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BEFORE THE HEARING EXAMINER FOR THE CITY OF KENNEWICK In the Matter of the Application of ) Plat PVA 11-02/PLN-2011-00961 ) Bush/Holland, LLC ) ) FTNDINGS, CONCLUSIONS Fo¡ a Preliminary Plat. ) AND DECISION Modification ) SUMMARY OF'DECISION The Plat of Orchard Crest Division 4, approved on Septembet 13, I999,by Benton County and subsequently annexed into the City of Kennervick is hereby amended to allowthe following alteration: combining portions of a 150 wide buffer, Tract A, with lots 29 and 30 and lots 41 through 51 and combining Tract B with lot 28. The alteration is granted subject to conditions listed. ST]MMARY OF RECORD Request: The property, which is the subject of the request, is located at East of S. Garheld Street and south of W. 53to Avenue, Kennewick, Washington. The specific parcel numbers are Tract A, 124891070001000, Tract B, 12489107000200û.' On September 13, 1999, while the subject property was still under the jurisdiction of Benton County (County), the County Planning Commissioners approved the preliminary plat on the property. The approved preliminary plat, the Plat of Orchard Crest Division 4, on September 13, 1999, w¿ìs approved subject to the Benton County Planning Commission's findings, facts and conclusions, and conditions. The property with its approved plat is now within the boundaries of the City of Kennewick (City) and is subject to the jurisdiction of the City. Bush/Holland, LLC (Applicant) has requested an alteration to the approved Orchard Crest #4 subdivision by combining portions of a 150 wide buffer, Tract A, with lofs 29 and 30 and lots 41 through 51 and combining Tract B with lot 28. Hearing Date: An open record hearing on the application was held before the Hearing Examiner of Kennewick on July 71,2011. After testimony and evidence were submitted the Hearing Examiner continued the open record hearing until August 8, 2011. On that date additional testimony and evidence were submitted. Testimony: At the July I I,2071 hearing the following submitted testimony: ' The specific legal description ofthe property that is the subject ofthe instant request is :Lots 4l through 51, Lots 28 through 30, Tract A and Trqçf B of the Plat of Orcha¡d Crest #4 Recorded in Volume l5 of Plats at Page 176 Records of Benton County, Washington ---PAGE BREAK--- Mr.'Wes Romine-City of Kennewick Ms. Kristy Kevan-Spokesperson for the Applicant2 Mr. John Pringle Mr. Benny Ballandby Mr. Jason Kevan Mr. Rich Beason Josuah Benedict Smith Mr. Richard Roblee Mr. Rich Beason Mr. Russ Mendenhall At the August 8,2011 hearing the following submitted testimony: Mr. Wes Romine Ms. Kristy Kevan Mr. John Pringle Exhibits: At the July 11,2011 session of the open record hearing the following exhibits were admiued as part of the official record: A-1 StaffReport A-2 Application A-3 NoticeofApplication/MailingList A-4 Vicinity Map A-5 Request to Continue with Hearing A-6 Plat Alteration Drawing A-7 Recorded Plat Drawing of Orchard Crest #4 A-8 Benton County Resolution Approving Orchard Crest #4 A'9 Benton County Decision to Deny the Alteration Request to Orchard Crest #4 A-10 Submittal from John Pringle A-11 SEPADetermination A-tz KID Comment A-13 Material from Mr. Roblee A-14 Drawing of lot 51 A-15 Letter and attachments from Engineering Inc. A-16 Five photographs submiued by Mr. Kevan A-17 Map submitted by Mr. Kevan A-18 Excerpts from exhibit A-10 A-19 Powerpoint hardcopy 2 At the August 8, 2011 hearing Ms. Kevan submitted written authorization to lepresent the Applicant for the alteration. Fúhibit A-18 Findings, Conclusions and Decision Hearing Examinçr for City of Kennewick Orchìd Crest PIat Amendmenl PVA I l-02lPLN-201 1-00961 Page2 ---PAGE BREAK--- At the August 8,2011 session of the open reaord hearing the following exhibits were admitted as part of the official record: A-20 Authorization by olilners Morris Bush and Faith Ivie A-21 Letter of intent to sale Monis Bush & Faith Ivie A-22 Statement ofproperty owners Kristi Kevan A-23 Agreement betrveen Kristi Kevan (acting as Bush/Holland's representative) and John Pringle to purchase A-24 Proposed alteration map Based upon the testimony and evidence admitted at the open record hearing, the Hearing Examiner enters the following Findings and Conclusions: FII\DINGS OF FACTS l. When the subject property was beyond the City of Kennewick city limits and subject to the jurisdiction of the County, predecessors of the Applicant requested approval by Benton County to subdivide approximately 43 acres into 74Lots and tÍree tracts. On September 13,1999,the County Planning Commissioners approved the development of the preliminary plat on the property with passage of resolution# 99 477. Exhibit A-8. After public hearings the preliminary plat, the Plat of Orchard Crest No. 4, was approved subject to the Benton County Planning Commission's findings, facts and conclusions and conditions. Exhibit A-8:Testimony of Mr. Romine; Exhibit A-I 2. During the County's plat review the predecessors of the Applicant submitted alternate plans for the development of the proposed subdivision. One of the alternativç plans, Plan A, included the creation of three tracts (tracts A, B and C) along the south border of the plat that would be contiguous with commercial orchards. The plan called for these tracts to be 1 50 feet in depth and extend over a majority of the southem boundary ofthe plat and would be maintained in a natural undeveloped state and serve as a buffer for the adjacent high intensity agricultural operation. The buffer would exist "until such time as the adjacent farming activity ceases". Exhibit A-8, pg. 9, #10; Testimony of Mr. Romine; Testimony of Mr. Pringle. 