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481 Affirming HE 5 SubdivisionsCity of Yelm Resolution No. 481 A RESOLUTION AFFIRMING THE HEARING EXAMINER'S APPROVAL OF PRELIMINARY SUBDIVISIONS AND BINDING SITE PLANS FOR WINDSHADOW I (SUB-05-0755-YL &PRD-05- 0756-YL), WINDSHADOW II (SUB-07-0128-YL &PRD-07-0129-YL), WYNDSTONE (BSP-07- 0094-YL), BERRY VALLEY I (BSP-07-0097-YL &PRD-07-0098-YL), AND TAHOMA TERRA PHASE II, DIVISIONS 5&6 (SUB-07-0187-YL) WHEREAS, the Yelm City Council held a closed record hearing on January 22, 2008, regarding appeals by JZ Knight of the Hearing Examiner's approval of preliminary subdivision and preliminary binding site plan applications related to five development proposals within the Berry Valley area of Yelm; and WHEREAS, the Council considered the appellant's notice of appeal and accompanying memorandum, response memoranda filed by the City of Yelm Community Development Department and representatives of Tahoma Terra, Windshadow I, and Berry Valley I, a reply by appellant Knight, the Hearing Examiner's decisions, reconsideration requests filed by Knight and the Hearing Examiner's decisions on reconsideration; and WHEREAS, the Council heard oral arguments from the parties during a closed record hearing on January 22, 2008, and WHEREAS, the Council reviewed the record before the Hearing Examiner prior to the closed record appeal hearing, an index of which is included as Attachment A to this resolution; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Yelm, Washington, that the Hearing Examiner's reports and decisions and orders on reconsideration in the matter of Windshadow I (SUB-05-0755-YL &PRD-05-0756-YL), Windshadow II (SUB-07-0128-YL &PRD-07-0129-YL), Wyndstone (BSP-07-0094-YL), Berry Valley I (BSP-07-0094-YL), and Tahoma Terra Phase II, Divisions 5&6 (SUB-07- 0187-YL) are hereby affirmed; and BE IT FURTHER RESOLVED that the Hearing Examiner's Findings of Fact are hereby affirmed and the Examiner's Conclusions of Law are hereby affirmed and amended as follows: Conclusions of Law 1. This matter comes before the City Council on appeals filed by JZ Knight of decisions by the Yelm Hearing Examiner and is properly before the Council as a closed record appeal. 2. The City Council acts in an appellate capacity when reviewing a decision of the Hearing Examiner and the Council's review is based solely upon the evidence presented to the Examiner, the Examiner's report and decisions, the notices of appeal, and submissions by the parties. The City Council may "adopt, amend and adopt, reject, reverse, and amend conclusions of law and the decision of the City of Yelm Resolution Hearing Examiner, or remand the matter for further consideration." Section 2.26.160 (D) YMC. 3. JZ Knight has not shown that she will actually suffer any specific and concrete injury in fact, within the zone of interests protected by the legal grounds for her appeals, relating to the sole issue raised by her appeals, whether the appropriate provision for potable water has been made for the proposed developments. Therefore, Knight is not an aggrieved person with standing to appeal the Examiner's decision to the City Council. Notwithstanding the City Council's conclusion that Knight lacks standing to appeal, the City Council contingently decides Knight's appeals so that remand and rehearing will not be necessary if, in the future, there is a final judicial determination that Knight had standing to bring these appeals. 4. Knight did not carry her burden of showing that the Hearing Examiner failed to follow prescribed processes; erroneously interpreted applicable law; made findings, conclusions, and decision that were not supported by substantial evidence; or was clearly erroneous in his application of law to the facts. The Hearing Examiner's findings, conclusions, and decision were supported by substantial evidence submitted through the land use hearing process, were not legally erroneous, and to the extent relevant to this appeal, the Findings and Conclusions of the Hearing Examiner are hereby adopted. 5. The Yelm Hearing Examiner and the City Council do not have jurisdiction to adjudicate water rights. [alleged error of fact 3]. 6. The Hearing Examiner properly considered all the evidence submitted as part of the open record hearing on these matters and found that the evidence presented by the City regarding water rights that the City expects will be available to serve these subdivisions provided sufficient basis to support his decision to approve the developments. The Hearing Examiner is charged with determinations of credibility and the weight to give evidence and such determinations may be overturned on appeal only if they are not supported by some substantial evidence. [alleged errors of fact 1, 2, 4, 6, and 7]. 7. The Department of Ecology (Ecology) reviews water rights as part of the approval of a Comprehensive Water System Plan (WSP) by the Washington Department of Health. Ecology, in its 2002 comment letter on the WSP, agreed with the assessment of water rights included in the WSP. Since that time, Ecology has stated a number of conflicting opinions relating to Yelm's water rights outside of the official Comprehensive Water System planning process. Neither Ecology, nor the Dept. of Health, which is the regulatory agency charged with overseeing water system planning and compliance, has taken any enforcement action against the City in relation to the compliance of the Yelm water system with applicable laws or regulations or the validity or adequacy of its water rights. No superior court has adjudicated the City's water rights inconsistently with their characterization in the City's WSP. In these circumstances, the City has reasonably relied on its approved and adopted City of Yelm Resolution Water System Plan to administer its water system. [alleged errors of fact 3 and 6]. 