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YAKIMA CITY COUNCIL
August 18, 2015
City Hall — Council Chambers
6 p.m. Business Meeting; 6:30 Public Hearings
BUSINESS MEETING
1. Roll Call
Council: Mayor Micah Cawley, presiding, Assistant Mayor Kathy Coffey, Council Members
Maureen Adkison, Tom Dittmar, Rick Ensey, Dave Ettl and Bill Lover
Staff: Acting City Manager Davenport, City Attorney Cutter and City Clerk Claar Tee
2. Pledge of Allegiance
Mayor Cawley led the Pledge of Allegiance.
3. Open Discussions for the Good of the Order
A. Proclamations
i. The SMASH -- Yakima's Official Day of Tennis
Mayor Cawley proclaimed August 22, 2015 as "The SMASH — Yakima's Official Day of
Tennis." Kathleen Goyette of the Yakima Tennis Club accepted the proclamation.
4. Council Reports
A. Quarterly update from Dave Fonfara, the Yakima Planning Commission Chair to
the City Council
Dave Fonfara, Planning Commission Chair, updated Council on the Commission's
quarterly activities. He reported on four main items: nine citizen amendments have been
received by the Board, the 2040 plan, the airport safety overlay plan required by the FAA,
and the "Mission Use" standard adopted by the City.
5. Consent Agenda
Mayor Cawley referred to the items placed on the Consent Agenda, questioning whether
there were any additions or deletions from Council members or citizens present. There
were no changes. The City Clerk read the Consent Agenda items, including resolutions
and ordinances, by title. (Items on the Consent Agenda are handled under one motion
without further discussion —see motion directly below.)
MOTION: Cawley moved and Ensey seconded to approve the consent agenda.
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The motion carried by unanimous vote.
A. 2nd Quarter 2015 Accounts Receivable Status Report
B. 2nd Quarter 2015 Treasury Report
C. 2nd Quarter 2015 Engineering Report
D. 2nd Quarter Financial Trend Monitoring System
E. 2nd Quarter Strategic Plan Monitoring Report
F. Project Completion and Contract Acceptance for 1 0 Environmental - Project
2389 Former Tiger Oil Site Interim Remedial Action (Standard Motion V -B-
Accept the project and approve)
G. Project Completion and Contract Acceptance for 10 Environmental - Project
2404 Trolley Barn Site Remedial Action (Standard Motion V -B- Accept the
project and approve)
H. Project Completion and Contract Acceptance for POW Contracting, Inc. -
Project IR2323 West Yakima Irrigation System Ph 2 Improvements (Standard
Motion V -B- Accept the project and approve the final payment)
I. Project Completion and Contract Acceptance for Columbia Energy &
Environmental Services - Project #2341 Yakima Regional Wastewater
Treatment Plant UASB (Standard Motion V -B- Accept the project and approve
the final payment)
J. Set September 15, 2015 as the date for a public hearing regarding the Airport
Overlay Zoning Update.
K. Resolution authorizing a lease agreement with UChicago Argonne, LLC, for a
lease of property located south of the Yakima Air Terminal maintenance shop
for wind research and data collection equipment
RESOLUTION NO. 2015-105, A RESOLUTION authorizing the City Manager to execute
a lease agreement with UChicago Argonne, LLC, for a lease of property located south of
the Yakima Air Terminal maintenance shop for wind research and data collection
equipment.
6. Audience Participation
Jedidiah Haney and Joshua Miller, non - residents, spoke in support of repealing the
marijuana ban.
Michael St.Clair, City resident, suggested the City fix up the dangerous and abandoned
houses and sell them to the less fortunate instead of demolishing.
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Kelly Penfold, City resident, suggested the City install a sidewalk on Beech Street and
requested the City enforce the speed limits and install speed limit signs on 9th and Rainier
Streets.
Tony Courcey, City resident, complained about not receiving a response from the City on
his questions.
PUBLIC HEARINGS
7. Public meeting and resolution for approval of the Final Long Plat of SR Homes
LLC "Washington Heights Phase 3" located in the vicinity of South 78th Avenue &
Washington Avenue
Robby Aaron, Assistant Planner, briefed Council on the item.
Mayor Cawley opened the public hearing and, with no one coming forward to speak,
closed the hearing.
The City Clerk read the resolution by title only.
RESOLUTION NO. 2015-106, A RESOLUTION approving the final plat of Washington
Heights Phase 3 and authorizing the Mayor to sign the final plat.
