Document Kennewick_doc_beb0a6e7fb

Files No. PP12-10 PLN 2012-04033 Hayward Pg. 1 BEFORE THE HEARING EXAMINER FOR CITY OF KENNEWICK In the Matter of the Application of ) No. FILE NO: PP 12-10 and PLN ) 2012-04033 Applicant: Trevor Hayward ) for Approval of a Preliminary Plat and ) FINDINGS, CONCLUSIONS, Appeal of a SEPA determination ) AND DECISION of a Mitigated Determination of ) ) SUMMARY OF DECISION 1) A preliminary plat (PP 12-10) for a 41 lot subdivision on 10.36 acres on the southeast corner of W. 10th Avenue and S. Morain Street, Kennewick, Washington is granted subject to the conditions as listed below. 2) The appeal of Condition 1 of the MDNS issued on April 11, 2013 is granted. The City has no authority to charge in-lieu of fees for park land dedication. 3) The appeal of Condition No. 2 of the MDNS issued on April 11, 2013 is denied. Condition 2 of the MDNS remains as written by the City. SUMMARY OF RECORD Request Trevor Hayward (Applicant), requested approval of a preliminary plat for a subdivision on a parcel approximately 10.36 acres. The property, which would be divided into 41 lots for single family homes, is located at Southeast corner of W. 10th Avenue and S. Morain Street in Kennewick, Washington (Parcel Nos. 110891000015000 and 110891000014000). 1 The owners of the properties are Gregory and Devnee Gadbois of Edmonds, Washington and Gadbois Cashen, LLC. In addition to the requested plat approval, the Applicant appealed the Mitigated Determination of Non-Significance for Environmental Determination (MDNS) #12-91 issued by the City pursuant to the State of Washington Environmental Policy Act (SEPA). Hearing Date: 1 The legal descriptions of the parcels in Benton County are: Legal Description: Parcel 110891000015000 – The West Half of the Northwest Quarter of the Northeast Quarter of Section 10, Township 8 North, Range 29 East, W.M., Benton County, Washington, North of the Kennewick Irrigation Canal; Except the East 145 Feet Thereof; Except the North 130 Feet of the East 108 Feet of the West 507 Feet Thereof; Except the West 27 Feet Thereof Lying Northerly of the Kennewick Irrigation District Canal; and Except the following described parcel: The West 266 Feet of the West Half of the Northwest Quarter of the Northeast Quarter of Said Section, Lying Northerly of the Kennewick Irrigation Canal except the North 645 Feet Thereof and Except the West 27 Feet Thereof. Parcel 110891000014000 – Section 10, Township 8 North, Range 29 East, W.M.: The North 130 Feet of the East 108 Feet of the West 507 Feet of the West Half of the Northwest Quarter of the Northeast Quarter, Except the North 30. ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 2 A hearing on the preliminary plat application and the SEPA appeal was held before a Hearing Examiner of the City of Kennewick on June 9, 2013. Testimony: At the open record hearing the following individuals presented testimony under oath: Wes Romine-Development Services Manager of City of Kennewick John Deskins-City of Kennewick Traffic Engineer Trevor Hayward-Applicant Exhibits: At the open record hearing the following exhibits were submitted and admitted as part of the record on this proceeding: A-1 Staff Report A-2 Application A-3 Notice of Application/Mailing List A-4 Vicinity Map A-5 Preliminary Plat Drawing A-6 Preliminary Grading Plan A-7 Street Utility Plan A-8 Traffic Impact Analysis A-9 Preliminary CC&Rs A-10 Revised SEPA Determination A-11 City Department Comments A-12 Outside Agency Comments A-13 Applicant’s SEPA Appeal Letter(s) A-14 Park Fee Determination Form Documents A-15 Pages from City Transportation System Plan A-16 PowerPoint Presentation A-17 Original DNS A-18 Applicant comments on original DNS A-19 SEPA appeal letter A-20 Applicant response to city staff report A-21 Applicant’s response to agency comment letters A-22 E-mails regarding extending city’s response to applicant’s comments A-23 Romine’s response to applicant’s rebuttal of conditions A-24 City Traffic Engineer’s comments to Applicant’s response. 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 (PP 12-10) for a 41 lot subdivision on 10.36 acres on the southeast corner of W. 10th Avenue and S. Morain Street, Kennewick, Washington. The parcel is zoned Residential Low Density (RL),a zone in which three and four units per acre are allowed on lots that are required to have a ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 3 minimum lot size of 7,500 square feet. The subdivision would include single family homes on lots that range in size from 7,515 square feet to 15,111 square feet with the average lot size being 9,153 square feet. Exhibit A-1. Staff Report, pg 3; Testimony of Mr. Romine; 2. The subject property was annexed into the City in July of 2008. At annexation Residential Suburban (RS) zoning designation was established (Ord. 5224). In September 2012 the designation was changed from RS to the current RL zoning (Ord. 5433). Exhibit A-1. Staff Report, pg. 3; Testimony of Mr. Romine 3. The surrounding land includes development of RS Residential Low Density (RL) and Residential Medium Density (RM) zoned properties. The zoning of each of the adjacent properties is: north-Residential Medium Density (RM-4); northwest- RL; west- RS; east- RL; and south-RS (south- across the KID Canal). These properties have been developed with various densities. The Kennewick Planning Staff indicated that the