8. A true procedural error, such as defective notice, which is harmless or does not cause actual prejudice is insufficient to overturn the Examiner's decisions. Knight does not show any such prejudice as a result of her alleged procedural errors. [alleged procedural errors 1 through 6]. 9. Knight does not provide any basis for finding the process was irregular but rather, in effect, asserts substantive arguments regarding the evidence considered by the Examiner ,and the sufficiency of evidence in the record to support the Examiner's conclusions. [alleged procedural errors 3 through 6]. 10. The Examiner reviewed an unpublished decision of the Washington Court of Appeals and a Massachusetts case as part of his consideration. The Examiner explicitly recognized that he could not cite these cases as controlling legal authority, and instead properly considered them as persuasive authority consistent with his interpretation of state statutory and local ordinance provisions related to the requirement of determining whether appropriate provision had been made for potable water at the preliminary plat or preliminary binding site plan stage of regulation. [alleged procedural errors 1 and 2]. 11. After the close of the July, 2007 public hearing before the Hearing Examiner, Knight requested that the hearing be re-opened and offered the second McDonald Declaration in support of that request. When the Examiner denied the request to re-open the hearing, the materials submitted after the close of the public hearing were properly excluded from the record. Nevertheless, these materials were included in the record provided to and considered by the Council in these appeals. [alleged omission from the record 1]. 12. Knight has failed to identify any provision of law that requires the City to provide evidence as part of the record in applications for preliminary plat approval or preliminary binding site plan approval relating to documentation of the number of current water connections, the amount of present demand for potable water, the water rights currently held by the City, or the amount of projected demand for potable water upon actual future development of the proposed preliminary plats or binding site plans. [alleged omission from the record 2]. 13. Knight has not met her burden to show that the interpretation of the City Comprehensive Plan and development regulations by the City of Yelm and its Hearing Examiner is erroneous, particularly since the agency's interpretation is entitled to deference absent a compelling indication that the City's interpretation conflicts with regulatory intent or is in excess of the City's authority. Knight has provided no competent or compelling indication or evidence that the Examiner's interpretation of the Comprehensive Plan was erroneous. [alleged errors of interpretation of the Comprehensive Plan 1 through 3]. 14. The appropriate standard for the purpose of determining water availability at the time of preliminary subdivision or preliminary binding site plan approval is found at Section 13.04.120 YMC which, as concurrency standards are development City of Yelm Resolution regulations, prevails over any inconsistent comprehensive plan provisions. [alleged errors of interpretation of the Comprehensive Plan 1 through 3]. 15. The exact quantity of water rights that the City currently holds, which recently has been disputed by Knight, is immaterial because the City presented evidence, upon which the Hearing Examiner reasonably relied, that substantial additional water rights have been obtained by the City and that their transfer is reasonably expected to be approved the State Department of Ecology (Ecology), and that substantial new water rights are the subject of water rights applications pending before Ecology. On the basis of such evidence, the Hearing Examiner concluded that the requirements of Section 58.17.110 RCW and Sections 15.40.010 and .020 YMC were satisfied by evidence supporting a reasonable expectation that ample water will be available at the time that water is required upon connection and entered written findings that appropriate provision was made for potable water. [alleged errors of interpretation of the Comprehensive Plan 1 through 3]. 16. The City has made appropriate findings of water availability at the appropriate points in the application process. Title 16 YMC requires, at the time the Hearing Examiner considers a preliminary subdivision or preliminary binding site plan application, a determination that water is reasonably expected to be available at the time of future development. Chapter 15.40 YMC requires a determination that the utility infrastructure be in place at the time of or within six years of the development. Chapter 19.27 RCW requires availability of water service at the time of building permit issuance and, thus, by it's explicit terms, does not apply to preliminary subdivision or preliminary binding site plan applications. [alleged provisions of law violated 1, 2, 3 (binding site plan and subdivision appeals), 4 (binding site plan and subdivision appeals), and 5 (subdivision appeals)]. 17. Knight impermissibly raises a new issue upon appeal, alleging the Examiner's decision is inconsistent with "Ordinance 351 ". This issue is untimely and was waived because it was not properly raised before the Examiner. 18. Moreover, Resolution 351 was repealed by the City Council through the adoption of Resolution 380 on December 9, 1998. [alleged provision of law violated (subdivision appeals) and 6 (binding site plan appeals)]. PASSED and signed in n on this 12t" day of February, 2008 nine Schnepf, City CI City of Yelm Resolution Authenticated: