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RECEIVED DEC 0 1 2015 BEFORE THE HEARING EXAMINER COMMUNITY PLANNING FOR CITY OF KENNEWICK In the Matter of the Application of ) ) No. FILE No: PP 15-04/PLN-2015-02833 J-U-B Engineering, Inc ) for Preliminary Plat Approval ) ) The Ridge at Hansen Park-Division I ) ) FINDINGS, CONCLUSIONS, ) SUMMARY OF DECISION The requested Preliminary Plat for a subdivision of two parcels (38.28 acres) into 84 lots for single- family homes at 8523 W. 10th Avenue, Kennewick, Washington is approved subject to conditions. Request SUMMARY OF RECORD J-U-B Engineering, Inc. (referred to as Applicant), requested approval of a preliminary plat for development of a subdivision of two parcels (38.28 acres) into 84 lots for single family homes. The vacant site is at 8523 W. 10th Avenue, Kennewick, Washington.1 Hearing Date: The Hearing Examiner of the City of Kennewick held an open record hearing on the application on November 9, 2015. Testimony: At the open record hearing the following individuals presented testimony under oath: Mr. Steve Donovan City of Kennewick (Development Services) Mr. Wes Romine City of Kennewick (Development Services) Mr. John Deskins City of Kennewick (traffic) Mr. Paul Inwards Applicant's Representative Mr. Vince Loftus Applicant’s Representative Mr. Dave Retter Applicant's Representative At the open record hearing the following exhibits were admitted: 1. Staff Report 2. Application 3. Notice of Public Hearing, 300-ft. mailing list, and mailing affidavit 4. Vicinity Map 5. Preliminary Plat 6. SEPA Determination 1 The extensive legal description of the two parcels is set forth in Exhibit I, pages I and 2. page I of 1O ---PAGE BREAK--- h h 7. Memorandum from Joe Terpenning, City of Kennewick Deputy Fire Marshal, dated 9/01/15 8. Memorandum from John Deskins, City of Kennewick Traffic Engineer, dated 10/08/15 9. Memorandum from Fernando Garcia, City of Kennewick Utility Coordinator, dated 9/17/15 10. Email from Ken Klander, Benton PUD Distribution Design Tech 1, dated 8/26/15 11. Letter from Jason McShane, P.E. Kennewick Irrigation District Engineering/Operations Manager, dated 9/ 15/ 15 12. Letter from Doug Carl, Kennewick School District Capital Projects Director, dated 10/19/2015 13. Plat map showing City of Kennewick GIS Department comments 14. The Ridge at Hansen Park Townhomes Trip Generation and Distribution Letter, Spencer Montgomery, Transportation Planner, J-U-B Engineers, dated 10/05/15 15. Memorandum from Thomas Woods, City of Kennewick Plans Examiner, dated 8/18/2015 16. Letter from the Bonneville Power Administration , Joseph E. Cottrell II, Field Realty Specialist, and dated 9/03/15 17. Letter from the State of Washington Department of Ecology, Gwen Clear, Environmental Review Coordinator, and dated 8/31/ 15 18. Letter from the Washington State Department of Transportation, Paul Gonseth, P.E., Planning Engineer, dated 9/03/15 19. Excerpt of Development Agreement between the City of Kennewick and Hansen Park, LLC recorded 11/13/ 15 20. Email from City Utility Coordinator (November 9, 2015) 21. Department of Ecology letter of Reference (January 18, 2012) 22. November 12, 2015 email from Department of Ecology (re: soils) 23. Copy of email from Applicant's attorney. Dated November 9, 2015 (redactions made by Applicant's representatives prior to submitting exhibit for the record.) 24 Sheet 7 of Plat Map 25 Power Point hardcopy 26 Copy of email from applicant regarding environmental testing Upon consideration of the testimony and exhibits submitted at the open record hearing, the Hearing Examiner enters the following Findings and Conclusions: FINDINGS 1. The Applicant requested approval of a Preliminary Plat for a subdivision of two parcels on 38.28 acres at 8523W.10th Avenue, Kennewick, Washington. The proposed plat would be developed into 84 single family lots. The site, which is not developed, is located on the south side of 101 Avenue along Montana Street. The two parcels are identified as Parcel Nos. 1-0789-2000-0003-003 & 1-0789-2000- 0003-005 Exhibit 1, pgs . 1 and 3: Testimony of Mr. Donovan. 2. The parcels were annexed into the City in December 2002 (Ordinances 4076 and 4089). The current zoning for the property was established in July 2003 (Ordinances 4089 and 5519). The property was part of the Hansen Park Sub-Area Plan and was Findings, Conclusions, and Decision Hearing Examiner The Ridge at Hansen Park, Div. I PP I 5-04/ PLN-2015 -02833 page 2 of 10 ---PAGE BREAK--- PP 15-04/ PLN-2015-02833 h h h designated an elementary school. The school was never constructed. Exhibit 1, pg. 4; Testimony of Mr. Donovan. 