proposed development would be “harmonious” with the existing developments. Exhibit A-1. Staff Report, pg. 5; Testimony of Mr. Romine 4. The proposed preliminary plat area would ultimately be developed on two separate parcels: parcel No. 110891000015000 (3505 W. 10th Avenue is approximately 10.12 acres; parcel No. 110891000014000 (3407 W. 10th Avenue) is approximately .24 acres. The smaller parcel at 3407 W. 10th Avenue, at the northeast corner of the proposed plat, has an existing house that is scheduled to be demolished. In the submittals that were included with the application for the plat, the plat maps did not include the existing smaller parcel. The plans also did not depict the existing house to be a separate parcel that was not part of the preliminary plat area. Exhibit A-1. Staff Report, pg. 3; Testimony of Mr. Romine. At the hearing, the Applicant offered an explanation of the status of the two parcels and stated that the smaller one would ultimately be part of the one plat. Testimony of Mr. Hayward. However, the City requested that the plat be conditioned to require the existing house to be part of the preliminary plat, or that the Applicant apply for a short plat to create a separate parcel with utility connections. At the time of hearing the Applicant had not applied for a short plat or a boundary line adjustment to create the short plat parcel as shown on the preliminary plat drawing. Testimony of Mr. Romine 5. The Table of Residential Development Standards (KMC 18.12.010 A.2) includes the development standards for an RL zoning district. These standards include a minimum density standard of 3 units per acre and a maximum density standard of 4 units per acre. The proposed project would have 41 dwelling units that would be developed on 10.36 acres at a density of 3.96 dwelling units per acre, which is the allowed density range. The RL zoning district also requires a minimum lot size of 7,500 square feet. The smallest proposed lot would be 7,515 square feet. These standards are satisfied. Exhibit A-1. Staff Report, pg. 3; Exhibit A-5; Testimony of Mr. Romine ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 4 6. Pursuant to the Washington State Environmental Policy Act (SEPA) the City of Kennewick was designated as the lead agency for identifying environmental impacts that would result from the proposed development, and, for establishing mitigation of said impacts. (Title 43.21C. RCW). On April 11, 2013 the City issued a revised MDNS that was subject to conditions. The revised MDNS corrected a citation for the authority of the City to impose conditions as part of the MDNS.2 On April 30, 2013 the Applicant filed an appeal of conditions 1, 2 and 3 of the MDNS. Condition 1 addressed park fees in the amount of $36,430.46; condition 2 addressed street improvements on S. Morain Street at the point where South Morain abuts the proposed preliminary plat and specifically the required full width pavement on S. Morain for the first 100 feet south of West 10th Ave. in order to construct a left turn lane onto W. 10th; and condition 3 addressed traffic mitigation fees of $72,000. Exhibit A-1. Staff Report, pg. 3; Exhibit A-13; Testimony of Mr. Romine; Testimony of Mr. Hayward 7. On April 11, 2013, the Applicant appealed conditions 1 and 2 of the MDNS. Exhibit A-19 Condition 1 of the MDNS read (verbatim): 1. In lieu of dedication of park land, fees are to be paid to Park Planning Zone 5W-Frange in the amount of $36,430.46 Condition 2 of the MDNS read (verbatim): 2. Full width pavement on Morain Street for 100 feet south of W. 10th Avenue, and full street improvement including curb, gutter & sidewalk where the plat abuts S. Morain Street. Exhibit A-17 8. The Applicant’s appeal of conditions 1 and 2 of the revised MDNS was based on the following arguments: a) The City does not have the authority to require the conditions because the condition are not based on policies, plans, rules, or regulations formally designated by the City Council as required by WAC 197-11-660(1)(a). b) The transportation related requirements are not related to specific adverse environmental impacts clearly identified in an environmental document as required by WAC 197-11-660(1)(b). c) The City has failed in its burden of demonstrating that the conditions are reasonably necessary as a direct result of the proposed development or plat as required by RCW 82.02.020. Exhibit A-18 attachment letter; Testimony of Mr. Hayward 9. In the revised MDNS the City cited KMC 18.42.040 and KMC 4.08.420 as authority for imposing a SEPA condition “…to protect the health, safety and welfare or otherwise bring the proposed development into compliance with the purpose and intent of SEPA.”Exhibit A-10, pg.2. 2 The original MDNS incorrectly cited KMC 18.80.040(1) as the source of the City’s authority. The revised MDNS contained the corrected citation of KMC 18.42.040 and 4.08.420. ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 5 10. Pursuant to KMC 5.36.270, full street improvements for residential streets in the subdivision are required. These improvements must be constructed and be consistent with Kennewick Standard Detail 2-1, sheet 2 of 4. Exhibit 1 Staff report, pg. 4. The City determined that half street improvements on S. Morain Street are required subject to the City standard detail Drawing 2-2, sheet 2 of 2. A separate permit is required prior to construction from the City Department of Public Works for driveways, sidewalks, wheelchair ramps and utility extensions (water, sewer, street, storm drainage, street lights, fire hydrants, etc). Exhibit 1 Staff report, pg. 4; Testimony of Mr. Romine; Testimony of Mr. Deskins 11. The Applicant submitted a traffic study to evaluate the Level of Service (LOS)3 at the intersection of 10th Avenue and S. Morain Street and “to examiner safety with respect to sight distance and whether left turn or right turn lanes are needed to ensure safety at the key intersection”. Exhibit A-8 Traffic Impact Pg. 4. The study, which was based on straight line average that would be depicted on a graph, projected that the project would generate 402 average weekday vehicle trips per day with 42 trips occurring during the PM peak hour. Exhibit A-8 Traffic Impact Analysis However, in its review of the traffic in the area the City Traffic Engineer used the best fit curve for traffic projections. 4Exhibit A-1. Staff Report, pg. 3; Testimony of Mr. Romine 12. The traffic volumes identified in the Applicant’s Traffic Impact Analysis provided statistics from the City’s Traffic Volume Map for traffic volumes west and east of Morain Street. The data showed average daily volume to be 13,549 vehicle trips travelling east and 12,936 trips travelling west. The volumes on Morain Street north of 10th Avenue were 2.177 vehicular trips. Also identified in the Traffic Analysis were the left turns onto S. Morain for traffic travelling west on 10th Avenue during peak hours. Exhibit A-8, pgs. 8 and 9. The LOS for the southbound and northbound traffic on S. Morain at the 10th Avenue intersection was identified as LOS level C. Exhibit A-8, pg. 10 13. Identified traffic impacts of the development included increased left turns that may result in a decreased LOS, increased delays, and increased rear-end, sideswipe and right-angle type crashes. Based on these impacts the City submitted that roadway improvements of a left turn lane are to be made at the intersection of W. 10th and S. Morain. These improvements would be consistent with the City’s long range traffic improvement as established in the City’s Transportation Plan.5 The Appellant’s contribution as mitigation of these traffic impacts at the intersections of W. 10th Avenue and W. Morain Street is $72,000. Exhibit 1 Staff report, pg. 4; Exhibit 4-9, page 4-18, and on page 4-21. 3 Level of Service is a means of quantitatively describing the quality of operation conditions of a roadway segment or intersection and the perception by motorists and passengers. Exhibit A-8 Traffic Impact Pg. 4. 4 A curve or line that comes most closely to following a set of data points plotted on a chart. Best fit curves and lines are used in technical analysis to find trends. 5 City of Kennewick Transportation Plan, exhibit 4-9, page 4-18, and on page 4-21. ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 6 14. Residential developments served by a single city standard street over six hundred feet long must have a second “city standard street. (KMC 17.20.010(2)(c)(i)). While the Applicant’s preliminary plat drawing shows a second city standard street at the northeast corner of the plat, the City’s traffic engineer determined that this location may only be used for an emergency access that is to be gated with a Knox lock or a lock for fire access only. The basis of the City’s determination of the emergency access included a review of the driveway spacing standards of Kennewick Administrative Code (KAC) 13-56-120. Exhibit A-11, pg. 7 15. KMC 5.56.070(1) establishes that “No building permit will be issued for any new construction, moved-in structure or substantial alteration of an existing structure, unless street right-of-way adjacent to the property meets minimum City standards”. Using this ordinance as authority, the City staff submitted that “it is typical for the Public Works Department to require half street improvements where substandard streets abut a new development as part of the Civil Permit for streets and utilities” Exhibit A-1, pg. 7 16. The key fact considered by the City in its determination of what street improvements were required was that existing S. Morain Street is currently not improved to City standards and has no curb, gutter or sidewalk. Exhibit A-1, pg. 7; Testimony of Mr. Romine. Relying on City of Kennewick Traffic Engineering Division memos, the City, as a condition in the MDNS, required the Applicant to provide a functional intersection approach from S. Morain Street onto W. 10th Avenue. The improvements would include a full width pavement on Morain Street for 100 feet south of W. 10thAvenue, and full half street improvements including curb, gutter and sidewalk at the point where the plat fronts S. Morain. Exhibit 10, pg. 3, Exhibit A-1, pg. 7; Exhibit A-11., pgs. 3-6. The Applicant claimed that the City’s conditions for right-of-way dedication or fees in lieu of are not justified by the laws of the City. He claimed that the City had no specific authority to impose such a condition either in permit review or SEPA review. Testimony of Mr. Hayward; Exhibits A-20 and 21. 