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15 - YCG Response SEPA1' 2 3 4 5 6 7 8 9 10 11 12 13 i4 15 16 17 18 19 20 21 22 23 24 2S 26 27 28 ~ ~`j~~ ~~, MAR 0 7 2006 ~ The Honorable Paula Casey Hearing: Friday, March 10, 2006 OWl~NS DAVi~S, P.S. Time: 9:00 a.m. IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THURSTON COUNTY YELM COMMERCE GROUP, a Washington non-profit corporation, Petitioner, v. CITY OF YELM; PACLAND, INC.; and WAL-MART STORES, INC. NO. 06-2-00103-3 YELM COMMERCE GROUP'S RESPONSE TO CITY OF YELM'S MOTION TO DISMISS FOR FAILURE TO EXHAUST I. INTRODUCTION Respondent City of Yelm has moved to dismiss certain claims in the Yehn Commerce Group's ("YCG") Land Use Petition based upon the erroneous claim that YCG has failed to exhaust all administrative remedies before bringing this action. See Motion to Dismiss Land Use Petition, to Extent it Purports to Challenge Issuance of MDNS {Mar. 1, 2006} ("City Mot. "). The City mistakenly claims that YCG was required to appeal the City YELM COMMERCE GROUP'S RESPONSE TO CITY OF YELM'S MOTION TO DISMISS FOR FAILURE TO EXHAUST - 1 Bricklin Newman Do(d, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98]54 Tel. (20G) 2G4-BG00 Fax (20G) 2G4-9300 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 I9 20 21 22 23 24 25 26 27 28 Hearing Examiner's upholding of the .City's negative environmental determination' to the City Council. The City then claims that because YCG did not so appeal to the Council, the Examiner's decision cannot be appealed to this Court. The City's motion is based upon a fundamental misunderstanding of the State Environmental Policy Act, Ch. 43.21C RCW ("SEPA"), and fails to cite to this Court the direct provision in SEPA which directly contradicts the. County's motion. Pursuant to SEPA, a city like Yelm, may only have one administrative appeal of a SEPA threshold determination. Here, because the City required an appeal of the SEPA Chreshold determination to be raised before the Examiner and the Examiner ruled on that appeal, no further appeal before the City Council could be held. Because the City cannot have two administrative appeal hearings on a SEPA threshold determination, YCG cannot have been required to exhaust a second appeal of the threshold determination to the Council. For these reasons, the City's motion should be denied. II. STATEMENT OF FACTS The proposal at issue is an application for a binding site plan to allow by respondent Wal-Mart to construct a superstore in the City of Yelm. Pursuant to the YeIm City Code ("YMC"), a decision on a binding site plan is made by the Examiner: a. Decisions of the Hearing Examiner. The hearing examiner shall conduct public hearings for the purpose of receiving and examining available information, prepare a ' On June 7, 2005, the City issued a Mitigated Determination of Non-Significance ("MDNS") for Wal-Mart's proposed superstore. See Declaration of David A. Bricklin (Mar. 7, 2006} at Exhibit 1. Bricklin Newman Dold, LLP Attorneys-at-Law YELM COMMERCE GROUP'S RESPONSE t001FoutthAve>sue,Suite3303 TO CITY OF YELM'S MOTION TO DISMISS "~'e3. {206}264-6600 FOR FAILURE TO EXHAUST - 2 Fax {zo6~ z~a-~3oo 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1b 17 18 19 20 21 22 23 24 25 26 27 28 record thereof, and enter findings of fact and conclusions based upon these facts and a decision which shall represent the final action on the application, unless appealed, as herein specified, for the following types of applications: 6. Binding site plans; .. . In addition, because Wal-Mart's proposed superstore is an action that would impact the environment, Wai-Mart was required to comply with SEPA. The City SEPA Responsible Official issued a Mitigated Determination of Non-Significance ("MDNS"), a negative threshold determination under SEPA, on June 7, 2005. See Bricklin Dec., Ex. 1. The MDNS stated: You znay appeal this determination to the Yelm Hearing Examiner, at above address, by submitting a written appeal no later than July 1, 2005 at 5:00 p.m. Id. On July 29, 2005, the City published a "Notice of Public Hearing." Id. at Ex. 2. The notice provided information regarding the "consolidated hearing on a site plan review application and an appeal of the issuance of a Mitigated Determination ofNon-Significance" to be held before the City of Yelrn Hearing Examiner. Id. The Examiner conducted consolidated hearings on the MDNS appeal and the site plan application on August 29-September 1, 2005. On November 1, 2005, the Yelm Hearing Examiner denied YCG's appeal of the MDNS and approved Wal-Mart's site plan with a number of conditions. See YCG's Land Use Petition, Ex. A. Page 45 of the Examiner's decision stated: YELM COMMERCE GROUP'S RESPONSE TO CITY OF YELM'S MOTION TO DISMISS FOR FAILURE TO EXHAUST - 3 $ricklin Newman Dold, L.I:.P Attorneys-at-Law 1001 Foucth Avenue, Suite 