3. The subject property is zoned Residential Low Density (RL) zoning district. This zoning district has a minimum lot size requirement of 7,500 square feet and no minimum density or maximum density requirements. Table of Residential Development Standards KMC 18.12.010 A. 2. The smallest proposed lot is 9,285 square feet and the largest is 20,259 square feet. The average lot in the plat is 12,259 square feet. Exhibit 1. Pg. 41; Exhibit 5, pg. 1 4. The Comprehensive Plan Land-Use Designation of the subject property is Low Density Residential and is zoned Residential Low Density (RL). The City of Kennewick's Single-Family Residential Design Standards apply to this project. Exhibit 1, pg. 3' Testimony of Mr. Donovan 5. Surrounding properties to the west and north are zoned RL; the properties to the east and south are in incorporated Benton County. Based on its review of the proposal, the City, through its representative, testified that the proposed development of the plat will be harmonious with the surrounding properties. Single family residences are adjacent to the proposal. Testimony of Mr. Donovan 6. A long-time use of the property has been agricultural with orchards on site. In recent years the Applicant and its predecessors considered the residential development of other nearby properties with the needs of the community. They have opted to develop the instant property and other adjoining or nearby properties for residential purposes. Testimony of Mr. Loftus. 7. The Applicant submitted a Trip Generation and Distribution let from JUB Engineers. After a review of the information in said letter and the appropriate traffic requirements of the City, the City's Traffic Engineers submitted a memo stating agreement with the study's conclusions. Included in the City's remarks were: • The city is not collecting pro-rata contribution for 10thand Clearwater at this time. The only contributions required at this time are the standard traffic improvement fees. • While a right -turn from 10th Avenue to Montana is not necessary at this time, it may be warranted based on the AM Peak Hour traffic if a school is constructed on the southeast comer of 10th and Montana. • The location for two speed humps must be determined during the civil design plan stage of the project. Exhibit 8 8. The Applicant must construct the Plat's public roads, sidewalks, streetlights and storm drainage in conformance with current City of Kennewick Standard Drawing 2- 1 Sheet 1 and 2. As part of the process the Applicant must designate sidewalk and utility easements on the final plat. In the initial submitted plans the sidewalk designs were not acceptable to the Engineering Division. A City representative submitted Findings, Conclusions, and Decision Hearing Examiner The Ridge at Hansen Park, Div. I page 3 of 10 ---PAGE BREAK--- Findings, Conclusions, and Decision Hearing Examiner The Ridge at Hansen Park, Div. I PP 15-04/PLN-2015-02833 page 4 of 10 that the Applicant must design the sidewalks with an additional 18-inches of width at the points where they abut a fence (City of Kennewick detail 2-10 sheet 1 of Exhibit 9, pg. 1; Testimony of Mr. Donovan. 9. Subdivisions in the City of Kennewick must be designed to retain and dispose of the calculated difference between a 25-year 24 hour event for the developed state and the 24-hour event for the natural pre-developed state. Detention ponds (control outlet) may be used only where it can be clearly demonstrated that infiltration, or retention are not feasible per City of Kennewick Standard Specifications Section 5- 9.02, Exhibit 9. Tracts F and I have been identified as the storm water detention basins within the boundaries of the plat. Testimony of Mr. Donovan; Exhibit 1, pg. 4; Exhibit 9, pg. 2. 10. The City Engineering Division stated that a 24-inch ductile iron water main must be installed starting at the street intersection of W. 10th Avenue and S. Montana Street and connected to an existing 24-inch water main supplying Zone 3 reservoir per City of Kennewick Record drawing F2060. The existing 12-inch water main shall remain in service until the new 24-inch water main is placed, pressure tested and health sample approved. Exhibit 9, pgs. 1 and 2. 