20140243 HE Decision 10282014 t
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Community Development Department
105 Yelm Avenue West
P.O. Box 479
Y E L M Yelm, WA 98597
WASHINGTON
October 28, 2014
Bertram J. Trobman
Oyster Bay Group 3, Inc.
2114 Lakemoor Drive S.W.
Olympia, WA 98512-5530
RE: SPR-07-0346-YL
Dear Mr. Trobman:
Transmitted herewith is the Report and Decision of the City of Yelm Hearing Examiner
relating to the above-entitled matter.
Very truly yours,
E E K. CA SSEAU .
Hearing Examiner
SKC/jjp
cc: Parties of Record
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OFFICE OF THE HEARING EXAMINER
CITY OF YELM
REPORT AND DECISION
CASE NO.: SPR-07-0346-YL
APPELLANT: Bertram J. Trobman
Oyster Bay Group 3, Inc.
2114 Lakemoor Drive S.W.
Olympia, WA 98512-5530
AGENT: Chris Merrit, Olympic Engineering
300 Deschutes Way S.W., Suite 315
Tumwater, WA 98501
ATTORNEYS: Goldstein Law Office, PLLC
Jay A. Goldstein, Attorney at Law
1800 Cooper Point Road S.W., No. 8
Olympia, WA 98502
Bean, Gentry, Wheeler and Perternell, PLLC
Attn: Brent F. Dille, Attorney at Law
910 Lakeridge Way S.W.
Olympia, WA 98502
SUMMARY OF REQUEST:
Appeal of Community Development Departments' requirement that appellant apply for
and receive Site Plan Review approval prior to converting an automobile sales business
to a marijuana retail sales business at a site located at 1405 Yelm Avenue East.
SUMMARY OF DECISION: Appeal Denied.
FINDINGS, CONCLUSIONS, AND DECISION:
FINDINGS:
1. The appellant, Oyster Bay Group 3, Inc., appeals an Administrative Decision
issued by the City of Yelm Community Development Department (CDD) requiring
appellant to obtain site plan review approval prior to establishing a marijuana
retail sales store at a site located at 1405 Yelm Avenue East within the City of
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Yelm. Because no factual disputes exist, both the appellant by and through its
attorney, Jay Goldstein, Goldstein Law Office, PLLC, and the City of Yelm by and
through its City attorney, Brent F. Dille, Bean, Gentry, Wheeler and Perternell,
PLLC, agreed that the Examiner could consider and decide this appeal based
upon briefs and exhibits submitted by the parties.
2. The Examiner convened a telephone prehearing conference at 1:30 p.m. on
Tuesday, September 16, 2014, to establish a briefing schedule and the possibility
of a future telephonic legal argument. Pursuant to an "Order on Telephone
Conference of September 16, 2014", the Examiner established a briefing
schedule, confirmed the absence of factual disputes, and provided an opportunity
for either party or the Examiner to request legal argument on one or more issues.
Both parties complied with the briefing schedule set forth in the Order, and
neither the Examiner nor the parties requested legal argument. Neither party
objected to the other party's brief(s) or the exhibits and Declarations attached
thereto.
3. Pursuant to a letter from Brent F. Dille, attorney at law, addressed to Jay
Goldstein, attorney at law, dated August 21, 2014, the City formally advised
appellant that it must undergo the site plan review process prior to locating its
marijuana retail sales business at 1405 Yelm Avenue East, within the City of
Yelm. Mr. Goldstein, on behalf of the appellant, timely filed an appeal of the
City's determination on August 29, 2014. Both the City and appellant agree that
a marijuana retail sales business is an authorized use in the Commercial (C-1)
zone classification of the Yelm Municipal Code (YMC). The dispute concerns the
process required for the appellant to open its business at the site. The City
asserts that prior to opening its business the appellant must obtain site plan
review approval as set forth in Chapter 17.84 YMC. Appellant asserts that its
business is exempt from site plan review pursuant to YMC 17.84.010(B). Thus,
the issue does not concern the legality of the use, but concerns the process
required to establish the use. For the reasons set forth hereinafter, YMC
17.84.010(B) does not exempt appellant from obtaining site plan review approval
prior to opening its business.
4. Even though the YMC may authorize a commercial, industrial, or public building
as an outright permitted use, YMC 17.84.010(A) requires an applicant/owner to
obtain site plan review and approval from the City's Site Plan Review Committee
(SPRC) prior to commencing its proposed use of the land. Section 17.84.020(C)
YMC requires that the SPRC:
...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....
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Section 17.84.020(B) requires notification of the proposed project to property
owners within 300 feet of the site. Section 17.84.060 YMC sets forth the
"Contents of application" that includes disclosure of the proposed uses(s); areas
proposed for buffering/screening; location of vehicular and pedestrian access to
the site; location and design of parking areas, spaces, and internal circulation;
and location of loading spaces.
