508 Palisades FindingsCITY OF YELM
RESOLUTION NUMBER SOH
SUBDIVISION ALTERATION OF THE PALISADES WEST SUBDIVISION
WHEREAS, on September 26, 2006, the Hearing Examiner for the City of Yelm issued
his decision (hereinafter the "Preliminary Plat Approval") granting preliminary plat approval for
Forester Heights Phase I, subject to certain conditions included in his decision; and
WHEREAS, the Preliminary Plat Approval required the applicant, SCA Consulting Group
and FH1, LLC to install a booster pump to provide both fire flow and domestic water pressure
(No. 11, p. 4); and
WHEREAS, the Preliminary Plat Approval required the applicant to submit a fire hydrant
plan to the Community Development Department for review and approval as part of the civil
engineering plans prior to final plat approval, to submit fire flow calculations for all existing and
proposed hydrants; and
WHEREAS, there was no appeal of the Preliminary Plat Approval; and
WHEREAS, on June 28, 2007, Steven Chamberlain, Managing Member of FH1, LLC,
owner of the property, wrote to the City of Yelm, stating that "FHI, LLC has met all other
conditions of final plat and will design and bond for the booster station. We will not apply for any
occupancy permits to any homes in the subdivision until the booster station has been approved
and accepted by the City;" and
WHEREAS, on June 29, 2007, Steven Chamberlain, Managing Member of FH1, LLC,
owner of the property, signed a Warranty Agreement which required FH1 to construct the
improvements required by Preliminary Plat Approval within one year; and
WHEREAS, in November of 2007, the property owner applied for final plat approval, and
on December 11, 2007, the Yelm City Council approved the final plat, ("hereinafter referred to
as "Final Plat Approval) subject to/conditioned on the warranty agreement by Steven
Chamberlain, as well as the following additional conditions:
No building permit shall be issued within this subdivision until a booster pump is
installed by the developer and approved by the City of Yelm which provides
adequate fire flow per the International Fire Code and City of Yelm standards,
provide that a building permit may be issued for a model home if a fire protection
plan is approved by the City of Yelm Fire Marshal and SE Thurston Fire/EMS.
No certificate of occupancy for any habitable structure shall be issued until a
sewer roll seal is installed by the developer and approved by the City of Yelm.
(Final Plat Approval, p. 1); and
WHEREAS, the City's Final Plat Approval was not appealed; and
WHEREAS, the final plat was recorded with the Thurston County Auditor's office on
February 12, 2008; and
WHEREAS, on September 5, 2008, Dan Lee of Triance Group, Inc. applied for a
building permit for a single family home located at 10756 Palisades Street S.E. in the plat; and
WHEREAS, in the building permit application, Mr. Lee certified that the home would be
constructed in accordance with all applicable laws and approvals granted by the City; and
WHEREAS, the Yelm Building Official Gary Carlson, confirmed with Dan Lee of Triance
Homes during the building permit review process that a certificate of occupancy would not issue
for the single family home until both conditions noted on the recorded subdivision were satisfied;
and
WHEREAS, the building plans approved for the home included the plan reviewer's
statement that a certificate of occupancy would not be issued unless the booster pump station
and pressure sustaining valve were installed; and
WHEREAS, on December 23, 2008, the City sent a letter to Steve Chamberlain,
reminding him of the need for the installation of the water booster pump station prior to issuance
of a certificate of occupancy for 10756 Palisades Street S.E.; and
WHEREAS, while the building permit application showed that the single family home at
10756 Palisades Street S.E. was being built for Andrew and Cynthia Smith, the City assumed
the agreement between the Smiths and the developer was consistent with the law and the
approvals. In other words, the City assumed that the Smiths were aware, from a title search
and examination of the property that would have been performed as part of any purchase and
sale agreement, that the developer was required to install certain improvements associated with
the plat; and
WHEREAS, the developer did not install all of the improvements associated with the
plat, and all property (with the exception of the Smith's property), went into foreclosure; and
WHEREAS, on August 24, 2009, Andrew and Cynthia Smith submitted an application to
the City for a plat amendment, to alter the conditions identified above as to their lot (Lot 15); and
WHEREAS, the City Council conducted a duly advertised open record public hearing on
the plat alteration application on October 13, 2009, and
WHEREAS, at the outset of the October 13~' hearing, the Mayor asked the Council if any
member wished to disqualify himself on appearance of fairness or conflict of interest grounds
and there were no disqualifications. The Mayor also asked whether any member of the
audience wished to challenge any Councilmember on appearance of fairness or conflict of
interest grounds. There was no response from the audience, and
WHEREAS, the following documents were entered into the record for the Open Record
Hearing or submitted at the request of the City Council after the close of the hearing on the plat
alteration application:
Staff Report dated October 1, 2009, from Grant Beck, Community Development
Director and Tim Peterson, Public Works Director to the Yelm City Council,
including the following Attachments and Exhibits.
