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HE Decision appeal of SPR-03-8354OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO.: APPEAL OF SITE PLAN REVIEW APPROVAL: SPR-03-8354-YL APL-03-8361-YL APPELLANTS: Mr. and Mrs. Steve Rothwell 1011 West Yelm Avenue Yelm, WA 98597 SUMMARY OF REQUEST: The appellants are appealing the conditions of their site plan review approval allowing the after the fact conversion of a residential accessory structure to a dance studio. SUMMARY OF DECISION: Appeal denied. PUBLIC HEARING: After reviewing Planning and Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request as follows: The hearing was opened on January 16, 2004, at 1:00 p.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: EXHIBIT "1" - Planning and Community Development Staff Report and Attachments GRANT BECK appeared, presented the Community Development Department Staff Report, and testified that site plan review (SPR) is necessary to convert a previously constructed shop building to a dance studio. The city approved the SPR, but required that the existing residential structures connect to City sewer and water. The appellant does not appeal the requirement to connect the dance studio to public utilities. In addressing the appeal issues, statements and requirements made in the pre-submission conference are -2- not binding. In this instance, the results of the conference included a note that the requirements are preliminary in nature and the appellants were advised. The purpose of the pre-submission conference is to advise applicants of the process and the general requirements. However, the City does not consider any engineered drawings, but provides an idea of the requirements. The city engineer noted in comments that the department did not know about the water/sewer connection requirements. One of the reasons for the connection requirement is the adopted plans of both Thurston County and the City. A Group B water system currently serves the site and is regulated by City and Health codes. He listed all of the appropriate sections of the Thurston County plan which names the City as the primary water provider. The dance studio is a new development which constitutes a commercial public use. The SPR is a discretionary permit which allows the placement of conditions of approval. The regulatory authority . is found in the staff report. The requirements are based in health, safety, and welfare as the new sewer line will cross the existing water line serving the two houses and will also be located within 100 feet of the present drinking water well. The storm system is also located near the septic drainfield, and the septic for the mobile home was installed in 1970. They have no septic permit for the house as it was constructed in 1944. Section 17.84.050 of the code requires apre- submission conference. BILL TURNER, professional engineer, appeared on behalf of the appellants and testified that they are not developers, but school teachers, and that Mr. Rothwell was selected as citizen of the month. They constructed the new building, a 50 foot by 60 foot pole barn with bays. They used one bay for a basketball court, one bay for storage, and the third bay for a dance studio. They originally erected the building for personal use, but people came to them and wanted them to expand the dance facility. The appellants felt that all they needed was a B&O License. If they had known of the violation they would never have made the change. They shut the business down immediately and came to the City to the resolve the issues. The site plan pre-conference lets people know the City's requirements and what they need to do to complete them. The whole reason is to familiarize people with the criteria and let them know what they need to do. The City should have notified the appellants at the pre-hearing conference and by not doing so failed to comply with the ordinance. The appellants will have to expend substantial funds to connect to utilities. The appellants spent substantial funds to comply with the presubmittal conference requirements. He referred to Section 13.08.020 regarding sewers and noted that connection is totally at the discretion of City staff. The ordinance doesn't specify when property owners have to connect, but only specifies connection must occur 30 days from the date of a failing system. If they did not have an approved functioning septic system, the City would have placed them on sewers long ago. The State does not consider the water system public, and the Health Department refers to it as a Group II only for administrative purposes. A relative lives in the second residence and the well is exempt. Three buildings exist on the site; two residences and a pole barn and they should be looked at separately. SR-510 is a severely congested road and approval of the site plan will require dedication of right-of-way and the construction of street improvements. The City will have to purchase the right-of-way if the project does not go forward. The use provides activities for 40 to 50 children and involves them in dance as opposed to video games and t.v. -3- Reappearing was MR. BECK who testified that the appellants were told of the requirements for a dance studio. Their use constitutes a commercial activity and was treated as such from day one. The administration of Group II water systems is part of the plan. Site plan review requires a notice of application and comment period and is therefore a discretionary permit. MR. TURNER reappeared and testified. that properties are connected to utilities when developed. The appellants have lived on the site for a long time and will need to sell the parcel in accordance with its commercial zone. A future owner will connect the site. They would have to refinance the site to get the studio alone connected. The dance studio is a desperately needed use. No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded at 1:35 p.m. NOTE: A complete record of this hearing is available in the City of Yelm Community Development Department FINDINGS, CONCLUSIONS AND DECISION: FINDINGS: The Hearing Examiner has admitted documentary evidence into the record, heard testimony, and taken this matter under advisement. 2. Appropriate notice was given. 