5. Section 17.84.010(B) YMC provides for exemptions from the site plan review and
approval process and reads as follows:
B. Exemptions from site plan review and approval shall be granted by the site
plan review committee if:
1. There is no addition of square feet or no additional tenant, or the
expansion is for storage only (future conversion of storage area
would require compliance with this chapter);
2. The proposed use is similar as classified by the Standard Industrial
Code Classification Manuel;
3. The building has been occupied within the previous 18 months.
Both appellant and the City agree that appellant's business meets Criteria 1 as
appellant proposes no additional square footage and no additional tenants. Both
I parties also agree that the building has been occupied within the previous 18
months. However, the parties differ as to the interpretation of Subsection (B)(2).
6. The U.S. Department of Labor, Occupational Safety and Health Administration
(OSHA) publishes The Standard Industrial Code Classification Manuel (SIC)
(See Exhibit D to the appellant's opening briefl. The SIC sets forth Ten
"Divisions" of various types of industrial/commercial operations, e.g., Mining
(Division 6), Manufacturing (Division D), Public Administration (Division J), and
Retail Trade (Division G). The SIC lists 99 "Major Group(s)" of business
activities under the Ten Divisions. "Division G: Retail Trade" contains Major
Groups 52-59. Both parties agree that appellant's business falls under "Division
G: Retail Trade" and specifically "Major Group 59: Miscellaneous Retail".
7. Both parties agree that the previous occupant utilized the site for a car sales lot
consisting of 47 spaces for cars and a 360 square foot office with associated
parking for customers and employees. Both parties agree that Division G, Major
Group 55, entitled "Automotive Dealers And Gasoline Service Stations", applies
to the previous business on the site. Both parties agree that prior to opening its
car sales lot, the previous owner was required to apply for and obtain site plan
review and approval. Both parties agree that the City granted such approval
subject to compliance with 15 conditions of approval on January 16, 2008.
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8. Appellant asserts that because "Division G: Retail Trade" includes both Major
Group 55 (Automotive Dealers and Gasoline Service Stations) and Major Group
59 (Miscellaneous Retail), its proposed use is "similar as classified" by the SIC.
Therefore, its business is similar to the previous automobile sales use, satisfies
YMC 17.84.010(B)(2) and is entitled to an exemption from the site plan review
process. Appellant asserts that the SPRC must grant an exception because its
application for a marijuana retail sales store meets all three criteria set forth in
YMC 17.84.010(B).
9. The City disagrees, asserting that the SIC classifies uses into progressively more
specific categories commencing with Divisions, then Major Groups, and then into
Industry Groups and Industries. The City asserts that appellant improperly
utilizes the broadest category (Division) to determine whether a use "is similar as
classified" by the YMC, and that one must evaluate the Major Groups within a
Division to determine similar use. The City also asserts that the language "as
classified by the Standard Industrial Code Classification Manual" in Subsection
(B)(2) is a dependent clause augmenting the language "The proposed use is
similar". Both parties cite previous actions by the SPRC in either exempting
uses from the site plan review process or requiring site plan review.
CONCLUSIONS:
1. The Hearing Examiner has jurisdiction to consider and decide the issues
presented by this request.
2. Resolution of this appeal requires interpretation of YMC 17.84.010(B)(2). The
fundamental objective in code interpretation "is to give effect to the legislature's
intent" (Nationscapital v. Department of Financial Institutions, 133 Wn. App. 723
(2006). To determine legislative intent we must apply rules of statutory
construction provided by our courts. In Gray's Harbor Enerqy v. Grav's Harbor
County, 175 Wn. App. 578 (2013), our Washington Court of Appeals provided the
following instruction in statutory interpretation:
To ascertain a regulation's plain meaning, we look to the ordinary meaning
of its text...We also consider the context in which the regulation appears,
related regulations and statutes, and the statutory scheme of which the
regulation is a part...A regulation must be interpreted in a manner that
gives effect to all its language, without rendering any parts superFluous.
125 Wn. App. 578 @ 584, 585
Furthermore, in Hastings v. Grooters, 144 Wn. App. 121 (2008), our Court of
Appeals also held:
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The language of a statute must be read in context with the entire statute
and construed in a manner that is consistent with the general purpose of
the statute...All provisions of a statute must be considered in light of one
another, and, if possible, harmonized to ensure proper construction; but if
the language remains susceptible to two constructions, one of which
carries out and the other which defeats the statute's purpose, the former
construction should be adopted...
It is far more important to consider words in the context in which they are
used rather than to consider their meanings in isolation. 144 Wn. App.
121 @ 127, 128
3. The above authority requires consideration of YMC 17.84.010(B)(2) not in
isolation, but in accordance with Chapter 17.84 YMC in its entirety, and in a
manner to ensure that interpretation of "similar use" does not defeat the
purposes of site plan review and approval. Applying the above authority to the
present issue requires examination of all provisions of Chapter 17.84 to
determine the meaning of similar use as classified by the SIC. Chapter 17.84
provides in part:
A. 17.84.010 Generally-Committee Membership.
Site plan review and approval shall be required prior to the use of land or
building for the location of any commercial, industrial or public building or
activity including environmental checklist review...
