted. on behalf of the property owner, Wal--Mart Stores, Inc. ("Wal-Mart"} for a 26 proposed new Wa1-Mart store. For purposes of this appeal, the petitioners may be contacted 27 APPEAL OF THE HEARING EXAMINER'S DECISION TO $ricklin Neovmaa Doll, LLP 28 APPROVE THE SITE PLAN FOR WAL-MART BY YELM too, ~ ~~~~ s~irc3~6~ COMMERCE GROUP VALENTINE FRYST BILL Sca~xlc~WA 98154 a ~ 3'eL (2fI6) 264-8600 NICHOLLS, AND JAMES ZUKOWSKI- 1 F ` } ~`'~"00 EXIIIBIT A 2 3 4 5 6 7 8 9 10 11 12 l3 l4 15 14 1? 18 19 20 zl i 22 23 24 ZS 26 27 28 '~ through their attorney, David Briclclin of Brieklin Newman Dold, LLP, 1001 ~aurth Avenue, Suite 3303, Seattle, WA 98154, teiephane (206) 264-SdO~, facsimile (206) 244- 9300, pursuant to YMC 2.26.150. An appeal fee of $150 is submitted with this appeal. The petitioners axe the Yelm Commerce Graug ("YCG") F.O. Box 1616, Ye1m, WA 98597. The petitioners were the appellants in the proceedings below and mernber~ of the YCG testified at the bearing before the Examiner. After reviewing the Department of Community Development's Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request from August 29 to September 1, 2(}05. The Hearing Examiner issued a decision on November 1, 2005. The Dearing Examiner's decision granted the request for Site Plan Approval, and upheld the ~bIDNS decision. The MDNS decision is not subject to review by the City Council. Only tie Site Plan Approval is subject to appeal here. The City Council's review is based solely upon the evidemce presented to the Bearing examiner, the Hearing Examiner's report, the notice of appeal and submissions by the parties_ YCC 2.24.160. The City Council znay adopt, amend and adopt, reject, reverse, and amend conclusions of law and the decision of the hearing examiner, or remand the nnatter for fiuther consideration. APPEAL OF THE HEARING EXAMINER'S DECISION TO APPROVE THE SITE PLAN FOR WAL-MART BY YELM COMMERCE GROUP, VALENTINE FRYST, BILL NICH4LLS, AND TAMES ZUKOWSKI.2 ~ricklia Newman Dotd, LLP Attorarps-u-Ian ] 00] Fuurrh Aveeeur .Suite 3303 Srattk.~ l~h, 98154 xrI (xo~) z64-ssoo Far (2Q6}264.9300 1 2 3 4 5 6 7 8 10 11 12 13' 14 15 16 1'~ 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT A. Sits Plan Approval The Examiner's decision approving the site plan should be reversed because WaI- Mart did not establish that it meets the requirements of all applicable City codes= YCC 17. $4.020. C. Ip particular, the Examiner's decision is not supported by substantial e~idenee to support his conclusionthat Wal-Mart met its harden of detao3oEStraring that it had ca~plied with the City's transportation. concurretecy requirements.' i. is ap lg ied The Examiner's concurrency determination was flawed because it was based on the wrong concurrency standazd for the State Routes passing through the City. They City's concurrency standards are not applicable to State roads inside Yehzt's boundaries. State law is explicit that the LOS standards for state roads aze set by the applicable Regional Transportatinn Planning Organization (RTPO}. RCW 47.80.030.2 In this instance the Thurston Regional Planning Council (the applicable RTI?O} has set the LOS for State roads in the southern part of Thurston Cotuity at LOS D. Testimony of Bernstein (Day 2, Tape 3B, 43:09). However the Examiner accepted the concrrrrency ' With respect to the site plan approval, Wal-Mart bore the burden of proof before the Hearing Examiner. 2 There is an exception for Itzajor state routes (routes of statewide significance) iil which case the LOS is set by the Washington State Depazt[nent of Transportation and general concurrency rules do not apply. But the State Routes in Yelm do not fall within that speciat classification. APPEAL OF THE HEARING EXAMINER'S DECISION TO Briciclin Newman I~o1cl, LLP APPROVE THE SITE PLAN FOR WAI.rMART BY YELM too r ~ tkb~~t s~ sso3 COMMERCE GROUP VALENTINE FRYST BILL ~"'`•~" 9R'~ ~ ~ Tcl. ~ 264-R60D NICHOLLS, AND JAMES ZUKOWSKI- 3 F~ ~~`~ Z~-93°° 1 2 3 4 5 6 7 8 9 10 11 12 13 14~ 15 15 17 18 19 20 21 22 23 24 2S 26 27 2g analysis that was based on an LOS standard of F. See, ~, Testizrlony of Shea, Day 3, Tape 3A, 35.40. This is the wrong LOS standard for the State Routes, thus the concurrency determination is flawed. The applicable LOS standard is LOS D. The project does not satisfy this concurrency requirement