3303 Seattle, WA 98154 Tel. (20G) 264-8600 Fa_c (20G) 2fi4-9300 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 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 m accordance with Section 2.26.150 of the Yelm Munici al Code YMC . Id. {emphasis supplied). The Examiner's decision also contained information and standards regarding requests for reconsideration. Id. at 44. YCG filed a motion for reconsideration. The Examiner denied that motion for reconsideration an-November 18, 2005. See Bricklin Dec., Ex. 3. Page 4 of the Examiner's decision on reconsideration stated: 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 decisions of the Hearing Examiner, exce t threshold determinations {YMC 15.49.160) in accordance with Section 2.26.150 of the Yelm Municipal Code {YMC). Id. {emphasis supplied). III. ARGUMENT AND AUTHORITY A. RCW 43.21C.075 Prohibits More Than One Administrative Appeal of a Threshold Deterrn~nation SEPA is crystal clear as to its requirement that a jurisdiction, like the City, can only have one appeal of a SEPA threshold determination. SEPA also is crystal clear that any SEPA appeal hearing must be consolidated with the underlying land use permit decision, like the site plan approval in this case. RCW 43.21C.075 states: YELM COMMERCE GROUP'S RESPONSE TO CITY OF YELM'S MOTION TO DISMISS FOR FAILURE TO EXHAUST - 4 Bcicklin Newman Dold, LLP Attorneys-at-Law Io01 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (205) 264.8600 Fax (206) 2549300 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 (3} If an agency has a procedure for appeals of agency environmental determinations made under this chapter, such procedure: (a) Shall allow no more than one a enc a eaI proceeding on each procedural determination (the adequacy of the determination ofsignificance/non-significance or of a final environmental impact statement); {b) Shall consolidate an appeal of procedural issues and of substantive determinations made under this chapter (such as a decision to require.particular mitigation measures or to deny a proposal} with a hearing or appeal on the underlying governmental action by providing for a single simultaneous hearing before one hearing officer or body to consider the agency decision or recommendation on a proposal with any environmental determinations made under this chapter .. . RCW 43.21C.075(3)(a)-(b) (emphasis supplied). The Department of Ecology's implementing SEPA regulations mirror the prohibition against two appeals of a threshold determination. WAC 197-11-680 reads: An agency shall provide far only one administrative appeal of a threshold determination or of the adequacy of an EIS; successive administrative appeals on these issues within the same agency are not allowed. This limitation does not apply to administrative appeals before another agency. WAC 197-11-680(3)(a)(iv) (emphasis supplied).2 Because the City cannot lawfully require YCG to appeal the threshold determination both before the Examiner and the City Council, its motion premised upon that argument necessarily fails. Article 11, § lI of the Washington Constitution prohibits Yelm from ~ The Ciry should be quite familiar with WAC 197-11-680 because it is adopted in the City's Code at § 14.04.0120. $ricklin 1~Iewman Dold, LLP Attorneys-at-Law YELM COMMERCE GROUP'S RESPONSE 1001 Fourth Avenue, Suste 3303 TO CITY OF YELM'S MOTION TO DISMISS Tel. (206 64-8600 FOR FAILURE TO EXHAUST - 5 Fax (206) 2649300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1$ 19 20 21 22 23 24 25 26 27 28 adopting or enforcing provisions that conflict with a State law. See, ~, Parkland ,Light & Water Co. v. Tacoma-Pierce Count~Bd. of Health, 151 Wn.2d 42$, 433-434, 90 P.3d 37 (2004). YCG exhausted the administrative remedy of appealing the threshold determination to the Examiner. Once it did that, the next step in any appeal of the threshold determination was to this Court. The City's motion to dismiss claiming that its Council had authority over a second administrative appeal of the threshold determination fails pursuant to SEPA's explicit prohibition against more than one administrative appeal. B. The Cit Code Does Not Provide for a Second A eal of the Threshold 'Determination to the Council A plain reading of the City's appeal requirements is consistent with the conclusion that YCG need not have appealed the Exanner's denial of its appeal of the threshold determination to the City Council. Chapter 2.26, "Hearing Examiner," states: The final 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 Examiner, except threshold determinations (YMC 15.49.160) in the following manner .. . YMC 2.26.15 (emphasis supplied}. Both orders from the Examiner are consistent with the above Ianguage. BrickIin Dec., Ex. 3; LUPA Petition, Ex. A. Given SEPA's express requirement that there can only be one appeal a the threshold determination before the City, the exception language in the City's Cody clearly means that YCG could not appeal the Examiner's ruling on the threshold determination to the Council. The City offers a contorted reading of its Code inconsistent with SEPA to support its motion. The City claims that YMC 15.49.16 supports its claim that YCG was required $ricklin Newman Dold, LT.