3. As part of the plat approval the County adopted altemate A as the acceptable design for the southern boundary. In frnding #24 of the County approval it was stated: We frnd that the proposed preliminary plat Alternative Plan A is consistent with the Comprehensive Plan's designation of the Site as suitable residential use, and that with the inclusion of tracts A, B and C, the plat is Findings, Conclusions and Decision llearing Exami¡er for City of Kenner,vick Orchid Crest Plat Amendment PVA I l-02lPLN-201 l-00961 Page 3 ---PAGE BREAK--- consistent with our policies in the Comprehensive Plan regarding incompatible adj acent agricultural and residential uses. Exhibit A-8, pg. 11, #24 4. The Applicant the Orchard Crest No. 4 plat after the preliminary plat approval was issued by the County, but prior to the final plat being recorded. Subsequent to the f,nal plat submittal the Applicant requested an alteration to the plat approval. The request for alteration, as identified in the County's Findings of Facts and Conclusions was: Subdivision Alteration Applicant SA-03-1 is requesting altered plat approval to eliminate Tract A, except for west 467' thereof on which there is a irrigation pond and is proposed to be designated as Tact C; to make the remainder of Tract A as reflected in the final plat for Orchard Crest No. 4 parts of lot 29,30, and 41 through 51. It would reduce the size of Tract A from263,973 square feet to 42,384 square feet and eliminate Tract B. The proposed altered plat does not create any new public roads. Exhibit A-9, pg. 4, #7 5. After a review of the alteration at an open public record hearing, the County Planning Comrnission made a finding that the proposed alteration design would be essentially the same plat design as the alternate B design that had been rejected at the time of preliminary plat approval. Exhibit A-9, pg. 8, #24. Based in part on that finding, the County Commissioners on March 8,2004, denied the request for alteration of the f,rnal plat of Orchard Crest (Resolution # 04 lI4). Exhibit A-9, pg.2. 6. Subsequent to the County denial of the alteration request, on June 19,2007 thç Kennewick City Council approved Ordinance 5183, which annexed the subject property into the City. Exhibit A-1, pg. 3. 7 . On March 28,2011 the Applicant submitted an application for plat alteration. Although the engineering specifics were not presented, the Applicant provided a nanative of the requested alteration. Exhibit A-2.r The City summarized the request as an alteration to the Orchard Crest #4 subdivision as a request to combine portions of Tract A with Lots29 and 30 and Lots 41 through 51, and combine Tract B with Lot 28. A portion of Tract A was proposed to be retained as an irrigation pond easement and be renamed Tract C. Tracts A and B were put in place during the plat process as a buffer between the residential lots and the adjacent high intensity agriculture operation to the south. A portion of Tract A also contains a draínage easement. Erchibit A-1, pg. 3 3 The alteration application was submitted by Morris Bush. Findings, Conclusions and Decision Ilearing Examinel for Ciry- of Kennewick Orchid Crest Plat Amondment PVA t t-02IPLN-201 1-00961 Page 4 ---PAGE BREAK--- L Prior to the July 8,z0ll hearing on the request, the City considered the history of the plat and the reasons submitted by the Applicant for the alteration. In its staffreport, Exhibit A-1, pg. 4, to the Hearing Examiner the City stated: There has been no evidence submitted that would change the findings and çonclusions of the preliminary plat application (SUB 99-3) or the Alteration Request (SA 03-1). The orchard to the south is still continuing as an agricultural operation and per the letter from the owner, John Pringle (Exhibit A-10) there are no plans to discontinue the agricultural operation. The existing agricultural operation is located outside of the City of Kennewick's Urban Growth Boundary so it is not possible for the City to provide utility service to that area which increases the likelihood that it will not be developed. In the staff report the Cify recolûnended denial of the request stating that a buffer is necessary to provide provisions for public health, safety and welfare. Exhibit