17. The City Traffic Engineer provided the reasons for the MDNS conditions relating to street improvements. The conditions were based on traffic volumes generated by similar types of development, the general traffic data generated by those developments, the current ITE6 Trip Generation Manual, traffic flow and safety, the proximately to the intersection that adjoins property access, and the policies of the KAC Chapter 13-46 “Highway Access Management”. Exhibit A-11, pg. 3; Testimony of Mr. Deskins. More specific justification of the City’s road improvement requirements of the instant plat was submitted in the City Traffic Engineer’s post-hearing comments that addressed the Applicant’s opposition to any conditions requiring traffic improvements or fees, other than those fronting the property on S. Morain. In his post hearing comments the Traffic Engineer submitted: “a new 42 unit subdivision producing 48 pm peak hour trips and 437 daily trips (per the 9th Edition of the Institute of Transportation Engineers Trip Generation 6 International Transportation Engineering ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 7 Manual) is the type of change that would likely produce an increase in the number of crashes at this intersection. The lack of a dedicated left-turn lane is one of the key factors in that assessment since left-turns from through travel lanes tend to be the primary cause of rear-end crashes in this segment”. Exhibit A-24. The comments of the City’s Traffic Engineer are consistent with his earlier comments that widening Morain Street for 100 feet south of W. 10th Avenue was based on the “…need to provide a functional intersection approach of adequate width to serve a subdivision of this size” and that right-of way dedication along 10th Avenue, or the proportionate share of the cost of intersection improvements in the amount of $72,000.00, would mitigate impacts to the intersection of W. 10th Avenue and S. Morain Street. The intersection improvement is defined in the City of Kennewick’s Transportation Plan. Exhibit A-11, pg. 3; Exhibit A-10 pg. 3; Testimony of Mr. Deskins. 18. The Applicant claimed that the City’s conditions for right-of-way dedication or fees in lieu-of are not justified by the laws of the City. He claimed that the City had no specific authority to impose such a condition either in permit review or SEPA review. Testimony of Mr. Hayward; Exhibits A-20 and 21. He also argued in his post hearing comments that the proposed development would add between 42 and 46 trips to an intersection that currently accommodates more than 1223 trips per PM Peak Hour. Half of those trips would be right-in and right-out trips that would have very little impact on the traffic flow. In addressing the left-turn off 10th Avenue, the Applicant relied on his consultant’s Traffic Analysis (Exhibit 8-A). He argued that vehicular trips would use the left turn lane off W. 10th Avenue (if built) only a minimal amount of drivers would use the left-turn lane on 1oth Avenue onto Morain St. (if built). He concluded that the City is requiring fees and improvements that exceed 20% of the cost to improve the entire intersection. Even if it were appropriate to require mitigation, the proposed mitigation in this case would be grossly disproportionate to the impact.” Testimony of Mr. Hayward; Exhibits A-20 and 21 19. The Applicant testified that the existing daily traffic off 10th onto S. Morain is approximately 370 vehicular trips and that only twenty three accidents have occurred at the intersection in the past nine year. Exhibit A-8, pg, 7-tables 1 and 2. He contended that the LOS is currently C level and at the time of full buildout it would be LOS D. He objected to the conditions for intersection improvements stating that the improvements are not necessary. Testimony of Mr. Hayward 20. The Applicant’s Traffic Analysis reached a conclusion that 10th Avenue “does not need left turn lanes for capacity purposes.” Exhibit A-8, pg. 14. However, the Analysis authors acknowledged that “…future traffic increases along 10th Avenue may generate the need for a left turn lane at the intersection or a two-way turn lane along the 10th Avenue corridor.” Further, they recommended that the Applicant work with the City to preserve the ability for the City to acquire the property needed for future widening of 10th Avenue to accommodate a two-way left turn lane that may be constructed in the future. Exhibit A-8, pg. 15. The recommendation did not provide specifics. Exhibit A-8 ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 8 21. An existing 8-inch waterline on the west side of Morain Street can be used for water service connection. A 10-inch concrete sanitary sewer line is also available on S. Morain Street. The Applicant and his successors would be required to protect existing sewer and water lines at the time of connections. Exhibit 1 Staff report, pg. 4;Exhibit A-11, pg. 1 22. Based on information provided the City by Benton County, the existing house on the subject property has a septic system that is not connected to City sewer. If said property is to be part of the approved plat the existing house will be required to be connected to City sewer. This requirement is dictated in part because of minimum land area standards. Exhibit1, Staff report, pg-3; Testimony of Mr. Romine. In response the Applicant contended that it would be costly to connect to the City sewer in W. 10th Avenue. As an alternative, he proposed to provide a septic system easement on adjacent property or future street right of way until the time that a cul-de-sac street with utilities to the south is constructed. The City’s countered that the Applicant’s