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Home My WebLink About2015-022 "Mission Uses" Definition; YMC Amendment 15.04.030 ORDINANCE NO. 2015 -022 AN ORDINANCE relating to land use; amending Section 15.02.020 of the Yakima Municipal Code to add definition of mission use, and amending Table 4 -1 of Section 15.04.030 of the Yakima Municipal Code designating such use as a Class (2) use only within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima. WHEREAS, the City Council has previously adopted ordinances establishing zoning districts within the City of Yakima, defining certain land uses, and designating such uses within the zoning districts, all as codified in Title 15 of the Yakima Municipal Code (YMC); and WHEREAS, the City Council previously adopted Ordinance No. 2014 -027 implementing a moratorium on the acceptance of applications for, processing and issuance of, land use approvals and permits for "mission uses" within the SCC Small Convenience Center zoning district pending adoption of a comprehensive regulation governing such uses; and WHEREAS, the Planning Commission of the City of Yakima has conducted meetings and a public hearing on March 25, 2015 pursuant to notice, and after consideration of all comments, evidence and testimony presented has presented a recommendation, supported by appropriate findings of fact and conclusions of law adopted April 8, 2015, to the City Council; and WHEREAS, the City Council held a public hearing on May 19, 2015 to receive and consider the recommendation of the Planning Commission, and after receiving public comment and testimony, remanded the recommendation to the Planning Commission to consider whether new mission uses should be considered Class (3) uses in the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima; and WHEREAS, the Planning Commission has held a study session and conducted a public hearing on June 24, 2015 concerning such issues, and having considered all evidence and testimony presented, has adopted Findings of Fact, Conclusions and Recommendation; and WHEREAS, the City Council has received the recommendation of the Planning Commission and has conducted a public hearing on July 21, 2015 pursuant to notice duly published to consider such recommendation; and WHEREAS, the recommendation of the Planning Commission supports the amendment of YMC 15.02.020 to add a definition of "mission" use, and to amend Table 4 -1 of YMC 15.04.030 to allow such use as a Class (2) use only within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima, but requiring that new mission uses within such zoning districts shall 1 be subject to a Type (3) review with a development agreement incorporating applicable development standards and mitigations imposed by the hearing examiner; and further that any modification of an existing mission use shall be subject to the modification procedures and provisions of Chapter 15.17 YMC; provided, that any proposed modification that does not meet the criteria in YMC 15.17.040 for administrative review and approval shall be subject to a Type (3) review with a development agreement incorporating applicable development standards and mitigations imposed by the hearing examiner; and WHEREAS, the City Council finds and determines that such recommendation is supported by previous interpretations of record by the hearing examiner as set forth in In re: Union Gospel Mission, City No. UAZO - Interp. No. 1 -92, Examiner No. 192 -5 -2 (Lamb, Feb. 27, 1992); and In re: Modification of Interpretation, Union Gospel Mission, Interpretation No. 2 -95, Examiner No. 195 -5 -27 (Lamb, June 9, 1995); and WHEREAS, the City Council finds and determines that YMC 15.02.020 should be amended to add a definition of "mission" use consistent with the definition previously formulated by the hearing examiner, and that Table 4 -1 of YMC 15.04.030 should be amended to allow such use as a Class (2) use with a Type (3) review as described above, and with an approved development agreement within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima; and WHEREAS, the City Council finds and determines that the amendments described above are in the best interest of residents of the City of Yakima and will promote the general health, safety and welfare; now, therefore BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. The recommendation of the City of Yakima Planning Commission as described above is received, together with the Planning Commission's Findings of Fact and Conclusions of Law in support thereof, which Findings of Fact and Conclusions of Law are hereby adopted by the City Council. Section 2. YMC 15.04.020 is hereby amended to add a definition of land use for "mission" use to read as follows: "Mission" means a facility typically owned or operated by a public agency or non- profit corporation, providing a variety of services for the disadvantaged, typically including but not limited to temporary housing for the homeless, dining facilities, health and counseling activities, whether or not of a spiritual nature, with such services being generally provided to the public at large. Mission uses shall be Class (2) uses within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts as set forth in Table 4 -1, YMC 15.04.030, and subject to a Type (3) review as set forth in Chapter 15.15 YMC with a development agreement incorporating applicable development standards 2 and mitigations imposed by the hearing examiner. Effective as and from August 24, 2015, any modification of an existing mission use shall be subject to the modification procedures and provisions of Chapter 15.17 YMC; provided, that any proposed modification that does not meet the criteria in YMC 15.17.040 for administrative review and approval shall be subject to a Type (3) review with a development agreement incorporating applicable development standards and mitigations imposed by the hearing examiner. Section 3. Table 4 -1 of YMC 15.04.030 ( "Health and Social Service Facility" component) is hereby amended to provide that mission uses are Class (2) uses only within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts within the City of Yakima, and not allowed within any other zoning districts, and subject to Type (3) review with a development agreement, all as set forth in Exhibit "A" attached hereto and incorporated herein by this reference, and with such changes shown in legislative format as set forth in Exhibit "B" attached hereto and incorporated herein by this reference. Section 4. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 4 day of August, 2015. .94* ATTEST: — " �% Micah awleVMayor X11 f �l i/ f ID L`J� � 3' s onya Cla. r ` ee, City Clerk *\ V , tO Publication Date: August 7, 2015 Effective Date:August 6, 2015 3 EXHIBIT "A" (Table 4 -1, YMC 15.04.030) Table 4 -1 Permitted Land Uses ( "Health and Social Service Facility" Component) R- R- R- B- B- M- M- SR 1 2 3 1 2 HB SCC LCC AS GC CBD RD 1 2 HEALTH AND SOCIAL SERVICE FACILITY Group Homes (six or fewer), 1 1 1 1 1 1 1 1 Adult Family Home ( *) Treatment Centers For Drug 3 3 3 3 3 3 3 3 and Alcohol Rehabilitation Boarding House ( *) 3 3 3 3 3 1 2 Halfway House ( *) 2 3 3 Group Homes (more than six), 3 2 2 2 3 3 Convalescent and Nursing Homes ( *) Mission ( *) (with Type (3) 2 2 2 review, and development agreement — see definition) NOTES: * Refers to definition in YMC Chapter 15.02 1 = Type (1) Permitted Home Occupation 4 2 = Type (2) Review and Approval by the Administrative Official Required 3 = Type (3) Review Public Hearing and Approval by the Hearing Examiner Required [ ] = Not Permitted EXHIBIT "B" (Table 4 -1, YMC 15.04.030 — Changes shown in legislative format) Table 4 -1 Permitted Land Uses ( "Health and Social Service Facility" Component) R- R- R- B- B- M- M- SR 1 2 3 1 2 HB SCC LCC AS GC CBD RD 1 2 HEALTH AND SOCIAL SERVICE FACILITY Group Homes (six or fewer), 1 1 1 1 1 1 1 1 Adult Family Home ( *) Treatment Centers For Drug 3 3 3 3 3 3 3 3 and Alcohol Rehabilitation Boarding House ( *) 3 3 3 3 3 1 2 Halfway House ( *) 2 3 3 Group Homes (more than six), 3 2 2 2 3 3 Convalescent and Nursing Homes ( *) Mission ( *) (with Type (3) 2 2 2 review, and development agreement — see definition) NOTES: * Refers to definition in YMC Chapter 15.02 1 = Type (1) Permitted Home Occupation 5 2 = Type (2) Review and Approval by the Administrative Official Required 3 = Type (3) Review Public Hearing and Approval by the Hearing Examiner Required [ ] = Not Permitted 6 1' t BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 9. For Meeting of: August 4, 2015 ITEM TITLE: Ordinance regarding the Yakima Planning Commission's recommendation related to the City Council's remand of the use and definition for "Mission" in the GC, CBD, and M -1 zoning districts SUBMITTED BY: Joan Davenport, AICP Community Development Director Jeff Peters, Supervising Planner (509) 575 -6163 SUMMARY EXPLANATION: On May 19, 2015, in an open record public hearing, the Yakima City Council considered the Yakima Planning Commission's recommendation to incorporate a new use and definition for "Mission" into the City of Yakima's Municipal Code. Foll o: =wing significant public testimony, the Yakima City Council voted to remand the ordinance and recommendation back to the Planning Commission to provide for more public input and involvement from property owners along N. 1st Street, and consideration of increasing the level of review of a "Mission" use from a Type (2) Review without a public hearing to a Type 3 Review with a public hearing and development agreement. As requested, the City of Yakima Planning Commission conducted two public study sessions on May 27, June 10, and a public hearing on June 24, 2015, to consider the issues. On July 21, 2015, the Yakima City Council held and closed the required public hearing considering the Planning Commission's remand recommendation defining a "Mission" use. During the City Council's discussion of the item at its regular meeting on July 21, 2015, questions were raised regarding why the proposed mission use would be proposed as a Class (2) use as opposed to a Class (3) use. The answer is that, under provisions of the federal Fair Housing Act, a city may face a challenge of discrimination against persons protected by the act if such persons are denied housing based on their physical or mental impairment status, or subjected to additional procedural hurdles not required for other residential uses in the zoning district. A request was made for additional legal research regarding application of the fair housing laws. Attached is a legal opini on this matter from the City Attorney's Office. Given this response, the matter has been rescheduled for August 4, 2015, rather than waiting until September 1, 2015. Now the Yakima City Council is being requested to consider adoption of the accompanying ordinance incorporating a "mission" use into the City of Yakima's Municipal Code. Resolution: Ordinance: X Other (Specify): Contract: Contract Term: Start Date: End Date: Item Budgeted: Amount: Funding Source/Fiscal Impact: Strategic Priority: Improve the Built Environment Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: City Manager RECOMMENDATION: The City of Yakima Planning Division recommends that the Yakima City Council consider the Planning Commission's recommendation, and adopt the draft ordinance incorporating the definition and use of a "mission" into the City of Yakima's Municipal Code. ATTACHMENTS: Description Upload Date Type ❑ memo 712 912 01 5 CoverMemo ❑ articles 7/29/2015 CoverMemo ❑ P roposed Ordinance_Mission R em and-T XT #001-15 7/9/2015 Ordinance ❑ Com plete Record - Mission Remand 7/9/2015 Backup Material CITY OF YAKIMA LEGAL DEPARTMENT a 0SaihT mdsatYai .wt igt cmo iw MEMORANDUM July 23, 2015 TO: Honorable Mayor and City Council Tony O'Rourke, City Manager FROM: Mark Kunkler, Senior Assistant City Attorney SUBJECT: Fair Housing Act — Mission Uses — Vesting A. Introduction. The Yakima Planning Commission recently presented to the City Council a recommendation regarding "Mission" uses. The Planning Commission, after conducting a number of study sessions and public hearing, recommended adoption of an ordinance amending Title 15 YMC to (a) adopt a definition of "mission," (b) amend Table 4 -1 to allow mission uses as Class (2) uses (with Type (3) hearing — which requires a public hearing) and a separate "development agreement" between the developer and the City. The proposed amendment further provided that such mission uses would only be allowed in the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts. During the City Council's discussion of the item at its regular meeting on July 21, 2015, questions were raised regarding why the proposed mission use would be proposed as a Class (2) use as opposed to a Class (3) use. The answer is that, under provisions of the federal Fair Housing Act, a city may face a challenge of discrimination against persons protected by the act if such persons are denied housing based on their handicapped status, or subjected to additional procedural hurdles not required for other residential uses in the zoning district. A request was made for additional legal research regarding application of the fair housing laws. B. Applicable Laws. Both state and federal laws have been enacted to prevent discrimination against individuals with disabilities with regard to housing. In an excellent article by Ted H. Memorandum to Honorable Mayor and Members of the City Council Page 2 Gathe, City Attorney for the City of Vancouver, entitled "Regulating Group Homes in the Twenty First Century: The Limits of Municipal Authority" (April 2013)(hereafter called "Article "), the applicable laws were summarized as follows: In 1988, the Federal Housing Act Amendment (FHAA) was enacted to extend protection of the 1968 Fair Housing Act (FHA) to people with disabilities. Congress intended that municipal land use as well as health and safety regulations comply with the provisions of the FHAA, stating: "The Act is intended to prohibit the application of special requirements through land use regulations, restrictive covenants, and conditional or special use permits that have effect of limiting the ability of such individuals to live in the residence of their choice in the community." H. Rep. No. 100 -711, at 24 (1988), reprinted in, 1988 U.S.C.C.A.N. 2173, 2185. The FHAA prohibits intentional discrimination as well as other forms of discrimination in zoning, including discriminatory classification of persons with disabilities, facially neutral zoning laws that have disparate impact on persons with disabilities, and failure of municipal officials to reasonably accommodate the needs of persons with disabilities. In response to the FHAA, the Washington State Legislature in 1993 added a new section to Chapter 35.63 RCW, also known as the Washington Housing Protection Act (WHPA). Article, at page 6 -2. The portion of the Washington Housing Protection Act (WHPA) applicable to the City of Yakima is found at RCW 35.63.220 and states: No city may enact or maintain an ordinance, development regulation, zoning regulation or official control, policy, or administrative practice which treats a residential structure occupied by persons with handicaps differently than a similar residential structure occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as defined in the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3602). The FHAA defines "handicaps" as follows: (h) "Handicap" means, with respect to a person- - (1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in section 802 of Title 21). 42 U.S.C. § 3602. Memorandum to Honorable Mayor and Members of the City Council Page 3 While the definition excludes "current, illegal use of or addiction to a controlled substance," courts have held that a person recovering from such use or addiction is "handicapped" and worthy of the protections of the FHAA. Likewise, certain "homeless shelters" or treatment facilities have been found, in some circumstances, to constitute "dwellings" eligible for protection under the FHAA and WH PA. Persons residing and admitted for services provided by the Union Gospel Mission receive medical treatment and counseling and are not allowed to use drugs or alcohol. "Residency" for such participating individuals is more than transitory. In view of the services provided by the Union Gospel Mission, coupled with the fact that residency of 1 Res of group homes for recovering alcoholics and drug addicts were disabled and /or handicapped for the purposes of the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA); their testimony established that they had a handicap and /or a disability that substantially limited their major life activities. Oxford House, Inc. v. City of Baton Rouge, La., 932 F.Supp.2d 683 (M.D.La.2013). Recovering alcoholics and drug addicts suffered "handicap," and thus had standing to bring action alleging that city's restrictions on placement of substance abuse treatment facilities violated Fair Housing Act (FHA), where recovering individuals were not engaged in current drug or alcohol use, had because of their addiction been unable to perform major life activities, and intended to return to facilities if they relapsed. Jeffrey O. v. City of Boca Raton, 511 F.Supp.2d 1339 (S.D.FIa.2007). 2 Emergency homeless shelter qualified as a "dwelling" under the Fair Housing Act (FHA), as required in action alleging discrimination based on handicap, although the shelter was not designed to be a place of permanent residence, where residents generally stayed at shelter for one to 90 days, residents received mail at the shelter, residents had medication dispensed by staff at shelter, and residents returned to their sleeping areas in the evening. Defiore v. City Rescue Mission of New Castle, 995 F. Supp.2d 413 (W. D. Pa.2013). Homeless shelter qualified as a "dwelling," within meaning of Fair Housing Act section prohibiting discrimination in the sale or rental of a dwelling, where homeless person intended to stay at the shelter as long as he could, and he had no other home to go to. Jenkins v. New York City Dept. of Homeless Services, 643 F.Supp.2d 507 (S.D.N.Y.2009), affirmed on other grounds 391 Fed. Appx. 81, 2010 WL 3393761, certiorari denied 131 S. Ct. 1532, 179 L.Ed.2d 347. Shelter for homeless families was a "dwelling" within meaning of the FHA, notwithstanding that facility was not designed to be a place of permanent residence, considering that shelter residents were not mere transients such as hotel or motel guests, and had nowhere else to "return to." Woods v. Foster, 884 F. Supp. 1169 (N.D.III.1995). Memorandum to Honorable Mayor and Members of the City Council Page 4 participants in such programs meets the qualification of a "dwelling," it is my opinion that the Union Gospel Mission would qualify for protection under both the FHAA and WHPA. Because it is reasonable to expect that a number of individuals receiving services from, while residing at, a "mission" will qualify as handicapped individuals "recovering from" alcohol or drug addiction, or mental disabilities, it is prudent to shape land use regulations so as to avoid, if at all possible, liability for a discrimination claim based on the FHAA and WHPA. At the same time, it is important to recognize legitimate land use concerns arising from the siting of such facilities. State statutes and the City's Comprehensive Plan also apply. The City of Yakima has elected to plan under the Washington State Growth Management Act, Chapter 36.70A RCW. RCW 36.70A.200 provides in pertinent part: 36.7OA.2OO Siting of essential public facilities — Limitation on liability. (1) The comprehensive plan of each county and city that is planning under RCW 36.70A.040 shall include a process for identifying and siting essential public facilities. Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, regional transit authority facilities as defined in RCW 81.112.020, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020. (2) Each county and city planning under RCW 36.70A.040 shall, not later than September 1, 2002, establish a process, or amend its existing process, for identifying and siting essential public facilities and adopt or amend its development regulations as necessary to provide for the siting of secure community transition facilities consistent with statutory requirements applicable to these facilities. * ** (5) No local comprehensive plan or development regulation may preclude the siting of essential public facilities. (6) No person may bring a cause of action for civil damages based on the good faith actions of any county or city to provide for the siting of secure community transition facilities in accordance with this section and with the requirements of chapter 12, Laws of 2001 2nd sp. sess. For purposes of this subsection, "person" includes, but is not limited to, any individual, agency as defined in RCW 42.17A.005, corporation, partnership, association, and limited liability entity. Memorandum to Honorable Mayor and Members of the City Council Page 5 (Emphasis added.) While "homeless shelters" are not specifically listed as a specific type of "essential public facility," the definitions of dwellings and protected alcohol and drug recovery activities protected in the FHAA and WHPA would include homeless shelters or "missions" that meet the residency and "handicap" service criteria. Moreover, Chapter 74.50 RCW establishes a state licensed "shelter assistance program" to assist those under treatment for alcohol addiction. RCW 74.50.060 includes a mechanism whereby the state may contract with either a public or private provider of shelter services to house participants. This constitutes at least a recognition that homeless service shelters constitute a form of "group home" or treatment center combined with a residency element, which would qualify as a type of "essential public facility." Pursuant to the GMA, the City of Yakima has adopted its Yakima Urban Area Comprehensive Plan 2025. Chapter III describes the land use element and contains the following provisions and pages III -29, 30, regarding essential public facilities: Siting Essential Public Facilities Essential public facilities include those that are often difficult to place because no one wants them in or near their community. These include airports, State education facilities, State or regional transportation facilities, correctional facilities, solid waste handling facilities and in- patient facilities including hospitals, substance abuse facilities, mental health facilities and group homes. The Growth Management Act requires the Comprehensive Plan to include a process for identifying and siting essential public facilities. The GMA also states that no local comprehensive plan for any neighborhood may forbid the placement of essential public facilities within that neighborhood. It is important to recognize that the location of these facilities may have negative impacts on surrounding land use areas and different essential public facilities may have different needs in terms of their physical location. GOAL 3.16: PROVIDE ADEQUATE LOCATIONS FOR SITING ESSENTIAL PUBLIC FACILITIES. Policies: 3.16.1 All essential public facilities shall be located and developed to be compatible with adjoining land uses to the greatest possible extent. 3.16.2 Essential public facilities shall be located in areas where they are best able to serve the individuals they are intended to serve. 3.16.3 All essential public facilities providing County -wide or Statewide services shall be identified according to the requirements under the Yakima County -wide Planning Policies Section C.3.1 through C.3.2 (see Appendix F). Memorandum to Honorable Mayor and Members of the City Council Page 6 3.16.4 A review process for siting or the expansion of essential public facilities shall be established according to the requirements under the Yakima County -wide Planning Policies Section C.3.3 through Section C.3.6 (see Appendix F). 