A-1, pg. 4 As part of the original plat review by the county, on May 28,l9g9,the Benton county Planning Department issued a Mitigated Determination ofNon- significance (MÐNS) pursuant to the state Environmental Policy Act (sEPA)4. The MDNS called for a buffer as a means ofprotecting the health, safety, and welfare of persons who would be occupying the residences on the proposed lots. The intent was to protect them from potential impacts of existing adjacent high intensity agricultural operations. The MDNA also included measures that would prohibit residential structures or swimming pools being located closer than 150 feet from the south properfy line of the proposed preliminary plat for lots 1, lots 7 thru 18, and lot 29, or, within 150 feet of the southeast corner of Lot 31 for lots 30 thru 33 until the farming activity ceased south of the plat. In addítion the MDNS required there be a forty (40) foot buffer easement on each side of the storm drainage way. Exhibit A-1, pg. 3. Exhibit A-11. on }y'ray 27, 2011 the City's Planning Director informed the Applicarrt that no additional conditions had been made to the MDNS because of the alteration request. Exhibit A-l 1. 10. The MDNS was issued in part based on scientific data submitted by utt associate professor in the Department of Crop and Soils Sciences at'V/ashington State university. It was his contention, which was adopted by the Board of Commissioners, that the use of pesticides on the adjoining orchards would create potential toxic materials being air{ifted to the residents of the plat. As a means of mitigating this condition the Board accepted the testimony of the owner ofthe adjoining orchard, Mr. John Pringle, and required placement of 150 foot deep tracts on the south boundar¡' of the plat. Exhibit A-1,. Exhibit A- I1; ExhibitA-9, pg. 5. 9. o RCw 4zztc Findings, Conclusions and Decision Ilearing Dxaminer for City of Kennewick Orchid Crest Plat Amendment PVA I l-02lPLN-201 l-00961 Page 5 ---PAGE BREAK--- 11. Mr. Pringle opposed the instant request of the Applicant. He submitted that the buffer had been discussed in previous attempts to reduce it and on tlrçe separate times it had been turned down by the Corurty. fuhibit A-10 pg. I; Testimony of Mr Príngle. 12. At the July 11,2071 hearing a number of property o\ryners of the lots at the southern boundary of the plat testified in support of the application. Among the reasons for the owner's support \¡/ere: The buffer is susoeptible for potential wildf,rres that could be problematic to the safety of the residences. Testimonlt of Mr. Ballandby b) The MDNS was in error with regard to the need forthe buffer and there has been no evidence that it has been effective. Testimorry of Mr. Kevan c) Areas of the buffer tend to grow uncontrolled and are subject to code enforcement activities of the City. A change in ownership or reduction of the buffer would allow property owners to protect areas with greater efhciency. Testimony of Mr. Beason 13. Mr. Pringle testihed at the July 11,2011 hearing that he would be willing to meet with the Applicant's representative to seek some rssolution of the issues presented with the instant application. The City submitted if the parties could reach an agreement it would consider making a change in its position. Testimony of Mr. Pringle; Testimony of Mg Kevan; Testimony of Mr, Romine. The Hearing Examiner continued the hearing until August 8,2011 for the purpose of allowing the City, the representative of the Applicant and Mr. Pringle to meet in order to draft a proposed resolution of the issues relating to the alteration. 74. Atthe August 8,2011 hearing the only participants at the public hearing were the City Planning Department representatíve (Mr. Romine), the Applicant's representative for the requested alteration (Ms. Kevan) and Mr. Pringle. 15. Ms. Kevan submitted a list of wriffen declarations from all of the property owners within the subdivision who would be impacted by the decision of the alteration request. All of the owners declared an intent to purchase the properfy behind their property from the Applicant at a'þre-determined price that was set". Exhibit A-22. Althoughthe Alteration Application did not include the signatures of a majority of the owners of the lots, tracts, parcels, sites o¡ divisions in the division or portion to be altered, and, did not include a list of all owners within the division, the representative of the Applicant presented suffrcient evidence that the majority of the owners of the lots to be altered were in support of the request. Exhibit A-22; Testimony of Ms. Kevan. Finclings, Conclusions and Decision Hearing Examiner for City ofKennewick Orchid Crest Plat Amendment PVA I r-02lPLN-2û1 l-0096t Page 6 ---PAGE BREAK--- 16. on July 29,2011, the owner (Morris A. Bush) and the general manager (Faith M. Ivie) of the Applicant, BushÆIolland LLC, signed a letter of intent with Mr. Pringle in which they stated that they will sell twenty five Q5) feet that backs onto his orchard from Tract A (lots 4l-51) of the approved plat. The Applicant specifically stated that the sale was "not due to condemnation". The agreønent set the pwchase formula for said property. Exhibit A-21 17. If the back25 feet of the tract were sold, the remaining portion of the tract that currently is used for the southern buffer of the plat would be purchased by the property owner of each impacted lot of the Orchard CrestNo. 