proposal would be “…problematic to encumber City right of way or adjacent property with an easement”. Exhibit 1 Staff Report, pg. 4 23. City stormwater standards mandate that residential subdivisions be designed to retain and dispose of a 25-year, 24 hour event for the areas that are to be developed and to retain and dispose of a 10-year 24-hour event for those areas that remain in the natural state. The City submitted that prior to Final Plat approval the Applicant must submit to the City’s Public Works Department detailed civil engineering drawings for review and approval. The plans must include a stormwater plan that satisfies City standards. In addition, a comprehensive storm plan must be approved by the City prior to approval of any civil construction plans. Exhibit 1 Staff report, pg. 4; Testimony of Mr. Romine 24. The Washington Department of Ecology (DOE) submitted comments to the City regarding the proposed plat. Because of the history of the land being used for orchard purposes there is a possibility that the soil contains residual concentrations of pesticides. The DOE commented that the soils should be sampled and analyzed for lead, arsenic and organochlorine pesticides. If any of these contaminants exceed the acceptable levels that are established in the Model Toxic Control Act, purchasers of lots of the subdivision are to be notified and a note stating such is to be added to the face of the final plat. Exhibit A-12; Testimony of Mr. Romine. 25. While KMC 17.100.010(2) establishes consequences for lack of inadequate recreational facilities for residents in a proposed subdivision, it also provides that alternative measures can be agreed to: “In the event that the property proposed to be subdivided is insufficient in size to provide for adequate recreational facilities for the residents in the proposed division and the area has been determined to have inadequate park facilities, the division will, in most cases, be disapproved, unless other measures which will reasonably protect the public’s need for adequate recreational areas can be agreed upon between the subdivider and the City”. ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 9 As an alternative measure, KMC 17.100.010(1) establishes a requirement for dedication of park lands as part of the review of plats in Kennewick: The City will require dedication of land for park purposes as a condition of approval for any division or redivision that will be used for residential purposes”. (emphasis added). Testimony of Mr. Romine; cited ordinances 26. As authority for imposing park fees, the City used a 1994 study to determine the amount of the park fees in-lieu of dedication. The park fees for the proposed preliminary plat were calculated with use of a City’s park fee determination form, which used by the City for the amount of land required to be dedicated or the amount of “in-lieu of land dedication fees” that could be paid instead of dedication of land. However, there is no specific ordinance that gives the City authority to impose in-lieu fees.7 Exhibit A-1. Pg. 7; Testimony of Mr. Romine 27. In its review the City staff considered the City’s Comprehensive Plan and how the proposed phased development will be implemented to satisfy the goals and policies of Plan. In doing so the staff considered the following elements of the Plan: a) URBAN AREA POLICY 3 which requires the proposal “Promote new growth consistent with the Comprehensive Land Use Map, the Capital Facilities Plan and the Capital Improvement Plan”. The proposed project, which will provide single-Family housing, is a permitted use within RL zone. The subject property will be served by City utilities. Urban Policy 3 is satisfied. b) RESIDENTIAL GOAL 1 requires that the design of new residential developments to be compatible with adjacent residential areas”. The proposed Preliminary Plat, as conditioned, is consistent with the Comprehensive Plan Land Use and development standards for Residential Low Density (RL) zoning. c) RESIDENTIAL GOAL 4: encourages residential development only in urban areas where services can be provided”. City of Kennewick water and sewer are currently available to the site at the end of Honeysuckle Street and with future half street improvements on Ridgeline Drive. As conditioned water and sewer is available to the preliminary plat area. d) RESIDENTIAL GOAL 3: “Promote a variety of residential densities with a minimum density target of 3 units per acre as averaged throughout the urban area.” The proposed Preliminary Plat has a density of 3.96 units per acre e) RESIDENTIAL Policy 3: requires the incorporation of residential design standards in new residential developments. The proposed plat will be 7 Notwithstanding the lack of an ordinance or statute as authority, the City established that a specific impact per lot and a provision that the park dedication fee should be changed to set the land value equal to the fair market value of the land after the subdivision improvements. Because there is no authority to impose the in lieu-of fee no findings on the City’s method of calculating are made. ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 10 approved subject to conditions comply with the City’s single family residential design standards f) RESIDENTIAL POLICY 5: requires developments that “Provide provisions for parks, schools, drainage, transit, water, sanitation, infrastructure, pedestrian, and aesthetic considerations in new residential developments”. According to City staff the proposed Preliminary Plat provides these provisions. g) HOUSING GOAL 1:“Support and develop a variety of housing types and densities to meet the diverse needs of the population.” The project contains single family housing in a medium price range. Exhibit A-1, pgs. 6-7; Exhibits A-2; A-18; Testimony of Mr. Romine 28. The Applicant addressed schools and the City reviewed the design of the plat and the location of the nearest schools. In a March 14, 2013 memo from Doug Carl the Kennewick School District, the schools that will serve the subdivision were identified. They are: Lincoln Elementary School, Highlands Hills Middle School, and Southridge High School. Highland Middle School is in a walking zone and the proposed preliminary plat is in a bussing zone for Lincoln Elementary School and Southridge High School. . Highland Middle School is located southeast of W. 4th Avenue and S. Union Street; approximately .15 miles from the project site. All new residential streets within the subdivision and S. Morain Street where it abuts the subdivision will be required to have 5-foot wide sidewalks. S. Morain Street leads to W. 10th Avenue & S. Union Street which currently has sidewalks. Exhibit A-1, pg. 5; Testimony of Mr. Romine; Exhibit A- 12 CONCLUSIONS I. 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. II. Criteria for Review of Preliminary Plats and modifications: 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 which are: 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, ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 11 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. KMC 18.45.040 allows deviations from certain development standards in the City of Kennewick if the following Findings are applicable to the request and are made: Findings: A Planned Development Permit may be approved only when the following findings are made: a) The planned development generally conforms to the Comprehensive Plan and zoning district for use, density, open space, circulation, public facilities, and the standards of development set forth therein; b) The planned development generally conforms with the zoning district uses; c) The planned development forms an integrated whole of sufficient unity to justify exceptions to the normal regulations of the Kennewick Municipal Code; and d) The residential development will produce a desirable and stable residential environment in harmony with the surrounding property; or e) The Commercial development will have proper traffic circulation and parking and should have no adverse effects upon surrounding property; or f) The industrial development conforms with the applicable performance standards, railroad or truck access and necessary storage, and should have no adverse effects upon surrounding property. III.Criteria for review of SEPA appeals: WAC 197-11-660 (relevant sections) Substantive authority and mitigation. Any governmental action on public or private proposals that are not exempt may be conditioned or denied under SEPA to mitigate the environmental impact subject to the following limitations: Mitigation measures or denials shall be based on policies, plans, rules, or regulations formally designated by the agency (or appropriate legislative body, in the case of local government) as a basis for the exercise of substantive authority and in effect when the DNS or DEIS is issued. Mitigation measures shall be related to specific, adverse environmental impacts clearly identified in an environmental document on the proposal and shall be stated in writing by ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 12 the decision maker. The decision maker shall cite the agency SEPA policy that is the basis of any condition or denial under this chapter (for proposals of applicants). After its decision, each agency shall make available to the public a document that states the decision. The document shall state the mitigation measures, if any, that will be implemented as part of the decision, including any monitoring of environmental impacts. Such a document may be the license itself, or may be combined with other agency documents, or may reference relevant portions of environmental documents. Mitigation measures shall be reasonable and capable of being accomplished. Responsibility for implementing mitigation measures may be imposed upon an applicant only to the extent attributable to the identified adverse impacts of its proposal. Decision makers should judge whether possible mitigation measures are likely to protect or enhance environmental quality. (3)Agencies shall prepare a document that contains agency SEPA policies (WAC 197-11-902), so that applicants and members of the public know what these policies are. This document shall include, or reference by citation, the regulations, plans, or codes formally designated under this section and RCW 43.21C.060 as possible bases for conditioning or denying proposals. If only a portion of a regulation, plan, or code is designated, the document shall identify that portion. This document (and any documents referenced in it) shall be readily available to the public and shall be available to applicants prior to preparing a draft EIS. IV. Authority pursuant to KMC to impose MDNS conditions KMC 4.08.420 (relevant sections) The City may attach reasonable, written