3. This request is exempt from review under SEPA. 4. On May 5, 2003, the City of Yelm issued building permit no. 6967 to Steven and Darlene Rothwell, appellants, authorizing construction of a "50 x 64 enclosed play area". Mr. Rothwell signed the permit application affirming in part: I certify that I have read and examined the information contained within the application and know the same to be true and correct. I also certify that the proposed structure is in conformity with all applicable City of Yelm regulations including those governing zoning.... The City classified the structure as a residential accessory use and a Group U occupancy under the 1997 Uniform Building Code (UBC) which includes private garages, carports, and sheds. The City of Yelm Municipal Code (YMC) considers an enclosed play area as an accessory use to an existing single family dwelling. -4- 5. Shortly following approval, the City became aware that the appellants were advertising dance lessons at the site to include a "summer special July and August `only $20.00 classes per month". A staff investigation revealed that in addition to . operating a dance studio from the "enclosed play area"; the appellants had also installed restroom. facilities without obtaining building or plumbing permits, connected the restroom tothe on-site well, and connected the building to the on-site sewage disposal system without approval of the Thurston County Health Department. The City issued an enforcement letter dated July 2, 2003, requiring the .applicant to obtain site plan review. for the commercial use. Thus, less than two months after obtaining the permit for an accessory, enclosed, play area. the ..appellants commenced advertising and operating a dance studio, installed restroom facilities, connected said facilities to the, existing on-site sewage disposal system, and provided water to the site, all without permits. 6. In response to the City's letter the appellants submitted to site plari review, and their application to convert a portion of the structure to. a dance studio was approved on . December 3,.2003. The City issued the permit subject to the appellants complying with a number.of conditions which included: A. Connect all existing structures to the City water system. B. Abandon the existing well. C. Connect all existing structures to the City sewer system. D. Abandon the on-site septic disposal systems. The appellants appeal the City's imposition of the above conditions. 7. The appellants' parcel is irregularly shaped, measures approximately four acres, and abuts Yelm Avenue for 150 feet. Improvements on the site include a site built single . family residential dwelling, mobile home, and the recreation building. An on-site drinking water well provides water to all three structures. The appellants agree to connect the."enclosed play area" structure to City water and sewer, but object to connecting the existing residential dwellings. The appellants therefore appeal the four conditions set forth hereinabove. 8. The City of Yelm granted site plan approval for the Rothwell Dance Studio Case No. SPR-03-8354-YL on December 3, 2003; and imposed the said four conditions along with numerous other conditions of approval. On December 9, 2003, the appellants timely filed a Notice of Appeal asserting four errors. Findings on all four alleged errors are made hereinafter. Appellants assert that the City violated the YMC by not specifically notifying them at 'the pre-application .meeting that they would have to connect the two existing residential structures to City water and sewers. Appellants further assert that since they were not so advised, the YMC precludes the City from imposing such requirement. -5- 9 Section 17.84.050 YMC entitled "Preliminary Site Plan" provides: Prior to applying for site plan review, a developer may file with the SPRC [Site Plan Review Committee] a summary site plan, which shall contain in a rough and approximate matter all of the information required in the site plan application. The purpose of the summary site plan is to enable a developer filing the plan to obtain the comments of the SPRC as to the applicability of the intent, standards and provisions of this chapter to the plan. Section 17.84.020(C) YMC requires the SPRC to review a site plan as follows: C. The SPRC shall review a site plan and approve, or approve with conditions, site plans which conform to the standards. provisions and policies of the City as expressed in its various adopted plans and ordinances including the applicable sections of the shoreline master program for the Thurston region.... The YMC does not contemplate that the pre-submission review requires the City to identify all standards, provisions, and policies which will apply to the proposed plan. According to Section 17.84.050 YMC, an applicant need only provide "a summary site plan" which contains "in a rough and approximate manner all of the information required in a site plan application". The notes from the pre-application meeting specifically advise an applicant of that fact: These comments are preliminary in nature and are not intended to represent final comments and/or requirements for the City of Yelm. Until a complete application is made, the Community Development Department can only attempt to inform the applicant of general requirements as they appear in the form presented by the applicant at the time of submission. Even so, written comments from the pre-application meeting notified the appellant as follows regarding water and sewer: The proposed site is not currently connected to a public water system. Your site will be required to connect to the City of Yelm public water system... The proposed site is not currently connected to the City of Yelm's STEP sewer system. Your site will be required to connect to the City's sewer system... -6- Note: It is unknown at this time if the existing residence will be allowed to continue on the current water and sewer system. These options will be reviewed at the time of civil engineering review. If the residence is required to connected (sic] to the public water and sewer system, the well and septic. system will have to be decommissioned. The SPRC did not fail to comply with the intent of the YMC as it specifically stated in the pre-application comments that the City would make the decision regarding sewer and water hook-ups for the homes "at the time of civil engineering review". 