4 subdivision. Upon purchase the property owner would exçcute an easement for the southern twenty five (25) feet which have construction restrictions on it as well as a clause that prohibits swimming pools from being placed onit. Exhibit A-21. These conditions would not apply to lots 28,29 and 30, but the pwchase of the property would be the responsibility of those property orilners. 18. The owners of lots on the southern boundary of the Plat did not submit a letter of intent between them and Bush/Holland to purchase and sell the portions of the tract identified in finding number 17 (above). However, a review of the exhibits of the hearing support the properfy owner's çontention that the Applicant desires to sell to each owner a portion of the tract that was platted on hiVher property for a set established price. This intent is evidenced in the Alteration Application (Exhibit A-2) under section "reason for vacation/alteration" in which the Applicant stated: We are adding a portion of tract A &B to corresponding lots to north lots so homeowners will maintain them as a natural undeveloped state exactly as they are have been since they moved in, as we are located in (Vanc) V/ash. It is too hard to maintain property. We have leased each portion to each corresponding lots & hompowners have done maintenance. So we want to sell this portion to each homeowner (14) rather than lease we are selling the portion behind each of 14homesfor avery minimal amountwhich they all have opproved. (emphasis added) Exhibit A-2. In addition in Exhibit A-21, the Letter of Intent between the Applicant and Mr. Pringle, the agreement between them included the following statement: He will purchase this property at the same price as the homeowners which will be $.05 per sq. ft. Exhibft A-21 19. A public use and interest would result with the proposed alteration. With the removal of the Tract orvned by the Applicant and each impacted lot being increased, the public interest would bç served with more secure control of wildfires and reduction of code enforcement violations. Testimony of Ms. Kevan, Testimony of Mr. Romine. At the August 8,2071 hearing the city Planning representative stated that the City'r original recoÍtmendation of denial Findings, Conclusions and Decision Flealing Examiner for City ofKennew-ick Orchid Crest Plat Amendment PVA I l-02ÆLN-201 l-00961 Page 7 ---PAGE BREAK--- was being withdrawn and the City supported thc agreement reached by the parties. Testimony of Mr. Romine. An alteration map to the final plat of Orchard Crest No. 4 was submitted as an exhibit. The map depicted the agreed changes described in findings number 16 and 17. Exhíbit A-24. 20.Inresponse to the alteration request the Kennewick lrrigation District (KID) submitted that the Applicant must dedicate an irrigation easement to match the two existing irrigation lines located in the southwest corner of proposed lot number 514, The irrigation easement would be contiguous to the existing 10 foot irrigation easement and would extend 30 feet north of the easement and 100 feet east of the east property line of tract C. In submitting its comment KID did not identiff the impact that the dedication of the easement would mitigate. Exhibil A-12 CONCLUSIONS Jurisdiction: The Hearing Examiner is granted jurisdiction to hear and decide preliminary plat applications pursuant to KMC 4.02.080 (lxb) ii, The Hearing Examiner is granted jurisdiction to hear and decided alterations of final plats pursuant to the provisions of KMC 77,16,160(t) Criteriq for Review: KMC 17.16.150: Application for Alteration: When any person desires the alteration of a subdivision, short subdivision, site plan, or portion thereof, except as provided in KMC 17.10.010(4) and 17.13.020(1), he shall file an application with the Department on a form supplied by it. The application must include the signatures of a majority of the owners of the lots, tracts, parcels, sites or divisions in the division or portion to be altered and include a list of all owners within the division. If the division is subject to restrictive covenants, which were hled at the time of the approval of the division and the alteration would result in the violation of a covenant, the application must be signed by all parties subject to the covenants. (Ord. 5280 Sec. 1,2010) KMC 17.16.160: Procedure for Alteration: Upon receipt of a completed application, the Planning Official will notiff all owners of the property within the division as provided in KMC 17.10.040 and 