MOTION: Coffey moved and Adkison seconded to adopt the resolution. The
motion carried by unanimous vote.
8. Public meeting and resolution for approval of the Final Long Plat of Apple Tree
Construction "Golden Grove" located in the vicinity of Coolidge Rd and 88th Ave
Trevor Martin, Assistant Planner, briefed Council on the item.
Mayor Cawley opened the public hearing and, with no one coming forward to speak,
closed the hearing.
The City Clerk read the resolution by title only.
RESOLUTION NO. 2015-107, A RESOLUTION approving the final plat of Golden Grove
and authorizing the Mayor to sign the final plat.
MOTION: Dittmar moved and Adkison seconded to adopt the resolution. The
motion carried by unanimous vote.
9. Public hearing for Council's consideration of appeals submitted by Maud Scott and City of
Yakima regarding the Hearing Examiner's decision on a request for an Unclassified Use
Interpretation by Yakima Neighborhood Health for a proposed Community Resource
Service Center
Joan Davenport, Acting City Manager, stated Senior Assistant City Attorney Kunkler will
present the City's appeal on this closed record public meeting, with all testimony limited to
what is in the record.
Senior Assistant City Attorney Kunkler reported on May 12, 2015, the City received
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Hearing Examiner Spurgin's interpretation decision regarding whether Yakima
Neighborhood Health Services (YNHS) proposal for development of the Roy's Market site
should be allowed. The Hearing Examiner stated the proposed use was not a community
resource service center as intended by the applicant, nor a mission as contended by the
City, but instead was an unclassified use that could be considered as a Class (3) use only
at the Roy's Market location. The Hearing Examiner held that he was allowing the YNHS
proposed use at the Roy's Market site but not in any other Small Convenience Center
(SCC) District. The City's position is that the Hearing Examiner failed to apply the existing
definition of mission to the YNHS proposed use.
The mission definition has been of record since 1992, and clearly provides that mission
uses are only allowed in the GC, CBD and M1 zoning districts and are not permitted in the
SCC zoning district. There are currently about 3,100 sites in the GC, CBD and M1 zoning
districts that could be eligible for consideration for a mission use classification. 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 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. The recent interpretation by the Hearing Examiner failed to recognize the ongoing
legislative process that was in existence at the time of the hearing on the mission
interpretation. Prior use interpretations have been given precedential effect regarding the
definition and location of uses since adoption of the Urban Area Zoning Ordinance in
1986. The City continues to rely on these definitions, even if they are not codified, as they
do have precedential effect.
YNHS presented a request that the Hearing Examiner consider the Roy's Market site a
"community center" or a "mixed use building," both terms which were then (and are
currently) defined in the Municipal Code. The Hearing Examiner rightly ruled the use
proposed by YNHS did not fit either definition. The problem came when the City
contended that the Hearing Examiner must apply the previously established definition of
mission. The functions as proposed by YNHS fit within the mission definition, but the
Hearing Examiner refused to apply the mission classification. This is in error because the
Municipal Code states this is a function of the Hearing Examiner. Instead, he found that the
Roy's Market site was a suitable location based on a Class (3) use and gave an
interpretation to that affect. However, that constitutes use of legislative authority without
authorization under the Code. The only authority given the Hearing Examiner under the
Code is to establish whether an unclassified use, one that's not listed in our current zoning
code, meets the scope and intent and purpose of the zoning district. The Hearing
Examiner jumped over that requirement and, in essence, created a "spot zone." A spot
zone (described in the case of Narrowsview Preservation Association vs. the City of
Tacoma) is an arbitrary and unreasonable zoning action by which a smaller area is singled
out of larger area or district and specifically zoned for a use classification totally different
and inconsistent with a classification of the surrounding land not in accordance with the
comprehensive plan. Hearing Examiner Spurgin's decision in this case had the effect of
creating an island, with only one location in the City that would be allowable for
consideration, and development of a mission use or a use as proposed by YNHS.
Two weeks ago the City Council adopted an ordinance that now codifies the definition of
mission and designates the zoning districts in which that use would be allowed, specifically
the GC, CBD and M1 zones. Because the functions and uses of the YNHS meet that
(new) definition of mission, which is allowed in the GC, CBD, M1 zoning but not in SCC
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zone, Council should reverse that portion of the Hearing Examiner's interpretation that
challenges the ability of the Hearing Examiner to render a use classification, affirm the
provisions of Code as written, and find that the use as proposed by YNHS constitutes a
mission under the new definition of mission as it is currently codified.
Maud Scott, City resident, stated she is signatory on the appeal and spoke in support of
the appeal.
Dennis Macias, City resident, stated he is an owner of property in that neighborhood and is
representing 300 people in that area who signed a petition saying they don't want this
shelter at Roy's Market. He spoke in support of the appeal.
Frank Hewey, City resident, stated he lives in the neighborhood and spoke in support of
the appeal.
Patty Wilson Sandoval; City resident, commented she has lived in her home in this
neighborhood for 41 years and spoke in support of the appeal.
Phyllis Musgrove, City resident, spoke in support of the appeal.
James Carmody, representing YNHS, stated they followed the process recommended by
the City of Yakima Planning Division. He reported they submitted an interpretation request
and unclassified use request for the proposed use before Hearing Examiner Pat Spurgin.
He noted the Council is the judge with rules and one rule is that the decision is based upon
the record established before the Hearing Examiner. He feels this (hearing) has ventured
beyond that and objected to Mr. Kunkler's reference to a mission ordinance that was
passed two weeks ago. He stated that reference was not part of the record considered by
the Hearing Examiner and was improper. He added it highlights an important point,
because the unclassified use determination that was made was based on the City's
ordinance 15.04.040, which states any use not listed in table 4.1 is an unclassified use
and shall be permitted only in those districts so designated by the Hearing Examiner. The
Hearing Examiner found the "community center" and "mixed use building" classifications
were not applicable because of the combination. What wasn't appealed is also important,
as the Hearing Examiner has to make specific findings as an unclassified use
determination. The proposed use is consistent with the intent statement of the zoning
district in which the use is proposed. Within the intent statement, the zoning ordinance
definition for retail services specifically includes a service or use that is social service in
nature and serves the immediate area. This was found to be compliant with intent of the
zoning ordinance, and approved by the Hearing Examiner.
There's been discussion on a mission interpretation or land use application that was
issued in 1992, which was a specific proposal for a specific site and the uses included
260 hotel units and occupancies, medical facilities, dental facilities, alcohol and drug
treatment facilities, auditorium, gymnasium, worship chapels, food services, material repair
shops, and food banks — all Class (2) use in a zoning district and it wasn't listed on table
4.1. Due to concern by City staff that the decision would be applicable to everything in all
SCC zoning districts, the Hearing Examiner limited his decision to affect this location only.
The problem with Mr. Kunkler's argument is the City ordinance doesn't allow a Hearing
Examiner to make rezone decisions. An "unclassified" use is a very common zoning
category and zoning use within this state and is administrative and quasi-judicial. The
Council needs to analyze legal arguments and identify specifically the legal errors found
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with the Hearing Examiner's decision. The Hearing Examiner heard all the issues and
found the proposal was consistent with the zoning districts intent, meeting all development
standards and the comprehensive plan, which supports homeless shelter activities. The
project should move forward to a hearing on the Class (3) use. The Hearing Examiner was
right, thorough, careful, and legally correct and Council should deny the appeals.
Anita Monoian, City resident and Director of Yakima Neighborhood Health Services, stated
YNHS just celebrated their 40th anniversary and she has been there for 36 years. She
spoke in support of the Hearing Examiner's decision.
Mayor Cawley asked if this is a quasi - judicial hearing. City Attorney Cutter reported it is his
legal opinion that Council is not sitting as a quasi-judicial body in this hearing. This hearing
is not about an individual's property interest or individual property, it's about a generally
applicable definition of a use that would be appropriate to a district. This is a legislative
process, where Council is determining through their legislative authority, how a use would
be defined and what its appropriate location would be.
Mr.Carmody noted he would like the record to show that he disagrees with that opinion and
feels this is a quasi - judicial hearing.
Mayor Cawley opened the hearing to the general public, reminding everyone that this is a
closed record hearing and anything brought forward must already be in the record.
Barbara Harris, City resident, spoke in support of the appeal.
With no one else coming forward to speak, Mayor Cawley closed the hearing.
Council Member Dittmar noted this appears to be spot zoning and wondered if there is a
precedent problem if the Hearing Examiner's decision is upheld.