3.16.5 The criteria for determining the location of essential public facilities should be coordinated and consistent with other planning goal requirements, such as - reducing sprawl, promoting economic development, protecting the environment, and supporting affordable housing. (Emphasis added.) Appendix E to the Comprehensive Plan further states in part: Siting Public Facilities of a County -wide or State -wide Nature (Cited from Yakima County -wide Planning Policy) C.1. STATEWIDE GOALS RELATING TO THE SITING OF PUBLIC FACILITIES OF A REGIONAL OR STATEWIDE NATURE The GMA requires local governments to inventory existing capital public facilities to identify location and to determine capacities to meet future demand for growth without decreasing levels of service and to include within their comprehensive plans a process for identifying and siting essential public facilities. The Washington State Office of Financial Management is responsible for identifying and maintaining a list of essential State public facilities that are required or likely to be built within the next six years as required by the GMA. Counties and cities are also required to coordinate the siting of countywide and statewide capital facilities to mitigate potential adverse impacts from the location and development of these facilities. C.2. COUNTY -WIDE POLICIES RELATING TO THE SITING OF FACILITIES OF A COUNTY -WIDE OR STATE -WIDE NATURE The siting of essential public capital facilities such as landfills and jails is a difficult task at best. Although these facilities are necessary for the common good, they are seldom welcome into a community or neighborhood. Recognizing that public facilities of a statewide or countywide nature are an essential part of our society, policies for their siting and construction are necessary to ensure a reasonable approval process. Each jurisdiction will utilize an appropriate public process for siting essential public facilities, as outlined in their respective comprehensive plans, policies or regulations. (Emphasis added.) C. Procedural Barriers. Memorandum to Honorable Mayor and Members of the City Council Page 7 In Sunderland Family Treatment Centers v. City of Pasco, 107 Wash. App. 109, 26 P.3d 995 (2001), the city required a "Special Use Permit" for "group care facilities," but did not require any special use permit for other "family" or residential uses. The court held that this "extra" procedural requirement or level of review violated the WHPA. As stated and held by the court: The Legislature adopted the WHPA to, among other things, "[i]ncrease the supply of housing for persons with special needs." RCW 43.185B.005(2)(e). The WHPA, in pertinent part, reads as follows: No city may enact or maintain an ordinance, development regulation, zoning regulation or official control, policy, or administrative practice which treats a residential structure occupied by persons with handicaps differently than a similar residential structure occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as defined in the federal fair housing amendments act of 1988 (42 U.S.C. § 3602). RCW 35A.63.240 (emphasis added). The WHPA is a broad provision tailored to address municipal ordinances, practices, or policies that treat similar residential structures "differently" based on the residents' handicap and familial status. Significantly, the WHPA does not contain an intent requirement or require a showing of "discrimination." In other words, the WHPA prohibits ordinances, practices, or policies that distinguish between residential structures based on the residents' handicaps and familial status, regardless of a city's intent when enacting or enforcing the ordinance, policy or practice. Sunderland, id. at 118. In the GC and CBD zoning districts, similar (permitted) residential structures occupied by a family or other unrelated individuals, include: Use Class Multifamily Dwelling Class (2) (0 to 7 Dwelling Units per Net Residential Acres) Multifamily Dwelling Class (2) (8 to 12 Dwelling Units per Net Residential Acre) Multifamily Dwelling Class (2) (13 -plus Dwelling Units per Net Residential Acre) YMC 15.02.020 defines "family" as follows: Memorandum to Honorable Mayor and Members of the City Council Page 8 A. The term "family" shall include: 1. State - licensed adult family homes required to be recognized as residential uses pursuant to RCW 70.128.175; 2. State - licensed foster family homes and group care facilities as defined in RCW 74.15.180, subject to the exclusions of subsection B of this definition; and 3. Group homes for the disabled and consensual living arrangements equivalent to a familial setting required to be accommodated as residential uses pursuant to the Fair Housing Act and the Washington Housing Policy Act, RCW 35.63.220 and RCW 35A.63.240, respectively. B. The term "family" shall exclude individuals residing in halfway houses, crisis residential centers as defined in RCW 74.15.020(3)(g), group homes licensed for juvenile offenders, or other facilities, whether or not licensed by the state, where individuals are incarcerated or otherwise required to reside pursuant to court order under the supervision of paid staff and personnel. (Emphasis added.) Thus, under the principles of Sunderland, the existence of similar residential uses classified as Class (2) uses, and the city's existing definition of "family" to include those persons protected by the FHAA and WHPA, our opinion is that retaining a Class (3) use for "missions" in these zoning districts constitutes a risk of liability under the FHAA and WHPA. Primarily, this is so because it may appear that the only reason supporting a Class (3) designation for "mission" uses in these zoning districts is based on the "type of individual" housed in the mission. The primary differences between a Class (2) and a Class (3) use are (a) the "presumptions of compatibility" attached to each class, and (b) the different "burdens of proof' resulting from such presumptions. YMC 15.04.020 defines these different classes as follows: B. Class (2) uses are generally permitted in the district. However, the compatibility between a Class (2) use and the surrounding environment cannot be determined in advance, and occasionally a Class (2) use may be incompatible at a particular location. Therefore, a Type (2) review by the administrative official is required in order to promote compatibility with the intent and character of the district and the policies and development criteria of the Yakima urban area comprehensive plan. The procedures in YMC Chapter 15.14 shall be used to review and evaluate Class (2) uses. In certain circumstances, the administrative official may require that a Class (2) use undergo a Type (3) review, as provided within this title. C. Class (3) uses are generally not permitted in a particular district, but may be allowed by the hearing examiner after a Type (3) review and public hearing. The hearing examiner may approve, deny, or impose conditions on the proposed land use and site improvements to promote compatibility with the intent and character of the district and the policies and development criteria of the Yakima Memorandum to Honorable Mayor and Members of the City Council Page 9 urban area comprehensive plan. The procedures in YMC Chapter 15.15 shall be used to review and evaluate Class (3) uses or Class (2) uses that have been forwarded to the hearing examiner for review. The Class (2) uses are "generally permitted" in the designated zoning district, but may "occasionally" require certain mitigations to achieve compatibility with the surrounding environment. These mitigations may be imposed by the City's administrative staff — or the department director may refer the matter to a public hearing before the hearing examiner in a Type (3) process. The applicant in a Class (2) use starts with the premise that his or her proposed use is generally permitted — other persons, including third parties, neighbors and planning staff, would have the "burden" to identify any adverse secondary effects associated with the project and convince the decision -maker to craft and impose a suitable mitigation. In a Class (3) use, the use is "generally not permitted" in the designated zoning district, but "may be allowed" after a public hearing conducted by the hearing examiner. The burden would be on the applicant to identify and propose mitigations to "promote compatibility" with the intent and character of the zoning district. As shown above, other multifamily dwelling uses are currently designated as Class (2) uses in the GC and CBD zoning districts and are thus "generally permitted" but subject to imposition of mitigations designed to reduce incompatibility with surrounding neighborhoods. Assigning a Class (3) use to a "mission" in these same zoning districts would impose a significantly different presumption of incompatibility and burden of proof on a type of multifamily dwelling — based primarily on the "type of person" residing in the mission. This is the factor that runs afoul of the FHAA and WHPA as described in Sunderland Family Treatment Centers v. City of Pasco, 107 Wash. App. 109, 26 P.3d 995 (2001). Furthermore, assigning a classification that makes a mission "generally not permitted" creates a threshold presumption that the City is precluding siting of a type of "essential public facility" contrary to the Growth Management Act and the City's Comprehensive Plan. D. A Word on Vesting. A further question was asked regarding vesting, and whether the adoption of the proposed mission ordinance would affect a separate application for interpretation presented by Yakima Neighborhood Health for a mission -type use at the Roy's Market site. This argument will be fully developed and presented in conjunction with the appeal of the Hearing Examiner's Interpretation, but here are the general principles. For many years, courts have issued a number of decisions regarding the doctrine of vesting. In short, an applicant in a land use case was deemed "vested" if he or she Memorandum to Honorable Mayor and Members of the City Council Page 10 submitted a "complete application" for a permit. He or she would "vest" to the zoning and /or development standards in effect at the time the complete application was submitted. For example, if zoning was changed to prohibit a use after the applicant submitted a complete application for a development permit for that use, the doctrine of vesting would allow the developer to proceed under the development standards that existed before the change. Courts had tended to expand the application of the vesting doctrine to include a variety of land use applications beyond building permits and applications for subdivisions — such as conditional use permit applications, grading permit applications, shoreline substantial development permit applications, and septic permit applications. This changed last year when a new court decision was issued. Now, under Washington law, a developer only "vests" to a right to construct a specific project when a complete application for a (a) building permit or (b) subdivision of land is filed. RCW 19.27.095(1) and RCW 58.17.033(1), respectively. Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash. App. 191, 334 P.3d 1143 (2014), review denied, 182 Wash.2d 1004, 342 P.3d 326 (Table) (2015). Under Potala, an application for an Interpretation, or even an application for a Class (3) review, is not an application for a building permit or subdivision. In fact, the ultimate decision of the hearing examiner, if he or she approves a Class (3) application, is to authorize the City to issue a "certificate of zoning review" or "CZR." It is the issuance of a CZR that authorizes the issuance of a building permit. There has been no submission of an application for any building permit by Yakima Neighborhood Health Services for development of the proposed facility at the Roy's Market site. Yakima Neighborhood Health Services does not even yet own the Roy's Market property. Consequently, it is the position of the City that an amendment of Title 15 YMC to formally include a definition of mission and to limit such uses to the GC, CBG and M -1 zoning districts will clarify the issues argued in the Hearing Examiner's Interpretation, and will establish the clear legislative intent that mission uses are in fact legislatively established as permissible uses in the three listed zoning districts — and not permitted in any other zoning district. The question thus becomes whether or not the Yakima Neighborhood Health Services proposal constitutes a "mission." If the proposed use is a mission, it is not allowed in the SCC zoning district. See Juanita Bay Valley Cmty. Ass'n v. City of Kirkland, 9 Wash.App. 59, 510 P.2d 1140 (1973) (grading permit applications); Talbot v. Gray, 11 Wash.App. 807, 525 P.2d 801 (1974) (shoreline permit applications); Ford v. Bellingham — Whatcom County Dist. Bd. of Health, 16 Wash.App. 709, 558 P.2d 821 (1977) (septic tank permit application); Beach v. Bd. of Adjustment, 73 Wash.2d 343, 438 P.2d 617 (1968) (conditional use permit applications); Weyerhaeuser v. Pierce County, 95 Wash.App. 883, 976 P.2d 1279 (1999) (conditional use permit applications). Memorandum to Honorable Mayor and Members of the City Council Page 11 E. Conclusion and Recommendation. In order to maintain compliance with the FHAA and WHPA, it was determined that the better course would be to maintain consistency with the Class (2) use associated with other similar residential uses, and to address any impacts by increasing the review to a Type (3) review — with increased public notice, a required public hearing, and a development agreement in which the City is a party. Classifying the mission use as a Class (2) use retains the original designation established in 1992 and 1995 by the Hearing Examiner Interpretations for the Union Gospel Mission, and maintains consistency with other types of multifamily uses within such zoning districts. By retaining the Class (2) use designation but requiring a Type (3) procedure for approval, the city retains a consistent burden of proof standard for multifamily uses within the zoning districts, but attaches an enhanced public notice and public hearing procedure. This provides an increased opportunity for neighboring property owners and interested parties to identify concerns and present recommended mitigations. Additionally, the proposed ordinance would require a separate development agreement between the applicant and the City. This would give the City standing to enforce the terms of such agreement if such becomes necessary. In conclusion, the recommendation to retain the Class (2) use, but require a Type (3) mandatory public hearing process and development agreement, was based on the need to maintain compliance with federal and state fair housing laws and the City's Comprehensive Plan, while enhancing public participation in the process and providing an individualized method of enforcement through a separate development agreement. 4 In response to a question whether even an increased public participation and development agreement requirements might constitute a violation, I would indicate that a public hearing may be required in any event for a Class (2) use. The hearing examiner would then conduct a public hearing and include any mitigations within his or her decision. The only significant change in the suggested process would be the addition of a development agreement that includes the city as a party. Memorandum to Honorable Mayor and Members of the City Council Page 12 • Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 107 Wash.App. 109 Court of Appeals of Washington, Division 3, Panel Six. 121 Appeal and Error 4- Grounds of Review SUNDERLAND FAMILY TREATMENT SERVICES, a Washington non - profit The appellant has the burden of providing a corporation, Respondent, record sufficient to review the issues raised. v. CITY OF PASCO, a Washington municipal corporation, Appellant. 1 Cases that cite this headnote No. 18951-1-111. 1 July 3, 2001. Applicant appealed city's denial of a special use permit to 131 Zoning and Planning operate, in residential area, a group care facility for 4- Nature and Form of Remedy handicapped youths. The Superior Court, Franklin County, Duane Taber, J., reversed. Upon granting By petitioning under Land -Use Petition Act applicant direct review, the Supreme Court, 127 Wash.2d (LUPA), a party seeks judicial review by asking 782, 903 P.2d 986, remanded. Thereafter, applicant the superior court to exercise appellate appealed city's denial of amended application. The jurisdiction. West's RCWA 36.70C.030(1). Superior Court, Franklin County, Craig Matheson and Philip Raekes, JJ., reversed. City appealed. The Court of Appeals, Kurtz, C.J., held that city violated the 4 Cases that cite this headnote Washington Housing Policy Act (WHPA) by adopting a regulatory scheme that permitted a "family" to obtain immediate occupancy of a residential structure but required "group care facilities" to obtain a special use permit. 141 Administrative Law and Procedure 4 -Scope City's land use decision reversed. In administrative appeals, the Court of Appeals stands in the same position as the Superior Court when reviewing the underlying administrative decision. West Headnotes (13) 1 Cases that cite this headnote 111 Zoning and Planning 0—Dismissal Dismissal of applicant's appeal of city's denial 151 Zoning and Planning of a special use permit to operate, in residential 4-De novo review in general area, a group care facility for handicapped youths was not required under rule governing Issues of law are reviewed de novo on petitions dismissal for want of prosecution, as the matter for judicial review filed pursuant to the was noted for fmal hearing before the hearing on Land -Use Petition Act (LUPA). West's RCWA the motion to dismiss. CR 41(b)(1). 36.70C.030(1). Cases that cite this headnote 5 Cases that cite this headnote WestlawNext © 2015 Thomson Reuters. No claim to original U S. Government Works. 1 • Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 1 Cases that cite this headnote 161 Civil Rights 6- Discrimination by reason of handicap, disability, or illness [9] Civil Rights Civil Rights 6—Discrimination by reason of handicap, 6—Discrimination by reason of marital, parental, disability, or illness or familial status The disparate treatment theory of establishing a The Washington Housing Policy Act (WHPA) violation of the federal Fair Housing prohibits ordinances, practices, or policies that Amendments Act (FHA) requires a showing of distinguish between residential structures based discriminatory intent and the disparate impact on the residents' handicaps and familial status, theory requires a showing of a discriminatory regardless of a city's intent when enacting or effect. Civil Rights Act of 1968, § 804(0, as enforcing the ordinance, policy, or practice. amended, 42 U.S.C.A. § 3604(0. West's RCWA 35A.63.240. 1 Cases that cite this headnote Cases that cite this headnote 110] Civil Rights 171 Civil Rights 6- Discrimination by reason of handicap, 6- Discrimination by reason of handicap, disability, or illness disability, or illness When applying a valid ordinance, a A violation of the federal Fair Housing government's failure to make a reasonable Amendments Act (FHA) may be established accommodation for people with disabilities may under any or all of three theories: disparate give rise to a cause of action under the treatment, disparate impact, and failure to make reasonable accommodations theory of reasonable accommodations. Civil Rights Act of establishing a violation of the federal Fair 1968, § 804(0, as amended, 42 U.S.C.A. § Housing Amendments Act (FHA). Civil Rights 3604(0. Act of 1968, § 804(0, as amended, 42 U.S.C.A. § 3604(0. 1 Cases that cite this headnote Cases that cite this headnote 181 Civil Rights Public regulation; zoning 1111 Civil Rights 6- Discrimination by reason of handicap, The disparate treatment theory of establishing a disability, or illness violation of the federal Fair Housing Amendments Act (FHA) applies when an City violated the Washington Housing Policy ordinance is facially discriminatory and the Act (WHPA) by adopting a regulatory scheme disparate impact theory applies when an that permitted a "family" to obtain immediate ordinance is neutral on its face, but has a occupancy of a residential structure but required disparate impact. Civil Rights Act of 1968, § "group care facilities" to obtain a special use 804(0, as amended, 42 U.S.C.A. § 3604(0. permit before occupying a similar residential structure. West's RCWA 35A.63.240. WestlawNexf © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 Opinion Cases that cite this headnote *112 KURTZ, C.J. The City of Pasco denied Sunderland Family [121 Civil Rights Treatment Services' application for a special use permit 0- Discrimination by reason of handicap, to operate a group care facility for handicapped youth in a disability, or illness residential area. Sunderland filed a Land -Use Petition Act (LUPA) petition. On appeal to the superior court, the Washington Housing Policy Act (WHPA) court concluded that the City's denial of the special use requires only that the residential structures permit constituted an erroneous interpretation of the law occupied by handicapped persons and those violating the Washington Housing Policy Act (WHPA), occupied by a family be "similar," not that the the Washington Law Against Discrimination, the Federal living arrangements and supervision of a Fair Housing Amendments Act (FHA), the Americans structure occupied by handicapped persons be with Disabilities Act, and the Rehabilitation Act of 1973. similar to that in a family. West's RCWA On appeal to this court, we address whether the City's 35A.63.240. regulatory scheme violated the WHPA. We conclude that it did and reverse the City's land use decision. Cases that cite this headnote FACTS 1131 Civil Rights Sunderland 1. In March 1993, Sunderland Family 4- Discrimination by reason of handicap, Treatment Services applied to the City for a special use disability, or illness permit (SUP) to operate a youth crisis residential center in Civil Rights a Sunderland -owned residence located in an R -1 zoning 0- Discrimination by reason of marital, parental, district. This crisis residential center was to be operated or familial status under RCW 74.13.032. The City denied the application for the SUP, but the Franklin County Superior Court City's home occupation ordinance violated the reversed, concluding that the City's denial constituted Washington Housing Policy Act (WHPA) as handicap discrimination under the WHPA, RCW applied to applicant seeking a special use permit 35A.63.240. Sunderland sought and received direct to operate a group home for handicapped review by the Washington Supreme Court. While the children; under the ordinance, handicapped appeal was pending, Sunderland, a nonprofit community children who required specialized care were mental health agency, lost funding for the crisis denied access to a single- family home based on residential center. Sunderland Family Treatment Servs. their handicap and familial status. West's v. City of Pasco, 127 Wash.2d 782, 787, 903 P.2d 986 RCWA 35A.63.240. (1995) (Sunderland I). Sunderland informed the court of the loss of funding and explained that funding from a different source had been obtained to operate the facility. Cases that cite this headnote Id *113 In Sunderland I, the court considered whether the planned population of the Sunderland crisis residential center - abused and neglected children -were handicapped Attorneys and Law Firms under the WHPA. Id at 789, 903 P.2d 986. The court determined that the children to be served by the * *957 *111 Greg A. Rubstello, Ogden, Murphy, Wallace Sunderland facility were not handicapped and, PLLC, Seattle, for Appellant. consequently, the WHPA was inapplicable. Id. at 791 -92, 798, 903 P.2d 986. However, the court also found that the Timothy G. Klashke, Pasco, for Respondent. City's denial appeared to rest on neighborhood opposition to the facility. Id. at 797, 903 P.2d 986. Hence, the court WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 concluded that the denial of the SUP was not based on residential zoning district designated in the Pasco competent and substantial evidence. Id. Because of the Municipal Code (PMC) as the City's "Low Density loss in funding and the failure of either Sunderland or the Residential District." The property is developed with a City to create a sufficient record, the court remanded the residential structure that is currently vacant. The proposed matter to the City for further proceedings. Id. at 798, 903 group home would not require any physical alterations to P.2d 986. its exterior and would appear physically indistinguishable from other single - family homes in the area. The Amended SUP Application. On remand, Sunderland properties surrounding the site are similarly zoned R -1. amended its SUP application, explaining that the There are single - family residential dwellings to the east, application was essentially the same as the initial south and north of the proposed group home. The Joyce application but that the proposed facility would now be Apartments are located directly to the west. used to house youths ages 12 -17 with a diagnosed mental impairment. These children would be referred through After holding a public hearing, the Pasco Planning mental health professionals and would have a diagnosed Commission recommended approval of the SUP with 14 mental illness