~ Attorneys-at-Law YELM COMMERCE GROUP'S RESPONSE 100] Fourth Avenue, Suite 3303 TO CITY OF YELM'S MOTION TO DISMISS Tel. (206) 65600 FOR FAILURE TO EXHAUST - 6 Fa_~t (20G) 2G4-9300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2a 21 22 23 24 25 26 27 28 to appeal the Examiner's upholding of the MDNS to the Council. City Mot. at 3-4. But YMC 15.49.160 states: d. Appeal of SEPA threshold decision. Except as noted in subsection (C)(1) of this section, a SEPA appeal shall be combined with a review of the underlying action .. . 2. Far projects requiring a public hearing, an appeal of a DNS/MDNS shall be submitted in writing within 21 days after the date the 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 date the DNS/MDNS is issued. The City Council shall decide the appeal based on the written record at a closed record appeal hearing. YMC 15.49.160(D}. The City appears to be claiming that the last sentence of YMC 15.49.160(D)(2) is applicable. But the part of (D)(2) appIicable to this case is the first sentence, not the Iast two sentences . Here, the approval that the Wal-Mart Superstore was required to receive was a site plan. Under the YMC, the Examiner "shall conduct" a public hearing for and make the final decision on binding site plans. YMC 2.26.090. Pursuant to YMC 15.49.160{D}, any appeal of a MDNS must be heard with the hearing on the site plan. See also RCW 43.21C.075(3){a)-{b). Because the Examiner had jurisdiction over the site plazz decision, pursuant to YMC 15.49.160(D){2), he necessarily had jurisdiction over the appeal of the threshold determination. And once that portion of YMC 15.49.160(D){2) was applicable, the second half of the provision -- "if no hearing is required" -- which includes the language $ricklin Newman Do(&, LLP YELM COMMERCE GROUP'S RESPONSE Attorneys-at-Law ]001 Fourth Avenue, Suite 3303 TO CITY OF YELM'S MOTION TO DISMISS Tel. (206W 64.8600 FOR FAILURE TO EXHAUST - 7 Fa=r (206) 2649300 11 21 3 4 5 6 7 8 9 14 11 12 13 14 15 16 1'1 18 19 zo 21 22 23 24 I 25 26 27 2$ regarding the Council deciding the appeal based upon the written record at the closed record appeal hearing, was inapplicable. Thus, the plain language of the City's own Code directly undermines the City's contention that a second administrative appeal was available before the Council. YCG cannot be required to exhaust an administrative remedy that does not exist. The City's motion should be denied. IV. CONCLUSION For the above,reasons, the City's Motion for Failure to Exhaust should be denied. There is no basis in the City Code to reach a decision that exhaustion of a second appeal of the threshold determination was required of YCG. Moreover, a requirement of a second administrative appeal of a threshold determination is absolutely prohibited pursuant to SEPA. Because there is no legitimate basis to claim that YCG needed to exhaust a non- existent and prohibited second administrative appeal before the Council, the City's motion should be denied. A proposed order denying the City's motion is attached hereto. Dated this ~ day of March, 2006. Respectfully submitted, BRICKLIN-NEWMAN DOLD, LLP By: ~-` David A. Bricklin, WSBA No. 7583 Jennifer A. Dold, WSBA No. 23822 Attorneys for Yelm Commerce Group YCGISuperiorlltesponse to Failure to Exhaust Motion $ricklix~ Newman Dold, LLP Attorneys-at-i.aw YELM COMMERCE GROUP'S RESPONSE 1001 Founh Avenue, Suite 3303 TO CITY OF YELM'S MOTION TO DISMISS T~ei (20GW G4--8600 FOR FAILURE TO EXHAUST - S Fax (20G) 264-930D 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 26 27 28 D MAR 0 7 2Q06 The Honorable Paula Casey Hearing Date: March 10, 2006 OWENS DAVl~S, P S. Hearing Time: 9:00 a.m. IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THURSTON COUNTY YELM COMMERCE GROUP, a Washington non-profit corporation, Petitioner, v. CITY OF YELM; PACLAND, INC.; and WAL-MART STORES, INC. NO. 06-2-00103-3 DECLARATION OF DAVID A. BRICKLIN I, DAVID A. BRICKLIN, declare as follows: 1. I am the attorney far Yeim Commerce Group in this action.. I make this declaration based on my personal knowledge. 2. Exhibit 1 is a true and correct copy of the June 7, 2005 Mitigated Determination of Non-Significance. 