conditions to any license if the conditions are necessary to mitigate specific, probable, significant, adverse environmental impacts and based on one or mare policies in subsection below: The following are the basis for exercising authority: ii. provide a safe, healthful, productive, and aesthetically and culturally pleasing environment. vi. achieve a balance between population and resources permitting high standards of living and a sharing of life amenities. KMC 18.42.040(2) The Planning Director may impose any condition he finds warranted in accord with SEPA, RCW 43.21.C. These conditions may be as a result or in lieu of an Environmental Impact Statement. Conclusions based on Findings 1. The Applicant requested approval of a Preliminary Plat (PP 12-10) for a 41 lot subdivision on 10.36 acres on the southeast corner of W. 10th Avenue and S. Morain Street, Kennewick, Washington. The parcel is zoned Residential Low Density (RL), which allows between three and four units per acre on lots that are required to be a minimum lot size of 7,500 square feet. The subdivision would include single family homes on lots that range in size from 7,515 square feet to 15,111 square feet with the ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 13 average lot size being 9,153 square feet. Finding of Fact No. 1. The Applicant also appealed conditions 1, 2 and 3 of the MDNS issued for the project. Finding of Fact No.7 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. 5, 10-28 3. The proposed plat has been reviewed by the City and other agencies. With compliance with the listed conditions as set forth in the decision of this document, it will be in conformance with the City of Kennewick Comprehensive Plan (Finding of Fact No. 29), comprehensive water plan (Findings of Fact Nos. 20 and. 22), utilities plan, and Comprehensive Park and Recreation Plan, and all relevant requirements to the approval of the plat. Findings of Fact Nos.5, 10-28 4. Two sections of ordinances of the Kennewick Municipal Code establish the authority of the City to apply conditions as part of the MDNS. Finding No. 9. The City has authority to impose conditions on the plat to create a safe, healthful, productive, and aesthetically and culturally pleasing environment” (KMC 4.08.420 . As the means of implementing this authority, KMC 18.42.040(2) establishes authority for the Planning Direction to impose any condition he {the Planning Director} finds warranted in accord with SEPA”. 5. Condition 1 of the MDNS, which addressed parks and recreation, relates to a “healthful” and “safe” environment. Condition 2, which addressed transportation issues, relates to a “safe” environment. Both conditions were within the scope of KMC 4.08.020 and are part of the purpose of SEPA to stimulate the health and welfare of the public.RCW 43.21C.01(C). Clearly the Planning Director has the authority to impose the conditions as part of the MDNS. The Applicant’s first argument for appeal fails. 6. A land use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land." Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). 7. In Nollan vs. California Coastal Commission, 483 U.S. 825, 107Ct. 3141, 97 L.Ed.2d 677 (1987), the United States Supreme Court held that a reviewing body of government must determine whether a “essential nexus” exists between the “legitimate state interest” and the permit condition being imposed by the government. 483 U.S. at 837. Applying this legal principle to the instant case there ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 14 is a legitimate state interest in providing road improvements to the intersection of S. Morain and 10th Avenue. The City’s interest is to have safe streets and part of that interest is implemented with left turn lanes. The Kennewick Administrative Code (KAC) 13-46-060(iv) provides that turn lanes for driveways will normally be required when “(iv) the Traffic Engineer can document, through traffic analysis, that such treatment is necessary to avoid congestion and/or unsafe conditions on the public thoroughfare”.8 The Traffic Engineer has made such analysis and determined that the traffic and crash history warrant left turn improvements. Finding of Fact No. 15 8. In 1994 the Supreme Court held that even if a nexus exists, the required degree of connection between the conditions and the impact of the development must be proven. Dolan v. City of Tigard, 510 US 374, 114 S. Ct. 2309, 129 L.Ed.2nd 204. The City of Kennewick has established a nexus between a legitimate state and city interest of safety on the streets and has imposed a condition for approval of intersection improvements at Morain and 10th Ave. and the construction of a left turn lane off 10th Avenue. The improvements required by the City are reasonable and connected to the impact caused by the proposed development. There will be 437 new trips generated by the Applicant’s development and these trips will use the intersection. While the traffic at the intersection meets the LOS D standard, which is acceptable in the City, the intersection and the increased traffic has potential safety. The City Traffic Engineer has identified left–turn from through travel lanes as the primary cause of rear-end crashes in this intersection. The testimony and documents of the City Traffic Engineers provided evidence that the City has met its burden to show that the condition for improvements to the entire street to the intersection, including the turning left-turn lane on 10th, are reasonable and connected to the development of the plat. Findings of Fact No. 17. 