17.10.050, and the Hearing Examiner will conduct a public hearing. The Hearing Examiner will determine the public use and interest in the proposed alteration and may deny or approve the application. Findings, Conclusions and Decision Hearing Examiner for City of Kenner.vick Orchid Crest Plat Amendment PVA I I-021PLN-201 1-00961 Page 8 ---PAGE BREAK--- If any land within the alteration is part of an assessment dishict, any outstanding assessments must be equitably divided and levied against the remaining lots, parcels or tracts, or be levied equitably on the lots resulting from the alteration. If any land wíthin the alteration contains a dedication to the general use of persons residing within the division, such land may be altered or divided equitably between the adjacent properties. (Oñ. 5322 Sec. 46, 2010 Ord. 5280 Sec. 1,2010) KMC 17.16.170: Revised Drawing: After approval, the applicant must produce a revised drawing of the approved alteration which, after signature of the legislative authority, must be filed with the County Auditor. (Ord. 5280 Sec. l, 2010) Conclusions Based on Findings. 1. While the application did not the signatures of a majorify of the o.'È/ners of the lots, tracts, parcels, sites or divisions in the division or portion to bc altered and include a list of all o\ /ners within the division, the representative of the Applicant presented evidence that the majority of the owners of the lots to be altered were in support of the request. Ftnding af Fact No. 15. 2. A public use and interest would result with the proposed alteration. With the temoval of the Tract owned by the Applicant and each impacted lot being increased the public interest would be served'lvith a more secure control of and reduction of code enforcement violations. Finding of Fact No. I9 The parties to the alteration engaged in detailed and intense negotiations to reach a resolution of the request. Whils the Applicant filed the original alteration application, the property o*rrers within the orchard Crest #4 Plat (especially Ms. Kevan) and Mr. Pringle arrived at an alteration scheme that would benefit all parties. Findings of Fact Nos. 13-17. With approval of the alteration the Applicants will no longer be burdened with maintenance of the Tracts, Mr. Pringle will be able to maintain his orchard management and the property orilners will have ownership and control of adjoining land to their properties. The alteration will only work if the agreements as stated are implemented. The interests of the adjoining orchard owner to the south would be protected with the 25 foot strip transfer of the impacted general tract to said owner. That parcel, along u'ith a 25 foot restrictive easenent for buildings and swimming pools would provide relief from airborne sprays used in the orchard managemerrt- Findings of Fact Nos. 16 snd 17 Findings, Conclusions and Decision Hearing Examiner for City of Kennewick Orchid Crest Plat Amendment PVA I I-021PLN-201 l-00961 J. Page9 ---PAGE BREAK--- 5. None of the negotiations wÍrs done pursuant to any condemnation powers of the City of Kennewick. The agreements were made between willing private buyers and sellers. The alteration of the f,rnal plat provides a mechanism for the parties to achieve implementation of their agreements. DECISION Based upon the preceding Findings and Conclusions, The Plat of Orchard Crest Division 4, approved on September 13, 1999,by Benton County and subsequently annexed into the City of Kennewick is hereby amended to allow the following alteration: combining portions of a 150 wide buffer,TractA, with lots 29 and 30 and lots 41 thi'ough 51 and combining Tract B with lot 28. The alteration is granted subject to the following condítions: At the public hearing there were no covenants of the Orchard C¡est Ðivision 4 subdivision presented as evidence. If, however, there are any covenants that were filed at the time of the f,rnal plat approval and the alteration would result in the violation of a covenant, the covenant shall be modif,red or the alteration is void. The Applicant must produce a revised drawing of the approved alteration which, afrer signature of the legislative authority, must be filed with the County Auditor. The Plaruring Director of the City of Kenner¡'ick shall have discretion as to whether exhibit A-24 satisfies this condition. The Applicant shall make every attempt to coßummate the land conveyances described in Findings 16 and 17 of this Decision. If the conveyances are not able to be made the Applicant shall retain ownership of those lots that remain in its name and shall be subject to taxation and regulation restrictions. A portion of Tract A was proposed to be retained as an irrigation pond easernent and be renamed Tract C. A portion of Tract A also contains a drainage easement 1 2. 3. 4. - Decided thisÁ2 day of Findings, Conclusions and Decision Hearing Examiner for City of Kennewick Orchid Crest Plat Amendment PVA l 1-02ÆLN-201 l-00961 ames M. Driscoll Page l0