requiring a group setting with 24 -hour conditions. Despite this recommendation, the city council professional staff supervision as part of a proscribed held a second hearing and issued a decision denying treatment plan. approval. At both proceedings, Sunderland contended that the City had no authority to require the SUP * *958 The proposed group home would operate under proceeding. Nonetheless, the City apparently took the state licensing standards to serve the residential needs of position that a SUP proceeding was required because the seriously and severely disturbed minor children. The proposed group home was either a "group care facility" or children would be prescreened and preassessed for a "community service facility" as *115 defined by PMC placement in the home by a mental health professional 22.12.385 and PMC 22.12.215. Significantly, the City's pursuant to the provisions and criteria contained in determination that Sunderland must apply for a SUP chapter 71.24 RCW, chapter 71.34 RCW, WAC 275 -57, prevented Sunderland from taking immediate occupancy and WAC 388 -73. Children who posed a danger to of the home and operating the home as a group care themselves or others would not be eligible for admission facility. to the facility; neither would children actively using drugs or alcohol, or children with pending criminal charges. When evaluating Sunderland's application for a SUP, the City applied the home occupation ordinance that was Under the applicable state regulations, the proposed home designed to determine whether "the conduct of business would be required to maintain a one -to -four ratio of staff may be permitted as a use accessory to an established to children, and a staff person with a bachelor degree residence." PMC 22.35.010. In denying Sunderland's *114 would be required to be on site at all times. As a application for a SUP, the City applied the environmental result, the proposed home would operate with at least standards contained in PMC 22.35.050, which require that three staff people on duty. Testimony indicated that there all home occupations be: would usually be two staff people coming and going every eight hours. (1) clearly subordinate to the principal use of the property for The primary use of the house would be residential, as the residential purposes; (2) conducted children would be transported off site to school, by persons residing within the counseling, and treatment. Children residing in the home dwelling unit upon the premises; would most likely stay for a period of six to nine months. and (3) an occupation that does not While in the home, the children would live in a very require the customer or client to be structured environment and would not be permitted to present upon the premises while the have friends visit. The proposed home would have to profession, trade, skill or services meet higher supervision requirements than those imposed are performed. The City based its on a foster family home. The type of service offered by denial of the SUP on the the proposed home is not currently available in either conclusions that (1) the nature and Franklin or Benton Counties other than as part of an intensity of the use was not inpatient stay at Carondelet Psychiatric Care Facility. subordinate to the principal permitted use of the property, and The location of the proposed group home is property (2) the proposed use was not in located within an R -1 single - family, low density harmony with the existing WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 • Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 residential development in the this court would have to speculate as to the reasoning neighborhood. behind the court's decision to deny the motion. As the appellant, the City has the burden of providing a record Sunderland appealed to the superior court by filing a sufficient to review the issues raised. State v. Garcia, 45 LUPA petition. Sunderland alleged the children who Wash.App. 132, 140, 724 P.2d 412 (1986). Moreover, would reside in the home were legally "handicapped" and dismissal was not required under CR 41(b)(1) because the that the WHPA and/or the FHA prevented the * *959 City matter was noted for the final hearing before the hearing from denying Sunderland's right to operate the proposed on the motion to dismiss. home. Additionally, Sunderland reserved the right to subsequently file and pursue claims for monetary damages against the City in an independent action for damages pursuant to the FHA, 42 U.S.C. § 3601, the *117 ANALYSIS OF LUPA APPEAL Washington Law Against Discrimination (chapter 49.60 RCW), and 42 U.S.C. § 1983. 131 141 151 Scope and Standard of Review. With limited exceptions, LUPA provides "the exclusive means of The superior court concluded the City's denial of the SUP judicial review of land use decisions." RCW constituted an erroneous interpretation of law violating 36.70C.030(1). By petitioning under LUPA, a party seeks the anti - handicap discrimination provisions in the WHPA, judicial review by asking the superior court to exercise the FHA, the Washington Law Against Discrimination, appellate jurisdiction. Chaney v. Fetterly, 100 Wash.App. the Americans With Disabilities Act, and the 140, 142 n. 2, 995 P.2d 1284, review denied, 11 P.3d 824 Rehabilitation Act *116 of 1973. The superior court also (2000). The court may affirm or reverse the land use concluded that the City's land use decision (1) was not decision under review or remand the decision for supported by factual evidence that was substantial when modification or for further proceedings. RCW viewed in light of the whole record before the court; (2) 36.70C.140. This court stands in the same position as the was clearly an erroneous application of the law to the superior court when reviewing the underlying facts; (3) was not supported by sufficient factual administrative decision. Biermann v. City of Spokane, 90 evidence; and (4) violated constitutional rights, and was Wash.App. 816, 821, 960 P.2d 434 (1998), review denied, arbitrary and capricious in that it constituted willful and 137 Wash.2d 1004, 972 P.2d 466 (1999). Under LUPA, a unreasonable action taken in disregard of the relevant reviewing court may grant relief under any or all of the facts and circumstances. The court further concluded that six circumstances set forth in RCW 36.70C.130(1). Issues the denial of the SUP constituted a clearly erroneous of law are reviewed de novo. City of University Place v. application of the law to the facts. McGuire, 102 Wash.App. 658, 667, 9 P.3d 918 (2000); Girton v. City of Seattle, 97 Wash.App. 360, 363, 983 Accordingly, the superior court reversed the City's land P.2d 1135 (1999), review denied, 140 Wash.2d 1007, 999 use decision and found that "as a matter of law, P.2d 1259 (2000) Sunderland is and shall be entitled to immediately occupy and operate the proposed Home at the proposed LUPA Petition. Sunderland's LUPA petition seeks location as a matter of right and without the need or reversal of the City's land use decision to deny approval requirement of a SUP or any other authorization or of a SUP for Sunderland's proposed home. approval of or by the City." Clerk's Papers at 40. Sunderland's petition alleges the City's land use decision: (1) constituted an erroneous interpretation and The City appeals contending its decision to deny application of the WHPA and the FHA; and (2) was not Sunderland's application for a SUP was not erroneous supported by evidence that was substantial when viewed and was supported by sufficient evidence. The City also i light of the whole record. Claims for damages or contends the superior court erred by failing to grant the compensation * *960 may be set forth in the same City's motions to dismiss under CR 41(b) and CR complaint with a land use petition and the judge who 41(b)(1). hears the land use petition may, if appropriate, preside at a �l� �z� trial for damages or compensation. RCW Motion to Dismiss. The City first contends the trial 36.70C.030(1)(c). However, in its petition, Sunderland court erred by failing to grant its motion to dismiss under reserved the right to subsequently file and pursue claims CR 41(b) or CR 41(b)(1). This court cannot review the for monetary damages against the City in an independent denial of the CR 41(b) motion because the City has failed action for damages pursuant to the FHA, 42 U.S.C. § to provide a report of proceedings of the court's hearing 3601, the Washington Law Against Discrimination on the CR 41(b) motion. Without a record of proceedings, (chapter 49.60 RCW), and 42 U.S.C. § 1983. WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 (W.D.Wash.1997); Bryant Woods Inn, Inc. v. Howard *118 The superior court reversed the City's land use County, 911 F.Supp. 918, 938 (D.Md.1996), aff'd, 124 decision but treated the LUPA proceeding as a summary F.3d 597 (4th Cir.1997). The disparate treatment theory judgment proceeding addressing liability issues under the requires a showing of discriminatory intent and the WHPA, the Washington Law Against Discrimination, the disparate impact theory requires a showing of a FHA, the Americans With Disabilities Act, the discriminatory effect.' Significantly, the FHA also defines Rehabilitation Act of 1973, and 42 U.S.C. § 1983. discrimination to include "a refusal to make reasonable Because we are exercising appellate jurisdiction, we limit accommodations in rules, policies, practices, or services, our review to those issues raised by Sunderland in its when such accommodations may be necessary to afford LUPA petition. We first consider the applicability of the such person equal opportunity to use and enjoy a WHPA and the FHA. dwelling[.]" 42 U.S.C.A. § 3604(f)(3)(B) (West 1994). Consequently, when applying a valid ordinance, a [6] WHPA v. FHA. The Legislature adopted the WHPA government's failure to make a reasonable to, among other things, "[i]ncrease the supply of housing accommodation for people with disabilities may give rise for persons with special needs." RCW 43.185B.005(2)(e). to a cause of action under the reasonable accommodations The WHPA, in pertinent part, reads as follows: theory. Bryant Woods, 911 F.Supp. at 928. No city may enact or maintain an * *961 We conclude that reference to the FHA is helpful ordinance, development regulation, when applying the WHPA but we do not believe these zoning regulation or official provisions are coextensive because the FHA prohibits control, policy, or administrative discriminatory housing practices based on handicap or practice which treats a residential familial status whereas the WHPA has no intent structure occupied by persons with requirement and requires only a showing that an handicaps differently than a similar ordinance, practice, or policy treats residential structures residential structure occupied by a occupied by handicapped persons "differently" than a family or other unrelated structure occupied by a family or other unrelated individuals. As used in this section, individuals. Furthermore, the WHPA does not contain "handicaps" are as defined in the language that would require a city to make reasonable federal fair housing amendments accommodations to permit a person with a handicap to act of 1988 (42 U.S.C. § 3602). occupy a dwelling. RCW 35A.63.240 (emphasis added). The WHPA is a *120 Sunderland encountered two separate obstacles broad provision tailored to address municipal ordinances, when it attempted to open a group home for handicapped practices, or policies that treat similar residential children in Pasco. First, the City ordinances required structures "differently" based on the residents' handicap Sunderland to obtain a SUP before occupying the and familial status. Significantly, the WHPA does not selected residential structure. Second, the City denied the contain an intent requirement or require a showing of SUP based on the requirements contained in the City's "discrimination." In other words, the WHPA prohibits home occupation ordinance. Sunderland contends the ordinances, practices, or policies that distinguish between ordinances triggering these events violated the WHPA residential structures based on the residents' handicaps and the FHA. Because we have only the administrative and familial status, regardless of a city's intent when record before us, we limit our inquiry to the application of enacting or enforcing the ordinance, policy or practice. the WHPA and the question of whether the application of the City's ordinances caused the proposed Sunderland 171 181 191 1101 The trial court suggests that the WHPA and the home to be treated differently than a similar residential FHA are coextensive. We disagree. A violation of the structure occupied by a family . FHA, 42 U.S.C. § 3604(f), may be established under any or all of three theories: disparate treatment, disparate SUP Requirement. Sunderland was required to obtain a impact, and failure to make reasonable accommodations. SUP because it did not fit within the definition of Smith & Lee *119 Assocs. v. City of Taylor, 102 F.3d 781, "family" contained in PMC 22.12.330, which defines 790 (6th Cir.1996). The disparate treatment theory "family" as "one or more related persons, or five or less applies when an ordinance is facially discriminatory and unrelated persons over the age of sixteen years occupying the disparate impact theory applies when an ordinance is premises and living as a single housekeeping unit as neutral on its face, but has a disparate impact. Children's distinguished from a group home, group care facility, Alliance v. City of Bellevue, 950 F.Supp. 1491, 1495 lodging house, boarding home, club, fraternity or hotel." WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works, 6 Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 (Emphasis added.) related by genetics, adoption, or marriage, or a group of five or fewer unrelated persons. Id. at 728, 115 S.Ct. The City apparently took the position that a SUP 1776. The Supreme Court concluded the FHA applied to proceeding was required because the proposed group "rules designed to preserve the *122 family character of a home was either a "group care facility" or a "community neighborhood, fastening on the composition of service facility" as defmed by PMC 22.12.385 and .215. households rather than on the total number of occupants A group care facility or a community service facility is an living quarters can contain...." Id. at 735, 115 S.Ct. 1776. unclassified use that is permissible in any zoning district under a SUP. PMC 22.80.010; .020(3), (7). However, a In Children's Alliance, the court considered the language "family," irrespective of size, or a chapter 74.15 RCW of Bellevue Ordinance No. 4861. As here, the definition foster family home may occupy a residential structure in of "family" in Ordinance 4861 could have included a the same neighborhood without having to obtain a SUP. group home. Ordinance 4861 defined a "family" as "[o]ne or more persons (but not more than six unrelated As a residential facility, the proposed group home is best persons) living together as a single housekeeping unit." categorized as a "group care facility," rather than a *121 The ordinance went on to define a "group facility" as a " "community service facility." A "community service `staffed living facility for a group of persons, which may facility" includes daycare centers, nursery schools, include both children and adults....' " Children's Alliance, churches and other providers of social, health, and welfare 950 F.Supp. at 1496. The court determined that the services. PMC 22.12.215. A "group care facility" is language of Ordinance 4861 was facially invalid because defmed as "any number of unrelated persons living the ordinance distinguished between group facilities and together as a single housekeeping unit sponsored by a families based on the presence of "staff" who provide " public or private service entity whether supervision of the `care and supervision for and assistance with the daily residents is provided on a full or part-time basis." PMC living activities of the Residence in a Group Facility.' " 22.12.385. Id. The court concluded that the use of "staff' was a proxy for a classification based on the presence of It follows then that the proposed home could be individuals under 18 and individuals with handicaps as categorized as a "family" unless the home consisted of both groups require supervision and assistance. Id. six or more 17 year olds. But the proposed Sunderland home was not treated as a "family" because the proposed The Children's Alliance court further concluded that the home fell within the defmition of a "group care facility" distinction drawn between families and groups based on the supervision needs of the proposed residents. constituted a FHA violation because of the burdens placed Hence, Sunderland was required to obtain a SUP for the on the latter but not on the former. Each group facility proposed home because the residents were unrelated and was required to be at least 1,000 feet from another group required "supervision." facility of the same type; group facilities located in residential zones R -1 through R -7.5 were limited to six Our analysis under the WHPA is guided by City of residents, two resident staff, and minor children of the Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. residents and the staff even though any number of related 1776, 131 L.Ed.2d 801 (1995) and Children's Alliance v. individuals could reside together. Id. at 1497. City of Bellevue, 950 F.Supp. 1491 (W.D.Wash.1997), two cases that consider the application of the FHA to city 1111 Applying the reasoning of Edmonds and Children's ordinances. In Edmonds, the Supreme Court considered Alliance, in the context of the WHPA, we conclude that whether an ordinance that defmed "family" based on an the City violated the WHPA by defining "family" in such occupancy limitation qualified under a FHA provision a way as to impose additional burdens on residential care that exempted " `any reasonable local, State, or Federal facilities for the handicapped. The City violated the restrictions regarding the maximum number of occupants WHPA by adopting a regulatory scheme that permitted a permitted to occupy a dwelling.' " Edmonds, 514 U.S. at *123 "family" to obtain immediate occupancy of a 728, 115 S.Ct. 1776 (quoting 42 U.S.C. § 3607(b)(1)). residential structure but required "group care facilities" to The court held that this provision exempts only total obtain a SUP before occupying a similar residential occupancy limits that * *962 are intended to prevent structure. But for the City's definition of family, the overcrowding, and not ordinances that are designed to residents of the proposed facility would have been entitled promote the "family character" of a neighborhood. to immediate occupancy of the home. Instead, the Edmonds, 514 U.S. at 735, 115 S.Ct. 1776. The ordinance residents of the proposed facility were denied access in question governed single - family dwelling units and based on their handicap and familial status. defined "family" to include any number of persons WestlawNexf © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 The City contends the SUP requirement does not treat The City also contends the SUP proceeding was proper persons with handicaps differently. The City argues that because the home occupation ordinance is applied equally the handicapped children were not completely excluded to families and group facilities. In making this argument, from the neighborhood in that they could live in the the City attempts to justify its definition of "family" with neighborhood as part of a foster family home. considerations of intensity of use drawn from its home occupation ordinance. The City's definition of "family" In making this argument, the City ignores the fact that the must be evaluated separately. Here, the City's definition WHPA targets ordinances, practices, and policies that of "family" treats similar residential structures differently distinguish between residents of similar residential based on the potential residents' familial status and need structures based on handicap and familial status. The for supervision. ordinances here would permit a handicapped child to live in a foster family home in the same neighborhood, but Lastly, the City argues that the SUP requirement was this child would not receive the level of supervision proper under the WHPA because a SUP requirement available in the Sunderland home unless the foster would be permitted under the FHA. To this end, the City parents had the same certification and employed the same cites cases resolved under the FHA reasonable supervision techniques required by the regulations accommodation theory. See Smith & Lee Assocs. v. City governing the proposed Sunderland home. By limiting of Taylor, 102 F.3d 781 (6th Cir.1996); Hovsons, Inc. v. these children to the type of care provided in a foster Township of Brick, 89 F.3d 1096 (3rd Cir.1996); Oxford home, the City prevented these children from residing in a House -C v. City of St. Louis, 77 F.3d 249 (8th Cir.1996); setting tailored to meet their special needs solely because United States v. Village of Palatine, 37 F.3d 1230 (7th of their familial status. In short, the City's arguments Cir.1994). But the WHPA does not encompass the concerning foster homes address issues related to reasonable accommodation analysis. *125 The City also handicap discrimination, but not discrimination based on relies on a FHA case applying the disparate treatment the presence of a handicap and familial status. analysis, Keys Youth Services, Inc. v. City of Olathe, 52 F.Supp.2d 1284, 1301 n. 18 (D.Kansas 1999), aff'd in The City next argues that a SUP was required because the part, rev'd in part, 248 F.3d 1267 (10th Cir.2001), where proposed home is different * *963 than a foster family the court concluded that an aggrieved party could not home in that the Sunderland home requires paid staff and claim that the City of Olathe intentionally discriminated an increased intensity of use in terms of the level of against potential residents by requiring them to go supervision within the home. In other words, the City through a permit process. But, the WHPA does not argues that its treatment of foster family homes require a showing of intentional discrimination. demonstrates that similar families are treated the same and that the proposed Sunderland facility is treated In conclusion, the proposed Sunderland home was differently because the *124 supervision within the treated differently than a family because the supervision facility is not similar to that required in a typical family needs and familial status of the potential residents or foster home. In short, the City suggests that the WHPA triggered the SUP requirement. Consequently, the is inapplicable in the absence of a showing that the applicable ordinances, including the definition of handicapped person will live in a residential social setting "family," violated the WHPA as set forth in RCW similar to that found in a family. 