3. Exhibit 2 is a true and correct copy of the City of Yelm's Notice of Public Hearing. BriclcIin Newman Dold, LL)? Attorneys-at-Law 1001 Pou:rlt Avenue, Suite 3303 Seattle, WA 98154 Tel. (20G} 2G4.8G00 DECLARATION OF DAVID A. BRICKLIN - 1 ~a~ (20G}2G4-9300 1 2 3 4 5 6 7 8 9 10 11 12 13 l4 1S 15 17 1$ 19' 20 21 22 23 24 25 26 27 2s 4. Exhibit 3 is a true and correct copy of the City of Yelm Hearing Examiner's November 18, 2005 Decision on Reconsideration. I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. Dated this ? day of March, 2404, at Seattle, Washington. YCG1Superiorlfleclaration of Bricklin DAVID A. BRICKLIN DECLARATION OF DAVID A. BRICKLIN - 2 $riclciin Newman Do6d, LLP Attorneys-at-Law 1001 Foutth Avenue, Suite 3303 Seattle, WA 98154 Tel. (205) 264-8600 Far (205) 264.9300 Mitigated Determination of Non-Significance File Number SPR-05-0099~YL Proponent: PACLAN©, Inc. Description of Proposal: Construction of a Wal-Mart Supercenter comprised of an '187,400 square foot retail building and 14,000 square foot garden center and associated parking and stormwater systems. Location of the Proposal: Approximately 1,000 feet east of Grave Road, north of State Route 507 at 17020 SR 507 SE. SectionlTownshiplRange: A portion of the Northeast '/a of Section 29, Township 1 North, Range 2 East; W.M. Threshold Determination: The City of Yelm as lead agency for #his action has determined that this proposal does not have a probable significant adverse impact on the environment, Therefore, an Environmental Impact Statement (EIS) will not be required under Section ~3.21C,030 (2}(c) RCW. This decision was made after review of a completed environmental checklist and other information on file with the lead agency. This informs#ion is available to the public on reques#. ConditionslMitigating Measures: See Attachment A Lead agency: City of Yelm Responsible Official: Grant Beck, Community Development Director Date of Issue: June 7, 2005 Comment Deadline: .tune 24, 2005 Appeal ea line: J 1, 2005 a eck, Community Development Director This Mitigated Determination of Non-Significance {MDNS) is issued pursuant to Section 197-11-340 (2) WAC. Comments must be submitted to Grant Beck, Community Development Department, at City of Yelm, 105 Yelm Avenue West, P.O. Box 479, Yelm, WA 98597, by June 24, 2005, at 5:00 P.M. The City of Yelm will not act on this proposal prior to July 1, 2005, at 5:D0 P.M. You may appeal this determination to the Yelm Hearing Examiner, at above address, by submitting a written appeal no later than July 1, 2005 at 5:00 P.M. You should be prepared to make specific factual objections. Contact Grant Beck, Community Development Director, to learn more about the procedures for SEf'A appeals. This MDNS is not a permit and does not by itself constitute project approval. The applicant must comply with all applicable requirements of the Ciry of Yelm prior to receiving construction permits which may include but are not limited to the City of Yeim Comprehensive Plan, Zoning Code {Title 17 YMC}, Critical Areas Code (Chapter 14.08 YMC}, stormwater Drainage Design and Erosion Control Manual, International Building Code, Critical Areas Regulations {Title 14 YMC}, Road Design Standards, Platting and Subdivision Code (Title 16 YMC}, and the Shoreline Master Program. DO NQT PuBLISi•i BELOW THIS LINE Published: Nisqually Valley News, June 10, 2005 Posted in public areas: June 7, 2005 Copies to: All agencies/citizens on Si=PA mailing fist and adjacent property owners Dept. of Ecology w/checklist {~.(-itb~{- f Attachment A Mitigated Determination ofNon-Significance SPR-~5-OU99-YL Findings of Pact 1. This Mitigated Determination of Non Significance is based on the project as proposed and the impacts and potential mitigation measures reflected in the following environmental documents: / Environmental Checklist (March 2005, PACLAND) / Response to request for additional information (May 2005, PACLAND) / Revision to Environmental Checklist (May 2005, PACLAND} / Phase I Environmental Si#e Assessment (December 2004, Zipper Zeman Associates} .. / Site Reconnaissance Report (January 2005, TALASAEA} / Preliminary Drainage and Erosion Control Report (March 2005, PAC~AND) / Transportation Impact Analysis (March 2005, the Transpo Group} / Water Supply Report (November 2004, PACLAND) / Geatechnical Engineering Evaluation (January 2005, Zipper Zeman Associates} 2. The environmental documents indicate that the property is composed of soils and substrates that are suitable for building and for stormwater infiltration,, with the possible exception of an area of historic fll material, which will be removed and replaced with structural fill if it is not capable of supporting the building. There is no other indication that there are any potential significant impacts to the earth (geology, topography, soils). 3. There is no indication in any of the environmental documents that there will be any potential long-term significant impacts to air quality from the proposed development. 