Attachment 1 -Letter from Grant Beck to Steve Chamberlain of FH1,
LLC, dated December 23, 2008.
Attachment 2 -Letter from Dan Lee of Triance Homes to Grant Beck,
dated April 7, 2009, including the following documents attached to the
letter
Letter from Steve Chamberlain of FH1, LLC to Dan Lee of Triance
Homes, dated April 7, 2009.
Letter from Chief Rita Hutcheson and Deputy Chief Mark King of SE
Thurston Fire & EMS to Dan Lee dated April 6, 2009.
Attachment 3 -Letter from Grant Beck to Dan Lee of Triance Group,
LLC, dated April 14, 2009.
Attachment 4 -Final Subdivision of Palisades West as recorded under
Auditor's File Number 3988607 on February 12, 2008.
Attachment 5 -Plat Amendment Application received August 25, 2009.
Attachment 6 -Letter from Ben Cushman to Grant Beck dated August 21,
2009, including the following documents attached to the letter
First page of Final Subdivision of Palisades West as recorded under
Auditor's File Number 3988607 on February 12, 2008.
Copy of Section 58.17.215 RCW.
Copy of Yelm City Council Minutes of Regular Meeting on Tuesday
December 11, 2007.
Residential Building Permit Application for Lot 15 of Palisades West
received September 5, 2009.
Letter from Chief Rita Hutcheson and Deputy Chief Mark King of SE
Thurston Fire & EMS to Dan Lee dated April 6, 2009.
Letter from Andrew and Cynthia Smith to Grant Beck, dated April 19,
2009.
2. Letter from Vince McClure, P.E. submitted by Ben Cushman at the open record
hearing before the City Council on October 13, 2009, dated October 12, 2009.
3. Statement of Ben Cushman at the open record hearing before the City Council
on October 13, 2009, dated October 13, 2009.
4. Agreement as to Waiver and Release in Exchange for Occupancy prepared by
Ben Cushman for the October 13, 2009, open record hearing before City Council.
5. Staff Report dated October 21, 2009 from Grant Beck and Tim Peterson to the
City Council, ,including the following Attachments:
Sheet 1 of the Building Plans approved September 11, 2008, by John Rowland,
Yelm Building Inspector.
Letter from Brent Dille, Owens Davies Fristoe Taylor and Shultz and Yelm City
Attorney to the City Council dated October 21, 2009.
6. Staff Report dated October 30, 2009, from Brent Dille, Grant Beck, and Tim
Peterson to the Yelm City Council.
7. Staff Report dated November 24, 2009, from Brent Dille, Grant Beck, and Tim
Peterson to the Yelm City Council.
8. Letter from Ben Cushman to the Yelm City Council dated February 9, 2010.
9. Letter from Carol Morris to Ben Cushman dated January 11, 2010.
10. Brief of Ben Cushman on legal issues to the Yelm City Council dated February
16, 2010.
11. Brief of Carol Morris on legal issues to the Yelm City Council dated February 16,
2010.
12. Letter from Ben Cushman to the Yelm City Council dated February 19, 2010.
13. Letter from Carol Morris to Yelm City Council dated February 21, 2010.
WHEREAS, the following witnesses testified at the hearing or answered specific
questions from the City Council after the close of the public hearing on the plat alteration
application:
Grant Beck, Yelm Community Development Director
Andrew Smith
Ben Cushman
Vince McClure, P.E.