35A.63.240. [121 This argument is without merit. The WHPA prohibits Home Occupation Ordinance. We next consider the a city from treating "a residential structure occupied by City's application of the home occupation ordinance. persons with handicaps differently than a similar PMC 22.35.010 states the purpose of the home occupation residential structure occupied by a family or other chapter as follows: "A home occupation chapter is unrelated individuals." RCW 35A.63.240 (emphasis established to provide a means whereby the conduct of added). Contrary to the position advocated by the City, business may be permitted as a use accessory to an the WHPA requires that only the residential structures established residence within a residential district." must be "similar," not that the living arrangements and (Emphasis added.) Sunderland has established that the supervision must be similar to that in a "family." Nothing home will be used for only residential purposes and that in the WHPA authorizes cities or courts to examine the all other services will be performed offsite. As a result, level of supervision within a residential structure in order Sunderland does not seek approval for a "use accessory" to determine that the handicapped persons will be living to residential use. in a setting similar to a "family." Sunderland's use of the property also does not fall within WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works 8 Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 the general definition of "home occupation" found in (e) No media or other off - premises advertising shall PMC 22.35.020, which provides, in part: " `Home give the address or location of the home occupation; occupation' means a profession, trade, skill or service possessed and utilized, in whole or in part, by a family (f) No outside storage of materials, supplies, products member(s) for monetary gain within or upon the premises or by- products, or equipment, except a single of a permanent dwelling unit in a residential district." occupational vehicle *127 not exceeding 10,000 (Emphasis added.) * *964 The supervision performed at pounds Gross Vehicle Weight (GVW); the Sunderland home will generally not be performed by "family" members. Nevertheless, the City applied the (g) Be conducted solely by persons residing within the home occupation ordinance because PMC 22.35.020 also dwelling unit upon the premises, subject to the provides that the "home occupation" definition does not definition offamily; apply to conditional or *126 unclassified uses that require a special use permit. (h) Except for articles produced thereon, no merchandise, products, goods or wares may be The City argues its application of the home occupation displayed or offered for sale upon the premises; ordinance grants preferential treatment to group care (i) No occupation requiring the customer or client to be facilities by permitting group care facilities to operate present upon the premises while the profession, trade, home occupations in circumstances where a family would skill or service is performed shall be allowed, not be permitted to do so. But this "preferential treatment" allows the City to exclude any group care (j) Noise generated by the home occupation, detectable facilities from a residential neighborhood because the at any property line, shall not be in excess of the home occupation ordinances are applied differently to following standards: families than to group care facilities. When applied to a "family," the home occupation ordinance evaluates (1) 8:00 a.m. to 8:00 p.m.: 55 dba, accessory uses in addition to the dwelling's primary use as a residence. When applied to the Sunderland home, (2) 8:00 p.m. to 8:00 a.m.: 45 dba; the home occupation ordinance permitted the City to deny residential use based on standards developed to evaluate (Emphasis added.) an accessory use. In short, the City's "preferential treatment" permitted the City to apply the home In its decision denying the SUP, the City applied PMC ordinance standards to residential care facilities that 22.35.050(a), (g), and (i). These environmental standards would not otherwise fall within the definition of "home rely on the concept of accessory use and the definition of occupation." family. Effectively, a "family" was the only entity that could meet these standards. The City denied the SUP based on PMC 22.35.050, which sets forth the environmental standards for home First, the environmental standards require that the home occupations. This provision reads as follows: occupation be subordinate to the principal use of the property for dwelling purposes. PMC 22.35.050(a). Here, 22.35.050 ENVIRONMENTAL STANDARDS. All the "business" is necessary to permit residential use -not home occupations shall conform to the following an accessory use -of the property by handicapped children. standards: Second, the environmental standards require that the business must be conducted by persons residing in the (a) Be clearly subordinate to the principal use of the residence, "subject to the definition of family." PMC property for residential purposes; 22.35.050(g). This standard disallows the presence of any residential or nonresidential staff, denying specialized (b) Not involve modification of the property or exterior supervision and care unless it can be performed by a of its structures that indicates other than residential uses family member. Third, the environmental standards of the premises; require that the home occupation be one that does not require the customer or client to be on the premises. PMC (c) Is performed entirely within a permanent structure * *965 22.35.050(1). Here, the "clients" are residents, not upon the premises; visitors. (d) No signs, display or other advertisement upon the property; A reading of the City's decision denying the permit demonstrates the difficulty of applying these provisions to *128 the "family" composed of potential Sunderland WestlawNext• © 2015 Thomson Reuters. No claim to original U.S. Government Works_ 9 Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 residents. Although the City made a fmding related to occupation environmental standards, handicapped increased traffic intensity, the City also found that the children who required specialized care were denied access proposed home would require greater professional to a single- family home in Pasco based on their handicap supervision, and that "[n]o other residential structure in and their familial status. In short, handicapped children the neighborhood can have a licensed business on who required specialized care offered by the proposed premises with non - resident employees and clientele that Sunderland home were denied access to such care do not reside at the structure independent of the home because *129 the care was not offered in a setting that fit business activity." Administrative Record: Findings, within the City's defmition of "family." In effect, the Conclusions and Decision for Denial of Special Use Pasco regulatory scheme is even more restrictive than the Permit, at tab 18, p. 3. Consequently, the City based its scheme challenged in Children's Alliance. While the denial of the SUP on the conclusions that (1) the nature Children's Alliance scheme imposed restrictions on group and intensity of the use was not subordinate to the homes, the Pasco scheme operated to prevent principal permitted use of the property, and (2) that the handicapped children from receiving the residential care proposed use was not in harmony with the existing and supervision they require under any circumstances. residential development in the neighborhood. Our scope of review is limited; we review the In effect, the City exempted Sunderland from the administrative record to determine whether the City's defmition of "home occupation," in order to apply the land use decision here should be affirmed, reversed, or home occupation standards. When applying the standards, remanded. We reverse the City's land use decision however, the City complained that the nature and because it violates the WHPA. Sunderland is entitled to intensity of the use was different precisely because the immediately occupy and operate the proposed home at the facility required "professional staff, rotating nonresident location for which it made application. In view of our shift employees, volunteers and other professionals disposition, we need not consider the other issues raised providing services" and none of the neighboring on appeal. residential structures would be able to operate a home business with nonprofessional staff and clientele. Administrative Record: Findings, Conclusions and Decision for Denial of Special Use Permit, at tab 18, p. 5. WE CONCUR: SCHULTHEIS, J., and SWEENEY, J, Simply stated, the City denied the SUP because the proposed Sunderland home would not be occupied by a "family" and because the proposed home needed to employ paid staff in order for handicapped children to All Citations live there. 107 Wash.App. 109, 26 P.3d 955, 21 NDLR P 125 1131 Because of the City of Pasco's definitions of "family" and "home occupation," and the application of the home Footnotes 1 " The ultimate question in a disparate treatment case is whether the defendant intentionally discriminated against plaintiff.' " Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10th Cir.1995) (quoting Nonce v. Vigil, 1 F.3d 1085, 1088 (10th Cir.1993)). The disparate impact analysis examines a facially - neutral policy or practice for its differential effect on a particular group. Id. at 1501 (citing Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934 -39 (2nd Cir.), aff'd in part, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988)). Several courts have concluded that a discriminatory impact cannot be established based on one isolated claim. Bryant Woods, 911 F.Supp. at 939. 2 Because the issues here revolve around the definition and use of the term "family," our discussion is limited to the portion of the WHPA that addresses disparate treatment caused by handicapped and familial status. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Sunderland Family Treatment Services v. City of Pasco, 107 Wash.App. 109 (2001) 26 P.3d 955, 21 NDLR P 125 4restlawNext © 2015 Thomson ir rs. No claim to original U.S. Government Works. 1's Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 183 Wash.App. 191 Court of Appeals of Washington, Division 1. 121 Zoning and Planning POTALA VILLAGE KIRKLAND, LLC, a O.- Change of regulations as affecting right Washington limited liability company, and Lobsang Dargey and Tamara Agassi Dargey, a Under the date certain standard used in the married couple, Respondents, vested rights doctrine, developers are entitled to v. have a land development proposal processed CITY OF KIRKLAND, a Washington municipal under the regulations in effect at the time a corporation, Appellant. complete building permit application is filed, regardless of subsequent changes in zoning or No. 70542 -3 -I. I Aug. 25, 2014. other land use regulations. West's RCWA 19.27.095(1). Synopsis Cases that cite this headnote Background: Property developers filed action against city seeking writ of mandamus directing city to accept and process building permit application for proposed project. The Superior Court, King County, Monica Benton, J., granted summary judgment in favor of 131 Constitutional Law developers and issued writ. City appealed. •- Particular issues and applications Zoning and Planning (r . Change of regulations as affecting right [Holding:] The Court of Appeals, Cox, J., held that developers' filing of application for shoreline substantial A date certain standard, as used in the vested development permit did not vest rights to zoning rights doctrine, which provides that the zoning ordinances for entire project that existed on date of or other land use control ordinances in effect on application. the date the developer's complete building permit application is filed, ensures that new land -use ordinances do not unduly oppress Reversed and remanded with directions. development rights, thereby denying a property owner's right to due process under the law. U.S.C.A. Const.Amend. 14; West's RCWA 19.27.095(1). West Headnotes (5) 2 Cases that cite this headnote ii Zoning and Planning 4 of regulations as affecting right 141 Zoning "Vested rights doctrine," under which, upon the e 0-Change Planning ge of regulations as affecting right filing of a valid and fully complete building permit application, the zoning or other land use Developers' filing of completed application for control ordinances in effect on the date of the shoreline substantial development permit for application control, strongly protects the right to portion of project prior to city's moratorium on develop property. West's RCWA 19.27.095(1). certain building permits did not vest rights to zoning or other land use control ordinances for Cases that cite this headnote entire project that existed on date of filing, absent filing of completed building permit WestlawNext' © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 ~ application; statute governing vested rights event, the "zoning or other land use control ordinances in doctrine only referred to building permits and effect on the date of the application" shall control.' did not include shoreline substantial development permits, and no law prevented ¶ 2 Here, Lobsang Dargey, Tamara Agassi Dargey, and developer from filing building permit Potala Village Kirkland, LLC (collectively "Potala application prior to moratorium. West's RCWA Village ") sought to develop certain real property in the 19.27.095(1). City of Kirkland. Potala Village filed a complete application for a shoreline substantial development permit on February 23, 2011. But it did not file an application for 1 Cases that cite this headnote a building permit before the City imposed a moratorium on the issuance of certain permits. The filing of the application for the shoreline substantial development permit is not a building permit application. Thus, it did 151 not vest on February 23, 2011 rights to then - existing Zoning and Planning zoning or other land use control ordinances. We reverse ....Change of regulations as affecting right the grant of summary judgment to Potala Village and remand with directions to grant summary judgment to the Filing of an application for the shoreline City. substantial development permit, without filing an application for a building permit, does not ¶ 3 The material facts are undisputed, as all parties vest rights to zoning or other land use control expressly acknowledge in their appellate briefmg. ordinances. West's RCWA 19.27.095(1). IF 4 Potala Village sought to construct a large mixed -use Cases that cite this headnote project in the Neighborhood Business ("BN") Zone of the City. The project is to include residential, retail, and commercial space. if 5 Potala Village had two meetings with the City in 2009 and 2010. These meetings resulted in a determination that Attorneys and Law Firms multiple permits for the project would be required. Because a small portion of the project is to be located * *1144 Stephanie Ellen Croll, Keating Bucklin & within an area subject to state and local shoreline laws, McCormack Inc. PS, Seattle, WA, Robin Jenkinson, City Potala Village was *195 required to file an application Attorney, Kirkland, WA, for Appellant. with the City for a shoreline substantial development permit. Duana Theresa Kolouskova, Johns Monroe Mitsunga Kolouskova PLLC, Bellevue, WA, for Respondent. ¶ 6 On February 23, 2011, Potala Village filed an application for a shoreline substantial development permit Roger D. Wynne, Seattle City Attorney's Office, Seattle, for the portion of the proposed development within the WA, Amicus Curiae on behalf of Wa State Association of shoreline area.' It did not file an application for a building Municipal Attorneys. permit for the entire proposed development, although no law prohibited it from doing so. On May 11, 2011, the Tim Trohimovich, Futurewise, Jeffrey M. Eustis, City issued a letter of completeness for the shoreline Aramburu & Eustis LLP, Seattle, WA, Amicus Curiae on behalf of Futurewise. substantial development permit application. Opinion ¶ 7 An organized group of neighbors publicly voiced objections to the proposed development. The group COX, J. particularly objected to the proposed residential density for Potala * *1145 Village. It appears that surrounding residential properties are zoned for a maximum density of *194 If 1 Washington's vested rights doctrine originated at 12 units per acre. common law but is now statutory.' Under RCW 19.27.095(1), vesting occurs on the filing of a "valid and If 8 On November 15, 2011, the City enacted an ordinance fully complete building permit application." In such an imposing an emergency development moratorium on the WestlawNexf• © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 BN zone. The moratorium temporarily precluded the issuance of permits in the BN zone. As of the date of the moratorium, Potala Village still had not filed an application for a building permit. VESTED RIGHTS DOCTRINE ¶ 9 On May 1, 2012, the City Council extended the ¶ 17 The City argues that Potala Village did not file an moratorium for six months. Shortly thereafter, Potala application for a building permit and, thus, it had no right Village commenced this action against the City, alleging to vest to the zoning or other land use control ordinances multiple causes of action and seeking declaratory and that existed at the time it filed its shoreline substantial other relief. development permit application on February 23, 2011. We agree. If 10 Potala Village attempted to file a building permit application on October 16, 2012. The City declined to 197 ¶ 18 This court reviews the grant of summary accept it because of the existing moratorium. Later that judgment de novo.' Summary judgment is appropriate same day, the City extended the moratorium for the fmal only where there is no genuine issue of material fact and time. the moving party is entitled to a judgment as a matter of law. This case presents a question of law, which this ¶ 11 On December 11, 2012, the City Council amended court reviews de novo.' the city zoning code in a number of ways. For purposes of this action, the code changes to the BN zone placed a limit on residential density of 48 units per acre. As amended, the *196 code limits Potala Village's project to Background 60 units instead of the 143 units that it sought to construct. 111 [21 ¶ 19 The vested rights doctrine "originated at common law. " "Washington's vested rights doctrine ¶ 12 The City approved Potala Village's shoreline strongly protects the right to develop property. " This substantial development permit application on January 17, doctrine uses a "date certain" standard.'° "Under the date 2013. certain standard, developers are entitled `to have a land development proposal processed under the regulations in ¶ 13 All parties to this litigation moved for summary effect at the time a complete building permit application judgment. The City argued that Potala Village's failure to is filed, regardless of subsequent * *1146 changes in file a completed building permit application before the zoning or other land use regulations.' "" building permit moratorium of November 15, 2011 precluded vesting of rights to zoning or other land use 131 ¶ 20 A date certain standard "ensures that `new control ordinances in effect prior to that date. It argued land -use ordinances do not unduly oppress development that the filing of the shoreline substantial development rights, thereby denying a property owner's right to due permit application on February 23, 2011 did not vest such process under the law.' " This is the minority approach rights. within the United States, and " `it offers [greater] protection of [developers' *198 ] rights than the rule If 14 Potala Village disagreed. It took the position that the generally applied in other jurisdictions.' " filing of its completed shoreline substantial development permit application on February 23, 2011 for a portion of if 21 In the 1950s, the supreme court first adopted the the project was sufficient to vest rights to the zoning or common law vested rights doctrine. In Ogden v. City of other land use control ordinances in effect on that date for Bellevue" and Hull v. Hunt, the supreme court explained the entire project. It sought a writ of mandamus directing that the right to construct in accordance with the "zoning the City to accept and process a building permit ordinances and building codes in force at the time of application for the project. application for the permit" vests when a party applies for a "building permit. " ¶ 15 The trial court granted summary judgment to Potala Village and issued a writ of mandamus. The court denied ¶ 22 In cases that followed, Washington courts applied the the City's motion for reconsideration. vested rights doctrine to permit applications other than building permit applications." They included conditional ¶ 16 The City appeals. use permit applications," grading permit applications," shoreline substantial development permit applications," WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 and septic permit applications. applications" In support, the developer cited a 1974 case from this court, Talbot v. Gray, which applied the 1123 In 1987, the legislature enacted legislation regarding doctrine to a shoreline permit. The developer also cited the vested rights doctrine. The session laws added two other case authority applying the doctrine to other types new sections to chapter 19.27 RCW and chapter 58.17 of permit applications." Notably, all of the cited cases RCW, which were later codified at RCW 19.27.095(1) preceded the 1987 legislation codifying the doctrine to the and *199 RCW 58.17.033(1) respectively. The session extent specified in the statutes. laws provide in relevant part as follows: If 26 The supreme court agreed with the developer in Erickson that prior cases applied the doctrine in other NEW SECTION. Sec. 1. A new section is added to contexts besides building permits. But it concluded that chapter 19.27 RCW to read as follows: the vested rights doctrine was not a "blanket rule" requiring municipalities to process all permit applications (1) A valid and fully complete building permit according to the rules in place at the outset 3 Rather, this application for a structure, that is permitted under doctrine was designed to place limits on the the zoning or other land use control ordinances in municipalities' *201 discretion to allow developers to effect on the date of the application shall be plan with " `reasonable certainty.' " considered under the building permit ordinance in effect at the time of application, and the zoning or ¶ 27 Years later, in Abbey Road Group, LLC v. City of other land use control ordinances in effect on the Bonney Lake, the supreme court further developed what it date of application. said in Erickson concerning the effect of the 1987 legislation. There, the issue was whether the filing of a ••• site plan without also filing a building permit application vested Abbey Road's development rights. The supreme NEW SECTION. Sec. 2. A new section is added to court affirmed the court of appeals' decision, which held chapter 58.17 RCW to read as follows: that filing a building permit application was necessary. (1) A proposed division of land, as defined in RCW 58.17.020, shall be considered under the subdivision ¶ 28 In reaching that result, the supreme court stated that or short subdivision ordinance, and zoning or other Erickson largely controlled its decision" The court land use control ordinances, in effect on the land at confirmed that in the absence of a local vesting ordinance the time a fully completed application for specifying an earlier vesting date, "RCW 19.27.095(1) is preliminary plat approval of the subdivision, or the applicable vesting rule. " Noting Abbey Road's short plat approval of the short subdivision, has failure to address this statute, the court rejected the been submitted to the appropriate county, city, or request to overrule its decision in Erickson. And the town official. court expressly rejected the invitation to extend * *1148 **1147 As shown by the emphasized language, these the vested rights doctrine to other situations, stating in a statutory sections only refer to building permit footnote: applications and subdivision applications." ¶ 24 In 1994, the supreme court considered whether the Abbey Road also argues that we should expand the vested rights doctrine applied to master use permit (MUP) vested rights doctrine based on case law, contending applications 25 In Erickson & Associates, Inc. v. that there is no "rational reason" for refusing to expand McLerran, a developer filed a completed MUP the doctrine to site plan applications when the courts application." After the application filing, a city ordinance have done so in other contexts.... See Juanita Bay became effective, which adversely impacted the proposed Valley Cmty. Assn v. City of Kirkland, 9 Wash.App. project that was the *200 subject of the application." The 59, 510 P.2d 1140 (1973) (grading permit developer argued that the vested rights doctrine applied to applications); Talbot v. Gray, 11 Wash.App. 807, * 525 the MUP application" The supreme court disagreed, P.2d 801 (1974) (shoreline permit applications); 202 holding that the doctrine did not apply to the filing of Ford v. Bellingham— Whatcom County Dist. Bd. of MUP applications.' Health, 16 Wash.App. 709, 558 P.2d 821 (1977) (septic tank permit application); Beach v. Bd. of Adjustment, ¶ 25 In its analysis, the court referred to the 1987 73 Wash.2d 343, 438 P.2d 617 (1968) (conditional use legislation that codified the common law doctrine, at least permit applications); Weyerhaeuser v. Pierce County, to the extent specified in the statutes3° The developer 95 Wash.App. 883, 976 P.2d 1279 (1999) (conditional argued that the doctrine was not limited to building permit use permit applications). Again, in Erickson, we WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 considered and rejected similar arguments, and we * *1149 A valid and fully complete are not persuaded to overrule our analysis or holding building permit application for a in Erickson."' structure, that is permitted under ¶ 29 The court then stated that it could not ignore the the zoning