4. The City of Yelm is identified as a Critical Aquifer Recharge Area, a designated environmentally sensitive area. Potential Impacts to groundwater quality and quantity wilt be mitigated through measures #hat exceed the standards in the 1992 DOE stormwater manual as adopted by the City of Yelm. In addition, the northeast corner of the property is identified by Thurston County as a potential high groundwater flooding area based on floods that occurred in the mid 1990'x. Thurston County, in other areas of the County that are potential high groundwater flooding areas, indicates in the Interim Site Development Standards for New Development in Salmon Creek Basln that if there is more than six feet of separation between the level of the high groundwater and the bottom of any infiltration gallery, the project should be designed to the effective drainage manual. The City has adopted the 1992 Department of Ecology Drainage Design Manual, which requires that stormwater generated from a parking facility be treated for oils, sediments, and heavy metals before infiltration. The proposed Wal-Mart supercenter includes an auto repair and oil change facility, a pharmacy, grocery and meat sales, and prepared food service. Existing regulations require grease interceptors and hazardous material containment facilities. 5. The environmental documents do not indicate that there are any priority species or habitats or any endangered or #hreatened species on or near the property that would be impacted by the proposed development. 6. The environmental documents do not identify a potential significant impact related to the use of energy or natural resources. 7. The environmental checklist indicates noise would be generated from vehicles and freight unloading `at variable hours' anti proposes an 8-foot tall masonry wall along the northern property line and eastern property lines. These areas are either zoned or pre-zoned moderate density residential, which is a residential zoning district with a minimum density of 3 units per acre and a maximum density of 6 units per acre. Because adopted noise regulations exempt required safety equipment, including back-up beepers, there could be impacts to adjacent residential properties from noise related to freight unloading in the evening hours. 8. The environmental checklist indicates that the site will be lit to provide a safe level of lighting in the parking lot and around the building and that impacts will be mitigated through design of the lighting plan and placing down shields along the property line. 9. The City of Ye[m 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 cancurrency 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 identii'led the six-year transportation improvement program in the form of a Transportation Facilities Charge. 10. The Growth Management Act at Section 36.70.070 (6){b} RCW states that a finding of concurrency can be issued when required improvements 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. 11. The City of Yelm and the Washington State Department of Transportation ("WSDOT") have established a minimum intersection level of service ("l_OS") Attachment A MDNS (SPR-05-0091-YL) Page 2 of 7 standard of "D" for all intersections in the City's commercial zones, with the exception of the intersection of Yelm Avenue and First Street NW where the standard is LOS "F". 12. All intersections in the City are currently operating in compliance with the adapted LOS standard and will continue to operate within the adopted standard after the opening of the Wal-Mart supercenter. 13. The traffic impact analysis (TIA) submitted as part of the application indicates that the project will generate an average of 7,998 vehicle trips per day, with a PM peak of 649 vehicles per hour. The TlA indicates that, with average growth: / The proposal will impact traffic movements at various signalized intersections, including lowering the level a# service and increasing wait times at the lights at Yelm Avenue and First Street (SR 507 and SR 510) and 5 corners (Yelm Avenue (SR 507) and Bald Hills Road/Creek Street). Although the proposal has an impact on the level of service of these intersections, the LOS will not drop below the City's adopted standards. / The proposal will lower the level of service and increase wait times at the intersection of Yelm Avenue and Cullens Road, Yelm Avenue and Edwards Street, and Yelm Avenue and Plaza Drive, although the LOS will not drop below the City's adopted standards. 14. Section 14.04.055 YMC indicates that the principal guide in measuring environmental impact is consistency with the land use designations of the comprehensive plan and the development regulations designed to implement the plan. 15. Adding connections through the City transportation system decreases the impact of additional traffic, both regional and local, on Yelm Avenue (SR 507 and SR 51Q) and the intersections along Yelm Avenue. Based on the trip distribution of the TIA, connecting the future SR 510 Yefm Loop from the subject site to 103~d Street could reduce the amount of traffic the proposal would add to Yelm Avenue by eighteen percent (18%). 