because several turning movements on intersections along SR 507 fall below LOS D. According to Wal-Mart's own transportation analysis (the "TIA"), the following intersections do not pass concurrency: Na. Intersection Name LOS iao. 2006 with P'r±oject 5 West Ye1m/Mountain View Road E 8 West Yehn/Cullens Street F 9 West YeIm/I.ongmeyer Street E 10 West YehnlSolberg Street F 12 West Yehn/Edwards Street F 13 West Yehn/Railroad Avenue F 14 Yehn Ave/First St. E 15 East Ye1m/Second Street F 16 East Yel~mlThird Street F 21 East Yelm/Plaza Drive SE F 24 SR 507/Grove Road F 25 SR 507/Old McKenna Road SE F 26 SR 507/Vail Road SE E TIA, Table 5 (pp. 25-26),3 s Of the failing intersections, several of them would not have been failing but for the project or decreased from LOS E to LOS F becanse of the project: Intersections No. s 9, 14, 14, 24-, 25, and 26. APPEAL OF THE HEARING EXAMINER'S DECISION TO ~3ricklin Newman bold, T..T..P APPROVE THE SITE PLAN FOR WAL.-MART BY YELM ""°'"`~'""'~`° I00! PULtt~A hwcnuc , 5uix 3303 COMMERCE GROUP, VALENTINE FRYST BILL s~~~a~-A9sts4 f TcL {2U~ 264.8600 NICHOLLS, AND TAMES ZUKOWSKI- 4 F~ ~~~ 264.9300 1 2 3 4 5 6 7 8 9 10 11 12 13 ld i5 16 17 18 i9 20 21 z2 23 24 25 26 27 28 Consequently, the project flunks concurrency and the Site Plan Approval must be reversed_ 2. The _proteet fads concurrency even rf the Ci s„ L„ ,,., ..,.,_,.._._.,___,_,..-. - : _ ~ ~ ~ ty° OS standards are ernnloved Even if the City's concurrency standard is used, the project fails those LOS standards, too. The City's LOS standards are found in its Comprehensive Transportation Plan. The LOS standard for "all commercial and light industrial zones" is LOS D_ Yehn Cojoaprehensive Transportation Plan (Jul. 2x01) at 2. The City makes art exception and allows LOS F in the urban core under limited conditions. Those conditions do nod apply here. According to the Ye1tn Comprehensive Transportation Plan: 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, ftueded and implemented. - Id. at 3 (emphasis supplied). There was ma evidence provided by Wal-Mart ar the City at the hearing that there are any "traffic diversions, bypasses, alternate routes ar alternate modes of transportatian" that are being "planned, funded and implemented" that would mitigate the current traffic congestion on Yelm Avenue. Certainly, there is evidence that the bypass is being "planned" and is partially funded. But there is no evidence ~f full funding or that the bypass is being "implemented." Certainly, there is no evidence that the bypass will be im operation within six years. See RCW 36.70A_070(6){b). Thus, even under the City's LOS standards, the result would be the same as under the LOS D standard established by the Thurston Regional Planning Council. APPEAL OF THE HEARING EXAMINER'S DECISION TO Br;ctct-uNewm~ Dotd, i.T.P APPROVE THE SITE PLAN FOR WAL-MART BY YELM i0p1 Foutthmwcnuc s~K sso3 COMMERCE GROUP, VALENTINE FRYST BILL s~.~,wn 9sisa rzt (~~ zea-sum NICHOLLS, AND JAMES ZUKOWSKI- 5 F~ (~26~-9300 1 2 3 4 5 6 7 8 9 10 11 12 13 1~ 15 16 17 18 19 ~~ i 21 22 23 24 2S 2d 27 28 Finally, the description of the City's LOS standard fails to specify what method is to be used to calculate LOS. As acknowledged by testimony see, e.g_, testimony of Arbruster, Day 3, Tape 2A, 25:30) multiple methods are available to calculate LOS. The Examiner's (and staff's) use of only one available method ignored congestion along Yeh~n Avenue that would result iII LOS E or F at various additional intersections as well as along the length of Yehn Avenue itself (using the "urban street LOS" method). The use pf only one LOS determination method is arbitrary and lacks any support in the record. B. On oin SEPA Com Hance Zf the Council remands this matter because of the concurrency issues discussed above, the Council should consider also directing the City staff to re-examine its SEPA decision. The City's SEPA "Responsible Official" has continuing authori[y and responsibility to re-evaluate envirnnznental issues and the threshold detemrination~. See, ~, WAC 197-11-34Q(3). A threshold determination based upon inadequate or ix~orrect information or analysis may be vacated at any time. At Wal-Mart's and the City's urging the Examiner imposed the wrong standard ozt 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. The YCG