Senior Assistant City Attorney Kunkler stated he believes the Hearing Examiner acted in
error by not following the City's process, which is in the Code and states determination of
a use classification needs to be based on the use definition and the zoning district that it
would be compatible with. The Hearing Examiner essentially said he was not concerned
about whether or not this use would be allowed in all zoning districts throughout the City,
but only with a specific parcel. Mr. Kunkler confirmed this would create a precedent.
City Attorney Cutter added that Mr. Carmody's reference to our own code which indicates
the use not listed on the table is only permitted in districts approved by the Hearing
Examiner, specifies districts, not addresses. This issue deals with the zone and not with a
location on a map.
Council Member Ettl noted a specific decision about a specific spot does not lock it into
that spot; it's then compatible with all other available spaces within that zone. There are 17
small convenience center zones throughout the city and the interpretation would affect all
these areas. Ms. Davenport, zoning administrator, stated the City has taken the position
that interpretations have precedent.
Assistant Mayor Coffey noted it could be any place in downtown Yakima, and there is a
strong emotional drive not to have it there. She stated the City may regret not placing it at
the Roy's Market site as there is a strong feeling by many people that they would not be
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facing the current issues on N. 1st Street if the Union Gospel Mission had not been
allowed there.
Council Member Adkison stated in the last six months she has been active with groups
dealing with homelessness specifically for young people. They are being very specific
about locations in order not to disrupt a neighborhood.
Council Member Ensey noted he initially thought this was a quasi-judicial hearing. City
Attorney Cutter noted the statue 42.36.010 on local land use decisions says, "quasi -
judicial actions do not include the legislative actions adopting, amending or revising
comprehensive community or neighborhood plans, or other land use planning documents,
or the adoption of area wide zoning ordinances or the adoption of a zoning amendment
that is of area wide significance."
After further Council discussion,
MOTION: Ettl moved and Dittmar seconded to uphold the appeal and overturn the
Hearing Examiner's decision. The motion carried by a 4 -3 vote with Coffey, Ensey and
Lover voting no.
CITY MANAGER REPORTS
10. Strategy for Addressing Priority Level Dangerous Buildings
Per Council consensus, this item is postponed until the September 1, 2015 Council
Business meeting.
11. Council consideration of Yakima County request that the City accept transfer of seven
Local Improvement District Drainage Improvement Districts located entirely within the City
limits.
City Attorney Cutter briefed Council on the issue.
After Council discussion,
MOTION: Cawley moved and Adkison seconded to deny acceptance of transfer of
the County Drainage Improvement Districts. The motion carried by unanimous vote.
ORDINANCES
12. Ordinance amending the Municipal Code to designate Gilbert Park and Randall Park —
Dog Park as leash -free parks in designated areas
Ken Wilkinson, Parks and Recreation Manager, briefed Council on the ordinance.
Joan Sousley, City resident, stated she lives next to Gilbert Park. She spoke against the
off -leash dog law at Gilbert Park.
Joe Caruso, Codes Manager, stated he has given direction to Animal Control Officers to
cite anyone not following the leash law, and they have given out several citations.
The City Clerk read the ordinance by title only.
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ORDINANCE NO. 2015-023, AN ORDINANCE relating to Parks and Playgrounds;
amending the City of Yakima Municipal Code Section 13.16.110 to designate Randall Park
— Dog Park as a leash -free park, adding a new Section 13.16.115 to regulate how dogs
may be leash -free in designated areas and amending Animal Control Section 6.20.260 to
provide for leash free designated areas.
Council members discussed a possible fenced -in dog park at Gilbert Park. After further
Council discussion,
MOTION: Ensey moved and Adkison seconded to remove any reference to the
term "off- leash" at Gilbert Park and to pass the remaining portion of the
ordinance. The motion carried by unanimous vote.
13. Ordinance Updating Mobile Food Vendor Licensing
Robbie Aaron, Assistant Planner, briefed Council on the ordinance.
Leah Toney, City resident, spoke against the ordinance. She stated as a mobile vendor
owner, she would like to park her truck on private property, in one place, for days at a time.
She suggested having different requirements for different types of mobile vendors,
similar to the Health District's varying permits.
After Council discussion, and by Council consensus, this item was referred back to the
Council Built Environment Committee for further review.
14. Other Business
15. Adjournment
MOTION: Ensey moved and Coffey seconded to adjourn to the next Council
Business Meeting on September 1, 2015 at 6 p.m. at City Hall. The motion carried by
unanimous vote. The meeting adjourned at 9:21 p.m.
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