16. The checklist indicates that.the proposal will require police protection. The Yelm Police Department provides police services to all City residents and businesses. According to CAPCOM, the dispatch agency for Thurston County, the Wal-Mart store in Lacey at Hawks Prairie, which is not a supercenter, generates an average of 300 calls for service per year. Wal-Mart has indicated that it has provided security mitigation in the form of parking lot security cameras in other jurisdictions. 17. The checklist indicates that the proposal will require fire protection services. SB Thurston Fire/EMS provides Fire and Basic Life Support services to City of Yelm residents and businesses. The Department currently operates a single ladder Attachment A MDNS {SPR-05-0099-YL) Page 3 of 7 truck purchased used that is near the end of its service life. Without the proper equipment to fight a fire in a store of the area and height of the proposed Wal- Mart, the fire insurance rating of SE Thurston FireIEMS would be lower, which could trigger higher insurance rates for residents and businesses within the fire district. 18. Temporary construction impacts such as noise, fight, water quality, and air quality, are mitigated by requirements of the Zoning Code and Development Guidelines relating to construction activities. Mitigation Measures 1. The developer shall mitigate transportation impacts based on the peak PM trips generated by the project. The Transportation Facility Charge {TFC} shall be based on the engineers estimate of 649 peak PM trips in Traffc Impact Analysis at a rate of $750 per peak PM trip. Credits may be given far projects which create a significant economic benefit to the community. The size of the credit shalt be measured at an appropriate percentage of the anticipated annual tax revenue increase to the community and available for capital can#ribution to transportation facilities on the approved plan as a result of the project. The credit is calculated as follows: a. Estimated gross revenue for six years. b. Multiply gross revenue by 0.2 percent (B and O tax). c. Multiply gross revenue subject to sales tax by 1.5 percent (city share of state sales tax). d. Add products of b and c above. e. Multiply total from line d by nine percent (percentage of tax revenue budgeted to city road fund). f. Multiply product from line a by 28 percent {percentage of money in the road fund that is designated as private share for projects on the TFC). Based on the submitted site plan, the base TFC would be $486,750.00 before the credit. The traffic facility charge must be paid prior to building permit issuance and will be calculated on the square footage of the building permit. 2. The applicant shall be responsible for the following transportation improvements: a. Frontage improvements along State Route 507 to include a sidewalk, planter strips, curb and gutter, a drop lane on the north side of SR 507, and a west bound trave! lane, a two way left turn lane, and a full eastbound travel lane. b. Frontage improvements along the future SR 510 Yelm Loop to include a sidewalk, planter strip, curb and gutter, a northbound drop lane from the Attachment A MDiVS (SPR-o5-o091-YL} Page 4 of 7 intersection to the northernmost entrance to the site, a northbound lane, a two way left turn Zane, and a southbound lane. c. A signal at the intersection of the SR 507 and the future SR 510 Yelm Loop, including a minimum 250-foot eastbound left turn lane. d. The light at 5 corners (the intersection of Yelm Avenue East (SR 507}IBald Hills Road/Creek Street) shall be optimized. e. The future 5R 510 Yelm Loop shall be connected to 103rd Street by constructing a new road with two 12-foot drive lanes and 4-foot shoulders. 103rd Street from the intersection of the SR 510 Yelm Loop road extension to the bridge over Yelm Creek shall b~ widened to include two 11-foot drive lanes and 4-foot shoulders. The applicant shall enter into a developer agreement with the City of Yelm for the purchase of the right-of way required to connect the future SR 510 Yelm Loop with 103rd Street. Right-of-way acquisition would be completed by the City of Yelm and the applicant shall reimburse the City in whole for this aquisition. Mitigation measures c, d, and a are appropriate to provide for the safe movement of traffic and are not necessary to mitigate potential, significant impacts. Plans far approval for all transportation improvements shall be submitted to the Washington Department of Transportation and the City of Yelm for review and approval prior to issuance of a certificate of occupancy. Ail required improvements shall be constructed by the applicant pursuant to the approved plans and inspected and approved by the City of Yelm and Washington