Brent Dille, Yelm City Attorney
Tim Peterson, Yelm Public Works Director
WHEREAS, the Yelm City Council may approve an alteration of a subdivision under
Section 16.36.010 Yelm Municipal Code, which requires compliance with RCW 58.17.215, and
WHEREAS, the Council also considered the following cases in deciding the question of
whether the proposed plat alteration should be approved: Hilltop Terrace Homeowners' Assn. v.
Island County, 126 Wn.2d 22, 30-31, 891 P.2d 29 (1995); West Coast v. Snohomish County,
104 Wn. App. 735, 16 P.3d 30 (2000); and HJS Development, Inc. v. Pierce County 148, Wn.2d
451 P.3d 1141 (2003)
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Yelm that the
following findings and conclusions be adopted in the matter of a subdivision alteration for the
Palisades West subdivision, as recorded under Auditor's File Number 3988607.
Findings of Fact
A. The requirement for the developer to construct a water booster pump was
included in the Preliminary Plat Approval and the Final Plat Approval, and the
requirement for a sewer pressure-sustaining valve was included in the civil
engineering plan approvals.
B. The Hearing Examiner could not approve the preliminary plat of Forrester
Heights (now Palisades West) unless he made a determination that the
application made adequate provision for potable water, fire flow and sanitary
sewage. The Hearing Examiner premised his plat approval on the developer's
construction of a water booster pump and the required sewer infrastructure to
provide a safe connection to the City's sewer system.
C. There was no appeal of the Hearing Examiner's decision on the preliminary plat,
and it therefore became final.
D. After preliminary plat approval, the developer asked for final plat approval, even
though the developer had not constructed the improvements required by the
Hearing Examiner.
E. The City Council decided to grant final plat approval based on the developer's
assurances that it would construct the necessary improvements, with additional
conditions on the final plat.
F. The final plat approval was not appealed and became final.
G. The developer applied for a building permit for 10756 Palisades Street S.E.
While the permit was being processed, the City Building Official verbally
discussed the final plat conditions with Dan Lee from Triance Homes (the
building permit applicant), again informing him that the building permit was
specifically limited to a model home. The Plan Reviewer for the City also copied
the conditions relating to a booster pump station and pressure sustaining valve
on the face of the plans and wrote "No certificate of occupancy will be issue until
Booster Pump is provided" across the face of the approved building plans for the
home.
H. The developer sold 10756 Palisades Street S.E. to Andrew and Cynthia Smith.
Andrew and Cynthia Smith have applied for a plat alteration to remove the final
plat conditions from the plat relating to the booster pump and sewer roll seal as
to their house. The Smiths believe that this should allow the City to issue an
occupancy permit so that they can move into their home.
Because the conditions of the preliminary plat and final plat were not appealed
and are final, the Smiths cannot now challenge any of these conditions. Instead,
the Smiths have submitted a proposal for an interim water booster pump as
authorized by Section 246-290-230(5) WAC, which would provide 30 psi of water
pressure to the house. The fire flow requirement in the International Fire Code is
1,000 gallons per minute for one hour. Finally, the Smiths have offered to sign
an agreement which their attorney believes will release the City from any liability
associated with the plat amendment. This release is dated September 24, 2009,
and is identified as No. 4 in the list of exhibits above.
K. Evidence was submitted to the Council showing that the preliminary and final plat
condition relating to a water booster pump station is needed to provide fire flows
as required by the International Fire Code and domestic water pressures as
required by Section 246-290-230(5) WAC. This fire flow requirement in the
International Fire Code is 1,000 gallons per minute for one hour.
Evidence was submitted to the Council showing that the preliminary and final plat
condition relating to apressure-sustaining valve (roll seal) is needed to prevent
dangerous gases from escaping the sewer system from a blow off valve within
Palisades West.
Conclusions of Law
"The City Council may determine the public use and interest in the proposed
alteration and may deny or approve the alteration." RCW 58.17.215.