rnet its burden by den~onstratixag that the City failed to collect the information it needed to make a threshold determination and that the information presented to the Examiner dernva~strated that there may be significant adverse environmental impacts. APPEAL OF THE HEARING EXAMINER'S DECISION TO BrickliaNeogmanDald, i.i.P APPROVE THE SITE PLAN FOR WAL-MART BY YELM ,ooi F ~ ~ ~ swtc sso3 COMMERCE GROUP, VALENTINE FRYST, BILL ~C, "`"' ~~g~ ~~ NICHOLLS, AND 3AMES 2UKOWSKI- 6 r~ ~z~~2~-93°° 1 Z 3 4' S 6 8 4 10 11 12 13 14~ 15 1b 17 18 19 20 2I 22 23 2~ 25 26 27 28 The City staff did not meet its duty to "independently evaluate" Wal-1Vf art's information and the evidence before the Examiner demonstrated the need for an =EIS. Therefore, if the Council remands the concurrency issue, it also should request the Responsible Off vial to re-examine the threshold determination in light of the issues raised at the hearing. III. CONCLUSION For the foregoing reasons, the YCG respectfully requests that the Council deny the Site Plan Approval in this matter. Dated this 28~' day of November, 20©5_ Reppectfully submitted, BRiCKLIN NEWMAN DOLD, LLP ` _ ~ ~ ~~~ By. David A. Bricklin WSBA No. 7583 Attorneys for Yelm Commerce group, Valentine Fryst, Bill Nicholls, ~d James Zukowski YELM COMMERCE GROUP B _ y Grcegory y YCG1YcFm Ciry Council Appca! APPEAL OF THE HEARII~TG EKAMINER'S DECISION TO APPROVE THE SZ'TE PLAN FOR WAL-MART BY YELM COMMERCE GROUP, VALENTINE FRYST, BILL NICHOLLS, AND JAMES ZUKOWSKI- 7 $ricklin Nevvinan Doll, LLF Attom'eps-at-Lam t00f Fuusth avenue ,Suite 3303 Seatdcit ~7-v'A 98f 53 Tei (206) 264-8600 Fas ( 2G1-9300 City of Yelm Resolution No, 460 A RESOE.UTION UPHOLDING THE HEARING EXAMINER'S APPROVAL. OF THE SITE PLAN REVIEW FOR THE CONSTRUCTION OF A WAL-MART SUPERCENTER {SPRM 05-0091-YI_ AluvAPL-05-0203-YI_} WHEREAS, the Yelm City Council held a closed record hearing on December 28, 2005, regarding an appeal by the Yelm Cammerce Group, Valentine Fyrst, Bill Nicholls, and James Zukowski of the Hearing Examiner's approval of a site plan review for the construction of a Wal-Mart supercenter in Yelm; and WHEREAS, the Council considered the appeal, responses #o the appeal filed by the City of Yelm Community Development Department and Wal-Mart, a reply by the Yelm Commerce Group, et. al., the Hearing Examiner's decision, reconsideration requests filed by James Zukowski, Bill Nicholls, Valentine Fyrst, and Ed Wiltsie, and the Hearing Examiner's decision on reconsideration; and WHEREAS, the Council reviewed the record before the Hearing Examiner prior to the closed record hearing, including audia from the three days of public hearing and all written materials submitted to the Hearing Examiner as part of the record, an index of which is included in the Hearing Examiner's report and decision; and WHEREAS, the City Council adopts the following Findings of Fact and Conclusions of l.aw in the matter of the Yelm Cammerce Group's appeal: Findings of Fact 1. PACLAND, lnc, vn behalf of Wal-Mart Stores, lnc. made application to the City of Yelm for a site plan review approval for the construction of a Wa[-Mart supercenter in Yelm. 2. ~ Grant Beck, the Yelm Community Development Director and SEPA Responsible Official issued a Mitigated De#ermination of Non-significance an June 7, 2005 and this determination was timely appealed by the Yelm Commerce Group. 3. Pursuant to Chapter 15.49 YMC, the Yelm Hearing Examiner held a duly advertised open record hearing on the Yelm Commerce Group's appeal of the MDNS. Pursuant to Chapter 15.49 YMC and Chapter 36.70B RCW, the open record hearing included the underlying land use permit, a site plan review approval. At the open record hearing, held on August 29t~', 30t~', and September 15t, 2005, the Examiner accepted oral and written testimony on the site plan review application and the appeal of the MDNS and expert testimony regarding the appeal of the MDNS. 4. The Examiner issued on November 1, 2005, a report and decision which upheld the issuance of the MDNS and approved the site plan review application, with conditions as recommended by the Community Development Department. Four requests for reconsideration were filed by James Zukowski, Valentine Fyrst, Bill Nichols, and Ed Wiltsie on November 14, 2005. The Examiner denied the reconsideration