10. Appellants assert that the .Washington State and Thurston County Health Department requirements have classified the existing well as a shared well or two party well and that it does not need approval as a Group B system. Furthermore, testing shows the well clean and free of any contaminants. The appellants therefore assert that while they must connect the commercial building to City water, the existing well is adequate and legal for the existing dwellings. Section 246-290- 020(1) of the Washington Administrative Code (WAC) provides in part: Public water system shall mean any system providing water for human consumption...excluding a system serving only one single family residence.... WAC 246-290-020(5)(c) provides: A Group B water system is a public water system that does not meet the definition of a Group A water system.... The existing water system which serves the two residences on the site meets the definition of a Group B system. Section 2.1.2 of the South Thurston County Urban Growth Area's Abbreviated Coordinated Water System Plan (water system plan) provides in part: Over time, existing small public water systems should generally be incorporated into the designated utility to ensure adequate fire flow to protect structures and public safety and provide professional water system operation and management.... Section 4.5 of the water system plan reads: Minimizing the number of separate water systems is a long-term objective of the Public Water System Coordination Act. Incorporating existing small systems into municipal systems is consistent with this objective. Thus, the policies of the water system plan clearly provide that small water systems -7- such as the existing Group B system will be incorporated into the municipal system. The requirement of the SPRC that the applicant abandon the Group B system and connect to the Yelm water system is consistent with said policies. Furthermore, as previously found, Section 17.84.020(C) YMC requires the SPR to ensure that site plans comply with "policies of the City" as expressed in its "adopted plans". 11. Appellants assert that no "major building construction" will occur on the property, and therefore the appellant's 3,200 square foot building does not meet the definition of "new development". Section 17.84.010 YMC requires site plan review as follows: A. Site plan review and approval shall be required prior to the use of land for the location of any commercial, industrial or public buildin or activity.... B. Exceptions from site plan review and approval shall be granted by the site plan review committee, if: there is no addition of square feet or no additional tenant.... The appellants' proposal falls squarely within the requirements of Section 17.84.010 YMC, and thus site plan review is required. 12. Appellants assert that no City ordinances or Public Works standards require them to connect the existing residences to City water and sewer. As previously found, Section 17.84.020(C) YMC requires the SPRC to ensure that a proposed site plan conforms "to the standards, provisions, and policies of the City as expressed in its various adopted plans and ordinances". The Community Development Department Staff Report on pages 3-6 provides an exhaustive list of policies which support connection of the entire site to City sewer and water. CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. Section 2.26.090(A)(1) YMC authorizes the Examiner to issue decisions on appeals from "orders, recommendations, permits, decisions, or determinations made by a City official in the administration or enforcement of the provision of the zoning code or any ordinance adopted pursuant to it". The City has shown that the SPRC did not exceed its authority, did not misinterpret the YMC, properly notified the appellants of the possibility of connection of both houses to city sewer and water, and properly imposed Conditions 2A, 26, 3A, and 3B following its review of the appellants' site plan in Case No. SPR-03-8354-YL. Therefore, the appellants' appeal should be denied. -8- DECISION: The appellants' appeal should be denied. ORDERED this 3~d day of February, 2004. STEPHEN K. CAUSSEAUX, JR. Hearing Examiner TRANSMITTED this 3~d day of February, 2004, to the following: APPELLANTS: Mr. and Mrs. Steve Rothwell 1011 West Yelm Avenue Yelm, WA 98597 OTHERS: Bill Turner 4405 7th Avenue SE, Ste. 300 Lacey, WA 98503 City of Yelm Tami Merriman 105 Yelm Avenue West P.O. Box 479 Yelm, Washington 98597 CASE NO.: APPEAL OF SITE PLAN REVIEW APPROVAL: SPR-03- 8354- YLAPL-03-8361-YL NOTICE 1. RECONSIDERATION: Any interested party or agency of record, oral or written, that disagrees with the decision of the hearing examiner may make a written request for reconsideration by the hearing examiner. Said request shall set forth specific errors relating to: -9- A. Erroneous procedures; B. Errors of law objected to at the public hearing by the person requesting reconsideration; C. Incomplete record; D. An error in interpreting the comprehensive plan or other relevant material; or E. Newly discovered material evidence which was not available at the time of the hearing. The term "new evidence" shall mean only evidence discovered after the hearing held by the hearing examiner and shall not include evidence which was available or which could reasonably have been available and simply not presented at the hearing for whatever reason. The request must be filed no later than 4:30 p.m. on February 18. 2004 (10 days from mailing) with the Community Development Department 105 Yelm Avenue West, Yelm, WA 98597. This request shall set forth the bases for reconsideration as limited by the above. The hearing examiner shall review said request in light of the record and take such further action as he deems proper. The hearing examiner may request further information which shall be provided within 10 days of the request. 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) in accordance with Section 2.26.150 of the Yelm Municipal Code (YMC). NOTE: In an effort to avoid confusion at the time of filing a request for -lo- reconsideration, please attach this page to the request for reconsideration. -11-