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Petition1 4 5 6 7 S ~, I lI 12 13 4 1 1 17 IS 1~ 1' ~3 ~~ ~~y7Q .G5 IN TI-IE SUPERIOR COURT OFT ESTATE Ole WASHINGTON IN AND :FORT URSTON COUNTY YEL1vI COIv1ERCE GROUP, a Washington non-profit corporation, Petitioner, v, NO. LAND USE PETITION CITY OF YEL ACLANf9, INC,, and OVAL-1VIART STORES, INC. Thss petition Initiates an appeal of the City of Ylm Baring Examiner's decision to approve a site plan and State Envlro ental Policy Act ("SETA"} review for a 'Val-~rlart project proposed for the City of Yel .This is also an appeal of a subsequent afi anon of the Examiner's site plan approval the City of Yelm City Council. This appeal is co enced pursuant to tlae Land Use Petition Act (LUPA), ch. 3C,'7C RCS, rsuant to LUPA, petitioner alleges as follows: I, NAME AID AILING AI~I~RESS OF THE PETITIONERS Yelm Co erce Group P.C}. Box 16I6 Yelm, ~A 9559` LAND USE PETITION - I Bricklin Newman Fold, LI.P ~.ttnznevs-at-[.:iiu (t3Q1 Faurth t~venue, Suite ~3D3 S~attte, SUA 48154 `t'el. (2QG} 264-Sbt~ Fax (2CtFi) 2b4-43(F!7 1 2 3~ i 4i 5 6 "~ 8 9 10 11 12 13 14 15 16 17 18 I 19 20 21 ~'', 22 23 24 25 2~s 27 II. NAME AND AILING ADDRESS OE PETITIONER'S ATTORNEYS III. NA E AND ~ AILING ADDRESS OFT E LOOAL JU DICTION WHOSE LAND USE DECISION' IS AT ISSUE City of Yelm 105 Yelm Avenue West P.O. Box 479 Yelrn, WA 95579 ICI. IDENTIFICATION OF THE DECISION- A NG BODY, TOET~IER WITH A DUPLICATE COPY OFT E DECISION The City of Yel Baring Examiner, Stephen Causseaux r., issued an approval of the SETA decision and site plan Case No, SPR-OS-0091.-YL-WAL-MART SUPERCENTE, on November 1> 2005, A copy of the Baring Examiner's Report and Decision is attached hereto as Exhibit A. The City of Yel City Council denied an appeal of the site plan on December 28, 2005, The City of Yelm Resolution No. 460 Upholding the Hearing Examiner's Approval of the Site Plan Review for the Construction of a Wa1- .art Supercenter is attached hereto as Exhibit B. . IDENTIFICATION OF EACH PERSON TO E ADE A PARTY UNDER RCW 36.700.040(2}(b)-d} ACLAND, Inc. 606 Columbia Street NW, Suite 106 Olympia, WA 98501 LAND USE PETITION - 2 Bricklin Newman Bold, LLP Attorneys-at-L.a1v 101 Fourth Avenue, Suite 33t}3 SS:3tt,C, ~~3'~ 9~1 ]'~ Tci. ('246) <44-8bCJ0 Fax (2061264930{? 1' 2 3 4 6 7 10 11 12 1 14 15 1 17~ 18~ 1 ~, 20 21 22 23 2 2S 2 27 24 al- art Stare, Inc. 2001 SE 10`" Street entoville, R "72712-6 I~ACLNI~, Inc. is identified y Warne and address in the earing Examiner's Fritten decision as the applicant for the site plan review, al-IV1art Stores, Inc. is identified lay name and address in the Nearing Examiner's written decision as the owner of the praperty at issue. '~I. EACTS i~E C)NST TINS T AT T E I'ETITI©1*lER IAS STAhTI~II'~G .1 elm Co .arcs Croup (~`CC~"~ participated extensively during the City review process far the proposed dal- art project, YCC and its embers provided test` ony and written evidence before the City of Yelm earing Examiner in the after being appealed, embers of YCC live in the City of del where the project will e located. .2 YCC is incorporated as anon-profit corporation under the laws of I.,AI~iD 1_TSE PETITIi~I~d - 3 riciitin e~zxxan bald, LLF aTtorneps-at-L,ativ d441 FouctFi avenue, Suite 3343 Se~ttle,1~%A 94d ~4 Tai. (34G1 264-hG4f) L':u (20f~) 26a-4~3ot) 1 3 4 S 6 7 9 10 11 12 13 l 15 1 i 17i 1 '', 1 i 20 '; 21 ~' ~~ 22 2'3 '~ 2 25 26 X27 28 'elm and by causing the demise of businesses awned and patranized by members of YCCi, In additian, the project may have significant impacts cancerning starmwater and wetlands which would create adverse impacts to resaurces which {~ and its members seek to prated and which cause adverse flaoding impacts to e detri ent of Y'CG and its errzers. .3 The Hearing Examiner's decisian has prejudiced ar is likely to prejudice ~'CY and its members because the site plan approval allows the praject to praceed and adversely affects the embers of ~t'C as stated in ~( ,2. The interests of YC and its .embers are amapg these that the City of Yelm previsions and palicies of the city as expressed in its variaus adapted ... ardinances." l~1C 17.8-.0201. The intent of the C Chapter 17 {which captains the site plan criteria) includes the need to "prated the health, safety and general welfare of the city's residents,,, and "promote sound economic development and prefect property values." ~ 17,03.