C. 17.84.020 Review by the Site Plan Review Committee (SPRC).
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....
Section 17.84.060 entitled "Contents of application" requires in Subsection (C)
preparation of a site plan that must show among other factors:
8. All means of vehicular and pedestrian ingress and egress at the site and
the size and location of driveways, streets and roads,
9. The location and design of off-street parking areas showing their size and
locations of internal circulation and parking spaces,
10. The location of all loading spaces, including, but not limited to, truck
loading platforms and loading docks.
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Section 17.84.070 YMC authorizes the SPRC to request additional information or
material that it deems necessary for proper review.
4. Section 17.84.010(B)(2) YMC requires the SPRC to grant an exemption from site
plan review if a proposed use "is similar as classified" by the SIC. However, said
section does not identify which level of specificity in the SIC that the SPRC
considers in determining similarity. The appellant's position that the City can
only consider the "Division" classification would prohibit site plan review for
changes in use between hardware stores (Major Group 52); food stores (Major
Group 54); automotive dealers and gasoline service stations (Major Group 55);
apparel and accessory stores (Major Group 56); and eating and drinking places
(Major Group 58). It becomes readily apparent that significant differences exist
between any of the above uses, all of which are within Division G. It further
appears that many of the review criteria and application criteria would differ
vastly between said uses. Appellant's interpretation is therefore not consistent
with the purpose of YMC 17.84 and with YMC 17.84.020(C) that requires the
SPRC to ensure that a site plan application conforms "to the standards,
provisions and policies of the City as expressed in its various adopted plans and
ordinances". The City's position that YMC 17.84.010(B)(2) requires similarity
with at least the Major Group classification "carries out" the overall intent of
Chapter 17.84 YMC, whereas appellant's interpretation defeats the purpose and
intent of site plan review. Therefore, in accordance with Hastinqs, supra, the
City's interpretation prevails.
5. Appellant argues that the YMC 17.84.010(B) is vague and grants the SPRC
"unfettered, willy-nilly discretion to determine which proposed uses are similar to
prior uses," and provides no consistent standard. Appellant essentially asserts
that the ordinance is unconstitutionally vague, as a reasonable individual cannot
understand whether site plan review is required or not. Such is similar to the
argument made in Grant County v. Bohne, 89 Wn. 2d 953 (1978), where the
question involved whether a zoning ordinance prohibited a mobile home when it
used the term "building". Here, the YMC does not prohibit appellant's proposed
use of the site, but does require approval through the site plan review process.
The Supreme Court held that the Grant County ordinance violated due process
as "There can be no prior notice of a prohibition where officials have the
discretion to make ad hoc determinations of prohibited activity". See also Burien
Bark Supply v. King County, 106 Wn. 2d 868 (1986), which found that an
ordinance "leaves to the discretion of County officials the substance of
determining which activities are prohibited". Hearing examiners have no
authority to declare a City ordinance unconstitutional or illegal. See Chaussee v.
Snohomish County Council, 38 Wn. App. 630 (1984), and Yakima Clean Air
Authority v. Glascam Builders, 85 Wn. 2d 255 (1975). However, as previously
noted both cases concerned a prohibition of use and not a process before
establishing a use. Furthermore, the YMC specifically refers to the SIC for a
determination of similarity of use. While said section does provide some
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discretion, the SPRC must determine whether a proposed use is "similar" to a
previous use within the confines and context of the SIC Divisions and Major
Groups as well as the YMC. Such provides sufficient guidance for applicants to
evaluate their project with the previous use of the site, and does not grant the
SPRC "willy-nilly discretion". In the present case there can be no question that a
marijuana retail business has no similarity with an automobile sales lot, and
therefore the appellant's proposed use requires site plan review and approval.
DECISION:
The appeal of Oyster Bay Group 3, Inc. is hereby denied.
ORDERED this 28th day of October, 2014.
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E HE . C USS A , JR.
Hearing Examiner
TRANSMITTED this 28th day of October, 2014, to the following:
APPELLANT: Bertram J. Trobman
Oyster Bay Group 3, Inc.
2114 Lakemoor Drive S.W.
Olympia, WA 98512-5530
AGENT: Chris Merrit, Olympic Engineering
300 Deschutes Way S.W., Suite 315
Tumwater, WA 98501
ATTORNEYS: Goldstein Law Office, PLLC
Jay A. Goldstein, Attorney at Law
1800 Cooper Point Road S.W., No. 8
Olympia, WA 98502
Bean, Gentry, Wheeler and Perternell, PLLC
Attn: Brent F. Dille, Attorney at Law
910 Lakeridge Way S.W.
Olympia, WA 98502
OTHERS:
CITY OF YELM
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CASE NO.: SPR-07-0346-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:
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;
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 November 12, 2014, (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
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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
reconsideration, please attach this page to the request for
reconsideration.
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