11. The City Engineering Division submitted that as part of the development of the plat the Applicant must provide half street improvements adjacent to the plat on W. 10th Avenue. The improvements must be constructed consistent with the latest City of Kennewick Standards detail 2-3 and include fire hydrants, streetlights, storm drainage systems, sidewalks and traffic controls. The improvements shall meet the latest City of Kennewick standards. Exhibit 9, pg. 1 12. A comprehensive sewer plan must be approved by the City for the entire plat prior to approval of Phase 1 construction plans. The comprehensive plan can be submitted with the preliminary civil plan Testimony of Mr. Donovan ; Exhibit 9, pg. 2 13. No critical areas were identified on the site. Testimony of Mr. Donovan; Exhibit 1, pg. 5 14. On November 13, 2002, the City and the Hansen Park, LLC recorded a Development Agreement (Agreement) with the City of Kennewick. Section 3.5 of the Agreement included that the Hansen Park LLC would dedicate a minimum of 25 acres for a community park. Exhibit 19 (pg. 11, section 3.5 of Agreement). As part of the review of the instant plat, the City recommended that the park dedication of the Agreement relieve the Applicant of park impact fees required by the City for the instant application. Exhibit I pg. 5 15. The Kennewick School District was given notice of the proposal and submitted comments. In an October 19, 2015 letter to the City, the District's Capital Projects Director stated that the District has the capacity to add students for all levels at the schools that would serve the proposed subdivision. These schools are the Ridgeville Elementary, the Desert Hill Middle School and the Kamiakin High School. All three schools are in bussing zones. Exhibit 12; Exhibit 1, pg. 5 ---PAGE BREAK--- PP 15-04/ PLN-2015-02833 16. Pursuant to instructions from the Hearing Examiner, the Washington Department of Ecology (DOE) submitted a specific post-hearing comment for the instant plat Exhibit 21. DOE, in the post-hearing letter that has been made part of the record, submitted that based on historical uses of the property it may contain residual concentrations of pesticides. The Department recommended soil sampling for lead and arsenic and organchlorine pesticides. If found to be above Model Toxic Control Act cleanup levels, DOE recommended that potential buyers be notified for such information. Testimony of Mr. Donovan; Exhibit 21; and Exhibit 22. 17. As part of the review by the City of Kennewick's Planning Department, certain policies and goals of the City's Comprehensive Plan were addressed. Those items that were addressed supported the proposed project as being consistent with the City's Comprehensive Plan. Among the policies and goals that were identified by the City staff are: a. URBAN AREA POLICY 3 to promote new growth consistent with the Comprehensive Land Use Map, the Capital Facilities Plan and the Capital Improvement Plan is satisfied with the single-family housing in the Residential Low-Density loan that is served by City utilities and services. b. RESIDENTIAL GOAL 1 to guide the design of new residential developments to be compatible with adjacent residential areas is satisfied because "the proposed Preliminary Plat will be consistent with the Comprehensive Plan Land Use and will comply with development standards for RL zoning district. c. RESIDENTIAL GOAL 3 to promote a variety of residential densities with a minimum density target of 3 units per acre as averaged throughout the urban area is satisfied because the RL zone does not have a minimum or maximum density requirement. The development will have 84 single-family residential lots. d. RESIDENTIAL GOAL 4 to encourage residential development only in urban areas where services can be provided is satisfied because City water and sewer services are available at W. 10th Avenue and Columbia Center Boulevard. e. RESIDENTIAL POLICY 3 to incorporate residential design standards into new residential developments will be satisfied because the plat and the residences do be developed in it are subject to the Residential Design Standards of the City. f. RESIDENTIAL POLICY 5 to provide provisions for parks, schools, drainage, transit, water, sanitation, infrastructure, pedestrian, and aesthetic considerations in new residential developments are satisfied by the proposal. The proposed plat is part of the entire Hansen Park Development which includes the development of parks, schools, new infrastructure and pedestrian opportunities. g. CRITICAL AREAS AND SHORELINE GOAL 3 to regulate or mitigate activities in or adjacent to critical areas or the shoreline to avoid adverse environmental impacts is not applicable to the instant plat because according to City's critical area maps, there are no critical areas on the site. Testimony of Mr. Donovan; Exhibit 1, pgs. 5 and 6 18. The Kennewick Irrigation District (KID) submitted comments on the proposed plat. KID stated that the subject property is within the KID boundaries and that it is Findings, Conclusions, and Decision Hearing Examiner The Ridge at Hansen