9. In addition to the Nollan-Dolan tests being satisfied, the SEPA condition for the road improvements, including those improvements at the intersection, is consistent with the legislative declaration of the Washington legislature at the time of enactment of SEPA. (see: RCW 43.21C.010(2). Two of the declarations set forth in the statute are: b) Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings; and c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety or, or other undesirable and unintended consequences. (emphasis added) In Kucera v. Department of Transportation, 140 Wn.2d 200, 213-214 the Washington Supreme Court stated: SEPA recognizes the broad policy "that each person has a fundamental and inalienable right to a healthful environment . . . RCW 43.210.020(3). State 8 Cited on pg. 13 of Applicant’s Traffic Analysis, Exhibit A-8 ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 15 agencies are required to use "all practicable means" to achieve the following goals: a) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; Assure for all people of Washington safe, healthful, productive and aesthetically and culturally pleasing surroundings; Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or 0ther undesirable and unintended consequences The conditions for road improvements are consistent with SEPA. Findings of Fact Nos. 9, 10, 13, 17 and 20 10. KMC 4.08.420 allows the City to attach reasonable conditions to the Plat that are necessary to mitigate impacts. The imposition of the conditions of SEPA for road improvements is based on the need for a safe environment. Nos. 9, 10, 13, 17 and 20 11. The Applicant is correct in his argument that the City cannot require fees in lieu of dedication of land for park purposes. However KMC 17.100.010 mandates that the City “will” require the dedication of land for park purposes as a condition of approval for any division that will be used for residential purposes. Findings of Fact Nos. 25 and 26. 12. As required by KMC 17.20.010(2)(c)(i) a second standard street must be designed and approved prior to final plat approval. Finding of Fact No. 14 13. The mitigation measures are based on policies, plans, rules, or regulations of the City of Kennewick. 14. 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. Findings of Fact Nos. 5, 10-28 DECISION Based on the above stated Findings and Conclusions and the administrative record developed in this matter, it is hereby ordered: ---PAGE BREAK--- Files No. PP12-10 PLN 2012-04033 Hayward Pg. 16 1) A preliminary plat (PP 12-10) for a 41 lot subdivision on 10.36 acres on the southeast corner of W. 10th Avenue and S. Morain Street, Kennewick, Washington, is granted subject to the conditions as listed below. 2) The appeal of Condition 1 of the MDNS issued on April 11, 2013 is granted. The City has no authority to charge in-lieu of fees for park land dedication. 3) The appeal of Condition No. 2 of the MDNS issued on April 11, 2013 is denied. The Conditions remains as written by the City. The following conditions require compliance by the “Applicant”. However, approval of the plat and conditions apply to the Applicant, the owner of the property, the developer of the property and all of their successors in interest. 1. The Applicant shall comply with City of Kennewick regulatory controls, policies and codes, including the Single-family Residential Design Standards. 2. The Applicant shall pay all fees required by the City shall be paid prior to the approval of the final plat. 3. The Applicant shall construct residential streets per City of Kennewick Standard Detail 2-1, sheet 2 of 4, and S. Morain Street per City Standard Detail 2-2, sheet 2 of 2. 4. All development of the plat shall be in conformance with the plat drawing dated March 6, 2013, (Exhibit A-5) with the following exceptions. A. The Applicant shall provide a 10-foot wide tract of land along the W. 10th Avenue and S. Morain Street frontages for landscaping to comply with arterial street landscape requirements in the Residential Design Standards. B. The final plat drawing shall show the 2 parcels in the preliminary plat area as they currently exist unless a short plat is processed prior to final plat application. 5. The Applicant shall submit a landscape plan for approval for any common areas, including Arterial Streetscaping and Arterial street fencing. The landscape plan shall be prepared by a licensed landscape architect or licensed landscape installer drawn to a legible scale with sizes and species of plants. Landscaping is required to be installed or bonded for prior to final plat of the phase it is to be developed. 6. The Applicant shall execute a written agreement to the satisfaction of the City Attorney which will allow the City to make arrangements for maintenance of any common areas, open spaces, private roads, and landscape areas (including streetscape on W. 10th Avenue & S. Morain) should the Homeowner’s Association fail or refuse to maintain these areas. 7. All landscaped areas to be irrigated with an automatic sprinkler system or drip irrigation system. Xeriscape landscaping is encouraged. 8. The Applicant shall comply with the Public Works memorandum dated January 28, 2013 (Exhibit A-11). ---PAGE BREAK---