Department of Transportation. The plans for approva! shall include a schedule for construction of all required improvements that is consistent with requirements far issuance of a finding of concurrency as follows: / Frontage improvements, including the traffic signal at the intersection of SR 507 and the SR 510 Yelm Loop shall be constructed prior to issuance of a final certificate of occupancy for the building. / The 103rd connection shall be constructed no later than 18 months from the approval of construction plans and acquisition of required right-of-way. Frontage improvements to both SR 507 and the future SR 510 Yelm Loop shall be based on the urban arterial section of the Yelm Development Guidelines, as modified by the addition of drop lanes. All required improvements and right-of-way acquisition shall be secured with a letter of credit prior to issuance of a certificate of occupancy. 3. Prior to building permit issuance, the applicant shall enter into a mitigation agreement with the Yelm Police Department which includes the provision of a secure, private space at feast 120 square feet in area within the facility for use by At#achment A MDNS {SPR-05-0091-YL) Page 5 of 7 the Yelm Police Department and SE Yelm Fire/EMS and shall address the use, furnishing, and location of the space. 4. The applicant shall provide one parking space within 75 feet of the entrance dedicated to emergeicy vehicles. 5. The applicant shall instal! security cameras covering the entire parking lot. Prior to building permit issuance, the specifications of the video surveillance system shall be provided to the Yelm Police Chief for approval and coordination with a potential citywide video system. 6. Prior to building permit issuance, the applicant shall pay a mitigation fee to SE Thurston FireIEMS for use towards the replacement of equipment specifically required to fght a fire in large commercial structures and maintain the existing insurance rating. The mitiga#ion fee shall be based on the applicant's aliquot impact on the need for replacement equipment. 7. Civil plan submission shall include an updated preliminary stormwater plan that meets or exceeds the standards in the 1992 stormwater Manual as adopted by the City of Yelm. The stormwater plan shall include the following elements: a. The elevation of the bottom of the infiltration gallery shall be a minimum of six feet above the elevation of the high groundwater area as identified by Thurston County (approximate elevation 335}. b. The pump system of the stormwater system shall be wired to an automatic emergency generator sufficient to provide stormwater treatment during an extended power outage. c. Separate water quality treatment for roof runoff shall be provided. d. The stormwater system shall be designed to accommodate stormwater generated by all required frontage improvements, unless a stormwater system that meets the adopted standards of the City of Yelm is designed, approved, and constructed to serve frontage improvements off site. e. The fnal stormwater plan shall include a maintenance and operation plan, which includes an annual report to the City of Yelm regarding the maintenance and operation of the system. 8. The civil plan submission steal! include a noise mitigation plan that clearly shows that the standards found in Chapter 173-60 Washington Administrative Code - Maximum Environmental Noise Levels will be met and shall include, at a minimum, an 8-foot tall masonry wall along the northern and eastern property lines. The noise mitigation plan shat! mitigate the noise from freight unloading to the thresholds for noise from a Class B EDNA to a Class A EDNA. Exemptions for warning devices or intermittent safety equipment as found in Sections 173-60- 050 (4) (d) and (e} WAC shall not apply from 7 PM to 7 AM in order to protect Attachment A MDN5 (SPR-05-0091-YL) Page 6 of 7 neighboring residential uses. Best available noise abatemen# technology as found in Section 173-60-050 (8} shall be included in the mitigation plan. 10. The civil plan submission shall include a lighting plan #hat maintains a light level of 0.1 candle-foot 5 feet off the edge of the property. Attachment A MDf~S (SPR-05-0091-YL) Page 7 of 7 ~4~0~ 'THE A~ l~ Z ~y ~ f l e G m ~' Community Development Department 105 Yelm Avenue West P.O. Box 479 YELM Yelm, WA 98597 MBA 3MINCTON NOTICE OF PUBLIC HEARING YELM HEARING EXAMINER DATES: Monday, August 29, 2005, 9:00 A.M. Tuesday, August 30, 2005, 9:00 A.M. Thursday, September 1, 2005, 9:OOA.M, PLACE: Yelm Community Services 624 Crystal Springs Road NW Yelrn, WA 98597 PURPOSE: A consolidated Public Hearing on Wal-Mart Case Numbers APL-05-0203-YL and SPR-05-0091-YL. A consolidated hearing on a site plan review application and an appeal of the issuance of a Mitigated Determination of Non- significance. The site plan review application proposal by