requests on November 18. City of Yelm Resolution X60 EXI3YBIT ~3 5. On November 2$, 2005, the Yelm Commerce Group, Valentine Fryst, Bill Nicholls, and ,lames Zukowski filed an appeal of the Hearing Examiner's decision to approve the site plan review application for the construction of a Wal-Mart supercenter in Yelm. The sole basis for the appeal is whether the proposed development meets concurrency requirements for the City of Yelm as they relate to transportation. ,The Hearing Examiner's action to uphold the Responsible Offrcial's SEPA Determination was not appealed to the City Council pursuant to Sections 2.28.150 and 15.49.160 YMC. 6. Section 3fi.70A.070 (6){b) RCW does not require the City of Yelm adop# an Ordinance rela#ing to concurrency management which mandates the City prohibit development approval if a development causes the level of service on any state owned transportation facility to decline below the level of service standards adopted for the purpose of gauging the performance of the system pursuant to Section 36.70A.070 {6)(a}{iii)(C}. 7. Section 36.70A.070 {8)(b) RCW does not prohibit the City of Yelm from establishing concurrency requirements for local project review for state owned transportation #acilities, and the City of Yelm has established level of service standards far concurrency management purposes for State Routes 510 and 507 within Yelm and it's urban growth area. 8. The Yelm Comprehensive Transportation Plan establishes the following level of service standards for concurrency purposes: 1. In all residential zones, LOS C 2. In all commercial and light industrial zones, LOS D 3. In the urban care 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. 9. Alternate routes, in the farm of the Y-2 and Y-3 transportation improvement as ident~ed in the Yelm Comprehensive Transportation Plan are a primary project for the City, Washington State Department of Transportation, Thurston County, and the Thurston Regional Planning Council. A corridor has been established, an environmental document approved with a Finding of No Significant Impact, the SR 510 Yelm Loop {Y-3} is currently in design, including additional environmental work which will lead to the access process and right of way acquisition. The work completed to date shows that alternate routes are being planned, being funded, and being implemented. 10. The level of service standard in the urban core of Yefm is "F" pursuant to the Yefm Comprehensive Transportation Plan. 11. The City has consistently utilized the average intersection level of service methodology far signalized and unsignalized intersections for concurrency City of Yefm Resolu~on 460 management purposes, which is an industry standard and consistent with other jurisdictions in Thurston County. 12. Utilizing average intersection level of service for signalized and unsignalized intersections is an appropriate methodology for evaluating concurrency with the established levels of service for the transportation system. Conclusions of Law A. This matter comes before the City Council on an appeal filed by the Yelm Commerce Group, Valentine Fyrst, Bill Nicholls, and James Zukowski of the issuance of a site plan review approval by the Yelm Hearing Examiner. The Hearing Examiners action #o uphold the Responsible Official's SEPA Threshold Determination was not appealed to the City Council. B. The Yelm Community Development Department and Yelm Hearing Examiner applied the correct level of service calculation methodology for concurrency purposes pursuant to Chapter 15.40 YMC and Section 36.7QA.070 (8){b) RCW. The proposal meets concurrency requirements, including a level of service "F" in the Yelm urban core. C. The Hearing Examiner's decision was supported by substantial evidence submitted through the land use hearing process, particularly by the expert testimony of the City's transportation consultant, Perry Shea of Pararnetrix, Inc. NOUV, THEREFORE, BY 1T RESOLVED by .the City Council of the City of Yelm, Washington, that the Hearing Examiner's approval of a site plan review for the construction of a Wai-Mart supercenter is upheld and the Hearing Examiner's report and decision is hereby adopted. PASSED and signed in authentication on this 28th day of December, 2005 Attest: /f ~- Agn P. Bennick, City Clerk City of Yeim Resolution ~l60