Park, Div. I page 5 of IO ---PAGE BREAK--- PP 15-04/ PLN-2015-02833 classified as irrigable land. In its comments KID included a list of proposed conditions of approval for the preliminary plat. Exhibit 11 19. KID Engineering/Operations Manager submitted a comment letter for the proposed plat. In the letter (Exhibit 11) KID submitted that the plat is located within KID boundaries and some of the land in the plat is classified as irrigable land and consist of 36.02 acres2 . KID set forth a detailed list of comments that the Agency "provides as a condition of approval by the legislative authority for RCW 58.17.310". Exhibit 9 20. An irrigation water right-of-way on the parcel of land proposed for the subdivision has been identified in the preliminary plat map. Exhibit 3, plat map. Other requirements of RCW 58.17.310 and have either been satisfied or are not relevant to the instant plat request. 21. At the public hearing the Applicant's representative submitted objection to the proposed conditions submitted in Exhibit 9. The basis of the objection was that many of the proposed conditions listed in Exhibit 9 did not meet the nexus required to be a condition of approval. The development plat must be the cause of the source of a situation that would be corrected by an imposed condition. The Applicant's representative submitted this standard had not been met by many of the proposed conditions. Testimony of Mr. Inwards; Testimony of Mr. Loftus; Exhibit 23 22. Proper notice of the hearing was given by the City. There was no testimony submitted by members of the public. Exhibit 1, pgs. 2 and 3; Exhibit 3 23. The application for the plat was submitted on August 17, 2015. Since that time the City has conducted a thorough review of the application, the land involved with the proposed development and the applicable laws and requirements of the City of Kennewick and the State of Washington. The City determined that the proposed development would be constructed to City of Kennewick Residential Design Standards and the applicable requirement of the Kennewick Municipal Code. Appropriate provisions have been made for, but not limited to, the public health, safety, and general welfare, for open spaces, drainage ways, streets or roads, alleys, public sidewalks, utility easements and other public ways, transit stops, potable water supplies , sanitary wastes, parks and recreation areas, playgrounds , schools and school grounds. The proposed subdivision was reviewed based on relevant facts and 2 As previously noted there the size of the parcel of the proposed plat is 38.28 acres. Exhibit / , pg I . 3.lncluded in the KID comment letter was a list of conditions addressing design, grading and construction and other issues of development. One of the proposed conditions that KID submitted was that "All subdivisions of land are required to be approved by the KID Board of Directors". Exhibit 11, pg. 5; proposed condition 15f While the KID clearly has statutory authority to be involved with the review of the subdivision approvals, KID is not by law the agency that approves the subdivisions. See:KMC 17.I 0 et.seq. and RCW 36.70. 120 Findings, Conclusions, and Decision Hearing Examiner The Ridge at Hansen Park, Div. I page 6 of 10 ---PAGE BREAK--- PP 15-04/ PLN-2015-02833 other planning features that assure safe walking conditions for students who walk to and from school. All exhibits listed CONCLUSIONS Jurisdiction: The Kennewick Hearing Examiner is granted jurisdiction to hear and decide preliminary plat applications pursuant to KMC 4.02.080 ii. The Hearing Examiner is granted jurisdiction to hear and decide planned development permits applications pursuant to KMC 4.02.080 (1b) iv and KMC 18.45.060. Criteria for Review: The Hearing Examiner may approve an application for a preliminary plat only if the requirements of KMC Chapter 17.10 are satisfied. Included in these requirements is KMC 17.10.080: Provisions for Public Health, Safety, and Welfare: The Hearing Examiner will inquire into the public use and interest proposed to be served by the establishment of the subdivision and dedication. All plats will be reviewed to determine their conformance with the Comprehensive Plan, comprehensive water plan, utilities plan, and Comprehensive Park and Recreation Plan, and anything else necessary to assist in determining if the plat should be approved. Appropriate provisions must be made for, but not limited to, the public health, safety, and general welfare, for open spaces, drainage ways, streets or roads, alleys, public sidewalks, utility easements and other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation areas, playgrounds, schools