#320 ( ~ C). It was necess ~ far the City and Examiner to consider the interest of YC and its zxzembers to fulfill these goals. .5 judgment in fever of the I~'C would substantially eliminate ar redress the prejudice that is caused y the land use decisian in this case. judgment in this case finding the Hearing Ex iner's and Cit3,F Council's decisions to e erroneous would result I..A~lI3 IJSE FETIT~C31~1- ~ $ricklin I~e~van Fold, LLI' Atearneys-eat-Law 1t)tll C=nw'rh Avenue, susre ~3Q~ Seatt3e.~'A 9815<# TeL (206j 28~-86t?0 Fay (206} ?li~#-93t~0 1 3 4 5 7 9 10 11 12 13 14 I 15~ i 16 17~ 18 '' 1' 20 21 22 23 24 25 2~ 27 2 in a reversal of the decisions approving e project and reversal of the decision that the project has only insignificant adverse enviro ental ° pacts, not warranting preparation of an Enviro ental Impact Statement. .6 The petitioner has exhausted its administrative remedies to the extent required by law. 'YCC3 representatives and members testified during the public hearing before the Examiner and submitted written co ants as well. The CCU and individual cc~ unity members appealed the Examiner's decision to the City of 'elm City Council pursuant to C 2.26.150. That appeal was denied. The Ct~'s only recourse remains with this Court. ~TII. A SEPA TE AND Cl+1CISE STATEI~IET i~F Et~.Cfl E ~I.aLEtsEL~ T ASE BEEN C(~ ITTEU 7.1 The Examiner's decision is clearly erroneous because the Examiner failed to consider that the City did not utilise the proper SEI'r~ process for collecting. adequate information prior to the threshold determination. 7.2 The Examiner's decision is clearly erroneous because the Examiner failed to consider that the City staff did not meet its duty to "independently evaluate" 'al- art's information and the evidence before the Examiner demonstrated the need for an :EIS. .3 The x iner's decision is clearly erroneous because the Examiner failed to consider at e City relied on inadequate and inaccurate information provided by the applicant to make its threshold deter ination. The Examiner's decision is clearly erroneous because the Examiner failed to consider evidence at the hearing that supported a nirx~ that the project wou3d have L A~1D I7SE PETITIOI~I - 5 ~3rickiin New~xrzan I?old, Li.P tlttorezeys-at-Latin iC?07 Faurch tOvenue, Suice 33Q3 susttle, SX~A 92~t54 Tel. (2D6) 264-~6t~fl Pae (2G6) 264-43f}0 1 2 3 4 5 7, 1 ~'', it 1 1 l~ 1 1 'T 1 l 2 21 2 3 ~4 ~~ ~~ `7 ,,~~,.~,. L C? significant adverse land use impacts that could not e mitigated and therefore required an Enviro ental Impact Statement ("EIS"~ 7.5 The Exa1 ~ er's decision not to require an Enviro ental .pact Statement is clearly erroneous because the proposal has probable significant adverse enviro ental pacts which requires preparation of an EIS. 7. The Examiner's decision is clearly erroneous because the proposal. does not meet the requirements of all applicable City codes. CC 17.,C. In particular,. al- art failed to eet its burden of demonstrating that it had complied with the City's transportation concurrency requirements, 7.7 The Examiner's decision should e reversed because the Examiner erroneously interpreted the law concerning the City's concurrency analysis. VIII. A CONCISE l-ATE ENT OF E?~C Ud~ ~VIC PETITICIt`~E RELIES TO SI,TSTAIN THE STATEIvIENT OF ERROR S, l Procedural Sack r~ ound . l . l Pacland, Inc. applied (on behalf of Wal- arty to the City of el .for construction includes Gaff street parking for 22 vetZicles. LAND L7SE PETITION - 6 ricklfn l~Tewznan hold, LLP rlttomet°s-at-taw td~t Fourth A~•enue, Suite 33+?3 Seatde,~Flf 98T54 Tel. (20~) 26<t-86Ck) Fax (2Qq'j 2b~-930t) 11 3 5 6 7 14 11 12 14 15 16 17 18 19 24 21 22 23 24 25 2 27 28 8.1.2 The proposed project is located in the City of 'elm on a sate zoned Large Lot Co ercial, and is located adjacent to SI2 507. 