or other land use control legislative directive set forth in RCW 19.27.095(1). And ordinances in effect on the date of it also said that this 1987 statute and the analysis in the application shall be considered Erickson superseded a prior case to the contrary. under the building permit ordinance in effect at the time of application, ¶ 30 Importantly, the Abbey Road court stated that the and the zoning or other land use legislature, not the judiciary, is best suited to reform the control ordinances in effect on the vested rights doctrine: date of application. Abbey Road urges this court to establish a uniform vesting point "for every land use permit application As previously noted, the plain words of this statute regardless of the permit's name or what it does or does include "building permits" but do not include shoreline not do." We find that such a rule would eviscerate the substantial development permits. We must presume that balance struck in the vesting statute. While some of the legislature *204 was aware of the then - existing Abbey Road's arguments could support a change in the common law regarding the vested rights doctrine when it law, instituting such broad reforms in land use law is passed this legislation.' Yet the legislature only codified a job better suited to the legislature. the vested rights doctrine to the extent of building permits in this section of the session laws. Thus, we further ¶ 31 Most recently, in Town of Woodway v. Snohomish conclude from the exclusion of shoreline substantial County, the supreme court reiterated that "[w]hile it development permits that the legislature intended that the originated at common law, the vested rights doctrine is vested rights doctrine would not extend to such permits.' now statutory. " This statement is fully consistent with the case law and statutes that we have discussed in tracing ¶ 36 The Final Bill Report for enactment of this the development of the vested rights doctrine. legislation in 1987 reinforces our conclusion. It states as follows: FINAL BILL REPORT *203 Application SSB 5519 141 ¶ 32 Here, the issue is whether, in the absence of filing a building permit application, the vested rights doctrine applies to vest rights to zoning or land use control SYNOPSIS AS ENACTED ordinances for the project that existed at the time Potala Village filed its shoreline substantial development permit BACKGROUND: application on February 23, 2011. The validity of the moratorium on the issuance of permits that the City Washington State has adhered to the current vested imposed before Potala Village attempted to file its rights doctrine since the Supreme Court case on State building permit application is not at issue in this appeal. ex rel. Ogden v. Bellevue, 45 Wash.2d 492 [275 P.2d 899] (1954). The doctrine provides that a party filing a ¶ 33 To resolve the issue on appeal, we are guided by the timely and sufficiently complete building permit supreme court's decisions in Erickson and Abbey Road application obtains a vested right to have that and its most recent statement in Town of Woodway: application processed according to zoning, land use and "While it originated at common law, the vested rights building ordinances in effect at the time of the doctrine is now statutory. "49 application. The doctrine is applicable if the permit application is sufficiently complete, complies with 151 11 34 With these points in mind, we hold that the filing existing zoning ordinances and building codes, and is of the application for the shoreline substantial filed during the period the zoning ordinances under development permit, without filing an application for a which the developer seeks to develop are in effect. If a building permit, did not vest rights to zoning or other land developer complies with these requirements, a project use control ordinances. cannot be *205 obstructed by enacting new zoning ordinances or building codes. West Main Associates v. ¶ 35 We turn first to RCW 19.27.095(1), which states: Bellevue, 106 Wash.2d 47 [720 P.2d 782] (1986). WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 Grays' neighbors, the Talbots and the Hartmans, brought SUMMARY: The vested rights doctrine established by an action to permanently enjoin the City from authorizing case law is made statutory, with the additional the construction of a dock in the shoreline area along requirement that a permit application be fully Lake Washington.fi completed for the doctrine to apply. The vesting of rights doctrine is extended to applications for ¶ 42 Primarily at issue was whether the City had correctly preliminary or short plat approval. The requirements applied the provisions of its zoning ordinance in issuing for a fully completed building permit application or the permit for construction of the dock. This court preliminary on short plat application shall be defined construed the City zoning ordinance and rejected the by local ordinances' contention that the dock was not permitted as an "accessory use. " ¶ 37 The background statement shows that the legislature was aware of the common law origins of this doctrine, *207 ¶ 43 The court then considered the contention that citing Ogden. Notably, that was a case that applied the the owners of the property where the dock was to be built doctrine to a building permit. Thus, the legislature chose had not given proper notice under the Shoreline to codify the vested rights doctrine, but only to the extent Management Act of 1971, as implemented by Seattle's of building permits, as the plain language of the statute ordinance. Specifically, the notice was given as required specifies. by the state statute and before the effective date of the Seattle implementing ordinance.' Thus, the question was ¶ 38 We also note that the legislature also chose to extend which notice provision prevailed." the vested rights doctrine to completed applications for preliminary plat approval of subdivisions or short plat ¶ 44 This court answered the question as follows: approval for short subdivisions at the same time it codified the doctrine to the extent of building permits. We [The permit applicant's] obligations and rights to conclude from this that the legislature considered a wider develop vested on November 18, 1971, when they scope of permit * *1150 types to which the doctrine might applied for a substantial development permit The apply beyond building permits. Yet, the Legislature chose applicable rule adopted by the court in Hull v. Hunt, 53 not to include applications for shoreline substantial Wash.2d 125, 331 P.2d 856 (1958) and recently development permits within its 1987 codification of the approved in Eastlake Community Council v. Roanoke vested rights doctrine. Because these statutes are Assoc., Inc., 82 Wash.2d 475, 481, 513 P.2d 36 (1973) essentially the same now as when first enacted, we is conclude the extent of codification of the vested rights "[T]he right vests when the party ... applies for his doctrine remains the same. building permit, if that permit is thereafter issued. This rule, of course, assumes that the permit applied for and ¶ 39 Potala Village ignores RCW 19.27.095(1). It also granted be consistent with the zoning ordinances and fails to persuasively address Town of Woodway, Abbey building codes in force at the time of application for the Road, and *206 Erickson, all of which trace the supreme permit. " court's evolving views on whether and to what extent the vested rights doctrine applies. ¶ 45 Potala Village argues that we should read Talbot to require applying the vested rights doctrine to this case, If 40 The trial court granted Potala Village's motion for despite its failure to file an application for a building summary judgment and issued a writ of mandamus permit * *1151 before passage of the moratorium. We directing the City to accept and process Potala Village's decline to do so. building permit applications' In doing so, the trial court cited in its order this court's 2013 decision that preceded 1146 First, in that case, the property owners who sought to the supreme court's decision in Town of Woodway. We construct a dock in the shoreline area applied for and view this citation as likely a reference to language in this received what can properly be described as a building court's opinion that cited Talbot in the discussion of the permit under the City's zoning ordinances. Here, unlike development of the vested rights doctrine over time. *208 that case, Potala Village failed to file any Accordingly, we turn to this court's 1974 decision in application for a building permit before the moratorium Talbot to consider its effect on the question before us. went into effect. ¶ 41 There, the City of Seattle granted the Grays "a ¶ 47 Second, as the above excerpt from Talbot shows, this permit" authorizing them to construct a dock. The court applied the common law rule regarding vested rights for building permit applications to the shoreline WesttawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 substantial development permit application under the facts that "the vested rights doctrine is now statutory."" Given of that case 6 But we do not read that 1974 decision to the supreme court's statements in these cases, we reject support Potala Village's argument in this case —that the Potala Village's arguments to the contrary. February 23, 2011 filing of an application for a shoreline substantial development permit for a portion of this ¶ 55 Third, Potala Village argues that "Abbey Road and project vests rights to the zoning or land use control Erickson are substantively irrelevant because both cases ordinances for the entire project that existed as of that addressed permits which were exclusively created by date. We simply cannot agree with this argument because cities, unlike the state's shoreline permit requirement. " It it directly contradicts the development of the law in *210 also asserts that the shoreline permit review process Erickson, Abbey Road, and Town of Woodway. is rigorous and much like the building permit review process. Whether or not these assertions are true, the If 48 Potala Village makes a number of arguments to legislature has not extended vested rights principles to support its assertion that the vested rights doctrine applies shoreline permits. Potala Village points to no authority to shoreline substantial development permits. None are that allows this court to "ignore the legislative directive" persuasive. that vested rights principles applies in specified circumstances, which do not include shoreline permits. ¶ 49 First, Potala Village cites a number of cases to Thus, these arguments are not persuasive. support its assertion. ¶ 56 Fourth, Potala Village cites Noble Manor Co. v. ¶ 50 Two of these cases on which it relies were decided Pierce County to assert that the "vested rights doctrine before the 1987 legislation that we discussed previously was originally established through common law, but now in this opinion. Thus, they are not persuasive. is based on both common law and statutory authority, depending on the type of permit application involved. " ¶ 51 Potala Village also relies on the supreme court case, Buechel v. State Department of Ecology, which was ¶ 57 There, the supreme court was concerned with the decided after 1987. But that case did not expressly filing of a short plat application. It explained the consider the issue present in this case because the development of vested rights: landowner applied for a building permit and a variance. Thus, that case is unlike this case where there is no building permit application. At common law, this state's doctrine of vested rights entitled developers to have a land development *209 ¶ 52 Two other cases that Potala Village cites are proposal processed under the regulations in effect at the not supreme court cases and were decided before Abbey time a complete building permit application was filed. Road and Town of Woodway. Thus, they are not Erickson & Assocs., Inc. v. McLerran, 123 Wash.2d persuasive. 864, 867 -68, 872 P.2d 1090 (1994). The doctrine at common law was extended to a number of different ¶ 53 Second, Potala Village contends that Abbey Road types of permits, but it was never extended to and Erickson recognize that statutes "supplement[ ] applications for preliminary plat approval or short plat common law vesting. " It points to language in these approval. opinions that it claims supports recognizing the common In 1987, the Legislature (1) codified the traditional law vested rights doctrine. Abbey Road points to common -law vested rights doctrine regarding vesting Erickson, which stated, upon application of building permits, and (2) enlarged the vesting doctrine to also apply to Erickson contends the Court of Appeals decision in this subdivision and short subdivision applications. The case conflicts with prior decisions applying the vested two parts of that statute were codified at *211 RCW rights doctrine in other contexts. See, e.g., Talbot v. 19.27.095 (in the state building code statute) and Gray, 11 Wash.App. 807, 811, 525 P.2d 801 (1974) RCW 58.17.033 (in the plats and subdivision (shoreline permit).... We agree with Erickson that our statute)." prior cases apply the vested rights doctrine in other Importantly, the supreme court did not consider whether contexts besides building permits. these statutes replaced the common law doctrine for ¶ 54 But, as previously discussed, the supreme court also "different types of permits. " The court did not need to explained in those cases that the legislature "codified address this issue because the short plat permit application these judicially recognized principles" in 1987. And was addressed by the statutes. most * *1152 recently the supreme court expressly stated ¶ 58 However, Noble Manor contains language that WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 supports Potala Village's argument that the vested rights doctrine is now "based on both common law and statutory The City denies a developer the ability to vest rights authority, depending on the type of permit application until after a series of permits is obtained. The ordinance involved. " There, the Noble Manor court explained why thus is unduly oppressive upon individuals. As the trial Erickson did not extend the vested rights doctrine to court noted, the pre - application procedures established master use permit applications: by the ordinance are vague and discretionary. The City delays the vesting point until well after a developer first There was no case law or statutory authority to applies for City approval of a project, and reserves for support extending the vested rights doctrine to MUP itself the almost unfettered ability to change its applications. This is in contrast to the present case ordinances in response to a developer's proposal. The where the Legislature has extended the doctrine to plat ordinance completely upsets our vesting doctrine's applications. The Erickson decision stands for the protection of a citizen's constitutional right to develop proposition that this Court will not extend the vested property free of the "fluctuating policy" of legislative rights doctrine by judicial expansion. However, the bodies. Court of Appeals decision in the present case is * *1153 If 64 Here, Potala Village fails to cite any law that based not on common -law extension of the doctrine but prevented it from filing a building permit application on the legislative extension of the doctrine to before the November 2011 moratorium. Thus, West Main subdivision applications in RCW 58.17.033. Associates does not support the argument. If 59 While this language from Noble Manor supports Potala Village's argument, this case came before Abbey If 65 The parties have expressly agreed that there are no Road and Town of Woodway, where the supreme court genuine issues of material fact. Thus, we do not consider appears to have rejected the notion that the vested rights arguments to the extent they are based on alleged factual doctrine is based on both common law and statutes. disputes over communications between Potala Village and the City regarding the possible filing of a building permit *212 If 60 Similarly, Potala Village cites Weyerhaeuser v. prior to the time Potala Village actually applied for one. Pierce County to assert that the "vested rights doctrine, And, as we stated previously in this opinion, the validity and the protections it affords, are the same protections of the moratorium is not at issue in this appeal. Thus, irrespective of whether the doctrine applies as a result of there is no reason to apply the principles of West Main common law or statute. " But, as just discussed, that Associates to this case. Division Two case also came before Abbey Road and Town of Woodway. Moreover, the Abbey Road court * *1154 ¶ 66 To summarize, Potala Village's failure to file expressly rejected a similar argument regarding a completed application for a building permit before Weyerhaeuser. Thus, that case is also not helpful. enactment of the City's moratorium on certain permits bars the vesting of rights to zoning or other land use ¶ 61 Fifth, Potala Village contends that the City control ordinances for the entire project. The filing of "improperly frustrated the building permit application Potala Village's completed application for a shoreline process by asserting it could require a new building substantial development permit for a portion of the project permit application in the event it required any changes to on February 23, *214 2011 did not vest rights to the the project after shoreline review. " Potala Village asserts zoning or other land use control ordinances for the entire that this case is like West Main Associates v. City of project that existed on that date. Bellevue. But that case is distinguishable. ¶ 67 The City states in its briefmg that Talbot, the 1974 If 62 There, the supreme court explained that a person's decision of this court, may support permit vesting to the right to develop property is "beyond question a valuable "shoreline regulations in effect" at the time of its right in property. " And this right is partly protected by application for the shoreline substantial development the vested rights doctrine." permit. Because that question is not before us, we express no opinion on it. If 63 The court then considered whether a Bellevue ordinance met the due process standards of the Fourteenth If 68 Finally, we express no opinion on whether or to what Amendment 95 That ordinance required a person to take a extent the vested rights doctrine applies to permits other number of steps before filing a building permit than shoreline substantial development permits. These application, which would give the person the ability to questions are not before us. vest rights in the existing *213 laws. The court concluded that the ordinance violated due process: WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 DECLARATORY JUDGMENT directions to the trial court to grant the City's cross - motion for summary judgment and dismissal. ¶ 69 The City argues, in the alternative, that even if Potala Village's rights vested to zoning or other land use control ordinances for the project upon filing of the completed application for the shoreline substantial development permit application, it is not entitled to relief under the WE CONCUR: TRICKEY and LEACH, JJ. Uniform Declaratory Judgments Act. Because the vested rights doctrine does not apply to shoreline substantial All Citations development permits permit, we need not address that argument. 183 Wash.App. 191, 334 P.3d 1143 ¶ 70 We reverse the order granting Potala Village's motion for summary judgment. We remand with Footnotes Town of Woodway v. Snohomish County, 180 Wash.2d 165, 173, 322 P.3d 1219 (2014). 2 RCW 19.27.095(1). 3 Appellant City of Kirkland's Opening Brief at 5-6; Respondents' Opening Brief at 3. 4 Respondents' Opening Brief at 6. 5 Snohomish County v. Rugg, 115 Wash.App. 218, 224, 61 P.3d 1184 (2002). 6 CR 56(c). 7 Town of Woodway, 180 Wash.2d at 172, 322 P.3d 1219. 8 Id. at 173, 322 P.3d 1219. 9 Id. at 172, 322 P.3d 1219. 10 Id. 11 Id. at 172 -73, 322 P.3d 1219 (quoting Abbey Road Group, LLC v. City of Bonney Lake, 167 Wash.2d 242, 250, 218 P.3d 180 (2009)). 12 Abbey Road, 167 Wash.2d at 251, 218 P.3d 180 (quoting Valley View Indus. Park v. City of Redmond, 107 Wash.2d 621, 637, 733 P.2d 182 (1987)). 13 Town of Woodway, 180 Wash.2d at 173, 322 P.3d 1219 (alterations in original) (quoting Abbey Road, 167 Wash.2d at 250, 218 P.3d 180). 14 45 Wash.2d 492, 496, 275 P.2d 899 (1954). 15 53 Wash.2d 125, 130, 331 P.2d 856 (1958). 16 Id.; see also Ogden, 45 Wash.2d at 496, 275 P.2d 899 ("The right accrues at the time an application for a building WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 permit is made." (emphasis added)). 17 See Roger D. Wynne, Washington's Vested Rights Doctrine: How We have Muddled a Simple Concept and How We Can Reclaim It, 24 SEATTLE U.L.REV. 851, 866-67 (2001). 18 Beach v. Bd. of Adjustment of Snohomish County, 73 Wash.2d 343, 347, 438 P.2d 617 (1968). 19 Juanita Bay Valley Cmty. Ass'n v. City of Kirkland, 9 Wash.App. 59, 84, 510 P.2d 1140 (1973). 20 Talbot v. Gray, 11 Wash.App. 807, 811, 525 P.2d 801 (1974). 21 Ford v. Bellingham — Whatcom County Dist. Bd. of Health, 16 Wash.App. 709, 715, 558 P.2d 821 (1977); Thurston County Rental Owners Ass'n v. Thurston County, 85 Wash.App. 171, 182, 931 P.2d 208 (1997). 22 Laws of 1987, ch. 104, §§ 1 -2. 23 Id. (emphasis added). 24 Id. 25 Erickson & Assocs., Inc. v. McLerran, 123 Wash.2d 864, 867, 872 P.2d 1090 (1994). 26 123 Wash.2d 864, 866, 872 P.2d 1090 (1994). 27 Id. at 866-67, 872 P.2d 1090. 28 Id. at 867, 872 P.2d 1090. 29 Id. at 877, 872 P.2d 1090. 30 Id. at 868, 872 P.2d 1090. 31 Id. at 871 -72, 872 P.2d 1090. 32 Id. at 871, 872 P.2d 1-090 (citing Talbot v. Gray, 11 Wash.App. 807, 811, 525 P.2d 801 (1974), review denied, 85 Wash.2d 1001, 1975 WL 48163 (1975)). 33 Id. at 871 -72, 872 P.2d 1090 (citing Juanita Bay Valley Cmty. Ass'n, 9 Wash.App. at 83-84, 510 P.2d 1140; Ford, 16 Wash.App. at 715, 558 P.2d 821; Norco Constr., Inc. v. King County, 97 Wash.2d 680, 649 P.2d 103 (1982)). 34 See id. 35 Id. at 872 -73, 872 P.2d 1090. 36 Id. at 873, 872 P.2d 1090. 37 Id. (quoting West Main Assocs. v. City of Bellevue, 106 Wash.2d 47, 51, 720 P.2d 782 (1986)). 38 167 Wash.2d 242, 251, 218 P.3d 180 (2009) (citing RCW 19.27.095(1)). WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 39 Id. at 249, 218 P.3d 180. 40 Id. at 248, 261, 218 P.3d 180. 41 Id. at 252, 218 P.3d 180. 42 Id. 43 Id. 252 -53, 218 P.3d 180. 44 Id. at 253 n. 8, 218 P.3d 180 (emphasis added). 45 Id. at 253, 218 P.3d 180. 46 Id. at 254, 218 P.3d 180 (citing Victoria Tower P'ship v. City of Seattle, 49 Wash.App. 755, 745 P.2d 1328 (1987)). 47 Id. at 260 -61, 218 P.3d 180 (emphasis added) (citations omitted) (citing Wynne, supra, at 916 -17). 48 180 Wash.2d 165, 173, 322 P.3d 1219 (2014) (emphasis added) (citing Erickson, 123 Wash.2d at 867 -68, 872 P.2d 1090; RCW 19.27.095(1) (building permits); RCW 58.17.033(1) (subdivision applications); RCW 36.70B.180 (development agreements)). 49 Id. 50 (Emphasis added.) 51 Woodson v. State, 95 Wash.2d 257, 262, 623 P.2d 683 (1980) ( "[T]he legislature is presumed to know the existing state of the case law in those areas in which it is legislating. "). 52 Laws of 1987, ch. 104, § 1 53 Ellensburg Cement Prods., Inc. v. Kittitas County, 179 Wash.2d 737, 750, 317 P.3d 1037 (2014) ("Where a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things omitted from it were intentionally omitted by the legislature under the maxim expressio unius est exclusion alterius— specific inclusions exclude implication." (internal quotations marks omitted)). 54 FINAL B. REP. on S.S.B. 5519, 50th Leg., Reg. Sess. (Wash.1987). 55 Ogden, 45 Wash.2d at 493, 496, 275 P.2d 899. 56 Clerk's Papers at 992 -95. 57 Id. at 995 (providing the citation, "Town of Woodway v. Snohomish County, 172 Wash.App. 643 [291 P.3d 278] (2013) "). 58 Town of Woodway v. Snohomish County, 172 Wash.App. 643, 652, 291 P.3d 278 (2013), aff'd, 180 Wash.2d 165, 322 P.3d 1219 (2014) (citing Talbot, 11 Wash.App. at 811, 525 P.2d 801). 59 Talbot, 11 Wash.App. at 808 -09, 525 P.2d 801. WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 60 Id. 61 Id. 62 Id. at 811, 525 P.2d 801. 63 Id. 64 Id. 65 Id. 66 Id. (emphasis added) (quoting Eastlake Cmty. Council v. Roanoke Assocs., Inc., 82 Wash.2d 475, 481, 513 P.2d 36 (1973)). 67 See Id., at 809, 525 P.2d 801. 68 Id., at 811, 525 P.2d 801. 69 Town of Woodway, 180 Wash.2d at 173, 322 P.3d 1219. 70 Respondents' Opening Brief at 27 (citing Norco Constr., Inc., 97 Wash.2d at 684, 649 P.2d 103; Carlson v. Town of Beaux Arts Vill., 41 Wash.App. 402, 405, 704 P.2d 663 (1985)). 