and school grounds, and shall consider all other relevant facts and other planning features that assure safe walking conditions for students who only walk to and from school. All relevant facts will be considered to determine whether the public interest will be served by the subdivision and dedication. If it is determined that the proposed plat makes such appropriate provisions, then the Hearing Examiner must approve the proposed plat. Dedication of land to any public body may be required as a condition of subdivision approval. The Hearing Examiner will not, as a condition to the approval of any plat, require a release from damages to be procured from other property owners. RCW 58.17.310-Application for approval of plat within irrigation district -Approval without provision for irrigation prohibited. Whenever a city, town , or county receives an application for the approval of a plat of a subdivision that lies in whole or in part in an irrigation district organized pursuant to chapter 87.03 RCW, the responsible administrator shall give written notice of the application, including a legal description of the short subdivision and a location map, to the irrigation district. The irrigation district shall, after receiving the notice, submit to the responsible administrator who furnished the notice a statement with any information or conditions for approval that the irrigation district deems to be necessary regarding the proposed division's effect Findings, Conclusions, and Decision Hearing Examiner The Ridge at Hansen Park, Div. I page 7 of 10 ---PAGE BREAK--- PP 15-04/ PLN-2015-02833 h h upon the structural integrity, including lateral support, of the irrigation district facilities, other risk exposures, and the safety of the public and irrigation district. In addition to any other requirements imposed by the provisions of this chapter, the legislative authority of any city, town, or county shall not approve a short plat or final plat, as defined in RCW 58.17.020, for any subdivision, short subdivision, lot, tract, parcel, or site which lies in whole or in part in an irrigation district organized pursuant to chapter 87.03 RCW unless there has been provided an irrigation water right-of-way for each parcel of land in such district. In addition, if the subdivision, short subdivision, lot, tract, parcel, or site lies within land within the district classified as irrigable, completed irrigation water distribution facilities for such land may be required by the irrigation district by resolution, bylaw, or rule of general applicability as a condition for approval of the short plat or final plat by the legislative authority of the city, town, or county. Rights-of-way shall be evidenced by the respective plats submitted for final approval to the appropriate legislative authority. In addition, if the subdivision, short subdivision, lot, tract, parcel, or site to be platted is wholly or partially within an irrigation district of two hundred thousand acres or more and has been previously platted by the United States bureau of reclamation as a farm unit in the district, the legislative authority shall not approve for such land a short plat or final plat as defined in RCW 58.17.020 without the approval of the irrigation district and the administrator or manager of the project of the bureau of reclamation, or its successor agency, within which that district lies. Compliance with the requirements of this section together with all other applicable provisions of this chapter shall be a prerequisite, within the expressed purpose of this chapter, to any sale, lease, or development of land in this state. Conclusions based on Findings 1. The Applicant requested approval of a Preliminary Plat for a subdivision of two parcels on 38.28 acres at 8523 W.10th Avenue, Kennewick, Washington. The proposed plat would be developed into 84 single family lots. The site, which is not developed, is located on the south side of 10th Avenue along Montana Street, Kennewick Washington. The two parcels are identified as Parcel Nos. 1-0789-2000- 0003-003 & 1-0789-2000-0003-005 Finding of Fact No. 1 2. Appropriate provisions have been made for, but not limited to, the public health, safety, and general welfare, for open spaces, drainage ways, streets or roads, alleys, public sidewalks, utility easements and other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation areas, playgrounds, schools and school grounds, and the proposed subdivision has considered all other relevant facts and other planning features that assure safe walking conditions for students who walk to and from school. Findings of Fact Nos. 3-23 