8.1.3 The proposal underwent review by City of Ye Co unity 8.1,4 The applicant's request for a site plan approval and the appeal of the I)S were the subject of a hearing before the elm City Council Heating Examiner conducted from August 2, 2005 through Septet~er 1, 2005. +C~n I~lovember 1, 2045, the Hearing Examiner approved the site plan and rejected the l~i~l~5 appeal. See Exhibit A hereto.} 8.1.5 YCG appealed the I~T~S to the City Hearing Examiner, alleging that e project had probable significant adverse irrtpacts d that an EIS was required. 8,1.6 The DNS decision was not subject to review by the City Council. Only the Site Plan Approval was subject o review y the Council pursuant to MC 2.26.150. ~C~ and individual citizens appealed the site plan approval to the City Council. The Council denied that appeal. (S~e Exhibit B hereto,} I.Al~ll~ LISE FETITI~1 - ? ric4slin l~ewnsan Laid, I.~.P A,CtpmeYS-aC-i..aw 161(11 Faurth Avenue, Suite 3303 Seattle, ~/~'i °8154 Tel. (200) 264-5600 Fas (206) 26~ 9311(1 2 3 4 6 7 8 9 1 11 12 13 14 15 1 17 18 1 Zt~ 21 22 23 24 25 27 8.2 Su ar~of Evidence emonstratinErrors in Gig's Decisions. 8.2.1 ~'G and the citizens of ~' presented evidence at the Examiner's hearing demonstrating that the Val-Dart project will have probable significant adverse impacts on elm's enviro ent. For purpose of giving the other parties notice of our cla' s, we incorporate y reference the post-hearing briefs we submitted to the Examiner. 8.2.2 The project will likely work a ajar transformation in the Yel co ercial district forcing the closure of many business, shifting the co ercial core from its present location to the ~Nal-~%iart site, and potentially leaving the heart of helm struggling with urban Might for years to come, 8.2.3 There is no indication on either the submitted EPA checklist or in 8.2.4 The applicant provided no supplemental information regarding urban blight and related land use issues. 8.2.5 Evidence presented by r. anon oarnet and numerous citizens indicated that the project would have probable significant adverse ' .pacts in the context of land use and urban blight. Testimony indicated that project would have three major .pacts; a. It would effectively ove the downtown core from its current site to the sate of dal- art's proposal; ricklin 1`+Tean Fold, LLP Attorneys-at-Law 1Q02 Fourth Avenue, Suite 3303 Settle, CIA 9815 p p ~qq~ ~y~+~+ Tp TT A7 q Tea. ('206) 26~-8606 A...L"~iY L! b..1.7i:.C ~Tl'. S l~hf tJ Fos (2Q6~ 26.1-9300 ~, 2 4 5 6 8 9 l l 1. l2 13 l4 1S l I 17j 1 ~I l9' ~~ 2 21 22 23 24 25 2~ 27 8.2.6 The City of Yel will e detr° entally affected by tremendous amounts of additional traffic generated y the project, As the citizens demonstrated, the Wal-i4lart traffic will negatively impact safety, the provision of a critical public service education), and even mental health. 8,2.7 Evidence presented at the hearing indicated that traffic volumes at 8.2.8 lwrlost of the data revealing these pacts was buried in abstruse appendices submitted y Wal-Mart's traffic consultant. The report appeared to e designed to shed as little light as possible. on the traffic issues. An EIS would have farce the disclosure of this important information. 8,2.9 The City's EA analysis failed to consider alternative methods for assessing level of service pacts and failed to consider the project's long-term transportation ° pacts. LAND LTSE PETITION - 9 ~riek]in Newman Dotd, LLP attorneys-ac-I.asv 1007 Po~snl~ A4eenue, suite 3303 Seattle, t~UA 98154 Tel. (2t1G) 26~-860ti Faic (2Q6) 26493t?4 1 2 3 5 6 7 8 9 1 11 12 13 1 15 16 17 1 1 20 21 22 23 2~ 25 26 27 2S 8.2.10 The City's SEPA alysis failed to consider e project's traffic impacts on future development potential in the City. $,2.11 Calculations in the project's traffic analysis understated the ° .pact that the probable traffic congestion would have at the It 507/SR 510 intersection. 