71 Id. (citing Buechel v. State Dep't of Ecology, 125 Wash.2d 196, 884 P.2d 910 (1994)). 72 Buechel, 125 Wash.2d at 199 n. 2, 884 P.2d 910. 73 Respondents' Opening Brief at 27 (citing Weyerhaeuser v. Pierce County, 95 Wash.App. 883, 893 n. 12, 976 P.2d 1279 (1999); Westside Bus. Park, LLC v. Pierce County, 100 Wash.App. 599, 603, 5 P.3d 713 (2000)). 74 Id., at 35-36. 75 See Abbey Road, 167 Wash.2d at 253 n. 8, 218 P.3d 180; Erickson, 123 Wash.2d at 871 -73, 872 P.2d 1090. 76 Erickson, 123 Wash.2d at 871 -73, 872 P.2d 1090. 77 Abbey Road, 167 Wash.2d at 251, 218 P.3d 180; see also Erickson, 123 Wash.2d at 868, 872 P.2d 1090. 78 Town of Woodway, 180 Wash.2d at 173, 322 P.3d 1219 (emphasis added). 79 Respondents' Opening Brief at 39 -42. 80 Id. at 23 -27, 39-42. 81 Abbey Road, 167 Wash.2d at 253, 218 P.3d 180; see also Town of Woodway, 180 Wash.2d at 173, 322 P.3d 1219. WestlawNext" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Potala Village Kirkland, LLC v. City of Kirkland, 183 Wash.App. 191 (2014) 334 P.3d 1143 82 Respondents' Opening Brief at 29 (citing Noble Manor Co. v. Pierce County, 133 Wash.2d 269, 943 P.2d 1378 (1997)). 83 Noble Manor, 133 Wash.2d at 272, 274, 943 P.2d 1378. 84 Id. at 275, 943 P.2d 1378 (some emphasis added) (some citations omitted). 85 Id. 86 Id. 87 Respondents' Opening Brief at 29. 88 Noble Manor, 133 Wash.2d at 279 -80, 943 P.2d 1378 (emphasis added). B Respondents' Opening Brief at 29 (citing Weyerhaeuser, 95 Wash.App. 883, 976 P.2d 1279). 90 See Abbey Road, 167 Wash.2d at 253 n. 8, 218 P.3d 180. 91 Respondents' Opening Brief at 47 -50. 92 Id. at 49 (citing West Main Assocs., 106 Wash.2d 47, 720 P.2d 782). 93 West Main Assocs., 106 Wash.2d at 50, 720 P.2d 782. 94 Id. 95 Id. at 52, 720 P.2d 782. 96 Id. at 49, 52 -53, 720 P.2d 782. 97 Id. at 52 -53, 720 P.2d 782. 98 Appellant City of Kirkland's Opening Brief at 39. 99 Id. at 41 -43. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. WestlawNexf © 2015 Thomson Reuters No claim to original U.S. Government Works. 13 ORDINANCE NO. 2015 - AN ORDINANCE relating to land use; amending Section 15.02.020 of the Yakima Municipal Code to add definition of mission use, and amending Table 4 -1 of Section 15.04.030 of the Yakima Municipal Code designating such use as a Class (2) use only within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima. WHEREAS, the City Council has previously adopted ordinances establishing zoning districts within the City of Yakima, defining certain land uses, and designating such uses within the zoning districts, all as codified in Title 15 of the Yakima Municipal Code (YMC); and WHEREAS, the City Council previously adopted Ordinance No. 2014 -027 implementing a moratorium on the acceptance of applications for, processing and issuance of, land use approvals and permits for "mission uses" within the SCC Small Convenience Center zoning district pending adoption of a comprehensive regulation governing such uses; and WHEREAS, the Planning Commission of the City of Yakima has conducted meetings and a public hearing on March 25, 2015 pursuant to notice, and after consideration of all comments, evidence and testimony presented has presented a recommendation, supported by appropriate findings of fact and conclusions of law adopted April 8, 2015, to the City Council; and WHEREAS, the City Council held a public hearing on May 19, 2015 to receive and consider the recommendation of the Planning Commission, and after receiving public comment and testimony, remanded the recommendation to the Planning Commission to consider whether new mission uses should be considered Class (3) uses in the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima; and WHEREAS, the Planning Commission has held a study session and conducted a public hearing on June 24, 2015 concerning such issues, and having considered all evidence and testimony presented, has adopted Findings of Fact, Conclusions and Recommendation; and WHEREAS, the City Council has received the recommendation of the Planning Commission and has conducted a public hearing on July 21, 2015 pursuant to notice duly published to consider such recommendation; and WHEREAS, the recommendation of the Planning Commission supports the amendment of YMC 15.02.020 to add a definition of "mission" use, and to amend Table 4 -1 of YMC 15.04.030 to allow such use as a Class (2) use only within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima, but requiring that new mission uses within such zoning districts shall 1 be subject to a Type (3) review with a development agreement incorporating applicable development standards and mitigations imposed by the hearing examiner; and further that any modification of an existing mission use shall be subject to the modification procedures and provisions of Chapter 15.17 YMC; provided, that any proposed modification that does not meet the criteria in YMC 15.17.040 for administrative review and approval shall be subject to a Type (3) review with a development agreement incorporating applicable development standards and mitigations imposed by the hearing examiner; and WHEREAS, the City Council finds and determines that such recommendation is supported by previous interpretations of record by the hearing examiner as set forth in In re: Union Gospel Mission, City No. UAZO - Interp. No. 1 -92, Examiner No. 192 -5 -2 (Lamb, Feb. 27, 1992); and In re: Modification of Interpretation, Union Gospel Mission, Interpretation No. 2 -95, Examiner No. 195 -5 -27 (Lamb, June 9, 1995); and WHEREAS, the City Council finds and determines that YMC 15.02.020 should be amended to add a definition of "mission" use consistent with the definition previously formulated by the hearing examiner, and that Table 4 -1 of YMC 15.04.030 should be amended to allow such use as a Class (2) use with a Type (3) review as described above, and with an approved development agreement within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima; and WHEREAS, the City Council finds and determines that the amendments described above are in the best interest of residents of the City of Yakima and will promote the general health, safety and welfare; now, therefore BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. The recommendation of the City of Yakima Planning Commission as described above is received, together with the Planning Commission's Findings of Fact and Conclusions of Law in support thereof, which Findings of Fact and Conclusions of Law are hereby adopted by the City Council. Section 2. YMC 15.04.020 is hereby amended to add a definition of land use for "mission" use to read as follows: "Mission" means a facility typically owned or operated by a public agency or non- profit corporation, providing a variety of services for the disadvantaged, typically including but not limited to temporary housing for the homeless, dining facilities, health and counseling activities, whether or not of a spiritual nature, with such services being generally provided to the public at large. Mission uses shall be Class (2) uses within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts as set forth in Table 4 -1, YMC 15.04.030, and subject to a Type (3) review as set forth in Chapter 15.15 YMC with a development agreement incorporating applicable development standards 2 and mitigations imposed by the hearing examiner. Effective as and from August 24, 2015, any modification of an existing mission use shall be subject to the modification procedures and provisions of Chapter 15.17 YMC; provided, that any proposed modification that does not meet the criteria in YMC 15.17.040 for administrative review and approval shall be subject to a Type (3) review with a development agreement incorporating applicable development standards and mitigations imposed by the hearing examiner. Section 3. Table 4 -1 of YMC 15.04.030 ( "Health and Social Service Facility" component) is hereby amended to provide that mission uses are Class (2) uses only within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts within the City of Yakima, and not allowed within any other zoning districts, and subject to Type (3) review with a development agreement, all as set forth in Exhibit "A" attached hereto and incorporated herein by this reference, and with such changes shown in legislative format as set forth in Exhibit "B" attached hereto and incorporated herein by this reference. Section 4. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 21s day of July, 2015. ATTEST: Micah Cawley, Mayor City Clerk Publication Date: Effective Date: 3 EXHIBIT "A" (Table 4 -1, YMC 15.04.030) Table 4 -1 Permitted Land Uses ( "Health and Social Service Facility" Component) R- R- R- B- B- M- M- SR 1 2 3 1 2 HB SCC LCC AS GC CBD RD 1 2 HEALTH AND SOCIAL SERVICE FACILITY Group Homes (six or fewer), 1 1 1 1 1 1 1 1 Adult Family Home ( *) Treatment Centers For Drug 3 3 3 3 3 3 3 3 and Alcohol Rehabilitation Boarding House ( *) 3 3 3 3 3 1 2 Halfway House ( *) 2 3 3 Group Homes (more than six), 3 2 2 2 3 3 Convalescent and Nursing Homes ( *) Mission ( *) (with Type (3) 2 2 2 review, and development agreement — see definition) NOTES: * Refers to definition in YMC Chapter 15.02 1 = Type (1) Permitted Home Occupation 2 = Type (2) Review and Approval by the Administrative Official Required 3 = Type (3) Review Public Hearing and Approval by the Hearing Examiner Required [ ] = Not Permitted 4 EXHIBIT "B" (Table 4 -1, YMC 15.04.030 — Changes shown in legislative format) Table 4 -1 Permitted Land Uses ( "Health and Social Service Facility" Component) R- R- R- B- B- M- M- SR 1 2 3 1 2 HB SCC LCC AS GC CBD RD 1 2 HEALTH AND SOCIAL SERVICE FACILITY Group Homes (six or fewer), 1 1 1 1 1 1 1 1 Adult Family Home ( *) Treatment Centers For Drug 3 3 3 3 3 3 3 3 and Alcohol Rehabilitation Boarding House ( *) 3 3 3 3 3 1 2 Halfway House ( *) 2 3 3 Group Homes (more than six), 3 2 2 2 3 3 Convalescent and Nursing Homes ( *) Mission ( *) (with Type (3) 2 2 2 review, and development agreement — see definition) NOTES: * Refers to definition in YMC Chapter 15.02 1 = Type (1) Permitted Home Occupation 2 = Type (2) Review and Approval by the Administrative Official Required 3 = Type (3) Review Public Hearing and Approval by the Hearing Examiner Required [ ] = Not Permitted 5 r ' 4 ' fry ++ a 'r+r ii u ter ZONING TEXT AMENDMENT — "MISSION" & "RESOURCE SERVICE CENTER" USES TXT #001 -15, SEPA #007 -15 Yakima City Council REMAND Public Hearing July 21, 2015 EXHIBIT LIST Applicant: City of Yakima Planning Division / File Numbers: TXT #001 -15, SEPA #007 -15 Site Address: Citywide Staff Contact: Jeff Peters, Supervising Planner Table of Contents CHAPTER A Mission Remand Staff Report to Yakima Planning Commission (YPC) CHAPTER B YPC Findings of Fact & Recommendation to City Council on Mission Remand CHAPTER C Proposed Ordinance for Mission Remand CHAPTER D Public Notices CHAPTER E Public Comments ZONING TEXT AMENDMENT — "MISSION" USES TXT #001 -15, SEPA #007 -15 EXHIBIT LIST CHAPTER A Mission Remand Staff Report to Yakima Planning Commission (YPC) DOC F DOCUMENT DATE INDEX # A -1 Remand Hearing Staff Report to YPC 06/24/2015 City of Yakima Planning Division "Mission" Use Remand Staff Report TO: City of Yakima Planning Commission FROM: Jeff Peters, Supervising Planner SUBJECT: Update Regarding Staff Recommendation for "Mission" Use FOR MEETING OF: June 10, 2015 ISSUE: Yakima City Council remand of the City Planning Commission's recommendation regarding incorporation of the Hearing Examiner's 1992 and 95 Use Interpretations defining the use and level of Review of a "Mission" into the text and tables of the City of Yakima's Zoning Ordinance. BACKGROUND: The City of Yakima Planning Commission conducted a study sessions regarding the incorporation of the "Mission" use, definition, and level of review on December, 10, 2014, January 14, 2015, February 11, 2015, and February 25, 2015. On March 25, 2015, the Commission held its required public hearing on the matter and found that the "Mission" use as defined by the City Hearing Examiner's 1992 and 95 decisions appropriately defined a "Mission ", the proposal meet the zoning district intent statements for the General Commercial, Central Business District, and Light Industrial zoning districts, and that a Class (2) Review was an appropriate level of review for the proposed use. On May 19, 2015, the Yakima City Council held its required public hearing to consider the Planning Commission's recommendation to incorporate the "Mission" definition and use into the City's Municipal Code. At the public hearing, numerous members of the public testified about the problems that have been created by the allowance of the Union Gospel Mission at its present location on N. 1st Street, and requested that the Council consider increasing the level of review for the "Mission" to a Type (3) Review. As a result, the Yakima City Council unanimously voted to remand the proposed recommendation and accompanying ordinance back to the Yakima Planning Commission for the expressed purpose of soliciting increased public involvement from property owners along N. 1St Street, and further consideration of increasing the level of review to a Type (3) Review. STAFF SUGGESTED AMENDMENTS: In light of the Council remand, City Planning and Legal staff have reviewed the two proposed issues requested to be addressed by the Council and are recommending the following amendments: 1. The class of use should remain a Class (2) Use as defined below to ensure that issues related to the Federal Fair Housing Act are addressed by not deeming the proposed use an incompatible land use; 2. The level of review should be elevated to that of a Type (3) Review which requires a public hearing by the City of Yakima Hearing Examiner in accordance with YMC § 15.15 without changing the underlying statement of compatibility; DOC. INDEX # A -I 3. The definition and process should also be revised to indicate that any expansion of an approved Class (2) "Mission" shall be processed in accordance with the Modification provisions of YMC § 15.17. 4. The addition of a "Good Neighbor /Development Agreement" as part of the use definition and process is an appropriate means to ensure that all required mitigation imposed by the Hearing Examiner is enforceable post construction and operation. Definitions: a. A Class (2) Use is defined as: "those uses set forth and defined in the text and tables of YMC Chapter 15.04 and are generally permitted throughout the district. However, site plan review by the administrative official is required in order to ensure compatibility with the intent and character of the district and the objectives of the Yakima urban area comprehensive plan." b. A Class (3) Use is defined as: "those uses set forth and defined in the text and tables of YMC Chapter 15.04 and are generally incompatible with adjacent and abutting property because of their size, emissions, traffic generation, and neighborhood character or for other reasons. However, they may be compatible with other uses in the district if they are properly sited and designed. Class (3) may be permitted by the hearing examiner when he determines, after holding a public hearing, that the use complies with provisions and standards; and that difficulties related to the compatibility, the provisions of public services, and the Yakima urban area comprehensive plan policies have been adequately resolved." Proposed Draft Definition: "Mission" means a facility typically owned or operated by a public agency or non- profit corporation, providing a variety of services for the disadvantaged, typically including but not limited to temporary housing for the homeless, dining facilities, health and counseling activities, whether or not of a spiritual nature, with such services being generally provided to the public at large. Mission uses shall be considered Class (2) uses which are generally permitted throughout the underlying district, but require Type (3) Review to provide for increased public notice, comment and review in order to ensure compatibility with the intent and character of the district and the objectives of the Yakima Urban Area Comprehensive Plan. Mission uses within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts as set forth in Table 4 -1, YMC 15.04.030, shall be subject to a Type (3) review as set forth in Chapter 15.15 YMC effective as and from July 1, 2015. Any expansion of any existing mission use within such zoning districts shall follow the modification provisions of YMC 15.17 provided that any use which does not meet the requirements of YMC 15.17.040 shall be processed as a Class (2) use requiring a Type (3) Review. Additionally, prior to occupation and /or operation of all new and /or expanded mission uses, the applicant shall enter into a "Good Neighbor /Development Agreement codifying all required development standards, and mitigation required by the City of Yakima Hearing Examiner. DOC. INDEX ZONING TEXT AMENDMENT — "MISSION" USES TXT #001 -15, SE PA #007 -15 EXHIBIT LIST CHAPTER B YPC Findings of Fact & Recommendation to City Council on Mission Remand DOC DOCUMENT r DATE INDEX # B -1 YPC Findings of Fact & Recommendation to City Council 06/24/2015 .. —na 3 -1., •• COMMUNITY DEVELOPMENT DEPARTMENT , . • 1: Planning Division ^' `` , - 1 29 N orth Second Street, 2nd Floor Yakima, Washington 98901 F g t U ` i Phone (509) 575 -6183 • Fax (509) 575 -6105 a . :�'a Hponrr. 0 1 • • ",� ,,,•' ask.planning@yakimawa.gov • http: / /www.yakimawa.gov /services /planning/ YAKIMA PLANNING COMMISSION RECOMMENDATION TO THE YAKIMA CITY COUNCIL FOR TEXT AMENDMENTS TO YMC 15.02 DEFINITIONS, AND TABLE 4 -1 PERMITTED LAND USES ADDING THE USE OF "MISSION" TO THE CITY'S URBAN AREA ZONING ORDINANCE June 24, 2015 WHEREAS The City of Yakima Hearing Examiner established a use and definition for a "Mission" in two Use Interpretations in 1992 and 1995 (City of Yakima Interpretations INT #1 -92, and INT #2 -95). Defining a "mission" as " "..a facility typically owned or operated by a public agency or non - profit corporation, providing a variety of services for the disadvantaged, typically including but not limited to temporary housing for the homeless, dining facilities, health and counseling activities, whether or not of a spiritual nature, with such services being generally provided to the community at large. "; and WHEREAS The City of Yakima Hearing Examiner also provided via the previous interpretations, that a "mission" should be allowed in the General Commercial (GC), Central Business District CBD), and Light Industrial Zoning Districts (M -1) as Class (2) Uses requiring Type (2) Review; and WHEREAS The City of Yakima recognized that it did not have adequate zoning controls in place to appropriately site a mission or other homeless service, thereby adopting a six month moratorium on October 21, 2014, (ORD No. 2014 -027) regarding operation of mission, community center, boarding house, comprehensive community health center, and multi - purpose community center uses in the Small Convenience Center (SCC) zoning district; and WHEREAS The City of Yakima City Council directed that the Yakima Planning Commission draft development regulations which appropriately regulate uses such as missions, community centers and mixed use building, boarding houses, comprehensive community health centers, and multi - purpose community centers; and WHEREAS On October 22, 2014, prior to the moratorium becoming effective Yakima Neighborhood Health Services requested an interpretation for a proposal to operate a community center providing public assistance services in the form of a food bank, health and social services, Laundromat facility, and temporary homeless warming shelter in the SCC zoning district; and WHEREAS The Yakima Planning Commission held study sessions to review and discuss the City Council moratorium, and issue of mission, community center, boarding house, comprehensive community health center, and multi - purpose community center uses in the SCC and other Yaklma II Code Administration (509) 575 -6126 • Planning (509) 575 -6183 • Office of Neighborhood & Development Services ( DOC. INDEX # :B —r zoning districts of the City on: December 10, 2014, January 14, 2015, February 11, 2015, and February 25, 2015; and WHEREAS The Yakima Planning Commission gave direction at its February 25, 2015, meeting that it had sufficient opportunity to review the Hearing Examiner's interpretations, mission definition, permitted zoning designations, and district intent statements, and requested that City Planning staff schedule the public hearing for consideration of the Hearing Examiner's use interpretations; and WHEREAS The City of Yakima last amended the Yakima Urban Area Zoning Ordinance in January 2015; and WHEREAS Proposals to amend the City of Yakima's Urban Area Zoning Ordinance (YUAZO) follow the City's established process in YMC § 15.23.020(B) and YMC Title 16. WHEREAS Pursuant to RCW 36.70A.130(1) the City is required to regularly take legislative action to review and revise its development regulations in accordance with the Growth Management Act; and WHEREAS Under the provisions of YMC 1.42 the Yakima Planning Commission is responsible for the review of amendments to the Yakima Urban Area Zoning Ordinance and for recommending to the City Council the approval, modification or denial of each amendment; and WHEREAS The City of Yakima Planning Commission is charged with periodically reviewing all zoning and use interpretations issued by the City of Yakima Hearing Examiner under YMC 1.42.030 to consider their inclusion or exclusion from the Yakima Municipal Code; and WHEREAS Public notice of these amendments was provided in accordance with the provisions of YMC § 15.11.090, and YMC § 16.05.010 — 050. All property owners within three hundred feet of an SCC zoning district were mailed a Notice of Public Hearing on March 6, 2015, a legal ad in the Yakima Herald was also published on March 6, 2015; and WHEREAS The City of Yakima Planning Division initiated Environmental Review for this proposal on March 5, 2015, both preparing a State Environmental Policy Act Checklist (SEPA), and issuing the Notice of Application and Environmental Review on March 9, 2015; and WHEREAS Environmental Review of this proposal was concluded on April 13, 2015, with the issuance of a Determination of Non - Significance Notice of Retention of which the SEPA appeal period ended on April 27, 2015; and 2015 Yakima Planning Commission 2 DOC. Findings and Recommendations INDEX DEX f WHEREAS The recommendation for these amendments are based upon the criteria specified in YMC §§ 16.10.040 and 15.22.050; and WHEREAS The Yakima Planning Commission reviewed the district intent statements and development standards of the CBD, GC, M -1, SCC, and LCC zoning districts (listed below) to determine if the use of a "Mission" and "Community Resource Service Center" are appropriate; and WHEREAS The Yakima Planning Commission held its required open record public hearing on March 25, 2015, providing opportunity for the public to comment on the draft amendments; and WHEREAS The Yakima Planning Commission heard from twelve members of the public regarding the proposed amendments; and WHEREAS After hearing from the public, the Yakima Planning Commission deliberated on the amendments proposed for incorporation into YMC § 15.02 Definitions, and YMC § 15.04 Table 4 -1 Permitted Land Uses as identified below: "Mission ": 1. The Planning Commission found that the "Mission" use as defined by the City's Hearing Examiner's 1992 and 1995 decisions appropriately defined a "Mission "; 2. The definition of a "Mission" meets the zoning district intent statements of the General Commercial (GC), Central Business District CBD), and Light Industrial Zoning Districts (M -1); and 3. The Class (2) Review process is the appropriate level of review in the above mentioned zoning districts; and WHEREAS The Planning Commission by unanimous vote recommend: 1. Approval of the "Mission" Text Amendment request as set forth in the Hearing Examiner's 1992 and 1995 decisions; and 2. That the proposed "Community Resource Service Center" Text Amendment should be separated from consideration of the "Mission" use, and scheduled for a study session on April 8, 2015, as the proposal did not contain sufficient information to be appropriately reviewed; and WHEREAS The Yakima Planning Commission concluded its consideration of the "Mission" Text Amendment on March 25, 2015, forwarding its recommendation with findings of fact, and conclusions to the Yakima City Council (attached); and WHEREAS After appropriate public notice was provided in accordance with the procedures of the City of Yakima, by the Yakima City Clerk, the City of Yakima City Council in an open record hearing on 2015 Yakima Planning