PACLAND, Inc. is to construct a Wai-Mart Supercenter comprised of an 187,400 square foot retail building and 14,000 square foot garden center and associated parking and stormwater systems. The project is located approximately 1,000 feet east of Grove Road,. north of State Route 507. The Yelm Commerce Group appealed the issuance of a Mitigated Determination of Non- significance. The City of Yelm Hearing Examiner will . hold a public hearing to receive comments on the proposal. The anticipated order of the hearing will include opening comments by the City, Wal- Mart, and the Yelm Commerce Group followed by public comment from any interested party on Monday with expert testimony by witnesses for the applicant and appellant on Tuesday and Thursday. Testimony from the general public will be accepted throughout the entire three days of the hearing, but is encouraged to be presented on Monday, August 29. Testimony may be given at the hearings or through any written comments. Comments must be received by the close of the public hearing. Written comments may be submitted to the City of Yelm at City Hall, 105 Yelm Avenue West, ar mailed to: City of Yelm, PO Box 479, Yelm WA 98597. Any related documents are available for public review during normal business hours at City Hall and on the City of Yelm web site at www.ci.yelm.wa.us. For additional information, please contact Grant Beck at (360) 458-3835. ~~b~~-~ The City of Yeim provides reasonable accommodations to persons with disabilities. If you need special accommodations to attend or participate in this hearing, call the City Clerk, Agnes Bennick, at (360} 458-8404, at feast 4 days before the meeting. ATTEST: City of Yelm Agnes Bennick, City Clerk DO NOT PUBLISH BELOW THIS LINE Published in the Nisqually Valley News: Friday, Jufy 29, 2005 1=ridgy, August 12, 2005 Friday, August 26; 2005 Posted in Public Areas: Friday, July 29, 2005. OFI^ICE OF THE HEARING EXAMINER ~~vE~ E~ CITY OF YELM NFU 2 j ZQQJ~ DECISION ON RECONSIDERATION BRi'CKLI<N NEWMA~ DO>! p LEP CASE NO.: SPR-05-0091-YL -- WAL-MART SUPERCENTER APPLICANT: PACLAND, Inc. 606 Columbia Street NW, Suite 106 Olympia, WA 98501 PROPERTY OWNER: Wal-Mart Stores, lnc. 2001 SE 10'" Street '' Bentonville, AR 727'12-6489 APPLICANT'S ATTORNEY: John C. McCullough McCullough Hill Fisko Fretscmer Smith Dixon 2025 First Avenue, Ste. 1130 Seattle, WA 98121-2100 APPELLANT: Yelm Commerce Group P.O. Box '1816 Yefm, WA 98597 APPELLANT'S ATTORNEY: David A. Bricklin Bricklin Newman Dold 10E)1 Fifth Avenue, Ste. 3303 Seattle, WA 98154 By Report and Decision da#ed November 1, 2005, the Examiner denied the environmental appeal of the Yelm Commerce Group challenging the City of Yelm's responsible official's decision to issue a Mitigated Determination of Nonsignifcance following review pursuant to the State Environmental Policy Act (SEPA). In the same decision the Examiner conditionally approved the applicant's proposed site plan which allowed construction of a Wal-Mart Supercenter north of SR-507 and east of Grove Road. On November 14, 2005, reconsideration requests were timely filed by Valentin Fyrst, Bill Nicholls, Edward A. Wiltsie, and James Zukowski. Section 2.26.150(E) of the Yelm -~- ~~,4b~f 3 r-~ Municipal Code (YMC} provides that following receipt of a reconsideration request(s): The Hearing Examiner may, after review of the record, take further action as the Hearing Examiner deems proper... The reconsideration request filed by Zukowski, Wiitsie, and Fyrst essentially reargue the traffic issues decided in the original decision. The Nicholls reconsideration request also addresses traffic, but also raises air quality, odor, and air pollution issues which are beyond the scope of the environments! appeal and therefore cannot be considered. The issues raised by the reconsideration request have either been previously considered in the original decision or are beyond the scope of the environmental appeal. DECISION: The requests for reconsideration are hereby denied. ORDERED this 18~' day of November, 2005. E K. CAUSSEAUX, JR. Hearing Examiner TRANSMITTED this 18~' day of November, 2005, to the following: APPLICANT: PACLAND, Inc. 606 Colombia Street NW, Suite '106 Olympia, WA 98501 PROPERTY OWNER: Wal-Mart Stores, Inc. 2001 SE 10"' Street Bentonville, AR 72712-6489 APPLICANT'S ATTORNEY: John C. McCulloughlCourtney Flora McCullough Hill Fiskv Fretscmer Smith Dixon 2025 First Avenue, Ste. 1130 Seattle, WA 98121-2100 -2- Yelm, WA 98597 APPELLANT'S ATTORNEY; David A. Bricklin Bricklin Newman Doid 1001 Fifth Avenue, Ste. 3303 Beattie, WA 98154 City of Yelm Grant Beck/Tami Merriman 105 Yelm Avenue West P.O. Box X79 Yelm, Washington 98597 OTHERS: See Attached Mailing List -3- APPEAL OF EXAMINER'S DECISION: The final decision by the Examiner may 6e 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 Yeim Municipal Code (YMC). -~-