8.2,12 The project traffic analysis failed to take into account the large nu bar of pedestrians (including school children) attempting to cross Yelm Avenue, 8.2.13 The City's SEPA analysis was based on incomplete information regarding potentially signifzcant groundwater i pacts. The data available to the City contained considerable uncertainty as to the groundwater level beneath the project's proposed stormwater pond. dal-Mart's consultants only ,guessed as to what the groundwater levels would e during the wettest months of the year and during particularly wet years, In addition, dal- art's extrapolated groundwater levels did not etch data available on-site and adjacent to the site. 5,2,1 The City's SEPA analysis was based on into. plate information a wetland deterinationldelineation. $.2.15 liven the foregoing and other evidence in the record, the Court should find that there was not substantial evidence in the record to support the Ex iner's findings LA~II~ I.TSE FETITIN - 10 ricklira I`*l`ewaex Datd, LLP Ataomevs-at-Law 100i Fourkh Avenue, Suite 33(13 Seactte, WA 9$154 Tei. (206} :648600 FaY (206126493EM1 1 2 3 4 5 6 7 9 1 11 12 13 14 1S 16 17 i 1$ 19 2 21 ~', 22 'I 23 2 2S 2~ 27 2$ and conclusions that the project would nut have probable significant adverse enviro ental impacts and would not require a EIS, $.2.16 A site plan ca of e approved unless a proposal complies with the City's transportation concurrency ordinance, According to a1- .art's own transportation analysis, intersections along Sl2 S7 do not satisfy the City's concurrenc requirements. $.2,17 'The City's LQS standards are found in its Comprehensive in the urban core, LQS 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 pla ed, funded and imple ented, $.2.1$ There was not substantial evidence provided y Wal- art car the Cit~T at the hearing that there are any "traffic diversions, bypasses, alternate routes or alternate modes of transportation" that are being "pla ed, funded and implemented" that would mitigate the current traffic congestion on Ylm Avenue. $.2,19 As acl~.nnowledged y testimony at the hearing multiple methods are available to calculate LQS. 'The Ex er's (and staff's) use of o y one available method ignored congestion along it'elm Avenue that would result in LQS E or ~' at various additional intersections as well as along the length of Yelm Avenue itself (using the "urban street LS" method). LAI~iD USE PETITIQI~I - 11 Br~cki3n ~'ewan Dald, LLI~ 1~ttome~~s-ac-Law fl4h~1 F~tuth Avenue, Suite X343 Seattle, WA 9&154 Tel. (2GO 2b3-8Gt2~ Fax (2s~6) ~.G4-930p 1 2 3 5 6 i 8 9 10 11 12 13 14 15~ 1 17 18 19 i. 20 21' 22 23 24 '' 25 2s 27 8.2.20 The City applied e wrong level of service standard to test traffic concurrency on the state roads that run through helm and which will be heavily hnpacted by this project. The City applied its own level of service standards for the state routes yet C~V 4'7.80.030 dictates that the level of service on the state routes e established by the regional transportation pla ing organization. 'The City erred in not applying those more stringent standards here. I EIJEST F® REI.IEE 9,1 Petitioner elm Co .arcs Clroup requests the following relief: 9,1,1 order requiring the City of el to submit to the Court a certified copy of the non-duplicative and relevant portions of the administrative record for judicial review; 9,1.2 ~n order reversing the airing Examiner's approval of the site plan and SEA review; 9.1.3 ~4n order directing the City to prepare an EIS; 9.1..4 n order reversing the City of Yelm's City Council .decision upholding the Hearing Exarriiner's decision to approve the site plan; 9.1.5 n award of petitioner's statutory attorney's fees and costs; LAI~I~ L1SE PETITIQN - 12 Bsicklin Newman bold, LLi' :4ttame}'s-at-Law 1oQl Poucch!1e~enue, Suzte 333 Seattle, W'A 9$754 Tel. (~06) 264-$6(?C? Fie (~06) 2(4-93Qt3 1' 2i 1 5' 6 7 8 9 10 ~~ 12 13 16 17 1 I i 19 i 20 I 21 22 23 25 2~ 27 24.5 9.1.6 Any ether relief deemed necessary by the c~~.rt, aced this _~ day ~ 3ana~ary, 2006. aspect lly sub `tied, C II`3 E~ Ahi ~QLD~ Lip YCG\Superioc\Land Use Petition ~ANI~ USA I'ETITIt~N - 1 BflCln Newman I~oIc3, LAP attorneys-ac-Caw 'l441 Fa~zrdx avenue, Seize 3343 5eattie, wa'~8154 'Fci. {2116) 2tS4-S6f10 Fav (24?6) 264-934?4