Commission 3 DOV• Findings aild Riecommi.nd,ntons I NDEX s I May 19, 2015, took public testimony regarding the proposed "Mission" ordinance, and considered the City of Yakima Planning Commission's recommendation to approve the proposed ordinance; and WHEREAS After considerable deliberation on the proposed ordinance, the Yakima City Council found that more public input and involvement was desired from property owners along N. 1st Street, and that the Planning Commission should consider increasing the level of review of a "Mission" use from a Type (2) review to that of a Type (3) review, and by a vote of 5 to 0 remanded the proposed ordinance back to the Planning Commission; and WHEREAS The Yakima City Planning Commission was notified of the council's action and direction on the proposed ordinance on May 27, 2015, to which the Planning Commission held an initial study session to discussions their initial options to address the councils request; and WHEREAS At the conclusion of the May 27, 2015, study session, and following discussion with city staff, the City Planning Commission found that it may be possible to increase the level of review of a land use without increasing the uses burden of compatibility or class of use, and directed City staff to bring back a revised ordinance at their next meeting accomplishing this objective; and WHEREAS On June 10, 2015, the Yakima City Planning Commission held a second study session regarding the remand of the "Mission" use ordinance at which the City Planning and Legal divisions submitted a two page staff report outlining the issues requested to be addressed, background on the history of the proposed use, staff suggested amendments, and a revised draft definition of the "Mission" use. The Yakima Planning Commission took significant public testimony from members of the public including: the Union Gospel Mission, Gateway Organization, and business and property owners along N. 1st Street. At the conclusion of the study secession, the Planning Commission directed city staff to proof the draft definition, revise the proposed ordinance, and schedule the public hearing for June 24, 2015; and WHEREAS On June 11, 2015, the City of Yakima Planning Division in accordance with YMC Title 16 provided public notice for the proposed Planning Commission remand hearing which included: 1) written notice to parties of record, 2) email to city divisions and media, and 3) Legal add in the Yakima Herald; and WHEREAS On June 24, 2015, the City of Yakima Planning Commission opened the required remand hearing, received additional public input on the proposed ordinance changes, further deliberated 2015 Yalci;n1t Planning Commission 4 D , Findings and gecommendations INDEX on the City Council's request to increase the level of review for a "Mission" use to that of a Type (3) Review, and made the following findings; and Now therefore, the Yakima City Planning Commission presents the following findings and recommendations to the Yakima City Council: Based upon a review of the information contained in the City of Yakima Hearing Examiner's 1992 and 1995 Unclassified Use Interpretations, (City of Yakima Interpretations INT #1 -92, and INT #2 -95), City of Yakima Comprehensive Plan 2025, Yakima Neighborhood Health's supplemental information, exhibits, testimony and other evidence presented at an open record public hearing held on March 25, 2015, and remand hearing of June 24, 2015; and a review of the Yakima Urban Area Zoning Ordinance; the Planning Commission makes the following: FINDINGS The amendment proposal to establish, further regulate or permit the use of "Mission" as defined by the City of Yakima Interpretations INT #1 -92, and INT #2 -95, and considered by the City of Yakima Planning Commission at its March 25, 2015, public hearing within the Yakima Municipal Code, Title 15 Urban Area Zoning Ordinance. The requested changes are consistent with the Yakima Urban Area Comprehensive Plan by meeting the goals, objectives and policies of the Plan set forth in the General Development, Public Services, Land Use, Transportation, and Utilities Elements of the Comprehensive Plan. The City of Yakima Planning Commission has studied the proposed issues and finds that the proposed ordinance amendment will not have an adverse consequence for adjacent jurisdictions or service providers. There are no regionally significant issues known related to the request; consequently, this request will not significantly contribute to the cumulative impacts of other Comprehensive Plan amendments, and /or zoning amendments. This proposal meets the County -wide Planning Policies and intent of the Growth Management Act because it will provide appropriate land use controls which direct service providers of the homeless populations of Yakima to appropriate zoning districts within the City of Yakima that have the least impact on surrounding business, and residential neighborhoods. YAKIMA PLANNING COMMISSION'S CONCLUSIONS a) The text amendment impacts the Central Business District, General Commercial, and Light Industrial zoning districts of the City. b) No significant adverse environmental impacts have been identified by the approval of the amendment request. c) The requested text amendment to the City of Yakima's Urban Area Zoning Ordinance is supported by the City of Yakima's Urban Area Comprehensive Plan 2025. d) The amendment to the Yakima Municipal Code, Title 15 Urban Area Zoning Ordinance, which includes, but is not limited to, a new definition in YMC § 15.02, and addition of a new land use category to YMC § 15.04 Table 4 -1 Permitted Uses. e) The City of Yakima Planning Commission considered the issues raised by the Yakima City Council on remand at its June 24, 2015, meeting by: 1) considering additional testimony from business and property owners along N. 1st St. at two public study sessions, and one open record hearing, and 2) elevated the level of review of a 'Mission" to that of a Type (3) Review. (' 2015 Yakima I'Isuining Commission 5 DC. Findings and kecom men ddrrions INDEX f) The City of Yakima Planning Commission concludes that increasing the level of review of a "Mission" use from a Type (2) to Type (3) Review process does not hinder a mission from locating within the CBD, GC, and M -1 zoning districts, but rather enhances the public's involvement in commenting on such applications. g) The City of Yakima Planning Commission further concludes that due to the impacts of a "Mission" on surrounding businesses, and residential neighborhoods that "Mission" uses should be required to enter into a development agreement between the City of Yakima and applicant /property owner. MOTION Based upon the analysis, findings and conclusions outlined above, it was moved and seconded that the Yakima Planning Commission recommend APPROVAL of the modified text amendment to the Yakima Municipal Code (YMC) Title 15, Urban Area Zoning Ordinance. The motion carried by unanimous vote. Having made the above Findings of Fact and Conclusions, the Planning Commission hereby renders its: RECOMMENDATION TO CITY COUNCIL The Planning Commission of the City of Yakima, having received and considered all evidence and testimony presented at public hearings, and having received and reviewed the record herein, hereby recommends that the City Council of the City of Yakima APPROVE the zoning Text Amendment application (TXT #001 -15 & SEPA #007 -15), and accompanying ordinance. RECOMMENDED this 24th day of June, 2015. By: _ Dave Fonfara, Chairman Yakima Planning Commission DOC. 2015 Yakima Planning Commission 6 INDEX Findings -anti Recommendations ZONING TEXT AMENDMENT — "MISSION" USES TXT #001 -15, SEPA #007 -15 EXHIBIT LIST CHAPTER C Proposed Ordinance for Mission Remand DOC DOCUMENT DATE INDEX # C -1 Proposed Ordinance for Mission Remand 07/21/2015 ORDINANCE NO. 2015 - AN ORDINANCE relating to land use; amending Section 15.02.020 of the Yakima Municipal Code to add definition of mission use, and amending Table 4 -1 of Section 15.04.030 of the Yakima Municipal Code designating such use as a Class (2) use only within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima. WHEREAS, the City Council has previously adopted ordinances establishing zoning districts within the City of Yakima, defining certain land uses, and designating such uses within the zoning districts, all as codified in Title 15 of the Yakima Municipal Code (YMC); and WHEREAS, the City Council previously adopted Ordinance No. 2014 -027 implementing a moratorium on the acceptance of applications for, processing and issuance of, land use approvals and permits for "mission uses" within the SCC Small Convenience Center zoning district pending adoption of a comprehensive regulation governing such uses; and WHEREAS, the Planning Commission of the City of Yakima has conducted meetings and a public hearing on March 25, 2015 pursuant to notice, and after consideration of all comments, evidence and testimony presented has presented a recommendation, supported by appropriate findings of fact and conclusions of law adopted April 8, 2015, to the City Council; and WHEREAS, the City Council held a _public hearing on May 19, 2015 to receive and consider the recommendation of the Planning Commission, and after receiving public comment and testimony. remanded the recommendation to the Planning Commission to consider whether new mission uses should be considered Class (3) uses in the GC General Commercial. CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima: and WHEREAS, the Planning Commission has held a study session and conducted a public hearing_ on June 24, 2015 concerning such issues, and having considered all evidence and testimony presented, has adopted Findings of Fact. Conclusions and Recommendation; and WHEREAS, the City Council has received the recommendation of the Planning Commission and has conducted a public hearing on July 21, 2015 pursuant to notice duly published to consider such recommendation: and WHEREAS, the recommendation of the Planning Commission supports the amendment of YMC 15.02.020 to add a definition of "mission" use, and to amend Table 4 -1 of YMC 15.04.030 to allow such use as a Class (2) use only within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima, but requiring that new mission uses within such zoning districts shall DOC. 1 INDEX # L be subject to a Type (3) review with a development agreement incorporating applicable development standards and mitigations imposed by the hearing examiner; and further that any modification of an existing mission use shall be subject to the modification procedures and provisions of Chapter 15.17 YMC: provided, that any proposed modification that does not meet the criteria in YMC 15.17.040 for administrative review and approval shall be subject to a Type (3) review with a development agreement incorporating applicable development standards and mitigations imposed by the hearing examiner; and WHEREAS, the City Council finds and determines that such recommendation is supported by previous interpretations of record by the hearing examiner as set forth in In re: Union Gospel Mission, City No. UAZO- Interp. No. 1 -92, Examiner No. 192 -5 -2 (Lamb, Feb. 27, 1992); and In re: Modification of Interpretation, Union Gospel Mission, Interpretation No. 2 -95, Examiner No. 195 -5 -27 (Lamb, June 9, 1995); and WHEREAS, the City Council finds and determines that YMC 15.02.020 should be amended to add a definition of "mission" use consistent with the definition previously formulated by the hearing examiner, and that Table 4 -1 of YMC 15.04.030 should be amended to allow such use as a Class (2) use with a Type (3) review as described above, and with an approved development agreement within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts of the City of Yakima; and WHEREAS, the City Council finds and determines that the amendments described above are in the best interest of residents of the City of Yakima and will promote the general health, safety and welfare; now, therefore BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. The recommendation of the City of Yakima Planning Commission as described above is received, together with the Planning Commission's Findings of Fact and Conclusions of Law in support thereof, which Findings of Fact and Conclusions of Law are hereby adopted by the City Council. Section 2. YMC 15.04.020 is hereby amended to add a definition of land use for "mission" use to read as follows: "Mission" means a facility typically owned or operated by a public agency or non- profit corporation, providing a variety of services for the disadvantaged, typically including but not limited to temporary housing for the homeless, dining facilities, health and counseling activities, whether or not of a spiritual nature, with such services being generally provided to the public at large. Mission uses shall be Class (2) uses within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts as set forth in Table 4 -1, YMC 15.04.030, and subject to a Type (3) review as set forth in Chapter 15.15 YMC with a development agreement incorporating applicable development standards DOC. 2 INDEX # G-1 and mitigations imposed by the hearing examiner. Effective as and from August 24, 2015, any modification of an existing mission use shall be subject to the modification procedures and provisions of Chapter 15.17 YMC: provided. that any proposed modification that does not meet the criteria in YMC 15.17.040 for administrative review and approval shall be subject to a Type (3) review with a development agreement incorporating applicable development standards and mitigations imposed by the hearing examiner. Section 3. Table 4 -1 of YMC 15.04.030 ( "Health and Social Service Facility" component) is hereby amended to provide that mission uses are Class (2) uses only within the GC General Commercial, CBD Central Business District, and M -1 Light Industrial zoning districts within the City of Yakima, and not allowed within any other zoning districts, and subject to Type (3) review with a development agreement, all as set forth in Exhibit "A" attached hereto and incorporated herein by this reference, and with such changes shown in legislative format as set forth in Exhibit "B" attached hereto and incorporated herein by this reference. Section 4. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 21st day of July, 2015. ATTEST: Micah Cawley, Mayor City Clerk Publication Date: Effective Date: DOC. 3 INDEX # C- EXHIBIT "A" (Table 4 -1, YMC 15.04.030) Table 4 -1 Permitted Land Uses ( "Health and Social Service Facility" Component) R- R- R- B- B- M- M- SR 1 2 3 1 2 HB SCC LCC AS GC CBD RD 1 2 HEALTH AND SOCIAL SERVICE FACILITY Group Homes (six or fewer), 1 1 1 1 1 1 1 1 Adult Family Home ( *) Treatment Centers For Drug 3 3 3 3 3 3 3 3 and Alcohol Rehabilitation Boarding House ( *) 3 3 3 3 3 1 2 Halfway House ( *) 2 3 3 Group Homes (more than six), 3 2 2 2 3 3 Convalescent and Nursing Homes ( *) Mission ( *) (with Type (3) 2 2 2 review, and development agreement — see definition) NOTES: * Refers to definition in YMC Chapter 15.02 1 = Type (1) Permitted Home Occupation 2 = Type (2) Review and Approval by the Administrative Official Required 3 = Type (3) Review Public Hearing and Approval by the Hearing Examiner Required [ ] = Not Permitted DOC. 4 INDEX EXHIBIT "B" (Table 4 -1, YMC 15.04.030 — Changes shown in legislative format) Table 4 -1 Permitted Land Uses ( "Health and Social Service Facility" Component) R- R- R- B- B- M- M- SR 1 2 3 1 2 HB SCC LCC AS GC CBD RD 1 2 HEALTH AND SOCIAL SERVICE FACILITY Group Homes (six or fewer), 1 1 1 1 1 1 1 1 Adult Family Home ( *) Treatment Centers For Drug 3 3 3 3 3 3 3 3 and Alcohol Rehabilitation Boarding House ( *) 3 3 3 3 3 1 2 Halfway House ( *) 2 3 3 Group Homes (more than six), 3 2 2 2 3 3 Convalescent and Nursing Homes ( *) Mission ( *) (with Type (3) 2 2 2 review, and development — — — agreement — see definition) NOTES: * Refers to definition in YMC Chapter 15.02 1 = Type (1) Permitted Home Occupation 2 = Type (2) Review and Approval by the Administrative Official Required 3 = Type (3) Review Public Hearing and Approval by the Hearing Examiner Required [ ] = Not Permitted DOC. 5 INDEX # G -1 ZONING TEXT AMENDMENT — "MISSION" USES TXT #001 -15, SEPA #007 -15 EXHIBIT LIST CHAPTER D Public Notices DOC DOCUMENT DATE D -1 Notice of Remand Hearing 06/11/2015 D -la: Legal Notice and Press Release E -mail D -lb: Parties and Agencies Notified D -lc: Affidavit of Mailing D -2 Agenda Statement: Set Date for City Council Remand Public 07/07/2015 Hearing D -3 Letter of Transmittal to City Clerk for Remand Public 07/09/2015 Hearing D -4 Notice of City Council Public Hearing 07/08/2015 OFFICE OF THE CITY CLERK } t 129 North Second Street Yakima, Washington 98901 Phone (509) 575 -6037 •Fax (509) 576 -6614 CITY OF YAKIMA NOTICE OF PUBLIC HEARING Proposed Amendment of Municipal Code Regarding "Mission" Uses NOTICE IS HEREBY GIVEN that the Yakima City Council will conduct a public hearing on the Yakima Planning Commission's revised recommendation and proposed ordinance regarding the remand decision related to the use and definition for "Mission" in the GC, CBD and M -1 zoning districts. Said public hearing will be held on Tuesday, July 21, 2015 at 6:30 p.m., or as soon thereafter as the matter may be heard, in the Council Chambers at the Yakima City Hall, 129 North 2 Street, for the City Council to receive public testimony and evidence regarding this issue. All interested persons are invited to attend this hearing. Written comments may be submitted to the Council in two ways: 1) Send a letter via regular mail to "Yakima City Council, 129 N. 2' Street, Yakima, WA. 98901 or, 2) E -mail your comments to citycouncil@yakimawa.gov. Include in the e-mail subject line, "Mission Uses in SCC Zone." Please also include your name and mailing address. Dated this 8 day of July, 2015. Sonya Claar Tee City Clerk D C. INDEX CITY OF YAKIMA, PLANNING DIVISION LETTER OF TRANSMITTAL I, Rosalinda Ibarra, as an employee of the City of Yakima, Planning Division, have transmitted to: Sonya Claar -Tee, Yakima City Clerk, by hand delivery, the following documents: 1. Mailing labels for CITY OF YAKIMA PLANNING DIVISION - MISSION USES (TXT #001 -15, SEPA #007 -15) REMAND PUBLIC HEARING NOTICE; including all labels for parties of record. Signed this 9th day of July, 2015. R salinda Ibarra Administrative Assistant Received By: c- Date: 7/91/5 DOC. INDEX # 0-3 Maria Rosario Montes de Oca Joe Chin Josafath Cruz 104 S 7th Street 316 South 9th Street 711 East Spruce Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Jose Perez Juana Amezcua Leonel Valencia 211 South 6th Street 115 North 9th Street 809 East Spruce Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting agentamezcua07 @gmail.com leonelvalencia809 @yahoo.com 01 /14/15 YPC Meeting 01/14/15 YPC Meeting Jerry Winters Lori Zamudio Maria Elena Garcia 301 South 7th Street 413 South 6th Street 204 South 6th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Mauricio Aramburo Miguel Alvarez Ondina Garcia 113 South 6th Street #3 108 S 7th Street 107 South 7th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Salvador Nava Severiano Barajas Albert Lantrip I 211 South 6th Street 217 Union Street 808 Pioneer Lane I Yakima, WA 98901 Yakima, WA 98901 Union Gap, WA 98903 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Lidia & Daniel Mendoza Delia Solis Benito & Francelia Suarez 320 South 9th Street 109 South 7th Street 303 South 6th Street #A 1 Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Berenice Cortes Bertha Ramirez Bertin Martinez 308 1/2 South 6th Street Ruby's Daycare 1414 South 16th Street Yakima, WA 98901 113 South 7th Street Yakima, WA 98901 01/14/15 YPC Meeting Yakima, WA 98901 01/14/15 YPC Meeting valleibertha @aol.com 01/14/15 YPC Meeting Carl Howell Maribel Martinez Ismael Gonzalez 603 South 12th Street 206 '/2 South 6th Street 219 Union Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Balbina Gomez Edward Torres Filemon Acevedo 106 South 7th Street 20 South 10th Street 305 South 7th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Francisco Lopez Fred Fernandez Gloria A. Rangel 211 '/2 South 6th Street 211 South 6th Street 517 Clark Street Yakima, WA 98901 Yakima, WA 98901 Moxee, WA 98936 01/14/15 YPC Meeting 01/14/15 YPC Meeting Angelicarangel22 @gmail.com DOC. YPC Meeting DOC. Gloria Sanchez Hilda Doble INDEX Daniel Fonseca 108 South 7th Street 206 South 6th Street #1 712 East Spruce Street Yakima, WA 98901 Yakima, WA 98901 # D - Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01 /14/15 YPC Meeting 1 David T. Reich Marshall Clark McE ne Ullman 3005 W Chestnut Ave The Atlantic Building LLC 2024 218th PL N NEE Lakeside, LLC 2024 2l Yakima, WA 98902 2320 N Atlantic Street, Ste# 100 Sammamish, WA 98074 d.reich @charter.net Spokane, WA 99205 ullmanw @icloud.com 03/09/15 E- mailed Comments 03/12/15 Comment Letter 03/16/15 Ii- mailed Comments Frances Davies Valerie Fisher Lloyd & Leah Higgens Thomas Davies Family Partnership L.P. ASAP Metal Fabricators 3607 NE 119th Avenue 1024 Egan Avenue 315 S. 3rd Avenue Vancouver, WA 98682 Pacific Grove, CA 93950 Yakima, WA 98902 03/20/15 Comment Letter frances @guitarist.com valerief @asapmetalfab.com 03/17/15 E- mailed Comments 03/17/15 E- mailed Comments Robert G. Koury Terry Schweyen Jay Sentz Koury Family Limited Partnership ASAP Metal Fabricators Westpark Properties, LLC 7327 Southwest Barnes Rd PMB 600 315 South 3rd Avenue 118 Gilbert Drive Portland, OR 97225 Yakima, WA 98902 Yakima, WA 98902 03/20/15 Comment Letter 03/20/15 Comment Letter 03/23/15 Comment Letter John Van Epps Isaac Baruch Kathy Mantey 3413 Clinton Way 1416 3rd Avenue KDF Investments Yakima, WA 98902 Yakima, WA 98101 3703 W Nob Hill Blvd 03/23/15 Comment Letter 03/23/15 Comment Letter Yakima, WA 98902 03/23/15 Comment Letter Stephen Stokesberry Gwen Seward Bob McLaughlin solfloris @msn.com 701 S 38th Ave #7 drbob @gmail.com 03/25/15 E -mail comments Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing Bryon Underwood Deanna Roy Don Breitenfeldt i bhunderwood @msn.com Iaideerose@yahoo.com 3807 Meadow Lane 03/25/15 YPC Hearing 03/25/15 YPC Hearing Yakima, WA 98902 03/25/15 YPC Hearing James Parks Wanda Fuller Janice Bullek 1119 Garfield Avenue fullerwanda@hotmail.com 701 S 38th Ave #8 Yakima, WA 98902 03/25/15 YPC Hearing Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing Janice Gonzalez Jim Hall Joanne Orme Janiceg @yvfwc.org 1413 S 8th Ave 701 S 38th Ave #13 03/25/15 YPC Hearing Yakima, WA 98902 Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing Judy Salverda Larry Fuller Lynn Walters 701 S 38th Ave #16 maaxwell @hotmail.com 701 South 38th Ave #18 Yakima, WA 98902 03/25/15 YPC Hearing Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing Nathan Poel Patty Orona Steve Hill 214 S 17th Ave 701 S 38th Ave #5 Sshill538 @gmail.com Yakima, WA 98902 Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing 03/25/15 YPC Hearing Doc. Terri Chacon Fred Kerley INDEX Jack & Nancy Westford }� 2005 W Chestnut Ave 407 W Mead Ave 1837 Northshore Rd V Yakima, WA 98902 Yakima, WA 98902 Bellingham, WA 98226 03/25/15 YPC Hearing 03/25/15 YPC Hearing nwestford@gmail.com 03/26/15 E -mail Comments • Robert F. Lockbeam Kim Kovalik Barbara Cline PO Box 10056 kim.kovalik @charter.net 1460 North 16th Avenue, Ste. A Yakima, WA 98909 04/01/15 E- mailed Comments Yakima, WA 98902 barbara@traho.com 03/27/15 Comment Letter 04/02 / 04/02/15 Comment Letter Elizabeth Angland Luis Sandobal NVRSTUK 806 South 24th Avenue 1001 East Race Street nvrstuk @elltel.net Yakima, WA 98902 Yakima, WA 98901 04/08/15 E- mailed Comment 04/02/15 Comment Letter 04/02/15 Comment Letter Connie G. Simmons Mark Johnson Miguel Alvarez 206 1/2 S 7th St #2 614 South 24th Avenue 104 South 7th Street Yakima, WA 98901 Yakima, WA 98902 Yakima, WA 98901 04/08/15 YPC Meeting 04/08/15 YPC Meeting 04/08/15 YPC Meeting i Reed Ball Rev. Willie Pride Amarjit Nijjar 5808 Summitview Ave PMB #125 2607 Logan Avenue 1219 North 1st Street Yakima, WA 98908 Yakima, WA 98902 Yakima, WA 98901 04/08/15 YPC Meeting 05/19/15 Council Hearing 05/19/15 Council Hearing Dennis Macias Davin Shergill Jaswant Singh 1010 North 20th Avenue 1504 N 1st St 912 N 1st St Yakima, WA 98902 Yakima, WA 98901 Yakima, WA 98901 05/27/15 YPC Meeting 06/10/15 YPC Meeting 06/10/15 YPC Meeting Maud Scott Rajiv Sauson Pastor Donald Davis 309 Union Street 1223 North 1st Street 515 S 6th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 06/10/15 YPC Meeting 06/10/15 YPC Meeting 06/24/15 YPC Hearing Phyllis Musgrove Matt Burton Gary Rufener 424 N 30th Ave 9301 Torrey Pines Lane 1408 North 1st Street Yakima, WA 98902 Yakima, WA 98908 Yakima, WA 98901 06/24/15 YPC Hearing 06/24/15 YPC Hearing garyerufener @aol.com 06/24/15 YPC Hearing Emma R. Micelli Dave Bill Brado 27 South 4th Street #326 PO Box 8328 201 Oak Street #6 Yakima, WA 98901 Yakima, WA 98908 Yakima, WA 98901 06/24/15 YPC Hearing 06/24/15 YPC Hearing Wbrado @Aol.com 06/24/15 YPC Hearing Bev Luby Bartz Ester Huey Rick Phillips 114 North 7th Street 1311 South 75th Ave #2 822 North 48th Avenue Yakima, WA 98901 Yakima, WA 98908 Yakima, WA 98908 06/24/15 YPC Hearing 06/24/15 YPC Hearing 06/24/15 YPC Hearing An ita Monoian Rhonda Hauff Rhonda Hauff Yakima Neighborhood Health Services Yakima Neighborhood Health Services Yakima Neighborhood Health Services PO Box 2605 PO Box 2605 DOC. 12 South 8th Street Yakima, WA 98907 Yakima, WA 98907 Yakima, WA 98901 Anita.monoian @ynhs.org Rhonda.hauff @ynhs.org INDEX Applicant Applicant Applicant Rachel Saimons, Attorney Nathan Poel Jamie Carmody 1 Meyer, Fluegge & Tenney, P.S. Yakima Neighborhood Health Services Meyer, Fluegge & Tenney, P.S. PO Box 22680 PO Box 2605 PO Box 22680 Yakima, WA 98907 Yakima, WA 98907 Yakima, WA 98907 saimons @mftlaw.com nathanpoel @gmail.com carmody @mftlaw.com • Nathan Poel Rick Phillips Anita Monoian Yakima Neighborhood Health Services Union Gospel Mission Yakima Neighborhood Health Services 12 South 8th Street PO Box 565 12 South 8th Street Yakima, WA 98907 Yakima, WA 98907 Yakima, WA 98901 nathanp @orfh.org rick.phillips @yugm.org Applicant Applicant Interested Partv Al Bradley Sung Lee 109 S 8th Street 702 N. 48th Avenue Yakima, WA 98901 Yakima, WA 98908 Albradleyl@msn.com Julianalboss@yahoo.com Phone call request Property Owner City Council REMAND Public Hearing 07/21/15 DOC. INDEX # D3 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 5.D. For Meeting of: July 7, 2015 ITEM TITLE: Set July 21, 2015 as the date of a public hearing for Council consideration of the Yakima Planning Commission's revised recommendation and ordinance regarding the remand decision related to the use and definition for "Mission" in the GC, CBD, and M -1 zoning districts. SUBMITTED BY: Joan Davenport, AICP, Community Development Director (509) 576-6417 Jeff Peters, Supervising Planner (509) 575 -6163 SUMMARY EXPLANATION: On June 24, 2015, the City of Yakima Planning Commission conducted and concluded the City Council required remand hearing regarding the establishment of a new use and definition for "Mission" within the GC, CBD, and M -1 zoning districts. Therefore, the Planning Commission and Division are now requesting that the Yakima City Council set July 21, 2015, as the date of a public hearing to consider the Commission's revised recommendation and proposed ordinance on the matter. Resolution: Ordinance: Other (Specify): Set Date Contract: Contract Term: Start Date: End Date: Item Budgeted: Amount: Funding Source/Fiscal Impact: Strategic Priority: Improve the Built Environment Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: �. City Manager DOC. INDEX # D - RECOMMENDATION: Set July 21, 2015 as the date for the public hearing to consider the Yakima Planning Commission's revised recommendation and ordinance regarding the remand hearing for mission uses. ATTACHMENTS: Description Upload Date Type No Attachments Available DOC. INDEX AFFIDAVIT OF MAILING STATE OF WASHINGTON CITY OF YAKIMA RE: TXT #001 -15 City Planning - Mission Uses N/A I, Lisa Maxey, as an employee of the Yakima City Planning Division, have dispatched through the United States Mails, a Notice of Remand Hearing. A true and correct copy of which is enclosed herewith; that said notice was addressed to the applicants, Yakima Planning Commission members, and parties of record; that said applicants and parties of record are individually listed on the mailing list retained by the Planning Division, and that said notices were mailed by me on the nth day of June, 2015. That I mailed said notices in the manner herein set forth and that all of the statements made herein are just and true. C\ A Lisa Maxey Department Assistant II DOC. INDEX # P-/c 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Maria Rosario Montes de Oca Balbina Gomez Ondina Garcia 104 5 7th Street 106 South 7th Street 107 South 7th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Miguel Alvarez Gloria Sanchez Delia Solis 108 S 7th Street 108 South 7th Street 109 South 7th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Bertha Ramirez Juana Amezcua Mauricio Aramburo Ruby's Daycare 115 North 9th Street 113 South 6th Street #3 113 South 7th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 agentamezcua07@gmail.com valleibertha@a, aal.cam 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Bertin Martinez Edward Torres Maria Elena Garcia 1414 South 16th Street 20 South 10th Street 204 South 6th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Maribel Martinez Hilda Doble Francisco Lopez 206 14 South 6th Street 206 South 6th Street #1 211 1 /z South 6th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting 1 Jose Perez Fred Fernandez Salvador Nava 211 South 6th Street 211 South 6th Street 211 South 6th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Severiano Barajas Ismael Gonzalez Jerry Winters 217 Union Street 219 Union Street 301 South 7th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Benito & Francelia Suarez Filemon Acevedo Berenice Cortes 303 South 6th Street #A 305 South 7th Street 308'A South 6th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Joe Chin Lidia & Daniel Mendoza Lori Zamudio ASAP Metal Fabricators 320 South 9th Street 413 South 6th Street 316 South 9th Street Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98901 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting Gloria A. Rangel Carl Howell Josafath Cruz 517 Clark Street 603 South 12th Street 711 East Spruce Street Moxee, WA 98936 Yakima, WA 98901 ® �� Yakima, WA 98901 Angelicara ngel22Calgmall.com INDEX 01/14/15 YPC Meeting 01/14/15 YPC Meeting 01/14/15 YPC Meeting # Leonel Valencia Daniel Fonseca Albert Lantrip # D-J ,b 809 East Spruce Street 712 East Spruce Street 808 Pioneer Lane Yakima, WA 98901 Yakima, WA 98901 Union Gap, WA 98903 Ieonelvalencia809Pvahoo.com 03/09/15 E- mailed Comments 1 1 03/16/15 E- mailed Comments David T. Reich 03/12/15 Comment Letter Wayne Ullman 3005 W Chestnut Ave Marshall Clark 2024 218th PL NE Yakima, WA 98902 2320 N Atlantic Street, Ste# 100 Sammamish, WA 98074 Spokane, WA 99205 d.reich @charter.net ullmanwPicioud.com 03/17/15 E- mailed Comments Frances Davies 03/17/15 E- mailed Comments 03/20/15 Comment Letter Thomas Davies Family Partnership L.P. Valerie Fisher Terry Schweyen 1024 Egan Avenue 315 S. 3rd Avenue ASAP Metal Fabricators Pacific Grove, CA 93950 Yakima, WA 98902 315 South 3rd Avenue frances�uitarist.com valerief @asapmetalfab.com Yakima, WA 98902 03/20/15 Comment Letter 03/20/15 Comment Letter 03/23/15 Comment Letter Lloyd & Leah Higgens Robert G. Koury Isaac Baruch 3607 NE 119th Avenue 7327 Southwest Barnes Rd PMB 600 1416 3rd Avenue Vancouver, WA 98682 Portland, OR 97225 Yakima, WA 98101 03/23/15 Comment Letter 03/23/15 Comment Letter 03/25/15 E -mail comments John Van Epps Kathy Mantey Stephen Stokesberry 3413 Clinton Way 3703 W Nob Hill Blvd Union Gospel Mission Yakima, WA 98902 Yakima, WA 98902 solfloris@msn.com 03/25/15 YPC Hearing 03/25/15 YPC Hearing 03/25/15 YPC Hearing James Parks Jim Hall Terri Chacon 1119 Garfield Avenue 1413 S 8th Ave 2005 W Chestnut Ave Yakima, WA 98902 Yakima, WA 98902 Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing 03/25/15 YPC Hearing Nathan Poel Don Breitenfeldt Fred Kerley 214 S 17th Ave KDF Investments 407 W Mead Ave Yakima, WA 98902 3807 Meadow Lane Yakima, WA 98902 Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing 03/25/15 YPC Hearing Pastor Donald Davis Reed & Wendy Ball Joanne Orme 515 5 6th Street 5808 Summitview Ave PMB #125 701 S 38th Ave #13 Yakima, WA 98901 Yakima, WA 98908 Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing 03/25/15 YPC Hearing Judy Salverda Patty Orona Gwen Seward 701 S 38th Ave #16 701 S 38th Ave #5 701 S 38th Ave #7 Yakima, WA 98902 Yakima, WA 98902 Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing 03/25/15 YPC Hearing Janice Bullek Lynn Walters Steve Hill 701 5 38th Ave #8 701 South 38th Ave #18 Sshill538Pgmail.com Yakima, WA 98902 Yakima, WA 98902 03/25/15 YPC Hearing 03/25/15 YPC Hearing 03/25/15 YPC Hearing Deanna Roy Larry Fuller Wanda Fuller laideeroseRyahDo.com maaxwell @hotmait.com fullerwanda(ilhotmail.com DOC. INDEX 03/25/15 YPC Hearing 03/25/15 YPC Hearing ,�/, I 03/25/15 YPC Hearing Bob McLaughlin Janice Gonzalez yt 1)-1 Bryon Underwood drbobj gmail.com JaniceaPvvfwc.org bhunderwood@msn.com 03/26/15 E -mail Comments I. 03/27/15 Comment Letter Jack & Nancy Westford 04/01/15 E- mailed Comments Robert F. Lockbeam Kim Kovalik 1837 Northshore Rd PO Box 10056 Bellingham, WA 98226 kim.kovalik{eacharter.net Yakima, WA 98909 nwestford (57gIna il.com 04/02/15 Comment Letter 04/02/15 Comment Letter 04/02/15 Comment Letter Barbara Cline Elizabeth Angland Luis Sandobal 1460 North 16th Avenue, Ste. A Koury Family Limited Partnership 1001 East Race Street Yakima, WA 98902 Yakima, WA 98901 806 South 24th Avenue barbara@traho.com Yakima, WA 98902 04/08/15 E-mailed Comment 04/08/15 YPC Meeting 04/08/15 YPC Meeting NVRSTUK Miguel Alvarez Jay Sentz nvrstuk@elltel.rlet 104 South 7th Street 118 Gilbert Drive Yakima, WA 98901 Yakima, WA 98902 04/08/15 YPC Meeting 04/08/15 YPC Meeting 05/19/15 Council Hearing Connie G. Simmons Mark Johnson Amarjit Nijjar 206 S 7th St #2 614 South 24th Avenue 1219 North 1st Street Yakima, WA 98901 Yakima, WA 98902 Yakima, WA 98901 05/19/15 Council Hearing 05/19/15 Council Hearing 05/19/15 Council Hearing Bill Brado Rev. Willie Pride Gary Rufener McEwen Lakeside, LLC The Atlantic Building LLC 1408 North 1st Street 203 Oak Street 2607 Logan Avenue Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98902 WbradoPAol.com 05/27/15 YPC Meeting 05/27/15 YPC Meeting 06/10/15 YPC Meeting Dennis Macias Bev Luby Bartz Rajiv Sauson 1010 North 20th Avenue 114 North 7th Street 1223 N 1st St Yakima, WA 98902 Yakima, WA 98901 Yakima, WA 98901 06/10/15 YPC Meeting 06/10/15 YPC Meeting 06/10/15 YPC Meeting Davin Shergill Maud Scott Phyllis Musgrove 1504 N 1st St 309 Union Street 424 N 30th Ave Yakima, WA 98901 Yakima, WA 98901 Yakima, WA 98902 06/10/15 YPC Mee ' 06/10/15 YPC treting 06/10/15 YPC Meeting Resident Tom Dur Jaswant Singh 4702 Sum ' view Ave #100 513 rout St Ste 4 912 N 1st St Yakim A 98908 Y ima, WA 98901 Yakima, WA 98901 Applicant Applicant 06/10/15 YPC Meeting Anita Monoian Rhonda Hauff Gary Rufener Yakima Neighborhood Health Services Yakima Neighborhood Health Services garyerufener@aoi . com 12 South 8th Street 12 South 8th Street Yakima, WA 98901 Yakima, WA 98901 Applicant Applicant Applicant Nathan Poel Rachel Saimons, Attorney Jamie Carmody Yakima Neighborhood Health Services PO Box 22680 Meyer, Fluegge & Tenney, P.S. 12 South 8th Street Yakima, WA 98907 PO Box 22680 Yakima, WA 98907 saimons @mftlaw.com Yakima, WA 98907 nathano @orfh.org DOC carmody@mftlaw.com Applicant Applicant INDEX Applicant Anita Monoian Rhonda Hauff INDEX Nathan Poel Meyer, Fluegge & Tenney, P.S. Yakima Neighborhood Health Services l Yakima Neighborhood Health Services PO Box 2605 PO Box 2605 l �. P Yakima, 98907 Bo 2605 Yakima, WA 98907 Yakima, WA 98907 Apita.rylonOlariP rOLK% Rhonda, hhuf f nai .a eta lnta Isom Phone call request 1 Property Owner 06/10/15 YPC Meeting Al Bradley Sung Lee Rick Phillips 109 S 8th Street 702 N. 48th Avenue Yakima Neighborhood Health Services Yakima, WA 98901 Yakima, WA 98908 PO Box 565 Aibradiev1@msn.cvrn Julianalbass@ryahoo.com Yakima, WA 98907 rick.phillips@yugm.org N C of h olCUnGk 11-cai i n1 - Cr"$k0W -15 , (o / ll /l5 DOD. INDEX In -House Distribution E -mail List Name Division E -mail Address Debbie Cook Engineering Debbie.cook a,yakimawa.gov Dana Kallevig Wastewater dana.kallevig @yakimawa.gov Dan Riddle Engineering dan.riddle@ Mark Kunkler Legal Dept Mark.kunkler @vakimawa.gov Jeff Cutter Legal Dept jeff:cutter@yakimawa.gov Archie Matthews ONDS archie.matthews @yakimawa.gov Mark Soptich Fire Dept mark.soptich @,yakimawa.gov Chief Rizzi Police Department Dominic.rizzi @yakimawa.gov Joe Caruso Code Administration Joe.caruso @yakimawa.gov Carolyn Belles Code Administration carolyn.belles@,yakimawa.gov Jerry Robertson Code Administration jerry.robertson @vakimawa.gov Glenn Denman Code Administration glenn.denman@,yakimawa.gov Suzanne DeBusschere Code Administration Suzanne.debusschere @yakimawa.gov Dave Brown Water /Irrigation dave.brown @vakimawa.gov Mike Shane Engineering mike.shane @yakimawa.gov Randy Meloy Wastewater randy.meloy @,yakimawa.gov Scott Schafer Public Works Dept scott.schafer@,yakimawa.gov James Dean Utilities James.dean @yakimawa.gov James Scott Refuse Division James.scott @yakimawa.gov Kevin Futrell Transit Division kevin.futrell @yakimawa.gov Joan Davenport Planning joan.davenport @yakimawagov For the Record /File Binder Copy Revised 12/2014 Type of Notice: f" C- or Gim116 KO i'11 IQ J File Number(s): -- V XT# CG 1-13 Date of Mailing: (0 1 i )5 DOC. INDEX Maxey, Lisa From: Maxey, Lisa Sent: Thursday, June 11, 2015 9:30 AM To: Belles, Carolyn; Brown, David; Caruso, Joe; Cook, Debbie; Cutter, Jeff; Davenport, Joan; Dean, James; DeBusschere, Suzanne; Denman, Glenn; Futrell, Kevin; Ibarra, Rosalinda; Kallevig, Dana; Kunkler, Mark; Matthews, Archie; Maxey, Lisa; Meloy, Randy; Riddle, Dan; Rizzi, Dominic; Robertson, Jerry; Schafer, Scott; Scott, James; Shane, Mike; Soptich, Mark; Al Rose; Alfred A. Rose (silvrfx40 @bmi.net); 'Carmen Mendez'; Carmen Mendez (mdcmm303 @gmail.com); Dave Fonfara; Ensey, Rick; Patricia Byers; Ron Anderson; Scott Clark; William Cook (cook.w @charter.net); Aaron, Robbie; Allyn, Kaarre; Beehler, Randy; Bill & Linda Beerman; Brown, Michael; Business Times Randy Luvaas (E- mail); City of Union Gap; City of Union Gap; Claar Tee, Sonya; CWHBA Joe Walsh (E- mail); Danielle Surkatty; David Gaudette; David Kearby - Associated General Contractors of WA; Davido, Sean; Dianna Woods; Doug Carey; Evodio Reyes; Farmworker Housing Marty Miller (E- mail); Gary Forrest; Jamie Carmody; Ken Camarata - AIA; Crockett, Ken; Lozano, Bonnie; Luz Bazan Gutierrez - RCDR; Mike & Cindy Noble; Mike Dooley - Wilbert Precast; Mike Shinn; Peters, Jeff; Phil Hoge; Price, Cally; Ralph Call; Robert Lockhart; Ron Pelson ( ron @traditionaldesignsinc.com); Sandy Lloyd; Smith, Valerie; Steve Erickson; Steve S; Terrence Danysh; Terry Keenhan; Thomas Carroll; Walt Ranta; Crockett, Ken; Daily Sun News - Bob Story; KAPP TV News; KBBO -KRSE Radio - manager; KCJT TV News; KDNA Radio; KEPR TV News; KIMA TV News; KIMA TV News - Crystal Bui; KIT /KATS /DMVW /KFFM - Lance Tormey; KNDO TV News; KUNS -TV Univision; KVEW TV News; NWCN News; NWPR - Anna King; Randy Luvaas - Yakima Business Times; Reed C. Pell; Tu Decides - Albert Torres; Yakima Herald Republic - Craig Troianello; Yakima Herald Republic - Erin Snelgrove; Yakima Herald Republic - Mai Hoang; Yakima Herald Republic - Mark Morey; Yakima Herald Republic Newspaper; Yakima Valley Business Times - George Finch; Beehler, Randy Cc: Peters, Jeff Subject: NOTICE OF REMAND HEARING - Mission Uses - TXT #001 -15 Attachments: NOTICE OF REMAND HEARING - City Planning - Mission Uses - TXT_001- 15.pdf Attached is a Notice of Remand Hearing regarding the above - entitled project. If you have any questions about this proposal please contact assigned planner Jeff Peters at (509) 575 -6163 or by e-mail at jeff.peters @yakimawa.Rov. Thank you! Lisa Maxey Department Assistant II (509) 576 -6669 Lisa.Maxev@yakimawa.gov City of Yakima Planning Division 129 N. 2nd St. Yakima, WA 98901 DOC. INDEX 1 # D -I Ad Proof = CITY OF YAKIMA N OTICE OF REMAND r HEARING 'oar DATE: June 11, 2015 T0: A daily part of your life yakima-herald.com Members of the Public and Parties of Record FROM: Joan Davenport, AICP, Com- - Ad Proof- SUBJECT: Development Director SUB Notice of Remand Hearing regarding the City of Yakima Planning Commis- sion's Recommendation to the This is the proof of your ad scheduled to run on the ratn�ganewdefinitionof "Mis- sion" into the City of Yakima's dates indicated below. Municipal Code. CITY FILE NUMBER(S): TXT #001 -15 -15 NOTICE OF REMAND: On May 19, 2015, the Yakima City Please confirm placement prior to deadline Council considered a recom- mendation and accompany - by contacting your ing ordinance by the City of Yakima Planning Commission to incorporate a new definition and land use category for a account rep at (509) 577 -7740. "Mission" into the City's Munici- pal Code. Following testimony from the public during an open record hearing and deliberation on the matter, the City Council Date: 06/08/15 Run Dates: voted unanimously to remand the issue and ordinance back Yakima Herald - Republic 06/11/15 to the Planning Commission for Account #: 110358 YakimaHerald.com 06/11/15 further public input and work. The file containing the com- Company Name: CITY OF YAKIMA PLANNING plete application is available for public review at the City of Yakima Planning Division, 2nd Contact: ROSALINDA IBARRA floor City Hall, 129 North 2nd Street, Yakima, Washington Additional information may be Address: DEPT OF COMMERCIAL found on the City of Yakima Planning website under Quick ECONOMICAL DEVELOPEME Links beneath the "Yakima 129 N 2ND STREET Planning Commission" head- ing: http: / /www.yakimawa.gov/ YAKIMA, WA 98901 -2720 services /planning/ NOTICE OF REMAND HEARING: This request requires that the City Telephone: (509) 575 -6164 of Yakima Planning Commis- sion hold an open record public hearing. The public hearing Ad ID: 552053 is J 2 4, 2 01 5, beginning Counc l h ambe r City Hall, Start: 06/11/15 129 N 2nd Street, Yakima, WA. Stop: 06/11/15 Any person desiring to express their views on this matter is invited to attend the public Total Cost: $119.85 hearing or to submit written comments to: City of Yakima, Agate Lines: 67 Planning Division, 129 N 2nd # of Inserts: 2 St., Yakima, WA 98901. If you have any question on this pro - Ad Class: 6021 posal, please call Jeff Peters, Account Rep: Simon Sizer 575 6163ng Planner at (509) Phone # (509) 577 -7740 (552053) June 11, 2015 Email: ssizer @yakimaherald.com DOG. _ INDEX • Le • al Notices CITY OF YAKIMA NOTICE OF REMAND HEARING DATE: June 11, 2015 TO: Members of the Public and Parties of Record FROM: Joan Davenport, AICP, Com- munity Development Director SUBJECT: Notice of Remand Hearing regarding the City of • • Yakima Planning Commis- sion's Recommendation to the Yakima City Council incorpo- rating a new definition of "Mis- sion" into the City of Yakima's Municipal Code. CITY FILE NUMBER(S): TXT #001 -15 NOTICE OF REMAND: On May 19, 2015, the Yakima City Council considered a recom- mendation and accompany- ing ordinance by the City of Yakima Planning Commission to incorporate a new definition and land use category for a "Mission" into the City's Munici- pal Code. Following testimony from the public during an open record hearing and deliberation on the matter, the City Council voted unanimously to remand the issue and ordinance back to the Planning Commission for further public input and work. The file containing the com- plete application is available for public review at the City of Yakima Planning Division. 2nd floor City Hall, 129 North 2nd Street, Yakima, Washington Additional information may be found on the City of Yakima Planning website under Quick Links beneath the "Yakima Planning Commission' head- • 1 ing: http : /fwww.yakimawa.gov/ services /planning/ NOTICE OF REMAND HEARING: This request requires that the City of Yakima Planning Commis- sion hold an open record public hearing. The public hearing Is scheduled to be held on Wednesday June 24, 2015, beginning at 3:30 p.m., in the Council Chambers, City Hall, 129 N 2nd Street, Yakima, WA. Any person desiring to express their views on this matter is invited to attend the public hearing or to submit written comments to: City of Yakima, Planning Division. 129 N 2nd St., Yakima, WA 98901. if you have any question on this pro - posal, please call Jeff Peters, Supervising Planner at (509) 575 -6163. (552053) June 11, 2015 DOC INDEX c o • � 1i `k'„ COMMUNITY DEVELOPMENT DEPARTMENT '�1--" Joan Davenport, AICP, Director Planning Division • • " 129 North Second Street, 2nd Floor Yakima, Washington 98901 Phone (509) 575 -6183 • Fax (509) 575 -6105 www.yakimawa.gov /services /planning NOTICE OF REMAND HEARING DATE: June 11, 2015 TO: Members of the Public and Parties of Record FROM: Joan Davenport, AICP, Community Development Director SUBJECT: Notice of Remand Hearing regarding the City of Yakima Planning Commission's Recommendation to the Yakima City Council incorporating a new definition of "Mission" into the City of Yakima's Municipal Code. CITY FILE NUMBER(S): TXT #001 -15 NOTICE OF REMAND On May 19, 2015, the Yakima City Council considered a recommendation and accompanying ordinance by the City of Yakima Planning Commission to incorporate a new definition and land use category for a "Mission" into the City's Municipal Code. Following testimony from the public during an open record hearing and deliberation on the matter, the City Council voted unanimously to remand the issue and ordinance back to the Planning Commission for further public input and work. The file containing the complete application is available for public review at the City of Yakima Planning Division, 2nd floor City Hall, 129 North 2nd Street, Yakima, Washington. Additional information may be found on the City of Yakima Planning website under Quick Links beneath the "Yakima Planning Commission" heading: http://www.yakimawa.goviservices/planning/ NOTICE OF REMAND HEARING This request requires that the City of Yakima Planning Commission hold an open record public hearing. The public hearing is scheduled to be held on Wednesday June 24, 2015, beginning at 3:30 p.m., in the Council Chambers, City Hall, 129 N 2nd Street, Yakima, WA. Any person desiring to express their views on this matter is invited to attend the public hearing or to submit written comments to: City of Yakima, Planning Division, 129 N 2nd St., Yakima, WA 98901. If you have any question on this proposal, please call Jeff Peters, Supervising Planner at (509) 575 -6163. DOD. Yakime INDEX � issa ZONING TEXT AMENDMENT — "MISSION" USES TXT #001 -15, SE PA #007 -15 EXHIBIT LIST CHAPTER E Public Comments DOC DOCUMENT DATE INDEX # E -1 Comment Letter received from Reed C. Pell Law Offices 06/10/2015 REED C. FELL LAW OFFICES 7 SOUTH THIRD AVENUE YAKIMA, WA 98902 1- 509 - 952 -3669 rcphousing(a hotmail.com June 10, 2015 To: City of Yakima Planning Commission From: Reed C. Pell Re: CITY PLANNING DIVISION / YNHS — "MISSION' & "RESOURCE SERVICE CENTER" USES — Proposed text amendments to the Zoning Ordinance: TXT #OOI -15 and TXT #002 -15 It is my understanding that you are having a Study Session this afternoon at 3:30 pm regarding the above matter. Mr. Jeff Peters, Supervising Planner, has advised me that if I forward this letter to him by 3:00 pm today he will provide copies to you. This matter has been remanded to you by the City Council for further review and consideration. I have reviewed the City Council Meeting at which this issue was considered and it appears that both the citizens that testified and the Council Members were concerned that the proposal being made included a recommendation of just a Class 2 review. The purpose of this letter is to urge you to adopt a Class 3 review on Mission and Resource Service Center Uses. The Yakima Urban Area Zoning Ordinance includes several uses that are permitted only with a Class 3 review, to -wit: Social Card Rooms (See YMC 15.09.090 Horse Racing Tracks, Speedways Cemetery/Crematorium with Funeral Home Hospital ( *) Outside Institutional Overlay Correctional Facilities Senior High School Wastewater Sprayfield ( *) Zoo (*) Treatment Centers For Drug and Alcohol Rehabilitation REcErv N DCEX •JUN r? ? i PLA !R:r i.; ��. Rendering Plants, Slaughter Houses Mining Including Sand and Gravel Pits ( *) Off -Site Hazardous Waste Treatment and Storage Facilities ( *) Golf Courses, Clubhouses, Golf Driving Ranges Concentrated Feeding Operation The City has determined that the above uses can be so detrimental to surrounding property owners that the only way they should be permitted, if at all, is with a Class 3 Review. Note that one of the uses that requires a Class 3 Review is Treatment Centers for Drug and Alcohol Rehabilitation; a problem that is epidemic to people who find their way to a Mission. In summary, it is my recommendation that a Mission and /or Resource Service Center Use be permitted only with a Class 3 Review. Do we really want anot orth First Street disaster in some other area of the City? Si • : ; /Reed C. Pell rip ZE DOC. Jim r INDEX airy iv.. Of5 ig •