Findings, Conclusions, and Decision Hearing Examiner The Ridge at Hansen Park, Div. I page 8 of 10 ---PAGE BREAK--- h 3. The proposed plat has been reviewed by the City and other agencies and has been determined to be in conformance with the City of Kennewick Comprehensive Plan Findings of Fact Nos. 4 and 17; comprehensive water plan Finding of Fact No. 10; utilities plan Findings 10 and 12; and Comprehensive Park and Recreation Plan, and all relevant requirements to the approval of the plat. 4. An irrigation water right-of-way on the parcel of land proposed for the subdivision has been identified in the preliminary plat map. Exhibit 3, plat map. Other requirements of RCW 58.17.310 and have either been satisfied, or are not relevant to the instant plat request. Finding of Fact No. 20 5. KID identified a list of requirements to be imposed on the Applicant for approval of the plat. However, some of the requirements may be in excess of the authority granted KID in RCW 58.17.310. In addition, some of the proposed conditions may not satisfy the nexus requirements of Dolan v. City of Tigard, 512 U.S. 374 (1994) that there be an essential nexus" between the permit conditions and legitimate state interest". Also at issue is the whether the degree of the conditions required by the permit condition are due to the projected impact of the proposed development. Further some of the proposed conditions may not satisfy the criteria for imposing requirement. Attention is drawn to Burton vs. Clark County, 91 Wn. App. 505 (1998) and other Washington appellate cases that address conditions and exactions for subdivision approval in Washington. DECISION Based on the administrative record developed at the public hearing, approval is granted for a preliminary plat for development of a subdivision of 38.28 acres to be divided into 84 lots for single family homes. The site is located at 8523 W.10th Avenue, Kennewick, Washington. Approval is granted subject to the following conditions: 1. The Applicant and/or his successors shall comply with all City of Kennewick regulatory controls, policies and codes, including all Single-family and Multi-Family Residential Design Standards. 2. All required fees imposed by the City, including those addressed in this document and all other plat review documents, shall be paid prior to the approval of the final plat. 3. Development of the plat shall be in conformance with the plat drawing. (Exhibit 5 of the administrative record of the plat review). 4. The Applicant and/or its successors must comply with Traffic Engineer memorandum dated October 8, 2015 (Exhibit 8 of the administrative record of the plat review) 5. The Applicant and/or its successors must comply with the Public Works memorandum dated September 17, 2015 (Exhibit 9 of the administrative record of the plat review) Findings, Conclusions, and Decision Hearing Examiner The Ridge at Hansen Park, Div. f PP /5-04/PLN-2015-02833 page 9 of 10 ---PAGE BREAK--- 6. Geo-Tech reports are required for each lot at the time of building permit submittal. 7. The Applicant and/or its successors must provide dust control method(s) such as hydro-seeding for all areas of the site that are disturbed. 8. The Preliminary Plat (PP 15-04) expires 5 years from the approval date. The City may grant an extension, but any extension application must be applied for before the approved preliminary plat expires. 9. The conditions listed in Exhibit 11 are not adopted. However, prior to the issuance of any permits the Applicant and the Kennewick Irrigation District shall meet for the purpose of identifying which conditions could be implemented to meet the requirements of RCW 58.17.310 . The meeting shall be held no later than December 11, 2015. The parties shall submit a written report to the City Planning Department (Mr. Steve Donovan) no later than December 15, 201 5. The report shall provide any terms of agreement between the parties, or, inform the City of the lack of agreement. 10. If there is agreement of the appropriate conditions, a list of those conditions shall be submitted to the Hearing Examiner no later than December 17, 2015. After a review of the record, and the appropriate law of Washington, the Examiner will issue an amendment to this decision. The amended decision will either include the agreed upon conditions: or if the patties are unable to reach an agreement, the Hearing Examiner will review each condition as set forth in Exhibit 11 to determine if it is to be a condition of the plat. DATED THIS 24th DAY OF November, 2015 Findings, Conclusions, and Decision Hearing Examiner The Ridge at Hansen Park, Div. I PP I 5-04/ PLN-2015-02833 page 10 of 10