2. The Smiths argue that the public use and interest is satisfied by their proposal to
provide 30 psi of water pressure to their home. However, this does not meet the
International Fire Code requirements for fire flow. The Smiths have only shown
that it is in their interest, not the public use and interest, to allow a lesser
standard to apply for the fire flow to their home.
3. The Smiths argue that the public use and interest is satisfied by their release,
which their attorney believes will ensure that the City has no liability associated
with the plat alteration which allows a lesser fire flow standard to the Smith home.
However, the Smiths have only shown that it is in their interest, not the public use
and interest, for the City to ignore this Fire Code requirement.
4. The City Council finds that if it were to grant the Smith's plat alteration request,
based on the Smith's proposed conditions, it would not meet the public use and
interest. There are many ways in which other members of the public would be
harmed by the City's agreement to the plat amendment. For example, the
Smiths could go on vacation and hire a house sitter, who is injured or killed in a
fire that is exacerbated by the lack of the required fire flow. Or, the Smiths could
sell their house after the plat amendment is granted, and the new owners of the
house could be injured or killed in a fire that is exacerbated by the lack of the
required fire flow. In both of these situations, the City would not be "released"
from liability, because the "release" agreement (if it were enforceable) only
applies to the Smiths. Further, if the City were to grant the Smith's alteration
request, the new owner of the property could either submit the same type of plat
alteration application or sell the property to other individuals who would make the
same type of plat alteration application to the City. Because these individuals
would argue that they were "similarly situated" as the Smiths, they would demand
approval of their applications, and many homes could be constructed in the plat
without the fire flow required by the preliminary, final plat approvals and the
International Fire Code.
5. Under applicable case law and the doctrine of res judicata, the Council also finds
that the plat alteration application must be denied. Under Hilltop Terrace
Homeowners' Assn v. Island County, 126 Wn.2d 22, 30-31, 891 P.2d 29 (1995),
"a second application may be considered if there is a substantial change in
circumstances relevant to the application or a substantial change in the
application itself." Here, the Smiths have not shown that this standard has been
met. The only change that has occurred here is that the developer did not
construct the improvements required by the plat approvals, and sold a lot to the
Smiths, apparently with some representation that they could occupy the home
before the improvements were constructed. The Smiths are now attempting to
find a way to extricate their individual lot from compliance with the plat conditions.
6. In addition, the fact that all of the approvals associated with the Smiths' home
precludes any plat amendment to remove a plat condition. Here, there was no
appeal of the preliminary or final plat. The Smiths also did not appeal the
building permit for their home, which specifically was conditioned on construction
of the improvements (as stated in the preliminary plat conditions, final plat
conditions and building permit plans). Therefore, all owners of the property in the
Palisades West plat "must be required to live up to what is tantamount to a
contractual obligation." West Coast v. Snohomish County, 104 Wn.App. 735, 16
P.3d 30 (2000).
7. The Smiths have argued that the holding of West Coast doesn't apply because
the developer in that case asked to eliminate a condition of preliminary plat
approval, not final plat approval. However, the Smiths are asking the City to
eliminate a condition of plat approval (as to their lot) that was modified slightly at
final plat. The criteria for approval of a plat alteration are almost exactly the
same as the criteria for a preliminary plat, so a "second application," whether it is
an application for a preliminary plat amendment or a final plat amendment, must
meet the Hilltop standard.
8. The application is denied as it is not the kind of `alteration' contemplated by RCW
58.17.215. The language of RCW 58.17.215 appears to address only the
drawin of the subdivision, not the conditions.
9. The Smiths have not shown that the criteria for approval of the plat amendment
have been satisfied.
NOW, THEREFORE, BE IT FURTHER RESOLVED by the City Council of the City of
Yelm in consideration of the above adopted findings and conclusions, the subdivision alteration
application submitted by the Smiths for the Palisades West subdivision, as recorded under
Auditor's File Number 3988607 is hereby denied.
ADOPTED this 23`~ day of M ~h, 2010.
~~
~`~~~ ,/
Ron Herding, N~yor
ATTEST:
Janinek hnepf, City CI rk